Postal Service

National Labor Relations Board - Board Decisions

Dec 31, 1991

305 N.L.R.B. 997 (N.L.R.B. 1991)

997
305 NLRB No. 154
POSTAL SERVICE
1 On November 1, 1989, Administrative Law Judge David S. Da-
vidson issued the attached decision. The Respondent filed exceptions
and a supporting brief, the General Counsel filed cross-exceptions
and a supporting brief, and the Charging Party filed limited cross-
exceptions with supporting argument. The General Counsel and the
Charging Party each filed an answering brief to the Respondent’s ex-
ceptions. The Respondent filed a brief in opposition to the General
Counsel’s cross-exceptions and the Charging Party’s limited cross-
exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
On July 9, 1990, the Union filed a document entitled ‘‘Notice of
Recent Authority,’’ referring the Board to a July 3, 1990 decision
by the United States Court of Appeals for the District of Columbia
Circuit. The Respondent did not oppose the Board’s acceptance of
this document. On January 24, 1991, however, the Union filed an-
other ‘‘Notice of Recent Authority,’’ which, for unexplained reasons,
referred the Board to the same judicial decision. Thereafter, the Re-
spondent filed a motion to strike part of the Union’s notice or, alter-
natively, to permit the Respondent to file a response to the notice.
In light of our unopposed acceptance of the Union’s earlier notice,
we reject as superfluous the second notice. Thus, the issues raised
by the Respondent’s motion are moot.
2 We deny the Union’s motion to strike portions of the Respond-
ent’s answering brief.
3 FOIA Sec. 552 (b)(7)(E) protects from mandatory disclosure:
records or information complied for law enforcement purposes, but
only to the extent that the production of such law enforcement
records or information . . . (E) would disclose techniques and proce-
dures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecu-
tions if such disclosure could reasonably be expected to risk cir-
cumvention of the law.
4 Member Devaney disagrees with the judge’s findings that the
Union could rely only on the reasons included in its original request
in establishing the relevance of the information it requested. Barnard
Engineering Co., 282 NLRB 617, 620 (1987); see also Hawkins
Construction Co., 285 NLRB 1313, 1315 (1987), enf. denied on
other grounds 857 F.2d 1224 (8th Cir. 1988). Thus, Member
Devaney believes that the Union is also entitled to the information
Continued
United States Postal Service and American Postal
Workers Union, AFL–CIO. Case 5–CA–
19374(P)
December 31, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The complaint in this proceeding1 alleges that the
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to provide information requested by the
Union in a September 8, 1987 letter. The Union re-
quested this information while processing a contractual
grievance over an April 22, 1986 incident. The griev-
ance alleged that postal inspectors imposed limitations
on the representative role of Union Steward John La-
Fleur during their interrogation of bargaining unit em-
ployee Barbara Edwards. Thereafter, the inspectors
forcibly ejected LaFleur from the interrogation.
The Board has considered the decision and the
record in light of the exceptions and briefs2 and has
decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this De-
cision and Order.
We agree with the judge, for the reasons fully set
forth in his decision, that the Respondent lawfully re-
fused to provide to the Union witness statements as
well as noneyewitness opinions, comments, and rec-
ommendations contained in the investigatory file about
the LaFleur incident. We also agree with the judge, for
the reasons fully set forth in his decision, that the Re-
spondent violated Section 8(a)(5) and (1) by refusing
to provide the Union the remainder of the investigatory
file and documents discussing the Respondent’s poli-
cies and practices concerning the role of LaFleur spe-
cifically, and that of stewards or union representatives
generally, in investigatory interviews. For the reasons
set forth below, however, we find, contrary to the
judge, that the Respondent also violated Section
8(a)(5) and (1) by refusing to provide requested docu-
ments discussing policies and practices governing the
use of force by postal inspectors against stewards and
employees in situations that involve stewards engaged
in representational duties and by refusing to provide
certain information about employee complaints against
the postal inspectors involved in the LaFleur incident.
1. Item 3 of the Union’s September 8, 1987 letter
requested: ‘‘All documents which discuss, refer or re-
late to the use of force by postal inspectors while on
duty, including, but not limited to, while conducting
investigatory interviews.’’ The information sought is
contained in the Postal Inspection Service’s Inspection
Service Manual (ISM) and its supplements. The judge
found that the information requested was relevant be-
cause it could have assisted the Union in its evaluation
of whether the LaFleur incident was likely to recur.
Applying the balancing test set forth in Detroit Edison
Co. v. NLRB, 440 U.S. 301 (1979), he further found
that the Union’s interest in having such relevant infor-
mation was outweighed by the Respondent’s interest in
maintaining its confidentiality. The Respondent relied
on the law enforcement exemption from the Freedom
of Information Act’s public disclosure requirements3
and on the supplemental testimony of Postal Inspector
Henry Bauman that disclosure of the ISM’s use of
force guidelines would risk circumvention of those
guidelines.
We agree with the judge that this information is rel-
evant to the processing of the LaFleur grievance. Con-
trary to the judge, we find that the Respondent’s inter-
est in confidentiality does not outweigh the Union’s
statutory interest in having information from the ISM
about the use of force by postal inspectors against
stewards and employees in situations that involve
stewards engaged in representational duties, including
investigatory interviews.4 In short, the Union wants to
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on the Respondent’s policies regarding the use of force in other situ-
ations involving unit employees.
know, in relevant part, what instructions the Respond-
ent has given inspectors regarding the use of force in
investigatory interviews, situations which clearly in-
volve the Union’s rights under the parties’ collective-
bargaining agreement and the Act. With such knowl-
edge, the Union could ascertain whether the inspectors
had transgressed their own rules in the LaFleur situa-
tion and whether these guidelines, themselves, were
likely to occasion future grievances because they were
arguably inconsistent with the parties’ agreement.
We find the Respondent’s arguments for confiden-
tiality unconvincing. There is no evidence in the record
to support a reasonable belief that stewards will use
the information to disrupt the investigatory process. It
is just as likely, if not more likely, that disclosure
would enable the Union to determine whether LaFleur
had exceeded any bounds established by the Respond-
ent and to counsel all stewards about how to conduct
themselves in the future in order to avoid the use of
force by postal inspectors. Conversely, the Respondent
has no legitimate interest in preventing the Union from
knowing if postal inspectors have themselves trans-
gressed established use of force guidelines in con-
frontations with stewards who have statutory and con-
tractual rights to represent employees.
The Respondent’s apparent concern is that the
Union, in possession of such knowledge, would be dis-
ruptive to a point just short of the use of force. The
alternative, however, would seem to invite provocation
of the use of force. On balance, we believe that the
Union’s substantial interest in knowing what guidelines
the Respondent has provided the inspectors outweigh
the Respondent’s speculative fear that the Union will
engage in brinkmanship. Accordingly, we find that the
Respondent violated Section 8(a)(5) by refusing to pro-
vide the Union with requested information about the
Respondent’s policies relating to the use of force by
postal inspectors against stewards and employees in
situations that involve stewards engaged in representa-
tional duties, including during investigatory interviews.
2. Item 6 of the Union’s September 8, 1987 letter
requested: ‘‘All documents which discuss, refer or re-
late to complaints by any Postal Service employees
about postal inspectors Mackert, Kicks, Krug and/or
Wilson,’’ the postal inspectors involved in the LaFleur
incident. The judge found, and we agree, that only in-
formation about complaints alleging conduct similar or
related to the conduct at issue in the LaFleur grievance
is relevant. The judge further found that the General
Counsel had failed to establish the relevance of the re-
quested information to remedies attainable in arbitra-
tion. He concluded that the Union’s interest in assess-
ing the postal inspectors’ credibility prior to arbitration
was outweighed by the Respondent’s confidentiality
interest in preventing disclosure of information that
could impair the effectiveness of the inspectors in-
volved. Consequently, the judge found that the Re-
spondent had not violated Section 8(a)(5) by refusing
to provide this information. The judge concluded that
the Respondent would incur an obligation to produce
this information for impeachment purposes in the event
that the inspectors testified contrary to the Union’s fac-
tual assertions at an arbitration hearing.
