The National Labor Relations Board recently issued the following ruling in favor of National Postal Mail Handlers on its request for information:
On July 2, 2007, NPMHU President Julio Figueroa emailed the USPS’s human resources specialist, Carlos Perez, requesting “the register listing for those candidates qualified for hiring,” and specifying that “[t]he listing should include the veteran employees as well as non-veterans and their position in the roster.” Figueroa sent this request because several bargaining-unit employees, who were veterans of the armed forces, had raised concerns that several nonveterans had been hired before them, even though the veterans had applied much earlier than the nonveterans. On July 17 and 26, Figueroa emailed Perez reiterating his information request. Human Resources Manager Carol Rubenstein responded on July 26, stating that Labor Relations Manager Keith Reid would follow up on Figueroa’s request.
In August, Figueroa and Union Vice President Miguel Pazo de Jesus met with Reid in his office. Figueroa reminded Reid of the outstanding information request, and explained that he had received complaints from veteran employees that nonveterans had been given preferential hiring treatment.
By letter dated October 18, USPS’s labor relations manager ,Juan Delgado, informed Figueroa that the information request was extensive and encompassed confidential information. He added that the request was being processed, and that Figueroa would be informed when all of the documents were available. Having received no further response, on November 15, the Union filed an unfair labor practice charge alleging that USPS failed and refused to furnish the Union with the information requested on July 2. The charge described the requested information as “the listing for those candidates qualified for hiring, including veteran employees and non veterans, and their positions in the roster.”
On December 17, USPS’s legal representative, Leslie Rowe, informed Figueroa by email that the 2007 hiring register information relating to the applicants’ scores would be redacted unless he obtained the applicants’ consent to release them. Figueroa emailed Rowe a few hours later, insisting that USPS furnish the information in unredacted form or explain its legal basis for refusing to do so. By letter dated December 19, Delgado informed Figueroa that the information would be available for review in Delgado’s office or that, alternatively, Delgado could mail him a copy. On December 20, Rowe sent Figueroa an email stating that the Respondent was willing to provide the Union with a copy of the 2007 hiring register, but with the basic and final scores redacted as “a way to satisfy your request without compromising the privacy of the test takers.”
The next day, Figueroa reviewed the 2007 hiring register in Delgado’s office with the scores redacted. Immediately thereafter, Figueroa emailed Rowe stating that this information did not satisfy the information request, in part because it did not indicate the applicants’ veterans’ preference. USPS’s law department subsequently sent the Union a copy of the 2007 hiring register, but with applicants’ basic scores and final ratings redacted.
On January 30, 2008, Figueroa submitted a follow-up information request for the “Caribbean District Hiring Registers including the scores of all the candidates (veteran and nonveteran) for the year of 2007,” along with the individuals’ names, veterans’ status, final rating, and eligibility position on the register. Reid responded the same day, inquiring as to the relevance of the follow-up request, noting that many individuals on the 2007 register were applicants and not unit employees. Reid also asked Figueroa to explain why he sought the names of any individuals known to have been “harmed.” Also that day, the Union filed an amended charge alleging that the Respondent refused to furnish the Union with “the basic scores and final ratings of the Mailhandler candidates in the Caribbean District registry from January of 2007 to January of 2008.” Additionally, Figueroa responded to Reid that the information previously provided was incomplete, and that he had amended the Union’s unfair labor practice charges as described above.
On February 1, Figueroa wrote Reid and Rowe repeating the January 30 information request. By email dated February 4, Rowe responded and asked Figueroa whether he was requesting new information. That same day, Reid also responded and explained that he was attempting to assess relevance as to who may have been injured and the Union’s right to represent their interests. There was no further communication between the parties.
On February 29, the General Counsel issued a complaint alleging that, on or about January 30, the Union requested “among other things, the basic test scores and final ratings of all prospective candidates for mailhandler positions in Respondent’s Caribbean District Registry for calendar year 2007” and that USPSt violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish that requested information.
