                 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 National 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 adopted the

finding of an administrative law judge that the United 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 filed

       *
       District Judge of the Southern District of Mississippi,
sitting by designation.

                                   1
grievances on behalf of Dawn Hamilton, a union member and part-time

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

Post Office, challenging the Service's decision to assign Bonnie

Powell, a less-senior part-time flexible 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 violated 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

records) 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

provide 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, a


                                      2
more specific request for information would be considered.

     In   the    Union's   position   statement      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 attempt to stonewall the union, and an attempt to

thwart Mrs. Hamilton from filing this grievance."                    Postmaster

Heitmann denied Hamilton's grievance, informing Harrell 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 in 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 example:     The
     National Agreement, acquired knowledge etc.

With the exception 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    Service    had

                                        3
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 union for the proper performance of its duties as the

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

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

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

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

relevant to a union's ... administration of a collective bargaining

agreement,"    such   refusal   "   "may   constitute   a   breach   of   the

employer's duty to bargain in good faith'."        CJC 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 intrinsic

                                     4
     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 Service 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."1

     1
      In its opinion, the Board described the Union's request for
information as follows:

                                    5
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
     confidential. 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.       Postal Service, 309
     N.L.R.B. 309, 312; Postal Service, 307 N.L.R.B. 429, 434,
     1992 WL 92964 (1992).

          Because 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
     request 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   is



          Harrell explains 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-word term is not itself
          specified in the contract.... Harrell acknowledges that,
          at the February 24 Step 2 meeting of the "core"
          grievance, Postmaster Heitmann protested that Harrell was
          simply on a "fishing 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
          superior choice over PTF Powell. Harrell wants to be
          able to argue that he has reviewed the (copies of) the
          personnel files, and that the files do not support
          management's decision.

                                6
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);      Universal 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.          NLRB 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'."              NLRB 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   merits,   while   the   parties    devote   much

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

clear that the 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 records are


    2
     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 should 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 Hamilton'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
"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 the "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 information was relevant under the NLRA,

and that accordingly, "the disclosure of such information 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    perform     its    duties       as   the   collective   bargaining

representative of the unit employees");                see also United States

Postal Serv. v. National Ass'n of Letter Carriers, 9 F.3d 138, 148

    3
     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
Routine 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 reasonable 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
(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 relevant5

and the NLRA itself does not deem certain other information which

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

presumptively          relevant,      see    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);         and

    4
     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 files 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 the entirety of the employees' files.        NLRB v.
United States Postal Serv., 888 F.2d 1568, 1570 (11th Cir.1988)
("Information that pertains to employees in the bargaining unit is
presumptively relevant."); Providence 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
considering that the Union representative acknowledged that the

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

file, the Board's conclusion that the entirety of the personnel

files was relevant and/or needed is not supported by substantial

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

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

standard, the courts 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 to the Union's

collective bargaining duties, we conclude that the case should be

remanded to allow the Board to consider whether requiring the

parties to engage in accommodative bargaining at this stage of the

litigation would effectuate the policies of the NLRA.6           See 29


       6
        The Service's contention that the "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 request, not by the
circumstances that obtain at the time an agency or court finally
vindicates the union's right to divulgement." Providence Hosp. v.
NLRB, 93 F.3d 1012, 1020 (1st Cir.1996); see 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). But see NLRB v. United States Postal Serv., 18
F.3d 1089, 1104 (3d Cir.1994).

                                  10
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

Union   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.




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