Postal Service

National Labor Relations Board - Board Decisions

Apr 30, 1992

307 N.L.R.B. 429 (N.L.R.B. 1992)

429
307 NLRB No. 63
POSTAL SERVICE
1 In the ‘‘Discussion and Conclusions’’ portion of her decision, the
judge inadvertently placed quotation marks around what is in fact a
paraphrase of the Board’s holding in Postal Service (Main Post Of-
fice), 289 NLRB 942 (1988). We correct the error.
2 The Respondent relies, inter alia, on Westinghouse Electric
Corp., 304 NLRB 703 (1991), in support of its contention that, even
if the Board adopts the judge’s finding of a violation, it should not
order that the disputed information be provided to the Union. The
basis for the argument is that, with the conclusion of the arbitration,
the information is no longer relevant. Respondent’s reliance is mis-
placed. In Westinghouse, no exception was taken to the judge’s find-
ings that the only possible relevance of the information was in con-
nection with a proceeding to reopen the arbitration, and the arbitrator
there was completely without authority to reopen such record. In the
instant case, no such showing has been made by the Respondent
and, accordingly, we agree with the judge that an affirmative remedy
is warranted.
We shall modify the judge’s recommended remedy and cease-and-
desist provisions of her recommended Order by deleting references
to the Respondent’s ‘‘affiliated local,’’ to reflect the parties’ stipula-
tion that it is immaterial whether Local 320 is a labor organization
as the Respondent does not dispute that a duly authorized agent of
the National Union requested the information that is disputed in this
case. No revision is necessary to the judge’s recommended notice,
which is consistent with this modification.
United States Postal Service and American Postal
Workers Union, Local No. 320, AFL–CIO.
Case 32–CA–10619(P)
April 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 12, 1991, Administrative Law Judge
Joan Wieder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
States Postal Service, Stockton, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Substitute the following for paragraph 1(a).
‘‘(a) Refusing to bargain collectively with the Amer-
ican Postal Workers Union, AFL–CIO as the exclusive
representative of all the employees in a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act, composed of:
All postal clerks, maintenance employees,
custodians and special delivery messengers; EX-
CLUDING all other employees, guards, and su-
pervisors, as defined in the Act,
by refusing to furnish it the requested Turner action
letter.’’
Virginia L. Jordan, Esq., for the General Counsel.
M. Perry Johnson Jr., Esq., of San Bruno, California, for the
Respondent.
Lyal Beeskau, of Stockton, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. I heard this
case in Stockton, California, on August 8, 1991. On or about
October 2, 1989, a charge was filed by American Postal
Workers Union Local No. 320, AFL–CIO (the Charging
Party, APWU, or Union) against the United States Postal
Service (Respondent). Following an investigation, the Re-
gional Director for Region 32 of the National Labor Rela-
tions Board issued a complaint and notice of hearing dated
November 13, 1989, as amended, alleging, inter alia, Re-
spondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act, when, since about August 24, 1989, it
failed and refused to provide the Union with certain informa-
tion necessary for and relevant to the Union’s performance
of its function as the exclusive collective-bargaining rep-
resentative of the employees in the unit.
Respondent discharged a postal clerk, M. Tomingo, for
‘‘threatening to kill a fellow employee.’’ The Union filed a
grievance concerning Tomingo’s discharge. The Union re-
quested information and documents in preparation for proc-
essing this grievance, including a ‘‘copy of action letter
against S. Turner, supervisor, involving Naomi Bravo.’’ Re-
spondent denied the Union’s request for the Turner action
letter.
Respondent’s timely filed answer to the complaint, as
amended, admits certain allegations, denies others, and de-
nies any wrongdoing. Respondent seeks dismissal on several
grounds: (1) the requested information was not relevant to
the grievance; (2) the requested information is confidential;
(3) Respondent is precluded from providing the Turner ac-
tion letter by the Privacy Act; (4) the Board should defer to
the final and binding decision of Arbitrator Levak; and, (5)
the Board should defer to the ‘‘National Arbitration Deci-
sion’’ of Arbitrator Carlton Snow.
All parties were given full opportunity to appear and intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs.
Based on the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent informed Beeskau in early November 1988 that
Turner had received a letter of warning for his actions in the Bravo
incident. The APWU sent Respondent a letter protesting the resolu-
tion of the Bravo grievance which specifically claimed Bravo was
‘‘harassed, cursed and assaulted’’ by Supervisor Turner. The Union
protested the resolution of the Bravo grievance and after step 3, Re-
spondent informed the Union the Union’s request Turner be sepa-
rated until completion of an investigation is ‘‘not within the purview
of the National Agreement grievance-arbitration procedure.’’ The
parties then agreed to accept the step 3 decision.
2 Respondent’s Stockton director of human resources, Uman, testi-
fied he denied the Union’s request for the Turner action letter for
several reasons including:
(1) Mr. Turner is not in the bargaining unit, he’s a supervisor,
covered under different procedures. So, I felt that it was inap-
propriate to give the APWU a copy of the records belonging to
Mr. Turner.
(2) I didn’t feel that the cases were anywhere similar. So, I
didn’t see any relevance in giving them that information.
