United States Postal Service, 24-CA-10805 (reported at 356 NLRB No. 75) (1st Cir., decided October 27, 2011)
In a published opinion, the Court granted the United States Postal Service’s petition for review and remanded the case to the Board for further proceedings consistent with its opinion.
The Board found that USPS unlawfully failed to provide the Union with employees’ hiring register data, including test scores, veterans’ preferences, and final rankings. The Union requested the information to assess complaints that veterans’ seniority was unfairly low because non-veterans who had applied later were hired ahead of the veterans. The relevance of the information was undisputed. The Board rejected USPS’s confidentiality defense, which relied on the Supreme Court’s decision in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). That decision held that the Act did not require the disclosure of employees’ psychological aptitude tests scores. In balancing the competing interests of the employees and union, the Supreme Court considered: the employees’ interest in confidentiality, the burden placed upon the union from disclosure conditioned upon employee consent, and whether the employer cited privacy as a pretext to avoid its duty to provide the information. The Board here distinguished Detroit Edisonbecause, rather than the express promises of confidentiality made by that employer, USPS provided disclaimers stating that applicants’ information could be disclosed as required by law including release to unions.
The First Circuit concluded that the Board should have engaged in the balancing test used in Detroit Edison. The Court rejected the Board’s view of USPS’s disclaimers; it found that those statements, made under the Privacy Act, “did not wipe out all expectations of privacy.” It concluded that the fact that the information may be disclosed “does not create an expectation that the information will be disclosed automatically whenever it is relevant to a union.” The Court remanded because it found that the employees had a sufficient confidentiality interest to require the Board “to engage in the balancing of interests [under Detroit Edison] omitted from its original analysis.”