Postal Service

National Labor Relations Board - Board Decisions

Mar 15, 1993

310 N.L.R.B. 701 (N.L.R.B. 1993)

701
310 NLRB No. 107
POSTAL SERVICE
1 The Charging Parties and Intervenor reiterate within their excep-
tions a motion, denied by the administrative law judge, to reopen the
record to introduce additional evidence in Case 34–CA–4615. We
have considered this motion and the documents submitted in support
and agree with the judge’s ruling.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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.
3 The Respondent excepts to the judge’s finding that it violated the
Act by failing to provide information requested by Charging Party-
Stamford Local on the basis, inter alia, that it is the Intervenor, the
American Postal Workers Union, AFL–CIO (APWU), and not the
Stamford Local, that is the recognized representative of the employ-
ees and party to the collective-bargaining agreement. The Respond-
ent thus contends that it is obligated to provide the information only
to the APWU, and not to the Local. We agree with the judge’s rejec-
tion of this argument. While the APWU is party to the contract, art.
31 of that contract states that requests for information concerning
local matters are to be submitted by local union representatives. In
addition, the evidence discloses that the parties’ practice included the
exchange of information on the local level and that the Respondent
never asserted lack of standing by any of the Locals here involved
at the time it refused to provide the information at issue. Moreover,
it is within the discretion of the APWU, as exclusive representative,
to designate and authorize agents to act in its behalf. The APWU
has not disavowed these Locals’ efforts to obtain the disputed infor-
mation, but rather, by intervening in this proceeding and supporting
the Charging Parties’ positions, has clearly endorsed the authority of
the Locals to engage in these representational functions.
4 In adopting the judge’s recommended dismissal of allegations in
Case 34–CA–4510 relating to the Union’s request for copies of In-
vestigative Memoranda (IMs) and disciplinary actions regarding su-
pervisors, we do so on the basis that the credited evidence estab-
lishes that no IMs existed and no disciplinary actions were taken
against supervisors for drug-related activities. The grievance from
which the Union’s request was derived concerned the termination of
a unit employee for drug-related crimes. In order to establish a nexus
of relevance between the Union’s pursuit of that employee’s griev-
ance and its need for information regarding supervisors, it would be
necessary to show that there were supervisors about whom IMs
and/or disciplinary records existed for conduct similar to that for
which the unit employee was disciplined, i.e., drug-related activities.
Because there were no such similarly situated supervisors and, thus,
none of the requested records existed, it was not unlawful for the
Respondent to withhold supervisory IMs and disciplinary records
based on other conduct from the Union. Cf. Postal Service, 301
NLRB 709 fn. 2 (1991).
5 Postal Service, 310 NLRB 391 (1993).
United States Postal Service and New London, Con-
necticut Area Local No. 646, American Postal
Workers Union, AFL–CIO and Stamford, Con-
necticut Area Local, American Postal Workers
Union, AFL–CIO and Local 147, American
Postal Workers Union, AFL–CIO and Amer-
ican Postal Workers Union, AFL–CIO, Inter-
venor. Cases 34–CA–4423(P), 34–CA–4510(P),
34–CA–4615(P), and 34–CA–4731(P)
March 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On October 25, 1990, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief, the Charging Parties and Intervenor filed
exceptions and a supporting brief,1 and the Respondent
filed cross-exceptions and brief in support and replies
to both the Charging Parties’ and Intervenor’s excep-
tions and to the General Counsel’s limited exceptions.
The Charging Parties and Intervenor also filed a reply
to the Respondent’s exceptions. The Charging Parties
thereafter filed five separate notices of recent authority.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt his recommended Order.
In each of these consolidated cases the Respondent,
United States Postal Service, is alleged to have vio-
lated Section 8(a)(5) and (1) of the Act by failing and
refusing to provide information requested by the
Charging Party-Unions, three locals of the American
Postal Workers Union, AFL–CIO. The judge found
that the Respondent violated the Act: (1) in Case 34–
CA–4510 by refusing to supply Charging Party-Stam-
ford Local3 with information it requested regarding
former unit employee Bryan Ewell; (2) in Case 34–
CA–4615, by delaying nearly 5 months in providing
the Stamford Local with the names and various sup-
porting information and documentation it requested
concerning the restricted sick leave status of its own
unit employees; and, (3) in the same case, by refusing
to provide the Stamford Local with the names and var-
ious supporting information and documentation con-
cerning the restricted sick leave status of employees
represented in other bargaining units. The judge dis-
missed all other allegations.
We agree with the judge’s recommended disposition
of the issues raised in the consolidated complaint.4 In
adopting his recommendation that we dismiss the alle-
gations in Case 34–CA–4731, however, we believe it
would be useful to explain our reasons for doing so by
reference to another decision, recently issued,5 in
which the Board found a violation on the basis of a
Section 8(a)(5) refusal-to-supply-information allegation
similar to the one we are dismissing here.
A. Factual Findings
On January 30, 1990, Arlene Vanasse, an employee
of the Respondent and represented by the APWU
through one of its local affiliates, Local 147 (the
Union), received a notice of removal for failure to re-
port to work as scheduled. The notice cited five in-
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Specifically the notice referred to 11 days on which she was ab-
sent without excuse and 5 days on which she was late to work with-
out excuse.
7 Morris was referring to NLRB v. Postal Service, 888 F.2d 1568
(11th Cir. 1989), enfg. 289 NLRB 942 (1988), in which the union
sought information about possible disciplinary action against super-
visors who were found guilty of engaging in worksite gambling with
bargaining unit members. The information was sought in support of
grievances over discipline of the unit members involved in the gam-
bling.
