United States Postal Service

National Labor Relations Board - Administrative Judge Opinions

Sep 10, 2014

05-CA-122166 (N.L.R.B. Sep. 10, 2014)

JD–53–14
Washington, DC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNITED STATES POSTAL SERVICE
and Case 5–CA–122166
AMERICAN POSTAL WORKERS UNION,
AFL-CIO
Daniel M. Heltzer, Esq., for the General Counsel.
Rebecca Horan, Esq., (United States Postal Service, St. Louis, Missouri)
for the Respondent.
Darryl J. Anderson, Esq. (O’Donnell, Schwartz & Anderson, P.C., Washington, D.C.)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Washington, D.C.
on July 30, and August 1, 2014. The American Postal Workers Union (APWU) filed the charge
on February 7, 2014 and the General Counsel issued the complaint on April 30, 2014.1 The
matter involves the Postal Service’s refusal to provide the APWU unredacted copies of Form
7463-A, which is filled out by private contractors providing transportation services to
Respondent. This form is part of the contract renewal process. These contracts involve work
that could be performed by Postal Service employees represented by the APWU, if the work
could be done by unit employees at the same cost or less than the contract price of the private
contractor.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and Charging Party Union,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, which has its headquarters in Washington, D.C., provides postal services
throughout the United States. The Board has jurisdiction over Respondent pursuant to Section

1 The consolidated complaint included charge 5-CA-122807, which subsequently settled.
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1209 of the Postal Reorganization Act. The APWU is a labor organization within the meaning
of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
5
The APWU has represented employees, including motor vehicle employees of
Respondent for many years. Its current collective bargaining agreement runs from November
21, 2010 to May 20, 2015. Article 32 of that contract sets forth the conditions upon which the
Postal Service may subcontract bargaining unit work, G.C. Exh. 2, pp. 146-49. Generally, the
Postal Service must consider the public interest, cost, efficiency, availability of equipment and 10
the qualifications of employees when evaluating the need to subcontract. USPS must provide the
APWU at least 60 days notice of its intent to subcontract unit work, or to renew a contract with a
private company that is performing unit work. Pursuant to a Memorandum of Understanding
which is incorporated into the current contract, the Postal Service may not renew its private
contracts if the Union demonstrates that it can perform bargaining unit work at the same or lower 15
cost, G.C. Exh. 2, p. 369. The Postal Service can cancel a contract mid-term if the Union
demonstrates that it can perform all or part of a contract route for less than the contractor.
The instant dispute over Form 7463-A
20
On April 23, 2013, the Postal Service informed the Union of its decision to renew
contracts with private companies (Highway Contract Routes (HCR)) for eight terminals, G.C.
Exh. 12. On May 3, 2013, Michael Foster, then Assistant Director of the Union’s Motor Vehicle
Service Division, requested that the Postal Service provide the Union information on how the
Postal Service determined that the HCR contractor could provide its services at a lower cost than 25
bargaining unit Motor Vehicle Service (MVS) employees. Regarding the contractor’s cost, the
Union requested 13 Postal Service forms for each of the eight terminals. USPS assigned the
number IR13-25 to these requests and ultimately complied with this request with the exception
of the Postal Form 7463-A.2
30
In a letter dated August 14, 2013, Respondent refused to provide the Form 7643-A,
relying on the decision of a two-member Board in case 28-CA-21451, Postal Service, 352 NLRB
1032 (2008).
The HCR Renewal Process35
USPS provides the Union with notice of its intent to renew a HCR contract by means of
a Postal Service Form 5500.3 This form is completed by the Postal Service and provides a cost
comparison between what it would cost to do the contract work in-house as opposed to renewing
the HCR contract. Blocks 29-31 of Form 5500 set forth the contractors total costs. Form 5500 40
does not indicate how the contractor’s costs were determined, i.e., the components of the bottom
line figure.

