Postal Service

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1105 (N.L.R.B. 1992)

1105
307 NLRB No. 170
POSTAL SERVICE
1 The Charging Party filed a motion to strike a memorandum at-
tached to the Respondent’s supporting brief. In its motion, the
Charging Party urged the Board not to take official notice of the
memorandum (which involved another lawsuit), or in the alternative
to take official notice of other facts and documents. The Respondent
filed an opposition to the Charging Party’s motion. The Charging
Party’s motion to strike is granted.
The Charging Party filed a motion requesting that the Board take
official notice of charges filed by the Respondent against various
local unions in unrelated cases. The Respondent filed an opposition
to the motion. The Charging Party’s motion is denied.
The Respondent filed a motion to strike the Charging Party’s ex-
ceptions as untimely. On October 25, 1991, the Board granted an ex-
tension of time to file ‘‘cross-exceptions and/or answering briefs’’
to November 8, 1991. On November 5, 1991, the date for receipt
of answering briefs was extended to November 18, 1991. By letter
dated November 27, 1991, the Charging Party, contending that it had
not been served with any exceptions or briefs from the Respondent,
requested an extension of time to file ‘‘its answering brief.’’ On De-
cember 2, 1991, in response to the Charging Party’s November 27
letter, the Board extended the time to file answering briefs to De-
cember 16, 1991. On December 10, 1991, the Charging Party filed
exceptions and a brief in support with the Board.
The Board has held that an extension of time to file an answering
brief will not enlarge the time to file cross-exceptions. P & M Cedar
Products, 282 NLRB 772 fn. 1 (1987). Thus, we find that the
Charging Party’s exceptions are untimely and we grant the Respond-
ent’s motion to strike.
The Respondent filed motions to strike the Charging Party’s no-
tices of recent authority. The Respondent’s motions are denied.
2 Employees must submit medical documentation for each sick
leave absence while on restricted sick leave. The evidence reveals
that the Respondent determines whether to place employees on re-
stricted sick leave by reviewing their absence analysis forms.
3 We note that the Union’s initial requests for information con-
cerning the two grievances in question specifically asked only that
the ‘‘names’’ of the employees be left on the forms.
4 In its exceptions, the Respondent argues, inter alia, that one of
the two grievances in issue has been settled and, therefore, it is no
longer obligated to furnish the forms requested pursuant to that
grievance. We find that the determination as to which employees’
absence analysis records are to be provided to the Union is best re-
solved at the compliance stage of this proceeding.
5 We have modified the Order and notice accordingly.
United States Postal Service and American Postal
Workers Union, Greater Greensboro SCF Area
Local 711, AFL–CIO. Case 11–CA–14242(P)
June 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 29, 1991, Administrative Law Judge
William N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
reply briefs to the Charging Party’s and the General
Counsel’s answering briefs. The Charging Party filed
exceptions, a brief in support and an answering brief,
and the General Counsel filed an answering 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 briefs1 and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order as
modified.
As more fully described by the judge, the Union,
pursuant to its investigation of two grievances alleging
disparate treatment of two bargaining unit employees
placed on restricted sick leave by the Respondent, re-
quested from the Respondent the absence analysis
records (United States Postal Service Forms 3972) for
various employees in pay location 183.2 The Union
also requested that the Respondent identify which, if
any, employees had been placed on restricted sick
leave. The Respondent supplied the forms, but deleted
all the employees’ names and social security numbers,
and thus all identifying information, from the forms.
The Respondent also failed to designate the employees
placed on restricted sick leave.
The judge found that the information sought by the
Union was relevant and necessary to the Union’s in-
vestigation of the grievances, and that the Respond-
ent’s failure to provide the information with the
‘‘names and other identifying matter left in place,’’
and its refusal to identify which, if any, employees had
been placed on restricted sick leave, violated Section
8(a)(5) and (1) of the Act.
We agree with the judge except as follows. We do
not find, on the facts of this case, that the employees’
social security numbers on the forms requested were
presumptively relevant to the Union’s performance of
its duties as representative of the unit employees.3 Fur-
ther, the General Counsel and the Union failed to dem-
onstrate the relevance of the social security numbers
and thus failed to show any special circumstances war-
ranting the furnishing of the social security numbers.
Accordingly, we find that the Respondent was obli-
gated to provide the forms to the Union with only the
employees’ names unredacted,4 and to identify which
employees, if any, had been placed on restricted sick
leave.5
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, Greensboro, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a) and
reletter subsequent paragraphs.
