Federal Labor Relations Authority v. United States Department of Defense, Army & Air Force Exchange Service

984 F.2d 370
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 20, 1993
DocketNos. 90-9561, 90-9569, 90-9562, 90-9570, 90-9572, 90-9578, 90-9573, 90-9579, 91-9509 and 91-9517
StatusPublished
Cited by1 cases

This text of 984 F.2d 370 (Federal Labor Relations Authority v. United States Department of Defense, Army & Air Force Exchange Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Labor Relations Authority v. United States Department of Defense, Army & Air Force Exchange Service, 984 F.2d 370 (10th Cir. 1993).

Opinion

BALDOCK, Circuit Judge.

The sole issue in these consolidated appeals is whether federal agencies are required to release their employees’ home addresses1 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” [373]*373for 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 interpreta[374]

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