UNITED STATES DEPARTMENT OF THE NAVY, PHILADELPHIA NAVAL SHIPYARD, PETITIONER V. FEDERAL LABOR RELATIONS AUTHORITY No. 88-356 In The Supreme Court Of The United States October Term, 1988 The Solicitor General, on behalf of the United States Department of the Navy, Philadelphia Naval Shipyard, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit 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-17a) is reported at 840 F.2d 1131. The opinion of the Federal Labor Relations Authority (App., infra, 18a-23a) is reported at 24 F.L.R.A. 37. The prior opinion of the Federal Labor Relations Authority (App., infra, 24a-29a) is reported at 19 F.L.R.A. 899. The opinion of the administrative law judge (App., infra, 30a-44a) is reported at 19 F.L.R.A. 903. JURISDICTION The judgment of the court of appeals (App., infra, 45a-46a) was entered on March 2, 1988. A petition for rehearing was denied on May 2, 1988 (App., infra 47a-48a). On July 25, 1988, Justice White extended the time for filing a petition for a writ of certiorari to and including August 30, 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 7114b)(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 unions 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 imformation. 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 interests in their home addresses that outweigh the public interest in disclosure, particularly in light of the unions' reasonable alternative means of communication. E.g., Farmers Home Admin. Finance Office, 19 F.L.R.A. 195 (1985) (FmHA I); App., infra, 24a-29a. 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 present case was one of those three remanded cases. 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 outweighted 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 worker's 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 this 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 union'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 the Air Force v. FLRA, 838 F.2d 229 (7th Cir. 1988); Department of Health & Human Services v. FLRA, 833 F.2d 1129 (4th Cir. 1988); App., infra, 1a-17a. 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 and 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. Reporters Comm. for Freedom of Pres, 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 or 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 Health & Human Services v. FLRA, supra, and Department of the Air Force 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 Agruiculture v. FLRA, supra. 4. This case involves the Philadelphia Navel shipyard. Approximately 7000 nonsupervisory, ungraded employees of the Shipyard are in a collective bargaining unit represented by the Philadelphia Metal Trades Council (union) (App., infra, 2a). Of these employees, 4400 are dues-paying members of the union (ibid.). In February 1984, the union president requested from the Shipyard commander a list of the names and home addresses of all employees in the bargaining unit (ibid.). The president claimed that in order to carry out its responsibilities the union needs full and proper discussions with and the ability to recieve information from all bargaining unit employees (ibid.). The Shipyard commander denied the request on the ground that the union had adequate, effective means already available to accomplish the objective of communication and feedback (ibid.). The union filed an unfair labor practice charge with the Authority alleging a violation of 5 U.S.C. 7114(b)(4), and the Authority issued a complaint (App., infra, 2a-3a. On September 24, 1984, the ALJ issued a recommended decision and order requiring disclosure of the employees' home addresses, concluding that the home addresses are necessary for the union to carry out its representational responsibilities and that the other means available to communicate with the employees are not adequate (id. at 30a-44a). The case first came before the Authority during the period when the Authority was applying the analysis of FmHA I, and the Authority dismissed the complaint against the Shipyard (id. at 24a-29a). The Authority found as a fact that the alternative means of communication available to the union were adequate (id. at 27a & n.5). The union sought review in the District of Columbia Circuit. As noted above, that court, on the Authority's motion, remanded the case for the Authority to consider whether disclosure of employee names and addresses is a "routine use" exempted under the Privacy Act, 5 U.S.C. 552a(b)(3). On remand, now relying on FMHA II, the Authority reversed its prior decision and held that the Shipyard is required to provide the union with the home addresses of bargaining unit employees (App., infra, 18a-23a). The court of appeals enforced the Authority's order (App., infra, 1a-17a). It rejected an argument by the Department of the Navy that employee home addresses are not "data * * * necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" within the meaning of 5 U.S.C. 7114(b)(4) (App., infra, 13a-16a). The court also held that disclosure of the home addresses is mandated by FOIA, and therefore mandated by 5 U.S.C. 7114(b)(4) as well. The Department of the Navy argued that disclousre 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 rejected that argument despite recognizing the existence of a legitimate privacy interest in employee home addresses, reasoning that the union's purported need for the addresses amounted to a "public interest" that "far outweighed" the privacy interest (App., infra, 11a). The court did not reach the "routine use" issue (id. at 13a n.4) 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 disclousre is appropriate in similar circumstances. E.g., Local 3, IBEW v. NLRB, 845 F.2d 1177 (2d Cir. 1988); Minnis v. Department of Agriculture, 737 F.2d 784 (9th Cir. 1984), cert. denied, 471 U.S. 1053 (1985); AFGE, Local 1923 v. HHS, 712 F.2d 931 (4th cir. 1983). We also question the court of appeals' construction of the 5 U.S.C. 7114(b)(4) requirement 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 an 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 certiorari and dispose of it in light of its dposition 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