U.S. Postal Service

POSTAL SERVICE U.S. Postal Service and American Postal Workers Union, Detroit District Area Local , AFL-CIO. Case 7-CA-23958(P) 24 June 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 1 July 1985 Administrative Law Judge Robert W. Leiner issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party Union filed an answering brief to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings, and conclusions, 2 and to adopt the recommended Order. We adopt the judge's finding that the Respond- ent violated Section 8(a)(5) and (1) of the Act by refusing to furnish information that the Union re- quested concerning the names of its officers and stewards who had applied for supervisory posi- tions. In August 1984 the National Union passed a constitutional amendment, binding on the Detroit Area Local (the Union) concerned here, which provides in pertinent part as follows: That any postal employee who shall voluntari- ly after August 31, 1984 hold, accept, or apply for any managerial, supervisory . . . Program position in the Postal Career Service for any period of time . . . shall be ineligible to be a convention delegate and shall immediately vacate any office held by that member . .. . The Union thereafter sent letters to various offi- cials of the Respondent's Detroit and Royal Oak, Michigan facilities requesting the information de- ' The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. 2 We note that the judge relied on United Technologies Corp, 274 NLRB 504 (1985), in rejecting the Respondent's contention that the al- leged 8(a)(5) violation involving the Union's information request should be deferred to the parties' grievance-arbitration procedure As the Re- spondent points out, however, the present case is distinguishable from United Technologies in that this Union is not seeking information relating to the possible filing of a grievance Nevertheless, we conclude that de- ferral is inappropriate when, as here, a union has sought information that is relevant to the performance of its statutory function as the employees' bargaining representative 685 scribed above. The information request was refused by the Respondent. Contrary to the dissent, we find on the particular facts of this case that the information is relevant to collective-bargaining and that the Respondent has not justified its refusal to provide it. The record evidence here shows that the Union's officials and stewards engaged in contract negotiations and grievance handling. The Union has sought to ex- clude as its collective-bargaining representatives those persons who have applied for supervisory jobs in order to prevent a possible conflict of inter- est in the performance of those union duties that could interfere with the representation of unit em- ployees. Although our colleague emphasizes that there is no record of any such conflict occurring during the time that the Respondent has maintained the present selection system, we conclude that the possibility of disloyalty by a union official or stew- ard undermines employee confidence in the collec- tive-bargaining representative . As the Board stated in Southern Nevada Builders Assn., 274 NLRB 350, 351 (1985): Section 8(a)(5) and (1) of the Act obligates an employer to provide a union requested in- formation if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties as the employ- ees' exclusive bargaining representative. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967). The information sought here meets those criteria because it relates to the Union's role as the employ- ees' exclusive bargaining representative.3 The mat- ters here relating to the Union's statutory function constitute a mandatory subject of bargaining and do not simply involve internal union rules or union discipline as our colleague suggests. We also disagree with our dissenting colleague's suggestion that the requested information is pro- tected from disclosure because it would interfere with the Respondent's contractual right to select its own bargaining representatives. As the judge found, the Union is not seeking to limit an employ- ee pool of potential supervisors; it is merely pre- scribing the qualifications or limitations of those who will be its agents. Accordingly, we affirm the judge's finding of the 8(a)(5) and (1) violation.' 8 In so concluding, we place no reliance on the judge's comment in his decision that "the information is presumptively relevant since the in- formation requested goes to the very heart of the collective-bargaining process " 4 We find it unnecessary to pass on the judge's conclusion that the Union may have violated its duty of fair representation under Sec. 8(b)(1)(A) of the Act if it had failed to request this information 280 NLRB No. 80 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, U.S. Postal Service, Detroit and Royal Oak, Michigan, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. MEMBER JOHANSEN, dissenting. Contrary to my colleagues, I would not find that the Respondent violated Section 8(a)(5) by refusing to furnish the Union, as requested, with names of the union steward' and officers who have applied for supervisory positions. Unlike the majority, I find that the Union failed to establish that the requested information was rele- vant to the Union in fulfilling its statutory duties and responsibilities as the employees' collective- bargaining representative. The Union contended that the list of names was relevant because there was a potential conflict of interest in union stew- ards or officers applying for consideration for su- pervisory positions. The Union, however, did not submit any evidence in support of its contention. In fact, there is not record of any such conflict of in- terest occurring in the 6 years or more that the Re- spondent has maintained supervisory eligibility lists. Under these circumstances, I would find that the Union's request was based on nothing more than mere suspicion or surmise, which the Board has found to be insufficient to establish relevancy.' I, therefore, cannot find that the Union sustained its burden of demonstrating a probability that the re- quested information was relevant. Further, an employer is obligated only to furnish information with respect to mandatory subjects of bargaining.2 Neither internal union rules3 nor union discipline,4 however, have been found to be mandatory subjects of bargaining. Here, the Union's president informed one of the Respond- ent's labor relations managers that it needed the in- formation so that it could enforce the Union's recent constitutional amendment prohibiting its of- ficers and stewards from applying for supervisory positions. In enforcing the amendment, the Union in all likelihood would discipline those officers and stewards who chose to remain on the supervisory eligibility lists by removing them from their union positions. Inasmuch as the Union requested the in- formation in order to enforce its internal rule, in- cluding probable discipline of members who disre- ' Southern Nevada Builders Assn, 274 NLRB 350 (1985) 2 Cowles Communications, 172 NLRB 1909 (1968) 8 Cote Bros. Bakery, 259 NLRB 776 (1981) 4 Nordstrom, Inc., 229 NLRB 601 (1977) garded it, I conclude that the information did not relate to mandatory subjects of bargaining. Finally, those employees who desired to remain unoin stewards or officers would be forced under the Union's constitutional amendment to withdraw from consideration for supervisory positions. 