(3) . . . there was the Privacy issue. The Privacy Act requires
me not to give that information.
(4) And then also for the privacy of Mr. Turner. Not giving
the information to the union, lessening his effectiveness as a su-
pervisor, number one, and number two, I just wasn’t confident
of what the union would do with the information. I didn’t know
that they wouldn’t post it on the bulletin board or advertise it
around.
3 Turner worked at the General Mail facility and Tomingo worked
at West Lane Station, both facilities are within the same division and
subject to the same policy against assaults quoted above.
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent’s answer to the complaint admits, the parties
have stipulated, and I find that Respondent provides postal
services for and operates various facilities throughout the
United States in the performance thereof, including the Gen-
eral Mail facility located at 3131 Arch Road and a substation
at 425 West Lane, both in Stockton, California. Both are ad-
ministered by the Sacramento division of Respondent. The
Board has jurisdiction pursuant to 39 U.S.C. § 1209 of the
Postal Reorganization Act (39 U.S.C. § 101 et seq.).
The parties further stipulated: The APWU is now, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the National Labor Relations Act.
The parties agree as set forth more fully below, that it is im-
material whether Local 320 of the APWU or any other local
of the APWU is also a labor organization within the meaning
of Section 2(5) of the Act as Respondent does not dispute
that a duly authorized agent of the recognized bargaining
agent requested the information which is disputed in this
case.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background
Generally, the facts are undisputed. The parties have en-
tered into a stipulation of facts, attached as Appendix A.
Manuel Tomingo was employed by Respondent from No-
vember 20, 1972, to his termination on September 20, 1989.
On August 11, 1989, Tomingo allegedly engaged in a verbal
altercation during which he threatened to kill a coworker.
After considering Tomingo’s version of the incident, Re-
spondent, on August 20, 1989, issued a ‘‘Notice of Proposed
Removal.’’
The general manager/postmaster for the Sacramento divi-
sion, which includes Stockton, California, issued a memo-
randum dated June 15, 1987, to all employees of the Sac-
ramento division which provided, in part, as follows:
There is no place for attacks or threats of physical vio-
lence by employees against other employees in the
workplace.
Actual physical attacks by employees constitute very
serious misconduct. While threats of violence may ap-
pear less serious, such conduct causes very real concern
and apprehension on the part of the employees to whom
they are directed and such is also considered to be seri-
ous misconduct.
Employees have a responsibility to not engage in
threats or assaults. Any employee who has been sub-
jected to physical attack or a threat of violence has a
responsibility to promptly contact his or her supervisor
or the Postal Inspection Service. Appropriate adminis-
trative measures will be taken when this misconduct oc-
curs, including severe disciplinary action and removal
as warranted. Violence or threats of violence will not
be tolerated.
In response to the notice of removal, on August 24, 1989,
Union Steward Lyal Beeskau requested information; includ-
ing the Turner action letter.1 Turner, an admitted supervisor,
was involved in another grievance alleging he assaulted em-
ployee Naomi Bravo. The grievance is referred to as the
Bravo grievance. On August 25, 1989, Beeskau received a
denial from David Uman,2 without any explanation why Re-
spondent would not furnish the Turner action letter. The
Union, on September 7, 1989, filed a step 2 grievance con-
tending the discipline imposed on Tomingo by Respondent
was too severe ‘‘considering other cases of similar nature at
the General Mail Facility’’ and Respondent’s failure to pro-
vide requested information involving discipline of other em-
ployees at the facility, including the Turner action letter. Re-
spondent denied the Union’s step 2 appeal because the Turn-
er incident occurred at a different facility under different su-
pervision3 and ‘‘the policy of this Division that appropriate
administrative measures will be taken when this type of mis-
conduct occurs, including severe disciplinary action and re-
moval if warranted.’’
The Union entered a step 3 appeal on September 22, 1989,
which Respondent denied on November 7, 1989. The Turner
discipline was specifically mentioned in the step 3 appeal as
illustrative of its claim of disparate treatment of Tomingo.
The denial of the appeal by Respondent does not specifically
mention the Turner action letter or any other information re-
quested by the Union and does not directly and specifically
address any request for this information.
On November 22, 1989, the APWU referred the Tomingo
grievance to arbitration. The Tomingo termination grievance
was arbitrated on January 23, 1990, and the arbitrator issued
his opinion and award on February 5, 1990. The arbitrator
concluded Respondent established by a preponderance of the
evidence it had just cause for Tomingo’s termination and de-
nied the grievance. The arbitrator noted the Union’s request
for a copy of the Harvey Hammond case file and the Sederic
431POSTAL SERVICE
Turner action letter had been refused by Respondent and that
the Union filed an unfair labor practice charge concerning
Respondent’s refusal to provide the requested information.
After the Region issued a complaint in the instant pro-
ceeding, Respondent provided the Union with a copy of the
Hammond suspension letter.
Arbitrator Thomas F. Levak also found:
[T]he Union had a copy of the 7-day suspension letter
issued to Hammond which it had received from him but
did not have his entire file. Also, as noted above, Ham-
mond testified at the arbitration hearing, and it is clear
that at all time relevant the Union had knowledge of
relevant facts of the Hammond case. Similarly, the
Union had obtained all of the relevant facts concerning
the Turner case from Bravo, and had obtained addi-
tional facts through the grievance filed on her behalf
against Turner, which was appealed through Step 3, and
from the EEOC proceeding.