2 G.C. Exhibit 4 is a blank Postal Service Form 7463-A.
3 G.C. Exhibit 5 is a blank Postal Service Form 5500.
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3
Postal Service Form 7463-A
The Form 7463-A is completed by the private contractor. The first vertical column sets
forth the costs in different categories for the last prior approval of the contract. The second
vertical column sets forth the costs for the proposed renewal. The horizontal entries in both 5
columns are as follows:
1a Vehicle Cost
Motor vehicles
Trailers10
1b Operational Costs (may include profit)
2. Taxes
3. Vehicle Registration
4. Miscellaneous (may show profit)
5. General Overhead (e.g. terminal costs, management and supervision)15
6. Fuel
7. Oil
8. Insurance
9. Road Taxes
10. Tolls20
11. Sub total
12. Straight time
13. Overtime
14. Payroll taxes (e.g., Social Security, Workers Compensation, Unemployment Insurance)
15. Fringe Benefits (Medical, Vacation, Holiday, Pension)25
16. Sub total
17. Contractor’s wages
18. Total Cost
19. Return on Investment
20. Total Contract Rate30
USPS is willing to provide only the figure in block 20. At hearing there was some
evidence as to whether the APWU at some time agreed to delay provision of the Form 7463-A.
However, by January 2014, it made clear that it wanted the entire unredacted form. Respondent
unequivocally stated that it regarded this document confidential and would not provide it.35
The parties stipulated that the Postal Service has a confidentiality interest in the Form
7463-A and that, if this Form is found to be relevant and necessary to the collective bargaining
responsibilities of the Union, those confidentiality concerns are addressed by a reasonable non-
disclosure agreement in which both parties are willing to enter, Jt. Exh. 2.40
Analysis
Where a Union requests information pertaining to employees in a bargaining unit it
represents, that information is presumptively relevant, and the employer must provide it. Where 45
the information does not pertain to employees in the unit, such as the subcontracting of unit
work, the burden is on the Union to demonstrate its relevance, Wisconsin Bell, Inc., 346 NLRB
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62 (2005). A union has satisfied its burden when it demonstrates a reasonable belief, supported
by objective evidence, that the requested information is relevant, Knappton Marine Corp., 292
NLRB 236, 238-239 (1988). An employer is not relieved of its obligation to turn over relevant
information simply due to confidentiality concerns, but must offer to accommodate both its
concern and its bargaining obligations.5
Given the parties’ stipulation in Jt. Exh. 2, there is no need to weigh Respondent’s
confidentiality concerns against the relevance or necessity of Form 7463-A. There is nothing in
this record showing the degree of Respondent’s confidentiality concerns, i.e., whether those
concerns are slight or substantial. For example, there is no credible evidence that the Postal 10
Service promised HCR contractors that the information of Form 7643-A would be kept
confidential, or whether the HCR contractors who were awarded contracts were bidding against
anyone other than the bargain unit. While G.C. Exh. 21, a May 21, 2014 letter from USPS
Manager Patrick Devine to the Union asserts that release of the Form 7463-A violates its
contracts with HCR providers, neither Mr. Devine nor anyone else with first hand knowledge 15
testified to this effect or introduced documentary evidence in support of this contention.4 Thus,
this assertion is unsupported by any non-hearsay evidence. Therefore, I do not credit it.
The Union, in the instant case, is entitled by contract to recapture work that has been
contracted out to HCR contractors if that work can be performed for less in-house. Thus in a 20
broad sense, any information regarding the basis on which the Respondent has decided to
contract out this work is relevant and necessary to the Union’s functions. Respondent’s
argument, aside from its weak confidentiality claim, seems to be that the unredacted Form 7643-
A would be of no use to the Union.
25
Form 7463-A has no relevance to any grievance that has already been filed. The Union
has challenged Respondent’s calculations as to what it would cost to perform this work in-house.
The 7463-A has absolutely no relevance to this issue. Similarly, I see no relevance of the Form
7463-A in helping the Union to determine how it could lower the costs of performing the work in
question in-house. Once the Union has the bottom line figure for the HCR contractor, it should 30
be able to determine how to lower the in-house costs without this form.5
However, I conclude that the Union had demonstrated sufficient relevance of the form, if
for no other reason, than to compare the figures on the 7463-A with those of the Form 5500 to
insure consistency, and to insure that there haven’t been any clerical errors on the other 35
documents that the Postal Service provides to it.6 Thus, I find that Respondent has violated
Section 8(a)(5) in refusing to provide the Union with the unredacted Form 7463-A for the HCR
routes requested by the Union on April 23, 2013.

4 Jacqueline Adona’s testimony at Tr. 203 is also hearsay because it is not predicated on her first-hand
knowledge.
5 The Union contends at page 6 of its brief that the contractor may be able to use a smaller sized truck
than the contract calls for—without running the risk of having its contract terminated. However, if a
smaller sized truck can be used, the Union could demand that the in-house costs as calculated by the
USPS be modified accordingly.
6 Respondent’s reliance on Postal Service, 352 NLRB 1032 (2008) is misplaced. First of all, since
that is a decision of a two member Board, it has no precedential value. Moreover, the facts of that case
are materially distinguishable from this case. Most importantly, the Postal Service does not, in this case,
JD–53–14
5
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended7
ORDER10
The Respondent, the United States Postal Service, its officers, agents, successors, and
assigns, shall
1. Cease and desist from15
(a) Refusing to bargain with the American Postal Workers Union by failing and refusing
to promptly furnish the Union with unredacted copies of the Postal Form 7643-A that the Union
requested.
20
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
25
(a) Furnish the Union unredacted copies of Postal Form 7643-A as requested by the
Union.
(b) Within 14 days after service by the Region, post at its Washington, D.C. facility
copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by 30
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. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the 35
Respondent customarily communicates with its employees by such means. Reasonable steps

have unfettered discretion to contract out the unit work as it apparently had in the 2008 case. Secondly, in
this case, unlike the prior one, there is a Form 5500 to compare with the 7463-A. Thirdly, since the
Union is provided the contractor’s bottom line, providing the Form 7463-A will not undermine the market
forces of “blind bidding” to any greater extent than they have already been undermined.
7 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.
8 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.”
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shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since August 14, 2013.5
(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
the Respondent has taken to comply.
10
Dated, Washington, D.C., September 10, 2014
____________________15
Arthur J. Amchan
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 with the Union, the American Postal Workers Union, by
failing and refusing to promptly furnish information necessary and relevant to the Union’s
performance of its duties as the exclusive collective-bargaining representative of our employees,
including vehicle drivers.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL furnish the Union unredacted copies of Postal Form 7643-A, that have been requested
by the Union.
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-122166 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.