United Parcel Service

National Labor Relations Board - Board Decisions

Feb 26, 2015

362 NLRB No. 22 (N.L.R.B. 2015)

362 NLRB No. 22
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
United Parcel Service of America, Inc. and Interna-
tional Brotherhood of Teamsters, Local Union
373. Cases 16–CA–028064, 16–CA–062316, 16–
CA–070588, 16–CA–081494, and 16–CA–085218
February 26, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND
MCFERRAN
On August 15, 2013, Administrative Law Judge
Keltner W. Locke issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Respondent filed an answering brief, and the Gen-
eral Counsel filed a reply 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 briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below and to adopt the recommended Order.
I. BACKGROUND
The Union represents a unit of employees, including
about 45 package drivers, at the Respondent’s Texarka-
na, Arkansas facility. During the relevant time period,
the Union filed a number of grievances pursuant to the
parties’ collective-bargaining agreement. In conjunction
with the grievances, the Union, primarily through Chief
Union Steward Reginald Thomas, also submitted infor-
mation requests to the Respondent. The complaint alleg-
es that the Respondent failed to provide relevant infor-
mation requested by the Union on 21 different occasions.
Thomas filed his first charge with the Board on June
13, 2011. Others followed on August 9 and December
12. The Regional Director issued a complaint on the
basis of these charges, but postponed the hearing indefi-
nitely when the parties agreed to an informal settlement,
which was executed on March 6, 2012, and approved by
the Regional Director on March 8. Subsequently, two
more charges were filed alleging that the Respondent
again failed to provide certain requested information.
The Regional Director set aside the settlement agreement
and issued a new complaint based on all of the charges.
As explained below, the disputed information requests
fall into three categories: (1) requests seeking infor-
mation related to a recurring “lunch grievance”;1 (2) re-

1 These requests were submitted from November 2011 through April
2012, both before and after the informal settlement agreement was
quests submitted from May 3 to September 1, 2011, be-
fore the March 6, 2012 settlement was signed; and (3)
postsettlement requests submitted in April and May
2012.
For the reasons discussed below, we affirm the judge’s
dismissal of the complaint. Specifically, we find that (1)
the Respondent did not violate the Act by failing to pro-
vide information in response to “lunch grievance” re-
quests; (2) the Respondent complied with the settlement
agreement; (3) the Respondent did not commit any post-
settlement violations; (4) the settlement agreement
should be reinstated; and (5) the presettlement requests
were resolved by the settlement agreement.
II. “LUNCH GRIEVANCE” INFORMATION REQUESTS
A. Facts
Beginning November 21, 2011, and approximately
once every 10 days thereafter, Thomas filed grievances
on behalf of all bargaining unit employees claiming that
the Respondent was forcing drivers to work through their
lunch period in order to avoid retaliation from Center
Manager Randy Rosebaugh for not meeting their per-
formance numbers, i.e., the Stops Per On-Road Hour
(“SPORH”), a key component in the Respondent’s as-
sessment of a driver’s performance. For each grievance,
Thomas, acting for the Union, requested (1) timecards;2
(2) delivery reports;3 (3) manifests;4 (4) “telematics,”
also including average speed of vehicle in motion on
each route;5 (5) “time between stops” section summary;6
(6) weekly operation report;7 and (7) driver recap sum-

