United States Postal Service

National Labor Relations Board - Administrative Judge Opinions

Aug 13, 2014

05-CA-119507 (N.L.R.B. Aug. 13, 2014)

JD–48–14
Washington, D.C.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNITED STATES POSTAL SERVICE
and Case 5–CA–119507
AMERICAN POSTAL WORKERS UNION
Gregory M. Beatty, Esq.,
for the General Counsel.
Roderick D. Eves, Esq., of St. Louis, Mo.
for the Respondent.
Anton G. Hajjar, Esq., and Lisa M. Manson, Esq.,
of Washington, D.C. for the Charging Party.
DECISION
STATEMENT OF THE CASE
Eric M. Fine, Administrative Law Judge. This case was tried in Washington, D.C., on
April 1, 2014. The American Postal Workers Union (the Union) filed the charge on December
19, 2013, against the United States Postal Service (the Respondent)1 and the General Counsel
issued the complaint on February 25, 2014, alleging, as amended, that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to provide or unlawfully delaying in providing the
Union with certain requested information. The complaint alleges that since about November
22, 2013, in writing, the Union has requested that Respondent provide it with the following
information:
(a) Copy of any/all agreements between the Postal Service and
Staples regarding Staples offering postal products and services at
Staples locations.
(b) Copy of any/all correspondence between the Postal Service and
Staples regarding Staples offering postal products and services at
Staples locations.
(c) Copy of any/all correspondence between the Postal Service and
Staples regarding the Retail Partner Expansion Program.
(d) For each postal product and service sold by Staples, identify
any/all discounts that the Postal Service will provide to Staples.
(e) Identify the criteria to be used in determining any Postal
Service compensation to Staples based on performance or other
factors. Also provide the range of possible compensation.

1 All dates are in 2013 unless otherwise indicated.
JD–48–14
2
(f) Identify the steps, if any, that the Postal Service will take to protect
the sanctity of the mail when the mail is in the hands of Staples
employees.
(g) Provide a copy of any/all training material provided to
Staples employees.5
(h) Provide a copy of any/all provisions relied upon to support the
use of postal employees training private sector workers performing
work traditionally performed by postal employees.
(k) Provide all cost analyses for the Partner Post/Retail Partner Expansion
Program/CPU programs for Staples, including but not limited to DARs.10
The complaint was amended at the hearing to allege Respondent failed and refused to
provide the information contained in above paragraphs 6(a) through (e), (g) and (k), and
unreasonably delayed in providing the information requested in paragraphs 6(f) and (h).2
15
On the entire record, including my observation of the witnesses' demeanor, and after
considering the briefs filed by all parties, I make the following:3
FINDINGS OF FACT
20
I. JURISDICTION
The Respondent is subject to the jurisdiction of the National Labor Relations Board
pursuant to Section 1209 of the Postal Reorganization Act of 1970. It was conceded and I find
the Union is a labor organization as defined in Section 2(5) of the Act.25
II. ALLEGED UNFAIR LABOR PRACTICES
A. Contractual provisions
30
The current collective-bargaining agreement between the parties expires in May 20154
and contains the following provisions:
Article 15 Grievance-Arbitration Procedure
Section 1. Definition: A grievance is defined as a dispute, difference, disagreement or 35
complaint between the parties related to wages, hours, and conditions of employment.
A grievance shall include, but is not limited to, the complaint of an employee or of the
Union which involves the interpretation, application of, or compliance with the provisions
of this Agreement or any local Memorandum of Understanding not in conflict with this
Agreement.40
Article 31 Union-Management Cooperation
Section 3. Information:

2 The General Counsel withdrew the allegation listed in 6(i) of the complaint at the hearing.
3 In making the findings, I have considered the witnesses’ demeanor, the content of their
testimony, and the inherent probabilities of the record as a whole. In certain instances, I have
credited some but not all of what a witness said. See NLRB v. Universal Camera Corporation,
179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951).
4 The record is unclear as to whether the agreement was effective in November 2010, or began in May
2011.
JD–48–14
3
The Employer will make available for inspection by the Union all relevant
information necessary for collective-bargaining or the enforcement,
administration or interpretation of this Agreement, including information
necessary to determine whether to file or to continue processing of a grievance
under this Agreement. Upon the request of the Union, the Employer will furnish 5
such information, provided, however, that the Employer may require the union to
reimburse the USPS for any costs reasonably incurred in obtaining the
information.
* * *
Nothing herein shall waive any rights the Union may have to obtain 10
information under the National Labor Relations Act, as amended.
Article 32 Subcontracting
Section 1. General Principles:
A. The Employer will give due consideration to public interest, cost, efficiency, 15
availability of equipment, and qualification of employees when evaluating the
need to subcontract.
(See Memos, pages 369, 371, 372, 404 and 412)
B. The Employer will give advance notification to the Union at the national level
when subcontracting which will have a significant impact on bargaining unit work 20
is being considered and will meet with the Union while developing the initial
Comparative Analysis report. The Employer will consider the Union’s views on
costs and other factors, together with proposals to avoid subcontracting and
proposals to minimize the impact of any subcontracting. A statement of the
Union’s views and proposals will be included in the initial Comparative Analysis 25
and in any Decision Analysis Report relating to the subcontracting under
consideration. No final decision on whether or not such work will be contracted
out will be made until the matter is discussed with the Union.
C. When a decision has been made at the Field level to subcontract bargaining
unit work, the Union at the Local level will be given notification. 30
The following Memorandums of Understanding (MOUs) were contained in the collective-
bargaining agreement:
Re: Contracting or Insourcing of Contracted Service35
It is understood that if the service can be performed at a cost equal to or less than
that of the contract service, when a fair comparison is made of all reasonable costs, the
work will be performed in-house.
Re: Consideration of National Outsourcing Initiatives40
The parties agree that it is in their best interest to meet and discuss national
outsourcing initiatives at an early stage of the process.
Once the Strategic Initiative Action Group (SIAG) has determined that a proposed
concept will involve significant impact on bargaining unit work and preparation begins on
a memo detailing consideration of the five Article 32 factors, the Union will be provided 45
notification. Union involvement at this early stage of the process is without prejudice to
either party’s position regarding the determination as to whether there is a potential
significant impact on bargain unit work.
Following receipt of notice, the Union will be afforded opportunities for briefings,
meetings and information sharing as the concept is developed, costing models prepared 50
and of Comparative Analysis document drafted.
JD–48–14
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The above process also will be utilized when an existing contract for national
outsourcing initiative is expiring and consideration is being given to rebid the outsourcing
of the work.
The parties understand that the purpose of the Memorandum of Understanding is to
allow the Union an opportunity to compete for work internally at a point in time 5
contemporaneous with the outsourcing process and early enough to influence any
management decision. The Union may suggest less restrictive work rules, mixes of
employee categories, lower wage rates that may improve efficiency and lower the costs
of an in-house operation.
10
B. The Current Dispute
There were four witnesses who testified at this proceeding, Clint Burelson and Phil
Tabbita for the Union and Patrick Devine and Brian Code for Respondent. Burelson testified
that he authored the Union’s November 22, information request to Respondent which was sent 15
under the signature of Union President Mark Dimondstein and is at the heart of current dispute.
Tabbita has worked for the Union for about 30 years and his current title is management of
negotiations support and special projects. Tabbita is a member of the Union’s negotiating
committee at the national agreement level. Tabbita was involved in negotiations for the
current collective-bargaining agreement. Tabbita has been involved in every contract 20
negotiation since 1981.
Devine is Respondent’s manager of contract administration for the headquarters labor
relations group that deals with the APWU. Devine, who is an attorney, has spent a lengthy
career with Respondent in various capacities. He testified he has been a member of 25
Respondent’s negotiating team for contract negotiations in 2006 and 2010, the latter for the
current contract. Devine testified that, during 2010 into 2011, he sat on the SIAG committee
referenced in one of the above collective-bargaining agreement MOUs. Code works for
Respondent as the manager of retail alliances. He has held that position since August 2011,
and has worked for Respondent since April 1999. Code met with Devine in formulating 30
Respondent’s response to the Union’s November 22 request for information.
Burelson testified there are four divisions within the Union, the clerk division,
maintenance, motor vehicle, and support services. The clerks are Respondent’s employees
who customers see when they enter a post office; they also sort mail and bulk mail. Code 35
estimated that in 2013 there were about 33,400 post offices in the United States. Code testified
that in 2000 and there were around 35,000 post offices, with both figures including mail
processing facilities.
Code testified Respondent had a program first called Shipper Plus, then renamed 40
Partner Post, and now it is called the Retail Partner Expansion Program. He testified
Respondent was trying to devise a program to help support partner initiatives in the marketplace
to expand Respondent’s access and market share in high-demand areas. Code testified
Respondent came up with a new program they wanted to test in the marketplace currently called
the Retail Partner Expansion Program. 45
Code testified retail partner expansion is not unique to the United States in that providing
postal products and services through retail establishments is something well established in
countries in Europe, Canada, Australia, and New Zealand. He testified this is the way a
significant portion of those domestic populations receive their retail services from their post 50
offices. Code testified Respondent has been working on this concept in earnest since August
JD–48–14
5
2011, when Respondent began to develop a sustainable strategy for a retail network. Code
testified it took a year for Respondent to formulate a test concept. Code testified around
September 2012 they decided to test the concept. Code testified Canada was one of the
primary places Respondent studied in formulating Respondent’s concept as Canada has a
sophisticated way of partnering, expanding access and managing their network. Code testified 5
Respondent also did some benchmarking in Europe to understand how the dynamics behind
their retail network changed over the last 15 years. In Europe, Germany was the country most
studied, but Respondent also looked at England, Sweden, Australia, and The Netherlands.
Code testified in developing Respondent’s retail strategy, there were issues where they have
demand imbalances in high-demand areas as to how gain market share from their competitors. 10
Code testified the latter was the key component when discussing the Retail Partner Expansion
Program. He testified Respondent’s competitors were in the box business, UPS and FedEx.
Code testified the models Respondent studied in Canada and Europe dealt with retail
transactions that typically occur at the windows at Respondent’s post offices.
15
Code testified the Staples model which is involved in the Union’s November 22
information request includes weighing small packages and selling stamps. He testified the
Staples service is a simplified version of the service Respondent provides customers at its post
offices. He testified at Staples they do not have all of the products and services they offer at the
post office in that Respondent wanted to create a simple portfolio so it would be easy to transact 20
for the retailers and their employees and would still cover the majority of transactions needed in
the marketplace. He testified there are a lot of transactions conducted at the Staples stores.
Code testified Respondent started the Staples program in 2013. Code testified
Respondent settled on a strategy for it in about September 2012. Code testified that from 25
September 2012 to about January 2013, they were able to do a competitive analysis, market
research, and testing to verify their course of action. In January 2012 Respondent released a
request for information to potential retail partners. Code testified it essentially went to the 75
largest retailers in the country, all with different verticals such as big box stores, grocery chains,
drugstores, and office superstores. In August 2012, Staples contacted Respondent expressing 30
an interest. Concerning partnering with retailers, Code testified Respondent wanted to create
enterprise-level partnerships which would allow Respondent to use efficiencies of those
partnerships and leverage their intellectual property in the marketplace. Code testified
Respondent used a pilot plan with Staples because any rollout would have significant cost
consequences and if it rolled out and did not perform to the level of their assumptions then it35
would be a bad decision to engage in it on a larger scale.
Code testified that prior to beginning the pilot with Staples, R e s p o n d e n t
s u b m i t t e d to SIAG a statement outlining t h e g o a l s o f t h e p i l o t . Code identified a
letter dated December 14, 2012, with a one page attachment labeled the “Memorandum of40
Due Consideration o f A r t i c l e 3 2 F a c t o r s . ” C o d e t e s t i f i e d t h a t h e ,
along with his team, developed the memo to submit to SIAG to determine whether
Respondent’s planned test would const i tu te an impact to the Union’s bargaining unit. The
attached memo states, in part:
45
The Approved Shipper Plus Program aims to establish USPS customer access
points in leading national and regional retailer’s store locations nationwide. In order to
determine whether to launch the full-scale program, USPS will conduct a program pilot
beginning in April 2013 at 200 retail locations and select markets. The pilot will enable
USPS to collect customer, transactional, and operational data to measure the impact 50
JD–48–14
6
and validate operational and financial assumptions before potentially launching the
full-scale program.
On December 18, 2012, a letter was copied to Code, stating that “The Strategic
Initiatives Action Group (SIAG) has reviewed your draft Memorandum of Do Consideration of the 5
Article 32 factors. Based on the facts presented in the memorandum and your presentation, the
SIAG has determined the Approved Shipper Plus Pilot will not have a significant impact on the
bargaining unit.” “As discussed, please come back to SIAG for further review once the pilot’s
realization has been determined.”
10
By letter dated March 14, to then Union President Cliff Guffey, Devine stated:
As a matter of general interest, the Postal Service intends to initiate a pilot of the
Partner Post program, to establish customer access points in leading national and
regional retailer’s store locations to offer Postal Service products and services.15
The pilot is scheduled to begin in April/May at approximately 185 locations and select
markets and end after approximately one (1) year. The purpose of the pilot will be to
collect customer, transactional, and operational data to measure the test impact and
validate operational and financial hypotheses. It is anticipated that the information from
this data will allow the Postal Service to determine the suitability of possible further 20
expansion.
No significant impact to the bargaining unit is anticipated.
In September Respondent and Staples signed off on an “Approved Postal Provider Pilot
Agreement,” which by its terms stated it was dated August 29. The agreement stated it is “a 25
Retail Pilot Agreement (a type of Marketing Agreement) with a negotiated service agreement
component for discounts relating to particular products, as set forth in accordance with Exhibit
F.”5 Respondent’s contract with Staples contains Article 14 “Confidential Information, ” which
contains the following language:
30
Nothing in this Agreement shall prevent the Party from disclosing information to the
extent that such Party is legally compelled to do so by any governmental or judicial entity
pursuant to proceedings over which such entity has jurisdiction; provided, however, that
such Party shall (a) notify the other Party in writing of the agency’s order or request to
disclose such information, providing, to the extent practicable, at least (redacted) notice 35
where practicable prior to disclosure, (b) If disclosure of this Agreement is requested,
redact mutually agreed-upon portions of this Agreement under applicable laws, rules and
regulations, and (c) otherwise cooperate with the other Party in protecting against such
disclosure and obtaining with a protective order narrowing the scope of the compelled
disclosure and protecting its confidentiality.40
* * *
The Receiving Party shall be under no obligation to hold in confidence any Confidential
Information which:
* * *
iv. is required by a Federal, State, or local governmental body to be disclosed in the 45
proper exercise of its oversight or investigatory jurisdiction;
v. is required to be disclosed by law; or

5 A heavily redacted copy of Respondent’s agreement with Staples was provided to the
Union by Respondent on March 24, 2014.
JD–48–14
7
vi. is independently developed by the Receiving Party without breach of this
Agreement.
By letter dated October 2 from Devine to Guffey, Devine stated the following:
As a matter of general interest, this notice is provided as a follow-up to the enclosed 5
notice dated March 14 regarding the initial Partner Post-pilot. The Postal Service plans
to launch a one-year pilot program of Partner Post at 84 Staples locations in five media
markets. Markets include Atlanta, Pittsburgh, San Diego, San Francisco and Worcester.
Customers of the participating Staples stores will have access to a simplified product
portfolio containing our most popular products and services. Products and services 10
offered will include:
Stamps Standard Post
Priority Mail Priority Mailed International
First-Class Mail Global Expressed Guaranteed
Priority Mailed Express Priority Mail Express International15
First-Class Mailed International First-Class Package International Service
A soft launch is planned for mid-October with Grand Openings scheduled on or about
November 15. There is no anticipated impact to the bargaining unit at this time.
On November 22, Union President Dimondstein sent a letter to Doug Tulino, vice 20
president, labor relations of Respondent. The subject of the letter was, “USPS October 2, 2013
Notice regarding USPS Plans to Launch a One Year Pilot Program of Partner Post at 84
Staples Locations in 5 Media Markets.” It was stated in the letter that, “Per Article 17 and 31 of
the Collective Bargaining Agreement, the union requests the following information:” The letter
also stated, “Without prejudice to the union’s right to obtain all information in a timely manner, 25
please do not wait for all of the items to be completed before providing any information. Please
provide information as it is available.” The letter listed 27 paragraphs of requested information
which included the 9 items which are in dispute in this proceeding.
By letter dated December 4, to Dimondstein, Devine stated as follows:30
This letter acknowledges receipt of your November 22 request for information (RFI)
regarding the Postal Services October 2 letter regarding Partner Post at Staples
Locations.
Please note that this RFI has been assigned information request tracking number 35
IR13-44. This request shall be processed in accordance with the applicable rules,
regulations and the Collective Bargaining Agreement. You shall be notified if this
request requires remittance on the part of the American Postal Workers Union, AFL –
CIO, for photocopies and or time spent processing the information.
40
By letter dated January 2, 2014, Devine wrote Dimondstein regarding the Union’s
November 22 information request as follows:
Please be advised that the Postal Service, by letter dated March 14, 2013, notified
the APWU of its intention to initiate a pilot of the Partner Post program to establish 45
customer access points in leading national and regional store locations to offer Postal
Service products and services. As stated in the same letter, “the purpose of the pilot will
be to collect customer, transactional, and operational data to measure the test in fact
and validate operational and financial hypotheses. It is anticipated the information from
JD–48–14
8
this data will allow the Postal Service to determine the suitability of possible future
expansion.”
Thereafter, by letter dated October 2, 2013 the APWU was notified that the Postal
Service plans to launch a one-year pilot program of Partner Post and 84 Staples
locations in five (5) media markets identified in the letter. The letter also specified the 5
products and services to be offered at the pilot site locations.
Because this is a pilot program, the information requested in your letter does not
appear to be relevant or simply premature in light of the one-year pilot. However, the
Postal Service is providing information that is currently available without prejudice to its
position that the information is not relevant to the APWU’s role and responsibilities as 10
the bargaining representative of the employees it represents. Also, as the information
request is not within the immediate control of this office some information (as specified
below), as it becomes available, will be provided to the APWU.
In the interim, the following is the Postal Services responses to the information being
requested.615
1. Copy of any/all agreements between the Postal Service and Staples regarding
Staples offering postal products and services at Staples locations.
In accordance with the Collective Bargaining Agreement (CBA), Article. 31.3,
please explain the relevance of the requested information to the APWU’s
responsibilities which would make it necessary for collective-bargaining or the 20
enforcement, administration or interpretation of the CBA.
Moreover, the request appears to be overly broad and unduly burdensome.
Please specify the information that the union is seeking. Once a response has
been received by the Postal Service from the APWU, the information request will
be revisited.25
Please be advised that the documents requested may contain proprietary
and/or confidential information; therefore some information may be redacted.
2. Copy of any/all correspondence between the Postal Service and Staples regarding
Staples offering postal products and services at Staples locations.
In accordance with the Collective Bargaining Agreement (CBA), Article 31.3, 30
please explain the relevance of the requested information to the APWU’s
responsibilities which would make it necessary for collective-bargaining or the
enforcement, administration or interpretation of the CBA.
Moreover, the request appears to be overly broad and unduly burdensome.
Please specify the information that the union is seeking. Once a response has 35
been received by the Postal Service from the APWU, the information request will
be revisited.
Please be advised that the documents requested may contain proprietary
and/or confidential information; therefore some information may be redacted.
4. Copy of any/all correspondence between the Postal Service and Staples regarding 40
the Retail Partner Expansion Program.
Your request as written is unduly broad and burdensome, please specify in
detail the information you are seeking so as to assist in providing necessary and
relevant information to you.
Please be advised that documents requested may contain proprietary and/or 45
confidential information; therefore some information may be redacted.
9. For each postal product and service sold by Staples, identify any/all discounts that
the Postal Service will provide to Staples.

