Postal Service

National Labor Relations Board - Board Decisions

Jun 25, 1991

303 N.L.R.B. 502 (N.L.R.B. 1991)

502
303 NLRB No. 79
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent excepts to the judge’s conclusion of law that the APWU,
and through it, the Mid-Hudson Area Local, is the exclusive collective-bar-
gaining representative of Respondent’s relevant bargaining unit employees. It
asserts that the APWU, not the Local, is the recognized bargaining representa-
tive of the relevant employees. We find merit in this exception.
The Respondent, however, admits the amended complaint allegation that the
Mid-Hudson Area Local, a subdivision of the APWU, has been authorized by
the APWU ‘‘to act as its designated agent in certain aspects of collective bar-
gaining for the Unit in connection with the Wappingers Falls SCF and the
Wallkill and Walden facilities.’’ The Respondent also does not dispute that the
Local is the authorized representative of the Respondent’s relevant employees
for the purposes of adjusting and implementing grievances at the initial steps
of the grievance arbitration procedure.
We shall correct the Conclusions of Law accordingly.
United States Postal Service and Mid-Hudson Area
Local, American Postal Workers Union, AFL–
CIO. Cases 3–CA–15258(P), 3–CA–15259(P),
and 3–CA–15326(P)
June 25, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On June 7, 1990, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed exceptions, a supporting brief,
and a brief in reply to the General Counsel’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. The American Postal Workers Union is the rec-
ognized bargaining representative, and the Mid-Hudson
Area Local is the designated authorized agent of the
APWU for certain aspects of collective bargaining for
the following employees of the Respondent:
Maintenance employees, special delivery mes-
sengers, motor vehicle employees, and postal
clerks.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United States Postal Serv-
ice, Poughkeepsie, Wappingers Falls, Wallkill, and
Walden, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for that of
the 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to furnish Mid-Hudson
Area Local, American Postal Workers Union, AFL–
CIO with information that it requested that is relevant
and necessary to the Union’s function as the des-
ignated agent of the American Postal Workers Union,
AFL–CIO for certain aspects of collective bargaining.
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, on request, promptly furnish the Union
with the following information:
(a) The Form 50s for Joan Eichler and Mary
White and any information in their personnel files
regarding the conversion at the Wallkill, New
York post office as requested by the Union on
August 1, 1989.
(b) The timecards and attendance and other
records of the letter carriers at the Wallkill, New
York post office, as and for the period requested
by the Union on November 4, 1989.
(c) The daily mail volumes count sheets for
Tour III at the Wappingers Falls facility, as re-
quested by the Union on November 13 and 20,
1989.
(d) The LSM rotation lists for Tour III, as re-
quested by the Union on November 13 and 20,
1989.
UNITED STATES POSTAL SERVICE
Alfred M. Norek, Esq., for the General Counsel.
Andrew L. Freeman, Esq., for the Respondent.
DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on March 29, 1990, in Poughkeepsie, New
York. The order further consolidating cases, amended con-
solidated complaint, and notice of hearing herein, which
issued on January 25, 1990, was based on a charge and
amended unfair labor practice charge filed in Case 3–CA–
503POSTAL SERVICE
1 Unless otherwise indicated, all dates referred to herein are for the year
1989.
15258(P) by Mid-Hudson Area Local, American Postal
Workers Union, AFL–CIO (the Union), on October 30,
1989,1 and December 8; the charge and amended charge in
Case 3–CA–15259(P) were filed by the Union on October 30
and December 8; and the charge and amended charge in
Case 3–CA–15326(P) were filed by the Union on December
4 and January 25, 1990. The consolidated complaint alleges
that since about August 1, the Union has requested that
United States Postal Service (Respondent), furnish it with
certain information which is relevant to the Union as the ex-
clusive collective-bargaining representative of certain of Re-
spondent’s employees at facilities in the area, but that Re-
spondent has failed and refused to provide this information
in violation of Section 8(a)(1)(5) of the Act. It is also alleged
that since about September 19, Respondent has refused to
meet with the alternate union stewards for step 2 grievance
meetings, also in violation of Section 8(a)(1)(5) of the Act.
On the entire record, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits and I find that the Board has jurisdic-
tion over Respondent by virtue of Section 1209 of the PRA.
