United States Postal Service

National Labor Relations Board - Administrative Judge Opinions

Jan 21, 2004

16-CA-022766 (N.L.R.B. Jan. 21, 2004)

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Houston, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

UNITED STATES POSTAL SERVICE

and

AMERICAN POSTAL WORKERS UNION

Case 16–CA–22766
and

NATIONAL ASSOCIATION OF LETTER CARRIERS
BRANCH 283, affiliated with NATIONAL
ASSOCIATION OF LETTER CARRIERS, AFL-CIO
Cases 16–CA–22854
16–CA–22855
16–CA–22868
16–CA–22931
16–CA–22961
16–CA–22989

Linda M. Reeder, Esq., for the General Counsel.
Ernest A. Burford, Esq., for the Respondent.

DECISION

Statement of the Case

George Carson II, Administrative Law Judge. This case was tried in Houston, Texas, on
November 3, 4 and 5, 2003, pursuant to a consolidated complaint that issued on September 29,
2003.1 The complaint, as amended at the hearing, alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by threatening an employee and changing his working conditions in
retaliation for his union activity and that the Respondent violated Section 8(a)(5) of the Act by
making two unilateral changes and failing and refusing to provide relevant information.2 The
Respondent’s answer denies all violations of the Act. I find that the evidence does establish that
the Respondent violated Section 8(a)(1) and (5) of the Act substantially as alleged in the
complaint.

On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following:

1 All dates are in 2003 unless otherwise indicated.
2 The charge in Case 16–CA–22766 was filed on May 1 and amended on July 29, the charge in
Case 16–CA–22854 was filed on June 9, the charge in Case 16–CA–22855 was filed on June 9
and was amended on June 19, the charge in Case 16–CA–22868 was filed on June 13, the
charge in Case 16–CA–22931 was filed on July 14, the charge in Case 16–CA–22961 was filed
on July 25 and was amended on September 30, and the charge in 16–CA–22989 was filed on
August 11.
3 The posthearing Stipulations of the Parties dated November 18 are hereby received as Joint
Exhibit 1. The General Counsel’s Motion to Strike the Respondent’s brief is denied.

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Findings of Fact

I. Jurisdiction

The Board has jurisdiction of this matter pursuant to Section 1209 of the Postal
Reorganization Act, 39 U.S.C. Section 1209. The answer admits, and I find and conclude, that
the United States Postal Service, hereinafter referred to as the Respondent or the Postal
Service, is an employer subject to the jurisdiction of the National Labor Relations Board.

The Respondent’s answer admits, and I find and conclude, that American Postal
Workers Union, the APWU, is a labor organization within the meaning of Section 2(5) of the Act.

The Respondent’s answer admits, and I find and conclude, that National Association of
Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, the
Union, is a labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Overview

This case arises in the Houston district of the Postal Service. The vast majority of the
numbered complaint paragraphs allege that the Postal Service failed to provide or to provide in
a timely manner requested relevant information at various postal facilities in that district. The
answer admits all of the alleged requests and, at the hearing, the Respondent’s Counsel
stipulated to the relevance of the information sought in several requests. Grievances involving
letter carriers represented by the Union are first addressed at an informal Step A meeting with
the appropriate station supervisor. If the grievance is not resolved, a formal Step A meeting is
held with the respective station manager. Grievances not resolved at the formal Step A meeting
may be appealed to a joint management and union panel designated as the Dispute Resolution
Team, the DRT. An appeal must be made within 7 days from the formal Step A decision. When
an appeal file is sent to the DRT, it is supposed to be complete. The Union must appeal within
the time limits to preserve the grievance even if requested relevant information has not been
provided. The DRT will, depending upon the nature of the grievance, remand a grievance that is
improperly documented or act upon it even in the absence of documentation. See Postal
Service, 339 NLRB No. 150, JD slip op at 4 (2003).

In addressing the allegations of the complaint, I shall apply longstanding Board
precedent as recently summarized in Postal Service, 337 NLRB 820, 822 (2002):

The legal standard concerning just what information must be produced is whether or not
there is "a probability that such data is relevant and will be of use to the union in fulfilling
its statutory duties and responsibilities as the employees' exclusive bargaining
representative." Bohemia, Inc., 272 NLRB 1128 (1984). The Board's standard, in
determining which requests for information must be honored, is a liberal discovery-type
standard. Brazos Electric Power Cooperative, 241 NLRB 1016 (1979). The Board, in
determining that information is producible, does not pass on the merits of the grievance
underlying a request ….

The complaint identifies the respective case numbers followed by the allegations relating
to that case. For clarity, this decision shall follow that format and shall address the specific
complaint paragraphs in order except where information requests relate to similar issues or
employees or where the paragraphs are interrelated as they are regarding the alleged unilateral
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changes and Section 8(a)(1) and (3) violations.

B. Case 16–CA–22766

This is the only case involving the APWU. Warzel Booty, a letter box mechanic with
more than 18 years employment, was assigned to the Spring Main Office. The Spring Post
Office, a part of the Houston District, has its own postmaster and includes four stations, the
Spring Main Office, and the Klein, Woodlands Metro, and Panther Creek branches. To avoid
any confusion, I shall refer to the Spring Area. The APWU represents employees in the
following appropriate unit:

All maintenance employees, special delivery messengers, motor vehicle employees,
postal clerks, mail equipment shop employees and distribution centers employees; but
excluding managerial and supervisory personnel, professional employees, employees
engaged in personnel work in other than a purely non-confidential clerical capacity,
security guards as defined in Public Law 91-375, 1201(2), all postal inspection service
employees, employees in the supplemental work force as defined in Article 7 [of the
collective-bargaining agreement], rural letter carriers, mail handlers and letter carriers.

APWU Maintenance Craft Director James Clack explained that the APWU is “sectioned
off by crafts,” thus the clerk craft has a different steward than the maintenance craft. Booty
served as Chief Steward for the APWU in the maintenance craft for the Spring Area for
approximately 2 years. Although assigned to the Spring Main Office, Booty was the only
steward for that craft in the Spring Area, and he, therefore, handled grievances at the outlying
branches. Prior to April 23, when Booty needed time to investigate grievances or attend
grievance meetings, he would verbally request the time from his craft supervisor. The APWU
refers to the initial formal grievance meeting as a Step 1 meeting rather than Step A. On April
23, Booty received a letter addressed to him as APWU Steward/Letter Box Mechanic from
Richard Osborne, Acting Station Manager of the Spring Main Post Office. The letter provides in
pertinent part, as follows:

Effective immediately, … [w]hen a need arises for you to utilize union steward time to
investigate or present a grievance or rebuttal, you must immediately notify your
immediate supervisor S. Keasling in writing. When … you must present a Step 1
[grievance], you also must notify your supervisor … in writing …. These instructions
must be adhered to and any deviations from such instructions will result in corrective
action.

Upon receipt of the foregoing instructions Booty requested “[c]opies of the specific
section of the handbooks and manual or directive that management … relied upon to change
the procedure for requesting union time and Step 1” meetings and “[c]opies of the last 15
grievances filed where Richard Osborne was a Step 1 or Step 2 designee.” Booty testified that
he made the second portion of the request in order to establish the change in the practice.
Booty testified that he received no response to either of the foregoing requests for information.

Complaint paragraphs 8 through 16

These related complaint paragraphs allege that the reference to “corrective action” in the
letter of April 23 constituted a threat of unspecified reprisals in violation of Section 8(a)(1) of the
Act, that imposition of the requirement that Chief Steward Booty request time to conduct union
business in writing constituted discrimination against him in violation of Section 8(a)(3), that this
requirement was a unilateral change in violation of Section 8(a)(5) of the Act, and that the failure
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to provide the information that Booty sought violated Section 8(a)(5) of the Act.