All the foregoing demonstrates that the Union was
not prejudiced at the arbitration hearing by the Serv-
ice’s initial refusal to release the requested information.
In addition, the Arbitrator has concluded that nothing
within the National Agreement requires the release of
materials concerning administrative or disciplinary ac-
tion taken against supervisors. Action or non-action
against supervisors is a matter totally outside the Na-
tional Agreement and within managerial discretion, and
cannot be utilized in arbitration to provide a basis for
a disparate treatment argument. Such an argument must
pertain to bargaining unit employees only. Therefore,
the arbitrator rejects the Union’s Article 17.3 defense.
B. Position of the Parties
The General Counsel argues the Respondent had an obli-
gation to provide the requested information to the APWU for
it was relevant to the Tomingo grievance. The Union’s chief
shop steward, Lyal Beeskau, testified he requested the infor-
mation to determine if there was disparate treatment, and to
determine ‘‘if management was treating supervisors the same
as clerk craft employees in similar offenses.’’ As previously
mentioned, Respondent has a policy concerning attacks or
threats of physical violence dated June 15, 1987, which ap-
plies to all personnel.
Respondent denies the information was relevant, claiming
disciplinary procedures involving supervisors are different
from the progressive discipline requirements of the collec-
tive-bargaining agreement. Thus, Respondent claims the dis-
parate treatment argument is without merit. Respondent also
argues the complaint should be dismissed as moot for the ar-
bitrator concluded the Turner action letter is not relevant to
the Tomingo grievance and would not have been admissible
if it had been offered in evidence in the arbitration pro-
ceeding. In the alternative, Respondent claims, if the infor-
mation about a supervisor is found relevant, then Respond-
ent’s need to keep such information about supervisors con-
fidential outweighs the Union’s need for the information in
processing a grievance. Respondent argues the Privacy Act
of 1973 requires the requested information be kept confiden-
tial and not be disclosed, except under certain conditions not
met in this proceeding.
Respondent moved for dismissal of the complaint for the
above-stated reasons, and because the General Counsel failed
to meet his burden of proving a violation by a preponderance
of the evidence. Also, Respondent argues for dismissal be-
cause the APWU had been informed the Bravo grievance
was resolved by the issuance of a warning letter to Super-
visor Turner. Beeskau was informed by Dale Vernon, the
president of the APWU Local 320, of the resolution of the
Bravo grievance by the issuance of a warning letter well be-
fore the commencement of Tomingo’s case.
Another basis Respondent posited for dismissal was the
APWU’s decision to proceed with the arbitration of the
Tomingo termination grievance without the Turner warning
letter. Respondent avers the arbitrator
directly confronted the question in his arbitration deci-
sion . . . and ruled under binding arbitration provisions
of the contract, first of all, that the union already had,
through other sources, all of the information that it
needed to make those arguments. And secondly, that
the information was totally irrelevant to the proceeding.
For the reasons stated below, Respondent’s motion to dismiss
the complaint is denied.
C. Discussion and Conclusions
The initial question is whether the requested information
is relevant to the Union’s performance of its statutory duties
as the employees’ bargaining representative. NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956); NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967); Detroit Edison Co. v. NLRB, 440
U.S. 301 (1979). In determining relevance, the material re-
quested should be ‘‘reasonably necessary’’ for the Union’s
function as the employees’ statutory representative; NLRB v.
Item Co., 220 F.2d 956 (5th Cir. 1955); whether there is a
‘‘probability that the desired information [is] relevant, and
that it would be of use to the union in carrying out its statu-
tory duties and responsibilities.’’ NLRB v. Acme Industrial
Co., supra at 437. Relevance is determined in each case;
‘‘the rule is not per se, and in each case the Board must de-
termine whether the requested information is relevant, and if
relevant, whether it is sufficiently important or needed to in-
voke a statutory obligation of the other party to produce it.’’
Columbus Products Co., 259 NLRB 220 (1981).
The union is entitled to relevant information during the
term of the collective-bargaining agreement to evaluate or
process grievances and to perform other duties or take other
actions necessary to administer the agreement. Electrical
Workers v. NLRB, 648 F.2d 18, 25 (D.C. Cir. 1980); J. I.
Case Co. v. NLRB, 253 F.2d 149, 153 (7th Cir. 1958). Infor-
mation relating to employees outside the bargaining unit re-
quires a special demonstration of relevance. E. I. du Pont &
Co., 268 NLRB 1031 (1984); Amphlett Printing Co., 258
NLRB 86 (1981); Leland Stanford Junior University, 262
NLRB 136 (1982), enfd. 715 F.2d 473 (9th Cir. 1983). As
the Board held in Temple-Eastex, Inc., 228 NLRB 203
(1977):
It is well established that Section 8(a)(5) of the Act
imposes upon an employer the duty to furnish a union,
upon request, information relevant and necessary to en-
able the union to intelligently carry out its statutory ob-
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Board also held, at 289 NLRB 943:
It is undisputed that the Respondent’s restrictions on gambling
activity apply equally to supervisors and unit employees. Al-
though, as the Respondent asserts, there may be legitimate rea-
sons for imposing different degrees of discipline on supervisors
and unit employees for similar misconduct, the only reason of-
fered to justify such a disparity for the gambling violation here
is the different level of responsibility exercised by each group.