signed. The settlement did not purport to resolve the parties’ disagree-
ment about whether the Respondent was obligated to provide docu-
ments requested in connection with the lunch grievances.
2 Timecards show the time a driver punched in and out and whether
the driver clocked out for lunch.
3 Delivery reports show the number of packages on a truck, who
signed for the packages, whether stops were business or residential, and
whether the driver missed any stops.
4 Manifests show the number of stops and packages, where packages
are located on the truck, and delivery addresses.
5 Telematics are comprehensive reports that show where a driver is
located, the route taken, time spent at stops, time between stops,
SPORH, hours worked, breaks, addresses, and more. These reports
include “safety, service, and production” information, such as whether
the driver is wearing his seatbelt, whether the truck’s door is opened,
and time spent idling. Thomas also cited telematics’ ability to docu-
ment how much time a driver spent backing up.
6 The time between stop summary is a form that the Respondent no
longer produces. When it was used, it provided much information that
is now contained in telematics, including start/end times, breaks, time
at and between stops, whether stops are residential or commercial, and
addresses.
7 The weekly operation report summarizes weekly hours worked,
SPORH, miles traveled, and the number of deliveries.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
mary8 for all unit drivers, all covering the 10-day period
immediately preceding the request.9
Those information requests led to a series of letters be-
tween the Respondent and the Union.10 On December
15, 2011, Cedric Williams, the Respondent’s district la-
bor relations manager, sent a letter to Tommy Driggers,
the Union’s business agent, objecting to the requests as
overly broad and unduly burdensome. Williams request-
ed more details about the information sought so that the
parties could determine whether the scope of the requests
could be narrowed and whether responsive information
could be provided through a less burdensome process.
On December 21, Driggers responded that the infor-
mation was requested in connection with the lunch griev-
ances to identify which drivers were not properly taking
their lunchbreaks.
On January 6, 2012,11 Williams again protested that
the requests were overly broad. Williams contended that
six different categories of documents were not necessary
to determine whether a driver took a meal period on a
particular day. Williams suggested alternative, less bur-
densome ways for the Respondent to fulfill the request,
such as by providing time records for a single day for a
sampling of drivers or for specific drivers who alleged
that they missed meal periods. On January 9, Thomas
(rather than Driggers) replied that the requests were not
overly broad because the information was needed to sup-
port filed grievances.
On January 20, Williams sent another letter, explaining
again why the Respondent viewed the requests as overly
broad, asking for a more narrowly focused request, and
repeating his earlier suggestions for possible alternatives.
Thomas responded by again stating that the Union want-
ed all of the information requested in order to process its
grievances.
On March 28, Williams again protested the breadth of
Union’s information requests, repeating his suggestions
for less burdensome ways the Respondent could provide
necessary information, and complaining that the Union
had not responded to his earlier suggestions that the Un-
ion narrow its requests. On April 1, Thomas answered
that the Respondent, by executing the March 6 settlement
agreement, had foregone the chance to tell an NLRB
judge that the requests were overly broad and unduly
burdensome. As noted earlier, the settlement agreement

8 The driver recap summary apparently shows SPORH, number of
packages, number of hours worked, mileage, and some telematics data
such as seat belt use and backing events.
9 The last request covered by the complaint was submitted on April
16, 2012.
10 The judge’s decision provides more details about the contents of
these letters.
11 All subsequent dates are 2012 unless stated otherwise.
did not refer to or purport to settle the dispute over the
lunch grievance information requests.
The Respondent did not provide any information in re-
sponse to the Union’s requests related to the lunch griev-
ances.
B. The Judge’s Decision
The judge found that the Union acted in bad faith
when it made these information requests and when it
subsequently refused to discuss or agree to any accom-
modation that would reduce the burden on the Respond-
ent. The judge noted that Thomas was consistently un-
willing even to discuss an accommodation and that he
never attempted to explain why the Respondent’s sug-
gestions for less burdensome alternatives were insuffi-
cient. The judge also found that the Respondent acted in
good faith and sought to comply with the requests. The
judge therefore concluded that any failure to furnish the
requested documents did not constitute a violation of
Section 8(a)(5) and (1) of the Act.
For the reasons discussed below, we agree with the
judge that the Respondent did not violate the Act by fail-
ing to provide the requested information. We do not,
however, rely on the judge’s findings that the Union act-
ed in bad faith or that the Respondent sought to comply
with the lunch grievance requests.12
C. Discussion
An employer has a statutory obligation to provide re-
quested information that is potentially relevant and will
be of use to a union in fulfilling its responsibilities as the
employees’ exclusive bargaining representative, includ-
ing its grievance-processing duties. NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1967). See also Postal Ser-
vice, 337 NLRB 820, 822 (2002); Asarco, Inc., 316
NLRB 636, 643 (1995), enfd. in relevant part 86 F.3d
1401 (5th Cir. 1996). The Board’s standard for deter-