There is no contention that the Postal Service bargained with the Union prior to imposing
the requirement that Booty submit requests in writing. Maintenance Craft Director Clack testified
without contradiction that other APWU craft stewards request and receive union time verbally.
The Respondent, in its brief, argues that its “request that Mr. Booty put his request for union
time in writing … did not amount to a unilateral change because it was a request directed only
to him” and that this “instruction … to one employee” did not constitute “a material, substantial,
and significant change,” that required bargaining. I disagree. If, as the Respondent asserts, the
change did not constitute “a material, substantial, and significant change” the Respondent
could, as phrased in its brief, have made a “request” that Booty put in his requests in writing.
Contrary to the phrasing in the Respondent’s brief, there was no request. There was, as quoted
above, an unequivocal direction accompanied by a threat of “corrective action.” Any contention
that the foregoing did not constitute a material and substantial change is belied by the threat of
discipline for violation of the unilaterally imposed requirement. The Respondent points out that
all letter carrier stewards request union time in writing and that a written record would assure
that there would be no disputes over whether union time had been requested by the APWU
maintenance steward.

The Respondent’s rationales for the change are not the issue. The issue is whether the
Respondent was obligated to bargain before making the change. The direction to submit
requests in writing was made to Booty in his capacity as maintenance craft union steward. This
was not an insubstantial change in the manner in which Booty carried out his job duties as a
Postal Service employee. It was a material alteration in the manner in which he carried out his
steward duties on behalf of maintenance craft employees represented by the APWU. In his
representative capacity as steward, Booty was the APWU just as Manager Osborne was the
Postal Service. Thus, although, the letter of April 24 was from Osborne to Booty, effectively the
Postal Service directed the APWU that, with regard to the maintenance craft, it must request
time to conduct union business and Step 1 grievance meetings in writing and, concomitantly,
wait until a Postal Service official responded in writing in order to carry out its representational
responsibilities. Furthermore, if the representative of the APWU failed to do so, that
representative would be subject to “corrective action.” I find that the foregoing change in past
practice materially altered the manner in which the representative of the APWU could carry out
that union’s representational responsibilities.

The Board, in Carpenters Local 1031, 321 NLRB 30, 32 (1996) held that a unilateral
change affecting one employee did not preclude finding a Section 8(a)(5) violation, noting that
the layoff of one employee in a unit of two employees “seriously undermines the union’s status
as the employees’ collective bargaining representative.” The rationale regarding undermining
the status of a union is even more apparent in this case where the employer totally ignored the
APWU and sought to unilaterally impose its desired change in past practice upon that Union
without negotiation by issuing a management directive to the one APWU maintenance craft
shop steward at the facility. In so doing, the Respondent violated Section 8(a)(5) of the Act.

The General Counsel, citing Advanced Installations, Inc., 257 NLRB 845 (1981) argues
that a threat to discipline employees for violation of a rule established by a unilateral change
violates Section 8(a)(1) of the Act. I agree and find that the threat of “corrective action” for
violation of this unilaterally imposed requirement violated Section 8(a)(1). See GHR Energy
Corp., 294 NLRB 1011, 1048 (1989).

The General Counsel further argues that the imposition of the requirement that Booty
request union time in writing constituted discrimination “because of Booty’s union activity” in
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violation of Section 8(a)(3) of the Act. The General Counsel does not discuss or explain how the
imposition of the requirement that Booty submit a written request affected his hire or tenure of
employment or the terms and conditions of his employment as an employee of the Postal
Service. Although the requirement unilaterally altered the manner in which he could carry out his
representational responsibilities in violation of Section 8(a)(5) and threatened corrective action
in violation of Section 8(a)(1) if Booty did not comply, the requirement was a procedural
requirement made to him in his representative capacity, not an adverse personnel action. If
Booty had failed to comply and been disciplined, that discipline would have violated the Act.
See GHR Energy Corp., supra at 1048. Because Booty complied with the requirement, there
was no adverse action taken against him that related to his hire or tenure of employment as an
employee. I shall recommend that the Section 8(a)(3) allegation be dismissed.

As set out in paragraph 14 of the complaint, Booty sought both documents relied upon
by the Postal Service in making the change and grievances relating to past practice. The Postal
Service contends that it attempted to present the information sought by Booty within a week of
his request and again on June 27. Acting Station Manager Osborne testified that a supervisor
informed him that Booty had refused a proffer of the requested information, but there is no direct
evidence of this nor is there any document or notation reflecting any such refusal. I credit Booty
that there was no response to his request. Booty was not questioned regarding an attempt to
formally present this information to the Union at its main office.

On June 27, a delegation consisting of Carol Clark, secretary to the Spring Postmaster;
Stephanie Keasling, Booty’s supervisor; Jennifer Joseph, Station Manager of the Klein Branch;
and Barbara Wright, Station Manager of the Panther Creek Branch; went together to the main
office of the Union with a stack of documents that had been placed in sealed envelopes by
Carol Clark. All members of the delegation agree that they spoke with a group of Union
representatives and that Booty joined those representatives. All agree that the Union
representative with whom they initially spoke, not Booty, refused to accept the stack of sealed
envelopes. Supervisor Keasling recalls that, as they continued to talk, Booty asked to review the
documents before signing for them, but this request was refused because “we couldn't open it
[them],” presumably because they were sealed and designated as certified mail. No member of
the delegation could testify regarding specifically what was in any of the sealed envelopes, and
no member of the delegation asserted that she knew that any documents subject to the
information request that is the subject of these complaint allegations were included. The refusal
of the Union to accept the documents is noted with the date June 27 and the initials JJ. Jennifer
Joseph was not recalled to identify the initials.

At the hearing herein, one of those sealed envelopes was opened. It contained none of
the grievances that the Union had requested. Acting Station Manager Osborne, when he had
initially been asked whether Booty was provided the information he requested, testified, “Yes,
he was.” After the envelope was opened, Osborne recalled that the requested grievances had to
be tracked down because of a new computer system and that he “was able to retrieve them
afterwards.” Osborne admitted that he made no attempt to present the grievances to Booty after
he retrieved them. The Respondent, by failing to provide copies of grievances at which Osborne
served as its Step 1 or Step 2 designee, violated Section 8(a)(5) of the Act.

Prior to assuming his duties at the Spring Main Office, Osborne had been located in
Katy, Texas. Katy is not in the Spring Area, thus the manner in which stewards requested union
time at that location has no relevance to the unilateral change instituted in the Spring Area. I
shall recommend that only copies of relevant grievances, i.e. grievances arising in the Spring
Area in which Osborne served as the Step 1 or 2 designee, need to be provided to the Union.

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The record does not establish whether there was any response to the request for
“[c]opies of the specific section of the handbooks and manual or directive that management …
relied upon to change the procedure for requesting union time and Step 1” meetings. Counsel
for the General Counsel questioned Osborne only regarding the absence of any grievances in
the envelope. Counsel for the Respondent did not question Osborn regarding the contents of
the envelope, and no party asserted that there was any other document in it that was relevant to
this proceeding. Thus, there is no probative evidence that the Respondent responded to the
Union’s request for documents that it relied upon when making the unilateral change. By failing
to respond to the request of the Union for the foregoing relevant information, either by providing
it or acknowledging that it did not exist, the Respondent violated Section 8(a)(5) of the Act.

C. Case 16–CA–22854

This case involves requests for information submitted by Chief Steward Paula Papich, a
letter carrier at the Windmill Station in Houston. The Station Manager is Gloria Solis.

Complaint paragraph 17

Letter carrier Marie Asscherick worked under a medical restriction limiting her to her
assigned route. On January 13, due to a shortage of vehicles, Asscherick was required to carry
part of another route and a portion of her assigned route was carried by a different carrier. On
February 19, Papich requested a copy of the medical restriction, i.e., the “work only assignment
restriction” for Asscherick. Papich made a second request for the same document on February
21. Although Station Manager Gloria Solis initially testified that she believed that supervisor
Mary Warner provided the information, she later acknowledged that the Postal Service advised
the Union in a letter dated October 3 that the Postal Service did not have a copy of Asscherick’s
work restrictions. By failing to provide a timely response to the foregoing request for relevant
information the Respondent violated Section 8(a)(5) of the Act.

