On Petition for Review for Enforcement of a Decision of the Federal Labor Relations Authority, 23 FLRA No. 4, Case No. 2-CA-40243.
Sloviter and Stapleton, Circuit Judges, and Brotman, District Judge.*fn*
The legal issue before us, whether a federal agency must provide a union representing its employees with the names and home addresses of all bargaining unit members, implicates both labor law principles and privacy considerations. The Federal Labor Relations Authority (FLRA) held that the Philadelphia Naval Shipyard (Shipyard), an employer governed by the Federal Service Labor-Management Relations Statute (Fed'l L-M Statute), committed an unfair labor practice by failing to disclose such information. The Shipyard petitions for review of the FLRA's decision, and the FLRA cross-petitions for enforcement.
The Metal Trades Council (Union) is the sole bargaining representative for approximately 7,000 non-supervisory, ungraded employees of the Shipyard, of whom 4,400 are dues-paying members. The workers were covered by a three-year agreement which came into effect on March 12, 1982, and which thereafter remained in effect from year to year in the absence of notice from either party.
In February of 1984, the Union's president wrote to the Shipyard commander requesting the names and home addresses of all members of the bargaining unit in order to "carry out it's [sic] entitled responsibilities, within the scope of collective bargaining." Joint App. at 78. The president claimed that it was "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 [sic] multi-faceted representational obligations." Id. The commander denied the request, citing the availability of various alternative means of communication with workers. Subsequently the Union filed an unfair labor practice charge with the FLRA under 5 U.S.C. § 7116 (1982), alleging a violation of 5 U.S.C. § 7114(b)(4) (1982), and the FLRA issued a complaint.
After hearing and briefing, an FLRA Administrative Law Judge (ALJ) issued a recommended decision and order containing detailed findings of fact relating to the ability of the Union to communicate with shipyard workers. Briefly, the ALJ found that employees were dispersed among numerous worksites in the seven-square-mile facility and that both their work schedules and their means of travel to and from work made it impractical for the Union to communicate through handbilling or to organize mass meetings. The Union had some access to thirty-five bulletin boards in the plant, but these were not well-located to reach the majority of workers and had not proven an effective means of communication. The Union had no access to the internal mail system. The Union was allowed access to the Shipyard weekly newspaper but the Shipyard had the right, apparently not exercised, to edit any submissions. The Union also distributed its own newspaper at drop-off points throughout the shipyard. Concluding that existing means of communication were not sufficient to allow the Union to carry out its responsibilities, the ALJ found that the refusal of the Shipyard to disclose the names and addresses was an unfair labor practice, and recommended that the FLRA order disclosure.
In its first hearing of the Shipyard case, the FLRA disagreed with the ALJ. The FLRA relied on its earlier decision in Farmer's Home Administration Finance Office, St. Louis, Mo., 19 F.L.R.A. 195 (1985) (FHAFO I), where it had found that the employees' strong privacy interest outweighed any benefit to the Union in release, especially in light of what it then stated was the availability of alternative means of communication. 19 F.L.R.A. at 197-98. Therefore, the FLRA concluded in FHAFO I that release of the names and addresses of employees was prohibited by the Privacy Act, 5 U.S.C. § 552a (1982 & Supp. IV 1986).
The Union petitioned for review of the FLRA's adverse Shipyard decision to the Court of Appeals for the District of Columbia. Prior to completion of briefing, that court granted the FLRA's motion to remand the case to allow consideration of whether disclosure of employee names and addresses was a "routine use" exempted under the Privacy Act, 5 U.S.C. § 552a(b)(3) (1982).
Thereafter, the FLRA reversed the position it had taken in FHAFO I. In Farmer's Home Administration Finance Office, St. Louis, Mo., 23 FLRA 788 (1986) (FHAFO II), which also had been remanded to the agency to consider whether disclosure of the names and addresses was authorized as a "routine use", the FLRA abandoned its earlier position. It agreed instead with the Second Circuit's intervening opinion that the public interest in the requested disclosure outweighed the relevant privacy interest. Id. at 793 (citing American Fed'n of Gov't Employees, Local 1760 v. FLRA, 786 F.2d 554, 556 (2d Cir. 1986)). In addition, the FLRA determined that the employees' names and addresses are exempt from the Privacy Act as a "routine use". 23 F.L.R.A. at 793-94. The FLRA thus concluded that the release of the information is not prohibited by law, is necessary for unions to fulfill their duties under the Fed'l L-M Statute, and meets the other requirements for release of that statute. Id. at 798. The FLRA also decided that the unique advantages of direct mail generally made consideration of alternatives unnecessary. Id. at 796-97.
Upon the remand in this case, the FLRA, without independent analysis, relied on FHAFO II to conclude that the Shipyard's failure to furnish the Union with the names and home addresses of the employees in the bargaining unit constituted an unfair labor practice.