We do not agree, however, given the nature of the rule involved
and its applicability to both groups that the different degrees of
responsibility accorded each group automatically translates into
different standards of discipline in this instance, thereby compel-
ling a finding that the requested information has no bearing on
the grievances. Nor do we agree with the Respondent’s assertion
. . . that Marshall v. Western Grain Co., 838 F.2d 1165 (11th
Cir. 1988), supports its Motion for Summary Judgment.
ligations as the employees’ exclusive bargaining rep-
resentative. And, under the standard of relevancy as ap-
plied by the Board and the courts, it is sufficient that
the union’s claim for information be supported by a
showing of ‘‘probable’’ or ‘potential’ relevance. Fur-
thermore, the fact that the information requested by a
union may, as here, in part relate to employees outside
the scope of the unit it represents does not necessarily
justify an employer’s refusal to provide such informa-
tion.
The Union in this case has met its burden of showing
good faith and sufficient relevance and necessity to meet the
liberal discovery standards applicable in these cases; there is
a reasonable probability the information would have been be
useful to the Union in determining whether to file a griev-
ance, pursue a grievance, or take other action to assure the
contractual rights of unit employees. New York Times Co.,
270 NLRB 1267 (1984); San Diego Newspaper Guild v.
NLRB, 548 F.2d 863 (9th Cir. 1977); Boyers Construction
Co., 267 NLRB 227, 229 (1983); O & G Industries, 269
NLRB 986, 987 (1984).
The Union has shown the information sought has ‘‘some
bearing’’ on the issues involved in the grievance, the defense
of disparate enforcement of a divisionwide policy concerning
assaults or threats of violence. Postal Service (Main Post Of-
fice), 289 NLRB 942 (1988), enfd. 888 F.2d 1568 (11th Cir.
1989). Respondent admitted the rule was equally applicable
to unit members and nonunit members, including supervisors.
As the Board found id. at 942–943: ‘‘information requested
by unions concerning discipline of supervisors for violations
of the same rule has relevance and Respondent failed to
demonstrate legitimate reasons for imposing different degrees
of discipline for similar misconduct.’’ Citing Department of
Defense Dependent Schools, 28 FLRA No. 33 (1987). The
Union was informed by Respondent that Turner was not sus-
pended or terminated from his employment, unlike Tomingo.
Thus, the Union had objective facts to support its concern
Respondent engaged in inappropriate disparate discipline in
the Tomingo case. The potential relevance of the request
should have been clear to Respondent in the context of the
Tomingo grievance. Soule Glass v. NLRB, 652 F.2d 1055
(1st Cir. 1981); Westwood Import Co., 251 NLRB 1213,
1227 (1980), enfd. 681 F.2d 664 (9th Cir. 1982). There was
no inadequacy of communications, and the Union’s request
for the Turner action letter in performance of its statutory du-
ties was sufficient to activate Respondent’s duty to provide
the letter.
That the Union had verbal information Turner was dis-
ciplined by the issuance of a warning letter was not suffi-
cient; the Union did not know the contents of the letter and
had no means to determine if there was in fact disparate dis-
cipline imposed by Respondent because Turner was a super-
visor. Also, the Union doubted this information. As Beeskau
testified:
At the time [the information was requested], we
didn’t think anything existed and then we wanted to see
if management was treating supervisors the same as
clerk craft employees in similar offenses. And we were
trying to determine whether there was any disparate
treatment or not, involving Manuel Tomingo.
The Union had the right to determine if there was a simi-
larity of infraction and discipline to ascertain if they should
argue disparate treatment and to argue Turner’s offense was
similar to Tomingo’s, including any conditions placed on his
continued employment. In this case, the Union should have
been afforded the opportunity to determine if the Turner ac-
tion letter warranted the filing of a grievance for disparate
treatment or to continue their claim Respondent engaged in
disparate application of a policy equally applicable to super-
visors and unit members. Respondent has failed to establish
the disciplinary rules applicable to supervisors compared to
those enforced against Tomingo are substantively different in
instances involving violation of the policy against assaults or
threats of violence. The nature and difference in the assaults
or threats of violence has relevance only concerning the ar-
gument revolving around the justification for disparate treat-
ment, not a showing that there are ‘‘different standards of
discipline in this instance, thereby compelling a finding that
the requested information has no bearing on the grievances.’’
Postal Service (Main Post Office), supra, 289 NLRB at 943.4
As was the situation in the Main Post Office case, the as-
sault prohibition applied to all employees, including super-
visors, and ‘‘the requested information potentially has ‘some
bearing’ on whether the unit employees were harshly, un-
justly, or disparately treated.’’ Accordingly, I conclude Gen-
eral Counsel has borne his burden of establishing the re-
quested information is relevant and Respondent has failed to
establish the requested information does not have any bear-
ing on the allegation Tomingo was treated disparately. That
the requested information might not have provided ‘‘conclu-
sive proof of the allegations [of disparate treatment] in the
grievances, this does not mean that the information fails to
meet the relevancy standard by which such requests are
judged.’’ Id. at 943. Citing Pfizer, Inc., 268 NLRB 916
(1984), enfd. 763 F.2d 887 (7th Cir. 1985).