Complaint paragraph 18

On March 1, letter carrier Jim Hanratty received a notice of discipline for deviating from
his assignment on January 27. He claimed that he was at lunch at the time in question. On
March 15, Papich requested the 1080, which was the disciplinary package assembled by the
Postal Service, any notes from a pre-disciplinary meeting held with Hanratty, a record of any
prior discipline imposed upon him, and the Form 3996, a request for auxiliary assistance or
authorization for overtime filed by Hanratty on January 27 that would have shown his lunch time
and location. Papich received no response and requested the information twice more, on March
19 and 26. In late July, the disciplinary package, the 1080, was provided. Station Manger Solis
testified that all of the requested information was provided and that she wrote on the third
request “information was supplied to Ms. Papich already.” Solis did not write down the date that
the information was purportedly provided. The relevance of the information was not disputed. I
credit Papich. The fact that she submitted a third request belies the assertion of Solis that the
information was submitted on a date that she did not record when writing that the information
had been “supplied … already.” By failing to provide the 1080 in a timely manner as alleged in
subparagraph 18(a) and by failing to provide the remaining information as alleged in
subparagraphs 18(b), (c), and (d), the Respondent violated Section 8(a)(5) of the Act.

Complaint paragraph 19

On February 22, PTF (part time flexible) employee Hector Torres attempted to bid for a
“T-6 vacancy.” When a route is vacant for more than 40 hours, five regular workdays, it should
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be posted for bids to deliver the route on a temporary basis. Chief Steward Papich testified that
the Postal Service refused to permit Torres to bid on the vacancy. In further testimony, she
acknowledged that the vacancy had not been posted. Notwithstanding the failure of the Postal
Service to post the vacancy, Papich submitted an information request for a “Form 13 … to fill T-
6 vacancy” that Torres informed her he had submitted. Station Manager Solis explained there
was no such documentation, a bid, because the vacancy was not posted. I fail to see the
relevance of a purported bid submitted for an unposted vacancy. The Postal Service refused to
permit bids on the vacancy because it did not post the vacancy. There is no issue before me
regarding the failure to post the vacancy. I note that, following the filing of the charge herein, the
Postal Service provided the Union with a certified letter dated October 3 stating that it had no
Form 13 from Torres. Thus, even if the information requested were found to be relevant, the
Postal Service responded, albeit in an untimely manner, to the request, and no affirmative
remedy is required. I shall recommend that this allegation be dismissed.

Complaint paragraphs 20 and 21

The foregoing two paragraphs relate to class action grievances concerning overtime.
The Union contended that carriers not on the overtime desired list had been forced to work
overtime on March 22 and March 28 and again on April 5 and 7 before the overtime desired list
had been exhausted. Papich requested “everything reports,” computer generated documents
that show the employees’ clock rings, i.e., the specific time worked including any overtime, for
all carriers for the relevant days and whether they worked overtime, the overtime alert report for
March 22 through March 28, the work assignment only list and “forced [overtime]” list for April.
Counsel for the Respondent stipulated that the information requested was relevant.

Papich acknowledged that a portion of the everything reports was provided, but that
there were “pages missing” because the submission was limited to the clock rings of carriers on
the overtime desired list. The issue, as noted, was forcing carriers not on the overtime-desired
list to work. Station Manager Solis testified that “the supervisors pulled the documentation off
the computer, and they tell me they pulled it for her as soon as possible.” The report of
supervisors to Solis regarding what they told her does not refute Papich’s testimony that the
information initially provided to her was incomplete. The parties stipulated that all of the
requested information was provided on July 19. By failing to provide all carrier everything
reports, the overtime alert report for March, the work assignment only list and April forced
overtime list in a timely manner, the Respondent violated Section 8(a)(5) of the Act.

D. Case 16–CA–22855

The charge in this case was filed on June 9. On August 13, the Regional Director, in a
letter to all parties, stated that he had considered the charge and “decided that further
proceedings … should be handled in accordance with the Board’s deferral policy.” Thereafter, in
a paragraph designated “Decision to Defer,” the Regional Director states that he is “deferring
further proceedings on the charge to the grievance/arbitration process” and states that the
issues raised by the charge involve an alleged unilateral change in the collective-bargaining
agreement by “permitting the postal clerk craft to perform manual tertiary sorts.” Although the
charge also alleges failure to provide information, the deferral letter does not mention the
information requests, several of which related to the alleged unilateral change. The letter does
not purport to be a partial deferral.

On August 29, the initial consolidated complaint herein was issued. Paragraphs 28
through 40 related to information requests contained in the charge in Case 16–CA–22855. On
September 12, the Postal Service filed its answer to the foregoing complaint which includes
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several affirmative defenses. Paragraph 4 of the affirmative defenses states: “The Respondent
received a Decision to Defer dated August 13, 2003 on Charge 16–CA–22855.” The instant
complaint issued on September 29. It alleged, as did the initial complaint, in paragraphs 28
through 40, the failure to provide information. The Respondent’s answer, dated October 14,
expands upon the affirmative defense set forth in paragraph 4: “The Respondent received a
Decision to Defer dated August 13, 2003 on Charge 16–CA–22855, therefore the Board should
dismiss the charge and sever it from the Consolidated Complaint.” At the hearing herein, the
Respondent filed a Motion for Summary Judgment relating to the allegations arising from Case
16–CA–22855. That motion was untimely, and it is hereby denied.

The Region did not issue an amended deferral letter or otherwise respond to the issue
raised by the Respondent’s affirmative defense.

The General Counsel argues that the Regional Director, by the terms of the deferral
letter, retained authority to “revoke deferral and resume processing of the charge” and that the
Respondent has not been prejudiced since it had notice from the presence of the allegations in
the complaint that the General Counsel intended to litigate the refusal to provide information.

I do not agree. On August 13, the Region totally deferred Case 16–CA–22855 with no
reservations or exceptions. The Respondent, upon observing that allegations from that case
were included in the consolidated complaint, raised the deferral issue in its answer by pleading
as an affirmative defense that those allegations were included in a charge that had been
deferred and should, therefore, be dismissed and severed from the complaint. The Region took
no action to clarify the situation. Cf. Chatham Mfg. Co., 221 NLRB 760 (1975). No revised
deferral letter issued. The Respondent has sustained its affirmative defense. I shall recommend
that the allegations arising from that charge which has been deferred in its entirety to the
parties’ grievance/arbitration procedure be dismissed from this complaint. This dismissal shall
be without prejudice to any further proceedings or actions that may be appropriate upon
completion of the arbitration process and review of the matters considered at arbitration.

Insofar as the Board should not agree with the foregoing recommendation, in order to
avoid a potential remand, I shall address the allegations set out in the complaint. All of the
information requests were made by Chief Steward Lana Park at the Memorial Park Station.
Chief Steward Park acknowledges that all information except the items alleged in complaint
subparagraphs 33(a) and (c) were provided, albeit not in a timely manner, on July 22.

Complaint paragraphs 28, 29, and 30

The foregoing paragraphs relate to three separate information requests filed on behalf of
letter carrier B. B. Shelvin who felt that he was being harassed by his supervisor. The first,
relating to January 28, sought carrier clock rings for Shelvin to show he was present, a Form
3996 requesting assistance or overtime submitted by Shelvin, and clock rings for other carriers
sent to deliver mail on Shelvin’s route. This request was initially submitted to the closing
supervisor, John Johnson, on February 1. A second request for the same information was
submitted to carrier foreman Samuel Eapen on February 11. The next request relating to
Shelvin sought clock rings and the Form 3996 submitted on February 11 and 14, and the final
request sought Shelvin’s clock rings for February 3. These requests were all submitted to
Supervisor Eapen.

Park denied receiving the foregoing information until July 22. Eapen testified that, when
he received a request, he would seek to respond but that he would not do so if he was too busy.
When asked whether he responded to the request to which Supervisor Johnson had failed to
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respond, Eapen testified, “at that time I might have been busy.” Notwithstanding his failure to
confirm that any of the specific information sought regarding Shelvin was provided, Eapen
testified that Park “received all the information … [i]t may be late, but … my manager provided
that to her.” At the time of the foregoing requests, the position of Station Manager was filled by
Benita Clark. The parties, in a posthearing stipulation, agreed that, if called as a witness, Clark
would testify that she told Park that if she had not received needed documentation she should
notify her before the Formal Step A meeting. The parties further stipulated that Park denied that
there was any such agreement. Regardless of any agreement, the record establishes the
foregoing requests for relevant information, and there is no probative evidence that the Union
received the information in a timely manner. By failing to provide the foregoing relevant
information in a timely manner, the Respondent violated Section 8(a)(5) of the Act.

