Postal Service

National Labor Relations Board - Board Decisions

Feb 26, 1993

310 N.L.R.B. 530 (N.L.R.B. 1993)

530
310 NLRB No. 75
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The American Postal Workers Union (APWU) is the collective-
bargaining representative of a nationwide unit, which includes em-
ployees at the Respondent’s Hanover Township, New Jersey loca-
tion. As the judge found, the North Jersey Area Local (the Local
Union) is an agent of the APWU. In order to set forth this relation-
ship more precisely, we shall substitute the following for the judge’s
Conclusion of Law 3.
‘‘3. At all times material, the American Postal Workers Union, of
which the Local Union is an agent, has been the exclusive bar-
gaining representative of a nationwide unit which includes the fol-
lowing employees:
‘‘All maintenance employees, special delivery messenger
motor vehicle employees and postal clerks employed by Re-
spondent at its Hanover Township, New Jersey location.’’
We shall also make the appropriate modifications in the Order and
notice to reflect accurately the relationship between the APWU and
the Local Union.
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1992.
United States Postal Service and North Jersey Area
Local, American Postal Workers Union, AFL–
CIO. Case 22–CA–18329(P)
February 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The question presented is whether the Respondent
violated Section 8(a)(5) and (1) of the Act by failing
to provide the Union, in a timely manner, with re-
quested relevant information.
On November 23, 1992, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
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 Respondent’s exceptions and
brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
States Postal Service, Hanover Township, New Jersey,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Refusing to bargain collectively with American
Postal Workers Union, AFL–CIO (APWU) and its
agent, North Jersey Area Local, APWU, by failing or
refusing to furnish the requested information regarding
bargaining unit employees in a timely and expeditious
manner.’’
2. Add the following as paragraph 2(b).
‘‘(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with American Post-
al Workers Union, AFL–CIO (APWU) and its agent,
North Jersey Area Local, APWU, by failing or refus-
ing to furnish requested information regarding bar-
gaining unit employees in a timely and expeditious
manner.
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.
UNITED STATES POSTAL SERVICE
Julie Kaufman, Esq. and Bradley Williams, Esq., for the
General Counsel.
Carl C. Bosland, Esq., for the Respondent.
Renee Steinhagen, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on August 17 and 18, 1992,1 in Newark,
New Jersey. The complaint herein, which issued on May 15,
was based on an unfair labor practice charge filed on March
9 by North Jersey Area Local, American Postal Workers
Union, AFL–CIO (the Union). The complaint alleges that the
United States Postal Service (Respondent) terminated its em-
ployee Gail Cogen on about February 6 because of her ac-
tivities on behalf of the Union and because she filed charges
with the Board, in violation of Section 8(a)(1), (3), and (4)
of the Act. The complaint further alleges that Respondent
failed and refused to supply the Union with certain requested
information, which was relevant to the Union as the collec-
tive-bargaining representative of certain of Respondent’s em-
ployees. This is alleged to violate Section 8(a)(1) and (5) of
the Act. On the entire record, including my observation of
the witnesses, I make the following
531POSTAL SERVICE
2 The Employee Labor Relations Manual (ELM), under which Re-
spondent and the Union operate, provides that eligible employees are
to be granted court leave for jury duty, as well as other situations.
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
The complaint alleges that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act. Respond-
ent admits that the national union, the American Postal
Workers’ Union (APWU), is a labor organization within the
meaning of Section 2(5) of the Act, but denies that the
Union is a labor organization within the meaning of the Act.
As found by Administrative Law Judge Steven Davis in
Postal Service, 301 NLRB 709 (1991), I find that the APWU
is a labor organization within the meaning of the Act, and
that the Union is an agent of the APWU.
III. THE FACTS
Cogen, the alleged discriminatee herein, was employed at
the Respondent’s West Jersey General Mail facility (the fa-
cility) as an LSM operator, which involves operating a ma-
chine that directs the mail to the proper carrier or route. She
worked on tour I from midnight to about 8:30 a.m. and had
been the chief steward for the Union for the area since about
September 1990. Her supervisor was John Goller. The instant
problem arose in early May 1991, when Cogen received no-
tice from the court system in Bronx, New York, to report for
jury duty at 9 a.m. on Thursday, May 16, 1991. She testified
that after receiving this notice, she spoke to a woman who
is employed in the office at the facility, and was told to
speak to Vickie Melillo (a bargaining unit employee and a
member of the Union), the timekeeper on her tour at the fa-
cility. She met with Melillo on May 10 and told her that she
had received notice to report for jury duty. Melillo gave her
a number of forms that would have to be completed in order
for Cogen to be excused from work and be paid for her court
leave.2 The first form was PS Form 1224, Court Duty Leave
Statement of Service, and Melillo told Cogen to have the
court officer sign it for each day that she was there. This
form directs the employee to read the ELM and the time and
attendance rules and provides spaces for total days served,
total days excused, and the fees paid by the court. It also had
a space for the signature of a court official. When Cogen
later gave this form to a clerk at the court, he said that they
do not fill out such forms. When she returned to the facility,
she informed Melillo what the court clerk said, and Melillo
told her not to worry about it, that a lot of times they cannot
get that information. She told Cogen: ‘‘Ed, in accounting,
he’ll get this information,’’ referring to Edward Hibbitt, an
accounting technician at the facility, a bargaining unit em-
ployee, and a member of the Union. In addition to form
1224, Cogen also signed a form stating that she was:
[B]eing summoned for jury duty starting Thursday,
May 16, 1991 understand I must obtain proof of attend-
ance for each day I serve. Being that the U.S. Postal
Service will continue to pay me for each day I serve
(except N/S days), I must submit the check I receive
from the court to the Finance Department of the West
Orange GMF. They in return will reimburse me the
mileage and N/S days due.
