Postal Service

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 409 (N.L.R.B. 2005)

POSTAL SERVICE
345 NLRB No. 25
409
United States Postal Service and American Postal
Workers Union Local 739, AFL–CIO. Case 16–
CA–22930(P)
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On July 29, 2004, Administrative Law Judge John H.
West issued the attached decision. The Respondent filed
exceptions and a supporting brief.1 The General Counsel
filed an answering brief to which the Respondent filed a
reply brief.2
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified below.3
Broad Order
We agree with the judge’s recommendation to provide
broad injunctive language in our Order, enjoining the
Respondent from “in any other manner” violating the
Section 7 rights of employees at the Waco postal facility
involved here. In Hickmott Foods, 242 NLRB 1357,
1357 (1979), the Board stated that a broad cease-and-
desist order is warranted “when a respondent is shown to

1 There were no exceptions to the judge’s finding that the Respon-
dent violated Sec. 8(a)(5) and (1) four times between May and June
2004 by failing and refusing to provide relevant information requested
by the Union.
2 The General Counsel also filed a motion for special leave to file a
surreply to the Respondent’s reply brief. In consideration of the need
for administrative finality, however, surreply briefs are generally not
permitted, “except by special leave of the Board.” See Sec. 102.46(h)
of the Board’s Rules and Regulations. Here, no circumstances were
presented by the General Counsel warranting special leave; therefore,
the General Counsel’s motion to file a surreply brief is denied. Baker
Electric, 330 NLRB 521 fn. 4 (2000).
3 We shall modify the judge’s recommended order by deleting the
paragraph ordering that the notice be read to unit employees. The viola-
tions in this case are not so numerous and serious to require this special
remedy. Postal Service, 339 NLRB 1162, 1163 (2003). We also shall
modify the judge’s recommended order by limiting application of its
notice posting and conditional mailing provisions to the postal facility
located at 430 W. State Highway 6 in Waco, Texas, where the viola-
tions at issue in this case occurred.
Finally, we shall modify the judge’s recommended order by deleting
the paragraph ordering that the Respondent, upon request by the Union,
reintroduce in the grievance procedure grievances that were lost be-
cause the Respondent did not provide requested information to the
Union and that the Respondent accord the Union the opportunity to
supplement those grievances with the information the Respondent is
ordered to provide to the Union. Imposition of this remedial provision
in this case would not effectuate the policies of the Act. Postal Service,
341 NLRB 684, 697 (2004); Postal Service, supra, 339 NLRB at 1173.
We shall additionally substitute a new notice conformed to the lan-
guage of the modified Order.
have a proclivity to violate the Act or has engaged in
such egregious or widespread misconduct as to demon-
strate a general disregard for the employees’ fundamental
statutory rights.” In this instance, we find that the Re-
spondent’s proclivity to violate the National Labor Rela-
tions Act (the Act) justifies imposition of a broad order.4
We do not agree with our dissenting colleague’s con-
tention that a broad order in this case is inappropriate
under Hickmott or NLRB v. Express Publishing Co., 312
U.S. 426 (1941). We recognize that “to justify an order
restraining other violations, it must appear that they bear
some resemblance to that which the employer has com-
mitted or that danger of their commission in the future is
to be anticipated from the course of his conduct in the
past.” Express Publishing, 312 U.S. at 437. As explained
by the Court in a subsequent case, Express Publishing
“recognized that it was within the power of the Board to
make an order precisely like 1(b) [the broad order at is-
sue here]. It merely held that whether such an inclusive
provision as 1(b) is justified in a particular case depends
upon the circumstances of the particular case before the
Board.” NLRB v. Cheney California Lumber Co., 327
U.S. 385, 387 (1946) (emphasis added).5 In another case,
the Court confirmed that the Board has the same reme-
dial authority in equity as courts, including the authority
to issue “injunctions in broad terms . . . even in acts of
widest content when [it] deems them essential to accom-
plish the purposes of the act.” May Department Stores
Co. v. NLRB, 326 U.S. 376, 391 (1945) (emphasis
added).6

4 Accord: Southwire Co. v. NLRB, 393 F.2d 106 (5th Cir. 1968);
Grinnell Fire Protection Systems, 335 NLRB 473 (2001); Visiting
Nurse Services of Western Massachusetts, 325 NLRB 1125, 1133
(1998), enfd. 177 F.3d 52 (1st Cir. 1999), cert. denied 528 U.S. 1024
(2000); Control Services, 314 NLRB 421 (1994).
5 As described by the Court, the respondent in Cheney did not file
exceptions to a Board trial examiner’s report finding violations of the
Act and recommending, inter alia, a broad cease-and-desist order provi-
sion “on the basis of his review of past hostilities by the company
against efforts at unionization.” 327 U.S. at 387. The Board adopted the
report pro forma. When the Board petitioned for enforcement, the Ninth
Circuit sua sponte deleted this provision from the order. The Supreme
Court reversed, holding that when the Board has not “patently traveled
outside the orbit of its authority,” id. at 388, the circuit court lacked
authority to modify the Board’s order absent a showing within the
statutory exception of “extraordinary circumstances” excusing the
respondent’s failure to urge an objection before the Board. Obviously,
the Court determined that the broad order was not “patently outside”
the Board’s authority. Accord: NLRB v. Ochoa Fertilizer Corp., 368
U.S. 318, 322 (1961).
6 The Court held in May Department Stores that a broad order was
not appropriate to remedy an 8(a)(5) refusal to bargain violation and an
8(a)(1) wage-increase violation. However, the language quoted above
from the Court’s decision clearly supports the proposition that the
Board can, and in some instances should, broadly enjoin violations of
statutory provisions. “Decrees of that generality are often necessary to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD410
Our dissenting colleague says that the Supreme Court,
in Express Publishing, did not endorse orders which re-
strain “any” violation of the Act. However, as noted
above, the Supreme Court in Cheney did find that such
an order is within the authority of the Board. Moreover,
under Hickmott, such orders are appropriate and have
been entered. No court has overturned any such order on
the ground that the Board lacks the legal authority to
issue one under the circumstances described in Hickmott.
Guided by the aforementioned precedent, the Board
adopted the Hickmott standard to define two situations in
which a broad cease-and-desist order is “essential to ac-
complish the purposes of the [A]ct,” i.e., a respondent
either manifests a proclivity to violate the Act or it en-
gages in egregious or widespread misconduct. In either
situation, the Board reviews the totality of circumstances
to ascertain whether the respondent’s specific unlawful
conduct manifests “an attitude of opposition to the pur-
poses of the Act to protect the rights of employees gener-
ally,” id., providing an objective basis for enjoining a
reasonably anticipated future threat to any of those Sec-
tion 7 employee rights.7
Our remedial focus in the present case is on the Re-
spondent’s proclivity to violate the Act. A broad order is
certainly not warranted in every instance of recidivist
misconduct. On the other hand, it is not necessary that a
recidivist respondent have committed unfair labor prac-
tices under different subsections of Section 8 of the Act
before a broad order is warranted.8 Our dissenting col-
league concedes that the Board has the authority to issue
a broad order for recidivist violations of a single subsec-
tion of Section 8, but he contends that the Respondent’s
repeated violations of its statutory duty to provide infor-
mation do not meet the standards for a broad order. We
disagree.
We find several factors that support imposition of a
broad order in the circumstances of this case. First, the
Board has now found that, in less than 2 years, the Re-

prevent further violations where a proclivity for unlawful conduct has
been shown.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 192
(1948), citing, inter alia, May Department Stores.
7 Chairman Battista believes that the Hickmott standard, properly
applied, is consistent with the Supreme Court’s decision in Express
Publishing and within the scope of the Board’s remedial authority set
forth in Sec. 10(c). In his opinion, the Board has the power to issue
broad orders but that power should be exercised sparingly. For reasons
stated in this decision, he agrees that this case warrants a broad order.
8 See, e.g. Postal Service, supra, 339 NLRB 1162 (broad order ap-
propriate in light of respondent’s history of violating Sec. 8(a)(5) by
failing to provide requested relevant information at many of its loca-
tions); Iron Workers Local 433 (United Steel), 293 NLRB 621, 623
(1989), enfd. 930 F.2d 28 (9th Cir. 1991) (broad order appropriate in
light of respondent union’s history of 8(b)(4)(B) violations in three
cases).
spondent twice committed a series of 8(a)(5) violations at
the same Waco facility. In the first case,9 the Respondent
failed to furnish information in response to seven sepa-
rate union requests from July 2001 through February
2002, and unreasonably delayed responding to five other
requests. In the present case, the Respondent failed to
furnish information in response to four separate requests
from May 4 through June 1, 2003. Second, the violations
in this case took place after the Board issued an uncon-
tested narrow cease-and-desist order in the prior case,
suggesting the inadequacy of this order to deter future
violations of employee rights. Third, when a union’s in-
formation requests pertain to grievance investigations, as
in both Waco cases, the Respondent’s repeated unlawful
refusals to provide such information have the potential to
hide other misconduct, including other statutory viola-
tions.10 Fourth, the Respondent presented a weak defense
of its actions in each case.11 Fifth, the violations at Waco