Complaint paragraph 31 and 32

These two paragraphs relate to information requested in connection with the Union’s
grievances regarding “segmentation,” i.e. the performance by clerks of “tertiary sorts,” work that
the letter carriers claimed and the issue that the General Counsel acknowledges was deferred.
Notwithstanding the deferral, the complaint alleges the failure to timely provide the foregoing
information. Paragraph 31 alleges that the Postal Service failed to provide a copy of the
“regulation permitting clerks to perform manual tertiary sort of flats for routes 2417/2472.” Chief
Steward Park acknowledges that the Postal Service provided documents purportedly
responding to that request. The information was provided to Park by Ricardo Johns, who had
been assigned as Station Manager in early April. Johns acknowledged that he had no personal
knowledge regarding what information he gave to Park, that what he gave her “came at [to] my
level with the package from the supervisor.” Park argued that the information provided was
“information that I did not request,” and made a second request for the regulation. The Postal
Service’s timely response to the initial information request included no regulation, suggesting
that no such regulation existed. No additional information was provided. The deferral of the
grievance regarding segmentation establishes that the Postal Service contends that it was
privileged to made the work assignment in question and that, although Park did not consider the
documents provided to be responsive, the Postal Service did consider them responsive.

Although the complaint alleges that the Respondent failed “to timely furnish” the
information sought in paragraph 31, I find that the Respondent made a timely response to that
information request, and I shall recommend that paragraph 31 of the complaint be dismissed.

Station Manager Johns had no document reflecting that the Union received the
information that is the subject of paragraph 32 of the complaint. He asserted that the
documentation was provided because the grievance was submitted to the Dispute Resolution
Team, but his testimony reflects no independent knowledge of what was in the package
submitted. Park testified that the information was not received until June 22. I find that the
Respondent failed to provide the information set out in paragraph 32 of the complaint in a timely
manner in violation of Section 8(a)(5) of the Act.

Complaint paragraph 33

On May 24, Park requested information relating to a complaint that the Postal Service
was working two casual employees, identified in the request as Nelson and Pasquale, in lieu of
bargaining unit employees. The information sought included the Form 50 for the casual
employees which would reflect their date of hire, the employee activity report showing the hours
they worked, Form 3997, the weekly work schedule, and the carrier complement reports
showing work hours including overtime for the regular workforce. On July 23, Park received a
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certified letter stating that the Form 50 was privileged from disclosure pursuant to the Privacy
Act. On July 22, she received the activity report and carrier complement reports. She testified
that she never received the Form 3997, the weekly work schedule for the date in question.
Station Manager Johns had no independent recollection regarding what information was
provided but asserted that Park received all of the information in a timely manner because Park
signed off on “the package that was sent to the DRT” and it was not “her modus of operandi” to
do so if the submission was insufficient. John’s testimony is contradicted by the Privacy Act
claim regarding the Form 50 and by the requirement that submissions must be made to the DRT
in a timely manner even if the package is incomplete. I credit Park and find that the Respondent
violated Section 8(a)(5) of the Act by failing to provide the relevant information sought in
complaint subparagraphs 33(b) and (d) in a timely manner and failing to provide the relevant
information sought in subparagraph 33(a) and (c). Insofar as the Form 50 itself is protected by
the Privacy Act, the Respondent need only provide the hire dates of employees Nelson and
Pasquale.

E. Case 16–CA–22868

This case involves information requests made at the Jensen Drive Station to Acting
Station Manager Larry Edmond and 204(b) Supervisor Issia Carr by Steward Ramon Martinez.

Complaint paragraph 41

On January 10, Steward Martinez presented an information request to Supervisor Issia
Carr seeking, among other items, carrier schedules for December 27, 2002, through January 3.
Martinez made this request after hearing that letter carriers were not receiving their five o'clock
window of operations pay. The five o’clock window is significant to employees because after
that time employees receive an additional $10 per hour. Martinez testified that Supervisor Carr
informed him that the schedule could not be found. Insofar as the Postal Service responded, I
shall recommend that this allegation be dismissed.

Complaint paragraph 42

In late January, the Union became concerned that carriers who were supposed to be
receiving overtime were not being maximized because carriers who had not volunteered for
overtime were being forced to work overtime in order to complete their routes by 5 p.m. On
January 28, Martinez presented Supervisor Carr with an information request seeking, among
other items all “time clock ring sheets from January 11 through 24.” Martinez testified that the
Union was also concerned that some clock rings were being changed. Carr testified that “nine
times out of ten I go ahead and pull the information that he needs. If not, I put it in front of the
computer, and in the mornings, the manager will pull it.” Carr acknowledged that she had no
record reflecting what information she did provide to Martinez. She did not keep a record of the
occasions upon which she left the request for Edmond to complete. Despite the absence of any
record, Carr testified that she provided the foregoing information to Martinez. I do not credit that
testimony. Martinez specifically recalled, “I didn't receive the reports, so there was no way to
prove the actual times.” He therefore was unable to file a grievance. By failing to provide the
foregoing information, the Respondent violated Section 8(a)(5) of the Act.

Complaint paragraph 43

On February 21, not having received the information requested on January 28, Martinez
requested all carrier schedules from December 27, 2002, through February 21. He made this
request in regard to the Union’s continuing concern with the issue that employees on the
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overtime desired list and PTF letter carriers were not begin maximized. He received no
response. Martinez recalled that a management official, he believes it was Acting Station
Manager Edmond, informed him, “We’ll get them to you.” Carr, when asked whether she
provided the foregoing information, answered, “Yes.” Martinez, who was seeking to file a
grievance based upon the information received, testified that the information was not provided. I
credit Martinez. By failing to provide the requested relevant information, the Respondent
violated Section 8(a)(5) of the Act.

Complaint paragraph 44

In February, the Union continued to be concerned that employees had not been properly
compensated for the 5 o’clock window. On February 26, Steward Martinez presented an
information request to Acting Station Manager Larry Edmond seeking “copies of all five o'clock
window of operations pay authorizations” from October 2002 through February 21. After filing
the charge herein on June 13, Martinez received the documents for the first 15 pay periods in
2003, covering the time period from December 25, 2002, through July 12. Consistent with the
allegation in paragraph 56 of the complaint, I find that the Respondent violated Section 8(a(5) of
the Act by failing to timely furnish the foregoing information.

Martinez acknowledged that the Union had, pursuant to a prior request, received
documentation for October and November 2002, but that he thereafter misplaced those
documents. When he was unable to locate the documents, he included that time period in the
request he made on February 26. At the hearing, Counsel for the General Counsel amended
complaint paragraph 44, that initially alleged a time period of December 27, 2002, through
February 21, 2003, to allege October 2002 through February 21, 2003. Although the
Respondent failed to provide the same information a second time, no amendment was offered
to paragraph 56 that alleges that the Respondent failed “to timely furnish” the information set
out in paragraph 44. I have so found with regard to the information that was ultimately provided.
In view of the foregoing, no further finding is warranted.

Complaint paragraph 45, 46, 48, and 49

Pursuant to its continuing claim that employees on the overtime desired list and PTF
employees were not being maximized, Martinez, on March 12, presented Edmond with a
request for “copies of carrier clock rings” for pay period February 22 through March 7. Martinez
testified again that an additional concern of the Union was that clock rings were being changed.
Martinez recalls that Edmond stated that he would “get it,” but that he did not do so.

Acting Station Manager Edmond, when shown this information request at the hearing,
testified that it would take a” day or two” to obtain this information from the computer. He did not
testify that the information sought was provided. Rather, in response to Counsel for
Respondent’s questions, he testified that there was no reason that he would not provide the
information and that, to the best of his knowledge, it was provided. Martinez’s credible testimony
that it was not provided contradicts Edmond's speculation, and I credit Martinez.