On that day she also completed a request for temporary
schedule change for personal convenience, Form 3189, which
(for the period involved) changed her worktime from mid-
night through 8:50 a.m. to 9 a.m. to 5:50 p.m., and her work
days to Monday through Friday, as compared to her regular
schedule, which gave her off Sunday and Monday. This was
for the period May 15 through May 21, 1991, and was
signed by Cogen on May 10.
There is also a PS 3971 form, Request For or Notification
of Absence, that was executed by Cogen. She testified that
she signed it on May 22, but all the other writing on the
form belongs to Melillo and Goller, and a review of the form
affirms that. This form states that it is for court leave, and
requests 64 hours, from May 16 through May 28, from 9
a.m. to 5 p.m. On May 22 Cogen signed another Form 3189,
with the same changes, this time for the period May 22
through May 31.
Melillo testified that court leave is one of her functions.
When an employee approaches her about the procedure that
has to be followed, Melillo goes into her ‘‘spiel’’ and issues
the employees the required documents, including Forms 1224
and 3189, as well as Form 3971, which cannot be completed
until the leave is over. She testified that she reassures the
employees that they will lose nothing by being on court
leave, but, ‘‘[T]he only thing is they are going to have to
bring proof for each day served in court.’’ On about May 10,
1991, Cogen also signed the affidavit-like statement set forth
above, which Melillo referred to as the ‘‘in house form.’’
Melillo was indefinite regarding what she (Melillo) filled in
on Cogen’s Form 3971 and when. She assumed that she
wrote the parts written in red pen and that she wrote the
number of hours requested—64—which was probably filled
in at the end of Cogen’s court leave. Regardless, 64 hours
was incorrect; she mistakenly excluded Wednesday, May 29,
1991, and the total hours involved should have been 72. The
10th day was Monday, May 27, Memorial Day, a paid holi-
day for Respondent’s employees and a day that the courts are
closed. Melillo testified that unless the employee informs her
of an ‘‘interruption of service’’ the employee is paid for the
full period previously scheduled. Cogen was paid for 9 court
leave days and 1 holiday (over two different pay periods) for
a total of 10 days, 80 hours. The problem is that she only
served 6 days of jury duty during this period. Admittedly,
she did not serve on jury duty May 20, 24, and 29, 1991.
Cogen did not have to report for jury duty on May 20,
1991; she did have to (and did) report for jury duty on May
21, 1991. As to why she did not report for work on May
20, 1991, she testified:
The reason why I was, was because I had jury duty on
the 21st. So with me have the jury duty on the 21st,
by the time if I come in at 12:00 o’clock and getting
off at the time I was supposed to I wouldn’t make jury
duty on time for that day because I get off at 8:30 in
the morning.
She testified the first time that she notified anyone at Re-
spondent that she did not have jury duty on May 20 was on
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the evening of May 21, morning of May 22, 1991 shift. She
spoke to Melillo about it:
I explained to Vickie the situation that happened that
by the time I get . . . If I came to work and by the
time I would get off from work and get home and have
to change my clothes and shower and everything and
I have to take public transportation to the Bronx Court
House because there is no parking there . . . I wasn’t
driving, so there was no way I was going to make it
there on time.
So I told Vickie then that I wanted to use annual
leave.
She testified that Melillo asked her some questions about
how long it takes her to get home and then answered
‘‘okay’’ to her request for annual leave, although she did not
give her annual leave forms.
Cogen did not report for jury duty on May 24, 1991. She
did not report for work on that day either. She testified:
Because by the time I got out from jury duty [presum-
ably, on May 23, 1991] and I got home it was about
6:00 o’clock or a little after 6:00 with taking public
transportation, I have to leave my house like at 10:00
o’clock at night to be able to make it to West Jersey
on time. I hadn’t had any sleep and I was tired.
She came to the facility on the following evening and spoke
to Melillo. She testified that she told Melillo that she wanted
to take annual leave for May 24, 1991, and Melillo an-
swered: ‘‘Okay.’’ She did not appear for jury duty on May
29, 1991, as well. On the following evening, while she was
at work, she told Melillo:
Vickie, the same thing that happened on the 24th and
all as far as me getting off and everything from jury
duty and by the time I made it home I was late. I
wasn’t getting any sleep or anything and I said I’m
going to have to use annual leave again and she just
said: ‘‘Okay and all.’’ We didn’t really talk. That was
it.