6 Only the items remaining in dispute in the complaint are listed here from Devine’s letter.
JD–48–14
9
In accordance with the Collective Bargaining Agreement (CBA), Article 31.3,
please explain the relevance of the requested information to the APWU’s
responsibilities which would make it necessary for collective-bargaining or the
enforcement, administration or interpretation of the CBA.
Moreover, the request appears to be overly broad and unduly burdensome. 5
Please specify the information that the union is seeking. Once a response has
been received by the Postal Service from the APWU, the information request will
be revisited.
Please be advised that the documents requested may contain proprietary
and/or confidential information; therefore some information may be redacted.10
11. Identify the criteria to be used in determining any Postal Service compensation to
Staples based on performance or other factors. Also provide the range of possible
compensation.
In accordance with the Collective Bargaining Agreement (CBA), Article 31.3,
please explain the relevance of the requested information to the APWU’s 15
responsibilities which would make it necessary for collective-bargaining or the
enforcement, administration or interpretation of the CBA. Once a response has
been received by the Postal Service from the APWU, the information request will
be revisited.
Please be advised that the documents requested may contain proprietary 20
and/or confidential information; therefore some information may be redacted.
16. Identify the steps, if any, that the Postal Service will take to protect the sanctity of
the mail when the mail is in the hands of Staples employees.
The Postal Service takes pride in the security and sanctity of the mail, it is
unlawful for retail partner employees to reveal the record information about 25
packages to anyone other than the Postal Inspection Service. Each pilot location
will have a designated letter drop for letters and envelopes. At no time will mail
be placed or stored in an area that is accessible to the public.
17. Provide a copy of any/all training material provided to Staples employees.
In accordance with the Collective Bargaining Agreement (CBA), Article 31.3, 30
please explain the relevance of the requested information to the APWU’s
responsibilities which would make it necessary for collective-bargaining or the
enforcement, administration or interpretation of the CBA. Once a response has
been received by the Postal Service from the APWU, the information request will
be revisited.35
Please be advised that the documents requested may contain proprietary
and/or confidential information; therefore some information may be redacted.
19. Provide a copy of any/all provisions relied upon to support the use of postal
employees training private sector workers performing work traditionally performed by
postal employees.40
At the outset, it appears that the union appears to be suggesting that retail
partner employees not be trained. Please clarify the request. In addition, as
noted in the response to item #18, above, non-bargaining unit personnel will be
utilized to train. For that reason the request does not appear to be relevant.
Please explain the relevancy of your request, as well.45
It was stated in response to item 18 that, “Non-bargaining unit employee will be utilized
to train and/or assist retail partner employees, if resource constraints exist we may seek
the assistance of Lead Clerks.”7

7 The record revealed that lead clerks are within the Union’s bargaining unit.
JD–48–14
10
25. Provide all cost analysis for the Partner Post/Retail Partner Expansion
Program/CPU programs for Staples, including but not limited to DARs.
In accordance with the Collective Bargaining Agreement (CBA), Article 31.3,
please explain the relevance of the requested information to the APWU’s
responsibilities which would make it necessary for collective-bargaining or the5
enforcement, administration or interpretation of the CBA. Once a response has
been received by the Postal Service from the APWU, the information request will
be revisited.
Please be advised that the documents requested may contain proprietary
and/or confidential information; therefore some information may be redacted.10
By letter dated January 17, 2014, in response to Devine’s January 2, 2014, letter,
Dimondstein stated, in part:
You state: “Because this is a pilot program, the information requested in your letter does 15
not appear to be relevant or is simply premature in light of the one-year pilot.” You
reiterate the same alleged lack of relevance of requested information in several
paragraphs and asked for an explanation of relevance.
Nowhere does the National Agreement exempt so-called “pilots” from application of
the National Agreement. Staples employees are now clearly performing bargaining unit 20
work and more will do so in the future. There also possible violations of Article 32 and
memoranda of understanding addressing contracting out and the preservation and
return of bargaining unit work; handbooks or manuals MOUs addressing Contract Postal
Units (CPUs); Article 5 (unilateral changes in compliance with law); and perhaps other
contract provisions, depending on what the APWU is able to discern after reviewing the 25
requested information. The union is entitled to information that relates to potential
grievances and not only actual grievances.
The Postal Service claims that some of the requested information is “overly broad” or
that production would be “unduly burdensome” or “overly cumbersome.” The APWU
disagrees. The information requested is either in documents or are answers to specific 30
questions. If the Postal Service is able to explain in sufficient detail when information is
“unduly burdensome” or “overly cumbersome” to produce, the APWU will be open to
discuss ways to lessen the burden. Similarly, if there are any items that the Postal
Service about which needs clarification, it can simply ask.
The Postal Service asserts that some requested information may contain confidential 35
or proprietary information. As the Postal Service is surely aware, having dealt with these
issues in the past, blanket claims of confidentiality are not acceptable. The Postal
Service bears the burden of demonstrating to the Union that it has legitimate and
substantial confidentiality concerns. If the Postal Service is able to do so, the parties
may be able to reach an accommodation. But if, for example, such an accommodation 40
takes the form of a nondisclosure agreement, there is no justification for redacting any
information, as your letter states the Postal Service may do and in the case of the Retail
Partnership RFI (paragraphs 5 and 8), has done. The Union insists on production of the
redacted portions unless and until the Postal Service demonstrates its legitimate and
substantial confidentiality concerns and offers to negotiate an accommodation.45
The APWU offers the following clarification to requests nos. 9, and 10 for discounts
the Postal Service will provide Staples and the range of prices for postal products. First,
discounts may have the result of incentivizing Staples to the detriment of Postal Service
retail facilities and employees who staff them. An example would be if Staples offers
“points” or other rewards under customer loyalty programs that will include purchases of 50
postal products and services. Please confirm if this is so and if so, and provide details.
JD–48–14
11
Second, certain prices and discounts may violate provisions of the Postal
Reorganization Act and therefore violate Article 5. The Postal Service says that its
products and services will be sold at published prices. Similar to the clarification in the
preceding paragraph, the Postal Services compensation to Staples (paragraph 11) may
similarly incentivize Staples to the detriment of Postal Service retail facilities and the 5
employees who staff them.
As for the Union’s request for information about training Staples employee training
(paragraphs 17, 18, 19 and 20), this information will help the Union understand whether
the safety and security of the mail as mandated in statutes and regulations is being
safeguarded. Because Staples is a receptacle for mail, the safety of postal employees 10
could be compromised if Staples employees are not adequately trained on mailable
matter. If postal employees are providing training or assistance to Staples employees,
their working conditions are affected.
By letter dated January 24, 2014 from Dimondstein to Tulino the Union initiated a 15
“National Dispute” concerning “Staples-Partner Post”. The letter stated that:
The Postal Service has embarked on an implementation of the program with Staples
in excess of 80 of its stores, under a National Sales Agreement (NSA). The stores will
contain post offices in which most postal products will be sold to the public. These post 20
offices will use equipment provided by the Postal Service. City letter carriers will pick up
the mail from Staples post offices.
The APWU has asked for information about the arrangement with Staples, including
the NSA, but to date the Postal Services provided only the Partner Post PowerPoint, the
Request for Information (RFI) addressed to “potential partners for the U.S. Postal 25
Service Retail Partnership Program,” and a chart purporting to be the proximity of the
Staples stores to postal facilities. The Union is entitled to an adverse inference, that the
information requested, if produced, would have supported the Union’s allegations and
been adverse to the Postal Services allegations.
This program constitutes contracting out in violation of Article 32, including but not 30
limited to the Union’s right to advance notification and to meet and be involved in early
stages of consideration of contracting out, and the following memoranda of
understanding in the National Agreement: “Contracting or Insourcing of Contracted
Services” (page 369), “Consideration of National Outsourcing Initiatives” (P 369-370).
The work being done at Staples stores’ is work that must be assigned to the 35
bargaining unit under Article 1.5 and the “New Positions and New Work” MOU (page
298).
To the extent that the Postal Service considers these Staples post offices to be
Contract Postal Units (CPUs), the Postal Service failed to treat them in accordance with
handbooks and manuals addressing CPUs in violation of Article 19. The Postal Service 40
also failed to meet to discuss and consider options for addressing the provision of retail
services in those locations” in accordance with the “Contract Postal Units” MOU (pp.
371-372).
The transportation of mail matter from Staples stores to postal facilities is of mail in
bulk that must be assigned to the Motor Vehicle Service craft.45
By letter dated January 31, 2014, to Dimondstein, Devine responded Dimondstein’s
January 17, 2014 letter. Devine stated, in part:
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12
This letter also requests a meeting with you to discuss potential ways of providing
and/or safeguarding the information you request. Please advise me as soon as possible
as to your availability to meet.
Regarding your concerns, you first state that “pilots" are not exempt from application
of the National Agreement. Your assertion appears to ignore the historical practice of 5
the parties during previous pilots and tests. Moreover, as the employees you represent
are not directly involved in the operation of the pilot at Staples the impact on employees
is not obvious. For these reasons, it appears the only contractual issue you are raising
concerns application of Article 32, specifically whether the work performed at Staples
constitutes subcontracting of bargaining unit work. As stated in my January 2, 2014 10
letter, a determination of the application of Article 32 will be made upon the conclusion of
the pilot. As you are undoubtedly aware, there is a long history of providing alternate
access to postal products and services that have not fallen under the purview of Article
32. Nevertheless, if Article 32 and/or any of the Subcontracting MOUs are triggered by a
permanent program with Staples, all applicable collective bargaining agreement 15
requirements will be satisfied.
Perhaps more importantly, as explained in our original notification to the APWU dated
March 14, 2013, the “purpose of the pilot will be to collect customer, transactional, and
operational data to measure the test impact and validate operational and financial
hypotheses.” As you are aware, operational and financial data assessments are 20
components of the analysis of the due consideration of the five (5) factors considered
under an Article 32 proposal. Presumably, the APWU will be interested in receiving the
measured, finalized, and validated version of the information it seeks that could be made
available in the event that the Staples pilot is implemented permanently.
You also raise a concern in your letter that the Postal Service's response to the RFI 25
asserts that many of the requests the APWU makes are "overly broad" Or "unduly
burdensome." The basis for the assertion is clear. Many of the requests are for "any
and all" agreements, solicitations, and correspondence with Staples which lack
specificity as to type, subject matter, information needed, and time period. A more-
specific request should presumably address the concern we raise.30
You respond in your letter to the Postal Service's statement that some of the
information you seek is confidential or proprietary. Without prejudice to your assertion
that the Postal Service bears the burden of demonstrating that it has legitimate and
substantial confidentiality concerns, the Postal Service believes that sharing the
confidential and proprietary terms of the Agreement would limit the ability of the Postal 35
Service to negotiate Agreements with other entities regarding offering Postal products
and services in the future and could have an adverse effect on existing Agreements.
An example of terms of the Agreement that would limit the Postal Service's ability to
negotiate with other entities are the portions of the Agreement that state which party will
be covering various expenses during the one-year pilot. If this information were to be 40
released and viewed by other companies or organizations, the Postal Service would be
at a competitive disadvantage to negotiate on various expenses with other partners in
the future. In addition, entities with existing Agreements with the Postal Service may
wish to adjust their terms, now or in the future, in a way that adversely impacts the
Postal Service. The Negotiated Services Agreements included as part of the Pilot 45
Agreement contain restricted and sensitive business information. Negotiated Services
Agreements have not been shared with outside parties in the past. Sharing the terms of
the Negotiated Services Agreements would weaken the negotiating position of the
Postal Service with regards to the discounts or incentives given to partners currently and
moving forward. For example, the Negotiated Services Agreements include the 50
discounts provided to Staples during the one-year pilot. If the discounts provided to
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Staples were to be released and viewed by other companies or organizations, the Postal
Service would be in a disadvantageous position to negotiate discounts given to partners
in the future.
Furthermore, the Pilot Agreement contains provisions explicitly prohibiting release of
any confidential Information or information relating to the economic terms of the 5
Agreement without prior approval from Staples. As information, Staples does not
approve of the release of the Pilot Agreement or any of the economic terms enclosed
therein.
Regarding the clarification on points or rewards offered by Staples to its rewards
program members, that is a matter that is not within the control of the Postal Service. 10
Your concern that Staples, by offering products and services at published prices,
somehow violates the Postal Reorganization Act is not clear. Please explain.
Concerning the training received by Staples employees, the training program and
materials developed for the Retail Partner Expansion Program pilot are based on the
training given to APWU-represented employees - i.e., the Sales and Service Associates 15
Training Guide Course #1002146, dated October 2012. The program includes both
classroom and on-the job training. Additionally, each pilot site will receive on-the-job
shadowing from the Postal Service. Each retail partner location will be certified by the
Postal Service; site certification includes an assessment of the training received and the
ability of retail partner employees to appropriately sell Postal Service products and 20
services following all procedures.
The training program and materials developed for the Retail Partner Expansion
Program pilot ensure that retail associates at pilot locations are fully educated
concerning Postal Service products; services, and policies concerning safety and
security, as well as the use of the CARS (Contract Access Retail System) Point-of-Sale 25
terminal. The program and materials reflect the latest changes in Postal products and
services.
Regarding the procedures to secure and make safe the mail received at Staples
locations, security and sanctity of the mail is emphasized in all aspects of the training.
Retail associates at pilot locations are informed of the high trust that customers place in 30
the Postal Service and the importance of safe guarding the items that are accepted at
pilot locations. The training program and materials are designed so that retail associates
are thoroughly trained on hazardous materials (HazMat) acceptance and aviation
security (AvSec), as retail associates must comply with all HazMat/AvSec guidelines.
In response to your inquiry as to “what steps" are taken, the following steps are taken 35
to ensure the sanctity and security of the mail at pilot locations:
Retail associates are trained to conduct every transaction by first greeting the
customer, then inquiring about their needed product and or service and finally
asking the currently required HazMat questions.
The CARS system begins the customer transaction by displaying the HazMat 40
questions on the customer monitor. The customer monitor has a 15" color
screen and is equipped with "text to speech" technology for the visually impaired.
Retail associates are only allowed to accept international packages 'with
electronically generated custom forms, adding a greater level of security to
international shipping.45
Mail at pilot locations is kept behind the counter in Postal provided equipment,
and is kept out of the reach of customers.
A separate letter drop fixture is positioned on the sales floor in close proximity
to the Postal counter. This is a locked fixture and is only opened when the letter
carrier arrives to collect the mail.50
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Finally, your suggestions that several of the items you received were not responsive
to your requests should be discussed at length.
Again, I urge you to contact me as soon as possible to make arrangements to meet
and discuss your request.
5
On March 24, 2014, Respondent provided the Union with a copy of a heavily redacted
version of its agreement with Staples entitled, “Approved Postal Provider Pilot Agreement.” On
March 29, 2014, Respondent provided the Union with a minimally redacted copy of the “Retail
Partner Expansion Program Retailer Associate Training Manual,” which is a manual Respondent
developed and was using to train Staples employees concerning the retail sale of Respondent’s 10
products. In a memo dated March 31, 2014, from Respondent’s attorney to the Union’s attorney
it was stated, “Based on the preliminary data and feedback, Staples has recently expressed
interest in expanding the pilot to additional stores. In accordance with the collective bargaining
agreement, we are considering whether the program proposed by Staples constitutes
subcontracting or bargaining unit work."15
Tabbita testified that collective-bargaining agreement Article 32, Section 1(B),
concerning subcontracting provides for advanced notification to the Union at the national level
when subcontracting which will have a significant impact on bargaining unit work is being
considered and for early involvement of the Union in the process. Tabbita testified the MOU on 20
page 369 of the collective-bargaining agreement relates to early input from the Union when
Respondent is considering a new initiative. He testified the memo on “Consideration of National
Outsourcing Initiatives” contains an opening sentence stating it is in the parties “best interest to
meet and discuss national outsourcing initiatives at an early stage of the process." He
explained the Union wants to meet early on because it has been their experience when they 25
meet after considerable work by Respondent and preliminary or final decisions on projects have
been made the Union is trying to convince the Respondent to reverse course and undo what
they have done. Whereas, if they meet earlier when the Respondent is considering an initiative
but before senior management has made decisions, the Union is in a better position to influence
those decisions, and when they make those decisions, they will have seen the Union’s concerns 30
and received its input. Tabbita pointed out the MOU on page 370 of the agreement states, "The
parties understand the purpose of the memorandum is to allow the Union an opportunity to
compete for the work internally at a point in time contemporaneous with the outsourcing process
and early enough to influence any management decision." Tabbita testified that in order for the
Union to influence a management decision about outsourcing, “We need to know what exactly it 35
is that they intend to outsource, some kind of statement of the work, some specificity about what
it is exactly that they are looking to remove from in-house and place in an outsource
environment so that we can begin to do an apple-to-apple comparison between in-house and
outsource.” He testified that, “We want to be able to isolate those things that are being
proposed to be done by the contractor and what they cost, and then look at doing those things 40
in-house and determine the costs that are isolated to just those things.”
Tabbita testified he has discussed outsourcing initiatives with Respondent over the last
30 years. He testified Respondent prepares a written document called a comparative analysis,
where it goes through the different factors to evaluate outsourcing initiatives. He testified it has 45
been his experience in discussing those reports with Respondent the one factor that is more
important than the others is cost. Tabbita testified the MOU refers to the Strategic Initiatives
Action Group (SIAG). He testified there are no union officials on SIAG. Tabbita testified that
while the MOU refers to whether SIAG makes a determination that a proposed concept will
involve significant impact on bargaining unit work, the Union is free to dispute any decision 50
management makes concerning whether or not there is significant impact. Tabbita testified if
JD–48–14
15
the Respondent says there is no significant impact, the Union can grieve and go to arbitration.
He testified that has not yet been done in this case, but it was done in a recent case involving
motor vehicle operations. Tabbita testified there is no time limit to file such a grievance, but it
should be filed reasonably quickly upon knowing what the facts are. Tabbita testified that, in this
case, the first he heard that SIAG met and made a determination of no significant impact was 5
during the morning of the trial on April 1, 2014, when counsel for Respondent made his opening
remarks. Tabbita testified it is his view, under Article 32 of the contract, that the Union should
receive notice when SIAG meets and determines there is no significant impact. He testified the
Union has received notice in the past when SIAG meets and determines there is no significant
impact, and the Union has an opportunity to grieve that determination.10
Tabbita testified Respondent informed the Union the pilot would last about a year and
the Union understood it started in late October or November 2013 and therefore anticipated the
initial pilot would end sometime late October or early November 2014. The General Counsel
entered into evidence an exhibit showing the location of the Staples stores that were part of the 15
pilot, and the distance of those stores from the nearest post office. The exhibit shows that a
large number of the 80 to 84 stores were less than a mile from the nearest post office. Tabbita
testified that some of the locations were literally across a parking lot or across a street. He
testified the Union’s concern is the traffic to the Staples stores may be pulling transactions away
from the Postal Service retail units. 20
Tabbita testified as follows: Respondent has a point-of-sale system which records every
transaction, and a time table allotted for that transaction. For example, there are so many
seconds allowed for selling a book of stamps, and so many minutes or seconds allowed for each
type of package. Respondent is able to multiply the number of transactions times the allotted 25
time. They then create something called earned hours showing productive time for those hours.
When Respondent does staffing and scheduling, they create charts showing the staffing for a
window. If on Tuesday there is 11 hours of clerk staffing on a window but the earned hours are
only 7 hours, Respondent attempts to bring that staffing time down as close as they can to
earned hours. If the bargaining unit loses transactions to Staples stores, they lose time, and 30
ultimately the staffing mechanism is going to take hours out of the unit. Sometimes this will
result in people leaving the station or branch, and in some cases this may help justify
consolidating stations or branches.
Tabbita testified the Union cannot wait until the end of the pilot program to obtain the 35
requested information because it is likely Respondent is not going to abruptly stop business in
80 stores if they decided to expand it. Most likely they will make the decision to continue or
expand before the deadline so it is uninterrupted. Tabbita testified it will have a detrimental
effect on the program if there is an abrupt interruption. Tabbita testified right now Respondent
and Staples are evaluating the program and deciding what they are going to do. This is the 40
point when the Union needs to be involved and able to make reasoned arguments with some
detail, justifying some correction in the course Respondent may decide to take.
Tabbita testified the Union has received information pursuant to Article 32 from
Respondent in the past. He testified generally the information the Union initially receives in 45
terms of a comparative analysis and other documents generates a lot of questions. He testified
typically the Union critiques the cost analysis and suggests to Respondent any errors they think
were made, appropriate numbers or other factors. The Union reviews the operation to see if it
has been designed most efficiently and makes suggestions on a more efficient operation. When
the Union does its own cost analysis, they make proposals about staffing, how the operation 50
might be changed, and how they might limit the adverse impacts on Respondent’s employees.
JD–48–14
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Tabbita testified he has made proposals based on received Article 32 data to Jack
Potter, who, at the time, was the vice president of labor relations, and later became chief
operating officer and postmaster general. Tabbita testified this was in the late 1990s and it
involved the outsourcing of work pertaining to transportation equipment service centers. He 5
testified the Union thought it was less expensive to use the bargaining unit to do the work.
However, the Respondent did not agree. Tabbita testified the bargaining unit was still less
expensive as to some of the outsourced operations. Tabbita testified he made a proposal to
Potter concerning the outsourcing, but this was before there was early involvement language in
the collective-bargaining agreement, and Respondent had already made the decision to 10
outsource. Tabbita testified he went to Potter after that decision was made with the Union’s
analysis that, according to Respondent’s own numbers, the Union was less expensive at
particular sites. Potter’s response was Respondent did not think the Union would agree to split
the sites. Tabbita responded the yes the Union would do so. Potter got back to Tabbita a
couple of weeks later and said no one wants to reconsider.15
Tabbita testified the provisions in the contract on the Union’s early involvement in
outsourcing decisions came into the 2000 contract during interest arbitration. Tabbita testified
the Union was the proponent of the changes. Tabbita testified it is the position of the Union that
the Staples pilot program was having a significant impact on bargaining unit work at the time of 20
the hearing. He testified it was not the Union’s view that they had to wait for SIAG to declare a
particular program by Respondent as having a significant impact before the Union could request
information about it. Tabbita testified, “We can request information whenever.” Tabbita also
testified the Union does not have to wait for SIAG to declare a particular program as having a
significant impact before the Union may file a dispute over it. He testified the Union can file a 25
dispute when they have a concern that the contract is violated as to an outsourcing that should
not have happened and/or the Union should have received notice of it. He testified the Union is
“free to grieve that the contract's been -- violated. One, we didn't get notice, and two, it was
inappropriate for whatever reasons we can justify.” Tabbita testified, “I'm only saying that the
failure of the Postal Service to do something doesn't mean we can't grieve. In fact, that may be 30
the justification for -- the failure of SIAG to meet, the failure of SIAG to make a decision, their
failure to notify us, doesn't mean that we can't grieve.”
Tabbita did not recall any negotiated service agreement provided by Respondent to
the Union in the Article 32 context. Tabbita testified, to his knowledge, no union member has 35
been terminated as a result of loss of work to Staples, nor is he aware of any bargaining unit
employee who was displaced, reassigned to another facility because of lack of work or lost
work because of the Staples agreement. He testified no post offices near Staples have
been consolidated at this point because of work going to Staples. Similarly, Burleson
testified he has no evidence that post offices near the pilot Staples stores lost clerk hours. 40
Tabbita testified that in order for the Union to determine whether there is an impact to the
bargaining unit they would need to know about the potential growth and work and whether
they are able to get a piece of that work. He testified the Union would need to know about the
kind of volumes that might be taken away from post offices that have an adverse impact on
employees because of staffing and scheduling changes or reduced hours, et cetera. Tabbita 45
testified to the extent that there are estimates or actual information, the Respondent would
have the information.
Tabbita testified that in order for the Union to effectively intervene in the Article 32
process, t h e y need the best costing data available and a clear statement of work or50
description of exactly what will be done in an outsourced environment. This allows them to
JD–48–14
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begin assessing the operations to see if there are more efficient ways to conduct those
operations to reduce cost. Tabbita testified the Union wants this information as early as
possible so they we can influence the decision-making process. Tabbita testified that in a
typical Article 32 situation the Union would be involved before there was ever a contract. He
testified the Staples situation is unusual because there is already a contract. 5
Tabbita testified in determining whether there is significant impact, the Union looks at the
potential for growth in the bargaining unit and the potential for negative impacts in the
bargaining unit. He testified they would be looking at the number of transactions, the volumes of
packages and so on, to see if the Union is involved in the Staples operation, are they getting 10
more work, and if the bargaining unit is not involved in the Staples operation, what are the
negative impacts that might occur. Tabbita testified that paragraph 25 in the Union’s information
request relating to cost analysis would likely be based on some estimate of volumes, and he
also expects that in response to paragraph 4 there may be correspondence that is tracking
various things that would give the Union information on volumes and hours.15
Concerning the Union’s November 22 information request, as to the information
requested in paragraph 1, Burelson explained Staples was doing the work that Respondent’s
union represented employees normally perform. Burelson testified he wanted a copy of
Respondent’s agreement with Staples to better understand it, in order to have a proper 20
discussion with the Respondent about it. Burelson testified the information requested in
paragraph 2 concerning correspondence may provide additional information about the
arrangement and could clarify it. He testified it could show the intent of the Respondent and
Staples. Concerning the information requested in paragraph 4, Burelson testified the Retail
Partner Expansion Program is the program the Staples and Postal Service agreement falls25
under. It could be expanded to other companies as well, so Burelson wanted to better
understand the arrangement and the program. Tabbita testified concerning the relevance of
paragraph 1, that a copy of the agreement would allow the Union to review with specificity what
Staples is expected to do, and the work involved. This would give the Union a basis on which to
compare the costs for that operation, with the costs for an operation like that done with 30
bargaining unit employees. Tabbita testified that, by obtaining this early in the process, it gives
the Union an opportunity to suggest how an operation at Staples might be staffed with
bargaining unit employees playing a role in it. It gives the Union an opportunity to look at
weaknesses in the agreement that they may argue should moderate or eliminate the agreement.
Tabbita testified early access allows the Union to critique the program, suggest revisions to it, 35
help cost out what it would cost to have Postal employees do some or all of the work, and
hopefully persuade management to maximize the benefits while minimizing the harm to postal
employees. Tabbita testified the relevance of paragraph 2 of the request concerning the
Respondent’s correspondence with Staples will shed light on the specificity of the
arrangements between Staples and Respondent. He testified the relevance of paragraph 4 40
regarding correspondence regarding the Retail Partner Expansion Program is very similar to
paragraph 2. Tabbita testified he would expect there may be discussions between
Respondent and Staples about the future of the project, and the expansion of the project. That
information will be helpful to the Union to determine where this project is headed.
45
Burelson testified the information requested in paragraph 9 pertaining to discounts goes
to the heart of the matter. He testified the greater the discounts, the more work the bargaining
unit will lose to Staples. He testified the Union wanted to understand what the discounts were
and how much incentivizing Respondent was doing to give work away to private corporations
like Staples. Burelson testified a discount could result in the loss of unit work because the 50
greater the discount the more the incentive for the company to do more of that work and thereby
JD–48–14
18
take work away from the bargaining unit. Burelson testified paragraph 11, relating to the criteria
used in determining any Postal Service compensation to Staples, was also requested to try and
understand the kind of compensation provided to Staples and what method they were using. He
testified the Union needed this information to understand the incentives of the private
corporation to perform the work. Similarly, Tabbita testified concerning the Union’s request in 5
paragraph 9 that it in terms of understanding the financial arrangements between Staples and
Respondent, the discount Staples receives for various products may be one of the primary ways
Staples is compensated for the work. Tabbita testified it is helpful for the Union to have this
information early in the process, stating “I don't think we're going to persuade the Postal Service
without some reasoned argument, and cost will be an important one of those arguments.” 10
Concerning paragraph 11, and the criteria to be used determining Respondent’s compensation
to Staples, Tabbita testified it is not unusual for the Postal Service to offer incentives to a
supplier to bring in additional volume or to perform at a particular level, and this is a question of
how much compensation may be involved in Staples performing this work.
15
Burleson testified concerning paragraph 16, pertaining to the steps the Respondent
will take to protect the sanctity of the mail when it is in the hands of Staples employees, that
it was the Union’s understanding when Staples employees are handling the mail prior to
turning it over to the Post Office, it was not covered by federal rules. Burleson testified that
Respondent’s employees have to take an oath of office as a postal employee. He testified 20
there were a lot of qualifications, and the Union was concerned the sanctity of the mail
would be compromised in the hands of non-postal employees. He testified there are safety
considerations involved in handling the mail, that they have had anthrax at his post office
located at the Capital, and there were other threats concerning the mail to public officials.
Burelson testified if someone is not checking for these type things at the entry-level it could 25
affect the safety of Respondent’s employees, Congress, and judges. Similarly, Burleson
testified the Union’s request in paragraph 17 for training material provided to Staples
employees pertained to the same issues. Burelson testified the Union was concerned the
Staples employees are not being trained properly, and those savings might be an incentive
to take work away from the bargaining unit. Burelson testified union represented 30
employees receive a wage premium because of their training and qualifications. He
testified that Union wanted to understand what kind of training and qualifications are going
to Staples employees. He testified, “we don't want people in the private sector undercutting
our wage premium.” As to paragraph 19, "provisions relied upon to support the use of
postal employees training private sector workers performing work traditionally performed by 35
postal employees," Burelson testified Respondent’s employees were upset that they were
going to have to train their replacements. He testified the reasons he previously mentioned
as to training apply to this paragraph.
As to paragraph 17 regarding training material, Tabbita testified training is a cost that will 40
be incurred both for the trainer and the trainee, and understanding what is involved in the
training program will help the Union determine the size of that cost. Tabbita testified the other
concern is a question of safety and security. He testified if Staples employees are not trained
adequately on accepting packages, there is real hazard to the public, Respondent’s employees
and to Staples’ employees. Tabbita testified lead clerks referenced in Respondent’s response 45
to the Union’s request in paragraph 18 are bargaining unit employees.
As to the request in paragraph 25, calling for all cost analyses for the Partner Post/Retail
Partner Expansion Program/CPU programs for Staples, including but not limited to DARs,
Burleson testified the Union wanted to understand how Respondent was making their decisions50
on costs, and if it was less expensive for the bargaining unit employees to perform
JD–48–14
19
the work. Burleson testified the Union needed this information to show the bargaining
unit could do it at a more affordable cost. Burleson testified the Union needs the information
because Staples employees are currently performing the work of postal workers. He testified
the Union objects to it, wants to challenge it, and wants to have a discussion with the
Respondent about it. Similarly, Tabbita testified, concerning paragraph 25, regarding cost 5
analyses that the Union is already late. He testified there is a contract of some kind, and there
should be a cost analysis in that there was a cost analysis done to justify the business decision
to enter the contract. Tabbita testified this will give the Union the Respondent’s view of what the
cost and benefits are, and it is going to be a starting point for the Union to begin to critique the
program, build cost models, and make suggestions.10
Devine testified Article 32.1.B o f the co l lec t i ve -barga in ing agreement
per ta in ing to subcon t rac t ing is triggered when there is a significant impact, which is
determined by the SIAG committee. Devine testified when a subcontracting p r o p o s a l i s
m a d e a memorandum of due consideration is submitted, which takes into consideration15
the five factors l isted in Art icle 32.1.A: public interest, cost, efficiency, availability of
equipment, and qualifications of employees. Devine testified a comparative analysis report
under Article 32.1.B is generally binders full of information that Respondent provides to the
Union which compares, as part of the analysis, costs, efficiencies and all of the relevant factors
for in-house performance of work versus it being subcontracted. He testified the report could 20
include the actual subcontract.
Devine testified the procedure is when SIAG makes the determination as to whether or
not there is a significant impact concerning contracting, they notify the manager of contract
administration, who is currently Devine. Devine testified his shop then notifies the Union of the 25
determination as to whether or not there has been a finding of significant impact. Devine
testified from his experience on sitting on the SIAG committee there are several factors used in
the determination. One is a determination of how many work hours will be replaced under the
subcontracting initiative. He testified they also look at a whether the impacted employees are
going to be excessed, that is the involuntary reassignment of employees, sometimes within their 30
installation or sometimes to a different installation. Devine testified the scope of the change is
considered and all of the things that are contained within the Goldberg arbitration decision are
considered.8 Devine testified this arbitration serves as a guide for himself and his department
regarding whether something is a significant impact. Devine testified he is not aware of
anything to suggest that hours of work have been diminished for union members as a result of 35
the Staples pilot, or the need to reassign anyone.
Devine testified the Union has a mechanism by which they can challenge SIAG's
determination that a proposed action does not significantly impact bargaining unit work, which is
by the Union’s filing a step four dispute. He testified this is encompassed in Article 15.4 in the 40
collective-bargaining agreement which concerns grievance procedures. Devine testified that
concerning the maintenance craft, one of the former Union assistant directors had filed several
disputes through Article 15.4.D contesting that something was of significant impact where
Respondent had determined that it was not. These events took place during 2005, 2006, and
into 2007, but they have not been arbitrated yet, although they have been appealed to 45
arbitration. Devine testified that the scheduling of arbitration is by mutual agreement.