We find that the Respondent has a broader statutory
obligation to provide information about complaints al-
leging similar or related conduct by the postal inspec-
tors. In order to permit an independent investigation of
the LaFleur incident by the Union, the Respondent
must disclose the complaints themselves as well as the
inspection service findings made with respect to those
complaints, but not the identity of the employees who
lodged them. Further, we find that disclosure of this
information in advance of arbitration is necessary for
and relevant to the Union’s assessment of whether to
proceed to arbitration. Numerous complaints and find-
ings adverse to the postal inspectors could reflect fa-
vorably on the credibility of LaFleur’s version of
events and persuade the Union to commit its resources
on his behalf. The converse could also occur and avoid
litigation by both parties. In addition, the information
sought could assist the Union in ascertaining whether
any of the postal inspectors have engaged in a pattern
of abuse against postal employees or union stewards.
That evidence could also show a pattern of conduct
constituting a safety hazard, whereas a single incident
might not show this. Thus, the evidence is potentially
relevant to the merits of the Union’s grievance claim
that the Respondent has breached its contractual safety
obligations to employees. We do not, however, believe
that the names of the employees who made such com-
plaints are either potentially or actually relevant to the
LaFleur grievance. Thus, we will not order the Re-
spondent to disclose the identities of the individuals
who registered the complaints. Accordingly, we find
that the Respondent violated Section 8(a)(5) by refus-
ing to furnish the Union information about complaints
and findings concerning allegations of conduct by the
four postal inspectors which was similar or related to
the conduct involved in the LaFleur grievance.
ORDER
The National Labor Relations Board orders that the
Respondent, United States Postal Service, Washington,
D.C., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to provide the American Postal Work-
ers Union, AFL–CIO with requested information that
is necessary and relevant to the processing of a griev-
ance pursuant to its duties as exclusive bargaining rep-
resentative of the Respondent’s employees in a unit de-
999POSTAL SERVICE
5 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.’’
fined in the current National Agreement with the
Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide the Union with the following informa-
tion requested in its September 8, 1987 letter to the
Respondent: (1) the contents of the investigatory file
relating to the ejection of Steward John A. LaFleur
from an April 22, 1986 interrogation of employee Bar-
bara Edwards by postal inspectors, except that the Re-
spondent has no present obligation to provide witness
statements and comments, opinions, and recommenda-
tions of those who were not eyewitnesses to the La-
Fleur incident; (2) all documents which discuss, refer
to, or relate to the use of force by postal inspectors
against union stewards and employees in situations that
involve stewards engaged in representational duties, in-
cluding participation in investigatory interviews; (3) all
documents which discuss, refer to, or relate to the
Postal Service’s policies and practices concerning the
role of stewards or union representatives in investiga-
tory interviews; (4) all documents which discuss, refer
to, or relate to LaFleur’s conduct as shop steward in
the Edwards interview or any other investigatory inter-
view; and (5) all findings and underlying complaints
alleging that Postal Inspectors Mackert, Hicks, Krug,
and/or Wilson engaged in conduct similar or related to
the conduct alleged in the LaFleur incident, excluding
the names of the complainants and any information as
to their identities.
(b) Post at its facility in Baton Rouge, Louisiana,
copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
gional Director for Region 15, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately 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 Re-
spondent has taken to comply.
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 provide the American Postal
Workers Union, AFL–CIO with information that is
necessary and relevant to the processing of a grievance
pursuant to its duties as exclusive bargaining represent-
ative of our employees in a unit defined in our current
National Agreement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL provide the Union with the following in-
formation which it requested in a September 8, 1987
letter to us: (1) the contents of the investigatory file re-
lating to the ejection of Steward John A. LaFleur from
an April 22, 1986 interrogation of employee Barbara
Edwards by postal inspectors, except that we have no
present obligation to provide witness statements and
the comments, opinions, and recommendations of those
who were not eyewitnesses to the LaFleur incident; (2)
all documents which discuss, refer to, or relate to the
use of force by postal inspectors against union stew-
ards and employees in situations that involve stewards
engaged in representational duties, including investiga-
tory interviews; (3) all documents which discuss, refer
to, or relate to the Postal Service’s policies and prac-
tices concerning the role of stewards or union rep-
resentatives in investigatory interviews; (4) all docu-
ments which discuss, refer to, or relate to LaFleur’s
conduct as shop steward in the Edwards interview or
any other investigatory interview; and (5) all findings
and underlying complaints alleging that Postal Inspec-
tors Mackert, Hicks, Krug and/or Wilson engaged in
conduct similar or related to the conduct alleged in the
LaFleur incident, excluding the names of the complain-
ants and any information as to their identities.
UNITED STATES POSTAL SERVICE
James P. Lewis, Esq., for the General Counsel.
Mary Anne Gibbons and Jesse L. Butler, Esqs., of Wash-
ington, D.C., for the Respondent.
Anton G. Hajjar, Esq. (O’Donnell, Schwartz & Anderson),
for the Charging Party.
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I granted motions to strike a reply brief submitted by Respondent
because it had not moved for leave to file a reply brief and in its
opposition to the motions to strike made no showing of special cir-
cumstances which would warrant receiving the reply brief. Pursuant
to Respondent’s request, the motions to strike filed by counsel for
the Acting General Counsel and the Charging Party, Respondent’s
opposition, and a sealed copy of the reply brief proffered by Re-
spondent have been marked and received in evidence as administra-
tive law judge’s Exhs. 1, 2 , and 3, and R. Exh. 4.
2 Art. 14 has no sec. 11. In responding to the Union’s request for
information on March 4, 1988, Assistant Postmaster General Mahon
treated this as a reference to sec. 1. In Respondent’s brief it is treat-
ed as a reference to sec. 2, evidently reading 11 as a Roman nu-
meral. I find Mahon’s initial construction more likely, but either
leads ultimately to the same conclusion.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge. This case
was tried in Washington, D.C., on February 1, 2, and 23,
1989. American Postal Workers Union, AFL-CIO (the
Union) filed the charge on January, 21, 1988, and the com-
plaint issued on March 28, 1988. The complaint alleges that
Respondent has failed and refused to furnish the Union cer-
tain requested information which is necessary and relevant to
the Union’s performance of its function as collective-bar-
gaining representative of certain of Respondent’s employees.
Respondent denies the commission of any unfair labor prac-
tices and contends affirmatively that the Union failed to ne-
gotiate in good faith before filing the underlying charge, that
the information sought is not relevant or necessary to the
performance of the Union’s duties, and that Respondent’s in-
terest in maintaining the confidentiality of the information
sought outweighs the Union’s interest in obtaining it.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by all parties,1 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, United States Postal Service, is an inde-
pendent establishment created by the Postal Reorganization
Act of 1970. It provides postal services and operates facili-
ties throughout the United States. The Board has jurisdiction
over this matter by virtue of section 1209 of the Postal Reor-
ganization Act, 39 U.S.C. § 1209. The Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The grievance
On April 22, 1986, Barbara Edwards, an employee rep-
resented by the Union at Respondent’s Baton Rouge facility,
was called in for interrogation by postal inspectors. She re-
quested a union representative, and shop steward John A. La-
Fleur was called. Thereafter, on April 25, 1986, Douglas
Mullins, president of the Union’s Baton Rouge Local filed
a grievance at step 2 of the grievance procedure. The griev-
ance alleged violation of article 14, section 112 and article
17 of the the National Agreement between the Union and the
Respondent. The grievance set forth the following statement
of facts and contentions:
On or about April 22, 1986, an APWU Bargaining Unit
employee was called in to be interogated [sic] by the
Postal Inspectors. She requested a union representative.