9 Postal Service, 2002 WL 31046011. In the absence of exceptions,
the Board adopted the judge’s decision on October 25, 2002. In a June
3, 2003 unpublished decision, the United States Court of Appeals for
the Fifth Circuit summarily enforced the Board’s order. A judge’s
decision to which no exceptions are filed may be considered as evi-
dence that a respondent has a proclivity to violate the Act. Postal Ser-
vice, supra, 339 NLRB at 1162 fn. 2.
The dissent suggests that, instead of imposing a broad order against
the Respondent in this case, the Board should have initiated contempt
proceedings against the Respondent based on the narrow order in the
above-mentioned case. Without passing on the general merits of this
approach, we note that proceeding in contempt was not an option inas-
much as the acts alleged as unfair labor practices here took place prior
to the court’s enforcement of the order in the prior case.
10 Cf. Bowles v. Leithold, 155 F.2d 124 (3d Cir. 1945). In an action
brought by the Federal government for violations of employer record-
keeping provisions of the wartime Emergency Price Control Act, the
Third Circuit held that a district court’s injunction of future price ceil-
ing violations was permissible under the Express Publishing doctrine,
stating that “[a] defendant who has thus made it practically impossible
for anyone to tell whether he is violating price ceilings or not, by with-
holding the fundamental information, is not unlikely to violate those
ceilings under cover of the darkness which his failure to give informa-
tion has created. At least it is not unreasonable for one to conclude that
such a happening is within the range of probability and to guard against
it by injunction.” Id. at 127.
11 For instance, as the judge in this case has observed, the Respon-
dent persisted in maintaining that the Union failed to explain the rele-
vance of requested OMSS reports even after the Respondent failed to
except to the finding of the judge in the prior case that such information
was presumptively relevant. We note that over a decade ago the Board
mentioned the Respondent’s propensity in 8(a)(5) information request
cases to raise defenses that have been repeatedly rejected by the Board
and courts in earlier cases. Postal Service, 310 NLRB 391, 392 (1993).
We agree with our dissenting colleague that a respondent’s failure to
file exceptions does not necessarily show that it had a weak case. How-
ever, where, as here, the respondent has unsuccessfully raised a defense
in a prior case before the Board, and reasserted it in a later case, and
predictably lost before the judge, the failure to file exceptions in that
case does suggest a weak defense. Further, the reassertion of a weak
POSTAL SERVICE 411
must be considered against a background of two decades
of widespread and repeated information request viola-
tions by the Respondent in several locations nation-
wide.12 These violations augur continued defiance of
Respondent’s bargaining obligations and interference
with employees’ statutory rights unless the Respondent is
subject to a broad order. Sixth, the Board has recently
issued broad cease-and-desist orders against Respondent
for similar repeated information request violations at its
Houston area facilities13 and at a facility in Coppell,
Texas.14 The Fifth Circuit Court of Appeals has enforced
two broad orders against the Respondent for repeated
information request violations in the Houston area.15 In
fact, in one of those cases, and in another before the
Tenth Circuit Court of Appeals involving Albuquerque,
New Mexico area facilities,16 the Respondent consented
to the imposition of broad orders in settlement of its re-
peated information request violations.17 Finally, we have
this same day issued a decision in Postal Service, 345
NLRB No. 26 (2005), imposing a broad cease-and-desist
order against the Respondent at certain Albuquerque
facilities where management not only committed 8(a)(5)
information request violations but also violated Section
8(a)(1) and (3) by a series of adverse actions, including
discharge, initiated against an employee craft director in
retaliation for his rigorous union activity that began with
the filing of an information request.18 This connection
between a Union’s information requests and other unfair
labor practices by the Respondent at the Albuquerque
facility provides further reason to anticipate from its past
course of unlawful conduct that it is likely to violate em-
ployees’ Section 7 rights “in any manner” in the future
and should be enjoined from doing so.19

defense in the second case, after losing the first one, is a factor showing
a disregard of statutory constraints.
12 See Postal Service, supra, 341 NLRB at 684; Postal Service, su-
pra, 341 NLRB at 655; Postal Service, supra, 339 NLRB at 1162 fn. 1,
and cases cited there; Postal Service, 339 NLRB 400 (2003); Postal
Service, 338 NLRB 1052 (2003).
13 Postal Service, 339 NLRB 1162 (2003). In Postal Service, 341
NLRB 684, 684 fn. 4 (2004), the Board found no need for another
broad order to remedy 8(a)(5) violations because of the court-enforced
broad orders already applicable to the Houston facilities involved.
14 Postal Service, 341 NLRB 655 (2004).
15 NLRB v. USPS, Case No. 03-60908 (unpub. consent judgment en-
tered Dec. 8, 2003), and NLRB v. USPS, Case No. 03-61059 (unpub.
order granting enforcement of 339 NLRB 1162 (2003).
16 NLRB v. USPS, Case No. 02-9587 (unpub. consent judgment en-
tered Jan. 8, 2003).
17 In both cases, the settlement stipulation did not contain a nonad-
mission clause.
18 The Respondent did not except to the judge’s findings of 8(a)(1)
and (3) violations.
19 Our dissenting colleague disputes the significance of unfair labor
practices committed at other facilities based on his view that “the Postal
Service is a massive, far-flung and decentralized operation and viola-
We disagree with our colleague’s contention that the
Respondent’s self-help remedial efforts at the Waco fa-
cility have obviated the need for a broad order. We note
the judge’s skepticism that the alleged changes imple-
mented by a new plant manager, which primarily in-
volved a new procedure for logging information requests,
manifested any genuine change in Respondent’s attitude
about responding to these requests. Obviously, the Re-
spondent’s voluntary measures failed to completely
eliminate information request violations at the Waco
facility involved here. Further, while we applaud any
effort to prevent the recurrence of unlawful behavior, the
Respondent’s history of past failures to address endemic
resistance to these requests in various localities strongly
suggests that neither self-help measures nor another nar-
rowly-drawn Board cease-and-desist order will suffice to
remedy this situation.20
In sum, we find that the Respondent’s proclivity to
violate the Act demonstrates a general attitude of disre-
gard for its Waco facility employees’ Section 7 rights
and poses such a future threat to any and all of those
rights that a broad cease-and-desist order is the appropri-
ate remedy.
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, Waco, Texas, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post at
its Production & Distribution Center facility located at
430 W. State Highway 6 in Waco, Texas, copies of the
attached notice marked “Appendix.”21 Copies of the no-

tions of this nature . . . are decidedly parochial.” Accepting arguendo
the dissent’s characterization of the Respondent’s operations, more than
a decade of repeated violations in various areas and at various facilities
indicate that, absent effective orders aimed at higher management, not
only are information request violations likely to recur in those places
but it is also reasonably foreseeable that, as in Albuquerque, other
unfair labor practices will be committed by local officials who have
demonstrated their disregard for the Act and prior Board orders. In light
of the Respondent’s history, we simply disagree with our colleague that
the unfair labor practices at Albuquerque “portend nothing” about the
likelihood of unfair labor practices elsewhere.
20 See General Counsel’s memorandum OM 01-25, announcing the
General Counsel’s withdrawal from participation in an unsuccessful
nationwide alternative dispute resolution plan for dealing with refusal
to provide information request issues.
21 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD412
tice, on forms provided by the Regional Director for Re-
gion 16, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
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 al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent, United States Postal Service,
at its Production & Distribution Center facility located at
430 W. State Highway 6 in Waco, Texas, at any time
since May 4, 2004.”
2. Delete paragraphs 2(b) and (d) and reletter the sub-
sequent subparagraphs.
3. Substitute the attached notice for that of the admin-
istrative law judge.
MEMBER SCHAUMBER, dissenting in part:
I. INTRODUCTION
I join my colleagues in declining to order the reading
of the notice to unit employees and in limiting the notice
posting and conditional mailing provisions of the Order
to the Waco, Texas postal facility where the violations
occurred. I also agree that ordering the Respondent to
reinstate grievances lost by its failure to provide re-
quested relevant information to the Union is not an ap-
propriate remedy in this case.1
Contrary to my colleagues, however, I find that Re-
spondent’s failure to adequately and/or timely respond to
4 of the 68 information requests submitted by the Charg-
ing Party over a 2-month period does not warrant a broad
order restraining the Respondent from committing “any”
conceivable violation of the Act at its Waco facility. The
Board’s authority regarding unfair labor practices does
not include “authority to restrain generally all other
unlawful practices which it has neither found to have
been pursued nor persuasively to be related to the proven
unlawful conduct.” NLRB v. Express Publishing Co., 312
U.S. 426, 433 (1941). Isolated unfair labor practices,
such as those found here, do “not justify an injunction
broadly to obey the statute and thus subject the [violator]
to contempt proceedings if he shall at any time in the
future commit some new violation unlike and unrelated

1 Reinstatement of grievances may be an appropriate remedy, how-
ever, where the facts of a particular case demonstrate that a grievant
actually was prejudiced by a respondent’s failure to provide relevant
information. The General Counsel made no such showing here.
to that which was originally charged.” Id. at 435–436.
Though the Board, with court approval, has recognized a
narrow exception to this general rule, the test is a strin-
gent one: a broad order is warranted only when a respon-
dent “is shown to have a proclivity to violate the Act, or
has engaged in such egregious or widespread misconduct
as to demonstrate a general disregard for the employees’
fundamental statutory rights.” Hickmott Foods, Inc., 242
NLRB 1357 (1979). In my view, the failure to respond to
several information requests in violation of a single sub-
section of Section 8(a) does not meet the stringent Hick-
mott standard.
II. LEGAL PRINCIPLES
The Board’s decision in Hickmott Foods, upon which
my colleagues rely, cannot be read apart from the Su-
preme Court’s decision in Express Publishing Co., to
which it responded. In Express Publishing Co., the Court
admonished the Board for seeking to remedy an 8(a)(5)
refusal to bargain violation with a broad order that the
“respondent should in effect refrain from violating the
Act in any manner whatsoever.” 312 U.S. at 430. In find-
ing the Board lacked the authority to impose an order of
such breadth in that case, the Court pointed first to the
“carefully chosen” and limiting language of Section
10(c), which permits the Board, after it finds a party has
committed an unfair labor practice, to order the party “to
cease and desist from such unfair labor practice.” 312
U.S. at 433 (emphasis added).
The Court then described Section 8 of the Act as a
“guide pointing to the appropriate limits” of the Board’s
cease-and-desist authority, stating: “By [Congress’] defi-
nition and classification of unfair labor practices in the
statute it has shown that they are not always so similar or
related that the commission of one necessarily merits or
rightly admits of an order restraining all.” 312 U.S. at
434. Noting that the respondent’s conduct in refusing to
bargain or execute an agreement was “wholly unrelated”
to the domination of a union or interference with its for-
mation in violation of Section 8(a)(2), or discrimination
in regard to hire or tenure of employment in violation of
Section 8(a)(3), the Court found no basis to suggest that
the violation found by the Board “gave any indication
that in the future respondent would engage in all or any
of the numerous other unfair labor practices defined by
the Act.” Id. at 434.
Finally, the Court stressed that injunction orders of the
Board are subject to the same standards applicable to
Federal courts and “must, like the injunction order of a
POSTAL SERVICE 413
court, state with reasonable specificity the acts which the
respondent is to do or refrain from doing.” Id. at 433.2
Consistent with the foregoing principles, the Court
concluded that “Congress did not contemplate that the
courts should, by contempt proceedings, try alleged vio-
lations of the National Labor Relations Act not in con-
troversy and not found by the Board and which are not
similar or fairly related to the unfair labor practice which
the Board has found.” 312 U.S. at 434. Rather, “[t]o jus-
tify an order restraining other violations it must appear
that they bear some resemblance to that which the em-
ployer has committed or that danger of their commission
in the future is to be anticipated from the course of his
conduct in the past.” Id. at 437 (emphasis added).
In short, while the Court did not prohibit orders re-
straining other violations, it also did not endorse orders
broadly restraining any violations of the Act, the stan-
dard language of a Board broad order.3 Clearly, then, if
such broad orders are to be entered at all they must be
appropriately tailored to the unfair labor practices the
order is intended to address and must be reserved for
egregious cases in which the violations are so severe or
so numerous and varied as to truly manifest a general
disregard for employees’ fundamental statutory rights.4