8 Respondent submitted into evidence arbitrator Goldberg’s decision dated March 4, 2013.
The SIAG committee decision concerning Staples was made in December 2012.
JD–48–14
20
Concerning Devine’s October 2 letter to the Union President Guffey referencing 84
Staples stores, Devine wrote at the end of the letter that no significant impact to the bargaining
unit is anticipated. Devine testified the purpose of that clause was to distinguish it from an
Article 32.1.B announcement. Devine testified the pilot was an experiment to determine whether
to establish the program on a broader basis as an end goal, but in the meantime to collect data. 5
Devine testified they actually only had the pilot at 82 Staples locations out of the 185 originally
announced in Devine’s March 14 letter. He testified in terms of ending the pilot and determining
if they were going to continue with it generally that does not happen. Devine testified if the pilot
goes forward, there is some sort of transition period to doing it permanently. Whether to do it
permanently for just at the 82 locations, or on a larger basis would be a determination that 10
would be made at a later date and time. Devine testified pilots generally do not go more than
a year. The Staples pilot started in October 2013 and Devine testified October 2014 will be
the end of the pilot. He testified that at that point Respondent could conclude it would have a
significant impact if Respondent decided to expand it.
15
Devine testified a pilot is used interchangeably with the term "test." It is something that
Respondent is not going to instantly implement permanently. Rather, they need additional
information as they might want to change vendors, or change the costing in a contract with a
vendor. He testified Respondent would have a better idea at the end of the pilot. Devine
testified the pilot with Staples is having a third-party vendor performing work similar to what 20
Respondent does in-house. Devine testified he is not familiar, since he has been a manager or
labor relations specialist beginning in 2005, with an information request by the Union that is like
the information request currently in dispute. He testified he is not aware of an information
request by the Union seeking a contract with a third party vendor outside the Article 32 realm.
He testified that, “Obviously, when --after we've given notification on -- that subcontract is at 25
play, we've gotten requests for information on contracts, yes. But not during a test.” He testified
that prior to the invocation of Article 32, during a pilot or a test, the Union has never asked for a
negotiated service agreement.
Devine testified he is not familiar with Respondent giving the Union a negotiated service 30
agreement even after the pilot stage. Devine testified he has received requests for contracts
under Article 32 but not negotiated service agreements like the one involving Staples. He
testified usually negotiated service agreements pertain to retail contracts and any of the contract
requests he has received pertained to mail processing and transportation. Devine testified a
negotiated service agreement, is for a subcontractor, but a different type of subcontractor. 35
However, Devine testified he is not familiar with any other negotiated service agreements for
retailers outside of Staples.
Devine testified that, under Article 32, Respondent has provided the Union with
subcontracting agreements. He testified the difference in the subcontracting agreement with 40
Staples was the nature of the contract. He testified, while he has never previously been asked
to provide a negotiated service agreement, there is nothing otherwise that distinguishes the
Staples contract from the subcontract agreements he has provided to the Union. Devine
testified he would tend to believe if Respondent determines the Staples agreement is an Article
32 issue that will have significant impact on the bargaining unit, and the Union’ s request for it is 45
ongoing the Respondent would provide the Staples agreement to the Union, subject to a non-
disclosure agreement. Devine testified when he turned over subcontracts in the past
Respondent was able to negotiate a nondisclosure agreement with the Union. Devine testified
when Respondent sends the notice that they have made the final decision to subcontract under
Article 32.1.B, which is of significant impact, the letter says, "Awaiting your execution of a non-50
disclosure agreement, we have available the comparable analysis." He testified then what
JD–48–14
21
usually happens is the Union requests the contract as well, and it is provided subject to a
nondisclosure agreement.
Devine testified he never previously received a request for all communications between
Respondent and a third-party vendor during a pilot phase with the vendor. He testified he has5
not received, during the pilot stage, requests for discounts provided to the third-party vendor.
Similarly, Devine testified he has not received a request for costs analysis or the DAR during a
pilot stage, only during a significant impact Article 32.1.B initiative. He testified that information
that has been provided to the Union in the Article 32 process has been subject to a
nondisclosure agreement. 10
Code testified he participated in a collaborative effort, along with Devine, in determining
what was to be redacted from the Staples agreement in terms of what was provided to the
Union. He testified that Staples had an investment in the outcome. Code testified he sought
support from counsel and labor relations at Respondent to help understand this process. Code 15
testified it was a matter of going through question by question, figuring out the implications as to
the relationship governed by the agreement with Staples and what latitude Respondent had in
providing information so it did not appear they were in breach of the agreement with Staples.
Code testified that in responding to the information requests he had never received a 20
letter asking for detailed information about the partner portfolio he manages. Code testified
Respondent has thousands of partners. Code testified that when Respondent rolled out Office
Depot, Code never received a formal letter stating that Code needed to provide the Union with
all of this information. Code testified this is the first time he received an information request from
the Union. However, Code testified Respondent has never previously structured a business 25
deal the way it has with Staples in that with Staples they are not using a managed services
agreement. Code testified the managed services agreement is an agreement used to procure
goods and services by the federal government. Code testified the agreement with Staples is a
marketing deal, and Staples compensation is in the form of discounts. Code testified they have
structured this as a licensing agreement, a retail agreement where Staples is putting a lot in the 30
game in the hope that the business model works for both of them.
Code testified that, at some point, if Respondent provides a notification under Article 32
the Union is going to be entitled to cost information concerning Staples. As to the confidentiality
of cost information Code testified, “I think when we make a determination -- and these are two 35
separate things. One, we're in test and we feel fairly confident that this has no or little impact on
the bargaining unit. But if we do feel like that this has merit and we identify the fact that there
might be a consequence to expansion, we would certainly provide any information that would be
required in order for us to fill our obligations within the agreement.” When asked the question
that “Not all cost information is per se confidential.” Code testified, “Correct.” However, Code 40
testified he did not have a law degree.
Code testified the Staples pilot will be deemed a success and likely to expand based on
what impact it has on Respondent’s market share for mailing and shipping. Code testified if it is
a success and Respondent expands they have modeled the program expand to all of Staples 45
locations. Code testified if the program is successful by around the end of 2015 there is a
possibility of Respondent being at 1300 Staples locations. Code testified if they determine the
pilot program is a success there could be a number of different scenarios. If they receive
feedback that Staples wants to move forward with the program, then Respondent would figure
out what the terms would be. He testified Respondent would have to determine whether this 50
has a significant impact on the unions. Code testified different scenarios could unfold as they
JD–48–14
22
might make a determination the test is insufficient and Respondent would expand to other
locations different than the markets currently in place. He testified if Respondent develops a
comfort level and an understanding, then Respondent would seek to see what impact this would
have on the unions and follow the rules that govern that relationship.
5
Code testified when Respondent makes the determination that this pilot has ended, and
if both parties are interested parties in moving forward they would stop the expansion process.
Code testified, while it is not his decision whether to expand, it is his understanding there is a
process in place that Respondent needs to adhere to, and part of that would be doing the
comparative analysis with the Union if Respondent determined there is a significant impact on 10
the bargaining unit. He later testified he did not definitely know whether Respondent would stop
expansion while the process with the Union goes on. He testified it was his understanding it
would stop, “which is not an expert opinion.” Code testified there was a chance they would start
a program to expand to all 1300 stores, but “I'm pretty sure it would be contingent upon
outcomes of discussions with the Union.”15
Respondent submitted into evidence 24 pages of an arbitration by Steven Goldberg
dated March 4, 2013. Article 32 of the collective-bargaining agreement is entitled,
“Subcontracting.” In the award, the arbitrator concluded there is nothing in the text of contract
Article 32.1.B or Article 32.2 entitled “Motor Vehicle Craft-Highway Movement of Mail” or the 20
history of those articles that would lead to a conclusion that a proposed subcontract that would
have a significant impact on bargaining unit work is excluded from article 32.1.B because it
deals with the highway transportation of mail. The arbitrator concluded that Article 32.1.B deals
with subcontracting which will have a significant impact on bargaining unit work, while Article
32.2 deals with subcontracting which will have a lesser effect on bargaining unit work. The 25
arbitrator noted at page 10 of his decision that concerning contracts under Article 32.1.B which
would have a significant impact on bargaining unit work the Postal Service is now obliged to:
…meet with the Union while developing the initial Comparative Analysis report. The
Employer will consider the Union’s views on costs and other factors, together with 30
proposals to avoid subcontracting and proposals to minimize the impact of any
subcontract. A statement of the Unions views and proposals will be included in the initial
Comparative Analysis and in any Decision Analysis Report relating to the subcontracting
under consideration. No final decision on whether or not such work will be contracted
out will be made until the matter is discussed with the Union.35
In the award the arbitrator concluded that for contracting to be deemed to have a
significant impact the contracting could be limited to one state and still meet that requirement in
that instance it was the state of California. The arbitrator noted the proposed contracting,
although regional in scope, would displace in excess of 800 bargaining unit employees and 40
once the contracting occurred the operation would not return. The arbitrator concluded the
contracting if implemented would have a significant impact on bargaining unit work and that as a
result Respondent must comply with Article 32.1.B prior to making a final decision on whether or
not the work will be contracted out.
45
In the award, the arbitrator rejected Respondent’s argument that the “Contracting or
Insourcing of Contracted Service” MOU applied only to Article 32.1.B situations that is where it
was determined that the contracting had significant impact on bargaining unit work in
accordance with Article 32.1.B. The arbitrator concluded the MOU applied to estimated costs
as opposed to actual costs based on the timelines as defined in Article 32.1.B. and Article 32.2, 50
whichever one applied to the contracting at issue. The arbitrator stated at page 23-24:
JD–48–14
23
Conversely, I reject the argument which I understand the Postal Service to be
making, that the Contracting MOU leaves untouched the decisions of Arbitrators Snow
and Mittenthal cited in note 7 to the extent those decisions held that the sole contractual
obligation of the Postal Service, when deciding whether or not to contract out highway 5
transport work, is to give due consideration to the five factors set out in Articles 32.1 or
32.2 (depending on whether the contract would have a significant impact on bargaining
unit work), and that if the Postal Service has done so it may contract out even if the cost
of doing so is greater than the cost of keeping the work in-house. While those decisions
may have been contractually sound at the time they were rendered, they do not survive 10
the Contracting MOU.
* * *
Hence, the Postal Service can no longer justify contracting out work that would be
less expensive to keep in-house on the ground that it has given due consideration to
cost as well as the other Article 32.1 or 32.2 factors. To be sure, each of those factors 15
must be considered but if factors other than costs do not rule out keeping work in-house,
and the cost of keeping work in-house would be less than contracting out, both the text
and the bargaining history of the Contracting MOU require that the work be kept in-
house.
20
C. Analysis
1. The requested information is relevant to the Union’s representational functions
Under Section 8(a)(5) of the Act, an employer is obligated to provide a union, upon 25
request, relevant information needed to properly perform its duties as the employees’ bargaining
representative. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967) (citing NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 152 (1956)). When a union's requested information pertains to
employees within the bargaining unit, the information is presumptively relevant and the
employer must provide it. Where the requested information is not presumptively relevant, it is 30
the union's burden to demonstrate relevance. Disneyland Park, 350 NLRB 1256, 1257 (2007).
A union satisfies its burden by demonstrating a reasonable belief, supported by objective
evidence, that the requested information is relevant. Disneyland Park, supra. The Board in
Disneyland Park, supra at 1258 stated:
35
Information about subcontracting agreements, even those relating to bargaining unit
employees’ terms and conditions of employment, is not presumptively relevant.
Therefore, a union seeking such information must demonstrate its relevance. (Richmond
Health Care, 332 NLRB 1304, 1305 fn. 1 (2000).
The Board uses a broad, discovery-type standard in determining the relevance of 40
requested information. Potential or probable relevance is sufficient to give rise to an
employer's obligation to provide information. Id. To demonstrate relevance, the General
Counsel must present evidence either (1) that the union demonstrated relevance of the
non-unit information or, (2) that the relevance of the information should have been
apparent to the Respondent under the circumstances. See Allison Co., 330 NLRB 45
1363, 1367 fn. 23 (2000); Brazos Electric Power Cooperative, Inc., 241 NLRB 1016,
1018-1019 (1979), enfd. in relevant part 615 F.2d 1100 (8th Cir. 1980). Absent such a
showing, the employer is not obligated to provide the requested information.
In assessing the relevance of requested information a union claims is necessary to 50
investigate whether an employer has violated a collective-bargaining agreement, “the Board
JD–48–14
24
does not pass on the merits of the union's claim… thus, the union need not demonstrate that
the contract has been violated in order to obtain the desired information.” Island Creek Coal Co.,
292 NLRB 480, 487 (1989), enfd. 899 F.2d 1222 (6th Cir. 1990). Information requested to
enable a union to assess whether a respondent has violated a collective-bargaining agreement
by contracting out unit work and, accordingly, to assist a union in deciding whether to resort to 5
the contractual grievance procedure, is relevant to a union's representative status and
responsibilities. See, AK Steel Corp., 324 NLRB 173, 184 (1997).
The Board has held a respondent can be apprised of the relevancy of requested
information through the testimony of union officials at the unfair labor practice hearing. See 10
National Grid USA Service Company Inc., 348 NLRB 1235, 1246-1247 (2006); Ormet Aluminum
Mill Products, 335 NLRB 788, 802 (2001); Barnard Engineering Co., 282 NLRB 617, 620
(1987); Oil Workers Local 6-418 v. NLRB, 711 F.2d 348, 363 fn. 40 (D.C. Cir. 1983); and Ohio
Power Co., 216 NLRB 987, 990-991 fn. 9 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976), the latter
case holding the adequacy of information requests to apprise a respondent of the relevancy of 15
the information must be judged in the light of the entire pattern of facts available to the
respondent. It was found there the respondent was, at a minimum, apprised of the relevancy of
the requests by the testimony of the union officials, and the respondent's continuing refusal to
accede to those requests could no longer be attributed to inadequacy of communications.
20
The Board has held that the inclusion of a union’s right of certain specified information in
a collective-bargaining agreement does not constitute a waiver of its more general right under
the Act to receive relevant information. See, Ormet Aluminum Mill Products, 335 NLRB 788,
804-805 (2001); King Broadcasting Co., 324 NLRB 332, 337 (1997); Postal Service, 308 NLRB
358, 359 (1992); Chesapeake and Potomac Telephone Co., 259 NLRB 225, 229 (1981), enfd. 25
687 F.2d 633 (2nd Cir. 1982);9 and Globe-Union, Inc., 233 NLRB 1458, 1460 (1977).
In National Grid USA, supra, a case involving subcontracting the Board held that a
union, upon establishing relevance, was entitled to “requests for proposals” sent to potential
subcontractors, and the actual contracts with the winning subcontract bidders. In Ormet 30
Aluminum Mill Products Corporation, supra, the Board approved the finding regarding an
information request pertaining to subcontracting that the respondent employer was required to
provide the union with such information as the subcontract, a copy of the prints, sketches, or