Mr. John A. LaFleur, an official certified shop steward
and Louisiana APWU Executive Vice President, served
in that capacity. Prior to the interogation, the Inspectors
called Mr. LaFleur aside and instructed him that he was
to remain silent and that he could not take an ‘‘active’’
role in the session. Mr. LaFleur replied that he would
conduct himself as the union representative was obli-
gated to do. During the initial phase of the interogation,
the inspectors continually rebuked his efforts to offer
advice to the employee being interogated. Eventually,
. . . three (3) Inspectors physically threw Mr. LaFleur
out of the interogation office. (One held the door open
while two threw him through the door). Fortunately,
Mr. LaFleur did not sustain any disabling injuries. This
sort of behavior by professional law officers is totally
uncalled for. It could have resulted in serious injury to
a postal employee. Aside from that . . . it was an in-
sulting offense . . . a dehumanizing act and causes a
loss of respect for law enforcement officials. It must be
condemned.
As corrective action the Union ‘‘demanded that postal of-
ficials at the highest levels be appraised [sic] of this incident
and that appropriate action be taken to insure that it does not
recur.’’
Attached to the grievance were statements by LaFleur and
Edwards setting forth their versions of what happened at the
interview through the point of LaFleur’s removal from the
room. Also attached was a copy of a letter from Chief Postal
Inspector Fletcher to General Executive Vice President
Burrus of the Union dated May 24, 1982, dealing with the
role of union representatives at investigatory interviews and
responding to Burrus’ ‘‘expressed concern that the Inspection
Service has adopted a policy that union representatives be
limited to the role of a passive observer in such interviews.’’
In it Fletcher wrote:
Please be assured that it is not Inspection Service
policy that union representatives may only participate
as passive observers. We fully recognize that the rep-
resentative’s role or purpose in investigatory interviews
is to safeguard the interests of the individual employee
as well as the entire bargaining unit and that the role
of passive observer may serve neither purpose. Indeed,
we believe that a union representative may properly at-
tempt to clarify the facts, suggest other sources or in-
formation, and generally assist the employee in articu-
lating an explanation. At the same time, as was recog-
nized in the Texaco opinion you quoted, an Inspector
has no duty to bargain with a union representative and
may properly insist on hearing only the employee’s
own account of the incident under investigation.
We are not unmindful of your rights and obligations
as a collective bargaining representative and trust that
you, in turn, appreciate the obligations and responsibil-
ities of the Inspection Service as the law enforcement
1001POSTAL SERVICE
arm of the U. S. Postal Service. In our view, the inter-
ests of all can be protected and furthered if both union
representative and Inspector approach investigatory
interviews in a good faith effort to deal fairly and rea-
sonably with each other.
On May 1, 1986, Archie Salisbury, regional coordinator
for the Union, wrote Chief Inspector J. M. Kelly of the Post-
al Service asking him to investigate the incident during the
Edwards interview and to advise the Union of any corrective
action taken. On May 22, 1986, Kelly responded. In his letter
Kelly stated that he was unable to agree with Salisbury’s ac-
count of the incident as described in his letter. Among other
things, Kelly stated:
Subsequent to [LaFleur’s removal from the room], the
clerk requested that the interview continue in the pres-
ence of another union representative. This request was
also granted. The second APWU official believed that
the interview should not proceed. When the clerk
agreed that the interview should be discontinued, it
was.
In his letter Kelly concluded that the inspectors involved
had not violated the spirit or intent of the May 24, 1982 let-
ter from former Chief Postal Inspector Fletcher to the Union.
Supporting this conclusion he wrote:
[O]ur assessment of the tone of Mr. LaFleur’s request
along with the attendant circumstances suggests that his
intent was to demean and embarrass these Inspectors.
The May 24, 1982, letter does not require that Inspec-
tors be subjected to this type of situation. In fact, the
letter states that Inspectors should ‘‘. . . insist on hear-
ing only the employee’s own account of the incident
under investigation.’’ Our internal operating instructions
require that Inspectors be fair but firm in dealings with
representatives of postal employee Unions. I am con-
vinced that the involved Inspectors acted properly given
the circumstances with which they were confronted.
On August, 29, 1986, the Union received a step 2 decision
on the grievance. After summarizing the Union’s contentions,
it stated:
Management Contentions: Management contends that
the Postal Inspection Service is another branch and this
office has no control over actions taken by this branch
of the agency. Mr. LaFleur was advised at the time to
seek another avenue for his complaint against the In-
spection Service.
The grievance is denied.
On September 2, 1986, the Union appealed the grievance
to step 3 of the grievance procedure. In its appeal the Union
stated:
The Union’s position remains unchanged. This griev-
ance actions [sic] concerns safety . . . the physical
abuse of a postal employee. It is our contention that the
local installation head does have the authority to com-
ply with our remedy.
On October, 24, 1986, a labor relations representative of
Respondent’s southern regional office sent the Union its step
3 decision which contained the following:
Based on information presented and contained in the
grievance file, the grievance is denied. The facts are un-
clear relative to the conduct of the inspectors involved.
The remedy requested is basically unattainable at Step
3 of the grievance procedure.
. . . .
In our judgment, the grievance does not involve any
interpretive issue(s) pertaining to the National Agree-
ment or any supplement thereto which may be of gen-
eral application. Unless the Union believes otherwise,
the case may be appealed directly to regional arbitration
in accordance with the provisions of Article 15 of the
National Agreement.
Thereafter, the Union appealed the grievance to step 4 of
the grievance procedure. It is presently awaiting arbitration.
2. The request for information
Pursuant to a Freedom of Information Act request, on May
29, 1987, Respondent transmitted to union counsel 70 pages
of substantially ‘‘sanitized’’ material from the file of the in-
ternal investigation conducted by the Special Investigations
Division of the inspectors involved in the Edwards interview
incident.
On September 8, 1987, Union President Biller wrote
Thomas Fritsch, then assistant postmaster general for labor
relations, as follows:
Please provide the following information as soon as
possible, in connection with the above-pending griev-
ance, which involves an assault upon APWU Shop
Steward John LaFleur by postal inspectors on or about
April 22, 1986. Please note: if any part of this request
is denied, please provide the rest as soon as possible,
which the union will accept immediately without preju-
dice to its position that it is entitled to all documents
called for in the request.
1. The entire file of the Postal Investigation Service’s
investigation into this matter.
2. All documents which discuss, refer or relate to the
circumstances leading up to and surrounding John
LaFleur’s ejection from the Barbara Edward’s [sic]
interview in Baton Rouge, Louisiana, on April 22,
1986.
3. All documents which discuss, refer or relate to the
use of force by postal inspectors while on duty, includ-
ing, but not limited to, while conducting investigatory
interviews.
4. All documents which discuss, refer or relate to the
Postal Service’s policies and practices concerning the
role of stewards or union representatives in investiga-
tory interviews.
5. All documents which discuss, refer or relate to
John LaFleur’s conduct as shop steward in this or any
other investigatory interviews.
6. All documents which discuss, refer or relate to
complaints by any Postal Service employees about post-
al inspectors Mackert, Hicks, Krug and/or Wilson.
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent also asserted in its answer and at the hearing that the
complaint should be dismissed pursuant to Collyer Insulated Wire,
192 NLRB 837 (1971). However, present Board policy is not to
defer information cases for arbitration. Postal Service, 280 NLRB
685 fn. 1 (1986), enfd. 841 F.2d 1441 (6th Cir. 1988).
On October 5, 1987, Assistant Postmaster General Fritsch
replied, pointing out that the Postal Service and the Union
had agreed previously to hold this grievance in abeyance
pending the outcome of a lawsuit filed by the Union and La-
Fleur arising out of the same events. Fritsch added that as
the suit had just been voluntarily dismissed ‘‘we will be pro-
viding you with a further response in the very near future.’’
On December 11, 1987, Biller wrote Fritsch enclosing a
copy of his September 8 letter and asked for a reply as soon
as possible. Biller indicated that he understood that a reply
had been held up pending settlement discussions but that
they had failed. He concluded, ‘‘Accordingly, we request
production of this information forthwith.’’
On January 21, 1988, the Union filed the charge in this
case.
3. Respondent’s denial of the request
On March 4, 1988, Assistant Postmaster General Joseph J.
Mahon Jr., who had succeeded Fritsch, replied to Biller.