12 Contrary to the judge, the record establishes that the Union had a
good-faith basis for its lunch grievance information requests. A union
is presumed to be acting in good faith when it requests information
until the contrary is shown. The requirement that an information re-
quest be made in good faith is satisfied if at least one reason for the
request can be justified. Mission Foods, 345 NLRB 788, 788 (2005);
Hawkins Construction Co., 285 NLRB 1313, 1314 (1987), enf. denied
on other grounds 857 F.2d 1224 (8th Cir. 1988). Here, the Union sub-
mitted all of these information requests in support of corresponding
grievances, providing the one necessary legitimate reason for the re-
quests.
The judge’s finding that the Respondent sought to honor the lunch
grievance requests also is inconsistent with the record. The judge ap-
pears to have thought that documents related to these requests were
included in a large box of documents that the Respondent produced in
January 2012. That box, however, contained information related to the
pre-settlement information requests, not the lunch grievance requests.
The Respondent, moreover, does not claim to have provided any re-
sponsive documents.
UNITED PARCEL SERVICE OF AMERICA 3
mining which information requests must be honored is a
liberal discovery-type standard. See, e.g., Leland Stan-
ford Junior University, 307 NLRB 75, 80 (1992). The
Board does not pass on the merits of the underlying
grievance, and the union is not required to show that the
information that triggered the request is “‘accurate,
nonhearsay, or even ultimately reliable.’” W. L. Molding
Co., 272 NLRB 1239, 1240 (1984) (quoting Boyers Con-
struction Co., 267 NLRB 227, 229 (1983)).
Where, as here, requested information is related to unit
employees’ terms and conditions of employment, the
information is presumptively relevant and the union need
not make any specific showing of relevance. See
Mathews Readymix, Inc., 324 NLRB 1005, 1009 (1997),
enfd. in relevant part 165 F.3d 74 (D.C. Cir. 1999). If an
employer effectively rebuts the presumption of rele-
vance, however, or otherwise shows that it has a valid
reason for not providing the requested information, the
employer is excused from providing the information or
from providing it in the form requested. See Coca-Cola
Bottling Co., 311 NLRB 424, 425 (1993); American Cy-
anamid Co., 129 NLRB 683, 684 (1960).
If, for example, the employer has a legitimate claim
that a request for information is unduly burdensome or
overbroad, it must articulate those concerns to the union
and make a timely offer to cooperate with the union to
reach a mutually acceptable accommodation. Mission
Foods, 345 NLRB at 789. Correspondingly, where an
employer fulfills those obligations, the union may not
ignore the employer’s concerns or refuse to discuss a
possible accommodation, even when the requested in-
formation is presumptively relevant. See American Cy-
anamid, 129 NLRB at 684 (no violation where employer
raised confidentiality concerns and union’s “adamant
insistence . . . on its right to have the Respondent's rec-
ords in the terms set forth in its demand precluded, in
effect, a test of the Respondent's willingness to give the
Union access to the [presumptively relevant] wage in-
formation involved on mutually satisfactory terms”). See
also Good Life Beverage Co., 312 NLRB 1060, 1062
(1993); Century Air Freight, 284 NLRB 730, 734–735
(1987).13

13 Although occasionally disagreeing with the Board on the applica-
tion of these legal principles to particular facts, courts have endorsed
the principles themselves. In Emeryville Research Center v. NLRB,
441 F.2d 880, 885 (9th Cir. 1971), the Ninth Circuit found that the
employer raised bona fide objections to an information request and that
the union, by demanding the information in a very precise form but
stating its need only in terms of general relevance to intelligent bargain-
ing, failed to give the employer the opportunity to provide the infor-
mation on mutually satisfactory terms. See also NLRB v. St. Joseph’s
Hospital, 755 F.2d 260, 264–265 (2d Cir. 1985), cert. denied 474 U.S.
827 (1985) (no violation where employer’s concerns were legitimate
As the General Counsel points out, the information re-
quested by the Union related to bargaining unit employ-
ees and was therefore presumptively relevant. However,
we find that in the context of this case, the Respondent
has effectively rebutted the presumption of relevance
with respect to many of the requested documents and
that, with respect to the requests as a whole, the Re-
spondent has demonstrated that it timely raised legiti-
mate concerns over the burdensomeness and overbreadth
of the information requests, to which the Union did not
respond adequately. In these circumstances, the General
Counsel has failed to prove a violation of the Act.
As the judge explained, the Union was attempting to
determine whether drivers were properly taking their
lunchbreaks or instead were clocking out for lunch while
continuing to work. Some documents, such as timecards,
clearly would have been relevant to this inquiry. But, on
the whole, the Union insisted on a vast number of docu-
ments and information that went far beyond what would
appear to be even potentially relevant to determine if and
when drivers recorded their lunchbreaks and whether
they delivered packages during those breaks. The Union
sought six different reports on every driver for every day
for months. These reports contained information such as
where packages were located on a truck, who signed for
each package, how much time a driver spent backing up,
and much more detailed information about the particulars
of each driver’s workday. Like the judge and the Re-
spondent, we are unable to see how this detailed infor-
mation could bear on the question whether drivers deliv-
ered packages during their lunchbreaks. Significantly,
neither the General Counsel nor the Union has ever ex-
plained how this requested information is even potential-
ly relevant to the issue of lunchbreaks raised in the griev-
ances. Moreover, many of these reports contain overlap-
ping information,14 and the Union has also never ex-
plained how it would benefit from having the same in-
formation in multiple reports.15 Compare Emeryville