The judge’s decision
The judge first found that the test scores of applicants who were not hired by the Respondent involved matters outside the bargaining unit, and were thus not relevant to the Union’s bargaining duties. However, the judge further found that, during the hearing, the Union made clear that its information request specifically included the test scores of the 22 mail handlers hired off the 2007 hiring register. The judge explained that this information was necessary for the calculation and verification of seniority for the existing employees, and thus was presumptively relevant to the Union’s role as the bargaining representative. In addition, the judge rejected the Respondent’s argument that the test scores and final ratings of the 22 employees were confidential, distinguishing Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), in which the Supreme Court found a legitimate and substantial confidentiality interest in the scores of certain job applicants who had failed a psychological aptitude test. The judge found that, unlike Detroit Edison, the scores at issue here were of applicants who passed the test and were hired into the positions for which they applied.
The Respondent excepts, reasserting its arguments to the judge, and additionally contending that it was denied due process because the judge found a violation not alleged in the complaint. As explained below, we find that these exceptions lack merit.
It is well established that, as part of its obligation to bargain in good faith, an employer must, upon request, furnish a union with information that is relevant and necessary for it to perform its statutory duties. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). The Board applies a broad, discovery-type standard for determining relevance. See, e.g., Mid-Continent Concrete, 336 NLRB 258, 258 (2001), enfd. 308 F.3d 859 (8th Cir. 2002). The test scores and final ratings of the 22 bargaining unit employees hired in 2007, as well as their names, veterans’ status, and standing on the hiring register are clearly relevant to the Union’s statutory duty to police the collective-bargaining agreement. Article 12 of that agreement, which governs seniority, incorporates by reference the Respondent’s practice of basing seniority on an employee’s enter-on-duty (EOD) date, which, in turn, is directly affected by his test score, veterans’ status, final rating, and standing on the hiring register. Indeed, the Respondent essentially concedes the relevance of the information in its brief, stating that “[a]n existing employee who believed his EOD date should have preceded that of another employee because he had taken Test 473 on or before the other employee and had the same or higher final rating than that employee but was hired after him is authorized under Article 12 to request a correction of his seniority standing.”
We find that the Respondent has failed to establish the existence of a legitimate and substantial confidentiality interest. The Respondent bases this defense solely on the argument that applicants (including those who became employees) would be sensitive to disclosure of their test results. Regardless of any such sensitivity, the record shows that applicants had no legitimate expectation that their test results would remain confidential. Rather, given the circumstances, they reasonably should have understood that disclosure could occur for various reasons, including proceedings before the Board. Both the Test 473 information package and answer sheets explicitly state that if applicants choose to provide personal information, including veterans’ points, the Respondent may disclose that information to a labor organization or Federal government agencies, such as the Board. Consistent with those statements, the Respondent’s privacy guide specifically provides that examination and placement records, the very information in dispute here, may be disclosed to a labor organization as required by law. There is no evidence that the Respondent made any contrary promises of confidentiality about test scores. Given all these factors, applicants would reasonably understand that disclosure would extend to all portions of their exams, including test results and final ratings. There is no record evidence that any applicant contested the scope or meaning of any of this disclosure language. Applicants who proceeded to furnish their personal information and complete the exam thus had no legitimate confidentiality interest in test results they knew were subject to disclosure to labor organizations. As the basis for the Respondent’s confidentiality arguments fails, we accordingly reject its defense.
Contrary to USPS’s argument, Detroit Edison, supra, does not support a contrary result. In that case, the Supreme Court held that the employer had a legitimate and substantial confidentiality interest in the test scores of named applicants who took a psychological aptitude test. The employer in that case “administered the tests to applicants with the express commitment that each applicant’s test score would remain confidential.” Id. at 306. The Court described that commitment as a “promise of confidentiality to the examinees.” Id. at 317. Here, in contrast, USPS made no such promise. To the contrary, USPS expressly informed applicants about the possibility of disclosure to labor organizations in the information packet, on the answer sheet, and through its guide to privacy and the Freedom of Information Act, which is made available to the public.
For the reasons above, we adopt the judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with the information it requested on January 30, 2008, regarding the 22 employees hired in 2007, including their test scores, veterans’ preference, final ratings, and register standing.