8 The judge described ‘‘two reasons’’ for recommending dismissal
of the 8(a)(5) allegation—(1) that there was no ‘‘nexus between the
discipline of Vanasse and the possible discipline of supervisors’’ and
(2) that the Union had proferred no basis beyond ‘‘mere suspicion’’
concerning possible leave abuses by supervisors and thus had not
sustained its burden of proving the probable relevance of the re-
quested information. We disavow any suggestion that there are sepa-
rate issues of ‘‘nexus’’ and ‘‘relevance.’’
9 Sheraton Hartford Hotel, 289 NLRB 463 (1988); Pfizer, Inc.,
268 NLRB 916, 918 (1984), enfd. 763 F.2d 887 (7th Cir. 1985).
10 Sheraton Hartford Hotel, supra, 289 NLRB at 464; Southern
Nevada Builders Assn., 274 NLRB 350 (1985).
stances of tardiness and five instances of unexcused
day-long absences during the period October 21, 1989,
through January 27, 1990.6 It also referred to five dis-
ciplinary warnings or suspensions for similar conduct
from May 1987 through August 1989.
The Union filed a class action grievance, dated Feb-
ruary 12, 1990, on behalf of Vanasse and all APWU
members. The grievance alleged disparate treatment by
the imposition of stricter attendance and disciplinary
standards on unit employees as compared to super-
visors. In conjunction with the grievance, Joseph Mor-
ris, the Union’s steward at the mail facility at Bradley
International Airport in Connecticut, made two re-
quests for certain information about 19 of the Re-
spondent’s supervisors working either at the airport fa-
cility or at a facility in downtown Hartford. The re-
quests were for the supervisors’ leave records (Form
3792) and records of any disciplinary actions that
might have been taken against them for leave abuse or
other attendance problems. (The requests were for all
such records during the time period September 1,
1988, through February 2, 1990.) The Respondent de-
nied the requests.
In making the first request (for the records of 12
named supervisors), Morris told the Respondent’s rep-
resentative, William Edgar, that the Union believed
that the Respondent had to supply such information
because of the recent court enforcement of a Board
order against the Respondent in an information-request
case,7 and that the Union ‘‘felt’’ that there were super-
visors ‘‘who were not regular in attendance.’’ Morris
also reminded Edgar that all of the Respondent’s em-
ployees, supervisors as well as bargaining unit employ-
ees, were subject to time and attendance requirements
set out in sec. 666 of the Respondent’s Employees and
Labor Relations Manual (known as ELM). In making
the second request (for the records of an additional
seven supervisors), Morris told Edgar the new names
were the result of ‘‘an appeal made at a union meeting
for the names of additional supervisors that had had
prolonged absences.’’
B. Discussion
The critical question here is whether the judge was
correct in finding that the information requested by the
Union was not relevant to its role in processing the
grievance resulting from Vanasse’s removal notice.8
The judge noted that the information about supervisors
was not presumptively relevant because it concerned
individuals outside the bargaining unit. Thus, the bur-
den was on the Union (and, in the unfair labor practice
hearing, on the General Counsel) to demonstrate rel-
evance.9 As we have held in Postal Service, 888 F.2d
1568, supra, information about disciplinary actions (or
the lack thereof) taken against supervisors for par-
ticular conduct may be relevant to a grievance about
discipline against unit employees for the same conduct,
where it is shown that both groups are subject to the
same prohibitions or requirements. The union might
use such information to make a disparate treatment ar-
gument to an arbitrator in support of a claim that the
discipline of a unit employee was too harsh. As the
judge here correctly observed, however, the burden of
demonstrating relevance is not carried by a showing of
a common disciplinary standard and a ‘‘mere sus-
picion’’ that there may exist some evidence of super-
visory misconduct similar to that involved in the griev-
ance.10
Whether a union has gone beyond ‘‘mere sus-
picion’’ to show relevance is a factual question to be
decided on a case-by-case basis. Relevance was estab-
lished in Postal Service, 888 F.2d 1568, supra, because
it was undisputed not only that supervisors and unit
employees were all subject to the same gambling pro-
hibitions, but also that they had engaged together in
precisely the same misconduct. Similarly, in Postal
Service, supra, the Board found that a union which was
grieving two unit employees’ discipline for attendance
irregularities, including tardiness, had cited sufficient
specific information to establish the relevance of re-
quests for the leave records of two named supervisors.
The union had identified several individuals (including
the union steward) who had personally witnessed in-
stances of supervisors reporting in late on specified
days within a time period comparable to that in which
the unit employees’ alleged irregularities had occurred.
While there may have been some extenuating cir-
cumstance to excuse the supervisors’ tardiness, this in-
formation was sufficiently indicative of probable rel-
703POSTAL SERVICE
11 Our standard does not, therefore, require the Union to prove ac-
tual disparate discipline in order to obtain information bearing on
such a claim.
1 Unless otherwise indicated, all dates referred to herein are for the
year 1989.
2 General Counsel’s motion to strike attachments to Respondent’s
brief dated August 28, 1990, is granted. As set forth by General
Counsel in his motion, the attachments to Respondent’s brief were
never received into evidence and are therefor not a part of the record
herein. Additionally, what is entitled ‘‘Motion of the Charging Par-
ties and the Intervenor to Reopen the Record’’ is actually a
posthearing attempt to have certain evidence, not adduced at the
hearing, considered by me. This ‘‘motion’’ is denied and the infor-
mation contained therein, and in the accompanying affidavit, will not
be considered.
evance to a disparate treatment argument that the
Board deemed the Union entitled to the information.11
By contrast, here the Union advised the Respondent
of nothing more than that, at a union meeting, employ-
ees had furnished supervisors’ names in response to an
appeal for the names of those who had had ‘‘prolonged
absences.’’ In elaborating, at the hearing in this case,
on the Union’s basis for requesting the information,
Union Steward Morris testified merely that ‘‘it’s re-
ported that they [the supervisors] miss a lot of time’’
and that stewards at the downtown Hartford facility
had produced names in response to a request con-
cerning those supervisors ‘‘that they felt may border
on being abusers of time and attendance . . . .’’ These
kinds of vague, general reports, not linked to a specific
time period and dependent largely on unnamed wit-
nesses’ subjective judgments about what might ‘‘bor-
der’’ on leave abuse, amount to nothing more than a
showing that people were suspicious that supervisors
might have engaged in misconduct similar to that for
which a unit employee was being disciplined. It falls
short of a showing of relevance.
