UNITED STATES DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE,
ILLINOIS, PETITIONER V. FEDERAL LABOR RELATIONS AUTHORITY

   No. 88-354

   In The Supreme Court Of The United States

   October Term, 1988

   The Solicitor General, on behalf of the United States Department of
the Air Force, Scott Air Force Base, Illinois, petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Seventh Circuit in this case.

   Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circurit

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-9a) is
reported at 838 F.2d 229.  The opinion of the Federal Labor Relations
Authority (App., infra, 10a-17a) is reported at 24 F.L.R.A. 226.  The
opinion of the administrative law judge (App., infra, 18a-35a) is
reported at 24 F.L.R.A. 232.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 36a-37a) was
entered on January 27, 1988.  A petition for rehearing was denied on
March 29, 1988 (App., infra, 38a-39a).  On June 22, 1988, Justice
Stevens extended the time for filing a petition for a writ of
certiorari to and including August 26, 1988.  The jurisdiction of this
court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether 5 U.S.C. 7114(b) and the Freedom of Information Act, 5
U.S.C. (&Supp. IV) 552, require a federal agency to disclose to a
labor union the home addresses of agency employees who are within the
bargaining unit represented by the union.

                               STATEMENT

   This case involves a petition for review of a decision of the
Federal Labor Relations Authority (Authority) holding that federal
agencies are required by the Federal Service Labor-Management
Relations Statute (Civil Service Reform Act of 1978, Tit. VII) (Labor
Statute), 5 U.S.C. (& Supp. IV) 7101 et seq. -- specifically 5 U.S.C.
7114(b)(4) -- to provide to unions the home addresses of federal
employees who are within the "bargaining units" represented by the
unions but are not necessarily union members.  The court of appeals
agreed with the Authority that the agencies must release the home
addresses.  The court's decision conflicts with the decision of the
Eighth Circuit in Department of Agriculture v. FLRA, 836 F.2d 1139
(1988).

   1. Section 7114(b)(4) requires a federal employer to release "data"
only when they are "reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects within
the scope of collective bargaining," and only "to the extent not
prohibited by law." When it first addressed the issue, the Authority
held that this statute does not require federal employers to provide
labor unions with the home addresses of employees that the unionss
represent.

   In its first set of decisions, holding that it is proper for
federal employers to deny this information to unions, the Authority
reasoned that release of the home addresses is "prohibited by law"
within the meaning of 5 U.S.C. 7114(b)(4) unless the release comes
within an exemption to the general prohibition in the Privacy Act of
1974, 5 U.S.C. (& Supp. IV) 552a, on release of personal information.
The Authority further rejected the contention that the release of home
addresses comes within the Privacy Act exception (5 U.S.C. 552a(b)(2))
for disclosures required by the Freedom of Information Act (FOIA), 5
U.S.C. (& Supp. IV) 552, on the ground that FOIA Exemption 6, 5 U.S.C.
552(b)(6), for "clearly unwarranted invasion(s) of personal privacy,"
applies.  The Authority held that workers have strong privacy interest
in their home addresses that outweigh the public interests in
disclosure, particularly in light of the unions' reasonable
alternative means of communication.  E.g., Farmers Home Admin. Fanance
Office, 19 F.L.R.A. 195 (1985) (FmHA I).

   The unions petitioned for review in several cases.  The Authority
subsequently sought remand of those cases to consider the unions'
claims that home addresses are disclosable under the "routine use"
exemption of the Privacy Act. 5 U.S.C. 552a(b)(3).  Three cases were
remanded.  See Farmers Home Admin. Finance Office, 23 F.L.R.A. 788,
789 (1986) (FmHA II) (citing remand orders), enforced in part and
remanded in part sub nom.  Department of Agriculture v. FLRA, 836 F.2d
1139 (8th Cir. 1988).

   The Second Circuit, however, denied remand and reversed the
Authority.  That court held that employees' privacy interests in their
home addresses are minimal and are outweighed by the union's need.
The court concluded that the alternatives to disclosure were not
adequate.  AFGE, Local 1760 v. FLRA, 786 F.2d 554, 556 (2d Cir. 1986).

   2. On remand in the other cases, and in additional cases that have
come before it, the Authority reversed itself and ruled in favor of
the unions relying in part on the decision of the Second Circuit in
AFGE, Local 1760.  The Authority treated FmHA II as the lead case.  In
FmHA II the Authority reiterated its holding that the "prohibited by
law" proviso in 5 U.S.C. 7114(b)(4) requires application of the
Privacy Act and FOIA.  The Authority held, however, that disclosure of
federal workers' names and home addresses is not prohibited by the
Privacy Act on the ground that the information is not protected by
FOIA Exemption 6.  23 F.L.R.A. at 792.

