Postal Service

National Labor Relations Board - Board Decisions

Aug 26, 1992

308 N.L.R.B. 358 (N.L.R.B. 1992)

358
308 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Member Oviatt would have denied the Respondent’s late-filed
answering brief.
2 In adopting the judge’s findings and conclusions with regard to
the Respondent’s unlawful refusal to provide the Union with relevant
requested information, we are clarifying the recommended remedial
order in accordance with the General Counsel’s cross-exception.
Specifically, the Respondent is ordered to provide the Union with
copies of the requested information retroactively to the date of the
Respondent’s refusals to furnish the information. The availability of
the information and the methods by which the Respondent can re-
trieve the data are matters that are best handled through the compli-
ance procedure. 1 All dates refer to 1991 unless otherwise specified.
United States Postal Service and National Postal
Mail Handlers’ Union Local 300, Division of
L.I.U.N.A., AFL–CIO, CLC. Case 29–CA–
15550(P)
August 26, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On April 15, 1992, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed a cross-exception and a brief in
answer to the Respondent’s exceptions, the Respondent
filed a brief in answer to the General Counsel’s cross-
exception, and the General Counsel filed a response to
the Respondent’s answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order2 as
modified.
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, Hicksville, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Furnish the Union with copies of the requested
daily absence reports for bargaining unit employees on
Tour One, of the 185 West John St., Hicksville, New
York postal facility; copies of the requested weekly
casual rosters for Tour One of the same facility; and
copies of the requested daily ATAL reports for Tour
One of the same facility, retroactive to the date of the
Respondent’s failure to supply such information.’’
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.
WE WILL NOT refuse to bargain with National Postal
Mail Handlers’ Union, Division of L.I.U.N.A., AFL–
CIO, CLC, and its agent, National Postal Mail Han-
dlers’ Union Local 300, Division of L.I.U.N.A., AFL–
CIO, CLC, by refusing to furnish with the requested
information concerning daily absence reports, weekly
casual rosters, and daily ATAL reports.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guranteed them by Section 7 of the Act.
WE WILL furnish the Union with copies of the re-
quested daily absence reports for bargaining unit em-
ployees on Tour One, of the 185 West John St., Hicks-
ville, New York postal facility; copies of the requested
weekly casual rosters for Tour One of the same facil-
ity; and copies of the requested daily ATAL reports for
Tour One of the same facility, retroactive to the date
of the Respondent’s failure to supply such information.
UNITED STATES POSTAL SERVICE
Sharon Chau, Esq. and Joel Friedman, Esq., for the General
Counsel.
Carl Bosland, Esq., of Windsor, Connecticut, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Brooklyn, New York, on January 21,
1992. Upon a charge filed on February 28, 1991,1 a com-
plaint was issued on May 6, alleging that the United States
Postal Service (Respondent or the Postal Service) violated
Section 8(a)(1) and (5) of the National Labor Relations Act
(the Act). The complaint alleged that Respondent failed to
furnish certain information requested by National Postal Mail
Handlers’ Union Local 300, Division of L.I.U.N.A., AFL–
CIO, CLC (the Union). Respondent filed an answer denying
the commission of the alleged unfair labor practices.
359POSTAL SERVICE
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Board has jurisdiction in this matter pursuant to Sec-
tion 1209 of the Postal Reorganization Act, 39 U.S.C.
§§ 1209.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act and is the
exclusive representative of the employees in the appropriate
unit. Respondent admits that the National Postal Mail Han-
dlers’ Union (NPOMHU) is a labor organization within the
meaning of Section 2(5) of the Act and does not dispute
Steward Lawrence Hill’s right to request information on its
behalf. Hill testified that Local 300 is an affiliate of
NPOMHU and exists for the purpose of dealing with griev-
ances, labor disputes, wages, hours, and working conditions.
For the purposes of this proceeding it is not necessary that
I resolve the issue whether Local 300 is a labor organization
within the meaning of the Act. I do find, however, that
NPOMHU is a labor organization within the meaning of Sec-
tion 2(5) of the Act and that Local 300 is its agent. See Post-
al Service, 301 NLRB 709 (1991).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Background
At all times relevant to this proceeding, Respondent was
party to a collective-bargaining agreement (National Agree-
ment) with NPOMHU. The National Agreement contains
provisions regarding the supplemental work force, which is
comprised of casual employees. Casual employees, who are
not members of the bargaining unit represented by the
NPOMHU, are those employees who may be utilized as a
limited-term supplemental work force but may not be used
in lieu of full- or part-time employees. Under the National
Agreement, the number of casuals shall not exceed 10 per-
cent, on a division basis, of the total number of employees.
In January 1991, Hill, steward at the Hicksville facility,
spoke to certain casual employees and discovered that they
were performing mail handler work nearly 100 percent of the
time. Suspecting that there may be a violation of the agree-
ment, he made written requests for information on January
29, February 5 and 6, March 25, and April 22, for three
types of documents: copies of daily absence reports, for bar-
gaining unit employees on Tour One at the Hicksville facil-
ity; copies of the weekly casual roster at the same facility;
and copies of all daily Attendance, Time, and Leave (ATAL)