II. LABOR ORGANIZATION STATUS
The complaint alleges, and Respondent denies, that the
Union is a labor organization within the meaning of Section
2(5) of the Act. The parties stipulated that the American
Postal Workers Union, AFL–CIO (APWU), is a labor organi-
zation within the meaning of Section 2(5) of the Act. Ste-
phen Duncan, president of, and a shop steward for, the
Union, testified that employees participate in the Union by
attending monthly meetings and filing grievances. In addi-
tion, members serve as shop stewards for the Union. He also
testified that the Union exists to deal with Respondent con-
cerning grievances, labor disputes, wages, hours, and condi-
tions of employment. I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE FACTS
For many years, Respondent has had collective-bargaining
agreements with a number of unions (including APWU) cov-
ering its many classifications of employees. The most recent
of said agreements is effective for the period July 21, 1987,
through November 20, 1990, and is referred to as the Agree-
ment. The Agreement recognizes APWU and National Asso-
ciation of Letter Carriers, AFL–CIO (NALC), ‘‘as the exclu-
sive bargaining representative of all employees in the bar-
gaining unit for which each has been recognized and certified
at the national level.’’ It then lists APWU for maintenance
employees, postal clerks, motor vehicle employees, and spe-
cial delivery messengers and NALC for city letter carriers.
The Agreement then lists certain exclusions, such as guards,
managerial, supervisory and professional employees, and
rural letter carriers, who are covered by a separate agree-
ment. The Agreement also provides a rather extensive griev-
ance-arbitration provision. The Union handles an area begin-
ning north of New York City and going northward to a point
south of Albany. Respondent has approximately 100 offices
within this area, and APWU has approximately 600 members
within this area; these are the people the Union services. The
largest facility in this area is the Wappingers Falls facility.
Briefly stated, this is the ‘‘clearinghouse’’ for incoming or
outgoing mail for the area post offices. This facility works
on a three shift—24 hours a day, 7 days a week basis. In
it, the Union represents clerks, both window clerks, LSM
clerks (those that operate the letter sorting machines) and
maintenance employees. As per the terms of the Agreement,
the Union has designated shop stewards to represent these
employees. There are several distinct allegations herein. The
first to be discussed below is that since about September, Re-
spondent has refused to recognize or accept the Union’s des-
ignation of alternate shop stewards, in violation of Section
8(a)(1) and (5) of the Act. The other allegations all involve
the refusal to provide the Union with the following informa-
tion:
(a) 1986 conversion at the Walkill, New York post office.
(b) Discipline of Daryl Castellana at the Walden, New
York post office for tardiness.
(c) Restrictions on stewards’ activity at Wappingers Falls
due to the alleged heavy workload.
(d) LSM rotation lists at Wappingers Falls.
A. Refusal to Recognize Alternate Stewards
Article 17 of the Agreement provides for the designation
of stewards and states further: ‘‘Each Union signatory to this
Agreement will certify to the Employer in writing a steward
or stewards and alternates in accordance with the following
general guidelines.’’ There follows a formula for the number
of stewards allowed: for example, up to 49 employees—one
steward, and up to 5 stewards for 500 or more employees,
with variances in between. The instant dispute arose when
the Union notified Respondent of the appointment of a num-
ber of alternate stewards. Respondent refused to recognize
these stewards, alleging that these alternate stewards, to-
gether with the accepted stewards, exceed the formula in the
Agreement for the maximum number of stewards permitted
and, further, that recognizing these stewards for some of the
grievances involved would require Respondent’s representa-
tives to meet to discuss grievances on Saturdays and Sun-
days, their normal days off.
The grievance procedure is set forth in the Agreement.
Step 1 requires the employee to discuss the grievance with
his/her immediate supervisor within fourteen days ‘‘of the
date on which the employee or the Union first learned or
may reasonably have been expected to have learned of its
cause.’’ The employee at this step may be accompanied by
a steward or a union representative, and the Union may ini-
tiate a step 1 grievance, also within the 14-day time period.
The Agreement provides that a grievance may be initiated by
the Union at step 2 within the same 14-day period set forth
above. In addition, if the step 1 discussions have been unsuc-
cessful in resolving the grievance, the union steward or other
representative will meet with Respondent’s representative
within 7 days of the appeal. If there is no agreement at step
2, Respondent’s decision to this effect shall be furnished to
the Union within 10 days of the step 2 meeting. The Union
has 15 days from the receipt of this decision in which to ap-
peal to step 3. Step 3 is handled outside the area and that,
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as well as subsequent procedures will not be discussed be-
cause they are not relevant to the instant matter.
Duncan testified that the reason the Union needs (and des-
ignated) alternate stewards is to cover periods when the reg-
ular stewards are not present at the facility. The facility runs
24 hours a day, 7 days a week (with only a partial third shift
on Sunday) so there are shifts when the regular stewards are
not present. In addition, stewards have days off, vacation
time, and sick time when they are absent from the facility.
These are the periods during which the alternate stewards are
meant to cover. When an alternate steward is handling a
grievance, he/she has all the powers and duties of a regular
steward.
A local agreement between the Union and Respondent
provides for monthly labor/management meetings to be held
on the first Tuesday of each month. This agreement states
further:
It is agreed that agenda items for discussion at the reg-
ular meetings shall be exchanged by the parties to this
agreement at least three full workdays before the sched-
uled meeting. Items not placed on such agenda shall be
discussed only by mutual consent of the parties.