‘‘(a) Refusing to bargain collectively and in good
faith with the exclusive bargaining representative,
American Postal Workers Union, AFL–CIO, by refus-
ing to furnish it or its affiliated local, the American
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein are 1990 unless specified otherwise.
Postal Workers Union, Greater Greensboro SCF Area
Local 711, AFL–CIO, with the requested absence anal-
ysis records (United States Postal Service Forms 3972)
for all employees at pay location 183, without deleting
the employees’ names, and by refusing timely to iden-
tify which of those employees, if any, have been
placed on restricted sick leave.’’
2. Substitute the attached notice for that of the ad-
ministrative 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.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain in good faith with
the exclusive bargaining representative, the American
Postal Workers Union, AFL–CIO, by refusing to fur-
nish it or its affiliated local, the American Postal
Workers Union, Greater Greensboro SCF Area Local
711, AFL–CIO, with the requested absence analysis
records (Forms 3972) of all employees employed at
our pay location 183, without deletions of the employ-
ees’ names.
WE WILL NOT refuse timely to identify which, if
any, of those employees have been placed on restricted
sick leave.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL furnish the Union with all absence analysis
records (United States Postal Service Forms 3972),
without deleting the employees’ names, of all employ-
ees employed at our pay location 183 and WE WILL
identify which, if any, of those employees have been
placed on restricted sick leave.
UNITED STATES POSTAL SERVICE
Rosetta B. Lane, Esq., for the General Counsel.
Robert Sindermann, Jr., Esq., for the Postal Service.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. American
Postal Workers Union, Greater Greensboro SCF Area Local
711, AFL–CIO (Union) filed an unfair labor practice charge
against the United States Postal Service (Postal Service) on
January 25, 1991.1 After investigating, the Regional Director
for Region 11 of the National Labor Relations Board
(Board), as an agent of the Board’s General Counsel, issued
a complaint and notice of hearing (complaint) against the
Postal Service on February 15, 1991. I heard the case in trial
at Greensboro, North Carolina, on May 22, 1991.
In substance, the complaint alleges the Postal Service
failed and refused to provide the Union with certain informa-
tion necessary and relevant to the Union’s functioning as col-
lective-bargaining representative of certain of the Postal
Service’s employees. It is alleged the Union made the re-
quest in its capacity as an agent of the exclusive bargaining
representative. It is alleged that the Postal Service’s failure
to provide the requested information violates Section 8(a)(5)
and (1) of the National Labor Relations Act (Act). The Post-
al Service in its timely filed answer denied the commission
of any unfair labor practices.
I have carefully considered the trial record and the
posttrial briefs of counsel for the General Counsel and the
Postal Service. I observed the demeanor of the three wit-
nesses as they testified. However, I note the parties do not
challenge the facts herein. The Postal Service does seek to
have the instant matter deferred to the grievance arbitration
procedure established in the parties’ collective-bargaining
agreement. In this regard, I note that whether deferral is ap-
propriate is a threshold question which must be decided in
the negative before the merits of the unfair labor practice al-
legations can be considered. See, e.g., L. E. Myers Co., 270
NLRB 1010 fn. 2 (1984). Before considering the deferral
issue, it is necessary to establish the Board’s jurisdiction in
this case and to consider the issue of whether the Union is
a labor organization within the meaning of the Act.
FINDINGS OF FACT
I. JURISDICTION
The Postal Service provides postal services for the United
States of America and operates facilities throughout the
United States in the performance of that function, including
its general mail facility located at 900 E. Market Street,
Greensboro, North Carolina, the only facility involved in this
proceeding. I find the Board has jurisdiction over the Postal
Service pursuant to section 1209 of the Postal Reorganization
Act.
II. LABOR ORGANIZATION STATUS
It is alleged that American Postal Workers Union, Greater
Greensboro SCF Area Local 711, AFL–CIO is a labor orga-
nization within the meaning of the Act. The Postal Service
denies this allegation. In doing so, it points out that its bar-
gaining obligation runs only to the National Union and not
to the Charging Party herein which it refers to as a ‘‘so-
1107POSTAL SERVICE
2 American Postal Workers Union, AFL–CIO has been recognized
as the collective-bargaining agent for a nationwide unit of postal
clerks. See, e.g., Postal Service, 302 NLRB 767 (1991).
called local union.’’ The Postal Service argues that since it
has no obligation to bargain with the Charging Party ‘‘so-
called local union’’ that ‘‘organization’’ lacks standing to
bring a charge alleging a violation of Section 8(a)(5) of the
Act. Thus, the Postal Service urges that I dismiss the charge
based on the Local Union’s (Charging Party’s) lack of stand-
ing to file it. The Postal Service also urges the charge be dis-
missed because of the failure to allege in the complaint a
claim upon which relief can be granted. In the alternative,
the Postal Service requests that the labor organization com-
plaint paragraph as described above be stricken in that no
remedy could run to that ‘‘organization.’’