5 The amendment, consequently, interferes with the Re- spondent's undisputed sole right under the collec- tive-bargaining agreement to select supervisors and promote employees. Inasmuch as the same charac- teristics-such as ambition, drive, leadership, and the ability to communicate-that make a successful union officer or steward also make a successful su- pervisor, the prohibition of union officials from being considered for management positions elimi- nates many of the most qualified employees from the pool of potential supervisors . The Respondent should not be required to grant the Union's infor- mation request pertaining to an internal union rule when doing so would adversely affect its ability to promote the employees it wanted to promote. Con- sequently, inasmuch as I have found that the infor- mation requested was neither relevant to the Union's collective-bargaining duties nor concerned with a mandatory subject of bargaining, and that the Union's amendment and request pertaining to it would interfere greatly with the Respondent's right to name its own supervisors, I conclude that the Respondent was not obligated to furnish the infor- mation. Accordingly, I would dismiss the com- plaint. 5 I note that on the other hand if the Respondent had refused to pro- mote employees who were union officials we would find that it had vio- lated Sec 8(a)(3) Jerome E. Schmidt, Esq., for the General Counsel. Robert P. Henderson, Esq., of Chicago, Illinois, for the Respondent. Arthur M. Luby, Esq. (O Donnell, Schwartz & Anderson), of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. This matter was heard on 8 and 9 April 1985 in Detroit, Michigan, on the General Counsel's complaint' alleging, in substance, that Respondent United States Postal Serv- ice in violation of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act), following lawful re- quests, unlawfully refused to provide information to the Union, the Charging Party, American Postal Workers Union, Detroit District Area Local, AFL-CIO. Re- spondent concedes that the Union is the statutory bar- ' The Union's underlying unfair labor practice charge was filed and served on 23 October 1984 The complaint is dated 13 December 1984 POSTAL SERVICE gaining representative of Respondent's employees within the meaning of Section 9(a) of the Act in a unit appropri- ate for bargaining within the meaning of Section 9(b) of the Act. Respondent's timely filed answer admits certain allegations of the complaint, denies others, and denies the commission of any unfair labor practices. At the hearing, all parties were represented by counsel and were given full opportunity to call and examine wit- nesses, submit oral and written evidence, and argue orally on the record. At the close of the hearing, counsel for the General Counsel waived the right to submit a posthearing brief and presented final argument. Thereaf- ter, Respondent and the Charging Party filed timely posthearing briefs that have been carefully considered. On the entire record, including the briefs, and from my observation of the demeanor of the witnesses as they testified, I make the following FINDINGS OF FACT 1. RESPONDENT AS EMPLOYER The complaint alleges, Respondent United States Postal Service admits, and I find that at all material times Respondent has provided postal services for the United States of America, operates various facilities throughout the United States for the performance of that function, including facilities located at 1401 West Fort Street, De- troit, Michigan, and 200 West Second Street Royal Oak, Michigan, the only facilities involved in the instant pro- ceeding, and is subject to the Board's jurisdiction by virtue of Section 1209 of the Postal Reform Act of 1970 (39 U.S.C. § 101 et seq.). II. THE UNION AS A STATUTORY LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that American Postal Workers Union, AFL-CIO and American Postal Workers Union, Detroit District Area Local, AFL-CIO and each of them are and have been at all material times labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background As above noted, the two Unions involved, the parent national Union and the Detroit District Area Local, are both labor organizations within the meaning of the Act. Similarly, only the Detroit and Royal Oak Management Sectional Centers (MSC) are involved in this proceeding. Each of these management sectional centers are large mail processing operations involving the sorting and de- livery of mail. Each MSC has numerous stations, branches, and associate post offices. Respondent, on this record, apparently maintains at least three promotion procedures by means of which unit employees (represented by the Detroit Area Local) can achieve entry level supervisory positions. The first is the "PASS Work Book" procedure which relates to a major- ity of the available initial level supervisory positions. Second, a procedure by which entry level supervisory positions are filled in Detroit and Royal Oak which are 687 not covered by the "PASS Work Book" procedure but are nevertheless also filled by means of a voluntary "ap- plication" procedure. The third area of entry level super- visory jobs, denominated "non-bargaining" unit positions, also filled by an application procedure, are support and staff type functions in employee and labor relations. Al- though all supervisory positions in the three categories are filled by written application procedures, the "PASS Work Book" procedure involves Respondent maintaining a roster for each applicant valid only for 2 years. The second and third categories do not involve the keeping of a roster but nevertheless Respondent maintains files concerning those employees who filed applications for these positions. All such procedures start with the volun- tary application of a unit employee. In 1984 there were 291 entry level supervisory posi- tions (approximately 72 percent of entry level superviso- ry positions) filled under the "PASS Work Book" proce- dure for supervisors in (1) mail processing, (2) collections and delivery, and (3) station, branch, and associate office operation. Approximately 111 entry level supervisory po- sitions (28 percent of entry level supervisory positions) were filled under a promotion system based on employee application other than the "PASS Work Book" method. The nonpass book jobs, formerly part of the "PASS Work Book" procedure method, involve operations such as vehicle operation, vehicle maintenance, building serv- ice maintenance, mail processing equipment, building equipment maintenance, and maintenance control. This second "written application" method of applying for po- sitions involves a Postal vacancy announcement, supervi- sory recommendation, and evaluation of the employee. Finally, in 1984, there were "non-bargaining unit" super- visory positions filled neither from the "PASS Work Book" method of selection nor the "PASS" promotional system. These were the entry level supervisory jobs in staff work, mainly in employee and labor relations. There is no evidence on this record that