There was such a labor/management meeting on the after-
noon of September 5. By letter dated September 1, Frank
Barton, Respondent’s labor relations representative at the fa-
cilities in question, wrote to Duncan: ‘‘The following items
are submitted as the management agenda for the
Labor/Management meeting scheduled for September 5’’: in-
cluded was the subject of alternate stewards and their release
time. Duncan testified that he did not receive this letter until
he reported for work on Tuesday, September 5; the prior day
was Labor Day. Timothy Vaughn, the chief steward for the
Union, attended this meeting on its behalf; at the meeting,
when Respondent’s representative requested discussion of al-
ternate stewards, Vaughn stated that he would not discuss the
issue at that time because the Union had not received notice
of the agenda issue in a timely manner. Vaughn testified that
prior to this meeting, he had discussions with Barton about
alternate stewards, but prior to September 5, he did not know
that Barton wanted to discuss the subject at that
labor/management meeting. Barton testified that he left the
September 1 letter for the Union in the usual place that Re-
spondent placed mail for the Union—the desk of the super-
intendent’s office. On September 1, he saw Vaughn holding
the letter, and looking at it. Vaughn asked what this was
about regarding the alternate stewards, and Barton said that
it was on the agenda for September 5, and they would dis-
cuss it then. At the meeting, Vaughn refused to discuss this
subject.
By letter dated September 6, John Gampia, wrote to Dun-
can informing him that Vaughn refused to discuss the alter-
nate steward issue at the prior day’s labor/management meet-
ing. The letter stated further:
It is Management’s intention to enforce the provisions
of Article 17, Section 2-A which provides that no more
than the authorized number of Stewards prescribed in
the formula will be allowed official time for Stewards’
duty. This means that Alternate Stewards will be grant-
ed official release time only in the absence of Stewards
certified under the aforementioned formula. Such alter-
nate Stewards will be permitted to replace absent Stew-
ards only in the work location in which the Steward
and the Alternate Steward have been properly certified.
Under no circumstances will Alternate Stewards be per-
mitted release time, the result of which is to expand the
number of stewards authorized by the formula. Con-
sistent with the National Agreement, requests for Stew-
ards’ Duty Release Time will not be unreasonably de-
nied.
Gampia’s letter also requested that the Union submit an up-
dated steward’s designation for the area facilities. On Sep-
tember 14 (with similar letters on October 28 and November
28) the Union submitted steward designations to Respondent;
in addition to the regular stewards, the designation listed one
alternate steward for tour 1, two alternates for tour 2, and six
alternates for tour 3. By letter dated September 19, Barton
wrote to Duncan regarding grievances for which the Union
had designated an alternate steward. Barton wrote:
Consistent with Management’s position regarding offi-
cial release time for Alternate Stewards, which was
conveyed to you via letter dated 9–6–89 from the MSC
Director, City Operations, official time for this purpose
will not be afforded to Alternate Stewards, the result of
which is to expand the number of Stewards authorized
by the formula in Article 17, Section 2 of the National
Agreement. I am therefore requesting that you advise
this office as to the authorized Step 2 Union designee
for these cases as soon as possible.
Between September 20 and November 15, Barton wrote
identical letters to the Union, the only difference being the
grievances they referred to—38 in total. By letters dated Sep-
tember 30 and November 2, Barton wrote to Duncan. Again,
with the exception of the grievance citations (65 grievances)
these are virtually identical letters, restating the position of
the earlier letters that Respondent would not grant official
time to alternate stewards, because that would expand the
number of stewards authorized by the Agreement. The letters
state:
I have repeatedly requested that you designate author-
ized representatives for Step 2 so that I may schedule
meetings in a timely fashion. Your only response has
been that you will not designate proper representatives
for Step 2. Accordingly, it is my decision that the
above referenced grievance appeals are rejected. The ra-
tionale for this decision is that for the reasons pre-
viously stated, they are not properly in the
grievance/arbitration procedure.
At the request of the Union, on October 3, Lawrence
Bocchiere, the regional coordinator for the APWU, wrote to
Barry Malson, the labor relations manager for Respondent’s
Westchester division, regarding this dispute. Bocchiere in-
formed Malson that Barton was refusing to honor, or meet
with, the Union’s appointment of stewards; Bocchiere also
stated that their position was that a steward or representative
designated to meet at step 2 does not come within the guide-
lines of the number of stewards allowed by the Agreement
and that Respondent ‘‘must meet with the designated rep-
resentative at Step 2 whether or not such steward was the
505POSTAL SERVICE
2 Although not determinative of the issues herein, I credit the testimony of
Barton that on September 1, he saw Vaughn read Respondent’s September 1
letter listing the proposed agenda items. I found Barton to be a credible wit-
ness who was willing to freely make admissions. While Vaughn was also an
articulate and sometimes credible witness, I found him extremely defensive
and restrictive on cross-examination. I therefore credit the testimony of Barton
over that of Vaughn.