It is undisputed that Cogen never filed a Form 3971 or any
other formal request for annual leave for May 20, 24, or 29,
1991, nor did she ever request such leave from a supervisor.
It is also undisputed that only a supervisory employee may
authorize leave; Melillo was not a supervisory employee.
Cogen testified that she did not know what her responsibil-
ities were regarding court leave and Goller never told her of
these responsibilities.
Melillo testified that Cogen never asked her to authorize
annual leave, nor did any employee ever ask her that since
she does not have that authority: ‘‘I don’t authorize annual
leave.’’ On none of the three dates testified to by Cogen did
Cogen ask Melillo to authorize annual leave. The second in
command at the facility, below the title of postmaster, is the
superintendent of support services. Since about June 1991,
this position was vacant and was being filled on a temporary
basis by Nikki Mitchell an accounting technician and a mem-
ber of the Union. In mid-September 1991 this position was
filled by Ben Nowacky.
Hibbitt, who handles court leave matters, testified that in
about June 1991, Cogen brought in the check that she re-
ceived from the court in the amount of $103.80. He could
not figure how 9 days resulted in this amount. To help re-
solve this difficulty he looked at the facility’s court logbook
which is kept by the timekeeper and records the days that
an employee is out and paid for court leave. When he was
still unable to correlate the amount paid with the number of
days (he was accustomed to the New Jersey court system
which paid $5 a day), he called the Bronx Court and was
told that the jury duty pay was $15 a day. He testified:
‘‘Again, it didn’t match up to the days paid. It should have
been more money,’’ since he assumed that Cogen had been
on jury duty for 9 days. In order to clear up this apparent
discrepancy, by letter dated July 9, 1991, Hibbitt wrote to the
Bronx Court requesting the actual days of jury duty that
Cogen served. By letter dated July 11, 1991, the Bronx Court
responded to Hibbitt’s letter stating that Cogen served as a
juror on the panel for 6 days, May 16, 17, 21, 22, 23, and
28, 1991. After receiving this letter, he concluded: ‘‘We had
a problem so I showed it to Nikki Mitchell.’’ As stated
above, Mitchell was, at the time, acting superintendent of
support services. After discussing it with Mitchell, Hibbitt
got an electronic timeclock report (ETC) which stated that
Cogen was paid for 9 days of court leave, which did not cor-
relate with the letter that he had received from the court. He
discussed this with Mitchell and they decided that he should
talk to Cogen about the problem. (This would be about late
July or early August.) He met her at the facility and said:
‘‘Gail, we have a problem with your court check and the
days you were paid. Would you please come up to the fi-
nance department so we could check it out.’’ She said that
she would. Hibbitt waited a few weeks, but Cogen never ap-
proached him about the situation although he saw her in the
area on grievances. In about mid-to late August he ap-
proached her again at the facility and said: ‘‘Gail, have you
forgotten about the court? We have to talk about it.’’ Cogen
said: ‘‘No, I haven’t forgotten. I’ll be up.’’ Although he was
available subsequently, Cogen never came to see him about
the subject. As to whether he approached her again about the
subject, he testified: ‘‘I didn’t think it was my duty to ap-
proach her on it. She was told twice already.’’ He again dis-
cussed it with Mitchell and they decided that rather than do
anything themselves, they should wait until the position of
superintendent of support services was filled: ‘‘We felt it was
a little two heavy for us being just clerks or 204-Bs. It
should be dealt with when the position was filled.’’ They
thought the position would be filled in about a month, and
in mid-September Nowacky obtained the position.
Hibbitt testified that about 2 weeks after Nowacky took
over, he brought the situation to Nowacky’s attention. He
showed him the check, the court logbook, the ETC, and the
letters to and from the court. Nowacky said that he would
take care of it. Hibbitt had nothing to do with it after that.
Mitchell testified that she was acting in the position from
about June through mid-September 1991, when Nowacky ob-
tained the position. In about July Hibbitt told her that he had
received the check for Cogen’s jury duty, but could not fig-
ure out how it related to the days served. He called the court
and learned that they paid $15 a day, but it still didn’t match.
In about mid-July he showed her the letters to and from the
court listing the days that Cogen served together with the
ETC. While the ETC said that she served and was paid for
9 days, the court letter said that she served 6 days. Hibbitt
533POSTAL SERVICE
told her that he would speak to Cogen about this discrep-
ancy. He later told her that he had spoken to Cogen about
coming to speak to him and she said that she would. He sub-
sequently told her that he had spoken to Cogen again and
asked her to come to speak to him about the court leave be-
cause she had not come to see him when he first asked her
to do so. This was about the end of August. Mitchell testified
that she knew that her position would be filled by the end
of September 1991: ‘‘So therefore I was going to leave it for
that person . . . At the time I felt I wasn’t capable of mak-
ing such a decision.’’ She did not speak to any of her superi-
ors about the issue, nor did she later discuss it with
Nowacky.