I shall examine the labor organization status of the Local
Union as described above and the other intertwined conten-
tions and arguments step by step. First, I am persuaded the
Local Union, as described above, is a labor organization
within the meaning of Section 2(5) of the Act. Section 2(5)
of the Act defines a labor organization as:
any organization of any kind, or any agency or em-
ployee representation committee or plan, in which em-
ployees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.
Local Union President Mark Dimondstein (Dimondstein) tes-
tified the Local Union has its own membership, officials, and
constitution. The Local Union president appoints job stew-
ards and, as appropriate, designates which stewards will han-
dle specific grievances. The National Agreement between the
American Postal Workers Union, AFL–CIO and the Postal
Service at article 30 calls for local implementation on 22
specifically enumerated items. The items permitted to be im-
plemented at the local level relate to such matters as what
constitutes a work week, cleanup time, selection of vacation
times, the number of employees on leave during choice vaca-
tion times, selection of employees to work on holidays,
whether overtime lists shall be by section or tour, light duty
assignments, assignment of employee parking spaces, local
implementation of the National Agreement relating to senior-
ity, reassignment, and job postings, and ‘‘those other items
which are subject to local negotiations as provided in the
craft provisions of this agreement.’’ Article 30 further re-
flects that ‘‘All proposals remaining in dispute may be sub-
mitted to final and binding arbitration, with the written au-
thorization of the National Union President.’’ As alluded to
above, the Local Union represents employees at initial steps
in the grievance procedure. I am persuaded the Local Union
(Charging Party) has a significant and legitimate role in the
collective-bargaining process herein. In summary and in light
of all the above, I find the Local Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
May the Local Union properly file and have the charge
underlying the complaint herein lawfully maintained? I am
persuaded it can for the reasons that follow. First, the pur-
pose of a charge is merely to set in motion the machinery
of an inquiry. NLRB v. Fant Milling Co., 360 U.S. 301
(1959). Second, the individual signing the underlying charge
herein, Dimondstein, was at the time, and continues to be,
a steward designated by American Postal Workers Union,
AFL–CIO for the location herein pursuant to article 17 of the
National Agreement between the American Postal Workers
Union, AFL–CIO, and the Postal Service. Stewards, such as
Dimondstein, are designated by American Postal Workers
Union, AFL–CIO ‘‘for the purpose of investigating, pre-
senting, and adjusting grievances’’ during the initial stages
thereof. Designated stewards, such as Dimondstein, may, ac-
cording to article 17 of the National Agreement, ‘‘request
and shall have access through the appropriate supervisor to
review the documents, files, and other records necessary for
processing a grievance or determining if a grievance exists
. . . .’’ Dimondstein, as a designated steward of American
Postal Workers Union, AFL–CIO, had, and continues to
have, implicit authority to pursue all available avenues to ob-
tain information needed to process grievances arising at the
Greensboro, North Carolina location. One of the avenues
available to obtain properly requested information is to file,
as Dimondstein did, a charge with the Board. Third, lan-
guage in the complaint indicates the actions taken by the
Local Union (Charging Party) were taken on behalf of the
exclusive bargaining representative, namely, American Postal
Workers Union, AFL–CIO. In that regard, I note it is alleged
at paragraph 7 of the complaint that the Local Union, as de-
scribed earlier, sought the requested information ‘‘in its ca-
pacity as an agent of the exclusive bargaining representative
of the employees in the . . . unit.’’ In summary, I am per-
suaded the charge underlying the complaint herein, was prop-
erly filed and may be legally maintained. Accordingly, I
deny the Postal Service’s request to dismiss the case on the
ground the Local Union lacked standing to bring the charge.
Related thereto, I deny the Postal Service’s motion to dismiss
the complaint on the basis the complaint fails to state a claim
upon which relief can be granted. I do note that the exclusive
bargaining representative involved herein is American Postal
Workers Union, AFL–CIO2 and as such any remedy for any
unfair labor practices that might be found would run to the
National Union and not to the Local Union alone.