2 See also Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (Federal
court injunctions must be specifically worded in order “to prevent
uncertainty and confusion” and “to avoid the possible finding of a
contempt citation on a decree too vague to be understood”). The speci-
ficity requirements for injunctions are codified in Fed. R Civ. P. 65(d),
which provides:
Every order granting an injunction and every restraining order
shall set forth the reasons for its issuance; shall be specific in
terms; shall describe in reasonable detail, and not by reference to
the complaint or other document, the act or acts sought to be re-
strained; and is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon
those persons in active concert or participation with them who re-
ceive actual notice of the order by personal service or otherwise.
Circuit courts have relied on this Federal rule to modify or deny en-
forcement of Board orders that were overly broad or vague. For exam-
ple, in NLRB v. Teamsters Local No. 85, 458 F.2d 222, 226 (9th Cir.
1972), NLRB v. Teamsters Local No. 327, 419 F.2d 1282, 1284 (6th
Cir. 1970) and NLRB v. Teamsters Local No. 327, 432 F.2d 933, 935
(6th Cir. 1970), the courts narrowed and declined to enforce broad
orders issued against unions, which sought to enjoin possible future
violations committed against “all other employers” and “in any man-
ner” because they lacked the specificity required by Rule 65(d).
3 In noting that the Court did not endorse in Express Publishing Co.
orders restraining “any” violations of the Act, I am not contending that
the Board lacks the authority to issue broad orders under any circum-
stances. I recognize that a number of circuit courts have enforced broad
Board orders. I am, however, arguing that the issuance of such an order
on the facts of this case contravenes the principles clearly articulated in
Express Publishing Co.
4 My colleagues cite two post-Express Publishing Supreme Court
decisions to support their position that a broad order is appropriate in
the instant case. The first case, May Department Stores Co. v. NLRB,
326 U.S. 376 (1945), is actually consistent with my view that a broad
III. APPLICATION
Applying the Hickmott standard consistent with Ex-
press Publishing Co. principles, the circumstances of this
case do not support a broad cease-and-desist order. The
Respondent’s four information request violations are
neither numerous nor severe. Nor do these violations
evidence the type of widespread and persistent pattern of
attempts “by varying methods” to interfere with legisla-
tively protected rights typically required to sustain a
broad order.5 My colleagues appear to acknowledge as
much, as they seek to justify a broad order solely under
the “proclivity” prong of the Hickmott test.
In my view, however, Express Publishing Co. requires
more than a mere inclination or propensity to engage in
particular conduct inconsistent with the Act in order to
justify a broad order; it must be conduct that demon-
strates a general disregard for fundamental statutory
rights and raises the threat of continuing and varying
efforts to frustrate those rights in the future.6 Recidivism

order rarely would be warranted in the absence of violations of various
sections of the Act. Though the Court stated in May Department Stores
that the Board possesses the authority to issue broad remedial orders to
accomplish the purposes of the Act, the Court ultimately modified the
Board’s broad order “so that the injunction will not apply generally to
all violations under the Act” because the violations found were not
sufficiently “intertwined with” violations of other sections of the Act to
demonstrate that the respondent had “an attitude of opposition to the
purposes of the Act.” Id., 326 U.S. at 392. In NLRB v. Cheney Califor-
nia Lumber Co., 327 U.S. 385 (1946), the second case cited by my
colleagues, the respondent failed to file exceptions to the trial exam-
iner’s recommended broad order. Thus, the propriety of the Board’s use
of a broad order was not before the Court. Rather, the sole issue pre-
sented was whether the circuit court of appeals had the authority to
modify the Board’s remedy where the respondent failed to object to it
before the Board. Concededly, in dicta, the Supreme Court commented
that the evidence presented in Cheney “disclosed a course of conduct
against which [a broad] order may be the only proper remedy.” Id., 327
U.S. at 555. However, no such record exists here.
5 See, e.g., NLRB v. Union Nacional de Trabajadores, 540 F.2d 1,
11 (1st Cir. 1976) (enforcing broad order where numerous violent as-
saults and threats in violations of Sec. 8(b)(1)(A), (b)(4)(i), and (ii)(b)
demonstrated “persistent attempts to interfere with legislatively pro-
tected rights by varying methods”); Federated Logistics and Opera-
tions v. NLRB, 400 F.3d 920, 929 (D.C. Cir. 2005) (multiple violations
of 8(a)(1) and (3) including threats, promises of benefits, withheld
wage increases, discriminatory disciplinary actions, the maintenance of
an overly broad no-solicitation rule, interrogations, creating the impres-
sion of surveillance, deemed to be sufficiently persistent and wide-
spread to warrant a broad cease-and-desist order).
6 I do not maintain that the Board lacks the authority to issue a broad
order under appropriate circumstances where the misconduct violates
only one subsection of the Act. Numerous instances of unlawful termi-
nations and blatantly discriminatory discipline of employees in viola-
tion of Sec. 8(a)(3), for example, might suffice to demonstrate a general
disregard for fundamental statutory rights and raise a reasonable threat
of continuing and varying efforts to frustrate those rights in the future.
This is plainly not such a case. Nor are such cases likely to be common,
since offenders who harbor such a general disregard for fundamental
rights rarely confine themselves to discrete violations. See, e.g., fn. 4,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD414
alone, as my colleagues concede, is an insufficient basis
for imposing a broad order under Hickmott.
In the instant case, the only unlawful conduct that oc-
curred at the Respondent’s Waco facility is the Respon-
dent’s failure to timely or adequately respond to a small
percentage of the numerous information requests rou-
tinely generated by the Charging Party in the course of
investigating and pursuing grievances. Such conduct,
while unlawful, simply does not suggest a proclivity to
violate other sections of the Act either in Waco or else-
where. Nor does it manifest a general disregard for em-
ployees’ fundamental statutory rights. The incidents of
violations in 2001 and 2003 may demonstrate a persistent
problem, but it is a narrow one.
Consistent with the plain language of Section 10(c),
the Board must tailor its remedies to the unfair labor
practices found. Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
900 (1984); Express Publishing Co., supra. Thus, an or-
der tailored to the Respondent’s history of failing to re-
spond to information requests at its Waco facility and
prohibiting the Respondent from violating the Act “in
any like or related manner” in the future (i.e., enjoining
the Respondent from committing any like or related
8(a)(5) violations) is the appropriate remedy under Ex-
press Publishing Co. as implemented by the Board in
Hickmott Foods. See 312 U.S. at 438 (“An appropriate
order under the circumstances of the present case would
go no further that to restrain the respondent from any
refusal to bargain and from any other acts in any manner
interfering with the Guild’s efforts to negotiate.”).
My colleagues cite several factors, none of which is
persuasive, in support of their decision to issue a broad
order. First, they note that information request violations
occurred at this same facility in 2001, and that the viola-
tions in this case (in 2003) occurred after the Board is-
sued an uncontested narrow order in its earlier decision
but before the Fifth Circuit Court of Appeals enforced
the Board’s prior order. That may be, but the logical re-
sponse to repeated violations of a specific proscription of

supra, and cases cited therein. Indeed, my colleagues cite only two
cases in which broad orders were entered based upon violations of a
single subsection of the Act. The first was a panel decision in which
two members entered a broad order over the dissent of then-Member
Acosta. Postal Service, 339 NLRB 1162 (2003). In the second case the
“broad” order at issue was actually quite specific and targeted at the
same conduct the respondent union previously repeatedly committed.
Iron Workers Local 433 (United Steel), 293 NLRB 621 (1989), enfd.
920 F.2d 28 (9th Cir. 1989) (restraining the defendant union from “in
any manner inducing and encouraging employees . . . to refuse to per-
form any services where an object thereof is to force or require [an
employer] to cease doing business with [others]” and “in any manner
threatening, coercing or restraining [persons] . . . where an object
thereof is to force or require [persons] to cease doing business with one
another”).
a Board order is to institute contempt proceedings to en-
force that order, not to issue an even broader order seek-
ing to restrain the commission of other unlawful acts
wholly disassociated from those the Respondent has
committed. If the objective is to compel compliance
through the threat of contempt proceedings, then the
Board should make good on the threat.7
My colleagues also contend that because the informa-
tion requests at issue pertain to grievance investigations,
the Respondent’s refusals to provide such information
have the potential to hide other misconduct, including
other statutory violations. However, the same could be
said of virtually any information request (or subpoena for
that matter), and this speculative “potential”8 can be ef-
fectively redressed by requiring the production of the
relevant information pursuant to contempt proceedings
instituted under a narrow order.9
My colleagues also rely on the “weakness” of the Re-
spondent’s defenses to the information request violations
found at Waco. However, in the case relating to the 2001
violations, the Respondent simply did not except to the
judge’s decision, electing instead to produce the re-
quested information—hardly an unusual outcome in an
information request case where the costs of litigating
frequently outweigh the benefits of resisting disclosure.
Thus, I would not infer from the fact that Respondent
reasserted similar defenses in a different case to which it
did file exceptions, that the defenses were necessarily
weak. More significantly, the assertion of weak defenses
in Board litigation is a decidedly common phenomenon,
and bears no logical or statistical relation to a respon-
dent’s propensity to engage in violations of any section
of the Act.
My colleagues also place much emphasis on the fact
that the Board has issued, or the Respondent has con-
sented to, broad cease-and-desist orders for information
request violations at Postal Service facilities in other cit-
ies and states. However, the Postal Service is a massive,
far-flung and decentralized operation and violations of
this nature—which involve disputes over what evidence
may or may not be relevant to a particular grievance, or

