N.L.R.B. v. U.S. Postal Service

• Decision Date: 02 March 1988
• Docket Number: No. 86-6043,86-6043
• Citation: 841 F.2d 141
• Parties: 127 L.R.R.M. (BNA) 2807, 56 USLW 2524, 108 Lab.Cas. P 10,361 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 141

841 F.2d 141

127 L.R.R.M. (BNA) 2807, 56 USLW 2524,

108 Lab.Cas. P 10,361

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.

No. 86-6043.

United States Court of Appeals Sixth Circuit.

Argued Aug. 13, 1987.

Decided March 2, 1988.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Karen Cordry (argued), Barbara A. Atkin, Washington, D.C., for petitioner.

James A. Friedman (argued), U.S. Postal Service-Office of Labor Law, Washington, D.C., for respondent.

Before MILBURN and RYAN, Circuit Judges, and EDWARDS, Senior Circuit judge.

RYAN, Circuit Judge.

This case is before the court pursuant to an application of the National Labor Relations Board seeking enforcement of its order requiring two Detroit area facilities of the United States Postal Service to advise the Detroit area division of the American Postal Workers Union whether local union officials had applied for supervisory positions within the Postal Service. The Board adopted the Administrative Law Judge's determination that the Postal Service's refusal to provide such information was a violation of its duty under Sec. 8(a)(1) and (5) of the National Labor Relations Act, to provide the union with relevant information needed by the union to perform its duties as the employees' statutory bargaining representative. The Board also adopted the Administrative Law Judge's determination that the Postal Service's confidentiality concerns did not justify non-disclosure, and that the information sought fell within the purview of the "routine use" exception to the Privacy Act. For the reasons that follow, we direct enforcement of the Board's order.

I.

In August 1984, the American Postal Workers Union adopted an amendment to the union's constitution which, among other things, provided that applicants for supervisory positions within the Postal Service could not hold union office. This amendment was binding on the Detroit District Area Local of the American Postal Workers Union, the charging party in the proceedings below. Therefore, the union requested the Detroit and Royal Oak Management Sectional Centers (MSC) of the Postal Service to inform the union as to which union officers had applied for supervisory positions.

The Postal Service fills entry level supervisory positions with current employees in accordance with one of three established procedures. The majority of the positions are filled pursuant to the Profile Assessment System for Supervisors (PASS). The PASS system includes the PASS workbook procedure and the PASS application procedure. Additionally, certain positions are filled outside the PASS system through voluntary applications. Under the PASS workbook procedure, through which the majority of the supervisory positions are filled, the Postal Service places each applicant on a roster valid for two years. The other two methods do not involve a roster, but the Postal Service maintains files on employees who have filed applications.

Employees applying for supervisory positions selected through the PASS workbook procedure must fill out a workbook every two years. In the workbook, an employee rates himself on a series of "work elements." Then, the workbook is given to the employee's supervisor who rates the employee in the same manner. Next, the supervisor's superior reviews the workbook and gives a summary review of the employee. Once the workbook is complete, the ratings are compared by computer and any discrepancies are noted. If there are no discrepancies, a composite score is tabulated and the employee is placed on the roster by rank. However, if discrepancies exist, they are resolved by a three-member board consisting of persons not involved in the initial evaluation, and thereafter, the employee is placed on the roster.

When a vacancy occurs in a supervisory position covered by the PASS workbook procedure, the highest ranking individuals on the roster are interviewed by a three-member Promotion Advisory Board, which includes one member from the employee's own installation. Based on the PASS workbooks and employees' personnel files, three candidates are recommended to the selecting official, who will be the successful candidate's immediate supervisor. The selecting official's choice is reviewed by his superior and the head of the installation. However, the selecting official is not required to state the reasons behind his decision unless he rejects all of the candidates.