   In considering whether the privacy exemption of the FOIA bars
disclosure of names and home addresses, the Authority reversed its
prior analysis, which had relied in part on the Fourth Circuit's
decision in AFGE, Local 1923 v. HHS, 712 F.2d 931 (1983).  The
Authority instead adopted the view of the Second Circuit that "the
privacy interest of the average employee in his address is not
particularly compelling' " (23 F.L.R.A. at 793 (quoting AFGE, Local
1760 v. FLRA, 786 F.2d at 556)).  The Authority recognized that some
employees might object, but suggested that they could discard letters
from the union and request deletion from the union's mailing list
(ibid.).  It concluded that the "public interest to be furthered by
providing the Union with an efficient method to communicate with unit
employees it must represent far outweighs the privacy interests of
individual employees in their names and home addresses" ibid.).

   The Authority also concluded that disclosure is authorized by
another Privacy Act exemption, 5 U.S.C. 552a(b)(3), which permits
disclosure for certain "routine use(s)." The routine use that the
Authority found applicable was a notice published by the Office of
Personnel Management (OPM) 49 Fed. Reg. 36956 (1984)), which provides
for disclosure of certain information to labor organizations (23
F.L.R.A. at 793-794).  Disagreeing with OPM's construction of its own
routine use, the Authority considered the standard for disclosure
under OPM's "routine Use" notice to be essentially the same as the
requirement in 5 U.S.C. 7114(b)(4), that the data sought by the union
be "'necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining'"
(23 F.L.R.A. at 794), a phrase the Authority considered broad enough
to cover the unions' requests for employee home addresses.

   Finally, the Authority held that disclosure is required without
regard to the particular need of the union or reasonable alternative
means of communication.  The Authority stated that the union need not
specify any particular reason or need for the information, based on
the Authority's view of "a uinon's statutory obligations involv(ing) a
broad range of representational activities" (23 F.L.R.A. at 795).  It
also held that it "will not review the adequacy of alternative methods
of communication on a case-by-case-basis," and concluded that a list
of names and home addresses is "necessary" under 5 U.S.C. 7114(b)(4)
regardless of the availability of such alternatives (23 F.L.R.A. at
796).

   3. In FmHA II and in many subsequent decisions relying on FmHA II,
the federal agency employers have petitioned for review in the courts
of appeals and the Authority has petitioned or cross-petitioned for
enforcement.  Four courts of appeals have reviewed the Authority's
position that home addresses must be released.  The Eighth Circuit,
reviewing the decision in FmHA II itself, has rejected the Authority's
position in part, holding that at least some employees have a
sufficient privacy interest in their home addresses that release would
constitute a clearly unwarranted invasion of personal privacy.
Department of Agriculture v. FLRA, supra.  In that case the court
remanded the case to the Authority apparently for the purpose of
developing a procedure for permitting employees to have the
opportunity to opt out of the mandatory disclosure of their home
addresses to the unions.

   The other three courts of appeals that have decided agency
petitions for review have agreed with the Authority's construction of
5 U.s.C. 7114(b) and 5 U.S.C. 552(b)(6) and have enforced its orders.
See Department of Navy v. FLRA, 840 F.2d 1131 (3rd Cir. 1988);
Department of Health & Human Services v. FLRA, 833 F.2d 1129 (4th Cir.
1988);  App. infra, 1a-9a.

   In addition, cases raising the same issue are pending in the
District of Columbia Circuit.  E.g., FLRA v. Department of the
Treasury, No. 87-1107, and consolidated cases;  FLRA v. Department of
Health & Human services, No. 87-1147, and consolidated cases.  There
are more than 250 cases currently pending in the D.C. Circuit that
have been consolidated and stayed pending disposition by this Court of
Department of Justice v. Reports Comm. for Freedom of the Press, cert.
granted, No. 87-1379 (Apr. 18, 1988.

   In light of the recent decisions of the Third, Fourth, and Seventh
Circuits, and the earlier decision of the Second Circuit in AFGE,
Local 1760 v. FLRA, supra, the Solicitor General has authorized the
Authority to petition for a writ of certiorari to review the Eighth
Circuit's decision in Department of Agriculture v. FLRA, supra, and we
anticipate that the Authority will file such a petition on or before
August 29,1988.  We also currently anticipate filing a cross-petition
for a writ of certiorari in that case.

   The present petition for a writ of certiorari, and the petitions
that we are simultaneously filing in Department of Navy, v. FLRA,
supra, and Department of Health & Human Services v. FLRA, supra, ask
the Court to hold these three cases pending the disposition of any
petition and cross-petition that may be filed in Department of
Aguriculture v. FLRA, supra.