III. THE DEFERRAL ISSUE
There are two statutory principles outlined in the Act that
impact on the question of deferral. First, there is the stated
policy and general principle that the Board will look to the
parties to resolve their disputes through their contractually
agreed-upon grievance and arbitration machinery. As the
Postal Service noted in its posttrial brief, Section 201(a) of
the National Labor Relations Act states:
It is the policy of the United States that (a) sound and
stable industrial peace and the advancement of the gen-
eral welfare, health, and safety of the Nation and of the
best interest of employers and employees can most sat-
isfactorily be secured by the settlement of issues be-
tween employers and employees through the processes
of conference and collective bargaining between the
employers and the representatives of their employees.
Additionally, I note the Act at Section 203(d) speaks about
the desirable method for the settlement of disputes as fol-
lows:
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 At places in the record, the name is spelled ‘‘McEldreth.’’ Either
spelling refers to the same individual.
4 While on restricted sick leave, an employee must submit medical
documentation for each sick leave absence.
5 Part 513.37 of the Employee and Labor Relations Manual lists
as a reason for such restriction that a supervisor has evidence, based
upon a review of the employee’s absence file, that the employee is
abusing sick leave privileges.
6 Forms 3972 are official Postal Service forms on which a super-
visor records an individual employee’s attendance record based on
(1) daily leave requests known as Forms 3971 submitted by the em-
ployees, and (2) unscheduled leave taken by employees.
7 Dimondstein specifically requested the names be left on the
Forms 3972.
8 Ellis noted on the request that to obtain a Form 3972 with an
employee’s name and social security number left thereon, the Union
would have to obtain a written release from the employee involved.
9 Ellis noted on the information request that to obtain a list of em-
ployees on restricted sick leave, the Union would need a signed re-
lease from each of the affected individuals.
10 In regard to the latter article, the Union asserts the Postal Serv-
ice violated part 513.37 of the Employee and Labor Relations Man-
ual.
11 Dimondstein testified McElrath was a local union officer, shop
steward, and executive board member.
Final adjustment by a method agreed upon by the par-
ties is declared to be the desirable method for settle-
ment of grievance disputes arising over the application
or interpretation of an existing collective-bargaining
agreement.
The second statutory principle outlined in the Act that im-
pacts on the question of deferral is found at Section 10(a)
of the Act. This second principle is that the Board’s power
to prevent unfair labor practices prevails over other related
factors or considerations. Section 10(a) reads in pertinent part
as follows:
The Board is empowered, as hereinafter provided, to
prevent any person from engaging in any unfair labor
practice . . . affecting commerce. This power shall not
be affected by any other means of adjustment or pre-
vention that has been or may be established by agree-
ment, law, or otherwise . . . .
The Board has attempted to reconcile these two principles in
its Collyer Insulated Wire, 192 NLRB 837 (1971) doctrine.
The Collyer doctrine, as revived in United Technologies
Corp., 268 NLRB 557 (1984), was recently described by Ad-
ministrative Law Judge Timothy D. Nelson in U.S. Borax &
Chemical Corp., JD(SF)–7–91, January 30, 1991, as follows:
Where the private disputants before the Board are
bound to a contractual scheme which on its face ap-
pears capable of addressing the statutory issues in the
Board case, and the charged party is willing to submit
the dispute to that private forum, then, normally, the
Board will ‘‘direct’’ or ‘‘adjure’’ the charging party to
give the private scheme a chance to work, without re-
gard to the charging party’s current preference of
forum, and will dismiss the complaint provisionally, re-
taining only a limited jurisdiction to ensure that the dis-
pute will be processed expeditiously within the private
system, and, upon challenge by the General Counsel, to
‘‘review’’ any purported resolution of the dispute
reached within that system.
Would it best effectuate the purpose and policies of the Act
to defer this case to arbitration as urged by the Postal Serv-
ice? I am persuaded it would not. It is the Board’s general
policy not to defer information requests to the parties’ arbi-
tration process. See Clinchfield Coal Co., 275 NLRB 1384,
1395 (1985). The Board at footnote 4 in Clinchfield Coal
noted it has been reluctant to defer to arbitration issues raised
by information requests made in the process of resolving
grievances because of the potential for delays attendant in
such a procedure. A concern, among others, is that additional
grievances might have to be filed in an effort to obtain as-
sertedly needed information. If, on the other hand, relevant
information is initially provided, it may be determined that
the grievance need not be pursued further. The potential for
delay in deferring information requests would be inconsistent
with the Board’s policy of the expeditious resolution of dis-
putes through arbitration.
