National Labor Relations Board v. United States Postal Service

United States Court of Appeals
For the First Circuit
No. 11-1225
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
APPLICATION FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
Before
Lynch, Chief Judge
Boudin and Stahl, Circuit Judges.
Nicole Lancia, Attorney, with whom Usha Dheenan,
Supervisory Attorney, National Labor Relations Board, was on brief
for petitioner.
Stephan J. Boardman, Counsel of Record, with whom David
C. Belt, Acting Chief Counsel, and Peter J. Henry, Senior Counsel,
U.S. Postal Service, were on brief for respondent.
October 27, 2011

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LYNCH, Chief Judge. This case involves a clash between
two federal entities and two different important values. The
National Labor Relations Act (NLRA) § 8(a)(5), 29 U.S.C. §
158(a)(5), imposes on the United States Postal Service (USPS) the
duty to bargain collectively, which includes the obligation to
furnish relevant information to a labor union for purposes of
collective bargaining. NLRB v. Acme Indus. Co., 385 U.S. 432, 435-
36 (1967). The Privacy Act, 5 U.S.C. § 552a(b), meanwhile, imposes
on USPS the obligation to protect the privacy of its employees'
personal information unless they consent to disclosure.
The National Labor Relations Board found that USPS
committed an unfair labor practice under section 8(a)(1) and (a)(5)
by refusing to provide the National Postal Mailhandlers Union,
Local 313, with the personal aptitude test scores of twenty-two
USPS employees unless the Union first obtained their consent. Both
sides agree that the test scores are relevant to the Union for
collective bargaining purposes and could be disclosed with
appropriate employee consent.
The Board's unfair labor practice finding, on which it
seeks enforcement, rests on its reasoning that no privacy interests
are at stake in this case and so no balancing of interests was
required as between the Union's interest in the information and the
employees' interest in privacy. USPS argues that its employees
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have a substantial privacy interest in their test scores,
recognized under federal law.
We vacate and remand the Board's decision, and hold that
the twenty-two USPS employees have a legitimate and substantial
privacy interest in their test scores and that the Board,
accordingly, is required to engage in the balancing of interests
omitted from its original analysis.
I.
USPS requires all applicants for its mail handler
position to take psychological aptitude test, "Test 473." This
test has been developed by USPS's own industrial psychologists and
has proven an effective way of measuring USPS applicants' job
performance potential in certain job practice areas. Test 473 is
designed to measure the test taker's cognitive skills and general
mental ability, as well as his or her personal characteristics, as
they relate to "conscientiousness, interpersonal skills,
professional service orientation, self-management, and dealing with
work pressures and demands."1
The test is divided into four parts. The first three 1
parts measure the test taker's cognitive skills, while the fourth
part measures personal characteristics. The substantive contents
of these parts are as follows: Part A consists of address checking
exercises, requiring the examinee to compare two lists of addresses
and identify discrepancies between the lists. Part B requires
examinees to complete a form by assigning information to its proper
location within the form. Part C consists of a coding exercise in
two subparts, whereby examinees must assign the proper code to
various addresses, first with a coding guide on hand for reference,
and subsequently without that guide. Finally, Part D consists of
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Passing scores on Test 473 range from 70 to 100 points.
Once the test is scored, an applicant who is eligible for them may
receive an additional five to ten points as a veteran's preference.
The combined test score and veteran's preference (if any) are added
to reach the applicant's "final rating." After calculating each
applicant's final rating, USPS places each applicant's name, date
of birth, standing, exam date, applicable veteran's points, basic
Test 473 score, and final combined rating onto the official USPS
hiring Register for the year in question.
In 2007, USPS announced job openings for mail handler
positions in the Caribbean District, including several openings in
the San Juan Office in Puerto Rico. Some 9,000 applicants
subsequently took Test 473; 8,000 of these passed and were placed
on USPS's 2007 hiring Register. Under standard USPS procedure,
human resources considered the three top-rated applicants for each
job opening in the District. The San Juan Post Office hired
twenty-two new employees from these applicants.
The National Postal Mailhandlers Union, Local 313,
represents Postal Service workers and is the exclusive bargaining
agent for mail handlers in the Caribbean District. Under USPS
regulations, and the current collective-bargaining agreement
236 questions designed to assess a test taker's personal
characteristics and experiences. Example questions include: "You
plan things carefully in advance: a) very often; b) often; c)
sometimes; d) rarely," and "What type of work do you like the
least?"