Cogen testified that the next occasion after May 1991 that
she heard about the jury duty matter was on about December
11 or 12, 1991. On that day she went to Nowacky’s office
to get some information that the Union requested on an unre-
lated grievance. She testified that Nowacky was ‘‘very
nasty’’ at that time and said that she could not have the re-
quested information until the Union paid for it. When she
told him that there was an understanding that the Union
would be billed and pay for the information at a later time,
Nowacky again told her that she was not getting the informa-
tion, saying: ‘‘You think you’re so smart with your Labor
Board charges.’’ Nowacky asked her where she was on No-
vember 20, 1991, when she was supposed to be on jury duty.
Cogen did not know what he was referring to; Nowacky
showed her the court’s letter to Hibbitt dated July 11, 1991,
and Cogen asked him why she wasn’t asked about this in
July; he didn’t answer. She asked to see the computer print-
out (presumably the ETC), but he refused, and told her to
get the information herself. Shortly thereafter, Cogen went to
the Bronx courthouse and asked about May 20; she was told
that court was not in session on that day. She could not
recollect what occurred on that day:
I took a calendar and I looked and said May 20? What
was going on May 20? I had to think all the way back
to what took place that day and then I remembered
what took place that day.
After realizing what occurred on that day she went to speak
to Nowacky in late December 1991. She told him that by the
time she had completed jury duty ‘‘I wouldn’t make it here.
The same thing I told you before. I told him and I told
Vickie that I wanted annual leave for the day and that I . . .
requested annual leave for the day.’’ She testified that
Nowacky said that she could take either annual leave or
leave without pay. She said that she would take annual leave
and Nowacky said: ‘‘No, I’m not going to accept it. Think
about it and get back to me.’’ At about the beginning of Jan-
uary, Cogen again told Nowacky that she wanted to take an-
nual leave, but he said: ‘‘No. You’re not getting annual
leave. I’m giving you leave without pay.’’ That was her last
conversation with Nowacky about the subject.
Nowacky assumed his position at the facility on Sep-
tember 23, 1991. He testified that in about October 1991,
Hibbitt told him of the situation of Cogen’s jury duty and
showed him the underlying documents, saying that there was
a discrepancy. Nowacky said that he would take care of it.
However, he ‘‘forgot about it.’’ The reason: ‘‘The days were
a blur. Postmaster was new [began in August 1991], I was
new. There were a number of initiatives that he wanted to
put into place. I also wanted to feel my departments, because
I have three under my authority.’’ In December 1991, Hibbitt
again approached him on the subject and asked him if he
wanted to look again at the supporting documents. Nowacky
said that he had forgotten about it and Hibbitt again showed
him the forms 3971 and 3189, the ETC report, and the letters
to and from the court. Nowacky asked Hibbitt why he wrote
to the court and he said that he kept asking Cogen to speak
to him about the matter, but she was avoiding him. Nowacky
took the documents, and on December 10, 1991, when he
saw Cogen in the finance office, he asked her: ‘‘Gail, there
is a problem here. The ETC report shows that you got paid
for nine days. Yet the . . . letter from the court says that you
only served six days. Please explain.’’ She said that it was
a mistake and Nowacky told her to get back to him in a rea-
sonable amount of time. He did not speak to Cogen about
the subject between December 10, 1991, and January 6. On
about January 6, Cogen approached Nowacky and said that
she didn’t have an answer for him and asked what he wanted
her to do about repayment. He said that he didn’t know, that
she should come to see him the following day.
Nowacky testified that about a day or two after this meet-
ing, he called Lynn Goldstein, of Respondent’s labor rela-
tions department, and described the situation to her. She told
Nowacky that he had to turn the situation over to Cogen’s
immediate supervisor (Goller) ‘‘because if he is going to do
anything it’s up to him.’’ Nowacky called Goller and met
with him the following day. He gave him all the papers in-
volving Cogen’s jury duty and told him, ‘‘Now, it’s up to
you whatever you decide to do.’’ He neither ordered or sug-
gested that Goller take any particular action toward Cogen.
About a week later, Cogen came to see Nowacky and said
that she would take annual leave for the 3 days. Nowacky
said: ‘‘No way.’’ He told her that he was not her immediate
supervisor and could not authorize leave for her. She left.