Accordingly, we adopt the judge’s recommendation
that the Respondent did not violate Section 8(a)(5) and
(1) of the Act by declining to provide the requested
records of the 19 supervisors.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United States Postal Serv-
ice, New London, Connecticut, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Thomas R. Gibbons, Esq. and John S. F. Gross, Esq., for the
General Counsel.
Andrew L. Freeman, Esq., Francis Bartholf, Esq., and Nancy
James, Esq., for the Respondent.
Susan L. Catler, Esq., for the Charging Parties.
DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on March 19 and July 9, 1990, in Hartford,
Connecticut. The charge in Case 34–CA–443(P) was filed on
August 29, 1989,1 by New London, Connecticut Area Local
646, American Postal Workers Union, AFL–CIO (Local
646). The charges in Cases 34–CA–9510(P) and 34–CA–
4615(P) were filed on November 15 and February 7, 1990,
by Stamford, Connecticut Area Local, American Postal
Workers Union, AFL–CIO (Stamford Local). The charge in
Case 34–CA–34–CA–4731(P) was filed on May 11, 1990, by
Local 147, American Postal Workers Union, AFL–CIO
(Local 147). The complaint in Case 34–CA–4423(P) is used
on October 13; the complaint in Case 34–CA–4510(P) issued
on December 28, as did an order consolidating it with Case
34–CA–4423(P). The complaint in Case 34–CA–4615(P)
issued on March 29, 1990, and the complaint in Case 34–
CA–4731(P) issued on May 24, 1990. The first three of these
cases were consolidated by an order consolidating cases
issued by me on April 5, 1990; Case 34–CA–4731(P) was
consolidated with the other cases by an order consolidating
cases issued on June 22, 1990. Each of the complaints al-
leges that the respective union-charging parties requested cer-
tain information from the United States Postal Service (Re-
spondent), which information was relevant and necessary to
it as the representative of certain of Respondent’s employees,
and that Respondent failed and refused to provide the unions
with this information, in violation of Section 8(a)(1) and (5)
of the Act. For the sake of simplicity, after some introduc-
tory matter, each case will be discussed separately. On the
entire record, including my observation of the witnesses and
the briefs received, I make the following2
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that the Board has jurisdic-
tion over Respondent by virtue of Section 1209 of the PRA.
II. LABOR ORGANIZATION STATUS
Respondent admits that the American Postal Workers
Union, AFL–CIO (APWU) is a labor organization within the
meaning of Section 2(5) of the Act. The consolidated com-
plaint also alleges that Local 646, Local 147, and the Stam-
ford Local are each labor organizations within the meaning
of the Act; this Respondent denies. Although this issue was
not fully litigated, the evidence establishes that each of these
unions files grievances with Respondent regarding action that
Respondent has taken against its members, represents these
members in their grievances while they are still at the local
level, requests information from Respondent when it feels
that it needs information in order to properly represent these
employees and, in the past, has received this information
from Respondent. The evidence also establishes that APWU
has no representative in the area on a regular basis. I therefor
find that Local 646, Stamford Local, and Local 147 are each
labor organizations within the meaning of Section 2(5) of the
Act.
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Form 3972 is a form maintained by Respondent which lists the
employee’s leave usage (of all types) over a period of time.
4 Executive, salaried, and managerial employees.
5 Received into evidence was a decision of Arbitrator Herbert
Marx Jr., dated June 11, 1984, involving Respondent and APWU
and the issue of timeliness of a grievance. Arbitrator Marx decided
that the 14 days begin running when either the employee or the
union first learns of the grievance cause.
III. THE UNIONS’ AUTHORITY
Counsel for Respondent, in his brief, argues that the Stam-
ford Local ‘‘lacks standing’’ to raise the claims involved in
this matter. Counsel for Respondent correctly points out that
the contract is between Respondent and APWU and that the
powers given by this contract to the local unions are ex-
tremely limited. However I do not believe that this contract
was meant to exclude the APWU local unions from request-
ing information from Respondent (in fact, the record estab-
lishes that this has been the practice between the parties), or
from instituting actions before the Board for the failure to
provide such information. It appears that although the con-
tract gives only very limited authority to the local unions, be-
cause the APWU does not regularly have its representatives
in most areas where Respondent’s facilities are located, it is
the local unions that perform the functions of administering
the contract on a day-to-day basis. For example, article 31
of the contract provides: ‘‘Requests for information relating
to purely local matters should be submitted by the local
union representative to the installation head or his designee.’’
Additionally, the two complaints referred to by counsel for
Respondent in this defense, state that the information re-
quested is necessary for, and relevant to, the local and
APWU’s performance as the representative of these employ-
ees. I therefor reject Respondent’s defense that the Stamford
Local lacks standing to raise these claims.