Step 1 steward of record or whether such steward falls within
the aforementioned guidelines.’’
On the following day, Duncan wrote to Barton regarding
Barton’s letters to the Union regarding the alternate stewards.
Duncan advised Barton to discuss these matters with
Vaughan stating: ‘‘I am sure that we can resolve this issue
at the Local level.’’
By letter dated November 1, Duncan wrote to Bordanaro,
the postmistress of the area, stating that Respondent is in
violation of the Agreement (and Labor Law) for refusing to
accept the Union’s designations of alternate stewards as step
2 designees. Respondent answered this letter with a letter
dated November 27 from, Robert Smith, Respondent’s direc-
tor of human resources, to Duncan. The crux of Smith’s let-
ter is contained in the following paragraph:
It has never been Management’s position that Alternate
Stewards will not be Step 2 Designees. It is our posi-
tion that Alternate Stewards will not be provided offi-
cial time, for this or any other purpose, when the result
is to expand the number of paid stewards authorized
under the formula in Article 17 of the National Agree-
ment. It is our position that Alternate Stewards do not
attain Steward’s status, including payment, when the
authorized complement of Stewards is present. In es-
sence, the Union may designate whomever it wishes as
their designee at Step 2, however, payment shall be
strictly in accordance Article 17, Sections 2 and 4 of
the National Agreement.
This, apparently, settled the matter, so that Respondent ac-
cepted the Union’s designation of alternate stewards (even
when it exceeded the formula), but in these situations did not
grant official time (i.e., paid time) to the alternate to handle
the grievance.
Barton testified to the reasons for requesting the Union to
designate a proper representative and rejecting the Union’s
grievances. As stated in his numerous letters to the Union
dated from September 19 through November 2, all of the
designees in these grievances were alternate stewards, and
practically all the grievants were represented by regular (non-
alternate) stewards who had their regular days off on the
weekend (Friday through Monday). Barton testified that in
order not to violate the formula set forth in the Agreement
for the number of stewards allowed, he would have had to
meet with the alternate steward at a time when the regular
steward was not working—on the weekend—days that he,
and a large majority of the grievants, do not work.
The consolidated complaint alleges that since about Sep-
tember 19, Respondent has failed and refused to meet with
the alternate stewards designated by the Union, and has done
so without prior notice to, or consent of, the Union and with-
out having afforded the Union or APWU an opportunity to
bargain about the subject, in violation of Section 8(a)(1) and
(5) of the Act. I find this allegation to be without merit. This
is not a situation of a unilateral change of an existing condi-
tion of employment; in fact, there is no evidence that Re-
spondent had previously recognized alternate stewards in
similar circumstances. Nor is this a situation involving a
change without prior bargaining. What it is, is a dispute over
contract interpretation of the Agreement’s formula for stew-
ards and whether alternate stewards are included in that for-
mula, when regular stewards are available, an issue that,
itself, should have been grieved and, if necessary, been de-
cided by an arbitrator. That became unnecessary when, by
Smith’s letter of November 27, Respondent agreed to recog-
nize, but not pay, alternate stewards in these situations. An
example of the lack of bad faith on the part of Respondent
in this regard is that when it became evidence that this issue
would become a problem, Respondent notified the Union that
alternate stewards should be an agenda item at the September
5 meeting. The Union, claiming that it did not receive timely
notice of this agenda item,2 walked out rather than discuss
this issue. Missouri Portland Cement Co., 284 NLRB 432
(1987), cited by the General Counsel is instructive, but inap-
propriate. I therefore recommend that this allegation be dis-
missed.
B. Walkill Conversion
Respondent employs both full-time and part-time employ-
ees; often employees are hired as part-time flexible employ-
ees (PTF), with no guaranteed hours, unlike the full-time em-
ployees who are covered by the Agreement. Conversion is
when an employee goes from part-time to a full-time em-
ployee of Respondent. This dispute involves a conversion
that occurred at the Walkill post office, a facility with about
eight employees. Vaughn testified that sometime shortly be-
fore August 1, some employees from the Walkill facility in-
formed him that there may have been an improper conver-
sion at that facility. As a result of this, on August 1, he made
a request for the following information on the standard form
entitled: ‘‘Request For Information and Documents Relative
to Processing & Grievance’’ regarding the Walkill facility:
Seniority list for clerk craft employees; current full-time bid
positions with job descriptions; Form 50 (a form generated
by Respondent for any personnel action) for Joan Eichler and
Mary White, and any information in OPF (official personnel
folder) concerning the conversion of Mary White vs. Joan
Eichler. He made this request in order to determine whether
the conversion was done according to the Agreement.