Respondent argues information concerning supervisors is
relevant only where the conduct of the supervisors and unit
members arose out of the same incident. This argument is
without merit. Department of Defense Dependent Schools,
supra, 28 FLRA No. 33 (1987). There is no requirement the
misconduct of unit and nonunit employees arise out of the
same incident. Rather, the requirement is the misconduct of
unit members is similar to the misconduct of nonunit em-
ployees. To find otherwise obviates the liberal discovery
standards applied to determine the relevance of requests for
information.
433POSTAL SERVICE
5 Art. 31, sec. 3, of the parties’ collective-bargaining agreement
provides:
The Employer will make available for inspection by the
Unions all relevant information necessary for collective bar-
gaining or the enforcement, administration or interpretation of
this Agreement, including information necessary to determine
whether to file or to continue the processing of a grievance
under this Agreement. Upon the request of the Union, the Em-
ployer will furnish 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 or Unions
may have to obtain information under the National Labor Rela-
tions Act, as amended.
Respondent has failed to distinguish disparate application
of rules arising from the same incident from allegations em-
ployers disparately applied a rule where separate incidents
are involved but the same rule violation is alleged in the
grievance. There were no factors or circumstances presented
by Respondent showing the information was less relevant
where the Union was meeting its statutory duties and respon-
sibilities to the grievant when the same rule or policy viola-
tion by a supervisor occurred in a different incident. Brazos
Electric Power Cooperative, 241 NLRB 1016 (1979), affd.
615 F.2d 1100 (5th Cir. 1980). In the circumstances of this
case, I conclude the request has relevance to a legitimate
union requirement. Id. at 1018. The Union had a legitimate
need for the information to prepare a grievance which may
have and did contend the discipline imposed on a unit mem-
ber was excessive and constituted disparate application of a
divisionwide rule.
The arbitrator’s conclusion the requested information was
not relevant under the collective-bargaining agreement is not
dispositive of the issue nor do I find it convincing. I find the
Respondent’s deferral argument to be without merit. The
Board has recently affirmed its ruling in Postal Service, 302
NLRB 918 (1991), ‘‘that issues concerning a refusal to sup-
ply information are not subject to deferral to the grievance-
arbitration process.’’ Citing Postal Service, 280 NLRB 685
fn. 2 (1986).
Assuming deferral should be considered on the merits, I
conclude such deferral would not be warranted in this case.
As previously noted, Respondent has failed to demonstrate
supervisors would be and are treated differently under the
Respondent’s divisionwide policy concerning assaults and
threats of violence. That the arbitrator determined the infor-
mation was not relevant under the contract does not deter-
mine the relevancy of the information under the National
Labor Relations Act nor permit a conclusion the Union
would find the information of no use in considering the posi-
tion of disparate enforcement of the no-assault rule.
Further, there was no indication the arbitrator considered
the statutory issue, rather, it appears he only acknowledged
the issue was pending before the Board. In this case, the
Union sought information prior to the commencement of the
grievance/arbitration procedure; information which I found
was clearly relevant to its evaluation and preparation of a
grievance. The arbitrator did not examine the impact of Re-
spondent’s failure to provide the information at the com-
mencement of the grievance procedures, which is further rea-
son not to defer to the arbitrator’s decision.
Respondent also requests deferral to a national arbitration
decision wherein Arbitrator Carlton J. Snow held, contrary to
Arbitrator Thomas F. Levak, that Respondent violated the
parties’ collective-bargaining agreement when it:
denied the Union’s request for information respecting
the possible discipline of two supervisors from the
grievant’s post office, who are alleged by the Union to
have engaged in specific misconduct both close in time
to and similar to that charged against the grievant, so
that the Union could compare the actual conduct and
subsequent treatment of the grievant and the supervisors
and/or potentially argue that the grievant’s discharge
was disparate and thus not for just cause.
Respondent failed to put the Snow decision in the record
even though it had knowledge of the award. There was no
explanation for this failure. As General Counsel noted in his
request, I reject Respondent’s motions and/or arguments
based on Arbitrator Snow’s award; the award was issued at
least 1 week prior to the August 8, 1991 hearing in the in-
stant case. There was no explanation for Respondent’s failure
to offer the Snow award during the hearing and it would be
inappropriate to not consider this determination. Further,
while the Snow award does involve a similar issue, it does
not involve the same fact situation and does not specifically
resolve the Tomingo grievance. However, even if the Snow
award was properly entered into the record, it would not lead
to deferral for the issues have not been mooted because the
details of the Tomingo case were not considered by Arbi-
trator Snow and Respondent admits the Snow award does not
resolve Respondent’s claim the Privacy Act requires it to not
disclose the Turner action letter.
To defer to the arbitrators’ conclusions and/or dismiss this
proceeding based on their decisions would breach the
Board’s holdings in Postal Service, supra, and Postal Serv-
ice, supra at 685 fn. 2 and preclude the Union from perform-
ing its duty to evaluate the merits of a member’s complaint.