After briefly summarizing the history of the information re-
quest and the content of the grievance, he wrote:
Although the grievance claims a violation of Article
14, Section 1 and Article 17 of the 1984 National
Agreement, the facts alleged in the grievance, even if
taken as true, would not constitute a violation of these
provisions of the 1984 National Agreement. Article 14,
Section 1 concerns the responsibilities of postal man-
agement and the Unions to ensure safe working condi-
tions for employees. Because the Union admits that Mr.
LaFleur did not suffer any injury in connection with the
alleged actions of the Postal Inspectors, there does not
appear to be any violation of Article 14, Section 1.
Article 17, Section 3 sets forth the right of a Union
steward to be present during an investigatory interview
conducted by the Inspection Service and certain other
rights and responsibilities of Union stewards. The griev-
ance does not identify a violation of any provision of
Article 17, Section 3, or of any other provision of Arti-
cle 17. All of the conduct complained of in the griev-
ance occurred after the investigatory interview attended
by Mr. LaFleur was terminated. The National Agree-
ment does not permit a Union steward to refuse to
leave an Inspection Service office after an investigatory
interview is concluded. Therefore, based on the facts al-
leged in the grievance, there also does not appear to be
any violation of Article 17 of the National Agreement.
Indeed, even if the grievance had stated any
colorable violation of the Agreement, the Union has al-
ready received the relief requested therein. The only re-
lief requested by the grievance is that ‘‘postal officials
at the highest levels be appraised [sic] of this incident
and that appropriate action be taken to insure that it
does not recur.’’ As you know, on May 1, 1986, Archie
Salisbury, APWU’s Southern Regional Coordinator,
sent a letter to the Regional Chief Postal Inspector for
the Southern Region concerning the incident described
in this grievance. On July 30, 1986, you sent a similar
letter to the Chief Postal Inspector at Postal Service
Headquarters. After receiving these letters, the Inspec-
tion Service conducted a special investigation into the
conduct of the Postal Inspectors involved in the activi-
ties described in your letter. At the Union’s request, an
attorney representing the Union was permitted to be
present during interviews of the Union steward, Mr. La-
Fleur, as well as the employee who was being inter-
viewed by the Postal Inspectors prior to the time Mr.
LaFleur was asked to leave the Inspection Service of-
fice. When the investigation was completed, the Inspec-
tion Service informed the Union that they had con-
cluded that the Postal Inspectors’ actions in removing
Mr. LaFleur from their office were proper. Thus, even
if the grievance had alleged any facts constituting a
colorable violation of the 1984 National Agreement, the
relief requested by the Union has already been pro-
vided.
Because the grievance does not allege any violation
of the 1984 National Agreement, the information re-
quest is inappropriate and the request is hereby denied.
The Union did not respond to Mahon’s letter.
B. Concluding Findings
1. The contentions of the parties
The General Counsel and the Charging Party contend that
all of the information sought by the September 8, 1987 letter
is necessary and relevant to the performance of the Union’s
function as bargaining representative. The Respondent con-
tends that the complaint should be dismissed because the
Union failed to negotiate in good faith before filing the un-
fair labor practice charge in this case, because the Union
failed to produce any creditable evidence that the underlying
grievance states even a colorable violation of the national
agreement, because even if it states a colorable violation of
the national agreement, the information sought is not relevant
and necessary to the processing of the grievance, and be-
cause even if the information is relevant and necessary, the
Postal Service’s interest in not providing the information out-
weighs the Union’s interest in obtaining it.3
2. Respondent’s affirmative defenses
a. The Union’s alleged lack of good faith
Two of Respondent’s defenses would dispose of the entire
complaint. Therefore, they will be considered before reaching
the merits with respect to the specific information requests.
Respondent contends that general principles underlying the
duty to furnish information require a union to explain the
reason for a request for information when the request is first
made. Respondent contends further that when management
responds in good faith and states specific objections to the
request but provides some information the Union is obligated
to explain further why the remaining information is relevant
and necessary to the Union’s performance of its bargaining
obligations. Respondent contends that if the Union fails to
respond to management’s objections and instead attempts to
prosecute its request through the Board, resort to the Board
is premature and casts doubt upon the Union’s good-faith
1003POSTAL SERVICE
4 NLRB v. Electrical Workers Local 497, 795 F.2d 836, 838 (9th
Cir. 1986).
need or desire for the information. Finally, Respondent con-
tends that the facts in this case require invoking these prin-
ciples to find that the Union had no good-faith need or desire
for the information sought in its September 8 letter.
While Respondent contends that the Union failed to give
an adequate explanation of the reason it sought the informa-
tion in its September 8 letter, the statement that it sought the
information in connection with the LaFleur grievance which
the Union identified by number and description was ade-
quate. That ‘‘the bare assertion that information is needed to
process a grievance does not oblige the party from whom it
is requested to turn it over’’4 does not mean that the initial
request must state more than the September 8 letter con-
tained, and nothing in the cases cited by Respondent supports
the latter proposition.
Respondent did not supply any information in response to
the September 8 request, but some time before the September
letter was sent had furnished a substantially sanitized version
of the Inspection Service file in response to the earlier FOIA
request. That information cannot be viewed as a partial re-
sponse to the Union’s request which was made after that in-
formation was received.
Respondent argues that Mahon’s March 4 response re-
quired the Union to attempt to reach some sort of com-
promise with Respondent before prosecuting its charge be-
fore the Board. However, in Soule Glass Co. v. NLRB, 652
F.2d 1055 (1st Cir. 1981), on which Respondent relies, and
similar cases, the employer’s response indicated willingness
to supply some information, stated a problem in supplying
the information as requested, and invited agreement upon an
alternative. In those circumstances the Union must try to
reach a compromise before resorting to the Board. Here Re-
spondent raised no problem with the form of the request,
suggested no possibility of an alternative, and asserted rea-
sons for its denial that left nothing further to discuss.
Finally, the Union’s resort to the Board’s processes cannot
be viewed as premature, given the chronology of events in
this case. The request for information was made on Sep-
tember 8, 1987. Although the parties apparently agreed to
some further delay, by December 11 the purpose of the delay
had been served, and the Union renewed its request, asking
for a reply as soon as possible. Six weeks later the Union
had received no reply and filed the charge in this case. The
reply to the request, refusing the requested information, was
not sent until 6 weeks after that.
I find no basis for Respondent’s contention that the Union
violated its obligation to bargain in good faith by filing and
pursuing its charge.
b. The alleged lack of colorable merit to the grievance
Respondent concedes that the Board is sometimes reluctant
to look at the merits of an underlying grievance in deciding
whether an employer has improperly refused to furnish infor-
mation. Respondent contends, however, that the trier must
make at least a threshold determination that the grievance
presents a colorable violation of the contract provisions on
which it is based. Assuming that to be the case, I find that
the grievance at issue meets that test.
Article 14, section 1, of the National Agreement provides:
It is the responsibility of management to provide safe
working conditions in all present and future installa-
tions and to develop a safe working force. The Unions
will cooperate with and assist management to live up
to this responsibility. The Employer agrees to give ap-
propriate consideration to human factors in the design
and development of automated systems.
Article 14, section 2, provides:
The Employer and the Unions insist on the observance
of safe rules and safe procedures by employees and in-
sist on correction of unsafe conditions. Mechanization,
vehicles and vehicle equipment and the work place
must be maintained in a safe and sanitary condition, in-
cluding adequate occupational health and environmental
conditions. The Employer shall make available at each
installation forms to be used by employees in reporting
unsafe and unhealthful conditions. . . .
Article 17, section 3, of the National Agreement provides,
among other things:
If an employee requests a steward or Union representa-
tive to be present during the course of an interrogation
by the Inspection Service, such request will be granted.
All polygraph tests will continue to be on a voluntary
basis.
Mahon’s March 4 letter to Biller rejected the Union’s in-
formation request on the ground that the National Agreement
had not been violated. It reasoned that:
a. Article 14, section 1, was not violated because the
Union admitted that LaFleur was not injured by the postal
inspectors who removed him from the room;
b. Article 17, section 3, was not violated because all of
the conduct complained of occurred after the investigatory
interview of Edwards was terminated; and
c. Even if the grievance had alleged any colorable viola-
tion of the agreement, the Union had already received the re-
lief requested.