With regard to this same issue of maximization of overtime, Martinez, on April 19,
presented Supervisor Carr with a request for carrier clock ring sheets from April 5 through 18 as
well as the volunteer overtime list and overtime desired list for that same period. Martinez
explained that after the overtime desired list and PTFs have been exhausted, the Postal Service
is “supposed to ask for volunteers among the regular letter carriers not on the list before they
force anyone to work overtime.” Although the overtime desired list is available at some stations,
Martinez testified that, at Jensen, it is kept in the manager’s office.
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On April 30, Martinez presented Supervisor Carr with a request for “carrier everything
reports” for April 19 through 30. Martinez explained that, as with his prior request, he wanted the
clock rings, he but had learned that the report upon which clock rings were shown was now a
computer generated document referred to as the “carrier everything report.” As with his prior
requests, Martinez did not receive the documents and, when he verbally reminded management
of his request, he was told, ”okay,” or, “we'll get it,” but the documents were not produced.

On May 6, Martinez presented an information request to Carr seeking copies of the letter
carriers' schedule and the carrier reports for the pay period April 26 through May 2. He testified
that this request, like the request for clock rings, related to maximization of overtime.

As already discussed, Carr, when summarily asked whether she provided the
information at issue, answered, “Yes.” When asked how she knew she had done so, Carr
answered, “I just remember.” In view of Carr’s acknowledgement that she maintained no record
of what she provided, I have no confidence in that assertion. Martinez had a document, the
information request, and a desire to act upon the information that he received. Although Carr
asserted that she provided all of the information sought in the foregoing requests, except the
request of March 12 which was handled by Edmond, I do not credit her testimony. I find that the
Respondent, by failing to provide the information sought in paragraphs 45, 46, 48, and 48
violated Section 8(a)(5) of the Act.

Complaint paragraphs 47

In preparation for filing a class action grievance to create regular part-time positions for
PTF letter carriers at the Jensen Drive Station, Martinez presented an information request to
Supervisor Carr on April 30. The request seeks the total number of regular route carrier
positions in the Houston District, the total number of regular route carrier positions that did not
have regular carriers assigned as of April 30, and the total number of regular carrier positions in
the Houston District filled by PTF carriers on “in-station or “hold down” bids. Martinez explained
that the Postal Service was only allowed to have 12 percent of the total workforce as PTF letter
carriers, that 88 percent should be regular letter carriers. The documents he sought would show
whether this formula was being adhered to and, to assure accuracy, he wanted to assure that
the figures provided did not count PTF employees holding temporary bids as regular letter
carriers. Edmond informed Martinez, within a week, that he did not “have access to that
information.” Edmond did not deny making the foregoing response. At the hearing he asserted
that Martinez, as a steward at Jensen Drive, was not entitled to information concerning
employees at other locations. No authority for the foregoing opinion was stated. Martinez
testified that he was certain that Edmond “could have called somebody higher up the chain of
command and gotten that information for me.” Although Carr testified to providing the carrier
information at Jensen Drive, Martinez, who had the conversation with Edmond, denied receiving
any other response.

Although, unless specifically requested, a steward at one facility cannot represent a unit
member at a different facility, there is no probative evidence before me that a steward is not
entitled to information that must be obtained from other facilities that is relevant to
representation of the employees at the facility of the requesting steward. The information
requested by Martinez in connection with a potential class action grievance at the Jensen Drive
Station sought information relating to unit employees in the same administrative entity, the
Houston district. Failure of the Postal Service at a small facility to obtain requested relevant
information from “the main facility in Poughkeepsie” was found to violate the Act in Postal
Service, 303 NLRB 502, 308 (1991). The Respondent, by failing to provide the requested
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information relating to a potential class action grievance, violated Section 8(a)(5) of the Act.

Complaint paragraph 50

Martinez testified that the Union not only was concerned regarding the number of regular
positions but also was concerned that “casual letter carriers were being used to the detriment of
the regular workforce.” Martinez explained that casuals “can only be worked for two consecutive
90-day periods, except for a 21-day period during December, and also they can't be worked 40
hours per week. The Union believed that some casuals “were working 40 hours or more per
week.” With regard to the foregoing concern, Martinez, on May 6, presented Supervisor Carr
with an information request seeking copies of the “time records of all casual letter carriers
working in Houston District Area 1, and the total number of hours they worked each week for the
time period March 22, 2003, through May 2, 2003.” Acting Station Manager Edmond did not
deny that he again informed Martinez that “he had no access to those records.”

Although casual employees are not unit employees, the information sought by the
foregoing request related directly to the working conditions of unit employees insofar as the
information sought would potentially show that casual employees were being used
impermissibly. I find the foregoing request relevant and that the failure of the Respondent to
provide the information violated Section 8(a)(5) of the Act.

Complaint paragraph 51

On May 20, Martinez presented an information request to Edmond requesting FMLA
(Family Medical Leave Act) documents for letter carrier Phillip Bridges for October 2002 and
January and the supervisory “notes of [the] predisciplinary hearing for Phillip Bridges.” Bridges
had informed Martinez that he had submitted the proper documentation but that his request for
medical leave had not been accepted for those periods. The Postal Service contended that no
documentation was submitted and Supervisor Carr informed Martinez that the Postal Service
was considering taking action against Bridges for being absent without leave in connection with
those absences.

In connection with this controversy, a predisciplinary interview was held with Bridges on
a date not specified in the record. Martinez was present at the predisciplinary meeting and took
his own notes. He testified that Phillips contended that he had submitted the appropriate
paperwork, “and they [the Postal Service] were saying that he hadn't.” The supervisory notes of
the predisciplinary interview would have confirmed the Postal Service’s intention to discipline
Bridges for failure to submit the paperwork and were clearly relevant to the Union. The failure of
the Respondent to provide the supervisory notes violated Section 8(a)(5) of the Act as alleged in
subparagraph 51(b) of the complaint. The basis for the intended discipline was the alleged
failure of Bridges to have submitted the very paperwork that Martinez sought in the information
request. In these circumstances I find no basis for exalting form over substance. Martinez was
told that that Bridges had not submitted the paperwork, and therefore he knew that the Postal
Service was claiming that it did not have the requested documents when he made the
information request. I shall recommend that subparagraph 51(a) of the complaint be dismissed.

F. Case 16–CA–22931

The case, like Case 16–CA–22854, concerns information requests made by Chief
Steward Paula Papich at the Windmill station.

Complaint paragraphs 64, 65, and 66
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All three of the information requests in the above paragraphs relate to class action
grievances regarding overtime. As reflected in the discussion of complaint paragraphs 20 and
21, the Union alleged that carriers were being forced to work overtime before the overtime
desired list had been exhausted. Paragraph 64 relates to a request for all carrier everything
reports for March 8 through March 14, and paragraph 65 relates to a request for those reports
for March 29 and April 4. Paragraph 66 relates to a request, on April 16, that repeats the April 9
request for the carrier everything reports for March 29 and April 4 and additionally seeks the
overtime alert report for all carriers for March 29 through April 4. The Respondent stipulated that
all of the requested foregoing information was relevant. Although the Union requested carrier
everything reports for all carriers, Papich testified that the Postal Service did not provide all such
reports. She testified that no overtime alert reports were provided.

Solis testified that she relied upon her supervisors to provide requested information to
the Union. Supervisor Mary Warner was not specifically asked about any of these requests.
Supervisor Warren Thornton was asked about the request submitted on April 16 and testified,
“As far as I know” the documentation was provided. I credit Papich. The Respondent, by failing
to provide the foregoing relevant information violated Section 8(a)(5) of the Act.

G. Case 16–CA–22989

The allegations in this case relate to information requests made by Mark Kessinger,
Chief Steward of the Union at the Postal Service’s North Shepherd Station in Houston in April
and May. The first two such requests were submitted to Supervisor Jesse Guerrero. All
subsequent requests were submitted to Elizabeth Owens, who became Station Manager in April
and directed that all information requests be submitted directly to her. Neither Guerrero nor
Owens testified. The answer admits the receipt of these requests and Kessinger’s unrebutted
credible testimony establishes that none of the requested information was provided. Thus, the
only issue is whether the requested information was relevant.

Complaint paragraph 71

On April 5, Kessinger presented to supervisor Jesse Guerrero an information request to
support a grievance that he filed on behalf of unit employee Lathorn King. King had complained
that he was being loaned to the Irvington Station while casual employees were being allowed to
work hours that he would have worked as a part time flexible (PTF) carrier at the North
Shepherd Station. The information request sought the North Shepherd PTF schedule for March
31 and April 2 in order to establish that King was assigned to another station on those days, the
North Shepherd casual employee schedules for those two days in order to establish that casual
employees did work at North Shepard, and the Irvington Station overtime desired list (ODL) in
order to determine whether the assignment of King had deprived any Irvington employees of
overtime in violation of the collective-bargaining agreement. I find that the requested information
was relevant.

