United States Postal Service

National Labor Relations Board - Board Decisions

May 2, 2013

359 N.L.R.B. 1052 (N.L.R.B. 2013)

1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 115
U.S. Postal Service and National Postal Mailhandlers’
Union, Local 313, NPMHU. Case 24–CA–
010805
May 2, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The reviewing court remanded this information-
request case to the Board to take account of the employ-
ees’ confidentiality interest in their application test
scores and to balance the employees’ interest against the
Union’s need for that information. Applying the law as
directed, we find that the Union’s need for the requested
information outweighs the employees’ privacy interests,
and we reaffirm our finding that the Postal Service vio-
lated Section 8(a)(5) and (1) by refusing to furnish in-
formation requested by the Union. As shown below,
however, we have devised a remedy that fully satisfies
the employees’ confidentiality concerns while providing
the Union with the necessary information.
Background
On January 5, 2011, the National Labor Relations
Board issued a Decision and Order in this proceeding.
The Board found that the Postal Service violated Section
8(a)(5) and (1) of the Act by refusing, on request, to fur-
nish the Union with certain information, including the
test scores of 22 employees hired by the Postal Service in
2007. Underlying that finding, the Board found that the
Union needed the information in order to police the Post-
al Service’s administration of the seniority provisions of
the parties’ collective-bargaining agreement. The Board
further found that the Postal Service failed to establish
that its employees have a legitimate and substantial con-
fidentiality interest in their test scores. The Board or-
dered the Postal Service, inter alia, to furnish the Union
with the requested information.
1

Subsequently, the Board filed an application for en-
forcement of its Order with the United States Court of
Appeals for the First Circuit. On October 27, 2011, the
court denied the application for enforcement. The court
held that the affected employees have a legitimate and
substantial privacy interest in their test scores, and it
concluded that the Board erred in failing to balance that
interest against the Union’s interest in obtaining the
scores. The court vacated the Board’s Decision and Or-
der and remanded this case to the Board for further pro-
ceedings consistent with the court’s opinion.
2
On May 7,
2012, the Board invited all parties to submit statements

1 356 NLRB 483
2 NLRB v. Postal Service, 660 F.3d 65 (1st Cir. 2011).
of position concerning the issues raised by the remand.
No party filed a statement of position.
We accept the court’s opinion as the law of the case.
Balancing the employees’ and the Union’s interests as
instructed, we find that the Postal Service violated the
Act by failing to furnish some of the requested infor-
mation without reasonably accommodating the Union’s
need for it to police the Postal Service’s adherence to the
collective-bargaining agreement. Our remedy does not
require the Postal Service to furnish individually identifi-
able test scores to the Union.
The Facts
As explained in further detail in our earlier decision,
the Postal Service requires all applicants for its mail han-
dler position to take “Test 473.” The test measures each
applicant’s cognitive skills as well as certain personal
characteristics—conscientiousness, interpersonal skills,
professional service orientation, self-management, and
ability to deal with work pressures. Passing scores range
from 70 to 100 points. Applicants may receive a veter-
ans’ preference of an additional 5 or 10 points based on
service in the armed forces. An applicant’s “final rating”
is the sum of his test score and veterans’ preference
points, if any. Once the final rating is determined, appli-
cants who received a passing score are placed on a local
hiring register. The register contains each applicant’s
name, date of birth, exam date, veterans’ points, test
score (also called “basic” score), final rating, and stand-
ing, i.e., position on the register relative to other appli-
cants. Veterans’ preference applicants are ranked ahead
of applicants with the same final rating who lack that
preference. Under standard Postal Service procedure, its
human resources department considers the three top-
ranked applicants for each job opening. Once an appli-
cant is hired, he is removed from the hiring register.
Thereafter, his “enter-on-duty” (EOD) date—his first day
of work—is used to calculate seniority. Before taking
Test 473, applicants are informed that, under the Privacy
Act, 5 U.S.C. § 552a(b), their personal information and
test scores will remain confidential, with certain excep-
tions—including that the Postal Service will disclose
such information to a labor organization “as required by
law.”
The Union represents the mail handlers employed at a
Postal Service facility in San Juan, Puerto Rico. Article
12 of the collective-bargaining agreement between the
Postal Service and the Union, effective from 2006 to
2011, provided that the parties would “continue relative
seniority standing properly established under past princi-
ples, rules and instructions.” The Postal Service con-
cedes that, under article 12, an employee may request a
correction of his seniority standing if he believes that his
POSTAL SERVICE 1053