To hold otherwise would convert a statutory right into a con-
tractual right by virtue of the Union’s proceeding with the
arbitration pending the resolution of the unfair labor practice
charge and/or improperly infer waiver5 where the Union did
not clearly and unmistakably waive its statutory rights. On
the contrary, as noted herein, the collective-bargaining agree-
ment specifically provides there is no waiver of the Union’s
rights to obtain information under the Act. Also, as the Gen-
eral Counsel notes, Tomingo had been discharged and the
Union’s decision to proceed with the grievance/arbitration in
an attempt to restore his employment does not waive or moot
the alleged statutory violation of failure to provide relevant
information. Pfizer, Inc., supra, 268 NLRB 916.
Respondent also claims the information sought is con-
fidential and asserts giving the Union the information would
adversely impact upon Turner’s ability to function as a su-
pervisor and raised the potential the Union would make the
letter public. There is no showing the Union has ever
breached a confidence with Respondent or was prone to
make the information public. Respondent has failed to meet
its burden of establishing the claim of privilege based on
needed confidentiality.
The Union knew Turner assaulted Bravo and was told
Turner had received an action letter as a result of a griev-
ance. The Employer failed to show what harm would result
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
if it permitted the Union to verify this information and per-
mitted the Union to ascertain the nature and conditions of the
disciplinary action taken against Turner. I find Respondent
has not attempted to respond to the Union’s request for infor-
mation and did not attempt to mitigate any real or imagined
business concerns by proposing to provide the information
subject to reasonable restrictions. The Respondent has failed
to meet its obligation to ‘‘bargain for an accommodation be-
tween the union’s information needs and the employer’s jus-
tified interest.’’ Pennsylvania Power & Light, 301 NLRB
1104 (1991).
Further, Respondent failed to demonstrate it even informed
the Union of its claim the requested action letter was con-
fidential and/or offered to negotiate means the Union could
have met Respondent’s concerns the information could be-
come public and adversely impact on Turner’s supervisory
duties. As the Board held in Washington Gas Light Co., 273
NLRB 116, 117 (1984): ‘‘The party asserting the claim of
confidentiality has the burden of proof. [McDonnell Douglas
Corp., 224 NLRB 881, 890 (1976).]’’
I conclude Respondent has failed to prove its claim their
interests in keeping the Turner action letter confidentiality
outweighs the Union’s need for the requested information.
Respondent has failed to adduce evidence of a clear past
practice or policy of confidentiality to support the claim. Re-
spondent has not demonstrated it informed the supervisors
their files were confidential or that the supervisors have re-
quested a confidentiality policy. On the contrary, Turner’s
actions should have reasonably led him to anticipate any con-
sequences of his verbal assault would become public knowl-
edge. Respondent apparently has unfettered access to the
files, and admittedly disclosed to the Union they disciplined
Turner and the details of this discipline was contained in
Turner’s action letter. Respondent failed to explain why this
partial disclosure was less damaging to its interests than pro-
vision of the action letter.
Further, I find Respondent’s claim of a need for confiden-
tiality to protect supervisors in their working relationships
with line employees has not been shown to outweigh the
Union’s statutory and contractual rights to ‘‘information nec-
essary to determine whether to file or to continue the proc-
essing of a grievance under this Agreement.’’ The Union has
not requested to see Turner’s personnel file, only the action
letter Respondent informed them it issued to Turner for vio-
lating the same work rule Tomingo allegedly violated. On
this record I find Respondent had failed to demonstrate its
claimed interests in keeping the Turner action letter confiden-
tial outweighs the Union’s statutory right to represent em-
ployees in the unit in processing of grievances.
The Board has previously rejected Respondent’s confiden-
tiality claim in similar circumstances, Postal Service (Main
Post Office), supra, 289 NLRB at 944, finding:
Moreover, unlike information [in NLRB v. Detroit
Edison Co., 440 U.S. 301 (1979)] reflecting confiden-
tial assessments by testing professionals of an individ-
ual’s ‘‘basic competence,’’ no established public policy
against disclosure of the information requested here ex-
ists. The information in question concerns willful activ-
ity of a kind that the Respondent has itself made the
public basis for discipline and discharges of employees.
Further, there was no showing that the supervisors ex-
pected the requested information to remain confidential
or that the Respondent made a commitment to the su-
pervisors to keep the information confidential.
Another defense raised by Respondent is it is prohibited
from disclosing the requested information by the Privacy Act
of 1974, 5 U.S.C. § 552(a). I conclude Respondent has
failed to demonstrate considerations under the Privacy Act
mandate withholding of the information or outweigh the
Union’s need for the information. In Postal Service (Main
Post Office), supra, 289 NLRB 942 at 944–945 (1988), enfd.
888 F.2d 1568 (1989), the Board held:
Finally, the Respondent argues that it need not dis-
close the information because it is restricted from doing
so under the Privacy Act of 1974. . . . The Respond-
ent admits, however, that the requested information is
stored in two record systems which provide for disclo-
sure pursuant to the routine uses exception in the Pri-
vacy Act. Further, the Respondent admits that one of
the routine uses which both record systems provide for
is the following:
Pursuant to the National Labor Relations Act,
records from this system may be furnished to a labor
organization upon its request when needed by that orga-
nization to perform properly its duties as the collective
bargaining representative of postal employees in an ap-
propriate unit.