Positions filled pursuant to the PASS and non-PASS application procedures are posted and, thereafter, employees submit applications and supervisory evaluations. The applications are reviewed by the Promotion Advisory Board which recommends candidates to the selecting supervisor who makes a choice in the same manner as for a position filled pursuant to the PASS workbook procedure. Although no roster is maintained, the Postal Service does maintain a list of the persons applying for these positions.

The union represents Postal Service employees within the Detroit Metropolitan area, which includes the Detroit and Royal Oak MSC's, in contract negotiations and administration. Union shop stewards represent the Postal Service employees in grievance proceedings and have the power to settle the grievance in the initial stages of the proceedings. The union saw the potential for divided loyalty in a union officer who had also applied for a supervisory position within the Postal Service and amended its constitution in 1984 to address this situation. The amendment, in pertinent part, stated:

That any postal employee who shall voluntarily after August 31, 1984 hold, accept, or apply for any managerial, supervisory, EAS or PASS Program position in the Postal Career Service for any period of time ... shall immediately vacate any office held by that member in the National Local, Area Local, District Council, State or Regional Organization ... or any other subordinate body of the APWU.... (emphasis added).

On August 23, 1984, Union President Ivory Tillman sent letters to all the stewards and officers of the union explaining the new amendment, a copy of which was enclosed in each letter. Shortly thereafter, Tillman telephoned Donald Coats, the Director of Employee Labor Relations for the Detroit MSC to inform him of the new amendment and to request information related to compliance. Tillman explained the content of the amendment to Coats, and in response Coats requested that Tillman's information request be made in writing.

In September 1984, Tillman sent letters to Postal officials in the Detroit and Royal Oak MSC's naming the union officers and stewards at each facility and requesting the Postal Service to identify any of those listed who were on the "Supervisory Eligibility Roster". The letters did not mention the amendment to the AWPU's constitution or explain the need for the information. Additionally, Tillman's letters quoted from a decision of the National Labor Relations Board, purported to be in response to a charge filed by "the Dallas APWU Local," to the effect that "the employer's refusal to furnish information to the Union raised Section 8(a)(1) and (5) issues." However, the letter did not name or cite the decision, or explain its relevance.

Gene Cole, the Detroit MSC's Postmaster, responded by letter and refused to provide the union with the information until its relevance to the collective bargaining process was explained. Within the Royal Oak MSC, one postmaster supplied the requested information to the union, and several of the other postmasters referred their requests to the Director of Employee Labor Relations for the Royal Oak MSC, Howard Byrne. Byrne's letter in response stated that the requested information was protected from disclosure by the Privacy Act.

Thereafter, the union filed an unfair labor practices charge with the Board on October 23, 1984, alleging that the Postal Service's failure to identify union officials who had applied for supervisory positions violated Sec. 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (5). On March 22, 1985, the union amended its charge in the following manner to clarify its need for the information:

This information is necessary to fairly represent our members at the collective bargaining table and during contract administration in order to prevent conflicting loyalties. Those officers and stewards of the [union] who are on the register might compromise the rights of employees they represent because of concern for the effect that their activities as stewards or officers would have on the possibility of their promotion. Such stewards and officers are in a conflict of interest position and a constitutional amendment adopted by the [union] proscribes employees on the management roster from serving as stewards and officers. The [union] needs the requested information to ensure that the constitutional amendment is being adhered to and to ensure that employees are represented by single-minded officials.

The Postal Service still maintained that it was not obligated to provide the information sought. A hearing before the Administrative Law Judge was held on April 8-9, 1985, in which it was determined that the Postal Service's refusal to provide the information violated Sec. 8(a)(1) and (5) of the National Labor Relations Act. The Administrative Law Judge's recommendation that the Postal Service be ordered to furnish the information was adopted by the Board.

II.

Generally, an employer's duty to bargain collectively established in Sec. 8(a)(5) of the National Labor Relations Act ¹, obligates it to provide a labor union with relevant information necessary for the proper performance of the union's duties as the employees' bargaining representative. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979); NLRB v. Acme Indus. Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, ...