7 My colleagues contend that this proposition has no import here be-
cause contempt proceedings were not available in the circumstances of
this case. The majority, however, misses the larger point: the appropri-
ate response to repeated violations of the Board’s narrow orders is to
pursue contempt orders when available, not to issue a broad order based
solely on those repeated violations.
8 My colleagues do not dispute that there is no actual evidence of
other violations.
9 I note that my colleagues’ entire argument on this point rests on a
single “cf.” cite to a 1945 Appellate Court decision under the Wartime
Emergency Price Control Act, an entirely different statutory frame-
work.
POSTAL SERVICE 415
over how promptly or fully an information request is
responded to by a recipient—are decidedly parochial.10
Indeed, that is why my colleagues are limiting the rem-
edy to the Waco facility at issue here. Consequently,
evidence of violations at other facilities adds little to the
analysis of whether a broad order is appropriate in Waco.
Finally, my colleagues rely on the fact that they are is-
suing today another broad order against a Postal Service
facility located some 800 miles from Waco in Albuquer-
que, New Mexico. In that case, adverse action was taken
against an employee craft director (i.e., shop steward),
principally by a single on-site supervisor, for the craft
director’s rigorous union activities, which included filing
multiple grievances and information requests. Whatever
the unlawful conduct in Albuquerque may imply about
the likelihood of additional and varied unfair labor prac-
tices at that facility, it portends nothing about the local
management in Waco and the likelihood of other unfair
labor practices occurring there.
In fact, the Respondent’s managers in Waco undertook
voluntary remedial measures even before the Fifth Cir-
cuit enforced the Board’s earlier order directed at the
facility. Respondent named a new plant manager who
took prompt action to assure compliance with union in-
formation requests. At her direction, the Respondent’s
in-house attorneys trained management officials on the
importance of responding to information requests. Sec-
ond, the facility’s new manager implemented a system to
log and track the Union’s information requests.
The majority contends that the Respondent’s voluntary
remedial measures do not obviate the need for a broad
order because those efforts failed to completely eliminate
information request violations. I disagree. Initiatives to
ensure compliance with the Act and to educate managers
as to the rights it protects, even if imperfect in result, are
plainly inconsistent with “an attitude of opposition to the
purposes of the Act.” Hickmott, supra, 242 NLRB at
1357. The Respondent indisputably improved its respon-
siveness to the Union’s information requests. Its new
system for tracking information requests allowed it to
successfully respond to 64 other requests by the Union
over an 8-week period, and presumably many others.
Such voluntary remedial action also does not square
with the majority’s conclusion that the Respondent’s
overall course of conduct indicates that, in the future and

10 The General Counsel memorandum cited by my colleagues, OM
01-25, in which the Agency withdrew from a short-lived nationwide
alternative dispute resolution plan instituted to attempt to address the
numerous information request disputes between the Postal Service and
its unions, confirms the parochial nature of the problem, stating:
“Moreover many of these disputes arise from a relatively limited num-
ber of facilities.” Id. at page 1 of General Counsel Leonard R. Page’s
accompanying letter to the Postal Service.
at this postal facility, it is likely to engage in other unfair
labor practices not similar or fairly related to the 8(a)(5)
information request violations found. The Respondent’s
voluntary remedial measures suggest just the opposite,
and further demonstrate that the Board’s traditional
remedies are an adequate restraint on the Respondent’s
unfair labor practices.
In short, nothing in the Respondent’s behavior at the
Waco postal facility demonstrates either a danger that the
Respondent will commit other dissimilar violations of
the Act in the future at that facility, Express Publishing
Co., supra, 312 U.S. at 437, or a propensity to violate
employee rights under the Act by “varying methods.”
Union Nacional de Trabajadores, supra, 540 F.2d at 11.
Consequently, I respectfully disagree with my col-
leagues’ decision to impose a broad order and would,
consistent with Section 10(c) and Supreme Court prece-
dent, instead issue a cease-and-desist order for “such”
violations found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with the
American Postal Workers Union, Local 739, AFL–CIO,
by failing and refusing to furnish the Union with a copy
of the overtime desired list and the order of rotation that
management used to make up the overtime to Beverly
Alexander.
WE WILL NOT refuse to bargain collectively with the
Union by failing to timely furnish the Union with a copy
of the OMSS report.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish the Union with a
copy of the mail conditions report and how much mail
was cancelled on May 5 and 6, 2003.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish the Union with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD416
the following information: (1) how long the six level 6
FSM jobs have existed, (2) a list of all the employees that
work on the flat sorter as level 6 clerks and how long
they have worked there, (3) what other jobs will man-
agement want to abolish, and (4) when will they abolish
these jobs.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL furnish to the Union all of the information we
unlawfully withheld.
UNITED STATES POSTAL SERVICE
Laurie Hines-Ackerman, Esq., for the General Counsel.
Kimberly C. Blanton, Esq. and Alexander G. Katz, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. The charge was
filed by the American Postal Workers Union, Local 739, AFL–
CIO (Union or Charging Party) against the United States Postal
Service (Respondent or USPS) on July 14, 2003.1 An amended
charge was filed on September 25. A first amended complaint
(complaint) was issued on May 12, 2004, alleging that the Re-
spondent violated Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act), by failing to timely furnish the Charg-
ing Party with the described information requested by it, which
information is necessary for and relevant to the Charging
Party’s performance of its duties as the exclusive collective-
bargaining representative of the involved unit. The Respondent
denies violating the Act. By way of an affirmative defense,
Respondent argues that the National Labor Relations Board
(Board) lacks jurisdiction to rule upon questions relating solely
to the matter of contract interpretation, which do not involve
the repudiation of the contract.
A trial was held in this matter on May 27, 2004. On the en-
tire record, including my observation of the demeanor of the
witnesses, and after considering the briefs filed by counsel for
General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the Respondent admits, and I find that
the Respondent provides postal services for the United Sates
and operates various facilities throughout the United States in
the performance of that function, including its processing and
distribution center (PD&C) located in Waco, Texas, the only
facility involved in this proceeding. The Respondent admits and
I find that the Board has jurisdiction over the Respondent by
virtue of Section 1209 of the Postal Reorganization Act (PRA).
The complaint alleges, the Respondent admits, and I find that
the Union and the National Union, namely the American Postal
Workers Union, AFL–CIO (National), are labor organizations
within the meaning of Section 2(5) of the Act.

1 All dates are in 2003 unless otherwise indicated.
The complaint alleges, the Respondent admits, and I find that
the following employees of the Respondent (the unit), consti-
tute a unit appropriate for the proposes of collective bargaining
within the meaning of Section 9(b) of the Act:
INCLUDED: All maintenance employees, special de-
livery messengers, motor vehicle employees, postal clerks,
and mail equipment shops employees and material distri-
bution centers employees.
EXCLUDED: Managerial and supervisory personnel,
professional employees, employees engaged in personnel
work in other than a purely non-confidential clerical ca-
pacity, security guards [as defined in Public Law 91-375,
1202(2)], all postal inspection service employees, employ-
ees in the supplemental workforce as defined in Article 7
[of the parties’ collective bargaining agreement], rural let-
ter carriers, mail handlers or letter carriers.
The complaint alleges, the Respondent admits, and I find that
the National Union has been the designated exclusive bargain-
ing representative of the unit, it has been recognized as the
representative by the Respondent, this recognition has been
embodied in successive bargaining agreements, and the Charg-
ing Party has been an agent for the National Union for various
purposes including administering the collective-bargaining
agreement with respect to employees in the unit who are em-
ployed by the Respondent in Waco.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On September 6, 2002, Judge Cullen, after presiding at a trial
before the National Labor Relations Board (Board) on June 24,
2002, issued a decision in Cases 16–CA–21403, et. al, in which
he found that USPS, at its Waco facility, violated Section
8(a)(1) and (5) of the Act by failing and refusing to furnish
and/or timely furnish the Union with requested information
which was presumptively relevant, namely Organization Man-
agement Staffing System (OMSS) Reports, the limitation of a
job posting, clock rings, the weekly schedules for customer
service employees in Waco, time records, and a list of unen-
cumbered employees. USPS was also found in violation of
Section 8(a)(1) and (5) of the Act by failing and refusing to
timely furnish the Union with the requested mail condition
reports, form 50s for all casual employees employed at USPS’s
Waco P&DC, and disciplinary records. (GC Exh. 2.)
On October 25, 2002, the Board issued an Order which indi-
cated that no statement of exceptions to Judge Cullen’s decision
in Cases 16–CA–21403, et. al, had been filed with the Board,
and the Board adopted the findings and conclusions of Judge
Cullen. (GC Exh. 2.)
On June 3, the United States Court of Appeals for the Fifth
Circuit in 03-60151 issued a judgment enforcing the Board’s
Order in Cases 16–CA–21403, et. al, and ordered USPS to
abide by such order. (GC Exh. 2.)
William Curtis Reed, who has been the union president for 3
years, testified that there is a grievance arbitration procedure in
the collective-bargaining agreement between the Union and
USPS; that he files grievances; that step one of the procedure
involves notifying USPS and trying to resolve the issue with
POSTAL SERVICE 417
the employee’s immediate supervisor; that if step one is denied,
then it is appealed to step two; that as part of step two, an in-
formation request is submitted to USPS; that the installation
head or someone designated by it represents USPS at the step
two meeting; that if step two is denied, the Union has 10 days
to appeal it to local management; that at step three the entire
case is submitted, namely all of the evidence, all of the argu-
ments, management’s rebuttals, and all of the information re-
quests; that at step three the grievance is no longer in his hands,
the Union is represented by the National Business Agency and
USPS is represented by someone out of the regional office; that
the last possible moment that he can add evidence is 10 days
after the step two answer is given to him; and that General
Counsel’s Exhibit 3 is, as here pertinent, article 31, section 3
from the involved collective-bargaining agreement which reads
as follows:
The Employer will make available for inspection by
the Union all relevant information necessary for collective
bargaining or the enforcement, administration or interpre-
tation of this Agreement, including information necessary
to determine whether to file or to continue the processing
of a grievance under this Agreement. Upon the request of
the Union, the Employer will furnish such information,
provided, however, that the Employer may require the Un-
ion to reimburse the USPS for any costs reasonably in-
curred in obtaining the information.
Requests for information relating to purely local mat-
ters should be submitted by the local Union representative
to the installation head or his designee. All other requests
for information shall be directed by the National President
of the Union to the Vice-President, Labor Relations.
Reed further testified that if he needs information, he fills out an
information request form, General Counsel’s Exhibit 4,2 he puts it
in a “Holy Joe,” which is an interoffice envelope, and places it in a
U-cart, which is a bin used for transporting mail, marked official
mail; that this cart is only used for mail which stays in the building;
that from May to June 2003, he sent the information requests to
Mary Trout, who at the time was the Attendance Control Supervi-
sor because in 2002, after Judge Cullen’s above-described decision,
USPS sent a letter to the Union indicating that all information re-
quests should go to Trout; and that typically when management
receives a request for information from the Union, management
will either call him to come to their office or they will give him the
information by sliding it under the door of the union office which is
located just off the workroom floor, or they will give it to him
while he is on the floor.
B. Facts
In March 2003, Iris Reddick became the plant manager of
the Waco processing and distribution facility. She testified that
when she was promoted to plant manager at Waco Union re-