There does not appear to be any factors in the instant case
that would warrant a departure from the Board’s general pol-
icy of not deferring information request cases. Accordingly,
I find deferral would be inappropriate here.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
On November 12, Postal Service Supervisor of Mails at
pay location 183 Jesse Auman (Auman) placed pay location
183 employee Delanie McElrath (McElrath)3 on restricted
sick leave4 in accordance with Part 513.37 of the Employee
and Labor Relations Manual.5 Supervisor Auman testified he
went about determining whether to place any particular em-
ployee on restricted sick leave by reviewing employee ab-
sence analysis forms known as Forms 3972.6
Pursuant to article 15 of the National Agreement, a griev-
ance was filed related to McElrath’s being placed on re-
stricted sick leave. Union steward Dimondstein was ap-
pointed to handle McElrath’s grievance and in conjunction
therewith made a written request to Postal Service Labor Re-
lations Representative Michael Ellis (Ellis) that the Union be
provided the Forms 3972 of nine (including McElrath) pay
location 183 employees.7 Dimondstein also requested Ellis
identify which, if any, employees other than McElrath that
had been placed on restricted sick leave. When Labor Rela-
tions Representative Ellis returned the Union’s information
request he noted thereon that ‘‘names and social security
numbers will not appear on the 3972s, due to confidentiality
and Privacy Act concerns.’’8 Ellis did not identify which, if
any, of the employees had been placed on restricted sick
leave.9 Within a few days, Labor Relations Representative
Ellis provided the Union the requested Forms 3972 but all
identifying factors, including names and social security num-
bers had been removed from the forms.
The Union’s grievance on McElrath’s behalf asserts the
Postal Service violated articles: 2 ‘‘Non-Discrimination and
Civil Rights’’; 5 ‘‘Prohibition of Unilateral Action’’; and 19
‘‘Handbooks and Manuals’’ of the National Agreement.10
Union Steward Dimondstein testified that when he met
with the grievant, McElrath, she expressed concern that she
had been singled out for restricted sick leave possibly for
two reasons. First, she had been a very active union officer
and shop steward11 who had been discussing grievances with
Supervisor Auman during the weeks immediately before he
1109POSTAL SERVICE
12 McElrath is a black female, Supervisor Auman is a white male.
13 The eight McElrath identified were the ones Dimondstein re-
quested Forms 3972 for.
14 Forms 3971 are the forms on which daily leave requests are
made by the employees to their immediate supervisors.
15 In that regard, it is noted that although the Union requested
Forms 3972 for employees who worked with McElrath at pay loca-
tion 183 one of the forms provided (without a name or social secu-
rity number) was for pay location 161.
placed her on restricted sick leave. Secondly, Dimondstein
testified McElrath expressed concern that she had been sin-
gled out for racially motivated reasons.12 McElrath told
Dimondstein that eight pay location 183 employees had simi-
lar or possibly worse leave records than she did, but that
those employees had not, to her knowledge, been placed on
restricted sick leave.13 Dimondstein said he requested the
Forms 3972 based on McElrath’s dual claims of disparate
treatment.
Dimondstein testified without contradiction that the Postal
Service never provided a list of those pay location 183 em-
ployees that were on restricted sick leave other than
McElrath. Dimondstein said he was unable to follow through
with a deeper investigation of McElrath’s grievance based on
the Forms 3972 because without names or other identifying
marks, he didn’t even know ‘‘who was who’’ or even if the
Forms 3972 were for the employees he had requested.
On December 10, long-time pay location 183 employee
Wilhelmina Williams (Williams) was placed on restricted
sick leave by Supervisor Auman. A grievance was filed re-
lated thereto. Union Steward Dimondstein handled Williams’
grievance and on December 20, requested the Forms 3972
for all 26 employees at pay location 183. Dimondstein re-
quested that the names of the employees be left on the
forms. Dimondstein explained in the written request that it
was ‘‘for comparison purposes to prove disparate and dis-
criminatory treatment of grievant.’’ Labor Relations Rep-
resentative Ellis responded to the request by notifying the
Union that the Forms 3972 would only be provided without
the employees’ names and social security numbers. The
Union declined to accept and/or pay for the requested infor-
mation without the employees’ names and social security
numbers being left on the forms.