Respondent, in advertising for applicants or in receiving applications, informed employees that their filing applications was un- conditionally confidential nor did the evidence show that the employees requested confidentiality in filing their ap- plications for supervisory positions under any of these above rubrics. Rather, the evidence (R. Exh. 1 at 2) shows that Respondent warned that as a "routine use," information submitted by employees in the "PASS" system, may be disclosed-notwithstanding the Privacy Act-to various persons, including "to a labor organiza- tion as required by the NLRA." B. The Union's Constitutional Amendment In August 1984, at the National Union' s biannual con- stitutional convention, the National Union passed a con- stitutional amendment, binding on the Detroit Area Local, entitled "Prohibition of Temporary Supervisors form Holding Union off" (G.C. Exh. 6). The amend- ment, in pertinent part, reads as follows: Therefore Be It Resolved: That any Postal employ- ee who shall voluntarily after August 31, 1984 hold, accept, or apply for any managerial, supervisory, 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EAS or PASS Program position in the Postal Career Service for any period of time . . . shall be ineligible to be a convention delegate and shall im- mediately vacate any office held by that member in the National Local, Area Local, District Council, State or Regional Organization . . . or any other subordinate body of the AAPWU ... . It was stipulated by the parties that Respondent has had the sole right, under existing collective-bargaining agreements, to select supervisors and to promote em- ployees under the contract . In particular, it was agreed that the Union has no contractual role in the selection of Respondent's supervisors or the promotion of unit em- ployees to supervisory positions. In consequence of the Union's constitutional amend- ment, the Detroit Area Union Local, the Charging Party, sent letters to various installations in, and the cen- tral offices of, Respondent's Detroit and Royal Oak MSCs, requesting the names of all District Area Local Union officers and shop stewards whose names appear on the "supervisory eligibility roster" (G.C. Exhs. 4(a) and 5(a)). These Charging Party letters supplied the names of all Charging Party officers and shop stewards and merely requested that Respondent indicate which of them had made application to become supervisors. There is no disagreement on this record that the names of all applicants appear on the "PASS Work Book" roster where the applicant has requested to be placed in compe- tition for those supervisory jobs encompassed within the "PASS Work Book" description. None of the Charging Party's communications relates to names appearing on any of Respondent's records other than the "supervisory eligibility roster." They do not specify or use the de- scription "PASS." At the hearing, however, the testimony of Local Union President Ivory Tillman demonstrated that Till- man in particular, and the Local Union in general, had no idea that applicants for all supervisory positions were not maintained on the same supervisory roster , i.e., the "PASS Work Book" roster. I reject Respondent's repeat- ed assertion that Tillman and the Union were interested only in the roster of applicants maintained for the "PASS Work Book" grouping and were not interested in similar information regarding its stewards and officers in the other "PASS" program and the "non-bargaining unit" application rosters and files. Respondent repeatedly asserts in its brief that Tillman "lied" in testifying that he was simply not aware that the names of applicants were not kept on a single applicant register, notwithstanding that Tillman has been a long-time bargainer for the Union and a long-time union officer. Respondent argues that the only "roster" was the PASS roster and thus the Union meant only the "PASS" names . I fully credit Till- man that in the Union's requests, the clear object of its requests for information related to Respondent divulging the names of all supervisory applicants from among unit employees, on the Union's submitted list, who were the Charging Party's shop stewards or officers. Respondent's Refusals to Provide the Information As early as 17 September 1984 (G.C. Exh. 5(c)), Re- spondent's Royal Oak MSC director Howard E. Byrne rejected (G.C. Exh. 5(c)) the request for information pending the Union's showing of a "collective-bargaining need" for the information, and asserting generally that the information was "generally protected by the Privacy Act." The responses from the Detroit MSC relate only to the Charging Party's failure to state why the informa- tion was "germane to the collective-bargaining process, and in particular, to [the Local Union's] administration of the national and local collective-bargaining agreement." (G.C. Exh. 4(c).) At the hearing and in its brief, Respondent contends that the Charging Party never spelled out a collective- bargaining need for the information and asserted, in par- ticular, that there was no legal conflict of interest be- tween a unit employee serving as a union officer or shop steward and his making application to become a supervi- sor of unit employees. Respondent would distinguish any suggestion in case authority showing a conflict of inter- est of union officials, especially those engaged in collec- tive bargaining, possessing supervisory status on the ground that here, the employee is merely applying for supervisory status and is not, in fact, clothed with super- visory authority. There is no dispute that under the existing collective- bargaining agreement and its predecessors (G.C. Exhs. 2 and 3) the persons responsible for adjusting grievances on the workroom floor are union shop stewards and the employees' immediate supervisors. The collective-bar- gaining agreement (G.C. Exh. 3 at 58-61) defines the shop steward's first- and second-step grievance responsi- bilities as follows: In any such grievance discussion the supervisor shall have the authority to settle the grievance. The steward or other union representative likewise shall have authority to settle or withdraw the grievance in whole or in part. No resolution reached as a result of such discussion shall be precedent for any purpose. The shop steward has powers to engage in settlement of the grievance in the first two steps of the four-step grievance leading to arbitration (G.C. Exh. 3 at 58-61). It is the union shop steward who has "authority to settle or withdraw the grievance as a result of discussions of compromise in this [second] step." (Art. 15.2, G.C. Exh. 3 at 60.) Aside from Respondent's insistence that the Charging Party never did spell out why the requested material was germane and Respondent's rejection of the Union's asser- tion that the germaneness appears on the face of the re- quest for information (because of the implicit conflict of interest of even applicants for supervisory positions who, at the same time are shop stewards engaged in collective bargaining), Respondent also defends on six other grounds: (1) the Union's constitutional amendment, per se, or together with the requests for the names amounts to the Union's demand for Respondent to support the POSTAL SERVICE 689 Union's