Vaughn testified that he was not provided with any of this
information, nor an explanation why it was not provided.
Subsequently, Vaughn filed all the proper papers and this
grievance is presently awaiting action at step 3. On cross-ex-
amination, Vaughn testified that he does not know when the
conversion in question took place and that since August 1,
he has had a conversation with the Walkill postmaster, An-
gelo Santiamagro, but Santiamagro did not tell him of the se-
niority of the Walkill clerks in 1986. Santiamagro has been
postmaster at Walkill since 1974. He testified that in Novem-
ber 1986, a full-time regular clerk’s position opened at that
facility. Three part-time clerks were eligible for the conver-
sion; in order of seniority (from most to least) they were
Terry Charey, Joan Eichler, and Mary White. Charey was of-
fered the job first, but she refused it. Eichler likewise was
offered the job, but she also refused it. White accepted the
position. The first time a grievance was filed on the subject
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As stated, supra, the Agreement provides that the grievance must be
brought ‘‘within fourteen days of the date on which the employee or the
Union first learned or may reasonably have been expected to have learned of
its cause.’’ Counsel for Respondent moved into evidence a decision of Herbert
L. Marx Jr. in an arbitration between Respondent and APWU in Hartford,
Connecticut, in 1984. In that case, the arbitrator found that even if the union
filed the grievance promptly after learning of it, the grievance was untimely
because the employee clearly knew about it more than 14 days before the
grievance was filed.
was in August, subsequent to the request for information
made by the Union. He testified that at about that time, he
received a telephone call from Vaughn asking about this con-
version. Vaughn asked him about the seniority order in his
post office and he told him the order, although he did not
know the starting dates so he could not give Vaughn that in-
formation. Vaughn asked for, and Santiamagro told him of,
the number of full-time positions at the facility, together with
job descriptions. Vaughn asked for the Form 50s for Eichler
and White. Santiamagro told him that there was nothing in
Eichler’s Form 50 stating that she declined the conversion
and that White’s Form 50 and folder was in Respondent’s
personnel office in Poughkeepsie. The grievance was denied
as being untimely;3 Santiamagio also added under ‘‘Manage-
ment’s Position’’: ‘‘Everybody in the office accepted the
procedures.’’ Additionally, Barton denied the grievance be-
cause Santiamagro had given Vaughn the information orally.
It should initially be stated that I found Santiamagro to be
an articulate, direct, and very credible witness. On the other
hand, Vaughn was evasive and, apparently, not credible in
his testimony on this subject. I found especially disturbing
the fact that he never mentioned the fact that the conversion
occurred in 1986, and he testified that on cross-examination,
that he did not know that it occurred in 1986. Even if he did
not want to take Santiamagro’s word for it, I assume that the
union members at Walkill told him that it occurred in 1986.
Having credited the testimony of Santiamagro over that of
Vaughn, I find that in about July or August, he answered
Vaughn’s questions about the conversion, as recited, supra.
The initial question therefore is whether an employer must
provide a union with requested information, when the under-
lying dispute on which the request is made is untimely and
could not result in a valid grievance. If yes, did
Santiamagro’s responses satisfy the request?
C. Discipline of Castellana at Walden
On October 24, Darryl Castellana, the union steward at the
Walden post office, was given a written warning for exces-
sive tardiness. On November 4, Castellana and Vaughn made
a request for information on the standard form used by the
parties. This request was for the following information for all
the employees at the Walden post office, including letter car-
riers and rural carriers, not represented by APWU and the
Union, and for J. Johnson (for the period while he was in
the bargaining unit, before he became supervisor at the facil-
ity) for the period June 3 through October 16: timecards,
Form 3971s (Respondent’s form for notification of scheduled
or unscheduled absences) and time and attendance records.
Vaughn testified that he requested this information to insure
the attendance rules were being followed uniformly for all
employees at the Walden facility, including the letter carriers
and the rural carriers who were represented by different labor
organizations, although the letter carriers were covered by
the same Agreement. The Union’s argument (for the future
grievance) was that Castellana’s warning was caused by dis-
parate treatment for the union steward. Respondent supplied
the information requested, but only for the APWU members;
not for the letter carriers or rural carriers at Walden, nor for
Johnson.
By letter dated November 15, Vaughn informed Barton:
As you are well aware, the Union has charged the Post-
al Service with disparate treatment (among other
charges) openly displayed toward the grievant who is a
union official (steward). The information that you are
refusing to release to our labor organization is essential
for comparative analysis to substantiate the union’s
contention of disparate treatment concerning irregular
clock rings at the Walden Post Office.