At the hearing Respondent presented testimony of two in-
spectors that they did not continue the Edwards interview
after LaFleur was removed from the room. Respondent also
presented the testimony of a labor relations specialist for Re-
spondent that the grievance did not allege a violation of arti-
cle 17 because the interview was terminated when LaFleur
was ejected and did not allege a violation of article 14 be-
cause article 14 concerns the safety of mechanization, facili-
ties, and vehicles.
I have substantial doubt that this testimony should have
been received, for the purpose of this proceeding was not to
resolve factual issues relating to the underlying grievance or
its merits. Moreover, a party seeking to enforce its rights to
information should not be required to produce witnesses and
pretry any aspect of the underlying grievance. Respondent’s
contention is that the grievance lacked colorable merit, and
that must be determined on the basis of what appears on the
face of the grievance and the related documents.
However, even considering the additional evidence offered
by Respondent I find that the grievance has a colorable basis.
Assuming that no further attempt was made to question Ed-
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 NLRB v. Postal Service, 841 F.2d 141, 144–145 fn. 3 (6th Cir.
1988), enfg. 280 NLRB 685 (1986); Postal Service, 289 NLRB 942
(1988).
wards after LaFleur was ejected from the room, questions re-
main as to the applicability of articles 14 and 17.
In Regional Chief Inspector Kelly’s letter to Salisbury he
indicated that after LaFleur was evicted the inspectors at-
tempted to continue the interview with another union rep-
resentative. Even from the inspectors’ testimony there is no
indication that they terminated the interview before ejecting
LaFleur, and there is a question for an arbitrator as to the
steward or representative’s right to remain in the room until
the interview was terminated. To say that the inspectors did
not continue the interview after they ejected LaFleur does not
answer that question. In addition, the grievance raises the
question as to what the steward or representative’s rights
under article 17 were while he was in the room, whether
there was a limitation placed on his participation by the in-
spectors which violated article 17, and whether it was an in-
fringement of those rights to eject him for his attempt to as-
sist Edwards. An arbitrator may deem it appropriate to con-
sider whether article 17 should be interpreted in the light of
Postal Service policy as set forth in the attachment to the
grievance or other sources. As Phillip Tabbita, special assist-
ant to the Union’s president, testified, even if the interview
was terminated by LaFleur’s ejection, the limits on the right
of the steward to participate in the interview before he was
ejected would remain at issue.
With respect to article 14 the reason advanced in the
Mahon letter itself lacks color. If an employee complained
that a missing safety device placed him in jeopardy of loss
of a limb, it would be no defense that he had not yet been
injured. The additional argument based on the testimony at
the hearing that article 14 was intended to cover only phys-
ical surroundings and equipment may be shown in arbitration
to have greater merit, but on the face of either section 1 or
2 and in the context of the entire article, Respondent appears
to have undertaken not only to provide safe equipment but
a safe work force, safe work procedures, and safe working
conditions. The opinion of an official charged with rep-
resenting management’s interests in the administration of the
contract cannot be the basis for keeping the issue from arbi-
tration or concluding that that there is no colorable basis for
construing the language of article 14 more broadly to cover
threat of physical harm arising from the conduct of other em-
ployees.
Finally, the contention in the Mahon letter that the Union
had received the remedy it sought is patently without merit.
To be sure, the incident had reached the attention of postal
officials at the highest levels, but far from taking appropriate
action to insure that it did not recur, the only response the
Union received was that the grievance had no merit and that
after investigation the regional chief postal inspector was un-
able to agree with the Union’s account of the incident, sup-
ported the conduct of the inspectors, and placed the blame
on LaFleur for what happened and the termination of the
interview. In addition, while the regional chief stated the be-
lief that the inspectors had not violated the spirit or intent
of the May 24, 1982, Fletcher letter, the regional chief’s let-
ter raised a question as to whether there were internal oper-
ating instructions which went beyond the policy set forth in
that letter. There is no basis to conclude that the Union had
received the remedy it sought.
3. The relevance of the requested information and
Respondent’s specific defenses
a. Principles and contentions
The general principles applicable to information cases are
not in dispute. As set forth in Bohemia, Inc., 272 NLRB
1128, 1129 (1984):
It is well established that an employer must provide a
union with requested information ‘‘if there is a prob-
ability that such data is relevant and will be of use to
the union in fulfilling its statutory duties and respon-
sibilities as the employees’ exclusive bargaining rep-
resentative.’’ Associated General Contractors of Cali-
fornia, 242 NLRB 891, 893 (1979), enfd. 633 F.2d 766
(9th Cir. 1980); NLRB v. Acme Industrial Co., 385 U.S.
432 (1967). The Board uses a liberal, discovery-type
standard to determine whether information is relevant,
or potentially relevant, to require its production. NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956). Information
about terms and conditions of employment of employ-
ees actually represented by a union is presumptively
relevant and necessary and is required to be produced.
Ohio Power Co., 216 NLRB 987 (1975), 531 F.2d
1381 (6th Cir. 1976). Information necessary for proc-
essing grievances under a collective-bargaining agree-
ment, including that necessary to decide whether to pro-
ceed with a grievance or arbitration, must be provided
as it falls within the ambit of the parties’ duty to bar-
gain. NLRB v. Acme Industrial, supra; Bickerstaff Clay
Products, 266 NLRB 983 (1983).
However, when a union’s request for information
concerns data about employees or operations other than
those represented by the union, or data on financial,
sales, and other information, there is no presumption
that the information is necessary and relevant to the
union’s representation of employees. Rather, the union
is under the burden to establish the relevance of such
information. Ohio Power, supra.
In addition to challenging the relevance and necessity of
each of the requested items of information, Respondent con-
tends that its interest in preserving the confidentiality of most
of the requested information outweighs the Union’s interest
in obtaining it.
In support of its argument for maintaining confidentiality
of most of the requested information, Respondent relies in
part on both the Privacy Act (5 U.S.C. § 552a) and the Free-
dom of Information Act (5 U.S.C. § 552). To the extent that
Respondent contends that either constitutes an absolute de-
fense to the alleged obligation to furnish information, the
contention cannot be sustained. It is now well established
that ‘‘if the National Labor Relations Act requires the Postal
Service to supply the desired information, the unconsented-
to disclosure of such would fall within the ‘routine use’ ex-
ception to the Privacy Act.’’5 Turning to the Freedom of In-
formation Act, it establishes rights of the public-at-large to
information in government files. The exceptions to those
1005POSTAL SERVICE
6 Detroit Edison Co. v. NLRB, 440 U.S. 301, 318 fn. 16 (1979);
Anheuser-Busch, Inc., 237 NLRB 982, 984 (1978).
7 One cannot help but observe that a more forthcoming response
to the Union dealing with the individual items requested and inviting
discussion of ways to satisfy the Union’s information needs while
meeting Respondent’s concerns might well have narrowed any issues
remaining for this proceeding and even have eliminated the need for
it altogether.
8 Item 1 seeks the entire file of the investigation, and item 2 seeks
all documents relating to the circumstances surrounding LaFleur’s
ejection from the Edward’s interview. Testimony established that all
documents sought in item 2 are contained in the investigation file.
9 Tabbita did not participate in determining the contents of the in-
formation request and did not participate in handling the grievance
for the Union other than as part of the group that decided to send
it to arbitration. He testified on the basis of his review of the griev-
ance file, the information furnished the Union pursuant to its FOIA
request, an affidavit of Henry Bauman which was attached to Re-
spondent’s Motion for Summary Judgment, and his experience as a
local union officer, shop steward, arbitration advocate, member of
the national arbitration committee, and other duties of his position.
I find that his experience and his position qualified him to testify
as to the reasons the Union needed the information.
10 Henry Bauman, a postal inspector who serves as manager of the
legal liaison branch within the office of administration of the Postal
Service, so testified. A lawyer by training, he is responsible for pro-
viding counsel to the Inspection Service in a number of areas, in-
cluding the release of Inspection Service records pursuant to FOIA
and the routine use exceptions to the Privacy Act. Bauman, however,
had no role in the investigation of the incident at the Edwards inter-
view and no contact with the file before this proceeding arose.