engaging in unlawful conduct , violating Section 8(b)(IXA) and (B), Section 8(b)(2) and (3), and Section 8(d) of the Act. The information' therefore requested would be a request for information for unlawful purposes and for the divulgence of which there is no obligation under Section 8(a)(5). (2) Respondent is not obligated to enforce an internal union rule under the guise of a re- quest for information . (3) The request for information was so ambiguous that it could not impose a legal obliga- tion on the Postal `Service to provide the information under Section 8(a)(5). (4) The information requested was both confidential under the Act and privileged under the Federal Privacy Act. (5) The ULP charges relating to the request's for- information should be deferred to the grievance-arbitration provisions of the "existing collec- tive-bargaining agreement. The General Counsel and the Charging Party argue that although the Employer has the exclusive authority to choose its supervisors, the Union has the sole power to determine who will be its representatives for griev- ance handling and contract administration . The Charging Party argues that the Union's decision to exclude from its collective-bargaining representatives those persons who are actively and voluntarily seeking promotion to supervisory positions is a lawful union exercise of its right to choose its own collective-bargaining representa- tives. The Union argues that there is a necessary, result- ing conflict of interest if the shop steward is to perform his constitutional and statutory obligation in a manner to- tally committed to the interest of a grieving unit employ- ee. Further, the Union argues that the information is rel- evant, not requested in bad faith, and is based on a desire on the part of the Union to function effectively for its membership. The Union asserts that there is no counter- vailing showing of a protected interest that would excuse the failure to disclose (U. Br. at 8). IV. DISCUSSION AND CONCLUSION A. The Prima Facie Case (1) Pursuant to an otherwise lawful amendment to an otherwise lawful constitution, whereby the Union has ex- pressed its opposition to having its collective-bargaining agents, i.e., its shop stewards and officers , even apply for consideration as low-level supervisors , the Union has submitted the names of its stewards and officers serving at the Royal Oak and Detroit MSCs and asked Respond- ent to identify which of the listed stewards and officers have applied for supervisory status. Athough Respondent argues that the Union's use of the term "roster" and Till- man's conversation with Respondent's representatives show that the Union was seeking verification only for the names on the "PASS Work Book" roster, I reject these arguments . Crediting Tillman's testimony, I find that, at all material times, he was under the mistaken im- pression, notwithstanding his long tenure of union offi- cership, that all of Respondent's supervisory-listed names appeared on a single roster . I conclude that he was seek- ing verification of the names of all unit employee stew- ards and officers who were supervisory applicants. I reject Respondent's suggestion that Tillman was a "liar" because, as Tillman candidly admitted on the witness stand, he thought that there was only one listing of names and that was on a single "supervisory eligibility roster." I conclude, therefore, that regardless of his con- versations and communications identifying only the "su- pervisory eligibility roster," Tillman was effectively re- questing from Respondent verification and identification of the submitted names of applicants in any of Respond- ent's record, whether on the "PASS Work Book" roster or in Respondent's other records in the Royal Oak and Detroit MSCs. Other than counsel's arguments at the hearing and in brief, I find no evidence, whether by ob- servation of Tillman's demeanor or otherwise, that Till- man was in any way a dishonest witness or that Re- spondent was misled into believing that the Union's re- quest was restricted only to names on the PASS roster because only the PASS program has a "roster." (2) Concerning the relevancy of the requested informa- tion, I reject Respondent's argument that the General Counsel has failed to show the requested information to be "relevant" because there is no necessary conflict of interest, or even potential conflict of interest, arising out of a shop steward or union officer's collective-bargaining fiduciary obligations, on the one hand, and, on the other hand, his desire to become a supervisor, so far manifest- ed that he has voluntarily requested Respondent to con- sider him for a supervisory position. The record shows that shop stewards participate in the presentation and solution of grievance on behalf of unit employees. As such, the shop steward, a union fiduciary, is actively engaged in the collective-bargaining process. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. C & C Plywood Corp., 385 U.S. 421 (1967). In the present case we are not presented with the question of whether the Union, absent a contract right, has a statutory right to information regarding the Em- ployer's otherwise secret roster of employees whom it is considering as supervisors (especially when, by contract, as here, Respondent has the contract right solely to select and promote to supervisory positions); rather, the Union here merely seeks information concerning its stewards and officials (entrusted with representing the Union in the collective-bargaining process) who have voluntarily applied to Respondent to become Respond- ent's supervisors. Thus, if Respondent maintained a unilaterally derived, secret list of employees who were being considered for promotion to supervisor, the Union, in my judgment, would not have rights to this information even if union officers or shop stewards were on the lists and notwith- standing any union constitutional provision forbidding such allegedly duplicitous conduct. This would result be- cause the steward or official would not know he was being considered for a supervisory position and would not be subject to any self-imposed desires, in executing his fiduciary duties, to avoid alienating the employer. But when, as here, the shop steward or officer, a union fiduciary engaged in collective bargaining, has voluntari- ly applied for promotion, thus signaling to Respondent a supervisory interest, the Union, especially when it has announced a contrary policy, has a right, if not an obli- gation, to secure information from Respondent concern- 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing what appears to be at least a potential , serious con- flict of interest. Under Section 8(a)(5), the question is whether the re- quested information is relevant to a duty owed by the Union in the representation of its members . Electrical Workers IBEW v. NLRB, 648 F.2d 18 (D.C. Cir. 1980). By virtue of Section 7 of the Act, employees are guar- anteed the right to bargain collectively through repre- sentatives of their own choosing, Bausch & Lomb Optical Co., 108 NLRB 1555, 1557 (1954). The Union's shop stewards and officers, as the collective-bargaining agree- ment grievance-arbitration provisions clearly demon- strate, directly engage in collective