* District Judge of the Southern District of Mississippi,

sitting by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 97-60006.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

UNITED STATES POSTAL SERVICE, Respondent.

Nov. 18, 1997.

Application for Enforcement of an order of the Natio nal Labor

Relations Board.

Before DeMOSS and DENNIS, Circuit Judges, and LEE, * District Judge.

TOM S. LEE, District Judge:

The National Labor Relations Board (NLRB or Board) applies for

enforcement of its August 28, 1996 order by which it ad opted the

finding of an administrative law judge that the Unite d States

Postal Service (Service) violated sections 8(a)(5) and (1) of the

National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(5) and (1),

by refusing the request of American Postal Workers Union Local

5188, AFL-CIO (Union), for records which the Union deemed necessary

for and relevant to the proper performance of its collective

bargaining duties. Consequently, the Board ordered the Service to

furnish the Union with the requested materials. Finding error, we

decline to enforce the order and remand for proceedings consistent

with this opinion.

Background

In August 1994 and again in February 1995, the Union filed2

grievances on behalf of Dawn Hamilton, a union member and part-time

flexible clerk employed by the Service at the Lake Jackson, Texas

P ost Office, challenging the Service's decision to assign Bonnie

Powell, a less-senior part-time flexi ble clerk (and also a union

member), to relief-window clerk duties, and the Service's later

decision to schedule Powell, and not Hamilton , for relief-window

training. The Union took the position that Powell's assignment for

training v iolated the Service's seniority rule and its training

policies, and violated the "rule of reason" in light of Hamilton's

superior training, experience and capabilities and Powell's

deficiencies. The Union said it could not find a "logical or sound

business reason" to promote Powell, and alleged that Powell's

promotion was motivated by "favoritism, cronyism, managerial

stubbornness and deal making."

Prior to filing the second grievance, Union steward Alan S.

Harrell had requested that the Service provide him with copies of

Hamilton's and Powell's personnel records (excluding medical

re cords) so that the Union could determine "whether a grievance

exists and, if so," to enable the Union "to determine the relevancy

of the documents to the grievance." The Service denied the Union's

blanket request for disclosure, but offered to allow each employee

to review her own file in the presence of a Union steward. Harrell

made an oral grievance protesting the Service's "[r]efusal to

provi d e information necessary to file grievances," which Lake

Jackson Postmaster Michael Heitmann denied, advising Harrell that

while the Service was not obligated to furnish the entire file, a3

more specific request for information would be considered.

In the Union's position stateme nt filed in relation to

Hamilton's training grievance, the Union complained of the

Service's failure to provide the requested personnel files, which

the Union asserted not only gave the appearance of impropriety but

was also "an atte mpt to stonewall the union, and an attempt to

thwart Mrs. Hamilton from filing this grievance." Postmaster

Heitmann denied Hamilton's grievance, informing Harre ll that the

Service would not furnish copies of the documents in support of his

"fishing expedition." Subsequently, Harrell filed a grievance

based on the Service's refusal to provide the Union with the

requested information. In connection with that grievance, Harrell

sought to obtain from the Service copies of all documents used by

the Service i n denying Hamilton's grievance. This grievance was

denied, with Postmaster Heitmann stating:

Management must again require that you be more specific

in your request as it would be next to impossible to provide

you with a copy of every document used, for ex ample: The

National Agreement, acquired knowledge etc.

With the except ion of the Hamilton training grievance, which was

not appealed to arbitration, each of these grievances was pending

arbitration at the time of the hearing by the administrative law

judge (ALJ).

Following the hearing, the ALJ concluded that contrary to the

Service's assertion, the Privacy Act of 1974, 5 U.S.C. § 522a, did

not prohibit the Service's disclosure to the Union of copies of the

contents of Hamilton's and Powell's official personnel files since,

in recognition of its NLRA-imposed duty, the Se rvice had4

specifically excepted from Privacy Act coverage records needed by

the Union to perform its collective bargaining duties, and since,

in the ALJ's opinion, the Union had demonstrated its need for the

records. Accordingly, the ALJ ordered that the Service "cease and

desist from ... [r]efusing to bargain collectively with the Union

... by refusing to furnish it with copies of the official personnel

files (less medical records)" of Hamilton and Powell, and he

directed that the Service furnish the Union with copies of those

files. The Board adopted the ALJ's recommended order with only

minor modifications.