reports for the same facility. Initially, Respondent provided
the Union with the requested information. However, once
Postal Service Labor Relations Representative Ilir Tsungu
become involved with the information requests, the Postal
Service determined that Hill was not entitled to the requested
information, and, consequently, no longer furnished that in-
formation. Respondent’s position is that the Union has
waived its right to the additional information because the
contract does not require that such information be furnished.
In addition, Respondent argues that the information requested
is not relevant because the 10-percent limitation is on a divi-
sional basis and the information requested is for only one
pay location.
B. Discussion and Conclusions
1. Waiver
The duty to furnish information is a statutory obligation
which exists independent of any agreement between the par-
ties. American Standard, 203 NLRB 1132 (1973). Although
a union may relinquish a statutory right, any waiver of such
a right, however, must be clear and unmistakable. As the
Board stated in Bozzuto’s, Inc., 275 NLRB 353 (1985):
The Respondent . . . argues that the following con-
tractual provision limited the information to which the
Union is entitled and thus waived the Union’s right to
the addresses . . . . We do not agree. The provision
specifies what information to include in a seniority list.
The clause does not provide that other information need
not be disclosed to the Union . . . . We find that the
contract does not clearly and unmistakably waive the
Union’s right . . . .
The National Agreement sets forth information which the
Postal Service must provide. Section 7.1 provides that the
Postal Service will provide the Union, at the division level,
with a report listing the number of mail handler casuals at
facilities within the division. The agreement does not provide
that only that information shall be furnished. I find that there
has not been a clear and unmistakable waiver by the Union
of the right to the additional information it requested.
2. Relevance
The National Agreement limits the number of casual em-
ployees the Postal Service can employ to 10 percent of the
regular work force calculated on a division basis. Hill re-
quested casual employee information for one pay location on
one Tour at the Hicksville facility. Respondent argues that
there are other facilities within the Long Island division and
other pay locations and Tours which may employ casual em-
ployees. Therefore, Respondent argues that ‘‘the limited in-
formation requested by Steward Hill is not relevant because
it could not establish a violation of the percentage limitation
provision of the National Agreement.’’
Respondent appears to be arguing that the information is
not relevant because not enough information is requested.
Since a violation can only be calculated on a division basis,
by merely asking for information at one facility it would not
provide sufficient information to ascertain whether there was
a violation on a division basis. However, when Respondent’s
representative, Tsungu, was asked whether the Postal Service
would be willing to provide this information on a divisional
basis he testified that Respondent would be unwilling to do
so. The Board has long held that ‘‘an employer must furnish
information that is of even probable or potential relevance to
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
3 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.’’
the union’s duties.’’ Conrock Co., 263 NLRB 1293, 1294
(1982), enfd. mem. 735 F.2d 1371 (9th Cir. 1984). I believe
that while information on a divisional basis certainly would
be more informative than information for just one facility,
the information even of the one facility is of ‘‘potential rel-
evance to the union’s duties.’’ If the Union ascertains that
the 10-percent limitation is not being adhered to at the local
level it can then request information on a broader level. I
conclude, therefore, that the information requested by the
Union is relevant to its duties as the representative of the
employees in the appropriate unit.
CONCLUSIONS OF LAW
1. The Board has jurisdiction in this matter pursuant to
Section 1209 of the Postal Reorganization Act, 39 U.S.C.
§§ 1209.
2. NPOMHU is a labor organization within the meaning
of Section 2(5) of the Act and Local 300 of L.I.U.N.A.,
AFL–CIO, CLC, is its agent.
3. At all relevant times the Union has been the exclusive
collective-bargaining representative of the employees in the
following appropriate unit:
The unit of employees as set forth within Article 1.1
of the collective-bargaining agreement between Re-
spondent and the Union, effective by its terms from
July 21, 1987 through November 20, 1990.
4. By refusing to furnish the Union with information con-
cerning daily absence reports, weekly casual rosters, and
daily ATAL reports, Respondent has violated Section 8(a)(1)
and (5) of the Act.
5. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, United States Postal Service, Hicksville,
New York, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with National Postal Mail Han-
dlers’ Union Local 300, Division of L.I.U.N.A., AFL–CIO,
CLC, by refusing to furnish it with the requested information
concerning daily absence reports, weekly casual rosters, and
daily ATAL reports.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under 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 with copies of the re-
quested daily absence reports for bargaining unit employees
on Tour One, of the 185 West John St., Hicksville, New
York postal facility; copies of the requested weekly casual
rosters for Tour One of the same facility; and copies of the
requested daily ATAL reports for Tour One of the same fa-
cility.
(b) Post at its facility in Hicksville, New York, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice on forms provided by the Regional Director for Region
29, after being duly signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and be maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.