Goller has been supervisor of mails at the facility for 4
years. He testified that in December 1991 he was given a
note that Nowacky wanted to speak to him. He met with
Nowacky who told him of the discrepancy with Cogen’s
court leave. He showed Goller the forms, the court letters,
and the ETC report. Goller asked him whether he had spoken
to Cogen about it, and he said that he had and she said that
she would bring him something from the court within a week
or two. After hearing nothing further from Nowacky, about
2 or 3 weeks later Goller went to see Nowacky. He asked
if Cogen gave him anything that he could look at and
Nowacky said that Cogen was avoiding him. Later that day,
Goller saw Cogen and said that Nowacky had told him that
there was a discrepancy in her court leave: ‘‘What’s the deal
there?’’ Cogen told him that there was a lot of red tape deal-
ing with the New York courts, but that she would get some-
thing. About a week or two later, Nowacky asked to see
Goller and they met in his office. He told Goller that he had
not received anything from Cogen and had spoken to Gold-
stein, who said that it was up to Goller ‘‘to proceed with,’’
and gave him all of the documents relating to Cogen’s court
leave. He neither ordered, nor suggested, that Goller remove
Cogen. Goller determined that Cogen’s actions warranted ter-
mination. He did not discuss this decision with the post-
master or Nowacky prior to making this decision. He decided
that she had been paid money under false pretenses, and her
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
actions on May 20, 24, and 29, 1991, warranted dismissal.
By letter dated February 4, signed by Goller, Cogen was in-
formed of the discharge. The two reasons stated were ‘‘Re-
ceiving Court Leave Pay Under False Pretenses’’ and ‘‘Fail-
ure to Follow Instructions.’’ This second charge was, basi-
cally, a repeat of the first.
Cogen testified that she was given this letter by Goller on
February 6, and that Goller said that he had been instructed
to give it to her. She asked him what it was all about and
he said: ‘‘Gail, I don’t know what this is about. I was just
informed to do this and I’m really sorry.’’ When she com-
plained that nobody had spoken to her about it, he again said
that he was sorry, but was told to do it. She has not worked
there since that day.
It is alleged that Cogen’s discharge was caused by her ac-
tivities on behalf of the Union (her actions as chief steward),
her protected concerted activities (her sanitary and health
complaints), and by the fact that she had filed unfair labor
practice charges with the Board, all in violation of Section
8(a)(1), (3), (4), and (5) of the Act.
In January, two female employees at the facility told
Cogen of unsanitary conditions in the ladies’ room. Cogen
spoke to the person in charge of maintenance at the facility
and filled out a postal service form reporting on hazardous
or unsafe working conditions, stating that body lice were
found in the ladies’ room. At the same time, Cogen prepared
a notice containing a picture of a sucking body louse and
posted it in the ladies’ room at the facility. The notice stated
that body louse were found on the toilet seat and that mainte-
nance said that they corrected it by cleaning and disinfecting
the area. The notice ended by telling the employees to be
careful when using the toilets. Cogen also posted this notice,
dated January 10, on the Union’s bulletin board at the facil-
ity. At the same time, Cogen made additional copies of the
notice and gave copies to Walter Mulcahy, a bargaining unit
employee and the director of maintenance for the Union. At
her request, Mulcahy posted the notice in the men’s rooms
and on several tables in the lunchroom. Shortly thereafter he
was told to report to the office of Bernie Badzinski, the man-
ager of mail processing at the facility. When he arrived, in
addition to Badzinski and others, the postmaster, Meredith
Osborne, and Nowacky were present. Badzinski began speak-
ing and Osborne held up the notice saying: ‘‘What the hell
is this all about?’’ Mulcahy told him to read the notice and
Osborne asked what they were doing. Mulcahy told Osborne
that Cogen had prepared the notice, and if he had a problem
with it he should speak to her about it directly. Mulcahy tes-
tified that later in January, after a fruitful discussion about
maintenance at the facility, Osborne told him: ‘‘You don’t
always have to file Labor Board charges like Gail Cogen.’’
Mulcahy testified further, that in February, shortly after
Cogen had been fired, Robert Glenn, supervisor of mainte-
nance at the facility, told him: ‘‘You better watch yourself,
you’ll be next.’’
On January 10 Cogen also filed a hazardous and unsafe
working conditions report alleging that large rodents were
nesting near the trash compactor. She did this after an em-
ployee complained to her about the situation. When she men-
tioned the situation to Dennis Heart, the Supervisor on Tour
III, he agreed with her that it was a problem, and wrote:
‘‘Recommend maintenance assist the needs for an extermi-
nator.’’
Nowacky testified that he was not aware of the hazardous
reports that Cogen filed regarding head lice or rats, although
he did see the notice that she and Mulcahy posted about head
lice. He never discussed the subject with Goller when he told
him that it was his decision about what to do with Cogen.
In his discussions with Osborne about the head lice, no ani-
mus was ever expressed toward Cogen. Goller also testified
that he heard about complaints of head lice and rats at the
facility, but did not know that Cogen had filed complaints
about them.
Cogen filed unfair labor practices with the Board on Sep-
tember 11 and November 12, 1991. The earlier charge al-
leged that Respondent refused to allow her to file and pursue
grievances, and interview witnesses, in violation of Section
8(a)(1) and (5) of the Act. The latter charge alleges that Re-
spondent issued a letter of warning to Cogen because of her
activities on behalf of the Union, in violation of Section
8(a)(1) and (3) of the Act. There has, apparently, been no
final determination on either of these charges. She testified
that in November 1991, while she and Osborne were in his
office, he referred to problems they had working together, al-
though it is not clear from her testimony whether he specifi-
cally referred to the Board charges. She told him that if other
problems could be resolved she would consider withdrawing
the charges; they weren’t and she didn’t. Hibbitt and Mitch-
ell each testified that they were not aware that Cogen filed
unfair labor practice charges with the Board. Nowacky testi-
fied that he was aware of Cogen’s unfair labor practice
charges with the Board, but never discussed it with Goller.