EOD date should precede that of another employee be-
cause he took Test 473 before the other employee and
had an equal or higher final rating.
Sometime before July 2, 2007,
3
Union President Julio
Figueroa received complaints from several mail handlers,
all veterans of the armed forces, that several nonveterans
had been hired before them, even though the veterans
had applied much earlier.
4
On July 2, the Union request-
ed from the Postal Service “the register listing for those
candidates qualified for hiring,” specifying that “[t]he
listing should include the veteran employees as well as
non-veterans and their position in the roster.” On July
26, the Postal Service replied that Labor Relations Man-
ager Keith Reid would followup on the request.
In August, having received no further response,
Figueroa reminded Reid of the outstanding information
request and explained that he had received complaints
from employees who were veterans that nonveterans had
received preferential hiring treatment. By letter dated
October 18, the Postal Service replied that the Union’s
request was extensive and encompassed confidential in-
formation. The Postal Service further stated that the re-
quest was being processed and that Figueroa would be
informed when all of the documents were available.
About 1 month later, having heard nothing more from the
Postal Service, the Union filed the unfair labor practice
charge in this case.
By email dated December 17, Postal Service Attorney
Leslie Rowe informed Figueroa that the Postal Service
would redact the test scores from the requested hiring-
register information before furnishing it to the Union
unless Figueroa obtained the applicants’ consent to re-
lease them. Figueroa emailed Rowe a few hours later
and insisted on full compliance with the information re-
quest. By letter dated December 19, Postal Service La-
bor Relations Manager Juan Delgado told Figueroa that
the information would be available for review in Delga-
do’s office. On December 20, however, Rowe sent
Figueroa an email stating that the Respondent was will-
ing to provide the 2007 hiring register, but with the basic
and final scores redacted as “a way to satisfy your re-
quest without compromising the privacy of the test tak-
ers.”
The next day, in Delgado’s office, Figueroa reviewed a
small portion of the hiring register with the test scores

3 All dates hereafter are in 2007, unless otherwise specified.
4 At the unfair labor practice hearing in April 2008, Figueroa testi-
fied without contradiction that “in one strange case [] we had a person,
a veteran who did not get a position, but his score was an 85 or 90
which when you add the 10 veteran points would have put him up at
100 percent, and yet there were other persons who having less points
had gotten the positions.”
and final ratings redacted. Immediately thereafter,
Figueroa sent Rowe an email explaining that the redacted
register did not satisfy the information request.
In January 2008, the Postal Service sent the Union a
copy of the hiring register, but it had redacted the appli-
cants’ test scores and final ratings. This register did not
contain listings for the 22 employees hired in 2007, as
their names had been removed upon their hire.
5
The
Postal Service never furnished the requested information
to the Union.
The Board’s Initial Decision
The Board found that the employees’ hiring-register
information, including their test scores, is relevant to the
Union’s statutory duty to police the seniority clause in
the collective-bargaining agreement. The Board further
found that the Postal Service failed to prove that employ-
ees have a legitimate and substantial confidentiality in-
terest in their test scores and other hiring-register infor-
mation. The Board reasoned that, regardless of any pos-
sible employee sensitivity to disclosure, the employees
have no legitimate expectation that their test results will
not be disclosed to the Union because each of them was
given notice, prior to taking the test, that under the Priva-
cy Act the Postal Service could release test-related in-
formation to a labor organization as required by law.
Based on those notices, the Board distinguished this case
from Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979),
where the employer had expressly promised applicants
that it would maintain the confidentiality of their test
scores. Consequently, the Board found that the Postal
Service violated Section 8(a)(5) of the Act by refusing to
furnish to the Union the register listings, including indi-
vidually identifiable test scores, for the 22 employees
hired in 2007.
6
To remedy the unfair labor practice, the
Board ordered the Postal Service to furnish that request-
ed information.
The First Circuit’s Opinion
On review, the court of appeals disagreed with the
Board’s finding that the employees lack a legitimate and
substantial confidentiality interest in their test scores.
The court found that employees have a reasonable expec-
tation of privacy in their scores on Test 473 because, as
in Detroit Edison, supra, those scores are indicative of
employees’ basic competence. The court found, contrary
to the Board, that the Privacy Act notices did not extin-
guish employees’ reasonable expectation of privacy be-