Discussion

"The duty to bargain collectively, imposed by § 8(a)(5) of

the [NLRA], includes a duty to provide relevant information needed

by a labor un ion for the proper performance of its duties as the

employee's bargaining representative." D etroit Edison Co. v. NLRB,

440 U.S. 301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979). S ee

also NLRB v. CJC Holdings, Inc., 97 F.3d 114, 117 (5th Ci r.1996)

(same). Thus, if the employer refuses "to furnish information

relevant to a union's

... administration of a collective bargaining

agreement," such refusal " "may constit ute a breach of the

employer's duty to bargain in good faith'." C JC Holdings, 97 F.3d

at 117 (quoting NLRB v. Leonard B. Hebert, Jr. & Co., Inc., 696

F.2d 1120, 1124 (5th Cir.), cert. denied, 464 U.S. 817, 104 S.Ct.

76, 78 L.Ed.2d 88 (1983)). As recognized in Hebert,

the key inquiry is whether the information sought by the Union

is relevant to its duties. The Supreme Court has adopted a

liberal, discovery-type standard by which relevancy of

requested information is to be judged. Information intrinsic1 In its opinion, the Board described the Union's request for

information as follows:

5 to the employer-union relationship, such as that pertaining to

wages and other financial benefits, is considered

presumptively relevant, with the employer having the burden of

showing irrelevance.

The Service, however, unlike private employers covered by the

NLRA, is also subject to the Privacy Act of 1974, 5 U.S.C. § 522a.

See 39 U.S.C. § 410(b)(1). The Privacy Act, in contrast to the

NLRA' s liberal relevance standard, prohibits the disclosure of

employee information, absent employee consent, unless a specified

exception is met. One such exception, the "routine use" exception,

allows "the use of [a] record for a purpose compatible with the

purpose for which it was collected." 5 U.S.C. § 522a(a)(7).

Consistent with this authorization, the Servi ce has promulgated

"routine use" exceptions, including Routine Use "m", which

provides:

m. Disclosure to Labor Organizations

Pursuant to the National Labor Relations Act, records from

this system may be furnished to a labor organization when

needed by that organization to perform properly its duties as the collective bargaining representative of postal employees

in an appropriate bargaining unit.

In the instant case, the Board considered whether, pursuant to

Routine Use "m", the Union needed the requested records, an inquiry

which it deemed to be " similar to asking whether the request was

for "relevant' items." And though viewing Harrell's purpose in

requesting the entire files as a "fishing expedition"—finding that

he was "seeking production for discovery"—the Board, nevertheless

concluded that the entire contents of the files were "needed." 1Harrell expla ins his request for copies of the entire

personnel files (minus medical records) as being what he

needs to analyze Postal Service's decision process in

order to determine whether Postal Service made "the most

rational choice." Harrell describes this as the "rule of

reason", and he asserts that the CBA allows for such an

approach even though the three-wo rd term is not itself

specified in the contract.... Harrell acknowledges that,

at the Februa ry 24 Step 2 meeting of the "core"

grievance, Postmaster Heitmann protested that Harrell was simply on a "fish ing expectation for information." In

fact, Harrell's own description of his purpose

demonstrates that a fishing expedition is exactly what he

is seeking. Quite simply, Harrell is seeking production

for discovery. Thus, Harrell testified that, on

receiving copies of the personnel files (less the medical

records), he would look for anything that would support

the Union's position that PTF Hamilton would be the

s uperior choice over PTF Powell. Harrell wants to be

able to argue that he has reviewed the (copies of) the

personnel files, and that the fil es do not support

management's decision.