When Goller was asked whether he was aware of Cogen’s
Board charges, he testified that he didn’t recall. When he
was shown something, apparently an affidavit, he testified:
‘‘I guess, if that’s what it says in here.’’ As to whether this
Board charge affected his decision to discharge Cogen, he
testified: ‘‘Not in the least.’’
General Counsel also attempted to support his case by es-
tablishing disparate treatment toward Cogen, because of her
Union and other concerted activities. In this regard, Hibbitt
testified that employee Patricia Pajares was not fired for fail-
ing to turn in her jury duty check. The evidence on this sub-
ject is only that on August 6, 1991, Pajares wrote a check
to the Respondent in the amount of $20 for ‘‘repayment of
Jury Duty. Employee Cashed Court Check.’’ This was for 4
days of jury duty. Nowacky testified about two employees of
Respondent who were fired for abuse of court leave, and
both by their supervisor, without orders from him. One was
fired at the same time as Cogen for being paid for 3 days
court leave when she only served 2 days, and the other, for
accepting pay for 11 days of court leave when she only
served 9 days.
The remaining allegation is that Respondent refused to
provide the Union with requested information, which was
relevant to it as the employees’ collective-bargaining rep-
resentative, thereby violating Section 8(a)(1) and (5) of the
Act. The information requests relate to Cogen’s discharge in
that they request information on Respondent’s court leave
records. By request dated February 25, the Union made the
following request:
The Union requests an opportunity to review all court
leave records for all employees for fiscal year 1991.
The Union also requests for the second time a copy of
535POSTAL SERVICE
3 When warranted, Respondent’s inspection service investigates a
situation and prepares a report on the matter, an Investigative Memo-
randum.
the Investigative Memo3 pertaining to Ms. Cogen. The
Union in addition requests a copy of Supervisor John
Goller’s request for discipline on Ms. Cogen. This in-
formation is needed and germane for the Union to prop-
erly represent grievant Gail Cogen.
This request was denied on the same day by Joseph
Maloney, the tour III superintendent at the facility on the
grounds that the information was not relevant at that stage
of the grievance, but that if they still needed the information,
it would be available to them at step 3. He also informed
them that no Investigative Memorandum was prepared on the
subject. By letter dated April 23, Nowacky informed the
Union that it had come to his attention that they had re-
quested court leave records for employees in 1991, Goller’s
request for discipline of Cogen, and the Investigative Memo-
randum for Cogen. His letter continues:
If you will contact my office for an appointment I will
have the documents you requested available for your
review. Please be advised that an Investigative Memo-
randum has never been conducted and therefore cannot
be made available.
By letter dated April 29, Dennis Bowie, director of industrial
relations for the Union wrote to Nowacky requesting a spe-
cific date and time to inspect the records. The letter also stat-
ed: ‘‘The Union also requests a copy of all pertinent infor-
mation pertaining to Supervisor Alice Worrell’s falsification
of documents and her return to work.’’ By letter dated May
4, Nowacky wrote to Bowie setting forth a date, time and
place for Bowie and Cogen to examine the records requested,
except:
Your request for information regarding Alice Worrell is
denied. Specifically, it is not germane to your original
request. Additionally, the Privacy Act does not allow
me to provide such information without prior consent.
Cogen and Bowie came to the facility on May 14 pursuant
to Nowacky’s letter and examined the requested documents.
They were not given access to Supervisor Worrell’s file be-
cause Respondent alleges it is not relevant to the Union and
is protected by the Privacy Act. They also did not receive
an Investigative Memorandum on Cogen’s discharge because
it did not exist. Nowacky testified that, other than these two
items, the Union was showed ‘‘Anything pertaining to court
leave . . . . Everything that we had were made available.’’
Cogen testified that ‘‘There was a lot of information on em-
ployees that was missing,’’ in addition to the fact that no In-
vestigative Memorandum was produced, nor did they receive
the information about Worrell. However, it is unclear from
Cogen’s testimony what information, if any, of the promised
information was not supplied. At first she testified that some
form 3971s were missing and that Bowie and a representa-
tive of Respondent got into a discussion about this informa-
tion: ‘‘I know it wasn’t pertaining to the court leaks [sic] of
information.’’ She also testified that the Union wanted the
information about Worrell because she was told that Worrell
had falsified her time and was not punished: ‘‘Everyone on
the floor knew it.’’ When Cogen was asked when this oc-
curred, she testified: ‘‘I was told . . . .’’ Worrell was, alleg-
edly, transferred to the facility after the incident.
