[ v25 p1060 ]
25:1060(89)CA
The decision of the Authority follows:
25 FLRA No. 89
ARMY AND AIR FORCE EXCHANGE
SERVICE (AAFES), FORT CARSON,
COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1345
Charging Party
Case No. 7-CA-795
(17 FLRA No. 92)
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority on remand from the United States
Court of Appeals for the District of Columbia Circuit in American
Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793
F.2d 1360 (D.C. Cir. 1986). The case concerns whether the Respondent
violated the Federal Service Labor-Management Relations Statute (the
Statute) by refusing to furnish information requested by the Charging
Party (the Union) under section 7114(b)(4) of the Statute.
We adopt the court's conclusion that the information requested by the
Union is necessary for the Union's representational functions as
provided under section 7114(b)(4)(B). For the reasons that follow, and
consistent with the court's remand, we also decide, contrary to
Respondent's argument, that the information is not prohibited from
disclosure under section 7114(b)(4) by reason of the Privacy Act, 5
U.S.C. Section 552a (1982). Accordingly, we find that the Respondent's
refusal to furnish the information violated the Statute, and we reverse
the Authority's prior decision in this case, 17 FLRA 624 (1985).
II. History of the Case
A. Facts
In 1980 the Respondent removed from employment two bargaining-unit
employees for theft. At the time of their removals, the Union did not
know the identities of the employees, and had not been asked to
represent them. After learning of the removals, the Union requested the
Respondent to furnish to the Union all data relating to the actions.
The Respondent's failure to comply with the Union's request gave rise to
the complaint, alleging that the Respondent had refused to comply with
section 7114(b)(4).
In the hearing before the Authority's Administrative Law Judge, the
Respondent conceded that it had refused to furnish the information
requested by the Union, but contended that it was not obligated to
furnish the information under section 7114(b)(4) because disclosure of
the information would violate the Privacy Act. The Respondent provided
copies of requested documents for private inspection by the Judge and
the Authority.
B. Administrative Law Judge's decision
The Judge applied a balancing test to determine whether disclosure of
the information would conflict with the Privacy Act. He concluded that
the Respondent acted properly in refusing to disclose the information,
reasoning that where the Union did not know the identity of the
individuals and had not been asked to represent them, the individuals'
private interests outweighed the Union's need for the information.
Accordingly, the Judge recommended that the complaint be dismissed.
C. Authority's decision
In reviewing the Judge's decision, the Authority concluded that
because the Union did not know the identities of the individuals who had
been removed and had not been requested to represent them, the General
Counsel had not shown that the information was necessary for the Union's
representational functions. Accordingly, the Authority dismissed the
complaint without reaching the Privacy Act issues. 17 FLRA at 629.
D. Decision of the Court
In Local 1345, 793 F.2d 1360, the D.C. Circuit reversed the
Authority's decision, and held that the information requested by the
Union is necessary under the terms of section 7114(b)(4). The court
noted, however, that the Authority had not addressed whether disclosure
of some or all of the information would conflict with the Privacy Act.
Accordingly, the court remanded the case to the Authority for a
determination on this issue.
III. Analysis
We accept as the law of the case the court's opinion that the
information which the Union requested is necessary for the Union's
representational functions under the Statute. The remaining question is
whether disclosure of the information is prohibited under section
7114(b)(4) because disclosure would conflict with the Privacy Act. We
conclude that disclosure to the Union of the requested information is
not barred by the Privacy Act and that the release of the information is
therefore not prohibited by law.
The Privacy Act generally prohibits the disclosure of personal
information about Federal employees without their consent. Section
(b)(2) of the Privacy Act, 5 U.S.C. Section 552a(b)(2), provides that
the prohibition against disclosure is not applicable if disclosure of
the information is required under the Freedom of Information Act (FOIA),
5 U.S.C. Section 552. Exemption (b)(6) of FOIA, 5 U.S.C. Section
552(b)(6), pertinently provides that information contained in personnel
files may be withheld if disclosure of the information would constitute
a "clearly unwarranted invasion of personal privacy." As we recently
stated in Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA No. 101 (1986), petition for review filed sub nom.,
No. 86-2579 (8th Cir. Dec. 23, 1986), to determine whether requested
information falls within exemption (b)(6), it is necessary to strike a
balance between an individual's right to privacy and the public
interests in having the information disclosed. In striking this balance
in cases under section 7114(b)(4), we also stated that in view of the
congressional findings in section 7101 that collective bargaining is in
the public interest and safeguards that interest, release of information
which is necessary for a union to perform its statutory representational
functions promotes important public interests.