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between USPS and Local 313, USPS must compute its new employees'
seniority rankings under "properly established past principles,
rules and instructions." After successfully completing a 90-day
trial period, new employees are assigned a seniority rank, which
corresponds to their first day of work.
Sometime after the San Juan Office assigned seniority
rankings to its group of twenty-two new employees, several members
of this group who were veterans approached the President of Local
313 with an unfair employment complaint. They raised their concern
that within the group of new employees, non-veteran employees had
begun work earlier -- and thus received higher seniority rankings
-- than veteran employees, despite the fact that the veteran
employees had applied for their positions earlier than had the
non-veteran employees. In response to this complaint, the
President of Local 313 requested from USPS the 2007 hiring
Register, as well as the Register information for the group of
twenty-two new employees.2
Because the USPS hiring Register identifies applicants'
test scores as well as other personal information, its contents are
kept strictly confidential by USPS pursuant to the federal Privacy
Act. See 39 C.F.R. § 268.1. Under the Privacy Act, any
USPS removes applicants from the hiring Register once they 2
have been hired as employees, but the original 2007 Register
included the information of all applicants, including the twenty-
two ultimately hired by the San Juan Office.
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information contained within a federal agency's "system of
records" may not be disclosed by any means of communication, to 3
any person or entity except upon "prior written consent of[] the
individual to whom the record pertains", or unless the disclosure
falls within one of several enumerated exceptions. 5 U.S.C. §
552a(b). Of these, the Privacy Act's "routine use" exception
permits disclosure of a record for a purpose "compatible with the
purpose for which it was collected." 5 U.S.C. § 552a(b)(3), 4
(a)(7).
This catch-all exception is limited, however, by the
requirement that agencies define specific routine uses and publish
these, subject to notice and comment, in the Federal Register in
advance of invoking them. 5 U.S.C. § 552a(e)(4).
USPS has published a list of eleven routine uses, under
which USPS employee records may be disclosed. Privacy Act of 1974,
System of Records, 70 Fed. Reg. 22,516, 22,521 (Apr. 29, 2005).
Included in this list is a qualified exception for disclosure to
labor organizations, "[a]s required by applicable law . . . when
The Privacy Act defines "record" to mean any instance of, 3
grouping or collection of information about an individual
containing that individual's name, identifying number, symbol, or
any other identifiable particular assigned to the individual that
is maintained by a federal agency. 5 U.S.C. § 552a(a)(4).
It is far from clear that the purpose for which these test 4
scores were collected is inherently "compatible" with disclosure in
this instance. But the parties have not argued this point and
instead have focused on the USPS published list of routine uses.
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needed by that organization to perform its duties as the collective
bargaining representative of [the USPS] employees in an appropriate
bargaining unit." Id.
Under these regulations, and due to its concerns about
the privacy of its applicants and employees, USPS elected not to
provide Local 313 with the requested information. USPS offered to
release the information contained in the 2007 Register with respect
to any individual from whom Local 313 obtained consent.
Local 313 rejected this offer, as well as USPS's offer to
supply a redacted version of the Register, and filed an unfair
labor practice charge under section 8(a)(1) and (a)(5) of the NLRA.
The Administrative Law Judge found in favor of Local 313, and
ordered USPS to furnish the Union with the complete 2007 hiring
Register. U.S. Postal Serv., Case 24-CA-10805, 2008 WL 3286174
(ALJ Aug. 5, 2008).
The National Labor Relations Board affirmed the judgment
and a portion of the Administrative Law Judge's Order, on different
grounds, but narrowed the Order, directing USPS to furnish the
Union with the Register information for only the twenty-two
applicants USPS actually hired. U.S. Postal Serv., 356 N.L.R.B.
No. 75, 2011 WL 39985 (Jan. 5, 2011).
USPS argued before the Administrative Law Judge and the
Board that federal law permitted it to condition disclosure of
employee test scores on employee consent. It argued that the
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Privacy Act's routine use exception allows disclosure pursuant to
the NLRA only where required by law. Because the Supreme Court
held in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), that the
NLRA does not require unconditional disclosure of psychological
aptitude test scores, USPS argued that it was not obligated to
release employee test scores unconditionally under the routine use
exception.
