Postal Service

National Labor Relations Board - Board Decisions

Aug 26, 1994

314 N.L.R.B. 901 (N.L.R.B. 1994)

901
314 NLRB No. 152
POSTAL SERVICE
1 308 NLRB 1305.
2 18 F.3d 1089.
3 Id. at 1103.
4 Id. at 1102–1104.
5 Id. at 1104. The bases for the Union’s suspicion that the Re-
spondent’s hiring practices were discriminatory are discussed in de-
tail in both the Board’s and the court’s decisions.
6 Ibid.
7 Ibid.
8 In its earlier decision, the Board found that certain requested
items of information had been provided, and that the Respondent
was not required to furnish certain other items. 308 NLRB at 1314–
1315.
United States Postal Service and Philadelphia PA
Area Local, American Postal Workers Union
a/w American Postal Workers Union, AFL–
CIO. Cases 4–CA–18673-P and 4–CA–18745-P
August 26, 1994
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On September 30, 1992, the National Labor Rela-
tions Board issued its Decision and Order in the
above-captioned case.1 The Board found that the Re-
spondent had violated Section 8(a)(5) and (1) of the
Act by failing to bargain on request with the Inter-
venor, American Postal Workers Union, AFL–CIO,
over the elimination of actual or suspected racial dis-
crimination in the Respondent’s hiring practices, and
by failing and refusing to provide information re-
quested by the Intervenor Union that was relevant to
its concerns over possible hiring discrimination.
On March 14, 1994, the United States Court of Ap-
peals for the Third Circuit issued an order enforcing
the Board’s Order in part and denying enforcement in
part.2 The court agreed with the Board that the Re-
spondent had unlawfully failed to bargain and to pro-
vide requested information concerning the possibly dis-
criminatory impact of a new selection process known
as OPTEX.3 The court found that the Respondent had
not acted unlawfully in failing to bargain or to provide
information regarding a program of mail solicitation of
job applicants, and it accordingly denied enforcement
of the Board’s Order concerning those matters. Be-
cause it found that the General Counsel had failed to
show that the mail solicitation program was a manda-
tory subject for bargaining, and because it found no
relevant connection between that program and OPTEX,
the court found no basis on which it could enforce the
Board’s Order insofar as it required bargaining over
the mail solicitation program or the production of re-
lated information.4
The court also denied enforcement of the affirmative
portions of the Order concerning OPTEX, but for dif-
ferent reasons. The court found that, although the Re-
spondent should have bargained over OPTEX on the
basis of the information originally adduced by the
Union, subsequent information had established that the
Union’s theory of how OPTEX might lead to hiring
discrimination was unfounded. ‘‘Thus,’’ according to
the court, ‘‘the Board ordered bargaining and the pro-
duction of information when it was apparently satisfied
that OPTEX does not discriminate in the only way the
union has ever plausibly suggested it might.’’5 The
court stressed that it was not prepared to find that the
Board’s affirmative remedies could not be enforced.
However, on the record before it, the court was ‘‘re-
luctant to enforce such an order in the absence of an
explanation of how the Board believes enforcement
would further the purposes of the Act.’’6
The court therefore declined to enforce the Board’s
Order pertaining to OPTEX, but stated that, if the
Board concluded that the purposes of the Act would be
served by ordering the Respondent to bargain and to
provide information concerning OPTEX, the Board
should articulate its rationale, enter a new Order lim-
ited in scope to OPTEX, and petition anew for en-
forcement. If, in the alternative, the Board found that
it would serve the purposes of the Act simply to en-
force the portion of its Order requiring the Respondent
to cease and desist from its unlawful practices and to
post the appropriate notice, the court stated that the
Board might renew its petition for enforcement, and
that portion of the Order would be enforced.7
On May 18, 1994, the Board advised the parties that
they might file statements of position concerning the
issues raised in the court’s decision. The General
Counsel, the Respondent, and the Unions filed state-
ments of position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board accepts the court’s decision as the law of
the case. In view of the court’s decision, the Board
finds that it would not effectuate the purposes of the
Act to order the Respondent to bargain with the Union
or to provide information concerning OPTEX. As we
find that all of the Union’s information requests were
related either to OPTEX or to the Respondent’s mail
solicitation campaign, we shall not order the Respond-
ent to comply with any of the Union’s information re-
quests that are still at issue in this case.8 Accordingly,
we shall issue a revised Order requiring the Respond-
ent only to cease and desist from further violations, to
post the appropriate notice, and to inform the Regional
Director of the steps it has taken to comply with the
revised Order. We shall also issue a new notice to con-
form with the provisions of the revised Order.
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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.’’
ORDER
The National Labor Relations Board orders that the
Respondent, United States Postal Service, Philadelphia,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain on request with
American Postal Workers Union, AFL–CIO (the
Union) as the exclusive representative of its employees
in the appropriate bargaining units set forth in article
1 of the parties’ collective-bargaining agreement effec-
tive July 21, 1987, through November 20, 1990, con-
cerning the elimination of actual or suspected discrimi-
natory hiring practices.
(b) Failing and refusing to furnish the Union with
requested information that is relevant to, and necessary
for, the Union’s performance of its functions as the
representative of the unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facilities in Philadelphia, Pennsyl-
vania, copies of the attached notice marked ‘‘Appen-
dix.’’9 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain on request
with American Postal Workers Union, AFL–CIO as
the exclusive representative of bargaining unit employ-
ees concerning the elimination of actual or suspected
discriminatory hiring practices.
WE WILL NOT fail and refuse to furnish information
requested by the Union that is relevant to, and nec-
essary for, the performance of its representative func-
tions.
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.
UNITED STATES POSTAL SERVICE