11 At the hearing and in brief Respondent has stated that it does
not believe that there are any material factual disputes in the record
with respect to the underlying grievance. Yet at the hearing the par-
ties were unable to agree to a proposed stipulation concerning
whether the investigatory interview of Edwards continued after La-
Fleur was ejected from the room, and the Charging Party points to
a possible inconsistency in the position taken by Respondent with
respect to this issue. The material furnished the Union under FOIA
states that there were two fundamental differences in the facts as re-
called by LaFleur and another witness and discloses only LaFleur’s
version. The other version and the identity of the other person are
blacked out.
rights, on which Respondent relies, apply directly only to
those rights and not to rights created under other statutes.
When a defense of confidentiality is raised, the Board
must balance the interests of the party seeking the informa-
tion against those of the party asserting the defense, and may
look to other statutes, including the Privacy Act and the
FOIA, as sources of policy to be considered in striking the
balance.6
The Charging Party contends that the claim of confiden-
tiality should be rejected because Respondent did not make
this claim in its response to the Union’s information request
but raised it for the first time in its answer to the complaint
and its Motion for Summary Judgment. While this claim
might better have been made in the original response instead
of rejecting the Union’s request in toto on questionable
grounds,7 Respondent did not waive its right to raise it now,
and its failure to raise it earlier does not indicate that the
claim has no merit. Having taken the position in its answer
to the Union that it need furnish no information, it was not
necessary for Respondent to state additional grounds for re-
jecting individual items requested.
b. The file of the investigation of the LaFleur ejection
In items 1 and 2 of the Union’s September 8 request it
seeks the entire file of the Postal Inspection Service’s inves-
tigation of the incident at the Edwards interview.8 Respond-
ent in its brief concedes that if the grievance alleges a
colorable violation of the National Agreement, then the infor-
mation sought in these two items may be relevant but con-
tends that there is no showing that it is necessary.
Phillip Tabbita, special assistant to the Union’s president,9
testified that it was needed to enable the Union to determine
whether to pursue the grievance to arbitration and how to ad-
vocate it in arbitration. Tabbita pointed out that there were
disputed facts and that the Union wanted to know on what
facts Respondent claimed that the actions of the inspectors
were justified. He pointed out that from the sanitized version
which Respondent had supplied pursuant to the FOIA request
the Union could determine only what it already knew.
Respondent argues that it had already furnished the Union
‘‘most of the information’’ sought in items 1 and 2 in re-
sponse to the FOIA request and that the Union failed to ex-
plain why this information was not sufficient for its pur-
poses. Although Respondent argues that the information fur-
nished included ‘‘statements by Ms. Edwards, Mr. LaFleur
and others and a summary of the circumstances under which
Mr. LaFleur was removed from the Inspector’s office,’’
much is blacked out in the material furnished the Union. Of
41 numbered paragraphs in the investigative memorandum,
all but 12 are completely blacked out, and of the 12, parts
of 3 are blacked out. Respondent points to two paragraphs,
19 and 20, as evidence that the Union had ample information
for the purposes stated by Tabbita. Yet even portions of
those paragraphs are blacked out. Contrary to Respondent’s
assertion in its brief, there are no statements other than state-
ments of LaFleur in the material furnished, and examination
of that material supports the General Counsel’s contention
that Respondent had given the Union no more than it already
knew.
From an examination of the sanitized version of the file
at issue here, it appears that the complete file consists of a
13-page document captioned ‘‘Brief’’ which was signed by
two inspectors and a number of exhibits, apparently con-
sisting of statements of witnesses and notes of interviews
with witnesses. From what is not blacked out in the ‘‘Brief,’’
it appears to set forth a narrative statement of the facts un-
covered by the investigating inspectors and some analysis of
the facts. In sanitizing the file the Inspection Service ex-
cluded personal information on the inspectors, information
provided by confidential informants, if any, statements of
and notes of interviews with all persons other than LaFleur,
and comments and opinions of those who conducted the in-
vestigation and the subjects of the investigation.10
Whether any of the deleted material would actually prove
helpful or necessary to the Union in determining whether to
proceed of course cannot be known without knowing what
the deleted material contained. But under the discovery-type
standard applicable, the General Counsel has shown a prob-
ability that the information sought in items 1 and 211 is rel-
evant and will be of use to the Union in pursuing the La-
Fleur grievance.
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See fn. 10, above.
However, statements taken from witnesses need not be
produced by Respondent before any hearing on the grievance
in arbitration. In Anheuser-Busch, Inc., 237 NLRB 982
(1978), the employer refused to furnish the union copies of
statements taken from employees concerning alleged mis-
conduct of an employee whose suspension was to be arbi-
trated. The employer had furnished the union a list of those
from whom statements had been taken and its version of the
facts on which it relied. The Board did not compel the em-
ployer to furnish the statements, analogizing the employer’s
obligation under Section 8(a)(5) to the Board’s obligation
under the FOIA to furnish witnesses’ statements in advance
of a hearing. The Board found that the employer’s obligation
was satisfied when the employer made its version of the facts
known to the union and gave it the list of the names of those
who had given statements.
The Union contends that this case is distinguishable from
Anheuser-Busch because here Respondent furnished nothing
and made no attempt to satisfy the Union’s informational
needs. That difference warrants requiring Respondent to fur-
nish the information that the employer voluntarily supplied
in Anheuser-Busch, but it does not warrant requiring Re-
spondent to produce statements that it would not otherwise
be obligated to produce. The considerations which led the
Board to conclude that witnesses’ statements need not be fur-
nished remain the same whether or not the employer has co-
operated otherwise.
Respondent contends that disclosure of the remaining por-
tions of the file should not be required because the files are
treated as confidential within the Inspection Service and that
confidentiality is essential because postal inspectors are law
enforcement officers and disclosure could impair their credi-
bility and their ability to do their jobs.
The Inspection Service is a separate department within the
Postal Service which reports directly to the Postmaster Gen-
eral. It has three basic functions: audit, criminal investiga-
tion, and civil investigation. With respect to criminal matters
the Inspection Service is a Federal law enforcement agency
empowered by statute to conduct criminal investigations. It
conducts investigations both with respect to crimes com-
mitted by outsiders against the Postal Service and its em-
ployees and crimes committed by Postal Service employees.
Among matters investigated by the Inspection Service are
charges of misconduct by postal inspectors. These investiga-
tions are handled by the Special Investigations Division
which investigated the conduct of the inspectors at the Ed-
wards interview. The Special Investigations Division pro-
vides management with facts and analyses from which it can
make decisions.
Files of investigations conducted by the Special Investiga-
tions Division are referred to as an ‘‘H-files.’’ The informa-
tion in an H-file includes interviews, affidavits, memoranda
of interviews, background checks, suggestions, recommenda-
tions and opinions of people who were interviewed. The only
persons who have routine access to H-files are the inspector
in charge, the chief inspector, and depending on need, the as-
sistant chief inspector, the regional chief inspector, and those
he deems appropriate.
Postal Inspector Bauman12 testified that all investigations
of the conduct of inspectors are considered to be highly con-
fidential, even within the confines of the Inspection Service,
for the following reasons. It is necessary that the inspectors
stand apart from other postal employees and command the
respect and cooperation of all the postal employees and oth-
ers with whom they must interact. The mere fact that there
has been an investigation can be embarrassing to the indi-
vidual because there is a tendency to assume guilt once it is
known that there has been an investigation. In order for Spe-
cial Investigations to do its job others should not know of
their activities until they have collected all of the facts and
provided them to management. After a decision has been
made, confidentiality is still necessary because disclosure
could cause embarrassment to an inspector affecting his abil-
ity to do his job and his relations with others in and out of
the Postal Service. Disclosure of charges affecting integrity
or honesty would damage an inspector’s believability, while
charges of alcoholism could cause embarrassment and dam-
age professional performance. Disclosure of any derogatory
information could impede an Inspector’s ability to testify
credibly and could denigrate the credibility of the Inspection
Service in the eyes of other law enforcement units with
which the Service must regularly work. Information is ob-
tained with the understanding that it will be kept confiden-
tial, and knowledge that it has been disclosed will make in-
formants reluctant to provide confidential information in the
future, will hamper the Service’s ability to use such inform-
ants on the workroom floor, and will cause a loss of credi-
bility with other confidential sources and with sister agencies
which depend on the Service to maintain the confidentiality
of information that is shared.