The Board rejected this argument on the grounds that the
underlying confidentiality interest raised by USPS failed. The
Board distinguished Detroit Edison on the grounds that the employer
in that case had made an express promise of confidentiality to its
employees. It reasoned that USPS, quite the opposite from
promising employees that it would keep their test scores
confidential, provided employees with several Privacy Act notices
warning them that their scores could be released to a labor union
when needed by the union for collective bargaining. U.S. Postal
Serv., 2011 WL 39985, at *7. The employees, the Board found, thus
had "had no legitimate expectation that their test results would
remain confidential." Id.
The Board reasoned that employees must receive an
explicit promise of confidentiality in their scores from their
employer to acquire an expectation of privacy. Id. As a result,
the Board did not engage in any further balancing of the interests
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or address whether consent was a reasonable condition of
disclosure. Id.
II.
Because the ultimate issue is one of proper
interpretation of a Supreme Court opinion, our review is de novo.
With regard to the Board's interpretation of Detroit Edison, a
court of appeals is "not obligated to defer to an agency's
interpretation of Supreme Court precedent under Chevron or any
other principle." N.Y., N.Y., LLC v. NLRB, 313 F.3d 585, 590 (D.C.
Cir. 2002) (quoting Univ. of Great Falls v. NLRB, 278 F.3d 1335,
1341 (D.C. Cir. 2002)) (internal quotation mark omitted); see also
Providence Hosp. v. NLRB, 93 F.3d 1012, 1016 (1st Cir. 1996) ("As
to matters of law, appellate review is plenary.").
USPS does not dispute that an employer's duty to bargain
collectively under section 8(a)(5) of the NLRA unquestionably
includes "a duty to provide relevant information needed by a labor
union for the proper performance of its duties as the employees'
bargaining representative." Detroit Edison Co., 440 U.S. at 303;
see also Acme Indus. Co., 385 U.S. at 435-36.
Where, as here, the relevance of the requested
information is not in question, an employer, nevertheless, is not
automatically obliged to disclose "all the information in the
manner requested." Detroit Edison, 440 U.S. at 314. Rather, an
employer's duty to disclose information under section 8(a)(5), as
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well as "the type of disclosure" necessary to satisfy this duty,
id. at 315, turns on "the circumstances of the particular case,"
id. at 314 (quoting NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153
(1956)). In evaluating these circumstances, there is no "absolute
rule" that a union's need for relevant information must always
trump all other interests. Id. at 318.
The Supreme Court has held that a union's interest in
relevant information must accommodate other, competing interests,
such as privacy. Id. This court held in NLRB v. New Eng.
Newspapers, Inc., 856 F.2d 409 (1st Cir. 1988), that "a balancing
is required" as between "the need to know by the union to allow it
to effectively carry out its functions as bargaining representative
of the employees," and an "employer's legitimate right to privacy,
in which the relevancy of the information sought and the safeguards
provided to the employer to protect its privacy interest are the
principal elements to be considered." Id. at 413.
In Detroit Edison, the Supreme Court held, on the facts
there, that the confidentiality interest employees have in their
aptitude test scores warrants an employer's refusal to release
these scores to a union unless the union first obtains employee
consent.
The employer in Detroit Edison had administered a
"psychological aptitude test[]", which measured test takers'
cognitive skills. 440 U.S. at 304. In order to address a
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grievance related to unfair promotions based on this aptitude test,
the local union had requested the test questions, the actual answer
sheets, and the final test scores of all employees who had applied
for a particular promotion. The employer refused to disclose the
test scores and answer sheets absent employee consent in order to
protect the privacy of its employees. Id. at 317.
The Supreme Court assumed the relevance of the scores to
the union's investigation and processing of the grievance, but
nevertheless held that the company's offer to disclose the test
scores upon the written consent of its employees "satisfied [the
company's] statutory obligations" under the NLRA. Id. at 317.
The Court based its evaluation of the competing interests
at stake in the case on three different factors: the interest of
the employees in confidentiality, the burden placed upon the union
by conditional disclosure, and whether there was evidence that the
company was using employee privacy as a pretext to avoid its
statutory obligations to bargain collectively. Id. at 319-20.