IV. CASE 34–CA–4423(P)
John Longo is the chief steward for Local 646; on August
11 he sent to Respondent a request for information con-
taining three items. The first was for ‘‘All 397s3 for all
EAS4 New London personnel, current year.’’ The remaining
requests were for information regarding bargaining unit em-
ployees represented by Local 646. On August 14 Respondent
provided the information on the latter two requests, but re-
fused to provide the information requested about the EAS
employees: ‘‘This info is not available as EAS employees are
nonbargaining employees.’’ On August 15 Longo wrote to
Donald Hargy, the New London postmaster, stating that he
had not received all the information he requested on August
11, stating: ‘‘I intend to compare bargaining and non-bar-
gaining employee leave records in my investigation of your
sick leave control program to insure equitable application. I
am repeating request.’’ He was never given the documents
he requested for the EAS (nonbargaining unit) employees.
Longo testified that he made this request because in early
August Hargy: announced a sick leave discussion and attend-
ance program and he made his requests ‘‘to find out more
about it.’’ On cross-examination Longo testified that as a re-
sult of Hargy’s program, several bargaining unit employees
had discussions with their supervisors regarding their sick
leave, but the contract provides that discussions do not con-
stitute discipline and there is no right to grieve a discussion.
Additionally, no employee was disciplined as a result of any
of these discussions. Longo also testified that Respondent’s
Employees and Labor Relations Manual (the ELM) contains
general leave and attendance provisions that apply to all em-
ployees, bargaining employees as well as EAS, but it does
not specify the discipline for violating and of these rules.
V. CASE 34–CA–4510(P)
The request for information that was involved in this mat-
ter was sent by Vincent Corso, vice president of the Stam-
ford Local, to Thomas Guerra, Respondent’s director em-
ployment and labor relations, by request dated August 24.
This request, which was in response to the termination of
unit member Bryan Ewell, requested, inter alia, the following
information: ‘‘Provide copy of I.M. from postal inspectors
which pertain to the following employees.’’ There follows a
listing of Ewell and seven supervisory employees. The Re-
quest also asks for: ‘‘All disciplinary records of [these] em-
ployees and or reasons as to why such employees were not
disciplined for their violations.’’ IM is an investigative
memorandum prepared by Respondent, which contains state-
ments of witnesses and summaries of these statements, re-
garding a situation that they investigated. Ewell’s notice of
removal is dated July 7 and states that he was terminated for
‘‘violation of USPS standards of conduct’’ and ‘‘violation of
the code of ethical conduct’’ with the appropriate ELM sec-
tions referred to. The notice states that on March 5 he was
arrested for possession of narcotics, and on June 1 he plead-
ed guilty to the charge of possession of narcotics. This notice
of removal states that a copy was sent to APWU; addition-
ally, Michael Ganino, president of the Stamford Local, testi-
fied that it ‘‘could very well be’’ that the Stamford Local
knew of Ewell’s discharge as early as August 4. On cross-
examination, Ganino was shown a request for information,
dated August 4, that the Stamford Local sent to Respondent
stating, inter alia, ‘‘Pursuant to our telephone conversation
. . . concerning Notice of Removal that was allegedly issued
to employee Ewell.’’ He testified that they were not sure, at
the time, that Ewell (who never filed a grievance regarding
his termination) had been terminated. Ganino testified further
that he wanted these IMs to establish disparate treatment;
that Respondent condoned for supervisors and managerial
employees what it terminated Ewell for. Ganino also testified
that if these IMs state that Ewell was involved in selling
drugs during working time: ‘‘Then that would certainly go
into our thinking of whether to continue with the filing of
the grievance or arbitration.’’
Lloyd Roselle, Respondent’s labor relations representative
in Stamford, testified that he responded to this request orally
to Corso; he told him that Respondent would not provide the
requested information for a number of reasons. ‘‘Number one
and foremost was that it was untimely. ‘‘Article 15 of the
contract between the parties states: ‘‘Any employee who
feels aggrieved must discuss the grievance with the employ-
ee’s immediate supervisor within fourteen (14) days of the
date on which the employee or the Union first learned or
may reasonably have been expected to have learned of its
cause’’5 Two copies of the notice of removal were mailed
to Ewell (one certified and one regular mail) and one was
sent regular mail to the Stamford Local on the same day;
705POSTAL SERVICE
6 Corso testified that 1988 was inadvertently omitted and he so no-
tified Guerra of this error within 30 days.
7 Although not testified to by Corso, the figures supplied by
Guerra on January 24 did not include regular (both full- and part-
time) employees.
8 At the hearing, counsel for General Counsel moved to strike his
testimony because he testified that he had never seen the computer
tape. I denied this request. I found Leahy to be a credible witness
who was testifying honestly to an obvious fact—there is no reason
for him to receive or see the computer tape because it is sent every
28 days to APWU. He received the printout derived from this tape.
none of these were subsequently returned to Respondent.
Sometime after he received the August 4 request for informa-
tion regarding Ewell’s notice of removal he spoke to either
Corso or Ganino, who said that they did not have a copy of
it, but were familiar with it. On August 16 Roselle sent the
Union the notice of removal for Ewell as requested. Roselle
testified that the second reason he refused to provide the
Stamford Local with the requested information was because
it was not relevant to the issue. With the exception of Ewell,
all the employees specified in the request for information
were supervisory employees. Article 16 of the contract pro-
vides for a ‘‘just cause’’ standard for discipline of its bar-
gaining unit employees There is a different standard for su-
pervisors and managerial employees as contained in section
650 of the ELM, which is entitled ‘‘Nonbargaining Discipli-
nary, Grievance, and Appeal Procedures,’’ which sets forth
the procedure for disciplining employees who are not cov-
ered by any contract. The remaining reasons for denying the
August 24 request for information were that the Stamford
Local was requesting written statements (the principal part of
the IM) and these documents are protected from release by
the Privacy Act. Roselle testified that when he received the
August 24 request for information he was aware of an IM
for only one of the supervisors on the list, and that involved
an alleged assault by him upon another employee while
under the influence of alcohol. Sometime prior to receiving
this request, he became aware of an IM involving another of
the supervisors listed in the request; this one involved allega-
tions of gambling, but he didn’t see this report until early
1989.