By letter dated November 20, Barton again denied the re-
quest for non-APWU represented employees and, on Decem-
ber 7, the Union appealed this denial to step 3; no action has
yet been taken on this appeal. Barton testified that he did not
provide the Union with the information regarding the letter
carriers and rural carriers because this information was not
relevant to the dispute. The rural carriers have a separate col-
lective-bargaining agreement; they do not punch a timeclock
and are not paid on an hourly basis. Their pay is determined
by a yearly evaluation of their route, which depends on the
amount of mail on that rural route. Barton testified further
that he did not provide the information regarding the letter
carriers because of the nature of their work (as compared to
the clerks) as it relates to tardiness. The clerk’s job is to sort
the mail and have it ready for the letter carriers to pick up
to deliver. ‘‘There are different considerations. The tardiness
of the person supposed to get the mail ready for the carriers
could have a different impact on the operation than the car-
rier himself.’’
D. Restrictions on Steward’s Activities at
Wappingers Falls
Vaughn is a steward on the third shift at the Wappingers
Falls facility—3–11 p.m. Prior to November, he and the
other stewards were almost never restricted in conducting
union business during working hours; they notified their im-
mediate supervisor that they wished to conduct union busi-
ness (investigate, process or adjust grievances, for example)
and 95 percent of the time, permission would be granted. Be-
ginning in November, and continuing for 3 months, the act-
ing tour superintendent, Steve Nardo, had these requests de-
nied from 6p.m. and thereafter almost on a daily basis, on
the basis of heavy mail volume. Vaughn testified that this
was the first occasion where the Union was so limited in
conducting its business during working time. On November
13, Vaughn made an information request (on the standard
form) for the mail volume count sheets at the facility ‘‘to de-
termine whether heavy mail volume actually exists when you
cut off union time.’’ Vaughn testified:
So, if they showed us there was, in fact, heavy mail
volume on everyday that they cut union time, then there
would be some validity to their actions. And we were
positive that it couldn’t be consecutively for a three
507POSTAL SERVICE
month period on every—just about every service day
that there’s heavy mail volume.
Barton denied this request because the information ‘‘is a
supervisory aid, is not an official record and is not retained.
Therefore, it is not available.’’ Vaughn testified that he does
not know whether that document is retained. He also testified
(on cross-examination) that Respondent prepares, on a daily
basis, a document which sets forth the total mail volume on
a particular tour. The Union requested that document regard-
ing the instant dispute and was given the document. On redi-
rect, Vaughn attempted to differentiate between the daily
mail volume count sheets that he requested (and was not
given) and the total mail volume sheets which he was given.
As best as I could understand, the only difference between
the two is that the daily mail volume count sheets are avail-
able through the mail flow coordinator, at least, on an hourly
basis.
Barton testified that the daily mail volume count sheets are
the superintendent’s notes which he makes to record the vol-
ume of mail at the facility. At the end of the day, he totals
the numbers to record the total daily volume of mail and
then discards them. The formal record of daily mail volume
is retained and was turned over to the Union on request. On
cross-examination, Barton was asked whether he understood
the Union’s request to mean that in the future the Union
wanted to be provided with the daily mail volume count
sheets:
A. What I viewed this to be was the Union was tell-
ing us that we must maintain this information.
Q. And provide it?
A. That’s correct.
E. LSM Rotation Lists
Respondent has two LSM machines at the Wappingers
Falls facility; as stated, supra, these are letter sorting ma-
chines. Each machine has 17 employees at any one time; the
basic job classifications are 12 console operators, 2 ledge
loaders, and 3 sweepers. In addition, there are different re-
sponsibilities among the 12 console operations. In order to
make these jobs less wearisome and boring, and to make job
assignments more equitable, about 5 years ago the Union and
Respondent agreed that these LSM assignments would be ro-
tated on a regular basis. Some supervisors prepare and post
the LSM rotation list as much as a week ahead of time; oth-
ers do so closer to the workday in question. Vaughn testified
that in November, one of these LSM machines had no reg-
ular supervisor; the temporary supervisors for this machine
were often unfamiliar with the rotation lists and were either
not preparing a list or were not properly rotating the employ-
ees, resulting in a lot of complaints to the Union from these
clerks. As a result, on November 10 (on the standard form)
the Union requested copies of daily LSM rotation lists for
tour 3. On November 13, Barton denied this request with the
notation: ‘‘Not official—Not retained.’’ The Union made the
same request on November 28 for the lists for the week No-
vember 27 through December 1 for tour 3. Barton also de-
nied this request—‘‘Not official—Not retained.’’ Vaughn tes-
tified that after receiving Barton’s November 13 response
that these LSM rotation lists are not retained, the Union
made the November 28 request for a period in the future—
through December 1—so that Respondent would retain the
lists, at least, for that week. He testified that the Union need-
ed these lists in order to determine whether LSM employees
had been improperly rotated. Barton testified that he would
have approved the November 10 request, but since the lists
are not retained, nothing was given to the Union. Barton’s
testimony regarding the November 28 request is somewhat
puzzling since I found him to be, otherwise, a very credible
witness:
It was a similar request that had already been deter-
mined on the previous request. It was not available be-
cause it was not retained. And that was essentially why
I denied the second report, because the union was al-
ready provided with information that it wasn’t retained
and not available.