Dimondstein testified he requested the Forms 3972 for
Williams’ grievance because it was Williams’ contention she
had been discriminated against because she was a black fe-
male and because ‘‘she had engaged in’’ ‘‘numerous’’ activi-
ties on behalf of the Union immediately prior to being placed
on restricted sick leave. Dimondstein testified Williams told
him she believed some employees had ‘‘a certain arrange-
ment with the supervisor that allowed them to call them at
home and avoid unscheduled absences’’ while she and other
employees did not have that privilege. Dimondstein said that
by reviewing the Forms 3972 for all employees at pay loca-
tion 183 he would have been able to ascertain if it appeared
Williams had been discriminated against, and if it appeared
she had, he would then have been in a position to possibly
have requested the same employees’ Forms 3971.14
The governing principles in deciding whether an employer
is required to furnish a union with information are well es-
tablished; however, a brief statement of some of those prin-
ciples is appropriate. An employer is under a duty to provide
a union which represents the employer’s employees with in-
formation requested by the union which is relevant and nec-
essary for the proper performance of the union’s duties in
representing the unit employees. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956). This duty extends not just to information which
is useful and relevant for the purposes of contract negotia-
tions, but also to that which is necessary to informed admin-
istration of a collective-bargaining agreement. Safeway
Stores, 252 NLRB 1323 (1980). Relevancy is to be measured
with a liberal discovery type yardstick. The test is a simple
one, namely, whether the information sought is probably or
potentially relevant to the union in fulfilling its statutory rep-
resentational duties. Acme Industrial Co., supra. Simply stat-
ed, an employer has a duty to provide information that is
reasonably necessary for the processing of grievances. Wash-
ington Gas Light Co., 273 NLRB 116 (1984). Necessity for
the information is not a guideline in itself but is directly re-
lated to relevancy. Curtiss-Wright Corp. v. NLRB, 347 F.2d
61, 69 (3d Cir. 1965). Requested data which concerns condi-
tions of employment within the bargaining unit is presump-
tively relevant. Pfizer, Inc., 268 NLRB 916 (1984). Data re-
garding discipline of unit employees is deemed relevant in-
formation. General Dynamics Corp., 270 NLRB 829 (1984).
Considering the instant case in light of the above, I con-
clude the Postal Service had a duty to furnish the information
requested by the Union with respect to both grievances.
While I believe the reasons for requesting such information
are obvious, I shall briefly examine those reasons in light of
Union Steward Dimondstein’s testimony. Grievant McElrath
in discussing her grievance with Union Steward Dimondstein
asserted, based on her personal observations, that others at
her pay location had similar or even worse leave records that
she had without any action taken against them. Therefore,
she contended the action taken against her had to have been
based on her race or union activities. A way for Union Stew-
ard Dimondstein to investigate McElrath’s claims was for
him to review the leave records of the employees McElrath
identified. Without names and/or social security numbers on
the forms, Dimondstein could hardly be expected to make an
informed evaluation of McElrath’s grievance or for that mat-
ter to even know if the forms provided were for fellow work-
ers at McElrath’s pay location.15 Furthermore, even the infor-
mation that was provided did not indicate, as had been re-
quested, which, if any, of the employees had been placed on
restricted sick leave. Again, without that information, the
Union was unable to make an informed evaluation as to
whether McElrath was being treated in a disparate manner.
With the information it had requested, the Union might have
been better prepared to litigate McElrath’s grievance or alter-
natively encouraged to drop it. I am persuaded the Union’s
request for the Forms 3972 with the names left thereon along
with the information related to which, if any, of the employ-
ees had been placed on restricted sick leave was for informa-
tion that was necessary and relevant to its duty to represent
bargaining unit employee McElrath.
Regarding the information the Union sought with respect
to the grievance involving employee Williams, it is again
clear the information was relevant and necessary to the
Union’s investigation of the Postal Service’s actions involv-
ing Williams. The Union sought the Forms 3972 for all 26
employees at pay location 183 in order to either substantiate
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The arbitrator was Professor Patrick Hardin.
17 Privacy Act of 1974, 5 U.S.C. § 552(a), Pub. L. §§ 93–579, 88
stat. 1896.
18 It is undisputed that the Postal Service is subject to the Privacy
Act and that it has certain obligations with respect thereto.
19 The exceptions to nondisclosure are found at 5 U.S.C. § 552a(b).
20 5 U.S.C. § 552a(b)(3).
or refute Williams’ claim she was being subjected to dis-
parate or discriminatory treatment. Williams had asserted to
the Union that numerous employees at her pay location (183)
had more sick leave absences than she but that the other em-
ployees had not been placed on restricted sick leave.
In light of all the above, I am persuaded, absent a legiti-
mate showing the information was confidential or that the
Privacy Act forbids such disclosure, the Postal Service
breached its bargaining obligation when it refused to provide
the Union with the Forms 3972 it requested with names and
other identifying matters left in place and when it further re-
fused to identify which, if any, employees had been placed
on restricted sick leave.