9 In Chesapeake and Potomac Telephone Co., supra., at 227, although the underlying
grievance was pending arbitration and the information request was repeated in the form of a
subpoena signed by the arbitrator, the respondent’s argument that the information request was
barred because it constituted pre-arbitration discovery was rejected by the judge, as approved
by the Board, with the judge stating:
It has been held numerous times that the duty to supply information extends to a request
for material to prepare a grievance for arbitration. The Fafnir Bearing Company, 146
NLRB 1582, 1586 (1964), enfd. 362 F.2d 716, 721 (2d Cir. 1966); St. Joseph's Hospital
(Our Lady of Providence Unit), 233 NLRB 1116, 1119 (1977); Designcraft Jewel
Industries, Inc., 254 NLRB 791 (1981); The Kroger Company, 226 NLRB 512 (1976);
Fawcett Printing Corporation, 201 NLRB 964, 972-973 (1973); Metropolitan Life
Insurance Company, 150 NLRB 1478, 1485-86 (1965); Cook Paint & Varnish Co. v.
N.L.R.B., 648 F.2d 712, 712-716 (D.C. Cir. 1981).[FN7]
Along these lines, the judge stated, “Although the procedural rights in the conduct of the
arbitration hearing may be governed by the AAA rules, there is nothing therein which abolishes
the rights for the production of material which the Union may find necessary to decide whether
to pursue a grievance to arbitration.” Chesapeake and Potomac Telephone Co., supra, at 229.
JD–48–14
25
manufacturing instructions supplied by the respondent employer to the subcontractor, a copy of
all correspondence between the respondent employer and the subcontractor, and a copy of all
invoices from the subcontractor for a specified time period. See also, ATC/Vancom of Nevada,
326 NLRB 1432, 1433 (1998) (any and all correspondence, tangible documents, and financial
information concerning subcontracting to be provided); and A.O. Smith Corp, 223 NLRB 838, 5
841 (1976).
The Board has found that subcontracting of unit work impacts a bargaining unit even
when unit employees do not lose employment or have reduced wages or hours as a result of
the contracting. In Mi Pueblo Foods, 360 NLRB No. 116, slip op. at 1-3 (2014), the Board 10
majority stated:
The judge found that the Respondent did not unlawfully refuse to bargain over its
decision to have RJR Trucking drivers deliver Unified products directly to its stores,
because the General Counsel failed to show that this decision had a “material, 15
substantial and significant” impact on drivers' terms and conditions of employment. She
found that no unit drivers were laid off and that the drivers' wages and hours were not
significantly affected.
We disagree with the judge's conclusion. By eliminating cross-docking, the
Respondent assigned delivery work to a subcontractor, specifically delivery of Unified 20
products from the DC to stores that was previously performed by unit drivers. Under
Fibreboard, supra, and Torrington Industries, 307 NLRB 809 (1992), the Respondent
was required to bargain with the Union prior to contracting out this work. And bargaining
is not excused simply because no driver was laid off or experienced a significant
negative impact on his employment.25
* * *
The judge's failure to find that the Respondent violated its duty to bargain when it
unilaterally eliminated the cross-docking derived from the incorrect premise that the
General Counsel must show an immediate impact on the drivers' terms and conditions of
work. While it is true, as the judge pointed out, that the subcontracting of this work did 30
not result in layoffs or significantly affect wages and hours of work due to the increase in
private-label deliveries, this may have only tempered the immediate impact of the loss of
work on unit drivers who had previously transported 88 pallets of Unified products daily.
Moreover, as discussed below, the Board has held that when bargaining unit work is
assigned to outside contractors rather than bargaining unit employees, the bargaining 35
unit is adversely affected. Absent an obligation to bargain, an employer could continue
freely to subcontract work and not only potentially reduce the bargaining unit but also
dilute the Union's bargaining strength.
In Overnite Transportation Co.[FN4] the Board found that an employer had an
obligation to bargain over its decision to use subcontractors, rather than unit employees, 40
to handle an influx of new work that unit employees could not handle. Noting that unit
employees did not lose work as a result of the subcontracting, it held that its decision in
Torrington, supra, requiring bargaining over subcontracting is not limited to situations in
which it has been affirmatively shown that the employer has taken work away from
current bargaining unit employees. In so finding, the Board reasoned:45
At issue here is a decision to deal with an increase in what was indisputably
bargaining unit work by contracting the work to outside subcontractors rather
than assigning it to unit employees. We think it plain that the bargaining unit is
adversely affected whenever bargaining unit work is given away to nonunit
employees, regardless of whether the work would otherwise have been 50
JD–48–14
26
performed by employees already in the unit or by new employees who would
have been hired into the unit. 330 NLRB at 1276.
The Board reached similar conclusions in Spurlino Materials, LLC, 353 NLRB 1198,
1218-1219 (2009), affd. 355 NLRB 409 (2010), enfd. 645 F.3d 870 (7th Cir. 2011), and
Clear Channel Outdoor, Inc., 346 NLRB 696, 702-703 (2006). In both cases, the Board 5
concluded that even absent an affirmative showing that subcontracting caused the layoff
or job loss of current employees, issues amenable to the collective-bargaining process
remained, such as the adjustment of unit employees' workloads or the reemployment of
terminated bargaining unit members.
10
Similarly, in Ohio Power Co. supra at 992-994, two unions were involved in an economic
strike, upon the ending of which they reached collective-bargaining agreements with a
respondent employer, the terms of which were approximately a year and one-half. The strike
ended with some of the strikers being permanently replaced and placed on a preferential recall
list. The collective-bargaining agreements contained subcontracting provisions precluding 15
subcontracting which would cause the layoff or discharge of employees. Following the strike,
the unions made a request for contracting information arguing that the placement of strikers on
a preferential hire list was the equivalent of a layoff, making the information request pertaining to
the contract relevant under the contracts subcontracting language. In concluding the
information was relevant under said provision it was stated it was not the Board’s job to 20
determine whether the unions’ contractual position was correct. Rather, that was for the
arbitrator. It was only the Board’s role to facilitate the unions’ acquisition of the information for
the unions to determine whether the further processing of their grievances over the dispute was
warranted. However, in addition to the contractual dispute it was noted that the unions have
another duty stating the “the unions are obliged to police the Respondent's actions to assure 25
that employment opportunities, including promotional opportunities, within the appropriate units
are not foreshortened or curtailed by actions of the Respondent. Thus, however legitimate the
Respondent's motives, it is conceivable that the subcontracting of work performable within the
unit might constrict the possibilities of employment within the unit, including the possibilities of
promotion of unit employees.” It was stated in Ohio Power and Light that:30
It is consequently concluded that the information requested by the Charging Party in its
letters to the Respondent of February 10 and April 16, 1974, is relevant and essential to
the locals' performance of their obligations as bargaining representatives in three
respects: (1) Protection of and effectuation of the rights of employees on the preferential 35
hiring list in accordance with the principles of Fleetwood Trailer, (2) protection and
maintenance of work opportunities and promotion possibilities within the appropriate
unit, (3) determination as to the merit, under the contract, of the grievances filed by
employees in February, March, and April relating to employees replaced or displaced as
a consequence of the strike. Id. at 994.40
In the instant case, Respondent began studying in earnest in August 2011 retail
applications for the sale of postal products as performed in Europe, Canada, Australia, and New
Zealand. Code testified this is the way a significant portion of those domestic populations
receive their retail postal services. Thus, Respondent began to develop a sustainable strategy 45
for a retail network outside of its post offices. Code testified that in January 2012 Respondent
released a request for information to potential retail partners. It went to 75 of the largest
retailers in the country such as the largest big box stores, grocery chains, drugstores, and office
superstores. In August 2012, Staples contacted Respondent expressing an interest. Code
testified Respondent settled on a strategy in about September 2012, and from September 2012 50
to about January 2013, they were able to do a competitive analysis, market research, and
JD–48–14
27
testing to verify their course of action. Code testified Respondent used a pilot plan because any
rollout would have significant cost consequences to the organization and if it rolled out and did
not perform to the level of their assumptions then it would be a bad decision to engage in it
on a larger scale.
5
Code testified that prior to beginning the pilot with Staples, R e s p o n d e n t , o n
D e c e m b e r 1 4 , 2 0 1 2 , submitted a s t a t e m e n t to SIAG, a committee of Respondent’s
officials described in the parties’ collective-bargaining agreement. The statement to SIAG
contained an outline o f w h a t R e s p o n d e n t w a s t r y i n g t o d o w i t h t h e r e t a i l
p i l o t . The attached memo states, in part:10
The Approved Shipper Plus Program aims to establish USPS customer access
points in leading national and regional retailer’s store locations nationwide. In order to
determine whether to launch the full-scale program, USPS will conduct a program pilot
beginning in April 2013 at 200 retail locations and select markets. The pilot will enable 15
USPS to collect customer, transactional, and operational data to measure the impact
and validate operational and financial assumptions before potentially launching the
full-scale program.
By letter dated December 18, 2012, SIAG wrote that SIAG had determined that the retail 20
program as described “will not have a significant impact on the bargaining unit.”
By letter dated March 14, from Devine to then Union President Guffey, Devine stated,
“the Postal Service intends to initiate a pilot of the Partner Post program, to establish customer
access points in leading national and regional retailer’s store locations to offer Postal Service 25
products and services. The pilot is scheduled to begin in April/May at approximately 185
locations and select markets and end after approximately one (1) year. The purpose of the pilot
will be to collect customer, transactional, and operational data to measure the test impact and
validate operational and financial hypotheses. It is anticipated that the information from this
data will allow the Postal Service to determine the suitability of possible further expansion. No 30
significant impact to the bargaining unit is anticipated.”
By letter dated October 2, Devine wrote Duffey that, this was a follow up to the March
14, letter. He stated Respondent plans to launch a one-year pilot program at 84 Staples
locations in five media markets, which include Atlanta, Pittsburgh, San Diego, San Francisco 35
and Worcester. Customers of the participating Staples stores will have access to a simplified
product portfolio containing our most popular products and services. Products and services
offered will include: stamps, standard post, priority mail, priority mail international, first-class
mail, global expressed guaranteed, priority mail express, priority mail express international, first-
class mail international, and first-class package international service. It was stated that “a soft 40
launch is planned for mid-October with Grand Openings scheduled on or about November 15.
There is no anticipated impact to the bargaining unit at this time.” Code testified the Staples
pilot model includes weighing small packages and selling stamps. He testified the Staples
service is a simplified version of the service Respondent provides customers at its post offices.
He testified Respondent wanted to create a simple portfolio that would be easy to transact for 45
retailers and their employees and would still cover the majority of transactions needed in the
marketplace. He testified there are a lot of postal transactions conducted at the Staples stores.
On November 22, the Union sent a 27 paragraph information request to Respondent the
subject of which was entitled, “USPS October 2, 2013 Notice Regarding USPS Plans to Launch 50
a One Year Pilot Program of Partner Post at 84 Staples Locations in 5 Media Markets.”
JD–48–14
28
Paragraphs 1, 2, 3, 4, 9, 11, 16, 17, 19, and 25 of the information request remain in contention
for this proceeding. The Union cited collective-bargaining agreement articles 17 and 31 as the
basis of its request, of which article 31 was placed into evidence as part of a joint exhibit by the
parties. Article 31 of the agreement provides in part, “The Employer will make available for
inspection by the Union all relevant information necessary for collective-bargaining or the 5
enforcement, administration or interpretation of this Agreement, including information necessary
to determine whether to file or to continue processing of a grievance under this Agreement.” It
also states, “Nothing herein shall waive any rights the Union may have to obtain information
under the National Labor Relations Act, as amended.”
10
By letter dated January 2, 2014, Devine gave a substantive response to the Union’s
November 22 information request. Devine argued, in part, that because the Staples program is
a pilot program, “the information requested in your letter does not appear to be relevant or
simply premature in light of the one-year pilot.” Moreover, Devine went on to specifically
request the relevance of paragraphs 1, 2, 9, 11, 17, and 25 of the Union’s request, with Devine 15
citing Article 31.3 of the collective-bargaining agreement.
By letter dated January 17, 2014, Dimondstein responded to Devine’s January 2, 2014
letter. Concerning, Devine’s assertion that the requested information was not relevant or
premature, Dimondstein stated, “Nowhere does the National Agreement exempt so-called 20
“pilots” from application of the National Agreement. Staples employees are now clearly
performing bargaining unit work and more will do so in the future. There also possible violations
of Article 32 and memoranda of understanding addressing contracting out and the preservation
and return of bargaining unit work; handbooks or manuals MOUs addressing Contract Postal
Units (CPUs); Article 5 (unilateral changes in compliance with law); and perhaps other contract 25
provisions, depending on what the APWU is able to discern after reviewing the requested
information. The Union is entitled to information that relates to potential grievances and not only
actual grievances.” Dimondstein offered further clarification as to paragraphs 9 and 10 of the
Union’s request for discounts that the Postal Service will provide Staples and the range of prices
for postal products. He stated, “First, discounts may have the result of incentivizing Staples to 30
the detriment of Postal Service retail facilities and employees who staff them. An example
would be if Staples offers “points” or other rewards under customer loyalty programs that will
include purchases of postal products and services. Please confirm if this is so and if so, and
provide details. Second, certain prices and discounts may violate provisions of the Postal
Reorganization Act and therefore violate Article 5. The Postal Service says that its products 35
and services will be sold at published prices. Similar to the clarification in the preceding
paragraph, the Postal Services compensation to Staples (paragraph 11) may similarly
incentivize Staples to the detriment of Postal Service retail facilities and the employees who
staff them.” Diamondstein also stated, “As for the Union’s request for information about training
Staples employee training (paragraphs 17, 18, 19 and 20), this information will help the Union 40
understand whether the safety and security of the mail as mandated in statutes and regulations
is being safeguarded. Because Staples is a receptacle for mail, the safety of postal employees
could be compromised if Staples employees are not adequately trained on mailable matter. If
postal employees are providing training or assistance to Staples employees, their working
conditions are affected.45
By letter dated January 24, 2014, the Union initiated a “National Dispute” concerning
“Staples-Partner Post”. The letter stated that:
The Postal Service has embarked on an implementation of the program with Staples 50
in excess of 80 of its stores, under a National Sales Agreement (NSA). The stores will
JD–48–14
29
contain post offices in which most postal products will be sold to the public. These post
offices will use equipment provided by the Postal Service. City letter carriers will pick up
the mail from Staples post offices.
The APWU has asked for information about the arrangement with Staples, including
the NSA, but to date the Postal Services provided only the Partner Post PowerPoint, the 5
Request for Information (RFI) addressed to “potential partners for the U.S. Postal
Service Retail Partnership Program,” and a chart purporting to be the proximity of the
Staples stores to postal facilities. The Union is entitled to an adverse inference, that the
information requested, if produced, would have supported the Union’s allegations and
been adverse to the Postal Services allegations.10
This program constitutes contracting out in violation of Article 32, including but not
limited to the Union’s right to advance notification and to meet and be involved in early
stages of consideration of contracting out, and the following memoranda of
understanding in the National Agreement: “Contracting or Insourcing of Contracted
Services” (page 369), “Consideration of National Outsourcing Initiatives” (P 369-370).15
The work being done at Staples stores’ is work that must be assigned to the
bargaining unit under Article 1.5 and the “New Positions and New Work” MOU (page
298).
To the extent that the Postal Service considers these Staples post offices to be
Contract Postal Units (CPUs), the Postal Service failed to treat them in accordance with 20
handbooks and manuals addressing CPUs in violation of Article 19. The Postal Service
also failed to meet to discuss and consider options for addressing the provision of retail
services in those locations” in accordance with the “Contract Postal Units” MOU (pp.
371-372).
The transportation of mail matter from Staples stores to postal facilities is of mail in 25
bulk that must be assigned to the Motor Vehicle Service craft.
I find that the Union has established the relevancy of the requested disputed information.
Code’s testimony reveals that Respondent has been studying a retail expansion program since
August 2011. Thus, when on October 2, 2013, Respondent notified the Union that Respondent 30
intended to launch a one year pilot program at 84 Staples stores, Respondent had already
spent substantial time and effort studying the implementation of such a program. Moreover, the
pilot spanned five states in major population areas, and Respondent was having Staples
employees perform a broad array of bargaining unit work creating alternative retail outlets
through Staples performing many of the central functions of bargaining unit employees 35
performed at Respondent’s post offices. The Staples stores were in very close proximity to
Respondent’s locations where bargaining unit employees were performing essentially the same
work. While Devine stated in his October 2 letter that there was no anticipated impact on the
bargaining unit at this time. He did not inform the Union that the SIAG committee had met and
determined there was no significant impact as per Article 32(B) of the collective-bargaining 40
agreement. Moreover, Tabbita credibly testified that he was not informed of such a
determination of the SIAG committee until April 1, 2014, the opening day of the unfair labor
practice trial. This information is important because, Tabbita’s testimony, which was agreed to
by Devine, was that the Union could dispute through the parties’ grievance procedure a SIAG
committee determination of no significant impact pertaining to subcontracting. 45
In Mi Pueblo Foods, 360 NLRB No. 116 (2014), the Board majority reversed the judge in
a case involving a unilateral change pertaining to subcontracting and found a violation by the
respondent’s failure to bargain. The judge had found there was no significant impact by the
subcontracting on bargaining unit work because no unit drivers were laid off and the drivers' 50
wages and hours were not significantly affected. The Board stated, “We disagree with the
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30
judge's conclusion.” The Board found that “The judge's failure to find that the Respondent
violated its duty to bargain when it unilaterally eliminated the cross-docking derived from the
incorrect premise that the General Counsel must show an immediate impact on the drivers'
terms and conditions of work. The Board citing precedent stated the Board has held that when
bargaining unit work is assigned to outside contractors rather than bargaining unit employees, 5
the bargaining unit is adversely affected. It was stated the bargaining unit is adversely affected
whenever bargaining unit work is given away to nonunit employees, regardless of whether the
work would otherwise have been performed by employees already in the unit or by new
employees who would have been hired into the unit.
10
In the instant case, Tabbita testified it is the position of the Union that the Staples pilot
program was having a significant impact on bargaining unit work at the time of the hearing. He
testified it was not the Union’s view that they had to wait for SIAG to declare a particular
program by Respondent as having a significant impact before the Union could request
information about it, or file a grievance over the program. He testified the Union can file a 15
dispute when they have a concern that the contract is violated as to an outsourcing that should
not have happened and/or the Union should have received notice of it. He testified the Union is
“free to grieve that the contract's been -- violated. One, we didn't get notice, and two, it was
inappropriate for whatever reasons we can justify.” Tabbita testified in determining whether
there is significant impact, the Union looks at the potential for growth in the bargaining unit and 20
the potential for negative impacts in the bargaining unit. He testified they would be looking at
the number of transactions, the volumes of packages and so on, to see if the Union is involved
in the Staples operation, are they getting more work, and if the bargaining unit is not involved in
the Staples operation, what are the negative impacts that might occur.
25
Here the record revealed that a large number of the 80 to 84 Staples stores used in the
pilot program were located less than a mile from the nearest post office. Tabbita testified that
some of the locations were literally across a parking lot or across a street. He testified the
Union’s concern is that the traffic to that Staples store may be pulling transactions away from the
Postal Service retail unit. Tabbita testified Respondent has a point-of-sale system which 30
records every transaction. Respondent is able to take the time by day, by hour, and multiply out
the number of transactions times the allotted time, which allows Respondent to create
something called earned hours showing productive time for those hours. Respondent attempts
to bring staffing time down as close as they can to their earned hours. If the bargaining unit
loses transactions to Staples stores, they lose time, and ultimately the staffing mechanism is 35
going to take hours out of the unit. Tabbita testified sometimes this will result in people leaving
the station or branch, and in some case this may help justify consolidating stations or branches.
In fact, Code’s testimony reveals the number of posts offices has declined by about 1600 units
from the year 2000 to the year 2013.
40
Thus, whether or not the SIAG committee was correct in its assessment that the ongoing
contracting to Staples has a significant effect on the bargaining unit, the requested information
was relevant to the Union to decide whether to dispute such a determination, as well as to the
Union’s ability to generate information and studies to argue on behalf of the unit employees that
some or all of the disputed work was less expensive, the same cost, or safer if performed by 45
current in house employees with regard to whether Respondent continued the pilot or decided
to expand it. For as the Union argues Article 32 states the Union will be given advance notice at
the national level when subcontracting which will have a significant impact on the bargaining
unit is being considered and the Respondent will meet with the Union in developing the initial
comparative analysis. Here, the evidence reveals the Respondent was using information 50
obtained from the pilot to decide whether to expand the subcontracting from 80 Staples stores
JD–48–14
31
to 1300 of those stores. Thus, there is clearly an argument contracting with a national impact
on the unit was being “considered” even assuming arguendo it was not already taking place with
the existing pilot. There are also provisions in the “Consideration of National Outsourcing
Initiatives” MOU relating to the Union’s involvement “at an early stage of the process” which has
created an area of dispute between the parties as to the time of the Union’s involvement in the 5
process should begin. Here, the record indicated that as of March 2014, if not sooner, Staples
had indicated a desire to expand the pilot program, and if the program was expanded, as per
Code’s testimony it would have been expanded to some 1300 Staples locations. Thus, the
requested information was relevant on several points, including one to dispute any SIAG
determination that the ongoing program at 80 or more Stapes stores in five states stores did not 10
constitute a significant impact on the bargaining unit. Two, so the Union would have maximum
time to consider and develop alternate proposals to Respondent’s possible plan to expand the
program to 1300 locations at a time when the Union’s input had the chance of greatest impact in
preserving bargaining unit positions, current and future. Three, the MOU regarding,
“Contracting or Insourcing of Contracting Service,“ provides that “It is understood that if the 15
service can be performed at a cost equal to or less than that of the contract service, when a fair
comparison is made of all reasonable costs, the work will be performed in-house.”10 Four,
Article 31 of the collective-bargaining agreement gave the Union the right to request information
to in essence police the agreement by deciding whether to file a grievance. This article allows
the Union to request information to decide whether the agreement has been violated and/or to 20
file a grievance under the subcontracting provisions mentioned in this paragraph at a minimum.
Thus, I find the Union’s November 22 information request citing Article 31 to Respondent
giving it the right to obtain all relevant information necessary for collective-bargaining or the
enforcement, administration or interpretation of this Agreement, including information necessary 25
to determine whether to file or to continue processing of a grievance under this Agreement was
sufficient to place Respondent on notice of the relevance of the requested information,
particularly given the sophistication of the parties as well as Devine’s admission that the Union
has a right to grieve the initial SIAG determination as to the impact of the disputed contracting.11
Given the subcontracting Article and MOU’s in the contract, I find that the relevance of the 30
requested evidence was self evident, but if not the request was explained by the citations of