and substantial and employer suggested alternatives but union rejected
all attempts at discussion); Soule Glass & Glazing Co. v. NLRB, 652
F.2d 1055, 1098 (1st Cir. 1981) (union does not need to participate in
protracted negotiations but must attempt to reach some type of com-
promise with the employer as to the form, extent, or timing of disclo-
sure), abrogated on other grounds NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 786 fn. 7 (1990).
14 Information contained in more than one report includes, among
others things, drivers’ SPORH numbers, the number of packages on a
truck, delivery addresses, the number of hours a driver worked, and
some very specific information such as seat belt use and backing
events.
15 The record demonstrates that the Union could have requested cer-
tain documents in a form that excluded detailed, non-relevant infor-
mation. Telematics reports, for example, can be customized to provide
only specified information. The Union, however, appears to have been
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Research Center v. NLRB, 441 F.2d at 885 (holding that
where employer has bona fide objections, union “must
do more than rely on general avowals of relevance in
order to establish its right to the information”). As a re-
sult, we find that the Respondent established that much
of the requested information, although presumptively
relevant, in fact was not relevant to the lunch grievances.
Moreover, the Respondent timely asserted its concerns
over the burdensomeness and overbreadth of the lunch
grievance information requests, and attempted to reach
an accommodation with the Union. For example, in re-
sponse to the Union’s request for timecards, the Re-
spondent offered to furnish time records for a sample of
drivers for a single day, or for specific drivers who
claimed to have missed lunchbreaks. These proposals
appear to have been reasonable in the circumstances, yet
the Union rejected them out of hand, never stating why
they would not have satisfied its needs. Compare
Borgess Medical Center, 342 NLRB 1105, 1106 (2004)
(finding a violation where employer established legiti-
mate confidentiality interest but union promptly showed
why employer’s offer of an accommodation was not rea-
sonable). The Union consistently rejected the Respond-
ent’s multiple additional overtures as well. Instead, the
Union, like the union in American Cyanamid, 129 NLRB
at 684, continued to insist on receiving all of the request-
ed information, thus effectively precluding a test of the
Respondent’s willingness to give the Union the infor-
mation it needed on mutually satisfactory terms.
In all of those circumstances, we find that the Re-
spondent did not violate the Act by failing to provide the
requested lunch grievance documents to the Union.16
III. SETTLEMENT AGREEMENT
As mentioned, the Respondent and the Union executed
an informal settlement agreement in March 2012, which
the Regional Director set aside after additional charges
were filed. The settlement agreement included a provi-
sion saying that the Respondent would provide training
to the Union on how to interpret “non-native” documents

requesting all of the information available in telematics; at least it never
asserted that it was actually requesting only a subset of data.
The General Counsel argues that the judge improperly determined
“what information he believed the Union needed to process the griev-
ances.” We disagree. The judge did not determine what information
would have been properly requested or provided. He simply found that
the Union had failed to articulate any reason why all of the information
it requested was potentially relevant to its grievance investigation.
16 Unlike the General Counsel, we do not fault the Respondent for
failing to comply “to the extent” that it could. In the absence of any
indication from the Union as to what specific information it considered
necessary, the Respondent had no way of knowing if any of its pro-
posed accommodations was acceptable to the Union.
within 5 business days of providing such documents.17
On April 4, 2012, Williams sent a letter to Driggers say-
ing that the Respondent would provide the required train-
ing because it anticipated providing some non-native
documents. The letter asked Driggers to “[p]lease let me
know if the Union would like to participate in the in-
person training and provide proposed dates and times for
the training. The Company will identify a mutually con-
venient time and will schedule the training.”
Driggers faxed the letter to Thomas, but did not inform
the Respondent of available dates. Thomas took no ac-
tion. When asked why he did not provide dates and
times for the training, Thomas explained, “I am a stew-
ard. I am not responsible in giving dates and times. I
can’t set up dates and times for the training. That has to
come higher up than me, because that would be more
like Tommy [Driggers]’s job.”
The General Counsel argued that the Respondent
failed to comply with the settlement agreement because it
did not provide the training and that the Union’s failure
to provide proposed dates was immaterial. The judge
disagreed, finding that the Respondent made a good-faith
effort to comply with the settlement by offering to pro-
vide the training, and it was the Union’s unexplained
inaction which prevented the training from being sched-
uled. We agree with the judge, for the reasons he stat-
ed.18
IV. POST-SETTLEMENT INFORMATION REQUESTS
This category of information requests includes five
disputed requests made in 2012, for which the Respond-
ent provided virtually all of the documents requested.
The judge found that all of the missing documents were
presumptively relevant and that the presumption had not
been rebutted. Nevertheless, he found no violations,
primarily because the documents the Respondent did
provide contained all of the information requested.
The General Counsel excepts only to the judge’s find-
ing that the Respondent did not violate the Act by failing
to provide the weekly operating report for the week end-
ing April 21 in association with a request made on April
23.
In some circumstances, an employer’s failure to in-
form the union that the information it seeks is available
or has been provided in a different format from the re-
quested one can be a violation of the Act. See, e.g.,