5 Those 22 employees were among the highest scorers of the more
than 8000 applicants who had passed the test and who were on the
register in 2007.
6 The Board affirmed the judge’s finding that the Union did not
need, and was therefore not entitled to, the 2007 register in its entirety.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

cause such notices do not require disclosure of sensitive
employee information to unions any more than the Act
itself requires such disclosure. And the determination of
whether the Act does so here, said the court, requires a
careful balancing of interests, weighing the interest of the
Union in obtaining the information against the privacy
interests of the employees. The court accordingly re-
manded this case to the Board for that purpose.
Discussion
“The duty to supply information under Section 8(a)(5)
turns upon ‘the circumstances of the particular case,’ and
much the same may be said for the type of disclosure that
will satisfy that duty.” Detroit Edison, 440 U.S. at 314–
315 (citation omitted). If a party asserts that requested
information is confidential, the Board balances the un-
ion’s need for relevant information against any legitimate
and substantial confidentiality interests established by the
employer. Piedmont Gardens, 359 NLRB 499, 450
(2012) (citing Detroit Edison, 440 U.S. at 318–320).
Additionally, where an employer has proven a legitimate
and substantial confidentiality interest, it may not simply
deny the union’s request; it must propose a reasonable
accommodation of its concerns and the union’s need.
Kaleida Health, Inc., 356 NLRB 1373, 1379 (2011) (cit-
ing Pennsylvania Power Co., 301 NLRB 1104, 1105–
1106 (1991); Borgess Medical Center, 342 NLRB 1105,
1106 (2004)).
The Supreme Court’s seminal decision in Detroit Edi-
son resulted in the dismissal of the complaint brought
against that employer. Like the present case, it involved
a union request for employees’ aptitude test scores and
an employer’s offer to furnish the scores only if the un-
ion obtained employee consent. In that case, the union
sought the test scores in aid of a grievance alleging that
the employer had breached a provision in a collective-
bargaining agreement to base promotions on seniority
“whenever reasonable qualifications and abilities of the
employees being considered are not significantly differ-
ent.” 440 U.S. at 304–305. The employer refused to
furnish the test scores of named employees, but did fur-
nish the scores with names redacted and offered to pro-
vide individually identifiable scores with an employee’s
consent.
The Court assumed for argument’s sake that the test
scores were potentially relevant to the Union’s grievance,
but found that the employees had a legitimate and sub-
stantial confidentiality interest in their scores and would
be sensitive to disclosure of “information that may be
taken to bear on [their] basic competence.” Id. at 318.
The Court noted that the employer had committed to
keep the scores confidential and that the disclosure of
individual scores in the past had resulted in harassment
of some lower-scoring test takers. Id. at 319. The Court
concluded that “any possible impairment of the function
of the [u]nion in processing the grievances of employees
is more than justified by the interests served in condition-
ing the disclosure of the test scores upon the consent of
the very employees whose grievance is being processed.”
Id.
In the present case, the First Circuit found that “the in-
terest of the USPS employees in the confidentiality of
their aptitude test scores is as great as the interest of De-
troit Edison’s employees.” 660 F.3d at 72. As great, but
no greater. Detroit Edison concerned the scores of unit
employees who had failed an aptitude test. Here, by con-
trast, each of the 22 employees at issue passed Test 473.
Indeed, the employees here performed so exceptionally
well that they ranked at or near the top of a hiring regis-
ter containing more than 8000 applicants. Thus, the po-
tential for disclosure of their scores to embarrass or oth-
erwise harm the employees is certainly no greater than it
was for the employees in Detroit Edison.
We further find that the Union’s need for employees’
test scores (and other hiring-register information) is sub-
stantially greater than was the union’s need for the test
scores in Detroit Edison. As the court observed, the rel-
evance of the requested information is unquestioned.
The test scores here play a specific and uniquely im-
portant role in the parties’ administration of the collec-
tive-bargaining agreement’s seniority clause. As ex-
plained above, an employee’s seniority is calculated
based on his EOD date. Given that the Postal Service
considers the three highest-ranked applicants for each job
vacancy and that an applicant’s ranking depends on his
final rating, an employee’s EOD date is almost exclu-
sively a function of the sum of his test score and veter-
ans’ preference points. And, as stated above, the Postal
Service admits that an employee is authorized to request
a correction of the seniority list if he believes that the
Postal Service passed over him to hire a lower-rated ap-
plicant off the register. Consequently, the test scores and
other hiring-register information are crucial to adminis-
tering the seniority clause. Indeed, without those 22 test
scores, the Union would be unable to determine whether
the Postal Service is breaching or complying with the
parties’ agreement regarding unit employees’ relative
seniority standing. In Detroit Edison, by contrast, the
relevance of the test scores to the union’s statutory duties
was “vigorously dispute[d],” and the Court merely as-
sumed without deciding that the scores had some poten-
tial relevance to the union’s claim that the tests there
failed to fairly distinguish between qualified candidates.
440 U.S. at 317. In short, while the test scores in Detroit
Edison might have helped the union determine whether
POSTAL SERVICE 1055