10 In this regard, in his March 2013, award, submitted into evidence by Respondent,
arbitrator Goldberg concluded that the referenced MOU was not limited to Article 32.1.B
situations, that is, those having a significant impact on bargaining unit work. Thus, the Union
has an argument that the Staples pilot program was violative of the contract, if it can be shown
that the cost would have been equal or less if the work at Staples was performed in house,
regardless of whether it is concluded that the pilot program had a significant impact on the unit.
Arbitrator Goldberg also concluded the Union was entitled to estimates in making the cost
comparison calculations.
11 While Article 32.1.B refers to a comparative analysis be generated in the subcontracting
process, and that analysis is also mentioned in one of the contractual MOUs, nothing in the
collective-bargaining agreement limits the Union’s statutory right to request information, or
otherwise limits the timing of that request. See, Ormet Aluminum Mill Products, 335 NLRB 788,
804-805 (2001); King Broadcasting Co., 324 NLRB 332, 337 (1997); Postal Service, 308 NLRB
358, 359 (1992); Chesapeake and Potomac Telephone Co., 259 NLRB 225, 229 (1981), enfd.
687 F.2d 633 (2nd Cir. 1982); and Globe-Union, Inc., 233 NLRB 1458, 1460 (1977). This is
particularly so when Article 31 is referenced stating, that “Nothing herein shall waive any rights
the Union may have to obtain information under the National Labor Relations Act, as amended.”
JD–48–14
32
Article 31 in the request.12 In this regard, the subcontracting was ongoing at the time the Union
filed its information request, and it was obvious, giving the subcontracting clause and the MOU’s
in the collective-bargaining agreement, that the Union was requesting the information to
determine if those provisions had been violated, to police the agreement and to decide whether
to file a grievance.5
Moreover, the Union did not stop with its November 22 letter in terms of a relevancy
explanation for the information sought. When Respondent subsequently requested an
explanation of the relevance of the information Respondent was given a further explanation in
Dimondstein’s January 17, 2014, letter where he explained that “pilot” programs are not 10
exempted from the national agreement, that Staples employees are now performing bargaining
unit work and more will do so in the future, and where he stated there were possible violations
of Article 32 and MOUs addressing contracting out and the preservation and return of
bargaining unit work; handbooks or manuals MOUs addressing Contract Postal Units (CPUs);
Article 5 (unilateral changes in compliance with law); and perhaps other contract provisions, 15
depending on what the APWU is able to discern after reviewing the requested information.
Dimondstein reiterated that the union is entitled to information that relates to potential
grievances and not only actual grievances. In fact, on January 24, 2014, the Union initiated a
“National Dispute” concerning Respondent’s activity with Staples. Therein, it is alleged,
concerning Respondent’s program with Staples, that:20

12 Where the circumstances surrounding an information request are reasonably calculated to
put an employer on notice of a relevant purpose which the union has not specifically spelled out,
the employer is obligated to divulge the requested information. Brazos Electric Power
Cooperative, Inc., 241 NLRB 1016, 1018-1019 (1979), enfd. 615 F.2d 1100 (5th Cir. 1980). The
sufficiency of the request is not determined solely from the request itself, but is judged in light of
the entire pattern of facts available to the employer. Ohio Power Co., 216 NLRB 987, 990 fn. 9
(1975). See also, Pulaski Construction Co., 345 NLRB 931, 936. Here, the cited article in the
collective-bargaining agreement gave the union the right for information to police the
agreement. The Respondent had recently notified the Union of Staples subcontracting. Devine
admitted the Union had the right to challenge Respondent’s determination of no significant
impact. I find that Devine was aware or should have been aware based on the circumstances
before him of the relevance or potential relevance of the Union’s November 22 request at the
time he received it. The circumstances in Disneyland Park, 350 NLRB 1256 (2007), cited by
Respondent are inapposite to those here. In Disneyland Park, the subcontracting provision only
precluded the respondent from subcontracting if it resulted in the “termination, layoff, or failure
to recall unit employees from layoff,” and the union there never claimed that any of those events
took place rendering the requested information as not relevant to any contractual term. Here,
for the reasons stated the contractual subcontracting provisions were much more expansive and
subject to obvious and legitimate dispute between the parties. Similarly, I do not find that
Respondent’s citation to United States Postal Service, 352 NLRB 1032 (2008), fn. 1, requires a
different result. There, the Board refused to rely on the judge’s interpretation of Article 32 of the
collective-bargaining agreement, and conclusions regarding confidentiality. Rather, the Board
adopted the judge’s finding that the Union failed to establish the relevancy of an unredacted
form where it purportedly sought the information contained therein to compare it to that on
another form which the judge concluded did not exist. The judge also found that the Postal
Service furnished the union with alternate information with which it could perform the analysis it
sought to do. These are circumstances and facts not present here. I also note this case cited
by Respondent issued by a two member Board panel, which was later found not to be fully
constituted.
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This program constitutes contracting out in violation of Article 32, including but not
limited to the Union’s right to advance notification and to meet and be involved in early
stages of consideration of contracting out, and the following memoranda of
understanding in the National Agreement: “Contracting or Insourcing of Contracted
Services” (page 369), “Consideration of National Outsourcing Initiatives” (P 369-370).5
The work being done at Staples stores’ is work that must be assigned to the
bargaining unit under Article 1.5 and the “New Positions and New Work” MOU (page
298).
To the extent that the Postal Service considers these Staples post offices to be
Contract Postal Units (CPUs), the Postal Service failed to treat them in accordance with 10
handbooks and manuals addressing CPUs in violation of Article 19. The Postal Service
also failed to meet to discuss and consider options for addressing the provision of retail
services in those locations” in accordance with the “Contract Postal Units” MOU (pp.
371-372).
The transportation of mail matter from Staples stores to postal facilities is of mail in 15
bulk that must be assigned to the Motor Vehicle Service craft.
I find the Union’s statements in its November 22, and the nature of the information
requested, given Respondent’s knowledge of the collective-bargaining contract, was sufficient to
place Respondent on notice that the Union by its information request was seeking relevant20
and/or potentially relevant under the Board’s discovery standards for requested information to
police the parties’ agreement and to decide whether to file a grievance. See, Disneyland Park,
350 NLRB 1256 (2007). In assessing the relevance of requested information a union claims is
necessary to investigate whether an employer has violated a collective-bargaining agreement,
“the Board does not pass on the merits of the union's claim… thus, the union need not 25
demonstrate that the contract has been violated in order to obtain the desired information.”
Island Creek Coal Co., 292 NLRB 480, 487 (1989), enfd. 899 F.2d 1222 (6th Cir. 1990).
Information requested to enable a union to assess whether a respondent has violated a
collective-bargaining agreement by contracting out unit work and, accordingly, to assist a union
in deciding whether to resort to the contractual grievance procedure, is relevant to a union's 30
representative status and responsibilities. See, AK Steel Corp., 324 NLRB 173, 184 (1997); and
Island Creek Coal Co., supra at 490. The nature of the information sought here was relevant to
the Union’s policing its collective-bargaining agreement, and thereafter for the prosecution of its
January 24, 2014 grievance. See, National Grid USA, 348 NLRB 1235 (2006) and Ormet
Aluminum Mill Products Corporation, 335 NLRB 788 (2001). Moreover, Respondent’s initial 35
assertion of not knowing the relevance of the requested information was certainly cured by the
pronouncements contained in Dimondstein’s January 17 letter, and the positions maintained in
the Union’s January 24 grievance. However, I find the relevance of the requested information
was apparent at the time of the Union’s November 22 request. Accordingly, I find the
Respondent was aware of the relevance of the information listed paragraphs 1, 2, 4, 5, 9, 11, 40
16, 17, 19, and 25 of the Union’s November 22 information request at the time it received the
request.13