IV. ANALYSIS
The principal question herein is whether Cogen was fired
for falsifying her court leave and being paid by Respondent
for 3 days that she did not serve, or whether Respondent re-
taliated against her for her actions as chief shop steward, for
the health and safety complaints she filed and the notices she
posted, or because of the unfair labor practice charges that
she filed with the Board. Even absent credibility findings, I
find that General Counsel has satisfied his burden under
Wright Line, 251 NLRB 1083 (1980). Cogen was the chief
steward at the facility. She also prepared and posted the
health and safety notices regarding the lice and rats. In addi-
tion, in September and November 1991 she filed charges
with the Board. This could not have endeared her to Osborne
and Nowacky who had just assumed control of the facility
after many months of the facility being run by acting super-
visors. As Nowacky testified, in mid-September 1991 when
he assumed his position at the facility, there was a lot of
work and catching up to be done. He and Osborne could not
have been too thrilled by these ‘‘diversions’’ from Cogen.
Finally, there is no evidence that any employee was fired for
falsification of court leave prior to Cogen.
In order to determine whether Respondent has satisfied its
burden that it would have fired Cogen even absent her union
activities, protected activities, and Board charge, it is nec-
essary to make certain credibility determinations. For exam-
ple, Cogen testified that when Goller told her that she was
fired, he said that he had been instructed to do it, he didn’t
know what it was about, but was told to do it. Goller, on
the other hand, testified that once Nowacky told him that
Cogen’s situation was his decision to make, he, alone, made
the decision without even a suggestion from Nowacky. I
have no difficulty in crediting the testimony of Goller over
Cogen. Although he was, obviously, nervous, I found him to
be an extremely credible witness. He appeared to be testi-
fying as honestly and truthfully as he could remember with,
apparently, no animus toward the Union or Cogen. I also
found Hibbitt and Mitchell to be credible and believable wit-
nesses; they are union members and had nothing to gain by
supporting Respondent’s defense herein. Nowacky was also
an articulate and credible witness; although he probably shed
no tears at Goller’s decision to terminate Cogen, because I
found Goller and Nowacky so credible, I credit their testi-
mony that Nowacky left the decision to Goller, and Goller
made the decision without any orders or recommendation
from Nowacky. I also found credible Respondent’s expla-
nation for the long delay in Cogen’s discharge. It is not un-
reasonable that when Nowacky began in mid-September,
with a new postmaster, he had more important things to at-
tend to that caused him to forget Cogen’s court leave situa-
tion.
On the other hand, I found Cogen to be a less than cred-
ible witness. When the going got tough, she became evasive.
See, for example, her answers to why she did not work on
the days in question. What makes these answers even less
credible, is that they are not correct factually. She testified,
basically, that she did not report for work on the 3 days in
question when there was no jury duty because she didn’t get
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Union’s request dated February 25 also requests the Inves-
tigative Memorandum pertaining to Cogen. As the credible evidence
establishes that no Investigative Memorandum was prepared on the
subject, there was nothing to produce, and I therefore recommend
that this allegation be dismissed.
home from jury duty on the prior day until about 6 p.m. and
with showering, and transportation she would not be able to
report for work on time, as well as the fact that she would
have no time for sleep. What she forgot about was that she
had filed two form 3189 changing her shift from the mid-
night shift to 9 a.m. to 5 p.m. Presumably, on the 3 days in
question she could have reported for work at 9 o’clock
(maybe after first calling the facility to say that she would
be in) and worked the day shift. I also do not credit her testi-
mony that Melillo ‘‘okayed’’ her taking annual leave on the
days in question. It is undisputed that Melillo had no author-
ity to do so and, as the chief shop steward, Cogen knew this.
Melillo, a fellow bargaining unit member and union member
was a very credible witness and had nothing to gain by testi-
fying against Cogen’s interest. I credit her testimony over
that of Cogen. What makes these findings easier is that the
credible testimony (of Nowacky, Hibbitt, and Goller) estab-
lishes that, on a number of occasions, they asked her about
the situation and she said that she would get back to them,
but never did. The conclusion is unmistakable that she real-
ized that she was caught and was avoiding them. Finally,
when Nowacky questioned Cogen on about December 11,
1991, about the situation, she testified that she went to the
courthouse and learned that the court was not in session on
the day (or days) in question. She testified that she tried to
remember what occurred on that day. I find totally disingen-
uous her testimony about this:
I took a calendar and I looked and said May 20? What
was going on May 20? I had to think all the way back
to what took place that day and then I remembered
what took place that day.
What is so incredible about this is that 4 or 5 months earlier
Hibbitt had asked her about this same subject on two occa-
sions and she said that she would get back to him, but never
did.
I find that the decision to fire Cogen was made by Goller
only and was based solely upon his belief that she falsely
took pay for court leave when she was not on court leave,
and that he would have made the same decision absent her
union and protected concerted activities, and her Board
charges. Respondent has satisfied its burden under Wright
Line, and I therefore recommend that this allegation be dis-
missed.