the test there was “unfair,” the test scores here are neces-
sary for the Union to evaluate the veteran employees’
seniority complaints.
In our view, we are presented with a situation where
there are two weighty competing interests. The 22 af-
fected employees here have a confidentiality interest
deserving protection. At the same time, we have found
that the Union has a strong need for the test scores, and
disclosure is unlikely to negatively affect anyone’s view
of the applicants’ “basic competence.” Id. at 318. Under
these circumstances, we find that the balance of interests
favors requiring a limited disclosure to the Union.
Further analysis supports our weighing of the interests.
The Postal Service contends that, under Detroit Edison, it
reasonably accommodated the Union’s need when it of-
fered to furnish the test scores if the Union obtained em-
ployees’ consent. We do not agree. Unlike the test
scores in Detroit Edison, the test scores here are critical
to evaluating and, if need be, pressing the veterans’ com-
plaints regarding their seniority standing. In addition, the
Union needs all of the scores. Unlike in Detroit Edison,
if one or more of the nonveteran employees withholds
his consent, the Union will be effectively precluded from
determining whether the Postal Service has complied
with the collective-bargaining agreement. Moreover,
there is a substantial risk that one or more nonveteran
employees will withhold their consent because they stand
to suffer a reduction in seniority if the Union were to
prevail on a grievance. Because the Postal Service’s
proposal leaves open the distinct, and perhaps likely,
possibility that the information provided will be incom-
plete, and thus that the agreement will go unenforced, we
find that it is unreasonable. This is not to say that the
Postal Service was obligated to furnish individually iden-
tifiable test scores or final ratings to the Union. Rather,
the Postal Service could have complied with its statutory
duty by furnishing anonymous data enabling the Union
to determine whether management had adhered to the
parties’ agreement. Cf. Kaleida Health, 356 NLRB
1373, 1379 (holding that employer’s proposed accom-
modation was unreasonable because it would not have
given union sufficiently detailed information regarding
prior incidents of nurse misconduct and discipline im-
posed while protecting patient confidentiality). In sum,
given the facts and balance of interests presented here,
we find that the offer by the Postal Service to furnish test
scores if the Union obtained employee consent was un-
reasonable. Accordingly, we find that the Postal Service
violated Section 8(a)(5).
REMEDY
Section 10(c) of the Act authorizes the Board to issue
an order requiring a party who has engaged in an unfair
labor practice to “take such affirmative action . . . as will
effectuate the policies of th[e] Act.” The remedial power
vested in the Board by this provision is a “broad discre-
tionary one.” NLRB v. J. H. Rutter-Rex Mfg. Co., 396
U.S. 258, 262–263 (1969) (internal quotation mark omit-
ted); see also NLRB v. Solutia, Inc., 699 F.3d 50, 72 (1st
Cir. 2012) (“The Board has wide discretion in selecting
remedies.”) (internal quotation marks omitted).
Under the circumstances of this case, we find that it
would not effectuate the policies of the Act to order the
Postal Service to engage in further bargaining with the
Union over an appropriate accommodation of the Un-
ion’s need for the information and the employees’ priva-
cy interest in their test scores. The parties were unable to
reasonably accommodate those interests during either the
8 months that elapsed between the initial information
request and the issuance of the complaint or the subse-
quent 6 years that this case has been litigated. Thus, we
shall order a limited disclosure of information needed by
the Union while preserving the confidentiality of the em-
ployees’ test scores. Cf. Kaleida Health, Inc., 356
NLRB 1373, 1381 (ordering limited disclosure of re-
quested information while preserving confidentiality);
Pennsylvania Power Co., 301 NLRB at 1108 and fn.18
(same).
To effectively police the collective-bargaining agree-
ment, the Union does not need to know, at this stage,
which employees received which scores on Test 473. It
only needs to know whether the Postal Service hired an
applicant in 2007 with a lower final rating than that of
another applicant who appeared on the hiring register at
the same time. Requiring the Postal Service to disclose
each individual’s test score, veterans’ preference points,
final rating, exam date, and enter-on-duty date—without
identifying the employees by name—will satisfy the Un-
ion’s need.
However, requiring the above disclosure of anony-
mous data still creates some risk of a confidentiality
breach because Respondent’s Exhibit 1, which contains
the names and EOD dates of all 22 employees hired by
the Postal Service in 2007, reveals that 3 of those em-
ployees have unique EOD dates. By cross-referencing
that exhibit with the anonymous data, it would be possi-
ble for the Union to deduce the particular test scores of
those three individuals.
7
To obviate that risk, we shall
order the Postal Service to seek the consent of the three
employees with unique EOD dates to disclose to the Un-