13 I also note Devine did not specifically dispute the relevance of paragraphs 4, 16, and 19 of
the Union’s request in Devine’s January 2, 2014, letter to Dimondstein providing Respondent’s
response to the request. Moreover any doubt as the relevance of the any of the disputed
information was explained by the union officials during their testimony at the hearing. See,
National Grid USA Service Company Inc., 348 NLRB 1235, 1247 (2006); Ormet Aluminum Mill
Products, 335 NLRB 788, 802 (2001); Barnard Engineering Co., 282 NLRB 617, 620 (1987); Oil
Workers Local 6-418 v. NLRB, 711 F.2d 348, 363 fn. 40 (D.C. Cir. 1983) and Ohio Power Co.,
216 NLRB 987, 990-991 fn. 9 (1975), enfd. 531 F.2d 1381 (6th Cir, 1976).
JD–48–14
34
2. Respondent’s defenses to the production of the requested information
Since I find the General Counsel has established the requested information is relevant
the Respondent must produce it, unless it raises and substantiates a legitimate defense to its
production. Respondent has raised defenses discussed here that the production of some of the 5
information is burdensome and that some of it constitutes confidential information, or both.14
(a) Respondent’s burdensomeness defense
In Conditioned Air Sys., 360 NLRB No. 97, slip op. 4 (2014), the Board approved the 10
following concerning an alleged burdensome request for information:
If an employer declines to supply relevant information on the grounds that it would be
unduly burdensome to do so, the employer must not only timely raise this objection with
the union, but also must substantiate its defense. Respondent has done neither. 15
Respondent never advised the union that its request was unduly burdensome, and never
sought clarification from the union in order to narrow the request, Pulaski Construction
Co., 345 NLRB 931, 937 (2005). There is no doubt that production of the information
may impose strains on an employer, but that consideration does not outweigh the
union's right to the information requested. H.J. Scheirich Co., 300 NLRB 687, 689 20
(1990).
Here the Union made its request for information on November 22. Respondent did not
give a substantive response to that request until January 2, 2014. In Devine’s response, he
stated pertaining to paragraphs 1, 2, and 9 that the “request appears to be overly broad and 25
unduly burdensome. Please specify the information that the union is seeking. Once a response
has been received by the Postal Service from the APWU, the information request will be
revisited.”
I do not find merit to Respondent’s burdensomeness defense. As to paragraph 1, the 30
Union requested a “Copy of any/all agreements between the Postal Service and Staples
regarding Staples offering postal products and services at Staples locations.” I find the Union’s
request to be quite specific, and in need of no further explanation. Respondent’s asking for a
further explanation serves to undermine its position in refusing to provide the information in the
first place. In fact, Respondent eventually tendered a copy of its agreement with Staples, 35
shortly before the hearing which took place on April 1, 2014 to the Union, although it was a
heavily redacted version. Respondent raised no testimony at the hearing concerning its
burdensome defense concerning the production of that agreement, nor did it claim there were
any other agreements with Staples that it did not produce which would be a burden to produce.
Devine addressed the burdensome argument to Dimondstein in his letter of January 31, 2014, 40
but he did not argue redacting the Staples agreement constituted a burden rather he argued
“Many of the requests are for ‘any and all’ agreements, solicitations, and correspondence with

14 In addition to the two defenses discussed in this section of the decision, Respondent
raised three other defenses in its answer to the complaint, two pertaining to relevancy which
were parenthetically rejected in the prior section of this decision wherein I concluded relevancy
of the requested information has been established. Respondent’s other argument that the
Union refused Respondent’s offer to bargain over the information request is discussed in a
subsequent section of the decision.
JD–48–14
35
Staples which lack specificity as to type, subject matter, information needed, and time period. A
more-specific request should presumably address the concern we raise.” Thus, in the letter,
Devine did not mention any concern about the costs of a review or redaction of documents by
Respondent of potential confidential information. I find that Respondent failed to establish a
burdensome defense for the information sought in paragraph 1 of the Union’s request.15 5
In paragraph 2 of the Union’s request it asked for “Copy of any/all correspondence
between the Postal Service and Staples regarding Staples offering postal products and services
at Staples locations.” Contrary to Devine’s comments in his January 31, 2014 letter, I find the
Union’s request was specific as to type and subject matter. In fact, I have concluded that 10
Respondent knew exactly what the Union wanted but was merely opposed to providing the
Union with the information. Moreover, by Code’s testimony the information sought by the Union
was somewhat time limited in that he claimed Respondent did not start working on a retail
services program until August 2011, and that it was not until September 2012 that Respondent
decided to test the concept. Code testified in January 2012 Respondent released a request for 15
information to potential retail partners. Thus, from Code’s description the time period of Staples
involvement with Respondent was not over that great a duration, and if it was over a greater
time than Code described, Respondent neglected to put that into evidence in support of its
burdensomeness defense.
20
Devine testified he met with Code in preparation of Devine’s January 2, 2014, response
to the Union’s November 22 information request. Concerning the Union’s request for
correspondence with Staples, Devine testified a small team of people from Respondent were in
touch with Staples and that it was his understanding that it was about three or four people over
a term of several years. Devine testified he was told that the majority of correspondence was by 25
email. Devine testified he did not recall the number of emails or correspondence involved, but
testified he was informed of it at one point. Code testified the correspondence is accessible, but
the nature of the correspondence is that it covered lot of sensitive data, as there is a lot
of information about contract discussions. He testified there are potentially thousands of
emails, if you look at everyone who participated. Code testified that conservatively there are 30
probably at least 15 to 20 postal employees in some capacity across the organization that
has contributed in some meaningful way to the discussion with Staples. He testified the
information contained in the emails is sensitive, in that there are things that went back and
forth about the Staples contract, how they were structured, what the discounts would be for the
products and services, market initiatives, how they were going to target marketing, how Staples 35
marketing infrastructure works. He testified there was proprietary information Staples is sharing
with Respondent, and would have an impact if that was to become public. Code testified the
emails themselves would not be hard to retrieve but taking the time to review them to determine
what is confidential is a significant problem. Code testified it is beyond just review because
making sure there is not a material breach of the agreement with Staples concerning 40
information Staples provided in good faith that Respondent will not disclose information as to
how their operations works. Code testified that as to information requested in paragraph 4 there

15 In fact, by letter dated December 4, to Dimondstein, Devine stated “you shall be notified if
this request requires remittance on the part of the” Union “for photocopies and or time spent
processing the information.” Yet, as of the time of the hearing, Respondent had never bothered
to notify the Union of any specific costs in obtaining the requested information further
undermining any legitimate claim that it was concerned about the purported burdensome nature
of the Union’s request.
JD–48–14
36
are no other concerns other than what he stated pertaining to paragraph 2. He testified it is just
a distinction between the programs, and they are named differently.
First, in his January 2, 2014, response, Devine did not raise a burdensomeness
argument concerning paragraph 4 of the Union’s request. Second, the Union only asked for 5
correspondence directly between Staples and Respondent, not for internal emails between
Respondent’s officials, and Devine’s testimony that only three or four of Respondent’s
employees communicated directly with Staples was not contradicted by Code. Code admitted
the emails requested by the Union would not be hard to retrieve, but he expressed a concern of
the time needed by Respondent’s officials to review the emails as to whether they contained 10
confidential information. However, the Union’s request had been outstanding since November
22, 2013, yet by April 1, 2014, Respondent still had not gathered the requested emails, which
Code admitted would not have been a difficult task. Code’s testimony further supports my
conclusion that the Union’s request was specific enough to alert Respondent of precisely what
the Union was looking for. Moreover, Respondent never until the time of Code’s testimony 15
specifically alerted the Union of its concerns about a cost of a review of the correspondence,
bothered to make a determination of what those costs would be, or requested the Union to
contribute to those costs. Thus, I do not find that Respondent’s burdensomeness defense was
made in good faith. Rather, it did not want to provide the requested materials and was throwing
straw arguments as roadblocks in the way for the Union to obtain them. I would also find that 20
the Union should not be required to contribute to the costs of Respondent’s review of its own
documents before tendering them to the Union. Respondent had a collective-bargaining
agreement with the Union prior to entering its relationship with Staples. It knew it had certain
responsibilities to the Union under that agreement and under the Act, which are equal to or of
greater import than any private and subsequent agreement it entered with Staples. These are 25
part of Respondent’s costs of entering a third party arrangement, which it knew could be
challenged by the Union. I do not find that the Union should have to absorb the costs
Respondent accrued for entering into a third party contract, or for the cost of Respondent’s
officials time of reviewing documents to which the Union is statutorily entitled in an effort to
sanitize them before presenting them to the Union.30
I find the information requested by the Union in paragraph 9 of its request pertaining to
discounts provided to Staples was specific and self explanatory. Respondent has raised no
argument in support of its burdensomeness claim pertaining to that information put forth in
Devine’s January 2, 2014, letter. Accordingly, I have considered and rejected Respondent’s 35
burdensomeness defense pertaining to any and all of the information requested by the Union on
November 22, 2013.16
b. Respondent’s confidentiality defense
40
Respondent also argues that certain of the requested information is confidential
information as a defense to its disclosure. In Howard Industries, Inc., 360 NLRB No. 111, slip
op. at 2 (2014), the Board stated:

16 To the extent Respondent attempted to establish a burdensomeness defense at the
hearing concerning the request in paragraph 4, I find that argument to be never previously
raised to the Union, and untimely here. Moreover, substantively, I reject the argument for the
same reasons I rejected Respondent’s burdensomeness arguments with respect to paragraph 2
of the request.
JD–48–14
37
When a union requests relevant but assertedly confidential information,[FN3] the Board
balances the union's need for the information against any “legitimate and substantial
confidentiality interests established by the employer.” Detroit Edison v. NLRB, 440 U.S.
301, 315, 318-320 (1979). The party asserting confidentiality has the burden of proving
that it has a legitimate and substantial confidentiality interest in the information sought, 5
and that such interest outweighs its bargaining partner's need for the information.
Washington Gas Light Co., 273 NLRB 116, 116 (1984); Northern Indiana Public Service
Co., supra at 211. When a party is unable to establish confidentiality, no balancing of
interests is required and it must disclose the information in full to the requesting party.
Detroit Newspaper Agency, 317 NLRB 1071 (1995); Lasher Service Corp., 332 NLRB 10
834, 834 (2000). See generally Bud Antle, 359 NLRB No. 140, slip. op at 9 (2013) (union
grieving subcontracting of unit work entitled to requested information on contracts,
production, and locations where work performed, etc., where employer failed to
substantiate claim that information was trade secret and proprietary); Bridge, Structural
& Ornamental Ironworkers Local 207 (Steel Erecting Contractors), 319 NLRB 87, 91 15
(1995) (union that failed to establish that requested information on apprentices' wages
and dues was proprietary was ordered to disclose information).
Conversely, where a claim of confidentiality is adequately established, it may be a
valid basis for declining to fully produce the requested information. However, the party
asserting this confidentiality claim cannot simply refuse to furnish the information. 20
Rather, it has a duty to come forward with an offer to accommodate the request and
engage in bargaining to seek a resolution that addresses both parties' needs. See Tritac
Corp., 286 NLRB 522, 522 (1987); Pennsylvania Power Co., 301 NLRB 1104, 1105-
1106 (1991).
* * *25
Confidential information is limited to a few general categories, including information
which would reveal substantial proprietary information, such as trade secrets. The
Southern New England Telephone Co., 356 NLRB No. 62, slip op. at 7 (2010). Trade
secrets include “formulas, devices, or compilations of data, reasonably calculated to
provide their possessor with some business advantage over competitors[.]” Borden 30
Chemical, 261 NLRB 64, 82 (1982), enfd. sub nom. Oil, Chemical & Atomic Workers
Local Union No. 6-418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983). Id. at 2 fn. 317
In Pulaski Construction Co., 345 NLRB 931, 937-938 (2005), the following was stated:
35
If it is determined that the information sought to be protected is confidential, the issue
then becomes whether the defense was timely raised by the employer so that the parties
could attempt to seek an accommodation of the employer's confidentiality concerns. It is
not enough that an employer raise a confidentiality concern; it must then come forward
with some offer to accommodate both its concern and its bargaining obligation. 40