Thus, given our finding that the requested information
is relevant and given that the very use for which the
information has been requested is defined as a routine
use for the information, we find that the Privacy Act
does not prevent disclosure of the information. Citing
Postal Service, supra, 280 NLRB 685 (1986), enfd. 841
F.2d 141 (6th Cir. 1988).
Respondent has not disputed the factual basis for this find-
ing and thus I conclude these precedents are binding and the
claim the Privacy Act prevents disclosure of the information
is, under these circumstances, not meritorious.
I find since on or about August 25, 1989, Respondent has
refused to provide requested information to the Union and
since that date has refused to provide that information to the
Union which are unlawful refusals to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over Respondent pursuant to
Section 1209 of the Postal Reform Act.
2. American Postal Workers Union, AFL–CIO (APWU) is
a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material APWU has been the exclusive col-
lective-bargaining representative within the meaning of Sec-
tion 9(a) of the Act for the following employees:
All postal clerks, maintenance employees, custodians
and special delivery messengers; EXCLUDING all
other employees, guards, and supervisors, as defined in
the Act.
435POSTAL SERVICE
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
4. By failing and refusing to furnish the Union with cer-
tain information requested by it concerning the disciplinary
record of a supervisor who violated the divisionwide policy
against assaults and threats of violence or threats of violence,
Respondent has engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
It having been found Respondent has violated Section
8(a)(5) and (1) of the Act by failing and refusing to provide
the APWU, and/or its affiliated local, with information it re-
quested on August 24, 1989, I recommend that Respondent
cease and desist therefrom and that it take certain affirmative
action necessary to effectuate the policies of the Act.
I recommend, inter alia, Respondent be required to furnish
the Union, on request, the Turner action letter.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, United States Postal Service, Stockton,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the American
Postal Workers Union, AFL–CIO as the exclusive representa-
tive of all the employees in a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act, composed of:
All postal clerks, maintenance employees, custodians
and special delivery messengers; EXCLUDING all
other employees, guards, and supervisors, as defined in
the Act, by refusing to furnish it or its affiliated local,
the requested Turner action letter.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish the Union the requested discipli-
nary Turner action letter.
(b) Post at all facilities in Stockton, California, copies of
the attached notice marked ‘‘Appendix B.’’7 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 32, after being signed by Respondent’s authorized rep-
resentative, shall be posted immediately upon receipt and
maintained by Respondent for 60 consecutive days in con-
spicuous places including all places where notices are cus-
tomarily posted. Reasonable steps shall be taken by Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 32 in writing
within 20 days from the date of this Order what steps the
Respondent has taken to comply.
APPENDIX A
STIPULATION OF FACTS
1. The charge was filed by the American Postal Workers
Union, AFL–CIO (herein APWU) on or about October 2,
1989, and served on Respondent on or about that same date
by certified mail.
2. Respondent provides postal services for and operates
various facilities throughout the United States in the perform-
ance thereof, including the General Mail facility located at
3131 Arch Road and a substation at 425 West Lane, both in
Stockton, California. Both are administered by the Sac-
ramento Division of Respondent. The Board has jurisdiction
pursuant to 39 U.S.C. Section 1209 of the Postal Reorganiza-
tion Act (39 U.S.C. Section 101, et seq.).
3. The APWU is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the National Labor Relations Act. The parties agree,
as set forth more fully below, that it is immaterial whether
Local 320 of the APWU or any other local of the APWU
is also a labor organization within the meaning of Section
2(5) of the Act as Respondent does not dispute that a duly
authorized agent of the recognized bargaining agent re-
quested the information which is disputed in this case.
4. The employees of Respondent which constitute a unit
for collective bargaining pursuant to Section 9(b) of the Na-
tional Labor Relations Act are all postal clerks, maintenance
employees, custodians and special delivery messengers; ex-
cluding all other employees, guards, and supervisors as de-
fined in the Act.
5. The APWU has been the recognized bargaining rep-
resentative of the employees in the bargaining unit since at
least 1974, and at all times material to this case has been the
designated exclusive bargaining representative of those em-
ployees and has been recognized as such by Respondent. At
all times relevant, the APWU has, by virtue of Section 9(a)
of the Act, been the representative of the employees in the
unit with respect to rates of pay, wages, hours of employ-
ment and other terms and conditions of employment.
6. Since at least 1974, the APWU and Respondent have
negotiated a series of collective bargaining agreements. The
one in affect [sic] at all time[s] relevant to this case was ef-
fective by its terms for the period of July 21, 1987 to No-
vember 20, 1990 and is in evidence as Joint Exhibit 2.
7. On or about August 24, 1987, the APWU, through Lyal
Beeskau, the Chief Steward of the APWU appointed pursu-
ant to Article 17 of the collective bargaining agreement, re-
quested, inter alia, ‘‘a copy of [the] action against S. Turner,
Super., involving Naomi Bravo.’’ Mr. Beeskau was at this
time an authorized agent of the APWU for the purpose of
requesting this information for the purposes of a grievance.