2 The printed form has boxes for certain information, namely the
name of the grievant, the nature of the allegation, the date of the re-
quest, to whom it is directed, who is requesting the information, a de-
scription of the information, whether the request is approved or denied,
with a reason, the date of the disposition of the request, and the signa-
ture of the person who ruled on the request.
quests for information were not answered. On cross-
examination Reddick testified that she replaced Robert Roper;
that Sandra Sweatt, who was at the Waco facility at the time
and worked in customer service, did not work for her; and that
in her first week as plant manager at Waco she went with
Sweatt to post the Board notice at each facility and Sweatt ex-
plained the process to her.
Nancy Robinette, who at the time of the involved informa-
tion requests was the acting secretary to the plant manager at
the Waco processing and distribution facility, testified that in
late April 2003, she started maintaining a log in which she
wrote the date the request for information was received, the
name of the requestor, who the request for information was
going to, the issue, and the date the information was given back
to her to send out to the Union; that Respondent’s Exhibit 1 is
the handwritten request for information log she kept from
“5/5/03” to “7/6/03”; and that Respondent’s Exhibit 1 also
specifies the date the representative of the Union received the
information, and this entry is based on a form which the union
representative signed when he received the information. On
cross-examination Robinette testified that Henry Smith as-
signed her to log in the information requests and Reddick
played a role in her continuation of that task. On redirect
Robinette testified that Smith told her to keep a record of every-
thing regarding information requests in February or March
2003. Subsequently Robinette testified that she was directed by
Reddick to set up the log which was received as Respondent’s
Exhibit 1, and before that she just used a legal pad; that while a
procedure was set up by Reddick for logging in requests for
information, the procedure was not followed 100 percent of the
time; that while Mary Trout, who is the supervisor of distribu-
tion operations and was the designated contact person for the
Union’s information requests, was aware of the procedure,
sometimes Trout (one percent of the time) did not give her a
request to log in.
Trout testified that normally the plant manager’s secretary
would distribute the Union’s information requests to her; that
Respondent’s Exhibit 2 is a Union request for information log
that she maintained; that Respondent’s Exhibit 2 starts on April
21 and runs to July 7; that she left this office sometime in June
2003, and the entries on Respondent’s Exhibit 2 after that time
were made by her replacement, someone she identified only as
Frankie; that when she received an information request she did
not log it in until she “gave it over to the person that was re-
ceiving it, the end of it. Usually it was Nancy Robinette” (Tr. p.
105); that she started her log because there was a lot of contro-
versy about information not being given, or some people not
seeing it; and that the plant manager made it a big priority to
make sure that the information got out no later than a week. On
cross-examination Trout testified that Plant Manager Reddick
was out a lot and the different acting plant managers were not
as adamant as Reddick about the information requests; that
Lewis Zedlitz performed acting plant manager functions in
May and June and possibly July 2003; and that in June 2003
Zedlitz was the one who sent her out of her office.
General Counsel’s Exhibit 5 is an undated information re-
quest form, regarding Grievant Beverly Alexander, from Reed
to Trout seeking the following:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD418
The Union is requesting a copy of Beverly Alexan-
der[’s] clock rings for the following time period[:] Sep-
tember through October 2002, for each . . . [S]unday night
only. The Union also want[s] a copy of the overtime desire
list for the time frame in question. The Union also want[s]
to know the order of rotation that management used during
this particular time, to make up the over time to Mrs.
Alexander.
Reed testified that he left the date out on the information request by
mistake; and that he delivered this request to Trout by placing it in
an interoffice envelope and placing it in the U-cart marked official
mail only. General Counsel’s Exhibit 6 is the same request only
with a date on it, “5-04-03,” and “2nd Request” handwritten by
Reed in the nature of the allegation box. Reed testified that he
made the second request because he did not receive the information
after the first request; that he did not recall how much time passed
between the first request and the second request; that he submitted
the second request to Trout by placing it in an interoffice envelope
and placing the envelope in the U-cart marked official mail only;
that he requested the “overtime desire list” because it would show
him who was on the list and he wanted to see if Alexander’s name
was on the list to show whether she was entitled to overtime with-
out filing for it; that the issue regarding the overtime for Alexander
was that she was skipped on the overtime desired list in a previous
grievance, and this grievance dealt with her makeup; that the list
would have shown him what days Alexander was supposed to have
been given the makeup overtime; that the “order of rotation” would
have shown him whether management issued, pursuant to the col-
lective-bargaining agreement, overtime on a seniority basis; that he
never received the overtime desired list and the order of rotation
from the Respondent; and that he filed a grievance and at the time
of the trial herein it had been sent to step three, pending arbitration.
Reddick testified that she did not have any involvement with
the information request received as General Counsel’s Exhibit
6.
Robinette testified that she logged in the information request
which was received as General Counsel’s Exhibit 6 on page 1
of Respondent’s Exhibit 1; and that she gave the Union the
clock rings for Alexander. On cross-examination Robinette
testified that the Respondent did not provide the requested
overtime desired list or the order of rotation that management
used from September to October 2002.
Trout testified that she was familiar with the information re-
quest received as General Counsel’s Exhibit 6; that she had
access to the clock rings using a program on the computer
which supervisors can access; that for the overtime desired list
she had to go to the floor, and it is basically put in the order of
seniority; that with respect to the order of rotation, sometimes
the supervisors mark the list and sometimes they do not; that
the information request received as General Counsel’s Exhibit
6 is the first entry on page 2 of her log; that the only informa-
tion provided was 18 pages of clock rings; and that she would
have given the overtime desired list. On cross-examination
Trout testified that she told the Union that the supervisors did
not always mark the overtime desired list to show the last per-
son they kept for overtime so this information did not exist; that
General Counsel’s Exhibit 15 are the clock rings for Alexander;
and that since her log indicates that she provided 18 pages to
the Union, what is in the packet received as General Counsel’s
Exhibit 15 is what she provided to the Union.3
By information request dated “5-12-03,” General Counsel’s
Exhibit 7, Reed submitted the following request to Trout:
The Union is requesting a copy of the OMSS
REPORT, the union has attached a copy of page 20 sec-
tion 160 from the ELM [Employee Labor Relations Man-
ual] to help show management what type of reports we are
asking for from them.
Reed testified that he put this request in an interoffice envelope and
placed the envelope in a U-cart marked official mail only; that the
OMSS report shows what positions are authorized for a facility;
that in 2001, the Respondent did not give him this information
when he requested it; and that at that time the Union filed a charge
and there was another hearing on this same information request
because the Respondent did not believe that the Union was entitled
to this information.
On about May 12, according to the testimony of Reed, he
had a conversation with Reddick in her office. Reed testified
that Tim Loftin, who was the maintenance manager at the time,
was also present; that the conversation lasted 15 to 20 minutes;
that Reddick stated that she did not even know what an OMSS
report was, and she tried, unsuccessfully, to get a copy of it
from Ken Thompson, who works in the district office in Austin,
Texas; that he needed the OMSS report for that whole year to
see who held what positions because management had abol-
ished a bargaining unit job and then a manager did the work;
that if management gave the job a new title, the OMSS would
have demonstrated whether the title was authorized for the
Waco facility and it would have shown that the employee had
held that position for the entire year; that USPS did not respond
to his May 12 information request; that a grievance was filed by
the Union on the issue of management performing bargaining
unit work; and that at the time of the trial herein, the grievance
was pending arbitration.
Reddick testified that she received the information request
which is dated May 12, and which was received as General
Counsel’s Exhibit 7; that when she received the request she
called the labor relations manager for advice on how to answer
the request; that she spoke with someone she identified only as
Ann, who is an area person who works on staffing; that she
spoke with Angie Barns who is the human resource manager
for the district; that she spoke with Jeff Claye, who is the hu-
man relations manager for the Rio Grande District; and that she
spoke with Sondra Sweatt, who is the person in the Waco plant
who usually helps gather the data. On cross-examination Red-
dick testified that when Sweatt could not supply the informa-
tion, she went to Claye; and that she did not tell Trout to tell the
Union that the she had been speaking with Claye who was go-
ing to get back with the information.
On redirect Reddick testified that this was the first informa-
tion request for an OMSS report that she received in her man-
agement career; and that the report originated from the South-
west Area Office in Dallas, Texas. On recross, Reddick testi-