bargaining in regard to local collective-bargaining agreements; and the shop stewards are also directly engaged in the collective-bar- gaining process of representing employees in the adjust- ment of grievances. E.E.E. Co., 171 NLRB 982 (1968); Nassau & Suffolk Contractors Assn., 118 NLRB 174 (1957); Welsbach Electric Corp., 236 NLRB 503, 511 (1978), enfd. 603 F.2d 214 (2d Cir. 1979). In executing these collective-bargaining functions, they must be free from those "subtle pressures which tend to interfere with [the] obligation to promote and protect the interest of employees he is representing." St. Louis Labor Health In- stitute, 230 NLRB 180, 182 fn. 9 (1979). Section 8(a)(5) requires an employer to recognize the agents of its employees' collective-bargaining representa- tive. Howland Hook Marine Terminal Corp., 263 NLRB 453, 454 (1982). The choice of those agents, under Sec- tion 8(a)(2) of the Act, must be free from employer influ- ence, Machinsts v. NLRB, 311 U.S. 72, 80 ( 1940), and an employer may not permit his supervisors, even low-level supervisors, to participate as union representatives in the collective-bargaining process. Nassau & Suffolk Contrac- tors Assn., supra; Welsbach Electric Co., supra; Mon River Towing v. NLRB, 421 F.2d 1 (3d Cir. 1969). The rule is that the choice of representatives is solely an internal affair for the union, Howland Hook Marine Terminal Corp., supra, 263 NLRB 453, Oates Bros., 135 NLRB 1295, 1297 (1962); St. Joseph's Hospital, 269 NLRB 862 (1984), absent "extreme" special circumstances, Electrical Workers IBEW Local 1212 v. NLRB, 557 F.2d 995, 998- 999 (2d Cir. 1977), such as when the union may not re- quire the employer to bargain with it when the union owned a business in direct competition with the employ- er, Baush & Lomb Optical Co., 108 NLRB 1555 (1954). When the employer seeks to justify an exception to this rule, the employer "clearly undertakes a considerable burden [and must show] a `clear and present danger' to the collective-bargaining process." Electrical Workers IBEW Local 1212 v. NLRB, supra, 557 F.2d 999, citing General Electric Co. v. NLRB, 412 F.2d 512, 517 (2d Cir. 1969). In terms of what information must be disclosed by Re- spondent to the Union as bargaining agent, the Board has recently restated the general rules in Southern Nevada Home Builders Assn., 274 NLRB 350, 351 (1985): Section 8(a)(5) and (1) of the Act obliges an em- ployer to provide a union requested information if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties as the employees' exclusive collective-bar- gaining representative, NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967) ... . Respondent's apparent principal objection with regard to the sufficiency of proof of the prima facie case, i.e., the relevance of the material requested (aside from the scope of the material requested, which scope I have de- termined, supra, to be the names of stewards and officers submitted by the Union for corroboration and verifica- tion from Respondent's supervisory applicant files) is that the supervisory applicants on the various Respond- ent rosters and files are not supervisors and are not clothed with the statutory powers of supervisors. Indeed, Respondent points out that, because of management de- vices, the applicants do not know where they stand with regard to Respondent's rating of them or the supervisory list and what their potential is for becoming supervisors. I reject this argument. Voluntary applicants, uncertain of Respondent's reaction to them, might well feel obliged to curry favor with Respondent by performing their fiduci- ary jobs so as not to antagonize Respondent 's supervisors who, directly or indirectly, could bring to bear pressure in the selection process and who might be unsympathetic to a too diligent shop steward. I thus reject Respondent's argument that the requested information loses relevance because the applicants for supervisory positions are not actually supervisors. I also reject Respondent's argument that supervisors in the selection process, through internal organizational mechanisms being insulated from the rating of the applicants, there is no likelihood of such pressure. Without passing on the adequacy of any such institutional, internal insulation, I believe it is the em- ployee's fears and the applicant's speculation which are pertinent rather than the effectiveness of any insulating devices. I conclude, therefore, that, prima facie, the informa- tion, regardless of any contractual right, is presumptively relevant because the information requested goes to the very heart of the collective-bargaining process: that is, a free collective-bargaining process cannot exist if the rep- resentatives of a union have a conflicting or potentially conflicting interest. Thus, this right to information is not derived from the right to information necessary to the processing of some grievance or the interpretation of a contract, NLRB v. Acme Industrial Co., supra, 385 U.S. 432, 435-436 (1967). This is a right to information de- rived not from contract but from the statutory (Sec. 7) right and obligation of the Union to function through its freely chosen representatives. Even further, here, in addition, the collective-bargain- ing agreement, at all material times, explicitly vests in the stewards the right to represent the employees in the presentation and solution of grievances on the shop floor. The fiduciary obligation to represent employee interests, and only employee interests, flows from the statute and is supported by the defined, particularized contractual rights awarded to shop stewards. Once this statutory right, as opposed to a mere contractual right, to the names of the shop stewards and officers is in legal focus, it follows, I believe, that the Union not only has a right to this information (its stewards and officers who have POSTAL SERVICE voluntarily applied to become Respondent's supervisors), but that it would violate its duty of fair representation under Section 8(b)(1)(A) of the Act, if, knowing of this potential conflict of interest among its shop stewards and officers and knowing that Respondent maintained lists of applicants from this source, it failed to request this infor- mation from Respondent to protect its innocent grievants who rely on shop stewards to represent them and their interest wholly and with unconflicted minds and hearts. Compare St. Louis Labor Health Institute, 230 NLRB 180, 182 fn. 9 (1977) and Electrical Workers IBEW (Wes- tinghouse Electric) v. NLRB, supra, 648 F.2d at fn. 5, with ITT Arctic Services, 238 NLRB 116 (1978). This result can be readily foreseen (though that case is not before us) because even if the Union were content to have its shop stewards and officers voluntarily place themselves in such a potentially conflicted position, yet individual unit employees might well not be content to be represented in disciplinary grievance proceedings by shop stewards who, having voluntarily placed them- selves on the supervisory lists, might be apprehensive of offending Respondent's supervisory hierarchy by "overly diligent" stances in the prosecution of employee griev- ances. Thus, if the Union, at the demand of a unit em- ployee, failed to secure this information , it would