Operations In Fiscal Year 1988 - National Labor Relations Board

Enforcement Litigation 143The union filed charges with the Board alleging that the informationwas relevant to the performance of its collective-bargainingduties because union officers and stewards who had appliedfor supervisory positions would have a conflict of interest. Accordingto the union, stewards and officers in those circumstances"might compromise the rights of employees they representbecause of concern for the effect that their activities as stewardsor officers would have on the possibility of their promotion.""The Board (Member Johansen dissenting) agreed and orderedthe Postal Service to furnish the information requested tothe union."The Sixth Circuit affirmed the Board's conclusion that "thenames of union officials who have applied for Postal Service supervisorypositions was information relevant to the unions' representativeduties in collective bargaining and grievance proceedings."20 In so holding, the court emphasized that the "remarkablyminimal" standard applicable "merely requires the Board tofmd a `probability that the desired information [is] relevant . . .and that it would be of use to the union in carrying out its statutoryduties and responsibilities." 21 Noting that "employees areentitled to `be represented. . . by individuals who have a singlemindedloyalty to their interests," the court concluded that the"potential for divided loyalty," recognized by the Board in thiscase, "is not merely speculative."22 Given the importance of theimmediate supervisor's opinion in the decision whether to promotean employee applicant to supervisor, the court found that,when a union official has applied for such a promotion, "[t]hedesire for supervisor approval is likely to affect [the] union official'sability to represent the employees' interest." The court heldthat, because "Monflict of interest problems are difficult todetect by their very nature," they "necessitate preventative measures."Accordingly, the court affirmed "the Board's determinationthat the preventative information sought was relevant to theunion's duty to provide loyal representation."23Finally, the court rejected the Postal Service's defense that disclosureof the information would violate the Privacy Act, wouldsacrifice an overriding confidentiality interest, and would interferewith management's exclusive right to select supervisors. Thecourt held that disclosure pursuant to the National Labor RelationsAct comes within the "routine use" exception to the PrivacyAct, that the information sought is not sensitive, and that dis-12 Id. at 143.19 Postal Service, 280 NLRB 685 (1986).20 841 1.2d at 144.21 Ibid. (quoting, with emphasis added, E I du Pont & Co. v. NLRB, 744 F.2d 536, 538 (6th Qr.1984) (per curiam)), and NLRB v. Acme Industrial Co., 385 U.S. at 437.22 Id. at 145 (quoting Nassau & Suffolk Contractors Assn.), 118 NLRB 174, 187 (1957).23 Id. at 145-146.