This response is clearly not responsive to the question, be-
cause (with the exception of November 27) the request was
for future lists which, at the asking, could be retained. It is
not as if the lists self-destruct.
IV. ANALYSIS OF REFUSAL TO PROVIDE
INFORMATION ALLEGATIONS
In Sheraton Hartford Hotel, 289 NLRB 463 (1988), the
Board set forth the rule to be applied in cases such as the
instant matter, citing NLRB v. Acme Industrial Co., 385 U.S.
432 (1967), Pfizer, Inc., 268 NLRB 916 (1984); and South-
ern Nevada Builders Assn., 274 NLRB 350, 351 (1985):
Section 8(a)(5) . . . obligates an employer to provide
a union requested information if there is a probability
that the information would be relevant to the union in
fulfilling its statutory duties as bargaining representa-
tive. Where the requested information concerns wage
rates, job descriptions, and other information pertaining
to employees within the bargaining unit, the informa-
tion is presumptively relevant. Where the information
does not concern matters pertaining to the bargaining
unit, the union must show that the information is rel-
evant. When the requested information does not pertain
to matters related to the bargaining unit, to satisfy the
burden of showing relevance, the union must offer
more than mere suspicion for it to be entitled to the in-
formation.
The initial allegation involves the 1986 Walkill conversion
and whether Respondent has to provide the information,
since any grievance filed in its regard would, apparently, be
untimely, and, if Respondent is so obligated, has
Santiamagro already supplied that information orally to
Vaughn. My initial inclination is to find that since the
Walkill conversion occurred in 1986, certainly, with the
knowledge of the employees at the facility, a grievance about
it would be time barred; therefore Respondent need not
produce this information. Upon closer examination, I find
otherwise. In Safeway Stores, 236 NLRB 1126 fn. 1 (1978),
the Board stated:
before a union is put to the effort of arbitrating even
the question of arbitrability, it has a statutory right to
potentially relevant information necessary to allow it to
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In this regard, I find that the information turned over to the Union was
not not an adequate substitute. The information requested, the daily mail vol-
ume count, apparently, is maintained on an hourly basis and would therefore
be immediately available, and helpful in determining if the mail volume pre-
cluded steward activity on that particular day.
decide if the underlying grievances have merit and
whether they should be pursued at all.
In Island Creek Coal Co., 292 NLRB 480 (1989), the
Board stated: ‘‘The Board does not pass on the merits of the
union’s claim that the employer breached the collective bar-
gaining contract.’’
Although the evidence appears to establish that the Walkill
conversion occurred in 1986, and that any grievance in that
regard would be time barred, that is not a decision for me
to make. Rather, I must decide whether the information
sought is relevant according to the cases cited above. It
clearly is relevant to the propriety of the conversion and the
information must therefore be provided. If a resulting griev-
ance is timebarred, that is for an arbitrator to decide.
The next issue is whether the information that Santiamagro
gave to Vaughn satisfied this. As stated, supra, I found
Santiamagro to be an extremely credible witness and credit
his testimony over Vaughn. I, therefore, find that
Santiamagro told Vaughn of the seniority order of the clerks
at his facility, but not their seniority dates because he did not
have that information and he does not have a seniority list
at his facility because of its small size. Vaughn asked him
for the Form 50 for White and Eichler. Santiamagro in-
formed him that White’s Form 50 was in Respondent’s main
facility in Poughkeepsie and Eichler’s Form 50 contained no
information regarding the 1986 conversion. Vaughn did not
ask Santiamagro for their personnel files. He did ask how
many current full-time bid positions were available at the
Walkill facility and Santiamagro told him that there was one
window clerk position. It appears that the only information
that Santiamagro did not provide Vaughn with in this con-
versation that Vaughn had requested on August 1 are the last
two items: the Form 50 for Eichler and White and any infor-
mation in their personnel files regarding the conversion
(which Vaughn did not ask Santiamagro about). As to these
items, Respondent’s refusal to provide the information vio-
lates Section 8(a)(1)(5) of the Act and I shall recommend
that Respondent be ordered to provide this information to the
Union.
