USPS Need Not Disclose Psych Tests to Union

     (CN) – The U.S. Postal Service was justified in refusing to let its workers’ union access the confidential test scores of 22 employees without written consent, the 1st Circuit ruled.
     Though the National Labor Relations Board had found that the union’s collective bargaining interests outweighed employees’ privacy interests, the Boston-based federal appeals court disagreed.
     In 2007, the USPS office in San Juan, Puerto Rico, hired 22 mail handlers out of thousands of applicants on the agency’s hiring register for the year. All candidates for the positions were required to take a psychological aptitude test, which measured their cognitive skills and personal characteristics to determine performance potential. The applicants’ test scores were listed in the hiring register, along with their name, date of birth, standing and other personal information.
     In response to an unfair employment complaint by veteran mail handlers, the National Postal Mail Handlers Union, Local 313, the exclusive bargaining agent for mail handlers in USPS’ Caribbean District, asked USPS for its 2007 hiring register information, including information concerning the 22 new employees.
     USPS refused to release the information without the workers’ written consent, arguing that it had a duty to protect employees’ personal information under the federal Privacy Act. And, though the Privacy Act’s “routine use” exception allows for record disclosure to labor organizations in some limited cases, USPS chose to condition disclosure of the test scores on employee consent.
     Rejecting USPS’ offer to supply a redacted version of the register, Local 313 filed an unfair labor practice charge under the National Labor Relations Act.
     In August 2008, an administrative law judge found in favor of the union and ordered USPS to provide it with the complete 2007 hiring register. The National Labor Relations Board later affirmed the decision but said USPS had to disclose information only about the 22 applicants it had actually hired.
     The NLRB rejected USPS’ contention that the routine-use exception did not obligate it to release personal information unconditionally. The board noted that USPS had not promised to keep scores confidential and in fact warned applicants with several Privacy Act notices that their scores could be released to labor unions for collective bargaining.
     When the board tried to enforce the order, USPS cited a 1979 Supreme Court ruling that says “a union’s interest in relevant information must accommodate other, competing interests, such as privacy.”
     Last week, the 1st Circuit agreed that privacy interests may limit the disclosure of sensitive personal information such as psychological test scores, even when they are relevant to collective bargaining.
     The court overturned the board’s finding that the 22 employees had no privacy interests at stake, because the Privacy Act notices and USPS’ Guide to Privacy clearly informed applicants that their test results were subject to disclosure to labor organizations.
     “The Privacy Act notices first reaffirmed to applicants that their information would be kept private, and then alerted them to possible, limited disclosures,” Chief Judge Sandra Lynch wrote for the court. “The notices did not wipe out all expectations of privacy.”
     The routine-use exception allows disclosure of relevant information to labor organizations, but it does not mandate such disclosure unconditionally, the order states.
     “Thus, the fact that information may be disclosed ‘as required by law’ does not itself defeat all expectations of privacy, nor does it create an expectation that the information will be disclosed automatically whenever it is relevant to a union,” Lynch added.
     “The board’s determination that the privacy notices eliminated the employees’ expectations of privacy misinterprets both the notices and the law.”
     Noting that the employees’ privacy interests must be weighed against the union’s interest in the information, the court refused to enforce the board’s ruling.

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