3 The packet does not contain an overtime desire list.
POSTAL SERVICE 419
fied that when Trout asked her about Reed’s May 12 request for
the OMSS report she immediately telephoned labor relations to
find out how to provide the information. Subsequently Reddick
testified that if Trout waits for weeks before telling her that she
had been trying unsuccessfully to get the information, Reddick
would not know about the request; that when Trout brought the
request to her attention she immediately acted on it; and that
she did not know the exact dates involved.
Robinette testified that the information request received as
General Counsel’s Exhibit 7 is not included on her log, Re-
spondent’s Exhibit 1. Subsequently Robinette testified that
while this request was not on her log, she recalled seeing it and
she believed that she saw it in Trout’s office; that she told Trout
that she did not have this request logged in and Trout told her
that this report does not exist; that she told Trout that Claye had
to be contacted and she sent Claye an email; and that Claye
responded indicating that the information should be given to the
Union.
Trout testified that she processed the information request re-
ceived as General Counsel’s Exhibit 7; that she had no idea
what an OMSS report was; and that she took the request to
Plant Manager Reddick, and after that she did not have any
further involvement with the request.
By information request dated “5-12-03,” General Counsel’s
Exhibit 8, Reed submitted the following request to Trout:
The Union is requesting a copy of the mail conditions report
for the following two days, May 5, 2003 and May 6. The Un-
ion also want[s] to know how much of the mail was cancelled
for both days as well. The union also want[s] a copy of the
overtime desire list for the days in question as well. The union
also want[s] a copy of each employee’s clock rings that is on
the overtime desire list. All this information pertains to tour 3
mail office [clerks on the overtime desire list and clock
rings][.]
Reed testified that he put this request in an interoffice enve-
lope and placed the envelope in a U-cart marked official mail
only. Reed made a second request for this information on May
27, General Counsel’s Exhibit 9. He testified that he put this
second request in an interoffice envelope and placed the enve-
lope in a U-cart marked official mail only; that the mail condi-
tion report would have shown how much mail was processed in
the plant on those two particular days; that management had
denied tour 3 clerks tour 3 overtime and he wanted to be able to
demonstrate that there was enough mail to show that overtime
was needed; that he wanted the amount of mail cancelled on
May 5 and 6 to show how late they were processing or cancel-
ing mail to further articulate his argument that there was a need
for overtime; that mail is cancelled when it runs through a ma-
chine and the stamps are cancelled (lines are placed over the
stamp) so that they cannot be used again; that a grievance was
filed on the issue of tour 3 overtime; that at the time of the trial
herein it was at step three pending arbitration; and that he never
received the mail conditions report or the amount of cancelled
mail while he was processing this grievance.
Reddick testified that she recognized the information request
received as General Counsel’s Exhibit 8; that her involvement
with this request consisted of supplying the information
through the supervisor and through her office to the Union; that
around this time she set up a system under which the request
for information would be logged in to centralize the procedure
and to ensure that the Union received the information; and that
the Union signed off as well as someone from Respondent.
Robinette testified that the information request received as
General Counsel’s Exhibit 8 is not included on her log, Re-
spondent’s Exhibit 1.
Trout testified that she processed the Union’s information
request received as General Counsel’s Exhibit 8; that she got
the mail condition reports; that she went to the floor to get the
overtime desired list; that, after asking the Union the scope of
its request, she provided the clock rings for the people on the
overtime desired list; that this request is the last entry on page
two of her log; that she gave this information to Reed; and that
Reed told her that this was a second request for this information
so she crossed out the information request date of “5/27/03”
and wrote over it “5/12/03.” On cross-examination Trout testi-
fied that unlike her other entries, she did not write down how
many pages of information were provided to the Union; that the
daily mail condition reports, which tell how much mail was
cancelled for that day, were “like one page each” (Tr. p. 122);
and that General Counsel’s Exhibit 16 is a copy of the tour 3
overtime desired list of April through June 2003, along with
clock rings for tour 3 and tour 1 employees; that the first page
of General Counsel’s Exhibit 16 has two date stamps on it and
that normally the plant manager’s secretary, Jackie Munmon,
places these stamps on an information request;4 that General
Counsel’s Exhibit 16 does not have a form like that included in
the packet received as General Counsel’s Exhibit 15 showing
the signature of the union representative receiving the informa-
tion requested on May 12 and 27; and that her handwritten last
entry on page 2 of her log is the only proof that the information
requested on May 12 and 27 was provided to the Union.
By information request dated “6-1-03,” General Counsel’s
Exhibit 10, Reed submitted the following request to Trout:
The Union wants to know in writing why management is
abolishing 6 level 6 jobs (FSM [Flat Sorter] Clerks). The Un-
ion also want[s] to know how long . . . [have] the 6 level 6
jobs been around (how long has management been using
scheme clerks on the flat sorter), the union also want[s] a list
of all the employees that work on the flat sorter, as level 6
clerks to include years. The Union also want[s] to know what
other jobs will management want to abolish and when will
they want to abolish these jobs.
Reed testified that he put this request in an interoffice envelope and
placed the envelope in a U-cart marked official mail only; that
since the Respondent was not returning his information requests to
show that it had received them, he placed a mail date stamp (June
1) on the request form; that he was requesting this information
because management had abolished six FSM clerks jobs and he
wanted to make sure that USPS was contractually right in taking
this action; that he asked about the other jobs that management

