U.S. Postal Service v. National Ass'n of Letter Carriers, AFL-CIO, AFL-CI
| Decision Date | 23 November 1993 |
| Docket Number | A,AFL-CI,No. 92-5076,92-5076 |
| Citation | 9 F.3d 138 |
| Parties | 144 L.R.R.M. (BNA) 2745, 126 Lab.Cas. P 10,927 UNITED STATES POSTAL SERVICE v. NATIONAL ASSOCIATION OF LETTER CARRIERS,ppellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (90cv0230).
Keith E. Secular, argued the cause, for appellant. With him on the brief was Earl R. Pfeffer.
Bruce R. Hegyi, Asst. U.S. Atty., argued the cause, for appellee. With him on the brief were J. Ramsey Johnson, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., and Robert Sindermann, Jr., Atty., United States Postal Service. Jim Layton, Asst. U.S. Atty., entered an appearance.
Before SILBERMAN, STEPHEN F. WILLIAMS, and RANDOLPH, Circuit Judges.
The National Association of Letter Carriers appeals from the judgment of the district court authorizing the Postal Service to disregard an arbitrator's award as contrary to the Privacy Act. We reverse and remand for further proceedings.
Pursuant to their duty to bargain collectively under the National Labor Relations Act, 1 29 U.S.C. Sec. 151 et seq. (1988), the Postal Service and the National Association of Letter Carriers have executed a number of collective bargaining agreements. The relevant one for purposes of this case became effective on July 21, 1987. Article 31.3 of that agreement provides:
The Employer will make available for inspection by the Unions all relevant information necessary for collective bargaining or the enforcement, administration or interpretation of this Agreement, including information necessary to determine whether to file or to continue the processing of a grievance under this Agreement. Upon the request of the Union, the Employer will furnish such information, provided, however, that the Employer may require the Union to reimburse the USPS for any costs reasonably incurred in obtaining the information. (emphasis added).
Invoking this article, the union requested that the Postal Service provide, in "unscrambled form" (that is, keyed to each employee's name and social security number) the following categories of information regarding each postal service employee in the bargaining units represented by the union: sex; date of birth; minority status code; handicap status code; veteran preference status code; life insurance status code; thrift savings plan status code; thrift savings plan deduction--percent; and thrift savings plan deduction--amount. These latter items would provide the union with information concerning each employee's participation in thrift and life insurance plans provided by the Postal Service as a fringe benefit.
The Postal Service refused the request (it offered the material in scrambled form) because it believed that the information the union requested did not fall within Article 31.3--it was not "necessary for collective bargaining"--and, in any event, that the Postal Service was precluded from disclosing the information under the Privacy Act, which prohibits federal agencies from disclosing certain information about individuals, including information about those in the Postal Service. The union disagreed on both points. As to the latter, the union relied on an exception to the Privacy Act authorizing disclosures of information concerning employees if the disclosure is "for a routine use," 5 U.S.C. Sec. 552a(b)(3) (1988), which is defined only as a "use for a purpose which is compatible with the purpose for which it was collected," 5 U.S.C. Sec. 552a(a)(7) (1988) (emphasis added). However, under the Act a government agency must notify employees as to such uses. The agency must publish in the Federal Register a notice of "each routine use of the records contained in the system, including the categories of users and the purpose of such use," 5 U.S.C. Sec. 552a(e)(4)(D) (1988), and must also "inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual" of the routine uses to which the information is subject. 5 U.S.C. Sec. 552a(e)(3)(C) (1988).
The Postal Service had published a list of routine uses which included one that specifically applies to disclosures to labor organizations. Routine Use M provides:
M. Disclosure to Labor Organizations
Pursuant to the National Labor Relations Act, records from this system may be furnished to a labor organization upon its request when needed by that organization to perform properly its duties as the collective bargaining representative of postal employees in an appropriate bargaining unit.