appear to me to separately violate the Union's statutory obliga- tion to fairly represent unit employees. B. Respondent 's Defenses (1) Respondent defends on the ground that the request for information be deferred to the grievance-arbitration machinery under the collective-bargaining agreement. The settled Board rule is to the contrary. Requests for information, otherwise required under Section 8(a)(5) of the Act, are not to be deferred to the grievance-arbitra- tion process. United Technologies Corp., 274 NLRB 504 (1985). (2) Respondent defends on the ground that the re- quested information might easily be secured by the Union inquiring of its own shop stewards and officers about whether they have made application for superviso- ry positions. The availability or nonavailability of the in- formation from the shop stewards and officers is irrele- vant to Respondent's obligation to furnish the informa- tion, Columbus Maintenance Co., 269 NLRB 198 (1984); and it is also not a defense that the shop stewards would refuse or have refused to disclose this information to the Union, NLRB v. Jaggars-Chiles-Stovall, Inc., 639 F.2d 1344 (5th Cir. 1981). (3) Respondent defends on the ground that the infor- mation was closely held and indeed confidential. In Washington Gas Light Co., 273 NLRB 116 (1984), the Board noted that the Supreme Court, in NLRB v. Detroit Edison Co., 440 U.S. 301 (1979), held that the union's in- terest in arguably relevant information does not always predominate over all other interests. Rather, the Court indicated that in determining the employer's duty to supply information when it is allegedly confidential re- quires a balancing of the union 's need for the information against the legitimate and substantial confidentiality inter- ests of the employer. The party asserting the claim of confidentiality has the burden of proof. In the instant I 691 case, where balancing would be required , the Union's need to know to function at all as bargaining representa- tive under the statute, it seems to me, far outweighs any confidentiality which Respondent ascribes to the lists and rosters of voluntary applicants for its supervisory posi- tions. Moreover, a dispositive factual parallel exists between the instant case and Washington Gas Light Co., supra, in that, as the Board noted in that case , the employer unlike Detroit Edison, supra never informed the employees that their files were confidential and the employees never re- quested a confidential policy with regard to the informa- tion in the records (disciplinary records). In the instant case, there is no suggestion on this record that the Re- spondent informed the employees that the files were to be confidential nor did the applicants request confiden- tiality in their applications. This distinction, as the Board noted, makes the case "fundamentally different" from Detroit Edison when the employer promised the employ- ees that the information requested would remain private. Thus, here, both on a weighing basis and on the failure of the record to demonstrate an employer assurance of, or employee request for, confidentiality, the rule in De- troit Edison is not applicable and the information cannot be considered "confidential" within the meaning of Sec- tion 8(a)(5) of the Act. Furthermore, as noted below in the discussion of the Privacy Act defense, Respondent has explicitly warned its applicants that information submitted may be divulged to the Union. (4) Respondent defends on the ground that to divulge this information would cause the Union to violate Sec- tion 8(b)(1)(A), (B), (2), and (3) and Section 8(d) of the Act.2 Respondent argued (Tr. 128-129) at the hearing and again in brief that because Respondent has the acknowl- edged and undoubted contractual , unilateral right to select and promote employees to supervisory positions, the Union's passage of the constitutional amendment pro- hibiting its officers and stewards from serving while on the PASS roster or in Respondent's supervisory appli- cant files, per se or together with the present request for names, constitutes an unlawful unilateral act concerning a mandatory subject of bargaining in derrogation of the Union's obligation under Section 8(b)(3); and also consti- tutes an unalwful 8(d) midterm modification of the col- lective-bargaining agreement (Tr. 131) because the Union's actions interfere with the operation of Respond- ent's promotional procedures (Tr. 130). Respondent fur- ther asserts that the Union's constitutional amendment is, 2 I have already suggested , above, that, under the statute, the Union would violate Sec 8(b)(1)(A) of the Act (duty to represent fairly) if, knowing the facts, it failed to seek such listed supervisory information from Respondent with regard to its shop stewards and officers who vol- untarily sought supervisory status It should also be noted that Respond- ent has admittedly failed to file any charges against the Union with regard to violations of any of the provisions of Sec 8(b) of the Act Re- spondent is thus not being required to help enforce an internal union rule rather, the Union, regardless of its constitution, is attempting to secure mformatio'q to avoid being represented by persons who it deems will be subjected to conflicts of interest, undermining the Union's ability to per- form its most basic statutory function 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD itself, illegal in restraining the stewards and officers from seeking to reach the roster and thus cutting them off from future promotions in violation of Section 8(b)(1)(A) of the Act (Tr. 130). Respondent cites no authority to support its argument that the Union's constitutional amendment, itself, is ille- gal under the Act. Respondent has filed no charges against the Union regarding statutory misconduct in this matter. The Union is ordinarily free to name its officers and agents for collective-bargaining purposes and to draft and amend its own constitution, including standards for service as union officers and agents . Respondent has demonstrated no fact to show extraordinary circum- stances warranting an exception to this rule, Electrical Workers IBEW Local 1212 v. NLRB, 557 F.2d 995, 999 (2d Cir. 1977). Moreover, Respondent fundamentally misconceives the effect of what may be the anticipated ultimate result (but, on this record, the not yet effectuated result) of the grant of the Union's information request, i.e., the Union's disqualification of those stewards voluntarily on the PASS roster and supervisory lists from serving as union collective-bargaining agents. On the one hand, if shop stewards of union officers who have voluntarily placed themselves on the rosters or lists elect to reliquish union office and remain on the lists for supervisory consider- ation, Respondent cannot complain that Respondent's contractual right to promote has been invaded merely because the employee is no longer a union agent. Re- spondent, on this record, has no right, contractual or statutory, to demand that the employee promotion pool contain union officers or stewards . Indeed, the argument would be quite supportable that Respondent would vio- late Section 8(a)(3) of the Act if it refused to consider or promote an otherwise promotable employee on the ros- ters