These reasons, however, are not pertinent to the informa-
tion sought in this case. Here the Union knew that the con-
duct of the inspectors involved in the Edwards interview had
been investigated. The investigation was over and the Union
knew the outcome of the investigation, for the Union had re-
quested the investigation, and Kelly had written to inform the
Union of its outcome. There is no indication that any infor-
mation in the file at issue was obtained from any other law
enforcement agencies on a confidential basis. The witnesses
to the incident were all known to the Union, and there is lit-
tle likelihood and no evidence that confidential informants
were interviewed. Any assurance that statements would be
kept confidential is met by exempting the statements from
production. These reasons do not warrant treating the remain-
der of the file as confidential.
Bauman also testified that it was necessary to keep in con-
fidence suggestions, recommendations, and thoughts of those
interviewed or contacted because it would inhibit inspectors
in providing a complete report if this information were dis-
closed. To the extent that the investigative file includes such
material from sources other than eyewitnesses, it would bear
only on the internal deliberations within the Service, and Re-
spondent’s interest in maintaining confidentiality of this ma-
terial seems clear. On the other hand the Union’s interest in
obtaining the investigative file is largely met by making
available the competing versions of the facts developed dur-
ing the investigation and only marginally by disclosure of
opinions and recommendations of those who were not eye-
witnesses. Accordingly, I find that Respondent’s interest in
maintaining confidentiality of this information outweighs the
Union’s interest in obtaining it.
1007POSTAL SERVICE
However, with respect to opinions or thoughts of those
who were eyewitnesses which are included in the portions of
the file otherwise to be produced, there is a stronger interest
supporting their disclosure. The line between opinion and
fact is not always so easily drawn, and the opinions of eye-
witnesses are unlikely to be reflective of internal enforce-
ment policy deliberations and recommendations.
Following Anheuser-Busch, I find that Respondent was not
obliged to furnish any statements of witnesses in the H-file
to the Union before any arbitration hearing which may take
place. I find also that from the investigative report in the H-
file Respondent was not obliged to give the Union opinions,
comments, and recommendations of those who conducted the
investigation or others who were not eyewitnesses to the in-
cident. However, Respondent’s defense of confidentiality is
rejected as to the remainder of the file, and I find that Re-
spondent was obligated to furnish it to the Union after it was
requested.
c. Policies with respect to the use of force
With respect to item 3, documents relating to the use of
force by inspectors while on duty, Tabbita testified that given
Respondent’s approval of the conduct of the inspectors to-
ward LaFleur, the Union needed to know the Respondent’s
policy with respect to the use of force to determine whether
the grievance involved an isolated incident or whether shop
stewards faced the risk of assault while performing their du-
ties during employee interviews. Tabbita testified that the
risk of injury raised issues under both articles cited by the
Union in the grievance. Tabbita also testified that the infor-
mation could raise issues for collective bargaining, ongoing
committee work, and legislative initiatives.
Respondent concedes that the requested policy might be
relevant and necessary for future contract negotiations, but
contends that the Union did not seek it for that purpose and
did not demonstrate that it was relevant and necessary to the
processing of the grievance. Respondent argues further that
its policy is not relevant to determining whether the inspec-
tors’ conduct violated the National Agreement.
I find that having requested the information for the pur-
pose of processing the grievance, the Charging Party and the
General Counsel may not rely on additional reasons not stat-
ed until the hearing in this case unless they may fairly be
said to be included within the reason originally stated. I find
further that the additional reasons stated by Tabbita at the
hearing were not included in the purpose initially stated and
therefor cannot support the information request. As to the
original reason, however, knowledge of Postal Service policy
with respect to use of force could indicate that the incident
which gave rise to the grievance is either more or less likely
to recur and enter into the decision whether to proceed to ar-
bitration.
Respondent contends that the Service’s policy on the use
of force, which is contained in the Inspection Service manual
and its supplements, comes under the exemption contained in
§ 552(b)(7)(E) of the FOIA. That exemption provides that
the Act does not apply to records or information compiled
for law enforcement purposes to the extent that production
would disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be ex-
pected to risk circumvention of the law.
While the exemption is not absolute, Bauman’s testimony
supported its application here. He testified that the disclosure
of guidelines for the use of force during law enforcement in-
vestigations could be reasonably expected to risk circumven-
tion of the law because if the information were known, the
standards could be used to flout enforcement efforts and en-
cumber the ability of inspectors to make arrests.
To be balanced against the Postal Service’s interest in
maintaining the confidentiality of the information is the inter-
est of the Union in obtaining it. The Union’s expressed need
for the information goes to assessing the importance of the
grievance rather than to its merits. Thus, at worst, if the in-
formation is not furnished the Union may take a grievance
to arbitration which it might otherwise have decided to drop
because it appeared to concern an isolated incident. On the
other hand, if it is furnished, policies would be disclosed
which could impair law enforcement efforts in totally unre-
lated circumstances. I find that the interests of the Respond-
ent outweigh those of the Union with respect to item 3 and
that Respondent was not obligated to furnish this information
to the Union.
d. Policies concerning the role of stewards
With respect to item 4, Respondent concedes that informa-
tion as to the policies and practices concerning the role of
stewards or union representatives in investigatory interviews
is presumptively relevant and necessary. However, Respond-
ent contends that the presumption is rebutted by the testi-
mony of Henry Bauman, legal liaison for the Inspection
Service, that the Respondent informed the Union of its poli-
cies and practices concerning the role of stewards and rep-
resentatives at investigatory interviews in the May 24, 1982
letter from K.H. Fletcher to William Burrus and that the poli-
cies and practices remained the same.
I do not read Bauman’s testimony as establishing that Re-
spondent has furnished all the information called for in item
4. Bauman testified that the letter outlined the general param-
eters of what the Inspection Service deemed its role to be in
the relationship with stewards and union representatives in
investigatory interviews and that this remained policy. Else-
where Bauman testified that the policies and programs that
would pertain to the Inspection Service’s activities involving
union stewards or representatives would be in the Inspection
Service manual which the Inspection Service believes is con-
fidential and should not be disclosed. In these circumstances,
Bauman’s testimony at most establishes that he believes that
the Fletcher letter states the present policy, not that it is the
only extant document discussing, relating to, or referring to
that policy. To the contrary, from his testimony I infer that
the Fletcher letter is not the only such document and that the
Postal Service has not complied with this item of the request.
Respondent’s obligation to furnish information goes be-
yond telling the Union to be satisfied with what it has re-
ceived, particularly where as here there is an arguable incon-
sistency between what is in the Fletcher letter and the later
Kelly letter. It may be, as Bauman testified, that policy is not
made at the regional level, but the Kelly letter is enough to
raise doubt that the statement in the Fletcher letter is com-
plete, as is Bauman’s testimony that the Fletcher letter con-
tains the general parameters of the policy, giving rise to the
inference that the complete policy is not set forth in the let-
ter.
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent contends that information pertaining to the In-
spection Service’s policies and practices concerning the role
of stewards in investigatory interviews is confidential to the
extent that it is contained in the Inspection Service manual
and its supplements. Bauman testified that the Service would
be concerned about disclosing it because they would not be
in a position to decide what course of conduct to take in a
particular investigatory interview. Bauman testified further
that if they defined what reaction an inspector would take in
a particular instance to the conduct of a union steward it
would frustrate the purposes of the investigation and would
hamper investigations. Bauman testified that he would like
shop stewards to be unaware of just how far an inspector
would go in such a situation.
