9 CIR 275 (1988)


Petitioner, |
Respondent. |


For the Petitioner: Thomas F. Dowd

Dowd, Fahey, Dinsmore & Hasiak

1905 Harney Street

Suite 710

Omaha, NE 68102

For the Respondent: Jack L. Schultz

1200 "N" Street

500 The Atrium

P.O. Box 82028

Lincoln, NE 68501-2028

Before: Judges Kratz, Cope, and Orr


This matter was submitted without hearing and upon a Joint Stipulation of Facts. The sole issue is whether the Respondent is required to furnish the Petitioner, the collective bargaining representative for Respondent's courthouse employees, the addresses of all employees in the Douglas County Courthouse bargaining unit. 1


Respondent has provided the Petitioner with the names of all courthouse bargaining unit employees, but refuses to furnish the addresses because (1) there has been a "longstanding recognition and on-the-premises activity by the bargaining unit over ten (10) years' duration," and (2) some of the employees regard the furnishing of their addresses as "an infringement" of their "rights to confidentiality and privacy."

Petitioner says it needs the addresses of the bargaining unit employees, as well as their names, in order to communicate with them at their residences. Otherwise, Petitioner says, it has no effective means of contacting the employees it represents and is unable to fulfill its statutory obligation of good faith representation.

In its refusal to submit the addresses, Respondent relies on a decision of the United States Court of Appeals for the Fourth Circuit in American Federation of Government Employees, AFL-CIO, Local #1923 v. United States of America, Department of Health and Human Services, 712 F. 2d 931. In this 1983 case, the union, which represents approximately 20,000 bargaining unit employees of the Social Security Administration headquarters in Baltimore, Maryland, requested the addresses of all bargaining unit employees and argued it was entitled to this information under the Freedom of Information Act (FOIA). The employer refused and the union then asked the U.S. District Court for the District of Maryland to require the employer to supply the addresses. The District court denied the union request and the 4th Circuit Court affirmed that judgment on the ground that "employees have a strong privacy interest in their home addresses."

Recently this same Circuit Court has revisited this issue and altered its opinion. In the case of United States Department of Health & Human Services, Social Security Administration v. Federal Labor Relations Authority & American Federation of Government Employees, AFL-CIO, Nos. 87-3513, 87-3514, & 87-3515, November 25, 1987, 126 LRRM 3236, the Department of Health and Human Services, Social Security Administration (SSA), petitioned for review of three decisions, consolidated on appeal, of the Federal Labor Relations Authority (FLRA or Authority). In each of these three cases, the FLRA ruled that it was an unfair labor practice under the Federal Labor-Management Relations Act, Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. Section 7101 et. seq. (1982), for the SSA to refuse to provide the American Federation of Government Employees (AFGE) with a list of the names and home addresses of SSA employees within specific bargaining units. The union wanted the names and addresses in order to "advise bargaining unit employees of its activities by mail and to solicit employees' opinions with respect to negotiations between the union and SSA."

The FLRA ruled the names and addresses must be provided because:

A union request for names and home addresses of its bargaining unit employees is consistent with its statutory responsibility to represent those employees and...an agency must furnish such information upon request without regard to whether a means of communication other than direct mailing is available.

The FLRA also held that under the circumstances of this case, "the release of home addresses is not prohibited by the Privacy Act."

In affirming and enforcing the order of the FLRA, the 4th Circuit Court said as follows:

The union's duties as the exclusive representative of agency employees do not begin and end abruptly with each round of negotiations but continues during the interim. It is well settled in the private sector that an employer's obligation to furnish information needed by a union for proper performance of its duties extends to information needed for the administering and policing of a contract as well as for contract negotiations. See NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S. Ct. 565, 568, 17 L. Ed. 2d. 495, 499, 64 LRRM 2069 (1967). We see no reason to restrict the union's role in the public sector inasmuch as the Labor Management Relations Act of 1947, which governs labor matters in the private sector, and the Statute share a similar definition of collective bargaining as well as a similar purpose...

Communication between the union and bargaining unit employees appears to be as important to the performance of the union's representational duties in the interim between negotiations as it is during negotiations. "It seems manifest beyond dispute that the union cannot discharge its obligation unless it is able to communicate with those in whose behalf it acts." Prudential Insurance Co. of America v. NLRB, 412 F. 2d 77...

The 4th Circuit Court points out that the FLRA, in its decision to authorize submittal of the names and addresses, concluded "not only that direct mailing is the best means of communication inasmuch as the content, timing and frequency are completely within the union's discretion, but that direct mailing constitutes the only means with which there is no possibility of Agency interference. Therefore..., the requested names and home addresses are necessary to the collective bargaining process in that they enable direct communication to take place." The court agreed with this conclusion of the FLRA and said:

We find the desirability of direct communication and the resulting need for names and home addresses sufficiently connected to support the Authority's presumption that such information is 'necessary' to the collective bargaining process under 5 U.S.C. Section 7114(b)(4)(B).

Asked in this very recent case (11/25/87) to follow its previous decision (1983), which denied the addresses (AFGE, Local 1923), the court declined on the ground that:

The instant cases come before us in a different posture in that AFGE, Local 1923, was not a review of a ruling by the Federal Labor Relations Authority. Here the union has sought disclosure under the Statute, not directly under the FOIA. The Authority has determined that SSA's refusal to disclose its employees home addresses to the union constitutes an unfair labor practice. 5 U.S.C. Section 7116(a). Considerable weight is due the Authority's interpretation of the statute.