Complaint paragraph 72

On April 11, Kessinger presented to Supervisor Guerrero a request relating to a
grievance he filed on behalf of employee Alexis Butler. Butler had received a 7-day suspension
at the Fairbanks Station. Shortly thereafter he was transferred to the Windmill Station where, he
informed Kessinger, he had requested to see a steward in order to grieve his suspension. He
was then transferred to the North Shepherd Station where Kessinger filed the grievance on his
behalf. The information request sought the suspension notice because Butler had misplaced the
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copy that had been given to him, the discipline package and notes relied upon to impose the
discipline, Butler’s request to see a steward at the Windmill Station in order to establish that the
attempt to grieve the suspension was timely and the schedule for “Butler and Shop Steward
while Butler was at Windmill Station” in order to establish that a steward was present on the day
that Butler could have met with the steward. I find that the requested information was relevant.

Complaint paragraphs 73 and 74

On April 18, Kessinger presented two information requests to Station Manager Owens
regarding grievances filed on behalf of Isaac Richard who claimed that he had been denied the
opportunity to work overtime on April 8 and 16. The request relating to April 8 seeks the ODL
(overtime desired list) for April 8, the ODL worksheet or “square sheet” for April 8 which would
show who was assigned overtime, and the overtime report which would show how much
overtime was worked by each carrier assigned overtime. The request relating to April 16 seeks
the same information for April 16 as well as the unit schedule for April 16 that would have
reflected which carriers were scheduled to work overtime, the crew list for “NSOT (non-
scheduled overtime) for April 8 and 16 which would show employees who were off but were
willing to work non-scheduled overtime, and the “[b]ack of the overtime desired list” which would
show telephone calls to non-scheduled carriers offering them an overtime opportunity. The
Respondent stipulated that all of the foregoing requests were for presumptively relevant
information and, I so find. The Respondent did not stipulate to the Union’s request for a copy of
“Ike Richard’s restrictions.” Kessinger testified that Richard reported to him that management
had told him that he was not called on April 16 because “they didn’t have any work within his
restrictions.” Kessinger testified that providing a response to that portion of his request would
establish whether Richard had any restrictions and, if so, what they were relative to the claim
that there was no work within his restrictions. I find the foregoing request relevant.

Complaint paragraphs 75 and 82

On May 6 and May 10, Kessinger presented information requests to Station Manger
Owens that arose from an incident involving employee Leticia Angulo. Angulo had alleged that
another employee had bitten her, and she filed a complaint pursuant to the Postal Service’s
“zero tolerance” for violence policy. Although Angulo participated as a witness in the
investigation, she expressed concern to Kessinger that her complaint would not be taken
seriously. Kessinger filed the May 6 request seeking the zero tolerance report in order to assure
Angulo that her complaint had been fairly investigated. Angulo was taken off of the clock for the
time she was away from her duties due to her participation in the investigation. When she was
paid she discovered that she had been compensated as a PTF carrier whereas, on the date she
was taken off of the clock, she had been assigned to a regular route pursuant to an in-station
bid award. The May 10 request sought the in-station bid award to Angulo, the pay adjustment
made for Angulo regarding the zero tolerance investigation, the hours worked by Angulo for the
14 days prior to the investigation, and part time flexible (PTF) hours worked during the period.
Kessinger explained that if Angulo were not awarded pay for the in-station bid route, he needed
the additional information to establish Angulo’s proper compensation as a PTF carrier. I find that
all of the foregoing requested information was relevant.

Complaint paragraphs 76, 77, and 80

In early May, letter carrier Shelia Miller-Brown complained to Kessinger that she had
learned that other members of her crew had been making more money than she by working
unscheduled days, that “she had been passed over too many times during the last two months
for overtime on her nonscheduled day.” Pursuant to her complaint, Kessinger, on May 8,
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requested the overtime desired list for the past 60 days, from May 6, 2003, the nonscheduled
overtime desired list for the past 60 days from May 6, 2003, and Miller-Brown's assignments
and unscheduled days during same period. The foregoing information was clearly relevant in
order to establish whether Miller-Brown had been passed over as she was alleging.

At the same time on May 8, Kessinger presented Station Manager Owens with a second
information request relating to Miller-Brown having been charged leave without pay (LWOP)
when she was absent due to a medical emergency. This request sought Miller-Brown’s pay stub
to confirm that she was charged LWOP, and “medical documentation from hospital, from family
practice and radiologist,” documents that Miller-Brown had informed Kessinger that she had
submitted in order to obtain medical leave. When questioned regarding whether he had
obtained Miller-Brown’s authorization regarding the foregoing information, Kessinger testified
that she signed the grievance form. He denied being aware of any special procedure regarding
obtaining documents submitted by an employee in support of a claim for medical leave, and the
Postal Service presented no testimony establishing any such procedure. The requested
information was relevant.

On May 10, Kessinger presented Owens an information request relating to a complaint
from Miller-Brown that she had missed an overtime opportunity on May 9. Kessinger requested
the “everything report” for Miller-Brown that showed her clock rings, the overtime desired list,
and the Form 3996 submitted by Miller-Brown requesting assistance or authorization for
overtime. Counsel for the Respondent stipulated to relevance of the foregoing information.

Complaint paragraphs 78

On April 29, the Postal Service refused to accept documentation presented by employee
Derrick Brown regarding sick leave. On May 10, Kessinger presented to Owens an information
request seeking the Form 3971 (the leave request) submitted by Brown for April 25 and 26 and
the policy relied upon to refuse the documentation that he attempted to present. Counsel for the
Respondent stipulated to the relevance of the foregoing information request.

Complaint paragraph 79

Letter carrier Arthur Wiley, like Miller-Brown, complained to Kessinger in early May that
he was being passed over for overtime opportunities. On May 10, Kessinger presented an
information request to Owens for the overtime desired list that would have been in effect for
April 22 and 30 and May 8. Kessinger explained that grievance packages must be complete,
thus, the list requested on behalf of Miller-Brown for the 60 days prior to May 6, even if it had
been provided, would have been with that grievance, thus the Union needed separate
documentation regarding Wiley’s grievance. Kessinger acknowledged that the current overtime
desired list was posted and, if he had been told that he could make a copy, he would have done
so, but “I needed permission to leave my unit and go do that.” Kessinger also requested the
call-in sheets for unscheduled overtime for April 22 and 30 and May 8 and the overtime reports
for those same three days. I find all of the foregoing information relevant to the grievance that
the Union filed on behalf of Wiley.

Complaint paragraph 81

At some time in the past, employee Richard Dowgun suffered an on-the-job injury.
Thereafter he was assigned limited duty. In early May, Dowgun informed Kessinger that
someone in management had told him that his limited duty assignment was going to change,
but he received no written notification. Following their conversation, Kessinger, on May 10,
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presented an information request to Owens seeking a copy of Dowgun’s limited duty position.
Kessinger explained that the limited duty document is a letter from the Postal Service offering a
limited job duty position to an injured employee that sets out the duties to be performed, where
they will be performed, and the hours involved. Kessinger explained that Dowgun was
concerned whether the verbal information he received was correct and whether the Postal
Service was going to change his assignment. Kessinger, although never receiving the
requested document, filed a grievance and Dowgun’s assignment was not changed. When
Counsel for the Respondent questioned Kessinger regarding his knowledge of approval of
limited duty positions by the Department of Labor, Kessinger pointed out that the request he
made was made to the Postal Service and that he was aware that after any Department of
Labor approval, “the Post Office has to make the offer of a limited duty position.” Counsel stated
that he would make “a legal argument at a later time.” No such argument appears in the
Respondent’s brief. The Union having received information that comments had been made
regarding changing Dowgun’s assignment, its request for the document establishing that
assignment was relevant.

Having found that all of the information requested by the Union as set out in complaint
paragraphs 71 through 82 was relevant, I find that the failure of the Respondent to provide the
information that did exist or respond regarding which specific items of requested information did
not exist violated Section 8(a)(5) of the Act.