4 The date stamps are May 13 and 15. This is the information request
received as General Counsel’s Exhibit 8, dated May 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD420
would abolish and when because management has told him that
they were going to abolish jobs and he wanted to tell employees so
that they could bid on other jobs; that he asked for a list of the em-
ployees who worked on the flat sorter as level 6 clerks because he
wanted to show that there was a need for the job and how long the
particular employees had been working in that particular job; that
Lewis Zedlitz sent him a letter stating why the jobs were being
abolished; that he filed a grievance on the issue of the abolishment
of FSM jobs; that he did not have the information when he filed the
grievance; and that the grievance is at step 3 pending arbitration.
On redirect Reed testified that he had previously asked the Re-
spondent why they were abolishing the level 6 jobs.
Reddick testified that she recognized the request for informa-
tion which was dated June 1, and received as General Counsel’s
Exhibit 10; that she never processes any of the information
requests but rather she would follow up with the supervisors
and help them get the information; and that Trout’s name was
on the request and she was the person that Respondent was
centralizing the information requests to at that point.
Robinette testified that the information request received as
General Counsel’s Exhibit 10 is the third entry on page 2 of
Respondent’s Exhibit 1; and that in response to this request, she
gave a 1-page letter from Zedlitz to Reed who signed for it on
“6/10/03.” On cross-examination Robinette testified that her
log does not reflect an index of what was actually provided to
the Union but rather it reflects her understanding of what was
provided to the Union; and that “from my summary, I know
that one page is not everything that they ask[ed] for.” (Tr. p.
96.)
Trout testified that she did not recognize the Union’s infor-
mation request received as General Counsel’s Exhibit 10, and
she would not have been able to process the request.
By information request dated “6-13-03,” General Counsel’s
Exhibit 11, John Baker, who is the vice president of the Union
and works at the Waco annex facility, submitted the following
request to Trout:
request the management organization report for the previous
12 month period for the Waco facility. [R]equest the man-
agement staffing report for the previous 12 month period for
the [W]aco facility. [R]equest the management staffing excep-
tion report for the previous 12 month period for the [W]aco
[T]exas facility.
Baker testified that he files information requests to investigate and
adjust grievances; that he believed that the OMSS report encapsu-
lates all three of the reports that he requested; that he asked for the
reports because he was investigating a possible grievance with
respect to whether the Respondent was utilizing temporary em-
ployees in bargaining unit positions; that the reports would show
how many nonbargaining unit positions were authorized and what
the actual compliment was at the time; that he asked for 12 months
to be able to note any change within that timeframe; and that he
received a June 18 response from USPS, General Counsel’s Ex-
hibit 12, in which Trout denied the request indicating that “[t]he
Union has not identified how the information requested is relative
to the APWU [American Postal Workers Union] bargaining units
nor how it is arguably relevant to any alleged violations of the
Collective Bargaining Agreement.” Trout went on to indicate “[I]f
the Union would respond and explain the arguable relevancy, the
request will be reconsidered.”
Robinette testified that the information request received as
General Counsel’s Exhibit 11 is included on page 2 of her log;
that the Union was given 5 pages which Baker signed for on
June 26, 2003; that when she writes in the column headed
“NATURE OF ALLEGATION, ARTICLE” it is a summary of
what she understands the Union is requesting; that she was
aware that USPS was given a subpoena to produce documents
showing that the Union received the requested documents; and
that she spent a lot of time unsuccessfully looking for the box
of documents which showed the Union received requested
documents.
On July 1, Baker filed a charge with the Board in Case 16–
CA–22906 alleging that the Respondent violated Section
8(a)(1) and (5) of the Act when Trout denied the Union’s June
13 information request relevant to the investigation and filing
of grievances on behalf of the local bargaining unit.
Baker testified that in August 2003, USPS gave him the re-
ports described in his information request of June 13; that Man-
ager Zedlitz told him that Reed was pursuing the staffing issue;
and that there was no need for him and Reed to file on the same
issue so he withdrew his charge.
By letter dated August 7, General Counsel’s Exhibit 14,
Reddick advised Baker as follows:
Attached is the information you requested on June 13,
2003. The information is being provided despite your fail-
ure to articulate the relevance thereof to any aspect of your
bargaining unit or the collective bargaining agreement be-
tween the parties.
For future reference, if the employer questions the
relevancy of the information your are requesting and no
response is forth coming, the employer will consider the
request to have been withdrawn or otherwise made moot.
Reed testified that on May 21, 2004, he had a conversation
with Loftin who told him that he had the information request
and he was going to give him the information; that Loftin asked
him what particular information he needed; that he told Loftin
that he did not need any information anymore because the
grievance had been processed and he could not submit any
more information; that Loftin asked him how far he wanted to
go back on the FSM job and he told Loftin that he should go
back as far as when Reed started working at the Waco facility;
that he did not get the information at that time; and that Chuck
Mason, who is a maintenance supervisor, was present during
this conversation.
C. Analysis
Collectively paragraphs 10(a), 11, and 12(a) of the complaint
allege that on or about May 4, the Charging Party, in writing,
requested, for the time period of September through October
2002, a copy of the overtime desired list and the order of rota-
tion that management used to make up the overtime to Beverly
Alexander; that the information is necessary for and relevant to
the Charging Party’s performance of its duties as the exclusive
collective-bargaining representative of the unit; and that since
POSTAL SERVICE 421
about May 4, the Respondent has failed and refused to furnish
the Charging Party with this information. In its amended an-
swer to the complaint the Respondent admits that on or about
May 4, the Charging Party, in writing, requested, for the time
period of September through October 2002, a copy of the over-
time desired list and the order of rotation that management used
to make up the overtime to Beverly Alexander.
The General Counsel points out on brief that the Supreme
Court ruled (a) in NLRB v. Truitt Mfg. Co., 351 U.S. 432
(1956), that a union, as exclusive bargaining representative of
the bargaining unit employees, is entitled to receive relevant
information from an employer, and (b) in Acme Industrial Co.,
385 U.S. 432 (1967), that an employer has a statutory duty to
supply information which is potentially relevant and of use to
the union in fulfilling its duties as exclusive representative,
including its duty to police the contract, and a union is entitled
to receive information from an employer that could be used to
process and investigate grievances. General Counsel also points
out that the Board applies a liberal standard of discovery,
Postal Service, 307 NLRB 429, 432 (1992), information con-
cerning bargaining unit employees is presumptively relevant
and must be furnished upon request, Evergreen New Hope
Health & Rehabilitation Center, 337 NLRB No. 71 slip op. at 2
(2002) (not reported in Board volumes), and the failure to
timely provide relevant information is also a violation of Sec-
tion 8(a)(5) and (1) of the Act, Postal Service, 308 NLRB 547
(1992). General Counsel contends that at issue here is how the
Respondent responded to the Union’s information requests, the
system the Respondent had in place, the reliability of the
documentation, and the completeness of the apparent re-
sponses; that while the Respondent tried to improve its infor-
mation tracking system, its efforts failed in that it did not cen-
tralize its request tracking system and its plan to respond to the
information requests, and the Respondent’s involved documen-
tation is incomplete; that Respondent’s documentation does not
show that the overtime desired list was provided to the Union in
that Respondent’s documentation shows only that clock rings
were provided to the Union; that Robinette’s and Trout’s logs
contain no indication that the overtime desired list and order of
rotation management used for the requested time period leads
to the conclusion that the Respondent did not provide the re-
quested information; and that with respect to the order of rota-
tion, the Respondent is obligated to provide the information it
has available, to compile it, or to give the Union access to the
records from which it can reasonably compile the information.
The Respondent on brief argues that it provided and re-
sponded to all the information requested on May 4; that if the
Union did not receive the information requested, they should
have renewed their request or complained about it being defi-
cient, and the Union did neither; that since management made a
good faith attempt to provide the Union with information and
management was not notified of any inadequacies, it cannot be
expected to remedy something it has no knowledge of; that
until the Union filed the charge management thought the re-
quest had been fulfilled; that Trout’s verbal response to the
written request for the order of rotation, indicating that it did
not exist, was perfectly lawful; and that the order of rotation
could not be recreated.
In my opinion, the Respondent violated the Act as alleged in
paragraph 10(a) to the extent that it did not, as Robinette con-
cedes, provide the requested overtime desired list or the order
of rotation that management used from September to October
2002. The information requested is relevant and necessary to
the processing of a grievance. Trout equivocally testified that
she “would” have given the overtime desired list. Would have,
could have, should have is not the same as testifying “I did”
give the overtime desired list to the Union when the informa-
tion was requested. While Trout alleges that the supervisors do
not always mark the overtime desired list to show the last per-
son for chosen for overtime, she did not testify that she turned
over to the Union the list to show that some but not all were
marked. I do not credit Trout’s testimony that she told the Un-
ion about the order of rotation. She did not make the effort to
explain, to show, and to give the Union an alternative to obtain
the information it was seeking. If one takes the testimony of
Trout at face value, the Respondent negligently created the
situation with respect to the order of rotation and the Union
must suffer the consequences. Apparently, the Respondent is
taking the position that it does not have to take any responsibil-
ity for its negligence. Additionally, Respondent’s attorneys
appear to take the position that when the Respondent does not
provide the information requested, the Respondent does not
know that did not provide the information requested. According
to them, the Respondent must be told that it is not providing the
information requested. Please! With this kind of an approach, it
does not appear that the Respondent wants to forthrightly ad-
dress a continuing problem that is needlessly costing the Union,
the public who uses the mail service, and the American tax-
payer who “foots the bill” for needless litigation. What hap-
pened here was not done in good faith. What happened here
involves an attitude. As found by the Board in Postal Service,
337 NLRB 820 fn. 2 (2002), the USPS has a history of similar
violations. Unless and until that attitude changes, this type of
needless litigation will continue. Perhaps the only thing that
will bring about a change in Respondent’s attitude is the con-
tempt power of a United States Court of Appeals.
Collectively paragraphs 10(b), 11, and 12(b) of the com-
plaint allege that on or about May 12, the Charging Party, in
writing, requested a copy of the OMSS report for the last 12
months, May 12, 2002 to May 12, 2003; that the information is
necessary for and relevant to the Charging Party’s performance
of its duties as the exclusive collective-bargaining representa-
tive of the unit; and that since about May 12, the Respondent
has failed to timely furnish the Charging Party with this infor-
mation. In its amended answer to the complaint the Respondent
(a) admits that on or about May 12, the Charging Party, in writ-
ing, requested a copy of the OMSS report, but (b) denies the
request was for the last 12 months, May 12, 2002 to May 12,
2003.
The General Counsel on brief contends that Reddick failed to
pursue the requested information with due diligence in that it
took her 13 weeks to provide the reports to the Union, far after
the deadline by which the Union needed the OMSS report; that
Reddick did not inform the Union why it was taking so long to
obtain the report; that Reddick provided the report only after
Baker, well after Reed’s request, requested this same informa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD422
tion and when he did not get it he filed an unfair labor practice
charge against the Respondent with the Board; that Reddick
should have known that the OMSS reports must be submitted to
the Union given that they were involved in the prior case of
which she had knowledge; that in Postal Service, 308 NLRB
547 (1992), the Board found a four week delay untimely; that
in Woodland Clinic, 331 NLRB 735, 736 (2000), the Board
concluded that an unreasonable delay in furnishing information
is as much of a violation of Section 8(a)(5) as a refusal to fur-
nish the information at all; and that neither Robinette’s nor
Trout’s logs contain an entry for the request for the OMSS
report.
The Respondent argues that management’s delay after mak-
ing attempts to retrieve an unfamiliar report not available lo-
cally was reasonable under the circumstances; that neither
Trout nor Reddick had ever heard of the report; that Reddick
had to verify the existence of the report, confirm its relevance,
and then determine where she could retrieve the report; that
Reddick eventually found a contact in the area that ran the re-
port on August 1, and the Union received the report on August
7; that Reddick made diligent attempts to retrieve the report as
quickly as she could; and that considering the nature of the
request and the fact that the report was not available locally, the
delay was reasonable under the circumstances.
In my opinion, the Respondent violated the Act as alleged in
paragraph 10(b) of the complaint to the extent that it did not
timely provide the OMSS report. In reading the Respondent’s
assertions on brief, one gets the impression that the Respondent
intended to comply with Reed’s request and the Respondent’s
delay in providing this information to the Union was reason-
able. Neither Trout not Robinette listed Reed’s request for the
OMSS report in their logs. Notwithstanding the fact that Judge
Cullen, regarding the involved Waco facility, previously found
that the Organization Management Staffing System (OMSS)
reports are presumptively relevant, and notwithstanding the fact
that Respondent did not even file exceptions to this finding, the
Respondent had no intention of voluntarily complying with
Reed’s request for the OMSS report. Indeed, technically the
Respondent did not comply with Reed’s request. It was not
until (a) Baker’s later June 13 request, (b) Trout’s June 18 de-
nial of that request on the grounds that the Union (notwith-
standing Judge Cullen’s finding that the report is presumptively
relevant) must demonstrate relevance, and (c) Baker’s filing a
charge with the Board over the denial of this request for infor-
mation (in addition to a charge filed by Reed regarding the
Respondent’s refusal to turn over information) that Reddick
gave the OMSS report to Baker by letter dated August 7 in
which she indicated that the information was being provided
notwithstanding Baker’s failure to articulate the relevance
(even though Judge Cullen found the report to be presumptively
relevant). In other words, in addition to an unchallenged
judge’s finding, which by June 3 had been enforced by the
United States Court of Appeals for the Fifth Circuit, it took two
requests and two subsequent charges filed with the Board be-
fore USPS would turn over the presumptively relevant informa-
tion. Shame on the USPS. It has wasted resources that would be
better spent resolving genuine issues. The USPS’s delay was
occasioned not by the nature of the request but rather by Re-
spondent’s attitude to delay complying as long as possible.
Collectively paragraphs 10(c), 11, and 12(c) of the complaint
allege that on or about May 12, the Charging Party, in writing,
requested for the time period of May 5 and 6 a copy of the mail
conditions report and how much mail was cancelled; that the
information is necessary for and relevant to the Charging
Party’s performance of its duties as the exclusive collective-
bargaining representative of the unit; and that since about May
12 the Respondent has failed to furnish the Charging Party with
this information. In its amended answer to the complaint the
Respondent admits that on or about May 12, the Charging
Party, in writing, requested for the time period of May 5 and 6 a
copy of the mail conditions report and how much mail was
cancelled.
The General Counsel on brief contends that the evidence
supports a violation in that Robinette admits that she did not
have either request recorded in her log; that while Trout’s log
shows an AMER report (mail conditions report) for May 5 and
6 along with other items requested, unlike other entries on this
log, the entry for this request does not indicate how many pages
were provided to the Union; that Trout admitted that a mail
condition report is a 1-page document; and that Respondent’s
lack of documentation leads to the conclusion that it did not
provide the requested information.
The Respondent argues that the information was provided
within a reasonable time; that Trout noted on her log that she
gave Reed the information that usually would have gone
through Robinette; and that Trout had direct access to the in-
formation and she provided it to Reed the same day he walked
into her office on May 27.
In my opinion, the Respondent violated the Act as alleged in
paragraph 10(c) of the complaint. On the one hand, I found
Reed to be a credible witness. His testimony that he never re-
ceived the documentation showing the amount of mail can-
celled and how late it was cancelled on May 5 and 6 is credited.
On the other hand, I did not find Trout to be a credible witness.
As noted above, she was equivocal with respect to the overtime
desired list sought by Reed on May 4. Again she is equivocal
with respect to the documentation which would show the
amount of mail cancelled on May 5 and 6, and how late it was
cancelled. Trout did not unequivocally testify that she gave
Reed this documentation. While she had the Union sign for
information provided on May 13, see page 2 of General Coun-
sel’s Exhibit 15, Respondent did not produce a similar form
signed by Reed to demonstrate that he received the involved
documentation on May 27. The last entry on page 2 of Trout’s
log is only her notation which allegedly indicates that she gave
something to Reed on “5/27/03.” It is not Reed’s signature
indicating how many pages he received. In that regard, except
for the involved log entry (and one other which is not related),
Trout’s log, which has approximately 80 entries, specifies the
number of pages given to the Union for each and every infor-
mation request listed. Neither the first nor the second request
for this information is listed on Robinette’s log. While she testi-
fied that she did receive the second request, Trout equivocated
as to whether she received the first request on or about May 12.
Trout is not a credible witness. The Respondent has not demon-
POSTAL SERVICE 423
strated that the Union was given the documentation sought. The
information requested is relevant and necessary to the process-
ing of a grievance. The Respondent violated the Act as alleged
in paragraph 10(c) of the complaint.
Collectively paragraphs 10(d), 11, and 12(d) of the com-
plaint allege that on or about June 1, the Charging Party, in
writing, requested the length of time 6 level 6 FSM clerk jobs
have existed, a list of all employees that work the flat sorter as
level 6 clerks and for how long have they worked there, and
what other jobs management will abolish and when; that the
information is necessary for and relevant to the Charging
Party’s performance of its duties as the exclusive collective-
bargaining representative of the unit; and that since about June
1 the Respondent has failed to furnish the Charging Party with
this information. In its amended answer to the complaint the
Respondent admits that on or about May 12, the Charging
Party, in writing, requested the length of time 6 level 6 FSM
clerk jobs have existed, a list of all employees that work the flat
sorter as level 6 clerks and for how long have they worked
there, and what other jobs management will abolish and when.
The General Counsel on brief contends that the evidence
shows that the Respondent failed to provide any of the re-
quested items; that Robinette’s log only shows a June 1 entry
for ‘abolishment of jobs’ and that one page was provided; that
Robinette’s log is incomplete in that it does not provide at least
an index as to what the Respondent provided the Union; that
Robinette admitted that the one page provided to the Union was
not everything they asked for; and that Trout’s log refers to one
page in response to the Union’s June 1 request for three differ-
ent categories of information.
The Respondent argues that if the Union was not satisfied
with the information that the Respondent gave it the Union
should have complained that the information was deficient or
made an additional request; that management was not aware
that the information was incomplete until the Union filed the
initial charge; and that while the Board now claims that some
items were missing or not produced, there is no evidence that
the Union specified which items they claimed were missing.
Here we go again. Respondent’s attorneys on brief argue that
Respondent cannot know that it is not providing the informa-
tion sought unless the Union tells it. So it appears that the Re-
spondent is taking the position that if the Union, as here perti-
nent, asks (1) how long the 6 level 6 FSM jobs have existed, (2)
for a list of all the employees that work on the flat sorter as
level 6 clerks and how long they have worked there, (3) what
other jobs will management want to abolish, and (4) when will
they abolish these jobs, and the Respondent does not provide
this information, the Union must tell the Respondent what in-
formation it did not provide. Robinette, who is a secretary,
knew that the Respondent did not provide all of the information
requested when she testified “from my summary, I know that
one page is not everything that they ask[ed] for,” (Tr. p. 96.)
Reed’s testimony that he sought the information and he did not
have the information when he filed the grievance is not refuted
by the Respondent. Reed’s testimony is credited. The informa-
tion requested is relevant and necessary to the processing of a
grievance. The Respondent violated that Act as alleged in para-
graph 10(d) of the complaint.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Respondent pursuant
to Section 1209 of the Postal Reform Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By engaging in the following conduct, namely failing and
refusing to furnish information which is necessary and relevant
to the Charging Party’s performance of its duties as the exclu-
sive collective-bargaining representative of the above-described
unit, Respondent committed unfair labor practices contrary to
the provisions of Section 8(a)(5) and (1) of the Act:
(a) Since about May 4 failing and refusing to furnish the
Charging Party with a copy of the overtime desired list and the
order of rotation that management used to make up the over-
time to Alexander.
(b) Since about May 12 failing to timely furnish the Charg-
ing Party with a copy of the OMSS report.
(c) Since about May 12 failing to furnish the Charging Party
with a copy of the mail conditions report and how much mail
was cancelled on May 5 and 6, 2003.
(d) Since about June 1 failing to furnish the Charging Party
with the following information: (1) how long the 6 level 6 FSM
jobs have existed, (2) a list of all the employees that work on
the flat sorter as level 6 clerks and how long they have worked
there, (3) what other jobs will management want to abolish, and
(4) when will they abolish these jobs,
4. The above-described labor practices affect commerce
within the contemplation of Section 2(6) and (7) of the Act.
THE REMEDY
The General Counsel submits that given the evidence which
supports a finding that Respondent has a proclivity to violate
the Act, the granting of the special remedies described in para-
graph 14 of the complaint is particularly appropriate in this
case, along with any other relief deemed appropriate. Paragraph
14 of the complaint reads as follows:
General Counsel seeks, as additional remedies to the
unfair labor practices alleged above, that Respondent be
ordered to read the Notice to Employees in the presence of
a Board Agent at its facility located at 430 W. State Hwy.
6, Waco Texas 76702, broadly cease and desist from en-
gaging in any and all unlawful conduct, and reinstate all
grievances lost by Respondent’s failure to provide relevant
information.
The General Counsel points out that if the Respondent does not
provide the requested information by the step 2 grievance deadline,
no additional information can be included; that as a result the griev-
ances at issue in the present case that involved requested informa-
tion were either lost due to the lack of information or were sent to
arbitration; and that, therefore, any remedy that does not provide
that lost grievances be reintroduced in the grievance procedure and
that the Union be permitted to supplement grievances pending
arbitration falls far short of the remedial aims of the Act and would
allow Respondent to profit from its misdeeds.
Respondent’s witnesses tried to convey the impression that
the new manager, Reddick, was concerned about the action the
Board had taken, she cared, and she was trying to “straighten
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD424
out” USPS’s act, at least with respect to the Waco office. To
see that it is “business as usual,” however, one need only read
Reddick’s above-described August 7 letter and the Respon-
dent’s brief herein.
The violations found herein occurred subsequent to a Board
Order and they were not remedied by the Respondent even after
the United States Court of Appeals for the Fifth Circuit en-
forced the Board’s Order. Indeed, only after additional charges
were filed with the Board was the presumptively relevant
OMSS report given to the Union, and even then Reddick wrote
“[t]he information is being provided despite your failure to
articulate . . . [its] relevance.” In these circumstances, the re-
quest of General Counsel that the notice be read will be
granted.
In view of the fact that the USPS has demonstrated a procliv-
ity for violating the Act and a genuine disregard for the Charg-
ing Party’s right to receive relevant and necessary information,
I find it necessary to issue a broad cease-and-desist order.
General Counsel requests that all grievances lost by Respon-
dent’s failure to provide relevant information be reinstated.
Whether the involved collective-bargaining agreement allows
for an arbitrator, in the circumstances extant here, to reopen a
proceeding to receive information which USPS unlawfully
withheld and will now be ordered to turn over to the Union was
not made a matter of record. It is highly unlikely that such a
provision exists. As noted above the following provision does
exist in article 31, section 3 of the involved collective-
bargaining agreement:
The Employer will make available for inspection by the Un-
ion all relevant information necessary for collective bargain-
ing or the enforcement, administration or interpretation of this
Agreement, including information necessary to determine
whether to file or to continue the processing of a grievance
under this Agreement. Upon the request of the Union, the
Employer will furnish such information. . . .
USPS has not only violated the Act but apparently it has violated
this provision of its collective-bargaining agreement. Obviously the
determination as to whether USPS has violated a provision of the
collective-bargaining agreement between it and the Union is the
prerogative of an arbitrator and not the Board.5 But it is not clear
that even with a finding by an arbitrator that this provision has been
violated, could all grievances lost because of Respondent’s failure
to provide relevant information be reinstated. USPS, by its unlaw-
ful conduct, has undermined the effective implementation of the
grievance procedure of the involved collective-bargaining agree-
ment. The fact that it could get away with this would be an added
incentive to continue its unlawful conduct. The last thing that
should be done is to encourage in any way a continuation of con-
duct that will continue to waste what has to be a great deal of
money. I do not believe, contrary to the findings of at least one
other judge, that ordering a reinstatement of all grievances lost
because of Respondent’s refusal and failure to provide relevant