Consideration will now be given to the Postal Service’s
claim that the information requested was, and remains, con-
fidential and/or that the Privacy Act forbids disclosure of the
requested information.
The duty to provide information is not absolute. The Su-
preme Court held in Detroit Edison Co. v. NLRB, 440 U.S.
301 (1979), that a union’s interest in arguably relevant infor-
mation does not always prevail over all other competing in-
terests. In Detroit Edison, the Court held that in deciding
whether an employer had a duty to supply information it
contended was confidential that a balancing of the interests
test must be applied in that the union’s need for the informa-
tion must be weighed against the legitimate and substantial
confidentiality interests of the employer. Thus, confiden-
tiality, where adequately established, has been held to be a
valid basis for declining to fully produce union requested
data. See Bacardi Corp., 296 NLRB 1220 (1989), and the
cases cited therein.
The Postal Service contends it is obligated to, and is, pro-
tecting the privacy rights of Postal Service employees by re-
fusing to provide the Union with the requested Absence
Analysis records without deletions. The Postal Service asserts
Forms 3972 are, pursuant to the Employee and Labor Rela-
tions Manual ‘‘Level 2 Records’’ for the purpose of con-
fidentiality and as such should not be produced. Employee
and Labor Relations Manual section 314.5 ‘‘Supervisor’s
Personnel Records and Personal Notes’’ in pertinent part
reads as follows:
314.51 General. Supervisors establish an adequate
personal filing system for the performance of their daily
responsibilities and to maintain compliance with the
provisions of the Privacy Act. Supervisor’s Personnel
Records are maintained by the Postal Service within the
privacy system of records identified as USPS 120.190.
314.52 Levels of Information. In order to meet the
requirements of the Privacy Act, the Postal Service has
defined three levels of personnel information for gen-
eral use:
. . . .
Level 2—Supervisor’s Personnel Records
. . . .
314.53 Maintenance. Level 1 and 2 records are sub-
ject to the provisions of the Privacy Act.
. . . .
314.54 Supervisor’s Personnel Records (Level 2
Records).
314.541 Contents. Supervisor’s personnel files may
include such employee records as: discussions, letters of
warning and other disciplinary records; copies of
records filed in the OPF; . . . attendance records; . . .
and other information at the supervisor’s discretion.
314.542 Privacy Act Requirements. These records
are personal and must be provided the same level of se-
curity as OPFs; i.e., storage in a locked desk or file
cabinet and access restricted to those with the need to
314.543 Disclosure. Upon request, from the subject
employee, Supervisor’s Personnel Records (Level 2)
about that employee must be shown to him or her. In
addition, Level 2 records are to be disclosed to persons
who have the written consent of the subject employee.
Level 2 records may be disclosed without the subject’s
consent to Postal Service officials only when needed in
the course of official business; to collective-bargaining
agents when relevant to a grievance; to EEO investiga-
tions when relevant to a formal EEO complaint; or for
other reasons specifically authorized by the Privacy
Act.
As is readily apparent from a reading of the above, the Post-
al Service may not refuse to provide the requested forms on
the basis the forms are confidential level 2 supervisory forms
in that the pertinent section of the Employee and Labor Rela-
tions Manual specifically provides for the disclosure of level
2 documents to collective-bargaining agents such as
Dimondstein, ‘‘when relevant to a grievance.’’ I note Postal
Service Labor Relation Representative Ellis had, pursuant to
the Employee and Labor Relations Manual, provided Forms
3972 to the Union on request with names and social security
numbers left thereon until approximately May. At that time,
the Postal Service began to contend the Forms 3972 were
confidential documents. Ellis began this practice of only pro-
viding the Forms 3972 with the names and social security
numbers deleted after the Union processed a grievance to ar-
bitration concerning unlimited access by temporary (bar-
gaining unit members) supervisors to Level 2 supervisor’s
records. That arbitration award, referred to by the parties as
the Hardin award,16 may not serve as a legitimate basis for
the Postal Service’s confidentiality claim herein. An award
related to whether someone acting as a temporary supervisor
may have unlimited access to personnel files is a completely
separate issue that is of no moment to whether the Postal
Service has a duty to provide, without deletion, Forms 3972
needed in the processing of employee grievances. I find this
aspect of the Postal Service’s defense to be totally without
merit.