7 The remaining 19 employees share an EOD with at least one, and
as many as nine, other employees. Thus, if their hiring-register data is
furnished without identifying employees by name (and without placing
employees with a common EOD date in alphabetical order), a reader
would be unable to deduce the test score of any of those 19 individuals.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ion their test scores, veterans’ preference points, final
rating, exam date, and EOD date. If all three consent, the
Postal Service shall furnish to the Union the test score,
veterans’ preference points, final rating, exam date, and
enter-on-duty date of each of the 22 employees hired in
2007, without identifying any employee by name. If one
or more of the three employees withholds his or her con-
sent, the Postal Service shall allow the Regional Director
or her agent to view, at the Postal Service’s premises, the
test score, veterans’ preference points, final rating, exam
date, and enter-on-duty date of each of the 22 employees
hired in 2007, without identifying any employee by
name. The Regional Director or her agent should then
inform the parties whether it appears that the order of
hiring in 2007 comports with that data, and, if it does not,
the respect in which it does not. The Union may then
proceed accordingly.
ORDER
The Respondent, United States Postal Service, San
Juan, Puerto Rico, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with National
Postal Mailhandlers’ Union, Local 313, NPMHU (the
Union) by failing and refusing to furnish it with request-
ed information that is relevant and necessary to the Un-
ion’s performance of its functions as the collective-
bargaining representative of the Respondent’s unit em-
ployees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Seek the consent of the three employees hired in
2007 having unique enter-on-duty dates to disclose to the
Union their test scores, veterans’ preference points, final
ratings, exam dates, and enter-on-duty dates.
(b) If the three employees referred to above consent to
disclosure, furnish to the Union the test score, veterans’
preference points, final rating, exam date, and enter-on-
duty date of each of the 22 employees hired in 2007, as
specified in the remedy section of this decision, without
identifying any employee by name.
(c) If any of the three employees referred to above
does not consent to disclosure, allow the Board’s Re-
gional Director or her agent to view, at the Respondent’s
premises, the test score, veterans’ preference points, final
rating, exam date, and enter-on-duty date of each of the
22 employees hired in 2007, without identifying any em-
ployee by name.
(d) Within 14 days after service by the Region, post at
its San Juan, Puerto Rico facilities copies of the attached
notice marked “Appendix.”
8
Copies of the notice, on
forms provided by the Regional Director for Region 24,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time during 2007.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain collectively with Na-
tional Postal Mailhandlers’ Union, Local 313, NPMHU

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
POSTAL SERVICE 1057

(the Union) by failing and refusing to furnish it with re-
quested information that is relevant and necessary to the
Union’s performance of its functions as the collective-
bargaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL seek the consent of the three employees hired
in 2007 with unique enter-on-duty dates to disclose to the
Union their test scores, veterans’ preference points, final
ratings, exam dates, and enter-on-duty dates.
If the three employees referred to above consent to
disclosure, WE WILL furnish to the Union the test score,
veterans’ preference points, final rating, exam date, and
enter-on-duty date of each of the 22 employees hired in
2007, without identifying any employee by name.
If any of the three employees referred to above does
not consent to disclosure, WE WILL allow the Board’s
Regional Director or her agent to view, at our premises,
the test score, veterans’ preference points, final rating,
exam date, and enter-on-duty date of each of the 22 em-
ployees hired in 2007, without identifying any employee
by name.
U.S. POSTAL SERVICE