17 In Good Life Beverage Co., 312 NLRB 1060, 1060 (1993), the Board majority stated,
“Union requests for financial information frequently raise difficult confidentiality questions. See,
e.g., Dubuque Packing Co., 303 NLRB 386 fn. 26 (1991). Indeed, there seems to be no
question that the additional information the union auditors sought on March 29 was confidential
information. Moreover, the auditors requested a great deal of detail. Given the confidential and
detailed nature of the information sought, we find that there were substantial and legitimate
confidentiality concerns regarding that information.”
JD–48–14
38
In Borgess Medical Center, 342 NLRB 1105, 1106-1107 (2004), the Board majority
stated:
Nonetheless, we agree with the judge that the Respondent violated Section 8(a)(5) and
(1) by failing to offer a reasonable accommodation of the Union's request. [FN6] When an 5
employer demonstrates a substantial confidentiality interest, it cannot simply ignore the
Union's request for information. It must still seek an accommodation of its concerns and
the Union's need for the requested information. The burden of formulating a reasonable
accommodation is on the employer; the union need not propose a precise alternative to
providing the requested information unedited. United States Testing Co. v. NLRB, 160 10
F.3d 14, 21 (D.C. Cir. 1998) (citing Tritac Corp., 286 NLRB 522, 522 (1987)).
* * *
We conclude, however, that the Respondent's offer failed to adequately fulfill its duty to
accommodate. As the Union attorney explained during her discussion with the
Respondent's attorney, the Emergency Department director's testimony could not supply 15
the Union with the information it needed to assess Wagner's grievance. The
Respondent did not offer to provide any evidence regarding the specific circumstances
of previous incidents, which would be necessary to determine whether Wagner had in
fact been unfairly treated. (The incident reports, in contrast, provided some description of
what each incident involved.) Certainly, the testimony offered by the Respondent would 20
not establish whether other employees had self-reported and, if not, whether failure to do
so had been treated as a coverup warranting discipline. [FN7] In a letter subsequent to
this conversation between the parties' attorneys, the Respondent simply stated its
willingness to discuss the matter and did not offer any specific accommodation. [FN8] We
therefore conclude that the Respondent did not adequately offer to accommodate its 25
confidentiality interests and the Union's need, as required under Section 8(a)(5) and (1).
FN8. Although the Respondent had, on previous occasions, given the Union summaries
of requested incident reports as well as the names of the employees who filed the
reports, the Respondent made no such offer to accommodate here.
* * *30
Our dissenting colleague asserts that the finding of a violation here requires that we
order the Respondent to provide access to the requested information. That assertion is
incorrect. We have found that the Respondent refused to bargain in good faith because
it refused to offer a reasonable accommodation of the Union's request. If the information
were not moot, the appropriate remedy would have been to order the Respondent to 35
bargain with the Union. If bargaining had not resolved the matter, the Board would then
balance the interests. Metropolitan Edison Co., 330 NLRB 107, 109 (1999) (“The
appropriate remedy in these cases is to give the parties an opportunity to bargain” over
an accommodation). We need not decide these matters because the Union's request is
now moot.40
In U.S. Testing Co., Inc. v. NLRB, 160 F.3d 14, 20-22, (D.C. Cir. 1998), the court stated:
Insofar as the Company contends that the Board erred in failing to find that the
individual claims information for nonunion employees was confidential and, therefore, 45
unavailable to the Union, the Company attempted neither to redact the requested
information nor to explain why that was not possible. Yet it has long been established
that the employer has the burden of seeking to accommodate the union's request for
relevant information consistent with other interests rightfully to be protected. See, e.g.,
Oil, Chemical, 711 F.2d at 362; Tritac Corp., 286 N.L.R.B. 522, 522 (1987). An 50
employer is not relieved of its obligation to turn over relevant information simply by
JD–48–14
39
invoking concerns about confidentiality, but must offer to accommodate both its concern
and its bargaining obligations, as is often done by making an offer to release information
conditionally or by placing restrictions on the use of that information. See, e.g., East
Tennessee Baptist Hosp. v. NLRB, 6 F.3d 1139, 1144 (6th Cir.1993);FN3 E.W. Buschman
Co. v. NLRB, 820 F.2d 206, 208-09 (6th Cir.1987); Safeway Stores, Inc. v. NLRB, 691 5
F.2d 953, 958 (10th Cir.1982).
Having made a reasonable accommodation the employer avoids a Board finding that
it violated § 8(a)(5). See, e.g., Detroit Edison, 440 U.S. at 319-20, 99 S.Ct. 1123;
Buschman, 820 F.2d at 209; Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1098
(1st Cir.1981), abrogated on other grounds, NLRB v. Curtin Matheson Scientific, Inc.,10
494 U.S. 775, 786 n. 7, 796, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990). The rationale for
this placement of the burden derives from the interest in allowing the parties to work out
through an informal process how their corresponding duties and responsibilities can be
met. See H.K. Porter Co. v. NLRB, 397 U.S. 99, 103, 90 S.Ct. 821, 25 L.Ed.2d 146
(1970); NLRB v. Acme Indus. Co., 385 U.S. 432, 437-38, 87 S.Ct. 565, 17 L.Ed.2d 495 15
(1967) ; NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152, 76 S.Ct. 753, 100 L.Ed. 1027
(1956); Oil, Chemical, 711 F.2d at 358; Florida Steel Corp. v. NLRB, 601 F.2d 125, 129
(4th Cir.1979). In other words, the onus is on the employer because it is in the better
position to propose how best it can respond to a union request for information. The
union need not propose the precise alternative to providing the information unedited. Oil 20
Chemical, 711 F.2d at 362-63; Tritac Corp., 286 N.L.R.B. at 522.
* * *
The Company was undoubtedly correct to raise concerns about the privacy rights of
the non-union employees. See United States v. Westinghouse Elec. Corp., 638 F.2d
570, 577 (3rd Cir.1980); cf. FED. R. CIV. P. 35. The Company, however, never 25
attempted to redact the requested information, and never even claimed that it would be
unduly burdensome or costly to do so. Even now the Company makes no claim that
consent or notice or some other means of protecting employees' privacy rights could not
have been achieved. Indeed, the Company had ready access to the information that the
Union sought, specifically in the form of the insurance carrier's “explanation of benefits” 30
statement listing the services, the provider of the services, the date rendered, the total
costs, and the amount payable by the carrier in benefits. Information about health care
costs for employees and their dependents was not, so far as the record reveals,
otherwise available to the Union.
In any event, since the Company made no effort to accommodate the Union's request 35
for individual claims information, by redaction or otherwise, the Board was not required
to decide whether a particular form of accommodation was sufficient and did not unduly
restrict the information that the Union requested. As ordered by the Board, the
confidentiality of their identities as to specific medical claims is protected. See Johns-
Manville Sales Corp. v. International Chem. Workers Local 60, 252 N.L.R.B. 368, 368, 40
1980 WL 12424 (1980).
Thus, the court enforced the Board’s order that the respondent was required to provide the
union with the names of each of its employees and dependents covered by Respondent's
medical and dental plans; and the claims submitted and paid by the respondent for each and 45
every benefit provided for the cumulative policy year through August, 1995. See, U.S. Testing
Co. 324 NLRB 854 (1997).
In determining the remedy for an unlawful refusal to provide requested confidential
information the Board does not always require further bargaining between the parties to reach 50
an accommodation. In Kaleida Health, Inc., 356 NLRB No. 171, slip op. at 9 (2011), the Board
JD–48–14
40
approved the following remedy determined by the judge concerning the provision of requested
information to which it was determined that the respondent employer had established a
confidentiality interest:
With respect to the affirmative portion of the remedy, the Respondent contends that if 5
a violation of Section 8(a)(5) and (1) of the Act is found, the appropriate remedy would
be an order requiring it to bargain over an accommodation with the Union over the
provision of the disputed information, rather than an affirmative order to provide the
requested incident reports and STARS reports. The Respondent relies on Metropolitan
Edison Co., 330 NLRB 107, 109 (1999) in support of its position.10
* * *
In considering the Respondent's argument, I note that in Borgess Medical Center, the
Board reiterated its policy that the burden of formulating a reasonable accommodation is
on the employer and that the union does not have to present any concise alternative to
receiving the information unedited.15
In the instant case, the Respondent's proposed alternative did not meet its burden of
establishing a reasonable accommodation of its interests and the Union's need for the
requested information. In my view, to order further bargaining in the circumstances of
this case would not be an appropriate remedy. The record establishes that the Union
will not make a determination as to whether to arbitrate the grievance of discharged 20
employee Andrews until it has had an opportunity to review the requested information.
There can be an extensive amount of information contained in an incident report form
and such detailed information is necessary to determine issues involving disparate
treatment. With respect to the Union's request for nurses notes regarding fallen patients,
Respondent has not raised any objection to their production in this proceeding. To give 25
the Respondent another opportunity to bargain over the provision of the incident report
forms and STARS reports, which I have found were unlawfully withheld, seems
unwarranted under the circumstances of this case. This is especially so when one
considers that the underlying grievance in this case will not be resolved until this
collateral dispute regarding the provision of information is resolved. The Union has 30
indicated its willingness, consistent with the past practice of the parties, to have the
Respondent redact patients' names from the information it seeks. The inclusion of the
medical record of a patient in the documents will permit the union to crosscheck incident
reports with the nurse's notes regarding the incident, while protecting the anonymity of a
patient. In order to assure the confidential nature of the identities of the patients 35
involved I will provide for the redaction of patients names and other safeguards in my
Order. In ordering the Respondent to provide the requested information under the
conditions as set forth herein, I note that the Board has, in the past, ordered that
confidential information be provided under conditions it specified, rather than order
bargaining over the provision of such information, where the circumstances indicate that 40
JD–48–14
41
such a remedy was appropriate. Pennsylvania Power, 301 NLRB 1104, 1108 fn. 18
(1991).18
I find that Respondent violated Section 8(a)(5) and (1) of the Act by its failure to provide
requested information or its delay in doing so as set forth the in the complaint, as amended. In 5
this regard, on November 22, the Union made a 27 paragraph information request pertaining to
the Staples subcontracting, of which there are currently nine paragraphs in dispute. By letter
dated January 2, 2014, Devine made Respondent’s first substantive response to the
subcontracting. As to paragraphs 1, 2, 4, 9, 11, 17, and 25, Devine stated, “Please be advised
that the documents requested may contain proprietary and/or confidential information; therefore 10
some may be redacted.” Devine did not offer any further explanation as to the asserted
confidentiality with respect to any particular paragraph, nor did he request the signing of a
confidentiality agreement, or offer or to provide the Union a redacted version of the requested
information meeting the Respondent’s asserted confidentiality needs.
15
Dimondstein responded by letter dated January 17, 2014, stating, “blanket claims of
confidentiality are not acceptable. The Postal Service bears the burden of demonstrating to the
Union that it has legitimate and substantial confidentiality concerns. If the Postal Service is able
to do so, the parties may be able to reach an accommodation.” He stated if such an
accommodation takes the form of a nondisclosure agreement, there is no justification for 20
redacting any information, as your letter states the Postal Service may do…”. Thus the Union
indicated a willingness to sign a nondisclosure agreement if Respondent demonstrated a
legitimate and substantial confidentiality concern. Thus, over a month after the Union’s request
for information Respondent had not specified its confidentiality concerns, nor had it offered the
Union a specific accommodation in a way to provide the requested information while meeting 25
Respondent’s purported confidentiality needs.
Devine responded by letter dated January 31, 2014 wherein he requested a meeting “to
discuss potential ways of providing and/or safeguarding the information you request.” Devine
went on to state:30
…..the Postal Service believes that sharing the confidential and proprietary terms of the
Agreement would limit the ability of the Postal Service to negotiate Agreements with
other entities regarding offering Postal products and services in the future and could
have an adverse effect on existing Agreements.35

18 The Board took a similar approach in fashioning a remedy in U.S. Postal Service, 359
NLRB No. 115, slip op. at 4 (2013), although the Court’s decision in NLRB v. Noel Canning, a
Division of the Noel Corp., No. 12-1281, ___ S.Ct. ___, 2014 WL 2882090 (June 26, 2014)
brings into question the current status of the Board’s decision the rationale applied and the
cases cited in U.S. Postal Service are instructive here. There, in fashioning a remedy fitting the
facts of that case the Board stated:
Section 10(c) of the Act authorizes the Board to issue an order requiring a party who has
engaged in an unfair labor practice to “take such affirmative action . . . as will effectuate the
policies of th[e] Act.” The remedial power vested in the Board by this provision is a “broad
discretionary one.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262-263 (1969)
(internal quotation mark omitted); see also NLRB v. Solutia, Inc., 699 F.3d 50, 72 (1st Cir.
2012) (“The Board has wide discretion in selecting remedies.”) (internal quotation marks
omitted).
JD–48–14
42
An example of terms of the Agreement that would limit the Postal Service's ability to
negotiate with other entities are the portions of the Agreement that state which party will
be covering various expenses during the one-year pilot. If this information were to be
released and viewed by other companies or organizations, the Postal Service would be
at a competitive disadvantage to negotiate on various expenses with other partners in 5
the future. In addition, entities with existing Agreements with the Postal Service may
wish to adjust their terms, now or in the future, in a way that adversely impacts the
Postal Service. The Negotiated Services Agreements included as part of the Pilot
Agreement contain restricted and sensitive business information. Negotiated Services
Agreements have not been shared with outside parties in the past. Sharing the terms of 10
the Negotiated Services Agreements would weaken the negotiating position of the
Postal Service with regards to the discounts or incentives given to partners currently and
moving forward. For example, the Negotiated Services Agreements include the
discounts provided to Staples during the one-year pilot. If the discounts provided to
Staples were to be released and viewed by other companies or organizations, the Postal 15
Service would be in a disadvantageous position to negotiate discounts given to partners
in the future.
Furthermore, the Pilot Agreement contains provisions explicitly prohibiting release of
any confidential Information or information relating to the economic terms of the
Agreement without prior approval from Staples. As information, Staples does not 20
approve of the release of the Pilot Agreement or any of the economic terms enclosed
therein.19
Thus, Devine only gave Respondent’s first explanation as to why any of the information
sought in the Union’s November 22 information request was confidential on January 31, 2014, 25
over 2 months after the Union made its information request. Devine and Code admitted that
had Respondent’s SIAG committee determined that the subcontracting had a significant impact
that Respondent would have presented the Union with a copy of the Staples contract, with
Devine adding that Respondent had tendered subcontracting agreements to the Union in the
30

19 Respondent’s contract with Staples has Article 14 “Confidential Information,” which
contains, in part, the following language:
Nothing in this Agreement shall prevent the Party from disclosing information to the
extent that such Party is legally compelled to do so by any governmental or judicial entity
pursuant to proceedings over which such entity has jurisdiction; provided, however, that
such Party shall (a) notify the other Party in writing of the agency’s order or request to
disclose such information, providing, to the extent practicable, at least (redacted) notice
where practical full prior to disclosure,…..
Respondent’s agreement with Staples did not prohibit disclosure of the requested information to
the Union when legally required to do so. Moreover, Respondent entered the agreement with
Staples knowing it had an agreement with the Union concerning subcontracting as well as the
fact that it had a statutory obligation to disclose to the Union certain relevant and/or potentially
relevant information. Those obligations take precedence over any subsequent agreement
Respondent negotiated with Staples or any other third party entity.
JD–48–14
43
past, but always upon the Union’s signing of a confidentiality agreement.20 Yet, as of January
31, 2014, Devine did not offer to provide the Union with a copy of the Staples agreement either
redacted, nor did he provide the Union with a confidentiality agreement the execution of which
they could obtain the unredacted contract.
5
Respondent, even assuming it demonstrated a legitimate confidentiality concern
concerning some of the requested information, failed to offer the Union a specific proposal to
meet those concerns. In the face of this 2 month delay for a response, I find Devine’s January
31, 2014, offer of a meeting did not meet Respondent’s statutory obligations, but could only be
seen by the Union as part of an effort to stall responding to the request. See, Borgess Medical 10
Center, 342 NLRB 1105, 1106-1107 (2004) (where a Section 8(a)(5) violation was found where
offering to discuss an information request did not constitute the offer of a specific
accommodation required by a respondent when raising confidentiality concerns.) See also,
U.S. Testing Co., Inc. v. NLRB, 160 F.3d 14, 20-22, (D.C. Cir. 1998). I note that Respondent
did provide a heavily redacted version of its agreement with Staples in the latter part of March 15
2014, some 4 months after the Union made its request and no explanation was given why this
was not provided at a much earlier date. I find the same considerations are warranted in finding
a Section 8(a)(5) and (1) violation with respect to Respondent’s response to paragraphs 2, 4, 9,
11, and 25 of the Union’s November 22 request. Respondent also raised a burdensomeness
argument with respect to paragraph 2 of the Union’s request, which I previously rejected, and 20
although admittedly it would not have been burdensome for Respondent to gather the requested
correspondence, by the time of the trial which was 4 months after the request, it had failed to do

20 Devine testified he is not familiar with Respondent giving the Union a negotiated service
agreement, which is the nature of the Staples contract, even after the pilot stage. However,
Devine also testified he is not familiar with any other negotiated service agreements for retailers
outside of Staples. Devine testified that, under Article 32, Respondent has provided the Union
with subcontracting agreements. He testified the difference in the subcontracting agreement
with Staples was the nature of the contract. He testified he has never been asked to provide a
negotiated service agreement before but there is nothing otherwise that distinguishes the
Staples contract from the subcontract agreements he has provided to the Union. Devine
testified that he would tend to believe that if Respondent determines that the Staples agreement
is an Article 32 issue that will have significant impact on the bargaining unit, and the Union’ s
request for it is ongoing Respondent would provide the Staples agreement to the Union, subject
to a non-disclosure agreement. Devine testified when he turned over subcontracts in the past
Respondent was able to negotiate a nondisclosure agreement with the Union. Devine testified
when Respondent sends the notice they have made the final decision to subcontract under
Article 32.1.B, which is of significant impact, the letter says, "Awaiting your execution of a non-
disclosure agreement, we have available the comparable analysis." He testified then usually
the Union requests the contract as well, and it is provided subject to a nondisclosure agreement.
Since I have concluded the Union was entitled to the requested information in terms of
relevancy and the timing of the request, it fell upon Respondent to provide the Union with a non-
disclosure agreement when they made the request and for Respondent to turn over the
information upon the execution of the agreement. This Respondent failed to do. It was also
incumbent on Respondent to provide the requested information with redactions, had the parties
been unable to agree upon a non disclosure agreement. In fact, Respondent provided, in an
untimely fashion a redacted version of the Staples pilot agreement to the Union shortly before
the hearing.
JD–48–14
44
so. It would be difficult to provide the Union with redacted information, or propose an
accommodation concerning its provision as the Respondent was required to do, without first
gathering it, and reviewing the quantity and its contents. Thus, I find Respondent’s positions
were more in the nature of seeking delay than a resolution, and I do not find the Union, in the
circumstances here, was required to take the bait of a meeting which I view as falling short of 5
Respondent’s statutory obligations, and more than that part of an effort to delay responding to
the Union’s request.
As to paragraph 17 of the Union’s request seeking a copy of any and all training
materials, which Devine asserted related to confidential materials in his January 2, 2014, letter, 10
Devine gave no explanation of why those requested materials were confidential in his January 2
or 31, 2014, responses. In fact, Respondent provided the Union with a document entitled
“Retailer Associate Training Manual” on March 29, 2014, with only a few lines of the 34 page
document redacted. Code testified the training manual for Staples employees was provided to
the Union and the only thing Respondent redacted were things that were unique to Staples' 15
operation such as where things are located in stores in terms of the work flow. However, Code
testified the redacted information would be visible to anyone including another retailer who
walked into the particular Staples store. At page 7 of Retail Associates Training Manual, there
is reference to a “Product Guide,” stating "You will be given a copy of the guide to refer to as
needed.” Code testified the product guide is a reference guide Respondent put together for the 20
Staples program. Code testified it is not included in the training manual. He testified it is a
generally available document that Responded pulled from its domestic mail manual. Referring
to the training manual at page 9, Code testified the term CARS is an operating system or
platform that allows Respondent to provide its partners with a mechanism to transact certain
business. It is a proprietary system of the Postal Service. Code testified Respondent is going 25
to be installing these systems in the Staples stores. There is a reference to a CARS DVD in the
manual, and Code testified a copy of the DVD was given to Staples, along with the CARS
operating manual. Code testified that Respondent could provide it to the Union and he testified,
“I will send it to you.” The Union and the General Counsel assert these materials referenced in
Code’s testimony were not provided to the Union at the time their briefs were filed. 30
I find that Respondent has failed to establish a confidentiality defense with request to the
Union’s request in paragraph 17, and the Union is entitled to a complete copy of the “Retailer
Associate Training Manual” with no redactions, as well as the materials referenced therein
including the “Product Guide”, the CARS DVD and the CARS operating manual. These items 35
were provided to Staples as part of their subcontracting arrangement with Respondent, and
Code informed the Union at the hearing that the items would be provided to them, but failed to
do so, at least at the time the briefs were filed. I find Respondent violated Section 8(a)(5) and
JD–48–14
45
(1) of the Act by failing and refusing to provide the information requested in paragraph 17 of the
Union’s November 22, request in a timely and complete fashion.21
I have found the Respondent violated Section 8(a)(5) and (1) of the Act by failing to and
delaying in providing the Union certain requested information, and by failing to timely offer a 5
specific proposal concerning accommodations for the Union to receive the requested
information which Respondent contended was confidential. On the other hand for the reasons
below, and despite Respondent’s described conduct, I have found Respondent established a
confidentiality interest with respect to some of the requested information.
10
Code testified that in January 2012 Respondent released a request for information to
potential retail partners going to the 75 largest retailers in the country such as the largest big
box stores, grocery chains, drugstores, and office superstores. Respondent has an estimated
33,000 postal facilities and if the Staples program goes through as planned it will be rolled out in
approximately 1,300 Stapes stores. As with the Union, the collective-bargaining agreement 15
affords Respondent certain rights concerning subcontracting. Thus, the specific discounts
offered to Staples, marketing strategy in terms of costs by Respondent and Staples, the use of
Staples trademarks, and estimates and specifics as to foot traffic at the Staples all fit within the