The Postal Service’s asserted statutory defense based on
the Privacy Act17 must also fail. While the Privacy Act pro-
hibits the wrongful disclosure of records covered by it18
there are 12 exceptions to the prohibitions of disclosure.19
One of the exceptions is for ‘‘routine use’’ as defined by
agency regulations.20 As set forth in the ‘‘Privacy Act
Issuances 1989 Compilation, Federal Register, Volume V,
Systems of Records Agency Rules,’’ at page 435 ‘‘Postal
1111POSTAL SERVICE
21 For a discussion of the Privacy Act as it applies to the Postal
Service in Board cases, see Postal Service, 280 NLRB 685, 693
(1986), enfd. 841 F.2d 141 (6th Cir. 1988).
22 It is no defense to the Postal Service that it revealed at trial
whether other pay location 183 employees had been placed on re-
stricted sick leave inasmuch as even the failure to timely supply rel-
evant and necessary requested information violates Section 8(a)(5) of
the Act. See, e.g., D. J. Electrical Contracting, 303 NLRB 820
(1991). It is likewise no defense to the Postal Service that the Wil-
liams’ grievance has been settled.
23 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.
Service Prefatory Statement of Routine Uses’’ Subsection M
‘‘Disclosure to Labor Organizations,’’ the Postal Service has
published a routine use that permits disclosure:21
Pursuant to the National Labor Relations Act, records
from this system may be furnished to a labor organiza-
tion upon its request when needed by that organization
to perform properly its duties as the collective bar-
gaining representative of postal employees in an appro-
priate bargaining unit.
The Union made its request for the Forms 3972 and re-
lated information in order to process grievances filed on be-
half of bargaining unit employees pursuant to the parties’
National Agreement. Thus, the Privacy Act does not justify
the Postal Service’s refusal to provide the complete Forms
3972 the Union requested.
In summary I find the Postal Service violated Section
8(a)(5) and (1) of the Act by refusing to furnish the Forms
3972 with names and social security numbers thereon as re-
quested by the Union and that it further violated the Act by
refusing to timely inform the Union which, if any, of the em-
ployees in question had been placed on restricted sick
leave.22
CONCLUSIONS OF LAW
1. United States Postal Service is an employer subject to
the jurisdiction of the National Labor Relations Act and the
National Labor Relations Board.
2. American Postal Workers Union, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. American Postal Workers Union, Greater Greensboro
SCF Area Local 711, AFL–CIO is a labor organization with-
in the meaning of Section 2(5) of the Act.
4. American Postal Workers Union, AFL–CIO by virtue of
Section 9(a) of the Act is the exclusive representative of all
Postal Service employees (including employees employed at
the general mail facility located at 900 E. Market Street,
Greensboro, North Carolina) in the following unit, appro-
priate for bargaining within the meaning of Section 9(b) of
the Act:
All employees employed by the Postal Service in the
clerks, motor vehicle, special delivery, and maintenance
crafts throughout the United States, but excluding man-
agerial and supervisory personnel, professional employ-
ees, employees engaged in personnel work in other than
a purely non-confidential clerical capacity, security
guards as defined in Public Law 91-375, 1201(2), all
postal inspection service employees, employees in the
supplemental work force as defined in Article 7, rural
letter carriers or mail handlers.
THE REMEDY
Having found that the Postal Service has engaged in cer-
tain unfair labor practices, I shall recommend that it be or-
dered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I shall recommend that the Postal Service be ordered to
furnish the Union, on request, the Absence Analysis Records
without deletions (Postal Service Forms 3972) of all employ-
ees employed at pay location 183 and to identify which, if
any, of those employees have been placed on restricted sick
leave. I shall also recommend that the Postal Service be or-
dered to post a notice to its employees attached hereto as
‘‘Appendix’’ for a period of 60 days in order that the em-
ployees may be apprised of their rights under the Act and
the Postal Service’s obligation to remedy its unfair labor
practices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, United States Postal Service, Greensboro,
North Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith with
American Postal Workers Union, AFL–CIO as the exclusive
bargaining representative of its employees in an appropriate
unit by refusing to furnish the Union with the absence anal-
ysis records without deletions (Postal Service Forms 3972) of
all employees employed at pay location 183 and from timely
refusing to identify which, if any, of those employees have
been placed on restricted sick leave.
(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) Furnish the Union the information it requested as de-
fined above in paragraph 1(a).
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 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.’’
(b) Post at its Greater Greensboro, North Carolina location
copies of the attached notice marked ‘‘Appendix.’’24 Copies
of the notice, on forms provided by the Regional Director for
Region 11, after being signed by the Postal Service’s author-
ized representative, shall be posted by the Postal Service im-
mediately 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 Postal Service to ensure that the notices are
not altered, defaced, 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.