VI. CASE 34–CA–4615
This case involves two requests for information, one on
January 22, 1990, and the other on February 6, 1990. The
first from Corso requests the following
Provide a complement report (Stamford) which
shows total number of casuals on rolls during years
1986, 1987, 1989, and 1990 in 6-month intervals6
For the same periods indicated above provide com-
plement report showing numbers of PTF’s on rolls in
6-month intervals.
Also provide union with copies of all
rules/regulations that have been relied upon by USPS in
hiring of casuals and career employees (PTF’s) part
time flexible employees] during the period indicated
above.
By letter dated January 24, 1990, Guerra enclosed ‘‘com-
plement figures showing number of clerk casuals and PTFs
on rolls during 1989 and 1990. I believe your request for the
years prior to 1989 to be unreasonable, untimely and not rel-
evant.’’ Corso testified that in about February, the Stamford
Local received a letter from APWU, stating that Respondent
might be in violation of article 7 of the contract by employ-
ing too many casual (nonbargaining unit) employees to the
detriment of the regular employees; it was this letter that
caused him to make this request. Subsequent to receiving
Guerra’s response, Corso spoke to him, told him that the in-
formation he supplied was inadequate and explained the rel-
evance of his request. Article 7 of the contract provides:
‘‘The number of casuals who may be employed in any pe-
riod, other than December, shall not exceed 5% of the total
number of employees covered by this Agreement.’’ Corso
testified that Guerra’s January 24, 1990, response was not
adequate because it did not include the years prior to 1989
and it was not in the form of a computer printout.7
By letter to the Stamford Local president, dated February
24, APWU wrote, inter alia:
A review of the recent national ‘‘on rolls com-
plement’’ computer printout reveals that your office has
82 casuals and 39 PTFs effective January 12, 1989.
This disparity between PTFs and casuals indicates a
clear violation of Article 7, Section 2B wherein casuals
are being hired in lieu of career employees.
We therefore request that your office immediately
file a grievance alleging a violation of Article 7, Sec-
tion 2B citing the number of clerk casuals and PTFs in
your office on the date of the grievance. You should
track the number of casuals and PTFs for the years
1986, 1987 and 1988 in 6 month intervals to show the
steady increase in casuals vs. a decrease in PTFs.
Respondent’s defense to this allegation is principally that
it previously provided this information to APWU, as it was
required to do under its contract with APWU, as proven by
the APWU letter dated February 24. Article 31 of the con-
tract provides that Respondent shall provide to APWU, on an
accounting period basis (every 28 days) a computer tape con-
taining the information set forth in the memorandum at page
202 of the contract. This memorandum provides that Re-
spondent shall provide APWU with certain information on
those in their respective bargaining units. There follows 25
items, including name, address, rate schedule, pay grade, oc-
cupation code, and pay location. James Leahy, Respondent’s
labor relations programs analyst principals,8 testified that this
computer tape includes all bargaining unit employees and
casual employees and the location where each works. He tes-
tified that it is sent to APWU every 28 days; although he
does not actually send it to APWU, he testified: ‘‘I know
they’ve never complained about not having received it.’’
Corso was asked by counsel for Respondent:
So, as of February 24, 1989, the National Union,
your National office, was aware of the actual numbers
for the casuals and other employees employed in the
Stamford office or the time period that you made this
information request; isn’t that true?
A. I suppose so.
The other information request covered by this charge is a
request dated February 6, 1990, from Corso to Henry
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pankey, the Stamford postmaster. The request, which begins
by stating: ‘‘Relative to the processing of a number of on-
going grievances which relate to the unilateral blanket policy
in Stamford to place employees on restricted S/L. we request
the USPS provide union with the following:’’ There followed
six items (only five of which are relevant here):
1. Provide list of all employees who are currently on
restricted S/L listing. (Stamford)
2. Provide copies of all notices issued to all employ-
ees on listing which informs them of action and rea-
son(s) for same. (As per item #1 above.)
3. Provide 397s for all employees listed as per item
#1 above.
4. Provide names of all immediate supervisors of, or
overseeing each employee as per item #1 above.
6. Also provide union with Rules/Regulations that is
currently relied upon by USPS in Stamford when plac-
ing employees on restricted S/L listing.
By letter dated February 8, 1990. Guerra informed Corso that
this information would not be provided because the request
was untimely as most of the employees on the list have been
there for a quarter or longer, that the compilation would be
overly burdensome and the request was too broad. Corso tes-
tified that he made this request because a large number of
employees at the facility had been placed on restricted sick
leave for the same reason—abuse—and he felt that Respond-
ent had thereby adopted a blanket policy in this regard and
was not following the proper procedures. He subsequently
discussed this with a representative of Respondent during a
grievance discussion of the subject. The union never received
this information.
Guerra testified that at the time he received Corso’s Feb-
ruary 6, 1990 request no supervisor in his facility was on re-
stricted sick leave, although he never informed the Union of
this. He does not know if, at the time, there was an increase
in the number of employees on restricted sick leave. He testi-
fied that, ‘‘from time to time’’ supervisors become lax and
the amount of sick leave taken increases. The response is
often an increase in sick leave restrictions. However, he
knows of no conscious attempt to increase restricted sick
leave. Additionally, 3972s are not maintained for supervisors
at his facility, although he never so informed the Stamford
Local. By letter dated July 3, 1990, Guerra informed Corso
that upon review of his February 6, 1990 request, he deter-
mined that he would provide the requested information
‘‘which presently exists for Stamford clerks.’’ Guerra testi-
fied that he determined to give the union only the informa-
tion regarding the clerks—the employees it represents not the
carriers and mail handlers who are represented by a different
union with a separate contract. These carriers and mail han-
dlers are subject to the same time and attendance regulations
as the APWU represented employees and have some com-
mon supervision with the APWU represented employees at
the Stamford facility, although there are some differences in
the discipline and grievance procedure under their contract.