6 The Board explained:

As the Union, at least arguably under the contract may grieve

on the basis that a more logical choice was available to

management, it seems clear that the Union "needed" the copies

of the official personnel files (OPFs) of PTFs Powell and

Hamilton. I so find. Always casting the burden on the Union

to name specific documents, management never made any effort

to accommodate both its interests and that of the Union by

assuming the burden of classifying specific items, if any, as

confide ntial. Postal Service has that burden and also the

burden to negotiate with Union about such confidential

classification in an effort to balance the interests of both

the Postal Service and the Union. P ostal Service, 309

N.L.R.B. 309, 312; P ostal Servic e, 307 N.L.R.B. 429, 434,

1992 WL 92964 (1992).

Beca u se Postal Service was not authorized under the

Privacy Act to withhold production of documents generally, I

find as alleged, that Respondent Postal Service violated 29

U.S.C. § 158(a)(5) when, on February 7, 1995, it refused to

supply the Union, in accordance with the Union's written

re quest dated February 6, 1995, copies (excluding medical

records) of the OPF's of PTF clerks Bonnie Powell and Dawn

Hamilton. (Citations omitted).

The standard of review of Board decisions is2 Although the Service states that it does not quarrel with the

Board's finding of facts, it obviously disputes the Board's

conclusion that the entire files were either relevant and needed by

the Union. The Service asserts that the following are factual

findings that the Board did not make but sh ould have: (1) the

Union representative had seen and thus was aware of the list of

items which are contained in postal personnel files; (2) the Union

representative acknowledged that the home addresses and information

about Ham ilton's and Powell's life insurance coverage would not

have assisted him or have been relevant to the issues in the case;

and (3) the Service offered to allow inspection of the employees'

personnel files upon written release by the employees.

7 well-established. Its findings of facts must be upheld if they are

supported by substantial evidence on the record considered as a

whole. 2 29 U.S.C. § 160(e); U niversal Camera Corp. v. NLRB, 340

U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Likewise,

the Board's application of law to fact is reviewed under the

substantial deference standard. N LRB v. United Ins. Co., 390 U.S.

254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968). Additionally,

"[t]he Board's determination of relevance of the information sought

in a particular case must be given great weight by the courts, if

only because it is a finding on a mixed question of law and fact,

"which is within the particular expertise of the Board'." N LRB v.

Brazos Elec. Power Coop., 615 F.2d 1100, 1101 (5th Cir.1980); E .I.

DuPont de Nemours & Co. v. NLRB, 744 F.2d 536, 538 (6th Cir.1984)

(per curiam).

Turning to the mer its, while the parties devote much

attention to the correct interpretation of Routine Use "m", it is

clear that th e ALJ correctly concluded that the inquiry into

whether the records were "needed" for purposes of Routine Use "m"

is similar to the inquiry for determining whether reco rds are3 The Service, citing Hi-Craft Clothing v. NLRB, 660 F.2d 910,

914-915 (3d Cir.1981), urges that the court consider de novo the

Board's interpretation of Routine Use "m". The court concludes

that, unlike the situation presented in Hi-Craft, interpretation of

Rou tine Use "m" is not an instance "in which the court [has]

special competence"; that is, analysis of Routine Use "m" requires

interpretation of neither the common law nor constitutional law and

therefore, deference to the Board's reasonabl e interpretation is

appropriate.

Additionally, despite the fact that the Service argues

that "relevance" and "need" are not equivalent terms and that

"relevance" has a broader connotation than "need," it has not

suggested that there was any information which would have been

relevant that would not have also have been needed.

Considering this, de novo review would in the end merely be an academic exercise, having no effect on the outcome.

8 "relevant" and thus subject to disclosure pursuant to the NLRA. 3

See NLRB v. United States Postal Serv., 888 F.2d 1568, 1572-73

(11th Cir.1989) (concluding that "the Privacy Act did not prevent

disclosure" because Board determined that the requested information

was relevant); NLRB v. United States Postal Serv., 841 F.2d 141,

144-45 n. 3 (6th Cir.1988) (noting that "if the [NLRA] requires the

Postal Service to supply the desired information, the

unconsented-to disclosure of such would fall within t he "routine

use' exception to the Privacy Act"); United States Postal Serv.,

301 N.L.R.B. 709, 713 (1991), enforced, 980 F.2d 724 (3rd Cir.1992)

(finding that requested informati on was relevant under the NLRA,

and that accordingly, "the disclosure of such informa tion is

mandated by the Privacy Act because its use is precisely for such

purposes recognized by the Privacy Act—the ability of the Union to

properly performits duties as the collective bargaining

representative of the unit employees"); s ee also Unit ed States

Postal Serv. v. National Ass'n of Letter Carriers, 9 F.3d 138, 1484 The Board, observing that the Service no longer disputes that

the requested information was "relevant to the Union's grievance

handling functions," contends that the record contains substantial

evidence in support of the Board's determination of relevance. It

is clear that while the Service has perhaps impliedly agreed that

some of the documents in the files would be relevant, it has not

agreed that the entire contents of the fi les are relevant. The

Service argued in its initial brief that the Union failed to show

how all the information in the employees' files, i.e., social

security numbers, thrift savings plan participation information,

garnishment records, was facially relevant to the Union's "rule of

reason" argument.

