EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION – Confidentiality; Privacy

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Because RFIs by federal employee unions frequently implicate the Privacy Act, federal courts and the Federal Labor Relations Authority (FLRA) have developed the most extensive body of law addressing the interaction between the Privacy Act and a union’s right to information. For unions representing federal employees, that right arises under the Federal Service Labor-Management Relations Statute (FSLMRS; 5 U.S.C. § 7101 et seq.), which requires agencies to furnish relevant and necessary information to an exclusive representative “to the extent not prohibited by law.” (5 U.S.C. § 7114(b)(4).) The phrase "not prohibited by law" incorporates the Privacy Act, limiting the duty to furnish information where Privacy Act restrictions apply. (U.S. Dept. of Defense v. Federal Labor Relations Authority (1994) 510 U.S. 487, 493-494.) Similarly, because federal contractors subject to the Privacy Act are often private entities, the National Labor Relations Board (NLRB) has addressed the same interaction in cases arising under the NLRA. (See, e.g., Goodyear Atomic Corp. (1983) 266 NLRB 890 (Goodyear), enf’d. 738 F.2d 155 (6th Cir. 1984).) Most decisions of the FLRA, NLRB, and federal courts which address the Privacy Act in the context of a union’s RFI analyze one of three Privacy Act exceptions: (1) the FOIA exception; (2) the exception for de-identified data used for statistical research or reporting; or (3) the routine use exception. (p. 24.)