Accordingly, it is immaterial to this proceeding to make any
factual or legal determination concerning the status of the
Local Union, including any determination whether it is a
labor organization as defined in Section 2(5) of the Act.
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. The request for the action letter concerning any dis-
cipline allegedly taken against Mr. Turner was denied by Re-
spondent in writing on August 25, 1987, and has been denied
to the APWU at all times since. The request of August 24,
1989, and the denial of August 25, 1989, are entered as Joint
Exhibit 3 (one page).
9. At all times material herein, the following-named indi-
viduals occupied the positions set forth opposite their respec-
tive names, and are now, and have been at all times material
herein, supervisors of Respondent within the meaning of Sec-
tion 2(11) of the Act and agents of Respondent within the
meaning of Section 2(13) of the Act:
G. Valine Area Manager,
Stations/Branches
David Uman MSC Director, Human
Resources
10. Manuel G. Tomingo was employed by Respondent in
the Unit from November 20, 1972 until his termination on
September 20, 1989.
11. On August 11, 1989, Manuel Tomingo was involved
in a verbal altercation with fellow Unit employee Frank
Sapata during which Tomingo allegedly threatened to kill
Sapata. This verbal altercation is referred to herein as the In-
cident.
12. Frank Sapata reported the Incident to Respondent’s su-
pervisors.
13. On August 11, 1989, pursuant to a request from Re-
spondent, Manuel G. Tomingo prepared and submitted to Re-
spondent a hand-written description of his version of the In-
cident.
14. On August 20, 1989, Manuel G. Tomingo received a
‘‘Notice of Proposed Removal’’ dated August 17, 1989. The
Notice is entered as Joint Exhibit 4.
15. Respondent has a policy against ‘‘Assaults and threats
of violence or Threats of Violence,’’ which was in effect at
the time of the Incident. The policy is entered as Joint Ex-
hibit 5.
16. (a) Since on or about August 24, 1989, APWU, in
writing, has requested that Respondent provide it with certain
information relating to Respondent’s disciplining, or lack
thereof, of a named supervisor (Sederic Turner) for allegedly
striking an employee of Respondent. (Joint Exhibit 3)
(b) Since on or about August 25, 1989, Respondent has
failed and refused, and continues to fail and refuse, [to fur-
nish the] APWU with the information requested concerning
Sederic Turner. This refusal was communicated to the
APWU by letter of August 25, 1989. (Joint Exhibit 3)
17. Entered as Joint Exhibit 6 is the October 21, 1988 Step
2 Grievance Appeal Form filed by APWU, on Naomi Bra-
vo’s behalf against Turner, herein called the Bravo Griev-
ance. Entered as Joint Exhibit 7 is the November 4, 1988 re-
sponse of Respondent to the Bravo Grievance.
18. In early November 1988, Chief Steward Lyal Beeskau,
in conjunction with the Bravo Grievance, was informed by
Respondent that Turner had received a letter of warning for
engaging in the activity involved in the Bravo Grievance.
19. On November 23, 1988, APWU, sent a letter of protest
to Respondent regarding Respondent’s purported ‘‘settle-
ment’’ of the Bravo Grievance. The letter is entered as Joint
Exhibit 8.
20. On September 7, 1989, APWU, through the Union,
filed with Respondent a Step 2 Grievance Appeal Form relat-
ing to Manuel G. Tomingo’s proposed termination. The Step
2 Grievance Appeal Form is entered as Joint Exhibit 9. On
September 20, 1989, Respondent denied Manuel G.
Tomingo’s grievance at the Step 2 level. Respondent’s re-
sponse to the Step 2 grievance is entered as Joint Exhibit 10.
On September 22, 1989, APWU, filed a rebuttal to Respond-
ent’s September 20, 1989 denial of the grievance and refusal
to provide the Information. The rebuttal is entered as Joint
Exhibit 11.
21. On September 22, 1989, APWU, appealed Manuel G.
Tomingo’s grievance to Step 3. The APWU’s Step 3 Griev-
ance Appeal is entered as Joint Exhibit 12.
22. On November 7, 1989, Respondent denied Manuel G.
Tomingo’s grievance at the Step 3 level. The denial is en-
tered as Joint Exhibit 13.
23. On November 22, 1989, APWU, referred Manuel G.
Tomingo’s grievance to arbitration. The referral to arbitration
is entered as Joint Exhibit 14.
24. APWU and Respondent arbitrated Manuel G.
Tomingo’s termination grievance on January 23, 1990.
25. The Arbitrator, Thomas F. Levak, issued his Opinion
and Award on February 5, 1990. The Opinion and Award are
entered as Joint Exhibit 15.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to bargain with the American Postal
Workers Union, AFL–CIO by refusing to furnish it the re-
quested disciplinary action letter involving violation of the
Sacramento division policy against assaults and threats of vi-
olence or threats of violence.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce any of you in the exercise of rights guar-
anteed you by Section 7 of the Act.
WE WILL promptly furnish the American Postal Workers
Union, AFL–CIO the requested disciplinary action letter in-
volving violation of the Sacramento division policy against
assaults or threats of violence.
UNITED STATES POSTAL SERVICE