The information sought may involve procedures and
guidelines for law enforcement investigations, but it also re-
lates directly to the role of stewards during investigatory
interviews at which they have rights established both by law
and by contract. Given the fact that the rights of the steward
are established, Respondent’s interest in keeping stewards
uncertain as to the extent to which their rights will be hon-
ored is not an interest to be protected. I find that Respondent
has not shown that disclosure of the information requested in
item 4 can be reasonably expected to risk circumvention of
the law and that the interests of the Union in obtaining this
information outweigh those of Respondent in keeping it con-
fidential.
e. Records of LaFleur’s conduct
Tabbita testified that documents relating to LaFleur’s con-
duct in this or any other investigatory interview were needed
because they would bear on the credibility of LaFleur and
the inspectors and on whether the inspectors had knowledge
of prior conduct of LaFleur which might have explained their
response to his conduct during the Edward’s interview. Re-
spondent concedes that the information is presumptively rel-
evant and necessary but contends that the presumption is
overcome because there is no factual dispute as to how La-
Fleur conducted himself in the interview and because he was
not disciplined.
Even the limited portions of the investigative file made
available to the Union under FOIA indicate discrepancies be-
tween LaFleur’s version and that of undisclosed others (al-
though not what the conflicting version was). Whether there
will be other factual disputes remains to be seen. As the in-
formation is necessary and relevant for reasons unrelated to
discipline of LaFleur, the fact that he was not disciplined is
immaterial. Accordingly I find that the presumption has not
been rebutted.
Respondent contends further that it would be burdensome
and oppressive to furnish this information because no records
of the requested information are kept as such. Bauman testi-
fied that any information relating to LaFleur’s conduct as a
shop steward would be contained in the personal files or
grievance files of postal managers who may have conducted
an employee interview or in the Inspection Service file of an
investigation in which LaFleur served as shop steward.
Bauman testified that the Postal Service does not maintain
files on the activities of shop stewards and has no way of
retrieving the information sought except through an expen-
sive search.
It is clear from Bauman’s testimony on cross-examination,
however, that his testimony was based on speculation and
that no effort had been made to determine whether the infor-
mation could be obtained more easily, particularly in the
light of the statement in the material furnished to the Union
under FOIA that when LaFleur was interviewed about the
Edwards incident he said that he had represented employees
in about five interviews with inspectors and named one of
the employees involved. Bauman’s testimony would be more
persuasive if Respondent had made any effort to find the re-
quested information or to seek the aid of LaFleur in nar-
rowing the number of possible sources of that information.
I find that Respondent has not sustained its defense with re-
spect to item 5 and that Respondent was obligated to furnish
the requested information.
f. Records of complaints about the inspectors
The final documents sought by the Union are those relat-
ing to complaints by any Postal Service employees about the
postal inspectors who were involved in the Edwards inter-
view. Tabbita testified that evidence of such complaints
would support LaFleur in a credibility dispute and would go
to the appropriate remedy if the grievance were found to
have merit. Tabbita also testified that the Union needed to
know what the Inspection Service was doing about it if these
inspectors were habitually abusing employees. Respondent
contends that the existence of other complaints has no rel-
evance to the remedy sought in the grievance and would not
corroborate LaFleur.
While some of the information sought is relevant, some of
it is not. The mere existence of complaints proves nothing
and cannot serve either to impeach testimony or show the
need for any particular remedy. Furthermore, complaints may
cover a variety of matters completely unrelated to the con-
duct of the inspectors at the Edwards interview. The only
complaints which would be relevant to the grievance would
be complaints which led to a finding that the inspectors en-
gaged in similar or related conduct directed at union stewards
or representatives during investigatory interviews. To that ex-
tent, I find that the information sought in item 6 is relevant.
If the inspectors testify at an arbitration hearing to con-
tradict LaFleur, information as to those complaints and find-
ings will be necessary for purposes of cross-examination to
test the credibility of the inspectors. The other reason ad-
vanced by Tabbita for needing these documents is less clear.
The Union has not spelled out what different remedy it might
seek if it were to discover other incidents in the past records
of the inspectors. While a record of prior offenses might bear
on any possible discipline of the inspectors, the grievance is
not over the discipline of the inspectors, and there is no indi-
cation that an arbitrator would have authority to impose or
to require such discipline as part of a remedy. Absent a
clearer showing of the relation of this information to possible
remedies attainable in the underlying arbitration proceeding,
I find that the General Counsel has not established that this
information is needed for purposes of determining the appro-
priate remedy if the underlying grievance is found to have
merit.
Respondent contends that no information relating to the
records of the inspectors should be required because it is
confidential. Bauman testified that any information concern-
ing complaints by other postal employees against the named
1009POSTAL SERVICE
postal inspectors would be included in files of the Special In-
vestigations Division of the Inspection Service or in other In-
spection Service supervisory files and would be considered
highly confidential for the reasons set forth above in connec-
tion with the H-file sought in the first two items of the
Union’s request. Bauman also testified that the Inspection
Service has made a pledge of confidentiality to its inspectors.
With respect to these files Respondent’s concerns have a
more substantial basis. If there are records of complaints
about other similar incidents concerning these inspectors,
there is no indication that the Union already knows of the
investigations or their outcomes, and that here the purpose of
the request, in part, is to place the inspectors’ credibility at
issue. The potential that disclosure could impair the effec-
tiveness of the inspectors is therefore greater with respect to
these files than it is in the case of the file of the investigation
of the incident at the Edwards interview.
At the same time the interest of the Union in obtaining the
information is narrower. It will arise only if the underlying
grievance goes to arbitration and then only if the inspectors
are called to testify to facts different than those advanced by
the Union. Moreover, while the request is for all documents
which discuss, refer, or relate to complaints by Postal Serv-
ice employees about the four named inspectors, all such doc-
uments are not needed to serve the purpose for their disclo-
sure. For purposes of possible impeachment it would be suf-
ficient if those documents are furnished which show the find-
ings made with respect to such complaints. There is no need
for other information which may be contained in the inves-
tigatory files. Accordingly, I find that Respondent’s refusal
to furnish the information requested in item 6 in advance of
any arbitration hearing was not unlawful.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Respondent and this
matter by virtue of section 1209 of the Postal Reform Act
of 1970.
2. American Postal Workers Union, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. At all times material, the Union has been the exclusive
collective-bargaining representative of the employees in a
unit appropriate for collective bargaining, as defined in the
current National Agreement between the Respondent and the
Union.
4. By failing and refusing to furnish the Union with cer-
tain information requested by it, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent shall furnish the Union the contents of the in-
vestigatory file relating to the ejection of steward LaFleur
from the Edwards interview with the exception of the state-
ments given by witnesses and comments, opinions, and rec-
ommendations of those who were not eyewitnesses to the in-
cident. Respondent shall also furnish all documents which
discuss, refer, or relate to the Postal Service’s policies and
practice concerning the role of stewards or union representa-
tives in investigatory interviews, including those which may
be contained in the Inspection Service manual and its supple-
ments, and all documents which discuss, refer, or relate to
John LaFleur’s conduct as shop steward in investigatory
interviews.
The General Counsel requests no extraordinary relief in
this case, but the Charging Party requests a broad order and
a remedy which is national in scope. In support of these re-
quests the Charging Party contends that this is not the first
time that Respondent has refused to supply relevant informa-
tion, citing NLRB v. Postal Service, 841 F.2d 141 (6th Cir.
1988), and the fact that the decision was made at the highest
headquarters policy level. The Charging Party contends that
the record warrants a finding that it is Respondent’s policy
to withhold relevant information until disclosure is ordered,
and that therefore future violations are certain to occur unless
the Board issues a broad cease-and-desist order.
While I believe that Respondent could have been more
forthcoming in its response to the Union’s request, I do not
find on this record that Respondent has a policy of with-
holding relevant information from the Union or that a record
of past violations has been demonstrated which would war-
rant issuance of a broad order.
The Charging Party also contends that the Board should
order reimbursement of the Union’s litigation costs, including
attorney’s fees, because both the Privacy Act and deferral de-
fenses are frivolous. While these defenses were clearly lack-
ing in merit, they were but a small portion of Respondent’s
defense and added little time or burden to the proceeding.
They do not afford a basis for a reimbursement order.
[Recommended Order omitted from publication.]