or lists because the Union stripped him/her-for whatever reason-of a union agency. On the other hand, if a shop steward or officer, having voluntarily placed himself/herself on a supervisory roster, and having signaled to Respondent an aspiration to become a supervisor, elects (under union pressure) to prefer to remain a union officer or steward rather than to be considered for a supervisory position, Respondent suf- fers no loss from the pool of potential supervisors and the Union has imposed no unlawful choice because, as above noted, even Respondent's low-level supervisors may not engage in the collective -bargaining process on behalf of the Union.3 Nassau-Suffolk Contractors Assn., 118 NLRB 174 (1957); Welsbach Electric Corp., 236 NLRB 503 (1978); Mon River Towing v. NLRB, 421 F.2d I (3d Cir. 1969). Thus, the most that can be said is that here the Union will be giving its stewards and officers the choice of remaining union agents or being on the su- pervisory listings (rather than Respondent's giving them the same choice at the time of the promotion). The Union is not limiting an employee pool of potential su- pervisors; it is proscribing who will be its agents. s The Union is thus avoiding the question of whether, when, and to what extent any supervisor will be engaged in the collective-bargaining process. Thus, there is no statutory or contractual invasion herein of the Employer's right to name its own supervi- sors; and the Union's exclusion of applicants from serv- ing as union officers clearly does not prevent the Em- ployer's exclusive selection and promotion of any such employee to supervisory status. Therefore, there is no failure under Section 8(b)(3) of the Union's obligation to bargain on a mandatory subject of bargaining nor is there a violation of Section 8(d) of the Act in a midterm change of the contractual right of Respondent to select and promote supervisors. In Letter Carriers (Postal Service), 240 NLRB 519, 525 (1979), the Board held that a Postal Union's amendment to its constitution, even denying union membership, and all benefits incidental thereto, to unit members who vol- untarily chose to serve as temporary supervisors , did not violate Section 8(b)(l)(A) or (B), or Section 8(b)(3) of the Act.4 In Letter Carriers, supra, the Board additionally ruled on the question of whether a constitutional amendment that caused an existing temporary supervisor to resign from the union (without refund of pension contributions) results in the possible dimunition of the range of supervi- sors available to the employer and is thus a restraint on the employer's ability to freely select the supervisors it wishes to represent it for grievance adjustment and bar- gaining purposes. In the instant case, the applicants are not supervisors, the request for information has not caused anyone to resign, and the constitutional amend- ment does not require a supervisor to resign. The Board rejected that argument, Letter Carriers at 524. The Board even rejected the argument that a provision in the union constitution that eliminates temporary supervisors from membership in the union violates Section 8(b)(1)(A) be- cause the Act permits the union to prescribe rules "with respect to the acquisition or retention of membership" (Letter Carriers at 524). Lastly, Letter Carriers, supra, has dealt with the ques- tion of whether a union rule violates Section 8(b)(2) of the Act. The Board noted that in Scofield v. NLRB, 394 U.S. 423, 429-430 (1969), in which the union rule for- bade a union member's right to earn additional wages beyond a "ceiling rate" set by the parties during collec- tive-bargaining negotiations, the Supreme Court held that the enforcement of he union rule, an internal union matter, had an impact beyond the confines of the union or- ganization. In Scofield, as the Board notes, the Court con- cluded that the onerous choice of some employees not earning wages above the ceiling rate (which choice re- sulted in differences between union members an other 4 The Board in that case distinguished Electrical Workers IBEW Local 2222 (New England Telephone), 236 NLRB 1209 (1978), and Communica- tions Workers Local 1122 (New York Telephone), 226 NLRB 97 (1976), when the Board found that the union violated Sec. 8(b)(l)(A) and (B) and Sec 8(b)(3) by promulgating and enforcing a rule which , contrary to the collective-bargaining agreement and the practice of the parties, pro- hibited members from accepting positions as temporary supervisors. In the instant case the Union is not prohibiting members from accepting po- sitions as temporary supervisors or any other position, nor is it impeding members from placing themselves on the rosters It is at this time merely seeking information and may ultimately offer stewards and officers (not merely union members) the choice of being on a supervisory list or serv- ing as a union agent. POSTAL SERVICE 693 employees) raised no serious issue under Section 8(b)(2) and (3) of the Act because the union had not "induced the employer to discriminate against the member but has merely forbidden the member to take advantage of bene- fits which the employer stands willing to confer." That is the most that can be said of the Union's present conduct. In the instant case, the Union has not penalized the employee-member in the earning of wages or even in union membership; rather, it has only requested informa- tion and may hereafter merely give the union officer or agent the choice of giving up his union agency or offi- cership and remaining a potential supervisor on the one hand; or, while remaining a union agent, surrendering his right to apply for or serve as a Respondent supervisor. Thus, in the instant case, even stronger than in Scofield, there is no discrimination or attempted discrimination by the Union with regard to the employees' terms and con- ditions of employment. In sum, I conclude that Respondent has failed to show and the record is free from any suggestion that the Union, in effectuating its constitutional amendment alone, or in conjunction with the request for information, will violate or is violating Section 8(b)(1)(A) or (B) or Sec- tion 8(b)(2) or (3) or Section 8(d) of the Act. (5) The Privacy Act defense: Respondent also defends under the provisions of the Privacy Act of 1974, 5 U.S.C. § 552(a), Public Law 93-579, 88 Stat. 1896. Respondent has asserted the Privacy Act as a defense to the obligation to supply the requested information from the very inception of its correspondence. It also has alluded to the Privacy Act as a defense during the hear- ing (Tr. 136-140). Respondent also continues to defend on the Privacy Act ground (in additional to the confi- dential ground) in its brief (R. Br. 34, et seq.). Section 552(a)(b) provides: No agency shall disclose any record which is con- tained in a system of records by any means of com- munication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains unless disclosure of the record would be [12 specific exceptions]. The definition of the term "agency" found in Section 552(e) of Title 5 includes "any government corporation, government-controlled corporation or other establish- ment in the executive branch of the government . . . or any independent regulatory agency." Title 39, Section 