17 “Non-native” documents came from the Respondent’s off-site
storage system and appeared in a format that the Union was not familiar
with and did not know how to interpret.
18 We do not rely, however, on the judge’s finding that the language
of the settlement agreement did not obligate the Respondent to provide
training because the requirement was included only in the notice and
not in the body of the agreement itself.
UNITED PARCEL SERVICE OF AMERICA 5
Postal Service, 332 NLRB 635, 636 (2000) (finding vio-
lation where union was unaware requested report had
already been turned over and employer neither produced
the report again nor advised union it had previously pro-
vided report); Yeshiva University, 315 NLRB 1245, 1248
(1994) (finding violation where employer did not notify
union that it had information in form not requested by the
union). We find no such violation here.19
Although the Respondent did not provide the weekly
operating report for the week ending April 21, it did pro-
vide all the other information that the Union requested,
including time cards, delivery reports, manifests,
telematics, and driver recap summaries for that week.
Thomas testified that he requested this particular weekly
operating report to see drivers’ SPORH numbers (stops
per on-road hour). Thomas also testified, however, that
he knew that telematics reports, which the Respondent
did provide, also contained drivers’ SPORH numbers.
We decline to find a violation in these circumstances,
where the Union’s own testimony clearly establishes that
the Union knew that the information it was seeking was
contained in other requested documents that had been
provided.20
Having found that the Respondent complied with the
settlement, and that it did not unlawfully refuse to pro-
vide requested information following the settlement, we
necessarily also find that the settlement agreement
should be reinstated.
V. PRE-SETTLEMENT INFORMATION REQUESTS
The Union made several information requests prior to
the settlement agreement that are the subject of com-
plaint allegations. The judge analyzed the merits of each
allegation and found no violations. We find it unneces-
sary to pass on any of the judge’s findings regarding the-
se requests. Having reinstated the settlement agreement,
we find instead that these matters were included in and
resolved by the settlement agreement. For that reason,
we adopt the judge’s dismissal of the relevant complaint
allegations.
VI. CONCLUSION
We find that the Respondent did not violate the Act by
failing to provide information in response to the Union’s
“lunch grievance” requests, that the settlement agreement
should be reinstated, that the requests submitted from
May 3 to September 1, 2011, are covered by the settle-
ment agreement, and that the Respondent did not commit