We have reviewed the Union's request and the documents provided by
the Respondent for private inspection in relation to the competing
interests. We find that the balance of interests favors the disclosure
sought by the Union. Because of the sensitive nature of the requested
information, release of it would be an invasion of personal privacy.
However, the issue in these cases is whether on balance this invasion is
"clearly unwarranted," and in this case we decide that it is not.
We conclude that the documents are necessary and relevant to the
Union's representational functions under the Statute. To perform these
functions in connection with the removals of unit employees, the Union
must know the identities of the persons who have been removed and the
basis for the removals. The Union must also know the procedures
followed and the policies implemented by management in bringing actions
against employees. The Union has requested the information in order to
perform its functions as an exclusive representative which are in the
public interest and safeguards the public interest.
In pursuing the release of this information, the Union also helps to
promote other important public interests. The release of this
information to the Union will serve to ensure that Federal agencies
observe statutory, regulatory, and collective bargaining agreement
procedures in removing employees. As the Supreme Court noted in
Cornelius v. Nutt, 105 S. Ct. 2882 (1985), one of the central tasks and
public purposes of the Civil Service Reform Act was to "(a)llow civil
servants to be able to be hired and fired more easily, but for the right
reason." 105 S. Ct. at 2891 (quoting S. Rep. No. 969, 95th Cong., 2d
Sess. 4 (1978)).
Finally, the intrusion into the privacy of these individuals is
minimized by the limited access to this information, which will be
released to the Union alone and for the limited purpose of performing
its representational functions. There is no indication or cause to
believe from the record that their identity would become generally known
as a result of the release of the information. See Internal Revenue
Service, Washington, D.C., and Internal Revenue Service, Omaha District,
Omaha, Nebraska, 25 FLRA No. 13 (1987). Of course, as we noted in IRS,
Washington, D.C., if this sensitive information becomes widely
disseminated, the dissemination will be taken into account in similar
cases in the future.
In sum, we conclude that the public interest in disclosure of the
information outweighs the invasion of privacy resulting from the
disclosure. As a result, the invasion of privacy is not clearly
unwarranted within the meaning of exemption (b)(6) of FOIA, and
disclosure of the information is not prohibited by the Privacy Act.
IV. Conclusion
The information requested by the Union is necessary for the Union's
representation functions under section 7114(b)(4) of the Statute. The
data is not prohibited from disclosure under the Privacy Act and its
disclosure satisfies the other requirements of the Statute.
Accordingly, the Respondent's refusal to furnish the information
constituted a failure to comply with section 7114(b)(4), in violation of
section 7116(a)(1), (5), and (8) of the Statute.
V. Order
The Authority's Order in Army and Air Force Exchange Service (AAFES),
Fort Carson, Colorado, 17 FLRA 624 (1985), dismissing the complaint in
Case No. 7-CA-795, is vacated.
The Authority orders that the Army and Air Force Exchange Service
(AAFES), Fort Carson, Colorado, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the information requested in
September 1980 by the American Federation of Government Employees,
AFL-CIO, Local 1345, the employees' exclusive representative, concerning
the removal from employment of two individuals who were members of the
exclusive representative's bargaining unit.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action to effectuate the purposes
and policies of the Statute:
(a) Furnish upon request of the American Federation of Government
Employees, AFL-CIO, Local 1345, the employees' exclusive representative,
the information requested in September 1980 concerning the removal from
employment of two individuals who were members of the exclusive
representative's bargaining unit.
(b) Post at its facilities copies of the attached Notice on forms
furnished by the Authority. Upon receipt, the forms will be signed by
the General Manager of the Exchange and be posted and maintained for 60
consecutive days in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted.
Reasonable steps will be taken to ensure that these Notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director, Region VII, Federal Labor Relations
Authority, within 30 days of this Order and as required by section
2423.30 of the Authority's Rules and Regulations, of the steps which
have been taken to comply.
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish the information requested in September
1980 by the American Federation of Government Employees, AFL-CIO, Local
1345, the exclusive representative of our employees, concerning the
removal from employment of two individuals who were members of the
exclusive representative's bargaining unit.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of the rights assured by the
Statute.
WE WILL furnish upon request of the American Federation of Government
Employees, AFL-CIO, Local 1345, the exclusive representative of our
employees, the information it requested in September 1980 concerning the
removal from employment of two individuals who were members of the
exclusive representative's bargaining unit.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 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 its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address:
535 16th Street, Suite 310, Denver, Colorado 80202, and whose telephone
number is: (303) 837-5224.