H. Case 16–CA–22961

Complaint paragraphs 96 through 99

Paragraph 99 alleges that the Postal Service unilaterally changed its procedure for
approving leave for “Choice Vacation” time in that, prior to July, requests to use leave without
pay (LWOP) for Choice Vacation were automatically approved but that, in July, the Postal
Service, in its Spring Area, began granting approval on a case-by-case basis. Paragraph 96 of
the complaint alleges the failure to provide requested information relating to that alleged
unilateral change. Employees of the Postal Service bid for Choice Vacation for each upcoming
year in December. Thus, in December 2002, employees at each post office wrote onto a master
vacation schedule the days or weeks that they desired to take as vacation in 2003. The number
of employees permitted to take vacation at a single time is controlled by local agreement. In the
Spring Area the number cannot exceed 14 percent of the workforce at each station. Slots are
awarded on the basis of seniority.

As previously stated, the Spring Area includes the Spring Maine Office and three branch
offices. In July, the Postmaster of the Spring Area was Dave Critelli; however, he was on detail.
From March until September, Matthew Lopez was “in charge of all four” stations. The evidence
relating to these allegations come from the Panther Creek Branch. The Acting Station Manager
at Panther Creek is Barbara Wright assisted by 204(b) Supervisor Donna Pease.

Michael Carew, Chief Steward of the Union at Panther Creek, testified that, prior to July,
employees who had insufficient annual leave to take their Choice Vacation were automatically
approved to take their Choice Vacation time using LWOP. In early July, letter carriers Pat
Givens and Lena Gibson submitted leave requests on the appropriate form, Form 3971, to take
their Choice Vacation using LWOP. On July 5, Supervisor Pease informed Carew that she had
denied Gibson’s leave request, that “there was a new policy in Spring [i.e. the Spring Area post
offices], that they were now going to examine the LWOP for [sic] a case-by-case basis.” Carew
responded that this “wasn’t right because they had always approved it.” Pease responded that
“this is coming from Ms. Wright, … that’s just the policy and you’re going to have to take it up
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with her [Station Manager Wright].” Carew filed a grievance and a request for information. The
grievance is currently pending arbitration.

Maryke Cudd initially testified that, when she was “effectively” the Panther Creek Station
Manager from March 2000 until May 2002, all requests for LWOP were examined on a case-by-
case basis. Thereafter she acknowledged that the supervisors, not she, handled all employee
leave requests and that she could recall no instance in which she had acted on an employee
leave request. Alternate Shop Steward Jackie Jackson, who has worked at Panther Creek for
20 years, testified that employees who wanted to take their Choice Vacation time but had
insufficient annual leave were “granted leave without pay” and that this practice had been
followed “[e]ver since I've been a letter carrier, since '83.”

Supervisor Pease denied that there was any change of policy, testifying that “[w]e’ve
always done it on a case-by-case basis.” Pease later testified that employees turn in their leave
slips and that she will “approve it or disapprove it,” but that, pursuant to the vacation schedule,
Choice Vacation time is “blocked for them so that they have the option of taking it or not taking
it.” Pease’s acknowledgement that it is the employee who has the option is consistent with
Carew’s testimony that, prior to July, Choice Vacation was automatically approved. Significantly,
Pease did not deny Carew’s testimony that she told him “there was a new policy in Spring” and
that requests for Choice Vacation using LWOP were now going to be examined on “a case-by-
case basis.”

Persuasive evidence that the Postal Service implemented a new policy in the Spring
Area is established by the failure of the Postal Service to introduce any document showing any
instance prior to July in which an employee’s request for Choice Vacation using LWOP was
denied. Pease’s undenied statement to Carew reported a “new policy” in the Spring Area.
Matthew Lopez, who was in charge of all four of the Spring locations, was not asked and did not
deny that a “new policy” had been implemented. Acting Station Manager Wright was not asked
and did not deny that a “new policy “ had been implemented. I find that Pease correctly reported
to Chief Steward Carew that there was a “new policy” and that implementation of that policy,
reviewing requests to use LWOP for Choice Vacation time on a case-by-case basis, had
resulted in the denial of employee Gibson’s leave request.

Prissy Grace, President of Branch 283, testified without contradiction that there was no
bargaining with the Union regarding the foregoing change in procedure and that the Union has
protested whenever it has learned that leave for Choice Vacation has been denied because
“people have the right to the leave they signed up for on that roster in December.” She also
explained the rationale behind automatic approval, noting that, on the basis of their selection of
Choice Vacation, employees make cruise and hotel reservations for those dates.

The foregoing evidence establishes that the Respondent did, without notice to or
bargaining with the Union, cease automatically approving requests for leave that involved
employees in the Spring Area taking LWOP for Choice Vacation and began considering those
requests on a case-by-case basis. The foregoing unilateral change related to employees’ terms
and conditions of employment and violated Section 8(a)(5) of the Act.

Following Carew’s conversation with Supervisor Pease, he filed a grievance and a
request for information. The information he sought included the original of the Form 3971
submitted by Lena Gibson, all Form 3971s for Choice Vacation time from 1990 to 2003 for Pat
Givens, who Carew understood had, over that time period, been approved to take LWOP, Form
3971’s for the last 5 employees in the Spring Area, excluding Givens, who had taken LWOP
during their Choice Vacation time in order to show the extent of the practice, corresponding time
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and attendance reports for the same dates as in order to show that the carrier used LWOP for
Choice Vacation time, and all Form 3971s for all employees in the Spring Area who used LWOP
during their Choice Vacation time since 1970 to show the longevity of the practice.

Supervisor Pease testified that she gave Carew access to all records that she could
locate, but admitted that she “only knew where the 3971s for the two previous years” were
located. She acknowledged that, thereafter, a box appeared that contained documents from the
years 1999 through 2001. She did not know where the box came from. She initially testified to
providing only the time and attendance reports for Givens, but then asserted that she provided
all time and attendance reports. Carew testified that he received only the time and attendance
report for Givens for the year 2002. Carew acknowledged receiving access to documents that
included the 3971 forms for employees at Panther Creek “for the past three years.” He testified
that he was not provided a copy of the Form 3971 for Lena Gibson showing the denial of her
requested LWOP for her Choice Vacation time, and there is no claim that he was provided that
document.

The evidence suggests that the Postal Service had additional documents to which the
Union was not given access. Carew testified that, when being provided the Panther Creek
documents, he was given access to four boxes of documents. He testified that there were 8
additional boxes at the post office, “under a conference table” that contained documents from
prior years and that he knew this because, in connection with other grievances, he had been
given access to some of the other boxes. On August 12, in the supply room, Carew discovered
another box, the box that Pease acknowledged had appeared, and that it contained some Form
3971s. Carew recalled that manila envelopes were marked with the years 2000 and 2001.
Pease recalled that they were for 1999, 2000, and 2001. Regardless of whose recollection is
correct, any Form 3971s dated after June 2000 would, of course, have been in the 3 years
preceding the information request.

Acting Station Manager Wright informed Carew that he was only being provided Form
3971s for three years because that is the specified retention period. Carew acknowledged that
conversation and agreed that the Postal Service’s manual provides that the foregoing
documents must be retained for 3 years. Wright contacted her superior, Matthew Lopez, who
was in charge of the Spring Area in July. As a result of their conversation, Wright concluded that
Carew was authorized to file grievances only on behalf of Panther Creek Branch employees
and, therefore, did not provide Carew with documents other than documents relating to those
employees. Notwithstanding the foregoing, the General Counsel argues that Carew was entitled
to review documents for the entire Spring Area for prior years. Carew testified that,
notwithstanding the 3 year retention requirement, he was familiar with arbitration decisions
which reflected that “10 years seemed to be a common ground for establishing a past practice.”
That testimony is uncontradicted.

The foregoing testimony establishes that, although the Postal Service requires retention
for 3 years, arbitrators consider evidence up to 10 years old when determining past practices.
Thus, the record establishes that documents for a period of 10 years would be relevant in the
presentation of a grievance. Chief Steward Carew’s testimony relating to other boxes suggests
that additional information relevant to the Union’s request was available albeit not within the
retention period required by postal regulations. There is no probative evidence that any records
more than 10 years old would be relevant and I shall recommend that no documents earlier that
1993 need be produced and that the complaint allegations in that regard be dismissed.