   4. This case involves Scott Air Base in Southwest Illinois.  The
National Association of Government Employees, Local R7-23 (union), is
the authorized bargaining representative for the majority of the
civilian employees working on the base (App., infra, 19a).  The union
requested that the Air Force Base management provide the home and work
addresses of 166 new employees hired since the last new employee
orientation to enable the union to communicate with them about the
existence of the union and its officers and to provide them with a
copy of the collective bargaining agreement (id. at 21a).  The Base
denied the request and stated that the Privacy Act prohibits
disclosure of the new employees' home addresses (id. at 22a).  It did,
however, provide the union with the 166 new employees' office mail
addresses and offered to deliver first class mail from the union to
those addresses (id. at 22a-23a).

   The union filed an unfair labor practice charge against the Base
with the Authority under 5 U.S.C. 7114(b)(4) because of its refusal to
provide the home addresses of the 166 new employees.  The General
Counsel of the Authority filed a complaint against the Base, alleging
that the failure to provide a list of names and home addresses was an
unfair labor practice under the Labor Statute.  App., infra, 18a-19a.
On April 9, 1985, the administrative law judge ALJ) issued a decision
and order dismissing the complaint (id. at 18a-35a).  The ALJ
determined that the disclosure of home addresses "impinges to some
degree on the personal privacy of employees" and that therefore it was
"necessary to determine whether the Union has other effective means of
communicating with new employees" (id. at 33a).  The ALJ found that
the union had a fully effective alternative, since the employer
provided it with a list of new employees' names and work addresses and
the union could send mail directly to the employees there through the
U.S. mail (id. at 34a).

   On November 26, 1986, the Authority issued a decision and order
rejecting the recommended decision of the ALJ and ordering the Base to
disclose the home addresses of the new employees as requested by the
union (App., infra, 10a-17a).  The Authority noted the ALJ's
determination that a reasonable alternative to disclosure of home
addresses existed (id. at 12a).  The Authority, however, applied its
decision on remand in FmHA II and held that the union is entitled to
the home addresses without regard to reasonable alternatives (id. at
13a).

   The court of appeals enforced the Authority's order (App., infra,
1a-9a).  It held that disclosure of employee home addresses is
mandated by FOIA, and therefore mandated by 5 U.S.C. 7114(b)4) as
well.  The Department of the Air Force argued that disclosure of home
addresses under FOIA "would constitute a clearly unwarranted invasion
of personal privacy" (5 U.S.C. 552(b)6)).  The court of appeals
dismissed any such privacy interest as "minuscule" (App., infra, 5a)
in holding disclosure to be appropriate under FOIA (id. at 8a-9a).
The court refused to consider the public interest in the information,
explicitly relying (id. at 7a-8a) on the public interest balancing
test set forth in Reporters Comm. for Freedom of the Press v.
Department of Justice, 831 F.2d 1124, 1126 D.C. Cir. 1987), cert.
granted, No. 87-1379 (Apr. 18, 1988).  Finally, the court held that
alternatives to disclosure under the FOIA are "irrelevant" for
Exemption 6 purposes (App., infra, 8a).  Thus, the panel concluded
that in this case, since the privacy interest at stake and impairment
of that interest are "slight" and there are "legitimate uses for home
addresses," the information must be released (ibid.).  The panel
recognized that its decision might not "protect everyone's legitimate
interests" but concluded that under its construction of Exemption 6 of
the FOIA it must enforce the FLRA's blanket per se disclosure rule
(id. at 8a-9a).  The court did not reach the "routine use" issue (id.
at 5a).

   On April 5, 1988, the court of appeals denied petitioner's motion
to stay the mandate, and petitioner is complying with the Authority's
order as enforced by the court of appeals.  The case is not moot,
however, because petitioner has a continuing obligation under the
Authority's order to disclose the home addresses of the new employees
to the union.

v. Department of Agriculture, 737 F.2d 784 (9th Cir. 1984), cert.

                   REASONS FOR GRANTING THE PETITION

   As we have noted, the decision of the court of appeals conflicts
with Department of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir. 1988.
The decision is also in tension with FOIA case law holding that no
disclosure is appropriate in similar circumstances.  E.g., Local 3,
IBEW v. NLRB, 845 F.2d 1177 (2d Cir. 1988);  Minnis

denied, 471 U.S. 1053 (1985);  AFGE, Local 1923 v. HHS, 712 F.2d 931
(4th Cir. 1983).  We also believe that the court of appeals plainly
erred by holding (App., infra, 5a, 8a-9a) that it could order
disclosure under 5U.S.C. 7114(b)(4) without even addressing the
requirement of that section that requested data be "necessary" to
collective bargaining.

   Because we anticipate that the precise issues raised by this case
will be the subject of a petition and a cross-petition for a writ of
certiorari in the Department of Agriculture case, the judgment below
should not be allowed to become final until the Court has had an
opportunity to consider and dispose of that case.

                              CONCLUSION

   The Court should hold the petition for a writ of certiorairi and
dispose of it in light of its dispostion of any petitions that are
filed to review the judgment of the Eighth Circuit in Department of
Agriculture v. FLRA, 836 F.2d 1139 (1988).

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   AUGUST 1988

   APPENDIX