21 I find that Respondent unlawfully delayed in providing its response to paragraph 16 of the
Union’s November 22 request calling for “the steps, if any, that the Postal Service will take to
protect the sanctity of the mail when the mail is in the hands of Staples employees.”
Respondent did not specifically challenge the relevance of this request in Devine’s January 2,
2014, letter to the Union as it had with other items requested, nor did Respondent contend it
was burdensome or was confidential information. Yet, Respondent did not provide the Union
with the requested information on January 2, 2014, but only gave the Union a partial response.
Respondent did not provide a complete response to this request until Devine’s January 31,
2014, letter, wherein he listed the requested steps in detail. Respondent argues in its brief that
it was justified in not tendering its January 31, response until the Union clarified its request
wherein the Union cited safety concerns for Respondent’s employees in the Union’s January 17
letter. First, the Union’s citing safety concerns was in response to Respondent’s questioning the
relevance of other paragraphs of the request not paragraph 16 of the request. Respondent did
not question the relevance of that paragraph, but rather appeared to just snub the Union’s
request by giving an incomplete response on January 2, 2014. I also find the safety of the mail
as it relates to Respondent’s employees to be obvious from the circumstances here, that no
additional explanation was needed from the Union’s initial request on this matter. Moreover,
once Respondent provided a partial response on January 2, there was no reason provided for
its failure to be more forthcoming and provide the detailed response it gave on January 31, on
an earlier date. Rather, I find that Respondent has engaged in a pattern of delay, in providing
partial and delayed responses over a course of a period of time to delay in providing the Union
with requested information. Along these lines, Respondent did not provide the Union with a
copy of the “Retail Partner Expansion Program Retailer Associate Training Manual,” until March
29, 2014. I find Respondent has provided no satisfactory justification for its 2 month delay in
Respondent’s response to the information requested in paragraph 16 of the Union’s request and
therefore Respondent has violated Section 8(a)(5) and (1) of the Act concerning its delayed
response. Similarly, as to paragraph 19, the Respondent did not inform the Union that
bargaining unit employees would not be required to train Staples employees until the trial. In
this regard, in his January 2, 2014, letter, Devine left open the possibility that Respondent would
require lead clerks, who are bargaining unit employees, to train Staples employees.
Accordingly, I find Respondent unlawfully delayed in providing a response to paragraph 19 of
the Union’s request in violation of Section 8(a)(5) and (1) of the Act.
JD–48–14
46
penumbra of confidential financial information and trade secrets such as “formulas, devices, or
compilations of data, reasonably calculated to provide their possessor with some business
advantage over competitors.” See, Howard Industries, Inc., 360 NLRB No. 111 (2014), slip op.
at 2 (2014); and Good Life Beverage Co., 312 NLRB 1060, 1060 (1993).
5
Devine explained to the Union in his January 31, 2014, letter concerning his description
of what Respondent considered to be confidential that sharing the confidential and proprietary
terms of the Staples agreement “would limit the ability of the Postal Service to negotiate
Agreements with other entities regarding offering Postal products and services in the future and
could have an adverse effect on existing Agreements.” He specifically cited “the portions of the 10
Agreement that state which party will be covering various expenses during the one-year pilot.”
Devine stated, “The Negotiated Services Agreements included as part of the Pilot Agreement
contain restricted and sensitive business information.” He stated, “Sharing the terms of the
Negotiated Services Agreements would weaken the negotiating position of the Postal Service
with regards to the discounts or incentives given to partners currently and moving forward. For 15
example, the Negotiated Services Agreements include the discounts provided to Staples during
the one-year pilot.” Devine also stated “the Pilot Agreement contains provisions explicitly
prohibiting release of any confidential Information or information relating to the economic terms
of the Agreement without prior approval from Staples.” He asserted that Staples did not
approve of the release of the Pilot Agreement or any of the economic terms enclosed therein. 20
This was in essence the only explanation given to the Union as to why the Respondent
considered the information to be confidential until its witnesses testified on April 1, 2014.
In terms of the pilot agreement with Staples, Code testified at the hearing one of the
standards they used in identifying confidential clauses of the agreement was if the information 25
was uniquely Staples, and did not have anything to do with the Postal Service. He testified for
example trademarks were redacted, as well as how they are used and associated with Staples’
intellectual property. Code testified some of those trademarks could be used in advertising and
marketing promotions for Respondent’s products and some would not be appropriate to use in
such a way. He testified some of them are new trademarks. Code testified Respondent felt 30
anything that provided information as to the understanding of Respondent’s business model
with Staples model was confidential. He testified there is an overlap between Respondent and
Staples’ business models and they are one and the same. He testified Respondent is
protecting their partnership because Staples is in competition in the marketplace and does not
want people to understand aspects of their business, particularly margins, and the cost of their 35
responsibility to this program. Code testified if Respondent deems this program to be
successful or a different retailer is interested in pursuing a test in a different retail vertical,
Respondent does not want them to know the parameters of its relationship with Staples,
because it provides them with an unfair advantage in negotiating terms.
40
When asked if he was talking about costs or procedures in terms of confidentiality, Code
testified primarily costs, and he stated there are capital investments that both sides make. He
testified there are technology costs associated with the program, who pays for what which are
terms of the national service agreement (NSA). Code testified the other redacted elements of
the Staples NSA are different than what Respondent would consider a management45
services contract i n t h a t in the NSA, instead of compensation for activity, R e s p o n d e n t
p r o v i d e s S t a p l e s discounts for Respondent’s mail products and services. Code
testified those discounts need to be held closely because that type of information gives
Respondent’s competitors an advantage if they understand Respondent’s thresholds for
discounting i t s competitive products in order to increase i t s volume in the marketplace. 50
Code testified Respondent wanted to keep all aspects of the business model closed because if
JD–48–14
47
this is a viable program, Respondent knew Staples did not want it out there because they are
fighting in a very competitive market. Code testified if Respondent is interested in expanding
pilots into different verticals, Respondent did not want them to know what its established
compensation structure is. Code testified the contract with Staples was based on variable
business volume and the margins are very low because Respondent has low cost coverage on 5
its products and services.
As to the information contained in the requested correspondence through emails
being sensitive, Code testified first and foremost are things about the Staples contract, how
they are structured, what the discounts would be for the products and services, market 10
initiatives, how they were going to target marketing, and how Staples marketing infrastructure
works. Code testified Respondent integrated with Staples online learning systems. He testified
that is proprietary information Staples is sharing with Respondent, and would have an impact if
that was to become public. He testified this is information Staples desperately seeks to protect
in order to maintain advantage in the marketplace. 15
Concerning the information requested in paragraph 9 concerning discounts, Code
testified this is highly proprietary information. It is information Respondent provides to its
regulator to make sure Respondent is covering its costs and providing value to the organization
in doing these NSAs. Respondent does not want their competitors and retailers Respondent 20
might be interested in doing pilots with in the future, to understand what Respondent is already
using as baseline in this contract, because Respondent could receive better terms or could get
beaten by these margins pertaining to Staples when Respondent is competing against UPS on
other kinds of programs. As to paragraph 11, in the Union’s request Code testified this goes
back to his prior testimony concerning other paragraphs. Code testified compensation is a word 25
they do not use in NSAs. Code testified Respondent is just providing Staples discounts. He
explained Respondent is providing Staples a margin on Respondent’s published rate and
Respondent is not directly compensating them for work being performed.
Concerning paragraph 25 of the Union’s information request, Code testified that, at the 30
time, there were a couple of things Respondent did not have access to from a data standpoint.
He testified, more importantly, the DAR referenced in the Union’s request was something that
outlines the test business model and provides very detailed information as to discount
structures. He testified the Approved Postal Provider Pilot Agreement is a marketing
agreement. It is a shared risk agreement, and there are a lot of things in there that detail who is 35
taking what risk, how the risk is structured, and if Respondent were to find other partners for the
test, this is information that Respondent would want desperately not to make public. Code
testified Staples feels the same way as this is sort of a blueprint for Respondent and Staples’
competitors.
40
In terms of Devine’s January 31, 2014, letter, and Code’s testimony as it relates to
Respondent’s competitors and possibly using other retailers in lieu of or in addition to Staples I
find Respondent has established a confidentiality interest in terms of the specific numbers of:
Staples foot traffic, discounts provided or discussed with Staples in terms of percentages and/or
specific amounts; and costs of promotion in terms of percentages or actual costs. Weighing the 45
needs between the parties, I do not find that Respondent has established a confidentiality
interest in contract language describing promotions, discounts or the nature of the business
relationship with Staples, aside from the specific numbers discussed and/or agreed to with
Staples as previously described in these paragraphs. In this regard, Respondent has a specific
product line which it has discussed with Staples, which may or may not be discussed with other 50
retailers in other ways. I find, in these circumstances, that the actual numbers discussed and/or
JD–48–14
48
agreed to between Respondent and Staples may place Respondent and/or Staples a
competitive disadvantage, not the description of what Staples and Respondent bargained about.
I also find the Union has not shown a specific need of any discussion of Staples trademarks
which may be incorporated in correspondence or the agreement between Respondent and
Staples beyond which it will obtain, by reviewing the underlying documents upon the signing of a 5
confidentiality agreement.
Code testified there are dates and names as well that Respondent redacted from the
Staples agreement provided to the Union in terms of contact people at Staples and signature
blocks. Code testified he took out expiration dates of the agreement. Code explained he 10
considered this to be confidential because Respondent’s approach was to make it impossible
for someone to build the business model timeline used with Staples. Code testified that, in
terms of the dates, in the agreement being confidential that goes to termination clauses and
things of that nature, which he was advised by Respondent’s counsel should be kept
confidential. I note that Respondent previously informed the Union that the pilot agreement with 15
Staples was to be about one year. Any other time lines discussed or negotiated with Staples go
to the projected length of the relationship or how rapidly they intend to proceed with expansion.
I do not find this to be proprietary information or otherwise confidential.
Code testified there was one other schedule that was redacted in the Staples agreement 20
provided to the Union, and it was the aviation security and hazardous mail agreement. He
testified the inspection service advises this is sort of a blueprint as to how Respondent manages
its security, and they do not want that as public knowledge for people to use and understand
how they can get around Postal Service security. Code testified Respondent was taking
security procedures used at its post offices and trying to translate them to Staples. First, 25
Respondent did not raise this issue to the Union in Devine’s January 31, 2014 letter, or
otherwise prior to the hearing. Thus, it gave the Union no opportunity to reach an
accommodation concerning it, and I find it to be untimely raised now. Moreover, Code testified
that it was based on security arrangements at Respondent’s post offices. Respondent put on no
evidence on how the Union or its employees are instructed or required to keep this information 30
confidential concerning Respondent’s post offices, and merely because Respondent has
adopted its procedures for Staples, I do not find it has established through the evidence at the
hearing that this is confidential information.
CONCLUSIONS OF LAW35
1. By failing and refusing to provide and/or unlawfully delaying in providing the American
Postal Workers Union (the Union) with information requested in paragraphs 1, 2, 4, 9, 11, 16,
17, 19, and 25, the Union's November 22, 2013, request for information as further explained by
the Union on January 17, 2014, and again at the hearing on April 1, 2014, the Respondent has
unlawfully refused to bargain with the Union and has violated Section 8(a)(5) and (1) of the Act.40
2. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY45
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend it be ordered to cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. With respect to the Union’s information request in
paragraphs 16 and 19 there was only an unlawful delay alleged and thus there was no 50
JD–48–14
49
contention any further information need be provided. With respect to paragraph 17, as
disclosed at the hearing, Respondent belatedly provided a mildly redacted document to the
Union shortly before the trial, and the testimony of Respondent’s witness revealed that there
were other related documents that I have found would fall within the Union’s request in that
paragraph, which Respondent promised to provide during the hearing, but as represented in the 5
parties briefs were not provided. I have concluded that the information requested in paragraph
17 was relevant and necessary to the Union’s representative functions, and that Respondent
raised no bonafide defense for the redactions, the missing documents, and the belated tender of
what it did provide. Accordingly, as part of this recommended remedy I am requiring the
Respondent to provide the Union with an unredacted version of the document it previously 10
provided along with the missing materials previously discussed in this decision.
As to paragraphs 1, 2, 4, 9, 11, 19 and 25, I have rejected the burdensomeness
arguments Respondent has raised with respect to any of those paragraphs. I also note that
Respondent only provided a heavily redacted version of its contract with Staples to the Union 15
shortly before the hearing with no justification for the delay in providing this redacted version. I
have found that once it raised a confidentiality concern it was Respondent’s obligation and
burden to formulate a reasonable accommodation in furnishing the requested information to the
Union, and this Respondent failed to do. See, Kaleida Health, Inc., 356 NLRB No. 171, slip op.
at 9 (2011); Borgess Medical Center, 342 NLRB 1105, 1106-1107 (2004); Pulaski Construction 20
Co., 345 NLRB 931, 938 (2005); and U.S. Testing Co., Inc. v. NLRB, 160 F.3d 14, 20-22, (D.C.
Cir. 1998). I have concluded that by its delayed, often unsupported, and staggered responses
exhibited in Devine’s January 2 and 31, 2014 letters, and by the belated production of
documents including the largely redacted Staples contract that Respondent was seeking a
policy of delay and frustration rather than one of accommodation. In these circumstances to 25
order more bargaining concerning the production of information would not serve, but rather
would frustrate the purposes of the Act, and serve to reward the Respondent for its course of
conduct. In this regard, the Union’s request for information was time sensitive with the
subcontracting with Staples ongoing and the likelihood of an expansion of that contracting on
30
JD–48–14
50
the horizon.22 Thus, the Union’s interest in receiving the information quickly to protect the
bargaining unit is high. See, Kaleida Health, Inc., supra.; Pennsylvania Power, 301 NLRB 1104,
1108 fn. 18 (1991); and U.S. Postal Service, 359 NLRB No. 115 (2013).
Therefore, as part of the remedy here, I find Respondent is required to immediately 5
produce to the Union the documents requested in paragraphs 1, 2, 4, 9, 11, 19 and 25 of the
Union’s request only redacting the following: the specific numbers or estimates of foot traffic at
Staples locations; discounts provided or discussed with Staples in terms of percentages and/or
specific amounts; and costs of promotion of Staples and/or Respondent in terms of percentages
or actual costs. The numbers, as specified, can be redacted, but not the discussions of those 10
numbers. I also find any description of Staples trademarks which may be incorporated in
correspondence or the agreement between Respondent and Staples can be redacted from the
initial documents to be supplied to the Union pursuant to its request. I find the above described
information constitutes the only items to be redacted from the information provided to the Union.
15
It was the testimony of Devine that the Union has previously signed confidentiality
agreements concerning the production of subcontracting materials including prior contracts.
Accordingly, I find Respondent be required to tender the Union a copy of the last three
confidentiality agreements executed between the Respondent and the Union as model
agreements, and that upon the Union agreeing to and executing a confidentiality agreement 20
tailored by the parties to meet the requirements of this remedy section, that Respondent will
tender to the Union the complete and unredacted documents as requested in paragraphs 1, 2,
4, 9, 11, 19 and 25 of its November 22, information request, with the information I previously
described in this remedy section to be redacted to be only used by the Union in the prosecution
of grievances relating to the parties collective-bargaining agreement and to the processing of 25
this unfair labor practice charge. The General Counsel recommended that if there was a
confidentiality agreement the disclosure of the confidential information was to be limited to 10
union officials, to which I agree, given the scale of the potential subcontract. I also find that the
Union may disclose the confidential information to their attorneys and financial advisors, upon

22 By “Erratum Brief” dated July 31, 2014, Respondent’s counsel stated, “As of the date of
the hearing, the Postal Service's one-year Retail Partner Expansion Program pilot with
Staples was on-going and no decision had yet been made to end, continue or expand the
pilot. By letter, dated July 7, 2014, the Postal Service notified the APWU that it would end
the pilot on August 1, 2014, and that Staples would begin transitioning to the Postal Service's
previously existing Approved Shipper Program by August 29, 2014. See Exhibit 1. The
Approved Shipper Program is generally described in GC Ex. 6 (p. 4) …”. On August 5 and
6, 2014, respectively, counsel for the Union and the General Counsel filed motions to
strike Respondent’s Erratum Brief. They argue Respondent’s brief is in effect an
improperly filed motion to reopen the record. I grant the motion to strike Respondent’s
filing. First, even if Staples relationship with Respondent is to be transferred into
Respondent’s “Approved Shipper Program” as represented; the relationship with
Staples, however it is labeled, is still ongoing. Therefore I do not find the relevance of
the Union’s request for information changes. In fact, Code testified the “Approved
Shipper Program” was an earlier name for the retail pilot program. There is no claim
the Union has withdrawn its outstanding grievance pertaining to the Staples
relationship, or that it will not file other grievances once the requested information is
produced. The ultimate viability of Respondent’s relationship with Staples, past and
present, can be resolved by an arbitrator, if the Union, upon receiving the requested
information decides to pursue the matter further. Accordingly, the motions to strike
Respondent’s July 31, 2014, “Erratum Brief” are granted.
JD–48–14
51
their signing of the confidentiality agreement, as necessary for the processing of grievances, as
well as this unfair labor practice complaint. If upon the signing of a confidentiality agreement
and the Union’s receipt of the previously redacted information, there is a dispute between the
parties as to whether Respondent redacted information goes beyond which I recommended it
can do, the Union can take the matter to the Regional Director or his designee to try to resolve 5
the dispute, if the parties do not then agree, the Regional Director can then bring the matter up
in a compliance proceeding with the parties to the proceeding requesting a protective order, if
necessary. In the meantime, the Union, upon signing of a confidentiality agreement, will have
the complete information in order to process grievances related to the subcontracting through
the parties’ contractual grievance and arbitration procedures.2310
Since the dispute is between the Respondent and the national Union, and because the
subcontracting is already taking place in five states at around 80 locations, with a possible
expansion to 1300 Staples locations, I am ordering a notice posting at all locations where
bargaining unit employees work within a 2 mile radius of Staples locations performing 15
bargaining unit work in dispute here. Moreover, since the information request was made by the
Union pertaining to contracting that may potentially take place at about 1300 Staples locations, I
am requiring the Respondent transmit and/or otherwise make the attached Notice available to
all bargaining unit employees employed by Respondent at any location in the manner described
in the Order section of this decision.24 20
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.25
ORDER25
I. Pursuant to Section 10(c) of the National Labor Relations Act, it is hereby ordered that
the United States Postal Service (Respondent), its officers, agents, successors, and assigns,
shall
1. Cease and desist from:30

23 The limited nature of the redactions I have recommended, that is only specific numbers,
percentages, and trademark identifications should help solve disputes as to what is confidential
and hopefully facilitate the parties agreement on a confidentiality agreement. As set forth
above, U.S. Postal Service, 359 NLRB No. 115 (May 2, 2013), cited by the Union appears to be
no longer a valid Board pronouncement. Even in that case, the Board did not authorize the
Regional Director with discretion to finally resolve disagreements between the parties
concerning confidential information. Rather, the Board designated specific steps the Regional
Direction was to follow based on the Board’s determination on how the matter was to be
resolved. Similarly, here, I have not dictated the terms of any confidentiality agreement
between the parties, but have only set forth terms in this recommended remedy sufficient to
remedy Respondent’s unfair labor practices.
24 The Union seeks a broad order, and cites some settlement agreements that were not
placed into evidence. The General Counsel did not request a broad order, nor was Respondent
notified of such a remedial request prior to the filing of briefs. I find that the request for a broad
order was not litigated here, and based on due process grounds the Union’s request is denied.
25 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.
JD–48–14
52
(a) Refusing to bargain collectively with the American Postal Workers Union by refusing
to furnish it or delaying in furnishing it with information that it requests that is relevant and
necessary to the Union's performance as the collective-bargaining representative of the
Respondent's bargaining unit employees.5
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.
1. Take the following affirmative action necessary to effectuate the policies of the Act.10
(a) Promptly furnish the Union with the information requested in paragraphs 1, 2, 4, 9,
11, 17, 19 and 25 of the Union’s November 22, 2013, information request relating to
Respondent’s subcontracting with Staples in the manner described in the remedy section of this
decision.15
(b) Within 14 days after service by the Region, post at its locations where bargaining unit
members represented by the American Postal Workers Union work who are working within a
two mile radius from any Staples store or facility performing contract work for Respondent
copies of the attached notice marked “Appendix.”26 Copies of the notice, on forms provided by 20
the Regional Director for Region 5, after being signed by the Respondent's authorized
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 altered,
defaced, or covered by any other material. In the event that, during the pendency of these 25
proceedings, the Respondent closed any of the described facilities, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all bargaining unit employees and
former employees employed by the facility in question any time on or after November 22, 2013.
In addition to physical posting of paper notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the 30
Respondent customarily communicates with its employees by such means to all bargaining unit
employees represented by the American Postal Workers Union.
(c) 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 35
Respondents have taken to comply.
Dated, Washington, D.C., August 13, 2014.
40
_______________________
Eric M. Fine
Administrative Law Judge

26 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 refuse to bargain collectively with the American Postal Workers Union by
refusing to furnish it or delaying in furnishing the Union with information that it requests that is
relevant and necessary to the Union's performance as the collective-bargaining representative
of the our unit employees, including requested information relating to our subcontracting
activities with Staples the Office Superstore, LLC (Staples).
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of rights guaranteed them by Section 7 of the Act.
WE WILL promptly furnish the Union with the information requested in paragraphs 1, 2,
4, 9, 11, 17, 19 and 25 of the Union’s November 22, 2013, information request relating to our
subcontracting with Staples in the manner described in the Board’s decision.
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.

Bank of America Center, Tower II, 100 S. Charles Street, Ste 600, Baltimore, MD 21201-4061
(410) 962-2822, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-119507 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
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, (410) 962-2864.