The Union, through Supervisor Pease’s statement to Chief Steward Carew, was
informed that the new policy was a policy of the Spring Area. It was not limited to Panther
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Creek. The Union sought to establish that the new policy altered the longstanding past practice
in the Spring Area and requested documents that it believed would show the consistent past
practice. The requested time and attendance documents for the last five employees who took
LWOP for their Choice Vacation in the Spring Area were, therefore, relevant. The failure to
provide Gibson’s Form 3971 request for LWOP for Choice Vacation that was denied is
obviously relevant and the failure of the Respondent to provide it violated the Act. The
Respondent’s limitation of access to Form 3971s for only three years at Panther Creek violated
the Act. By failing to fully provide all of the information sought by the Union as set out in
paragraph 96 of the complaint, the Respondent violated Section 8(a)(5) of the Act.

Conclusions of Law

1. By threatening discipline for failure to comply with a unilaterally changed procedure,
the Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.

2. By unilaterally altering the procedure by which the APWU maintenance craft steward
must obtain union time in order to carry out his representational responsibilities and by
unilaterally ceasing to automatically approve requests for leave that involve employees taking
LWOP for Choice Vacation and approving those requests on a case-by-case basis in the Spring
Post Office, the Respondent has engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.

3. By failing and refusing to provide the APWU with information it requested on April 24,
2003, and by failing and refusing to provide, or to provide in a timely manner, the Union with
information it requested between January 10, 2003, and July 11, 2003, as found herein, said
information being relevant and necessary to the APWU and the Union as the collective-
bargaining representatives of the employees in the appropriate units, the Respondent has
engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The General Counsel has requested special remedies. In view of the multiple facilities
involved herein and the Board Order in Postal Service, 339 NLRB No. 150 (August 21, 2003), I
shall, as requested by the General Counsel, recommend a broad order and district wide posting.
Counsel has also requested the reading of the notice and reinstatement of grievances. None of
the violations found herein occurred subsequent to the Board’s Order in August, thus I shall not
recommend the reading of the notice. Nor shall I recommend the reinstatement of grievances. In
ordering the Respondent to reinstate a grievance, I would effectively be ordering the waiver of
time limitations agreed upon by the parties and incorporated in their collective-bargaining
agreement. Although I have found no case that states that I lack the authority to do so, that
principle is implicit in Northwest Pipe & Casing, Co., 300 NLRB 726, 736-37 (1990) and Postal
Service, 307 NLRB 429 at fn. 2 (1992). Thus, I must deny the request.

The Respondent having made unilateral changes affecting the terms and conditions of
unit employees, it must, upon the request of the unions representing employees in those units,
rescind those changes.
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The Respondent having failed and refused to provide the APWU with information it
requested on April 24, 2003 and having failed and refused to provide the Union with information
it requested between January 10 and July 11, 2003, it must promptly supply said information, as
set forth below.

I shall recommend that the Respondent be required to provide any of the information
that I have found to have been unlawfully withheld as set forth in paragraphs 14, 18(b), (c), and
(d), 42, 43, 44, 45, 46, 47, 48, 49, 50, 51(b), 64, 65, 66, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80,
81, 82, and 96, or inform the Union that the information does not exist. As my findings reflect, in
some instances a portion of the information encompassed in some of those paragraphs has
been provided. Information that has been provided need not be reprovided.4

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5

ORDER

The Respondent, United States Postal Service, Houston, Texas, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Threatening discipline for failure to comply with a unilaterally changed procedure.

(b) Refusing to bargain collectively with American Postal Workers Union by unilaterally
altering the procedure by which the APWU maintenance craft steward at the Spring Post Office
must obtain union time in order to carry out his representational responsibilities.

(c) Refusing to bargain collectively with National Association of Letter Carriers Branch
283, affiliated with National Association of Letter Carriers, AFL-CIO, by unilaterally ceasing to
automatically approve requests for leave that involve employees taking LWOP for Choice
Vacation at the Panther Creek branch and other locations of the Spring Post Office.

(d) Refusing to bargain collectively with American Postal Workers Union by failing and
refusing to provide requested information that is relevant and necessary to that Union as the
collective-bargaining representative of employees in the following unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All maintenance employees, special delivery messengers, motor vehicle employees,
postal clerks, mail equipment shop employees and distribution centers employees; but
excluding managerial and supervisory personnel, professional employees, employees
engaged in personnel work in other than a purely non-confidential clerical capacity,
4 If the Board should disagree with my recommend dismissal of Case 16–CA–22855, the
Respondent should be ordered to provide the dates of hire of the employees named in
subparagraph 33(a) and the information set out in subparagraph (c) of the complaint.
5 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
purposes.
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security guards as defined in Public Law 91-375, 1201(2), all postal inspection service
employees, employees in the supplemental work force as defined in Article 7 [of the
collective-bargaining agreement], rural letter carriers, mail handlers and letter carriers.

(e) Refusing to bargain collectively with National Association of Letter Carriers Branch
283, affiliated with National Association of Letter Carriers, AFL-CIO, by failing and refusing to
provide, or failing and refusing to provide in a timely manner, requested information that is
relevant and necessary to that Union as the collective-bargaining representative of employees
in the following unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:

All letter carriers; but excluding managerial and supervisory employees, professional
employees, employees engaged in personnel work in other than a purely non-
confidential clerical capacity, security guards, Postal Inspection Service employees,
employees in the supplemental workforce as defined in Article 7, rural letter carriers,
mailhandlers, maintenance employees, special delivery messengers, motor vehicle
employees, and postal clerks.

(f) In any other manner interfering with, restraining, and coercing employees in the
exercise of rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Upon the request of the American Postal Workers Union, rescind the unilateral
alteration of the procedure by which the its maintenance craft steward at the Spring Post Office
must obtain union time in order to carry out his representational responsibilities.

(b) Upon the request of the National Association of Letter Carriers Branch 283, affiliated
with National Association of Letter Carriers, AFL-CIO, rescind the unilateral cessation of
automatically approving requests for leave that involve employees taking LWOP for Choice
Vacation at the Panther Creek branch and other locations of the Spring Post Office.

(c) Promptly furnish the American Postal Workers Union and the National Association of
Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, with
the information found to have been unlawfully withheld from them as set forth in the remedy
section of this decision.

(d) Within 14 days after service by the Region, post at all its facilities within the Houston,
Texas, district, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 16, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. 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
6 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall
read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at its North Shepard Station at any time since January 10, 2003.

(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.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. January 16, 2004

_____________________
George Carson II
Administrative Law Judge
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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 had found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT threaten you with discipline for failing to comply with a procedure that we have
unilaterally changed.

WE WILL NOT refuse to bargain collectively with the American Postal Workers Union by
unilaterally altering the procedure by which the American Postal Workers Union maintenance
craft steward at the Spring Post Office must obtain union time in order to carry out his
representational responsibilities, and WE WILL, upon the request of that Union, rescind the
foregoing unilateral change.

WE WILL NOT refuse to bargain collectively with the National Association of Letter Carriers
Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, by unilaterally
ceasing to automatically approve requests for leave that involve employees represented by that
Union from taking LWOP for Choice Vacation at the Panther Creek branch and other locations
of the Spring Post Office, and WE WILL, upon the request of that Union, rescind the foregoing
unilateral change.

WE WILL NOT refuse to bargain collectively with the American Postal Workers Union by failing
and refusing to provide requested information that is relevant and necessary to that Union as
the collective-bargaining representative of the employees it represents, and WE WILL promptly
furnish the information it requested on April 24, 2003.

WE WILL NOT refuse to bargain collectively with National Association of Letter Carriers Branch
283, affiliated with National Association of Letter Carriers, AFL-CIO, by failing and refusing to
provide, or failing and refusing to provide in a timely manner, requested information that is
relevant and necessary to that Union as the collective-bargaining representative of the
employees it represents, and WE WILL promptly furnish the information it requested between
January 10, 2003, and July 10, 2003, as set forth in the remedy section of the decision.

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WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.

UNITED STATES POSTAL SERVICE
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
819 Taylor Street, Fort Worth TX 76102-6178
(817) 978–2921, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (817) 589–2925

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