VII. CASE 34–CA–4731
This case, as well, involves two requests for information
by Local 147. The first request is dated February 12, 1990;
the latter request is dated February 22, 1990. Both requests
were by Joseph Morris, who is employed by Respondent at
its facility at Bradley International Airport in Connecticut,
and is a steward for Local 147, and were made to William
Edgar, tour supervisor for Respondent at the Air Mail Facil-
ity at Bradley International Airport. The earlier request asks
for all 3972s and all disciplinary actions against 12 named
supervisory employees for the period September 1, 1988,
through February 12, 1990. Morris testified that he delivered
the request to Edgar on that day and told him that the Union
felt that Respondent was guilty of disparate treatment and
discipline toward APWU members as compared to super-
visors and managerial employees. The issue involved time
and attendance and Morris told Edgar that he felt that the in-
formation requested was relevant. Edgar responded that man-
agerial and supervisory employees were not subject to article
16 of the contract. Morris answered that while that was true,
they were subject to the attendance provisions of the ELM.
On February 19 Edgar returned the request to Morris and in-
formed him that Respondent’s labor relations department said
that they have not turned over this information in the past
and they wouldn’t do it now. Edgar stated at the bottom of
the request, under ‘‘Request Denied’’: ‘‘I do not have access
to requested material. Recommend that you request informa-
tion from the installation head, Postmaster Payne.’’
Morris testified that he made this request in response to
a notice of removal, dated January 30, 1990, issued to bar-
gaining unit employee Arlene Vanasse. Although at the time
of the hearing no action had yet been taken on this notice
of removal, it states: ‘‘You are hereby notified that you will
be removed from the Postal Service no sooner than 30 days
from your receipt of this notice. The reasons for this action
are:’’ and the notice sets forth 10 incidents between October
21 and January 27, 1990, where Vanasse was either late or
absent from work, and 5 times between May and August
1987 where Vanasse vas either suspended or issued a letter
of warning. Subsequent to this notice of removal, at a Local
147 meeting, the members and stewards were requested to
provide the names of supervisors ‘‘that they felt may border
on being abusers of time and attendance issues,’’ based on
the fact that there were days when the supervisors were ab-
sent from work.
Paul Cotti, Respondent’s operations manager at Bradley
International Airport, testified that of the 12 supervisors list-
ed on this request, only 6 were employed at his facility. The
others were at the General Mail Facility in Hartford, which
is subject to separate supervision. Of the six supervisors at
his facility only one was AWOL during this period, on two
occasions, and both involved tardiness. For the first situation
he was given a discussion; the second resulted in no action
being taken against the supervisor.
By request for information dated February 22, 1990, from
Morris to Edgar, the Union requested: ‘‘All 3972s and dis-
ciplinary actions against or issued to the below named mgt.
employees.’’ There followed the names of seven supervisory
employees employed at Bradley. Morris testified that he de-
livered this request to Edgar on that day and told him that
it was the result of an appeal made at a union meeting for
the names of additional supervisors that had prolonged ab-
sences. Edgar told him: ‘‘It’s going to go the same route that
the others went.’’ On February 25 Edgar returned the request
to him telling him that they weren’t entitled to this informa-
707POSTAL SERVICE
9 Because I decide this matter on other issues, I will not discuss
the fact that, under the contract, discussions do not constitute dis-
cipline, that the Union has no right to grieve a discussion, or the
fact that no employee was disciplined as a result of these discus-
sions.
tion. Respondent never provided the Union with this infor-
mation.
VIII. ANALYSIS
These cases all involve the refusal of Respondent to pro-
vide the Stamford Local and Locals 147 and 646 with certain
requested information, allegedly in violation of Section
8(a)(1) and (5) of the Act. Behind this ‘‘basic’’ issue lie a
number of different ‘‘subplots,’’ requests for information re-
garding supervisors and employees in a different bargaining
unit, time-barred grievances, and privacy requirements to
name a few. Before discussing each of these cases and the
specific issue or issues they present, it is first necessary to
set forth the general rule regarding an employer’s obligation
to provide requested information to the collective-bargaining
representative of its employees.
In Sheraton Hartford Hotel, 289 NLRB 463 (1988), the
Board set forth the rule to be applied in cases involving re-
fusal to furnish information. In doing so, the Board cited
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), Pfizer,
Inc., 268 NLRB 916 (1984), and Southern Nevada Builders
Assn., 274 NLRB 350 (1985):
Section 8(a)(5) obligates an employer to provide a
union requested information if there is a probability that
the information would be relevant to the union in ful-
filling its statutory duties as bargaining representative.
Where the requested information concerns wage rates,
job descriptions, and other information pertaining to
employees within the bargaining unit, the information is
presumptively relevant. Where the information does not
concern matters pertaining to the bargaining unit, the
union must show that the information is relevant. When
the requested information does not pertain to matters
related to the bargaining unit, to satisfy the burden of
showing relevance, the union must offer more than
mere suspicion for it to be entitled to the information.