5 For example, during cross examination at the hearing before

the ALJ, Union representative Harrell conceded that obtaining the

home addresses of the two employees or the amount of life insurance

they had selected would not have assisted him in presenting the

Union's grievance. As pointed out by the Service, the Board did

not make this factual finding. It is clear, however, that these

facts alone are sufficient to overcome any presumption of relevancy

with regard to t he entirety of the employees' files. N LRB v.

United States Postal Serv., 888 F.2 d 1568, 1570 (11th Cir.1988)

("Information that pertains to employees in the bargaining unit is

presumptively relevant."); P rovidence Hosp. v. NLRB, 93 F.3d 1012,

1017 (1st Cir.1996) (recognizing presumption of relevance with

regard to information pertaining to members of bargaining unit and

providing that employer may rebut this presumption).

9 (D.C.Cir.1993) (plurality opinion). Considering whether the

Board's determination that the information sought by the Union was

"needed" is supported by substantial evidence, we conclude that it

is not. 4

The Union conceded to the ALJ that at least some of the

information contained in the personnel files would not be relevant 5

and the NLRA itself does not deem certain other information which

would be in the files, i.e. social security numbers, to be

presumptively rel evant, s ee United States Postal Serv., 307

N.L.R.B. 170 (1992) (concluding that social security numbers were

not presumptively relevant, and that Union had "failed to show any

special circumstances warranting" their disclosure); and6 The Service's contention that t he "death" of the core

grievance in this case obviates any need for continued bargaining

is unavailing, because as the Board points out, "[t]he relevance of

requested information must be determined by the circumstances that

exist at the time the union makes the re quest, not by the

circumstances that obtain at the time an agency or court finally

vindicates the union's right to divulgement." P rovidence Hosp. v.

NLRB, 93 F.3d 1012, 1020 (1st Cir.1996); s ee also NLRB v. Arkansas

Rice Growers Coop. Ass'n, 400 F.2d 565, 567 (8th Cir.1968); Mary

Thompson Hosp., 296 N.L.R.B. 1245, 1250, enforced, 943 F.2d 741

(7th Cir.1991). B ut see NLRB v. United States Postal Serv., 18

F.3d 1089, 1104 (3d Cir.1994).

10 con sidering that the Union representative acknowledged that the

purpose of the entire endeavor was simply to peruse the Service's

file, the Boar d's conclusion that the entirety of the personnel

files was relevant and/or needed is n ot supported by substantial

evidence. S ee NLRB v. George Koch Sons, Inc., 950 F.2d 1324, 1332

(7th Cir.1991) ("Although the relevance standard is a liberal

standard, the cou rts will not allow the union to go on unfounded

fishing expeditions."). Furthermore, as the Service has admitted

that some of the information contained in the employees' files was

relevant to the Union's collective bargaining duties, and in fact,

furnished certain of that information to the Union representative,

the Board's conclusion that the Service never made any effort to

accommodate the Union's interest is also not supported by

substantial evidence. However, given that the employees' personnel

files admittedly contained information relevant t o the Union's

collective bargaining duties, we conclude that the case should be

remanded to allow the Board to consid er whether requiring the

parties to engage in accommodative bargaining at this stage of the

litigation woul d effectuate the policies of the NLRA. 6 S ee 2911

U.S.C. § 160(c) (empowering Board "to take such affirmative action

... as will effectuate the policies of this subchapter").

Conclusion

Finding that the Board's conclusions that the entirety of the

employees' personnel files was relevant and that the Service never

made any effort to accommodate both its interests and those of the

U nion are not supported by substantial evidence, we deny

enforcement of the order. Furthermore, given the relevancy of

portions of the employee personnel files, we remand the case to the

Board for reconsideration consistent with this opinion.