The remaining issue is whether Respondent violated Sec-
tion 8(a)(1) and (5) of the Act by refusing to supply the
Union with requested information. There are two distinct vio-
lations alleged herein. The first was a request for the court
leave records for the fiscal year 1991. The request was made
on February 25 and denied by Maloney on the same day on
the ground that it was not relevant at that stage of the griev-
ance. By letter dated April 23, Nowacky informed the Union
that he would have these documents available for the
Union’s inspection, and Cogen and Bowie were given access
to these documents on May 14. I find that this request was
fully satisfied, although 2 months after the request was origi-
nally made.4 Respondent alleges that there is no violation be-
cause the request was fully satisfied; although they did not
agree to supply the information until 2 months after the re-
quest, Maloney told the Union that it would be made avail-
able to them at the next step of the grievance procedure, but
the Union never made that further request. General Counsel
alleges that the delay in supplying the information violates
the Act.
In Sheraton Hartford Hotel, 289 NLRB 463 (1988), the
Board, citing NLRB v. Acme Industrial Co., 385 U.S. 432
(1967), stated:
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.
The information that the Union requested on February 25
clearly is presumptively relevant under this standard as it in-
volves bargaining unit employees. It is also relevant to the
Union in disputing Cogen’s discharge: these records may as-
sist the Union in establishing a case of disparate treatment.
When a union is entitled to be provided with requested infor-
mation, it is entitled to the information in a timely manner.
Respondent provided no explanation for the delay of 2
months in telling the Union that they could have the informa-
tion other than Maloney’s statement that they would be enti-
tled to it at step 3 of the grievance procedure. This was not
a valid reason for delay. By this action the Respondent vio-
lated Section 8(a)(1) and (5) of the Act. Quality Engineered
Products Co., 267 NLRB 593 (1983); Champ Corp., 291
NLRB 803 (1988).
The final issue is whether Respondent’s refusal to provide
the Union with the requested information regarding Worrell,
a supervisor, violates the Act as well. Two prior matters in-
volving the Postal Service are relevant herein: 289 NLRB
942 (1988) and 301 NLRB (1991). In the prior matter, while
preparing to grieve the discipline and discharge of some of
its members for engaging in gambling activity, the union dis-
covered that some supervisors had also been involved in that
gambling activity. As a result, the union requested that the
Postal Service provide it with information regarding the dis-
cipline of the supervisors that were involved in this gambling
activity. This request was denied. The Board rejected the
Postal Service’s defenses and found that the union was enti-
tled to the information: ‘‘Thus, because the gambling prohi-
bition here applies to both groups, the requested information
potentially has some bearing’ on whether the unit employees
were harshly, unjustly or disparately treated.’’ Two aspects
of this case are missing from the instant matter: the union
had definite knowledge of the supervisor’s involvement and
537POSTAL SERVICE
5 If no 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. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 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.’’
the employer’s rules regarding the wrongdoing applied equal-
ly to supervisory and nonsupervisory employees. As stated
above, Sheraton Hartford stated that when the requested in-
formation relates to nonunit employees, relevance must be
established by more than mere suspicion. The request in the
instant matter was based on Cogen’s testimony that ‘‘every-
body knew’’ that Worrell had falsified her time and had been
transferred to the facility as a result. That is an insufficient
basis for the Union to be entitled to the information.
The other deficiency herein is that the record fails to es-
tablish that Respondent’s rules regarding falsification of
court leave apply equally to supervisory employees; in fact,
there is no record evidence, other than Cogen’s testimony
that everybody knew of Worrell’s transgression, that Re-
spondent had any similar rule regarding supervisors. For
these reasons I recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over Respondent by virtue
of Section 1209 of the PRA.
2. The APWU is a labor organization within the meaning
of Section 2(5) of the Act, and the Union is an agent of the
APWU.
3. At all times material herein, the Union, as agent of the
APWU, has been the exclusive representative of the employ-
ees in the following appropriate unit by virtue of Section 9(a)
of the Act:
All maintenance employees, special delivery mes-
sengers, motor vehicle employees and postal clerks em-
ployed by Respondent at its Hanover Township, New
Jersey location.
4. Respondent violated Section 8(a)(1) and (5) of the Act
by failing and refusing to provide the Union with requested
information in a timely and expeditious manner.
5. Respondent did not violate the Act as further alleged in
the complaint.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
necessary to effectuate the policies of the Act.
On the foregoing findings of fact, conclusions of law and
the entire record, I issue the following recommended5
ORDER
The Respondent, the United States Postal Service, Han-
over, Township, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by fail-
ing or refusing to furnish it with requested information re-
garding bargaining unit employees in a timely and expedi-
tious manner.
(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) Post at its facility in Hanover Township, New Jersey,
copies of the attached notice marked ‘‘Appendix.’’6 Copies
of the notice, on forms provided by the Regional Director for
Region 22, after being signed by 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 Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
IT IS FURTHER recommended that the allegations regarding
the termination of Gail Cogen and the refusal to turn over
the information regarding Supervisor Worrell be dismissed.