Case 34–CA–4423(P) involves Respondent’s refusal to
furnish Local 646 with the Form 3972s for all its supervisors
at the New London facility. Longo made this request in re-
sponse to Hargy’s newly instituted sick leave and attendance
discussion program.9 His purpose was to compare the leave
records of bargaining unit employees with the leave records
of supervisors ‘‘to insure equitable application.’’ Article 16
of the contract provides that no employee shall be disciplined
or discharged ‘‘except for just cause,’’ and then gives some
examples of such offenses. The contract then provides that
any such discipline or discharge shall be subject to the griev-
ance-arbitration provisions of the contract. Section 665 of
Respondent’s ELM specifies numerous statutes and regula-
tions that apply ‘‘to all employees’’ of Respondent. Section
666, entitled ‘‘USPS Standards of Conduct’’ refers to em-
ployees’ (including supervisors) obligations in such areas as
attendance, tardiness, and discharge of duties. Section 650 of
the ELM is entitled: ‘‘Nonbargaining Disciplinary, Grievance
and Appeal Procedures.’’ The initial paragraph states that it
establishes the procedure for disciplinary action against non-
probationary employees who are not covered by a collective-
bargaining agreement. This section provides for letters of
warning, suspensions, and other adverse action (discharges or
suspensions); letters of warning, suspensions, and discharge
are said to be warranted when lesser corrective measures
have failed to correct the situation.
Postal Service, 289 NLRB 942 (1988), is instructive in the
instant matter. In that case, as a result of an investigation
into gambling activity at a facility, the postal service dis-
ciplined and discharged a number of bargaining unit employ-
ees for engaging in gambling activities. The union requested
the postal service to provide it with information regarding
the discipline of supervisors arising out of that investigation
into gambling activity. The postal service refused and the
Board found an 8(a)(1) and (5) violation. The Board found
that the prohibition against gambling applied equally to bar-
gaining unit employees and supervisors, and both groups vio-
lated the prohibition; therefore, ‘‘evidence relating to the dis-
cipline given supervisors is information that has some bear-
ing on the determination of whether the unit employees have
been treated harshly, unjustly, or disparately.’’ There is a sig-
nificant difference, however, between this case and the in-
stant matter. In the above-cited case, both the bargaining unit
employees and the supervisors were involved in the gam-
bling activity that was the subject of the investigation. Bar-
gaining unit employees were disciplined as a result of this
investigation; the union wanted to know if any supervisors
were also disciplined as a result of the investigation. These
facts are clearly distinguishable from the instant matter
where there is no such nexus between the leave records of
bargaining unit employees and the supervisors. I find that
Local 646’s request was based on mere suspicion and that
counsel for General Counsel has not sustained his burden of
demonstrating a probability that the requested information is
relevant. I therefore recommend that the complaint in this
case be dismissed.
In Case 39–CA–4510(P) it is alleged that Respondent vio-
lated the Act by refusing to provide the Stamford Local with
copies of IMs and disciplinary records of Ewell and seven
supervisory employees. Initially, I reject Respondent’s prin-
cipal defense to this refusal that the union’s request was un-
timely, although I agree that under Arbitrator Marx’s deci-
sion the request probably was untimely. However, that is for
an arbitrator, not me, to decide. As the Board stated in
Safeway Stores, 236 NLRB 1126 fn 1 (1978):
[B]efore a union is put to the effort of arbitrating even
the question of arbitrability, it has a statutory right to
potentially relevant information necessary to allow it to
decide if the underlying grievances have merit and
whether they should be pursued at all.
However, I recommend that this allegation be dismissed for
the same reason as above: General Counsel has not sustained
his burden of showing that the Stamford Local’s request was
based on more than mere suspicion. Sheraton Hartford
Hotel, supra. Ewell was terminated after pleading guilty to
possession of narcotics; there is no apparent nexus between
his termination and Corso’s request for the supervisors’ IMs
and disciplinary records. Unlike the request made in Postal
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 With one exception, the August 24 request also asked for Ew-
ell’s disciplinary records and IMs and, like those of the seven named
supervisors, they were not given to the union. Ewell was, of course,
in the Stamford Local’s unit and the information is therefor pre-
sumptively relevant. No evidence was produced otherwise, and I so
find. If Respondent has any IMs or disciplinary records relating to
Ewell, it is recommended that they be ordered to turn them over to
the Stamford Local.
Service, supra, this request appears to be in the nature of a
fishing no expedition. I therefor recommend dismissal.10
The first allegation in Case 39–CA–4615(P) is that Re-
spondent violated the Act by failing to provide the union
with the complement reports showing the number of casual
employees and PTFs during the period 1986 to the present.
Respondent’s immediate response was to provide the union
with the number of casual employees and PTFs employed
during 1989 and 1990; that the request for prior years was
‘‘unreasonable, untimely and not relevant.’’ These defenses
are clearly not valid here; no evidence was adduced (and I
find none) that the request was unreasonable. As discussed
above I find that untimely defenses are not valid in refusal
to provide information cases before the Board, and there can
be no question that this information is relevant to the union
in determining whether Respondent has violated article 7 of
the contract. At the hearing, Respondent’s principal defense
to this allegation was that it is required by the contract to
give this information to APWU every 28 days and it did so,
as proven by APWU’s letter to the Stamford Local dated
February 24. Article 31 of the contract provides that Re-
spondent shall provide APWU with a computer tape con-
taining the information set forth in the memorandum on page
202 of the contract: this memorandum lists 25 categories of
information that Respondent must provide APWU every 28
days for ‘‘those in their respective bargaining units.’’ Not
only was no evidence adduced that Respondent failed to pro-
vide APWU with this information, but APWU’s letter of
February 24 to the Stamford Local clearly establishes that
APWU received such information. As stated above, APWU
is the nominal collective-bargaining representative of these
employees and the party to the contract with Respondent.
There is no requirement that Respondent additionally give
this information to the Stamford Local. I therefore rec-
ommend that this allegation be dismissed.