This recent decision of the 4th Circuit appears to resolve a possible conflict with the United States Court of Appeals for the Second Circuit (American Federation of Government Employees, Local 1760, AFL-CIO v. Federal Labor Relations Authority, 786 F. 2d 554 (1986)) on the issue of whether the union's need for names and addresses of bargaining unit employees outweighs the privacy interests of the employees. That issue, of course, is the only issue to be decided in the instant case and the two Federal Circuit Courts who have addressed this issue are now in accord.

In AFGE, Local 1760, the U.S. 2nd Circuit Court held as follows:

Accordingly, in light of the modest privacy interest in revealing addresses alone, the ALJ's finding that other means of communication are inadequate, and the statutory approval of the union as collective bargaining agent, we hold that the release of the employees' addresses is not "prohibited by law" within the meaning of the statute, 5 U.S.C. Section 7114(b)(4).

This 2nd Circuit case, an appeal from an FLRA ruling that an agency employer needn't release the employee addresses,2 is like the instant case in that the union had requested the names and addresses of the employees in the bargaining unit and the employer had released only the names, denying the request for addresses on the ground that it would be a violation of the employees' right Were there any evidence that the addresses would be used to embarrass, abuse, or harass the employees, the respondent could have a valid basis for denial of the request.3 There is, however, no such evidence in this case.

Respondent, citing the "longstanding...on-the-premises activity of the bargaining unit," argues that the union has other means for communicating with the employees and that the addresses, therefore, are not needed. The same argument was presented and rejected in both of the afore-described 4th Circuit and 2nd Circuit cases. In the AFGE, Local 1760 case, the 2nd Circuit said:

Moreover, in private sector cases, we have regarded the mere existence of alternatives as insufficient to justify refusal to release addresses.

In support of this conclusion, the 2nd Circuit Court, citing the Prudential NLRB case, supra, and United Aircraft Corp. v. NLRB, 454 F. 2d 1198, said:

"In these cases, of course, we drew our rule of decision from the National Labor Relations Act, but the privacy implications of address release are essentially the same in either the public or private sector."

This brings us to the question of how we apply these interpretations of Federal statutes to the Nebraska statute. The cases heretofore discussed interpret the Civil Service Reform Act. However, in interpreting the Civil Service Reform Act, the courts rely on interpretations by the National Labor Relations Board of the National Labor Relations Act. This Commission, in turn, has been told by the Nebraska Supreme Court that decisions under the National Labor Relations Act can be used ("are helpful but not controlling") in interpreting the provisions of the Commission of Industrial Relations Act. City of Grand Island v. AFSCME, 186 Neb. 711, 185 N.W.2d 860 (1971). The rights of unions to provide good faith representation to all of the employees within the bargaining unit are the same, whether it is the private sector or the public sector, and the statutes which define good faith bargaining are virtually the same whether it's the Civil Service Reform Act, the National Labor Relations Act, or the Commission of Industrial Relations Act.4

Therefore, the Respondent should provide the Petitioner with the addresses of all employees in the Douglas County Courthouse bargaining unit and it is so ordered.

Entered January 11, 1988.

1This case originally also included a request for the addresses of the employees in the Douglas County Hospital bargaining unit, but petitioner has dismissed that portion of the petition which relates to the hospital unit.

2The FLRA has bounced around a bit on this issue. It was not involved in the original 1983 4th Circuit Court decision (AFGE, Local #1923) which denied the addresses (the union went directly to the Federal District Court with a request for injunctive relief). However, when the issue first came to it in the 1986 AFGE, Local #1760 case, it used the 1983 4th Circuit Court AFGE, Local #1923 case as a basis for denying the request for addresses. The 2nd Circuit Court reversed. At this point, then, the 4th Circuit and the 2nd Circuit seemed to disagree. When the issue came back again to the FLRA in 1987, it had to choose between the rulings of the two circuits. It opted for the 2nd Circuit position, though the case was within the jurisdiction of the 4th Circuit, and when the 4th Circuit then affirmed (indicating that if it had had the benefit of the expertise of the FLRA when the first case was considered, it never would have denied the request), all tribunals were finally in accord.

3The FOIA requires the government to release information unless the release of such information "would constitute a clearly unwarranted invasion of personal privacy" (5 U.S.C. 552(b)(6)). According to the U.S. 2nd Circuit Court, it would be an unwarranted invasion of personal privacy if release of information "could subject the person to harassment, disgrace, loss of employment, or friends." Brown v. Federal Bureau of Investigation, 658 F. 2d 71. See also Getman v. NLRB, 450 F.2d 670, where the D.C. Circuit reached the same conclusion.

4The definition of good faith bargaining in the Commission of Industrial Relations Act (Sec. 48-816(1)) was taken almost verbatim from the National Labor Relations Act definition of good faith bargaining (29 U.S.C. 158(d)), and the U.S. 4th Circuit Court, in its 1987 case (SSA v. FLRA), says the National Labor Relations Act (referred to in that opinion as the Labor Management Relations Act of 1959) and the Civil Service Reform Act "share a similar definition of collective bargaining as well as a similar purpose."