19 Member Miscimarra agrees that the Respondent did not violate the
Act, but in doing so he does not rely on Postal Service, 332 NLRB 635
(2000).
20 In the absence of exceptions, we adopt the judge’s dismissal of the
remainder of the postsettlement allegations.
any postsettlement violations. As a result, we dismiss
the complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. February 26, 2015
Philip A. Miscimarra, Member
Kent Y. Hirozawa, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Linda Reeder, Esq., for the General Counsel.
Marcus Crider, Esq. and Aron Karabel, Esq. (Waller Lansden
Dortch & Davis, LLP), of Nashville, Tennessee, for the
Respondent.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. With
questionable help from reality, a union steward began
imagining that supervisors were plotting against him, and
retaliated by filing onerous information requests. Finding a
bad-faith abuse of the information request process, I
recommend that the complaint be dismissed.
Procedural History
This case began June 13, 2011, when the International
Brotherhood of Teamsters, Local Union 373 (the Union or
Charging Party) filed an unfair labor practice charge against
United Parcel Service (Respondent). The Board docketed this
charge as Case 16–CA–028064.
On August 9, 2011, the Union filed another charge against
Respondent, which the Board docketed as Case 16–CA–
062316. On December 12, 2011, the Union filed a further
charge, docketed as Case 16–CA–070588. On May 12, and
July 13, 2012, the Union filed charged against Respondent in
Cases 16–CA–081494 and 16–CA–085218, respectively.
Respondent has admitted that all charges were filed and served
on it as alleged in the complaint, and I so find.
On October 31, 2011, after an investigation, the Board’s
Regional Director for Region 16 issued an order consolidating
cases, consolidated complaint and notice of hearing in Cases
16–CA–028064 and 16–CA–062316. In doing so, she acted on
behalf of the Board’s Acting General Counsel (the “General
Counsel” or the “Government”). Respondent filed a timely
answer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
On February 17, 2012, the Acting Regional Director for
Region 16 issued an order further consolidating cases, second
consolidated complaint and notice of hearing, which
consolidated Case 16–CA–070588 with Cases 16–CA–028064
and 16–CA–062316. Respondent timely answered.
On March 6, 2012, the Respondent and the Union executed
an informal settlement agreement in Cases 16–CA–070688,
16–CA–028064 and 16–CA–062316. Also on March 6, 2012,
the Regional Director for Region 16 issued an Order
Postponing Hearing Indefinitely.
On May 21, 2012, the Union filed an unfair labor practice
charge against Respondent which the Region docketed as Case
16–CA–081494.
On July 13, 2012, the Union filed an unfair labor practice
charge against Respondent which the Region docketed as Case
16–CA–085218.
On October 31, 2012, the Regional Director for Region 16
issued an order further consolidating cases, third consolidated
complaint and notice of hearing which had the effect of setting
aside the settlement agreement and reviving the complaint
allegations in Cases 16–CA–070688, 16–CA–028064, and 16–
CA–062316 and consolidating those cases for hearing with
allegations raised by the two more recent charges, Cases 16–
CA–081494 and 16–CA–085218. (Below, for brevity, this
pleading will be called the complaint.) Respondent filed a
timely answer.
On January 23, 2013, a hearing opened before me in
Texarkana, Arkansas. The parties presented evidence that day
and on January 24, 2013, when the hearing closed. Counsel
submitted posthearing briefs, which I have considered.
Admitted Allegations
Respondent has admitted a number of allegations in its
answers. Based on those admissions, I find that the charges
were filed and served as alleged in complaint 1(a) through 1(e).
Further, Respondent has admitted the allegations raised in
complaint paragraphs 2, 3, and 4. Based on these admissions, I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, that
it is engaged in the transportation and delivery of packages, and
that it has an office and place of business in Texarkana,
Arkansas. Therefore, I conclude that the Respondent is subject
to the Board’s jurisdiction, which is appropriately exercised
here.
Based on Respondent’s admission of allegations raised in
complaint paragraph 5, I find that its center manager, Randy
Rosebaugh, and its District Labor Relations Manager, Cedric
Williams, are its supervisors within the meaning of Section
2(11) of the Act and its agents within the meaning of Section
2(13) of the Act.
Based on the Respondent’s admission of the allegations
raised by complaint paragraphs 6, 7, 8, and 9, I make the
following findings about the status of the Charging Party,
International Brotherhood of Teamsters, Local Union 373. At
all times material to this case, the Charging Party has been a
labor organization within the meaning of Section 2(5) of the
Act, and the exclusive collective-bargaining representative,
within the meaning of Section 9(a) of the Act, of Respondent’s
employees in the following unit:
INCLUDED: All feeder drivers, package drivers, sort-
ers, loaders, unloaders, porters, office clerical, clerks, me-
chanics, maintenance personnel (building maintenance),
and car washers.
EXCLUDED: All professionals, guards and supervi-
sors as defined in the Act.
Further, I conclude that this unit is an appropriate unit within
the meaning of Section 9(b) of the Act. At all material times,
the Respondent has recognized the Charging Party as such