54 Fed.Reg. at 43,655 (emphasis added).
The parties submitted their dispute as to the meaning of the contractual phase "necessary for collective bargaining" to an arbitrator. The Postal Service, however, reserved its Privacy Act objections--that Routine Use M did not authorize disclosure--for judicial review. The arbitrator decided that the information requested was "necessary for collective bargaining" within the meaning of the contract. 2 According to him, information is "necessary for collective bargaining" within the meaning of the contract so long as the union truthfully alleges that it needs the information, which seems a rather loose standard. But since the Postal Service has not challenged that interpretation, it must be assumed--as a matter of law--that it has agreed to that standard in the contract.
The Postal Service then filed a declaratory judgment action in the district court which asserted that compliance with the award would nevertheless violate the Privacy Act. The union counter-claimed for enforcement of the award under section 301 of the Labor Management Relations Act. The district court, relying on our decision in FLRA v. United States Dep't of the Treasury, Financial Management Serv., 884 F.2d 1446 (D.C.Cir.), cert. denied, 493 U.S. 1055, 110 S.Ct. 863, 864, 107 L.Ed.2d 947, 948 (1989) (Treasury ), granted the Postal Service's motion for summary judgment, "it appearing to the Court that the USPS cannot lawfully be compelled to release to NALC the information sought." This appeal followed.
The union argues that the Privacy Act constitutes no impediment to the Postal Service's compliance with the arbitrator's award because the award--which is "a part of the continuous collective bargaining process," United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960), under the National Labor Relations Act, and therefore entitled to extraordinary deference by the federal judiciary, United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 598-99, 80 S.Ct. 1358, 1360, 1361-62, 4 L.Ed.2d 1424 (1960)--is conclusive on the virtually identical question of the interpretation of the Postal Service's routine use notice. That is to say, there can be no meaningful difference between the arbitrator's unchallenged--probably unchallengeable--construction of the phrase in the collective bargaining agreement, "information necessary for collective bargaining," and the phrase in the Postal Service's Routine Use M notice, "when needed by [a labor organization] to perform properly its duties as the collective bargaining representative." Indeed, if there were any difference in meaning, according to the union, the routine use notice authorizes broader disclosure than the contract language requires; that which is needed by a union might not be quite necessary. 3
The Postal Service stresses not so much the linguistic differences between the two phrases, but rather the different authority and law that governs them. Notwithstanding the arbitrator's broad power to interpret collective bargaining agreements, the routine use notice is not such an agreement; the Postal Service itself is the prime source of the meaning of its own regulation. The government relies on our prior opinion in Treasury, supra, in which we held that a similar routine use notice published by OPM could not be construed by the Federal Labor Relations Authority contrary to a reasonable OPM interpretation. The Authority, as well as we, were obliged to accept the agency interpretation that concluded that the names and addresses of federal employees were not "necessary" for "collective bargaining." Treasury, 884 F.2d at 1456. 4
The government's reliance on Treasury is, however, unavailing because here we have no agency interpretation of the routine use language to which deference is due. In Treasury we discussed extensively the reasons why we could rely on the OPM Director's letter to the Justice Department, setting forth a more restrictive interpretation than similar language in the FSLMRA, 5 as an official interpretation of the routine use notice. See Treasury, 884 F.2d at 1454-55. In this case we have not been offered any general construction of the routine use wording. The Postal Service is unable or unwilling to suggest any explanation of the term; it just insists that the information sought is not, in fact, needed by the union for collective bargaining. Under those circumstances, deference to the Postal Service would merely mean deference to its current litigating position simpliciter--which we will not accept. Treasury, 884 F.2d at 1455-56.
Once the issue of deference to the Postal Service interpretation of Routine Use M is out of the picture, there is no reason why the Postal Service should not be required to comply with the arbitrator's award. That is not, however, because we should independently make our own judgment as to whether the information is "needed" for collective bargaining. 6 Through Routine Use M, the Postal...
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