First and foremost, the Court took judicial notice of
"[t]he sensitivity of any human being to disclosure of information
that may be taken to bear on his or her basic competence," id. at
318, and found the employees' interest in confidentiality
"undeniabl[e]," id. at 304. It noted that an individual's
"interest in preserving the confidentiality" of sensitive, personal
information "has been given forceful recognition in both federal
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and state legislation," and cited the federal Privacy Act as one
manifestation of this concern. Id. at 318 n.16 (citing Privacy Act
of 1974, 5 U.S.C. § 552a).
The Court noted that multiple other courts had recognized
that important privacy interests may limit unconditional disclosure
of sensitive personal information to unions even where the
information is relevant to collective bargaining. See id. at 318
n.14 (collecting cases); id. at 318 n.16 (citing Local 2047, Am.
Fed'n of Gov't Emps. v. Def. Gen. Supply Ctr., 423 F. Supp. 481
(E.D. Va. 1976), aff'd, 573 F.2d 184 (4th Cir. 1978) (per curiam)
(holding that the Privacy Act constituted a valid defense to
unconsented-to disclosure of employee records to a union requesting
those records pursuant to the terms of a collective-bargaining
agreement)).
The Court also found that the employer's condition that
the union obtain employee consent before disclosure placed a
"minimal burden" upon the union, and noted that the employer's
asserted interest in confidentiality on behalf of its employees was
real and not merely an attempt to frustrate the union or avoid its
legal obligation to bargain collectively. Id. at 319.
After evaluating these factors under the "circumstances
of the particular case," the Court held that "any possible
impairment of function of the Union . . . is more than justified by
the interests served in conditioning the disclosure of the test
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scores upon [consent]," id., and that the employer did not violate
its statutory obligations under the NLRA by "resisting an
unconsented-to disclosure," id. at 320.
III.
In the present dispute, the Board attempted to
distinguish Detroit Edison on its facts. The Board found Detroit
Edison inapplicable because the employer in that case had expressly
promised employees that it would maintain the confidentiality of
their test scores. The Board concluded that USPS employees, far 5
from anticipating that their scores would be kept confidential,
should have expected their scores would or could be disclosed and
therefore had "no legitimate confidentiality interest" in their
scores. U.S. Postal Serv., 2011 WL 39985, at *7.
The Board based this conclusion on USPS's publicly
available Guide to Privacy and the Freedom of Information Act,
which details USPS's obligations under that Act, as well as two
Privacy Act notices contained in the materials distributed by USPS
to applicants for employment: the 2007 USPS mail handler position
application packet and the answer form to Test 473. Both of these
notices informed applicants that the Privacy Act applied to any
The Board has recognized in its decisions that unions may 5
be required to accommodate employers' restrictions on disclosure of
certain categories of information, which, if disclosed, "would
reveal, contrary to promises or reasonable expectations, highly
person information." U.S. Postal Serv., 356 N.L.R.B. 75, 2011 WL
39985, at *6 (Jan. 5 2011) (citing Detroit Newspaper Agency, 317
N.L.R.B. 1071, 1073 (1995)).
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personal information they chose to divulge, and elaborated that
this personal information would be kept confidential, but could be
disclosed "as required by law."
The two notices also referenced USPS's routine use
exception to the Privacy Act for disclosure to labor organizations.
The application packet's privacy notice stated, "As a routine use,
we may only disclose this information as follows: . . . as required
by the National Labor Relations Act." A similar notice was
repeated on the answer sheet for Test 473: "We may only disclose
your information as follows: . . . to labor organizations as
required by law." Finally, as the Board noted, USPS's publicly
available Guide to Privacy reiterates USPS's obligations under the
Privacy Act and reproduces USPS's eleven Standard Routine Uses in
full.
The Board concluded that as a result of these notices,
any applicant who proceeded to "complete the exam thus had no
legitimate confidentiality interest in test results they knew were
subject to disclosure to labor organizations." U.S. Postal Serv.,
2011 WL 39985, at *7.
With no privacy interest at stake in the case, the Board
found Detroit Edison inapplicable and declined to engage in the
balancing analysis conducted by the Court in that case. Instead,
the Union's interest in the information automatically prevailed.