201 (Postal Reorganization Act, 39 U.S.C. § 101 et seq.), provides that: There is established, as an independent establishment of the executive branch of the government of the United States, the United States Postal Service. It is thus clear that the Postal Service, an "independ- ent establishment of the executive branch," is a Govern- ment agency under Section 552(e) as defined in the Pri- vacy Act of 1974. Additionally, on this record, there is no proof any ap- plicant has filed a written request with the Postal Service or given any written consent to the disclosure to the Union for the names requested by the Union so as to meet the condition in Section 552(a)(b), above. For purposes of definition , the Privacy Act also de- fines the term "record" as: Any item, collection, or grouping of information about an individual that is maintained by an agency, including but not limited to, his education, financial transactions, medical history, and criminal or em- ployment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual. By virtue of Section 1209(a) of the Postal Reorganiza- tion Act, the National Labor Relations Act was made applicable to Postal Service employee-management rela- tions, Postal Service, 200 NLRB 413, 414 fn. 4 (1972). In Goodyear Atomic Corp., 266 NLRB 890 (1983), the Board held, inter alia, that the Privacy Act constitutes a defense to a request for information under Section 8(aX5) and (1) of the Act. One of 12 exceptions to the 552(a)(b) prohibition against disclosure is in (3): (3) [Unless disclosure of the record would be] for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this Section. Pursuant to Section 552(a)(e)(4) of the Privacy Act, Respondent is obliged to publish in the Federal Register an annual notice of "routine uses" of its records. In 47 F.R. 1199, 1202-1203 (Jan. 11, 1982), Respondent pub- lished certain "routine uses" of its records. Among the permitted disclosures pursuant to routine uses are: (5) Disclosure may be made from the record of an individual . . . in any legal proceeding to which the Postal Service is a party before a court or adminis- trative body. (6) Pursuant to the National Labor Relations Act, records from this system may be furnished to a labor organization upon its request when needed by that organization to perform properly its duties as the collective bargaining representative of postal employees in an appropriate bargaining unit. The PASS application rules (R. Exh. 1 at 1) carries on its face the following admonition: PRIVACY ACT: . . . This information will be used to consider employees for assignment and pro- motion. As a routine use, this information may be disclosed to . . . a labor organization as required by the NLRA .. . . Both in terms of Respondent's own acknowledged, published "rountine use" exception under the Privacy Act and its specific warning to applicants, information in Respondent's records may be disclosed, under the Na- 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Labor Relations Act, to the Union as a "routine use" exception to the Privacy Act.5 Respondent's failure and refusal to supply the submit- ted names to the Union violates Section 8(aX5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer subject to the jurisdic- tion of the National Labor Relations Act and the Nation- al Labor Relations Board. 2. The Unions are each a labor organization within the meaning of Section 2(5) of the Act. 3. American Postal Workers Union, AFL-CIO by virtue of Section 9(a) of the Act is the exclusive repre- sentative of all Respondent's employees in the following unit, appropriate for bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Respondent in the clerical craft, the maintenance craft, the motor vehi- cle craft, and the special delivery craft throughout its facilities in the United States; but excluding all other employees, guards, and supervisors as defined in the Act constitute an appropriate collective bar- gaining unit within the meaning of Section 9(b) of the Act. 4. Detroit District Area Local, American Postal Workers Union, AFL-CIO is the exclusive representa- tive of employees named in the Union in paragraph 3 in the Royal Oak and Detroit, Michigan Management Sec- tional Centers (MSC). 5. The Union's shop stewards and officers are union agents who engage in collective bargaining on behalf of the Union. 6. Respondent's refusal of the Detroit District Area Local's request that Respondent furnish to it the names of its shop stewards and officers who are voluntary ap- plicants for supervisory Respondent positions at the Royal Oak and Detroit, Michigan MSCs violates Section 8(a)(5) and (1) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER? The Respondent, U.S. Postal Service, Detroit and Royal Oak, Michigan, its officers, agents, successors, and assigns, shall 5 Although Respondent's brief prominently argues, and depends on, the prohibitions against disclosure in the Privacy Act, the above, pub- lished, "routine use" exception and the admonition appearing on the face of the PASS booklet are nowhere mentioned in the brief Whether this omission flowed from counsel's zealous advocacy or otherwise is not per- tinent to a reason, if any, why the "routine use" exception is not applica- ble Respondent's omission forces me to explore the point without benefit of his counsel s If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all put- Poses. 7 Goodyear Atomic Corp, 266 NLRB 890, 892 (1983) 1. Cease and desist from (a) Refusing to bargain collectively in good faith with American Postal Workers Union, Detroit District Area Local, AFL-CIO, as the exclusive bargaining representa- tive of Respondent's employees in an appropriate bar- gaining unit by refusing to furnish the Union the names of its shop stewards and officers who have voluntarily applied for consideration as Respondent's supervisors at the Royal Oak and Detroit, Michigan MSCs the names of such shop stewards and officers having been submit- ted to Respondent. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish to the Union the information it requested, as defined in paragraph 1(a), above. (b) Post at its Detroit and Royal Oak, Michigan Man- agement Sectional Centers and at all stations , branches, and associate post offices thereunder copies of the at- tached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's authorized rep- resentative, shall be posted by the Respondent immedi- ately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. a 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED By ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively in good faith with American Postal Workers Union, Detroit Dis- trict Area Local, AFL-CIO, as the exclusive bargaining representatives of our employees in an appropriate bar- gaining unit by refusing to furnish the names of all appli- cants, on lists submitted by the Union, who have volun- teered for supervisory positions at the Royal Oak and Detroit, Michigan Management Sectional Centers who are union shop stewards or officers. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. POSTAL SERVICE 695 WE WILL furnish to the Union the names of all appli- cants who have volunteered for supervisory positions who are union shop stewards or officers. U.S. POSTAL SERVICE