The remaining allegation in this case involves Corso’s re-
quest, dated February 6, 1990, to Pankey. This request asks
for a list of ‘‘all employees’’ currently on restricted sick
leave, copies of all notices to these employees informing
them of the action and the reason for it, the Form 3972 for
all these employees, the supervisors of these employees, and
the rules relied on in placing employees on restricted sick
leave at the facility. Corso made this request because a large
number of employees at the facility had been placed on re-
stricted sick leave for the same reason—abuse—and he felt
that Respondent was not following the proper procedure and
had adopted a blanket policy in this regard. It is not entirely
clear whether Corso’s Request included supervisors. The re-
quest was for ‘‘all employees’’ and Guerra testified that he
understood that to mean ‘‘Every employee on the restricted
sick leave list.’’ The Stamford Local never narrowed it down
for him. Corso’s testimony is not helpful in this regard.
Counsel for Respondent’s and counsel for General Counsel’s
briefs assume that this request was meant to include super-
visors. In this regard, Guerra testified credibly that Respond-
ent does not maintain 3972s for supervisors at the facility
and, at the time of this request, no supervisor was on re-
stricted sick leave. Additionally, I find that General Counsel
has not sustained his burden of establishing the relevancy of
this information as it applies to supervisors. Although the
record is also not very clear whether the request includes em-
ployees in other units, I find that it did. The record estab-
lishes that there is some common supervision with the mail
handling employees (who are represented by another union)
and that these employees are subject to the same time-and-
attendance regulations as the clerks. I therefor find that Gen-
eral Counsel has sustained his burden in establishing the rel-
evance of this information as regards the mail handlers and
that Respondent’s refusal to turn over that information when
requested violates the Act. There can be no question as to
the relevance of the information on the clerks in the unit. As
Respondent did not agree to provide this information until
July 3, 1990, 6 days before the resumption of this hearing,
for no apparent valid reason, I find that this refusal also vio-
lated the Act.
I recommend that the allegations contained in Case 34–
CA–4731(P) be dismissed for two reasons: there is no nexus
between the discipline of Vanasse and possible discipline of
supervisors as was true in Postal Service, supra. In addition,
the names of supervisors listed in these requests was ob-
tained by Local 147 by asking its members at a meeting
which supervisors had prolonged absences from work. It is
possible that these ‘‘absences’’ were actually vacation time,
transfers or some other valid reason for being absent from
the facility, something that the members would ordinarily not
be aware of. This, therefore, appears to me to be ‘‘mere sus-
picion’’ referred to by the Board in Sheraton Hartford, supra.
I therefore recommend that this complaint be dismissed as
well.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over Respondent pursuant to
Section 1209 of the PRA.
2. APWU, the Stamford Local, and Locals 646 and 147
are labor organizations within the meaning of Section 2(5) of
the Act.
3. APWU (and, through it, the Stamford Local and Locals
646 and 147) is the exclusive collective-bargaining represent-
ative of the following employees of Respondent, which is
more fully described in the collective-bargaining agreement
between the parties effective July 21, 1987, through Novem-
ber 20, 1990: maintenance employees, special delivery mes-
sengers, motor vehicle employees, postal clerks.
4. Respondent violated Section 8(a)(1) and (5) of the Act
by failing and refusing to provide the Stamford Local with
certain information they requested on August 24, 1989, and
February 6, 1990, the information being relevant and nec-
essary to the Union as the collective-bargaining representa-
tive of the employees in the above-mentioned unit.
5. Respondent did not violate the Act as further alleged in
the consolidated complaint.
709POSTAL SERVICE
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
12 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
National 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.’’
REMEDY
It having been found that Respondent has violated Section
8(a)(1) and (5) of the Act by failing and refusing to provide
the Stamford Local with information it requested on August
24, 1989, and February 6, 1990, it will he recommended that
Respondent cease and desist therefrom and to promptly, sup-
ply the information (as set forth above and below) to the
Stamford Local.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, United States Postal Service, New Lon-
don, Connecticut, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to provide the Stamford Local
with information it requested by letters dated August 24,
1989, and February 6, 1990, as described below, the informa-
tion being relevant and necessary to the Stamford Local as
the collective-bargaining representative of certain of Re-
spondent’s employees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Promptly furnish the Union with the following infor-
mation.
(1) Respondent’s investigative memoranda (IM) and
any disciplinary records pertaining to Bryan Ewell.
(2) List of all employees on restricted sick leave as
of February 6, 1990, at its Stamford, Connecticut facil-
ity.
(3) Copies of all notices issued to these employees
informing them of actions and the reasons for such ac-
tions.
(4) The names of the supervisors of above employ-
ees.
(5) Form 3972 for each of these employees.
(b) Post at its facilities in Stamford, Connecticut, copies of
the attached notice marked ‘‘Appendix.’’12 Copies of the no-
tice, on forms 20 provided by the Regional Director for Re-
gion 39, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices 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 Respondent has
taken to comply.
IT IS FURTHER ORDERED that the remaining allegations
contained in the consolidated complaint are hereby dis-
missed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail and refuse to furnish Stamford, Con-
necticut Area Local, American Postal Workers Union, AFL–
CIO (Stamford Local) with information that it requested
which is relevant and necessary to its status as exclusive col-
lective-bargaining representative of certain of our employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed in Section 7 of the Act.
WE WILL promptly furnish the Stamford Local with all in-
vestigation memoranda and disciplinary records that we have
for former employee Bryan Ewell.
WE WILL promptly furnish the Stamford Local with a list-
ing of all employees at the Stamford facility who were on
restricted sick leave as of February 6, 1990, copies of the no-
tices issued to these employees informing them of the action,
Form 3972s for each of these employees and the name of the
supervisor for each of these employees.
UNITED STATES POSTAL SERVICE