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We hold that the Board erred in its conclusion that USPS
employees retained no privacy interests in their aptitude test
scores. The Privacy Act notices first reaffirmed to applicants
that their information would be kept private, and then alerted them
to possible, limited disclosures. The notices did not wipe out all
expectations of privacy.
Employees were informed by the notices in the application
packet and answer sheet to Test 473 that disclosure could occur
under restricted circumstances, governed by federal law.
Similarly, USPS's Guide to Privacy explains that the Privacy Act
provides the governing framework for disclosure and restricts the
release of personal information to specifically defined
circumstances.
The notices and Guide to Privacy thus reiterate USPS's
obligations under the Privacy Act to keep employee information
confidential and to publish any limited exceptions under which
information may be disclosed. They specifically reference USPS's
routine use exception for disclosure to labor organizations, which
provides, "As required by applicable law, records may be furnished
to a labor organization when needed by that organization to perform
its duties . . . ." 70 Fed. Reg. at 22,521.
This language does not require automatic disclosure of
sensitive employee information to unions any more than the NLRA
requires such disclosure. The Supreme Court has established that
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the NLRA does not require automatic, unconditional release of
personally sensitive information in all instances. Detroit Edison,
440 U.S. at 319-20. USPS's routine use exception for labor
organizations, accordingly, does not mandate unconditional
disclosure in every instance.
Several circuit courts of appeal that have addressed this
question have concluded likewise that USPS's routine use exception
for disclosure to labor organization permits disclosure of relevant
information, but does not mandate such disclosure unconditionally
where there is a strong competing interest in privacy. See NLRB v.
U.S. Postal Serv., 17 F.3d 1434, 1994 WL 47743, at *3 (4th Cir.
1994) (unpublished) ("A bargaining agent does not have an
unfettered right to all information relevant to the performance of
its duties. . . . An employer may legitimately refuse to furnish
relevant information, such as psychological test results, if it has
a well-founded concern for employee privacy that outweighs a
union's need for the information." (citing Detroit Edison, 440 U.S.
at 314-15, 317-20)); NLRB v. U.S. Postal Serv., 888 F.2d 1568, 1572
& nn.3-4 (11th Cir. 1989) (noting that certain types of employee
information "need not be disclosed, even though relevant" to a
union, such as "psychological test results" (citing Detroit Edison,
440 U.S. at 318)); see also U.S. Postal Serv., 301 N.L.R.B. 709,
709 & n.2 (1991), enforced, 980 F.2d 724 (3rd Cir. 1992)
("[D]isclosure of information relevant to the Union's proper
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performance of its duties as collective-bargaining representative
of unit employees is permitted, rather than mandated, by the
Privacy Act.").
Thus, the fact that information may be disclosed "as
required by law" does not itself defeat all expectations of
privacy, nor does it create an expectation that the information
will be disclosed automatically whenever it is relevant to a union.
The Board's determination that the privacy notices
eliminated the employees' expectations of privacy misinterprets
both the notices and the law. The notices functioned to reiterate
USPS's obligations under federal law to keep confidential its
employees' personal information save for specific, well-defined
exceptions. The exception for disclosure to labor organizations
under the NLRA does not provide for unlimited disclosure, and so
could not eliminate all expectations of confidentiality in employee
test results.
The Supreme Court's analysis in Detroit Edison applies to
this case. Here, USPS psychologist Martha Elizabeth Hennen
testified that "[t]he research literature in the field of
industrial organizational psychology and psychology in general does
find that test results . . . relating to cognitive abilities are
considered sensitive to . . . examinees." This is due, at least in
part, to the "implications that can be drawn from the . . . test
results . . . which are indicative of an examinee's basic or core
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competence." The interest of the USPS employees in the
confidentiality of their aptitude test scores is as great as the
interest of Detroit Edison's employees. The Board erred in finding
that the employees had "no legitimate expectation that their test
results would remain confidential" and in subsequently declining to
engage in the balancing of interests analysis required by Detroit
Edison.
We hold that the employees had a sufficient
confidentiality interest in their test scores here as to require
the Board to engage in a balancing of interests analysis, under
Detroit Edison, weighing the interests of the Union in the
information against the privacy interests of the employees.
Accordingly, we deny the Board's petition for enforcement
and remand for further proceedings consistent with this opinion.
It is so ordered. No costs are awarded.
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