The next issue is whether Respondent’s refusal to provide
the Union with the requested information for the non-APWU
employees at Walden violates Section 8(a)(1) and (5) of the
Act. As the Board stated in Sheraton Hartford, supra and
Pfizer, supra, where a request is for information regarding
employees outside of the bargaining unit, the union must es-
tablish the relevance of that information. In Curtiss-Wright
Corp., 145 NLRB 152, 157 (1971), the (then) trial examiner
stated:
Stated simply, I believe there is a presumption of rel-
evance when the data covers employees within the unit
and that no such presumption exists when the employee
is outside of the unit. . . . Therefore, the Union to be
entitled to the data it seeks must establish, unmarked by
any presumption of relevance, that the material bears a
reasonable relation to the Union’s role as bargaining
representative.
As applied to the facts of the case, I find that Respondent
must provide the Union with the information concerning the
letter carriers, but not the rural carriers at the Walden facil-
ity. I agree with Respondent’s position, and Barton’s testi-
mony, that the rural carrier’s job and compensation is so dif-
ferent from that of Castellano to make the requested informa-
tion irrelevant to his situation. However, unlike the rural car-
riers, the letter carriers are covered by the same Agreement
as the APWU employees, are paid on an hourly basis and
punch a timeclock. Even though there is some merit to Bar-
ton’s testimony distinguishing between the two crafts, they
have enough in common so that tardiness in either would be
disruptive of the facility’s operation. I therefore find that the
Union has established the relevance of this information con-
cerning the letter carriers, but not the rural carriers and that
the refusal to provide this information, as requested, violated
Section 8(a)(1) and (5) of the Act. I shall therefore rec-
ommend that Respondent be ordered to provide the informa-
tion requested on November 4 concerning the letter carriers
(who are members of NALC) and the information concerning
Johnson (who, apparently, was a clerk prior to becoming a
supervisor) for the period requested.
As regards the final two issues—the restrictions on stew-
ard activity because of heavy mail volume and the LSM rota-
tion lists (information which I find clearly relevant to the
Union)—Respondent’s response for not providing the infor-
mation was virtually identical—that these were not official
documents and (more importantly) they were not retained by
Respondent. When a document is discarded prior to a valid
request for its production there is nothing remaining to pro-
vide. In the instant situation, however, the Union requested
this information in futuro. Although I found Barton to be an
otherwise credible witness, he never explained why he did
not provide the Union with the information after they re-
quested it for a future period. It would have been a simple
matter to save rather than discard the information. I therefore
find that Respondent violated Section 8(a)(1) and (5) of the
Act by refusing to provide the Union with the daily mail vol-
ume count maintained by its mail flow coordinator4 and the
daily LSM rotation lists for tour from November 27 through
December 1.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over Respondent pursuant to
Section 1209 of the PRA.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. APWU (and, through it, the Union) is the exclusive col-
lective-bargaining representative of the following employees
of Respondent, which is more fully described in the collec-
tive-bargaining agreement between the parties effective July
21, 1987, through November 20, 1990: maintenance employ-
ees, special delivery messengers, motor vehicle employees,
and postal clerks.
4. Respondent violated Section 8(a)(1) and (5) of the Act
by failing and refusing to provide the Union with informa-
tion it requested between August 1 and November 28, said
information being relevant and necessary to the Union as the
collective-bargaining representative of the employees in the
above-mentioned unit.
509POSTAL SERVICE
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
6 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
3. Respondent did not violate the Act as further alleged in
the amended consolidated complaint.
REMEDY
It having been found that Respondent has violated Section
8(a)(1) and (5) of the Act by failing and refusing to provide
the Union with information it requested between August 1
and November 28, 1989, it will be recommended that Re-
spondent cease and desist therefrom and to promptly, upon
re-request, supply said information (as set forth above and
below) to the Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, United States Postal Service, Pough-
keepsie, Wappingers Falls, Wallkill, and Walden, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide the Union with infor-
mation it requested by letters between August 1 and Novem-
ber 28, 1989, said information being relevant and necessary
to the Union as the collective-bargaining representative of
certain of Respondent’s employees.
(b) In any like or related manner interfering with, restrain-
ing, and coercing employees in the exercise of rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Promptly, on re-request, furnish the Union with the fol-
lowing information:
(i) Respondent’s Form 50 for Joan Eichler and Mary
White and any information in their personnel files con-
cerning the Wallkill conversion, as per the Union’s August
1, 1989 request.
(ii) All timecards, attendance records, and other informa-
tion requested by the Union in its November 4, 1989 request,
for the letter carriers at the Walden facility, as well as for
Jay Johnson.
(iii) The daily mail volume count sheets for tour III at the
Wappingers Falls facility, as maintained by the mail flow co-
ordinator, as requested by the Union on November 13 and
20, 1989.
(iv) The LSM rotation lists, for tour III as requested by
the Union on November 10 and 28, 1989.
(b) Post at its facilities in Poughkeepsie, Wappingens
Falls, Wallkill, and Walden, New York, copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 3, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegation that Respond-
ent violated the Act by failing and refusing to meet with the
Union’s designated alternate stewards is hereby dismissed.