The opinion of the court was delivered by: HAROLD H. GREENE
Before the Court is an application by the National Labor Relations Board (hereinafter NLRB) to enforce a subpoena duces tecum it issued directing the United States Postal Service to produce the names, addresses, and places of employment of its employees eligible to vote in an election to be conducted by the NLRB under section 9 of the National Labor Relations Act, 29 U.S.C. § 159. The Postal Service opposes the application arguing that compliance would violate the Privacy Act of 1974, 5 U.S.C. § 552a. The Postal Service is also bound by the National Labor Relations Act, however. The power of the NLRB to issue administrative subpoenas such as the one at issue is generally broad, and compliance with the subpoena would not be inconsistent with the Privacy Act. Accordingly, the subpoena will be enforced.
The Postal Service currently recognizes the Federation of Postal Police Officers (hereinafter the FPPO) as the exclusive collective bargaining representative for a unit of all postal police officers employed in the Inspection Service of the Postal Service. Approximately 1,400 uniformed employees in the Inspection Service enforce postal law and protect the mails and postal facilities nationwide. The Postal Service and the FPPO have entered into six collective bargaining agreements since 1976.
Last year the Fraternal Order of Police-National Labor Council (FOP-NLC) filed a representation petition, seeking to replace the FPPO as the exclusive bargaining agent for the Inspection Service employees. The Regional Director of the NLRB ruled that an election was appropriate so that the employees of the bargaining unit could decide, based on a secret ballot majority vote, whether to be represented by the FPPO or the FOP-NLC as their exclusive bargaining agent.
As part of its direction of an election, the NLRB required that the Postal Service provide a list containing the names and addresses of eligible employee voters. This is a so-called Excelsior list. See Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966). The purpose of the list is to allow the petitioning union to provide information to the employee voters and foster informed and free choices by the employees. See Excelsior Underwear, Inc., supra, at 1240-41; NLRB v. Hosiery Division-Hanes Corp., 384 F.2d 188, 191 (4th Cir. 1967).
The Postal Service contends that it cannot comply with the subpoena because the Privacy Act bars disclosure of personal information about federal employees without their consent. The Postal Service is governed by the Postal Reorganization Act of 1970, 39 U.S.C. § 101, et seq. Under the terms of the Postal Reorganization Act, the National Labor Relations Act applies to the Postal Service "to the extent not inconsistent" with the Privacy Act. 39 U.S.C. § 1209(a). The Privacy Act prohibits an agency from disclosing:
any record contained in a system of records by any person, . . . except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.
The Postal Service contends that the subpoena at issue does not fall within any exception to the Privacy Act and that therefore compliance would violate the Privacy Act which it cannot do under the terms of the Postal Reorganization Act.
The protections of the Privacy Act do not apply where records are to be released "for a routine use." Section 552a(b)(3). Under the provisions of the Privacy Act, each agency interprets what uses are "routine" within the meaning of the Privacy Act. Accordingly, the Postal Service has set out twelve circumstances ...