5 In anticipation of a possible argument by the Respondent, it should
be noted that as pointed out in Postal Service, 302 NLRB 918 (1991),
issues regarding a refusal to supply information are not subject to defer-
ral.
information is effectively ordering the waiver of time limitations
agreed upon by the parties and incorporated in their collective-
bargaining agreement. Rather, the situation at hand is somewhat
akin to a situation where someone engages in conduct which tolls a
statute of limitations. Here USPS in effect has itself tolled the time
limitations by its unlawful refusal to turn over the relevant and
necessary information to the Union. The Respondent will be or-
dered to reintroduce in the grievance procedure with the union
grievances that were lost because USPS did not give the above-
described information to the Union. The Union will be permitted to
supplement those grievances with the information which USPS is
ordered to turn over to the Union.
While initially one could be hopeful that USPS would
“straighten out its act” and start complying with the law, at
some point reality must set in. When it does, a determination
must be made as to what action is appropriate under the cir-
cumstances. If USPS is not going to “clean up its act,” what
incentive could the Board provide USPS? Neither General
Counsel nor the Charging Party have requested it, and so, while
I have considered it, it would not be appropriate for me, sua
sponte, to recommend that USPS be ordered to pay the Board
and the Charging Party for the litigation costs of this proceed-
ing, and the costs the Charging Party has already suffered in
those grievance procedures it ultimately wins with the informa-
tion the Respondent is ordered herein to turn over to the Union.
It appears that USPS’s continued conduct has become “outra-
geous” not only in the context of this case but especially when
one considers its actions in the context of the many other needs
the people of the United States have for the funds that are being
wasted on trying to convince USPS to act lawfully. Addition-
ally, there is a question as to whether we are now dealing with
willful disobedience of a court order on the part of USPS. J. P.
Stevens & Co., 244 NLRB 407 (1979), enfd. and remanded 668
F.2d 767 (4th Cir. 1982); J. P. Stevens & Co. v. NLRB, 458
U.S. 1118 (1982); and Summit Valley Indus. v. Carpenters Lo-
cal 112, 456 U.S. 717 (1982).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, United States Postal Service, Waco, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from refusing to bargain collectively
with the Union by
(a) Since about May 4 failing and refusing to furnish the
Charging Party with a copy of the overtime desired list and the
order of rotation that management used to make up the over-
time to Beverly Alexander.
(b) Since about May 12 failing to timely furnish the Charg-
ing Party with a copy of the OMSS report.
(c) Since about May 12 failing to furnish the Charging Party
a copy of the mail conditions report and how much mail was
cancelled on May 5 and 6, 2003.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
POSTAL SERVICE 425
(d) Since about June 1 failing to furnish the Charging Party
with the following information: (1) how long the 6 level 6 FSM
jobs have existed, (2) a list of all the employees that work on
the flat sorter as level 6 clerks and how long they have worked
there, (3) what other jobs will management want to abolish, and
(4) when will they abolish these jobs.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish to the American Postal Workers Union, Local
739, AFL–CIO within 7 days of the date of this Order all of the
information it has unlawfully withheld.
(b) Upon request by the Union, reintroduce in the grievance
procedure grievances that were lost because USPS did not give
the above-described information to the Union, and accord the
Union the opportunity to supplement those grievances with the
information which USPS is ordered to turn over to the Union
(c) Within 14 days after service by the Region, post at its fa-
cilities in Waco, Texas copies of the attached notice marked
“Appendix.”7 Copies of the notice, on forms provided by the

7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Regional Director for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since May 4,
2003.
(d) Convene all unit employees during working time at the
Respondent’s Waco, Texas facilities, and have a responsible
management official of the Respondent read the notice to the
employees or at the Respondent’s option, permit a Board agent,
in the presence of a responsible management official of the
Respondent, to read the notice to the employees. The Board
shall be afforded a reasonable opportunity to provide for the
attendance of a Board agent at any assembly of employees
called for the purpose of reading such notice by an official of
the Respondent.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.