exclusive representative, and such recognition has been
embodied in successive collective-bargaining agreements, the
most recent of which is effective from December 19, 2007, to
July 31, 2013.
The complaint raises numerous allegations that the Union
requested information from Respondent on various specified
occasions. The Respondent has admitted many, although not
all, of these allegations. They will be discussed below in
connection with the disputed allegations that Respondent failed
to provide the information requested.
Complaint paragraph 13(a) also alleges that Respondent
previously entered into a settlement agreement disposing of
Cases 16–CA–028064, 16–CA–062316, and 16–CA–070588
and that this settlement was approved on March 8, 2012.
Respondent admits these allegations and I so find.
However, Respondent has denied that since March 8, 2012, it
has refused to comply with this settlement, as alleged in
complaint paragraph 13(b). That allegation will be addressed
later in this decision.
Witness Credibility
Before considering the disputed allegations, it is appropriate
to address the credibility of witnesses, particularly, that of one
of the government’s key witnesses, Chief Union Steward
Reginald Thomas. For the reasons discussed below, I have
doubts about the reliability of Thomas’ testimony and credit it
only when not contradicted by that of other witnesses.
Thomas had a significant interest in the outcome of this
proceeding. He filed or prompted the filing of almost all of the
grievances which were the reasons, or ostensible reasons, for
making the information requests, as well as the requests
themselves. Such an interest in the outcome does not, by itself,
compel any conclusion about the witness’s testimony, but it is a
factor to be taken into account.
At times, Thomas’ testimony appeared to be evasive.
Respondent cross-examined Thomas concerning an information
request Thomas made which sought documents relevant to a
grievance filed on behalf of employee Brandon Rayfield.
Thomas persisted in seeking the information even after the
parties settled the underlying grievance. When pressed,
Thomas admitted that he had continued to seek the information
because Rayfield also had filed charges against Respondent
with the Equal Employment Opportunity Commission.
Three times, Respondent’s counsel asked if Thomas
considered it appropriate to use the information request
procedure to assist an employee with a discrimination claim
before the EEOC and not to pursue a pending grievance. Each
time, Thomas did not give a responsive answer but instead
UNITED PARCEL SERVICE OF AMERICA 7
replied, “I never received the information.”
When counsel asked the question a fourth time, Thomas
answered, “No. That’s not appropriate. That’s not my job.” It
appears clear that Thomas understood the question and also
understood that a truthful answer would hurt his case. His
efforts to avoid answering the question indicate that his interest
in the outcome did, in fact, affect his testimony.
Any internal inconsistencies in a witness’ testimony also say
something about its reliability. Part of Thomas’ testimony
concerned the difference between two types of documents
sought by the information requests. One type of document was
called a “driver recap summary.” The other was known as
“telematics.”
At first, Thomas testified that “a driver recap summary gives
a recap of the day, sort of like telematics, but it’s a lot more
detailed than telematics.” (Emphasis added.) Within a very
short time, Thomas contradicted this testimony: “Telematics—
it’s more detailed, and it gives number of miles, and it also
gives a map.” (Emphasis added.)
Moreover, the record leaves little doubt that Thomas bore
some hostility towards the manager in charge of the Texarkana
facility, Randy Rosebaugh. Thomas admitted that in
conversations with other workers, he had referred to Rosebaugh
as a racist. Thomas’ testimony on cross-examination also
included the following:
Q. Isn’t it true that you want to see him lose his job?
A. I might have made that statement in anger, because
we do that sometimes.
It should be noted that no issue concerning racial
discrimination is before me and I neither have considered nor
made findings about such a matter. I take into account Thomas’
feelings towards Rosebaugh only to the extent that they are
relevant to two issues: Here, it is appropriate to note Thomas’
dislike of Rosebaugh because it could affect the reliability of
Thomas’ testimony. Later in this decision, the chief steward’s
hostility towards Rosebaugh becomes relevant to whether the
Union acted in good faith when the Respondent sought to
negotiate a compromise regarding the amount of information it
would have to produce.
For the reasons discussed above, I conclude that Chief
Steward Thomas displayed an emotional investment in winning
his case sufficient to affect his testimony. Because of my
concern that the testimony is more partisan than impartial, I
credit it only when not contradicted by other witnesses.
The Information Requests
When a union has been certified or recognized as the
exclusive bargaining representative of an appropriate unit of
employees, the employer must bargain with the union in good
faith, as defined in Section 8(d) of the Act. 29 U.S.C. Section
158(d). In dealing with the certified or recognized
representative, one of the things the employer must do, on
request, is to provide information which this union needs for
the proper performance of its duties. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967).
This obligation actually flows two ways. Either party to a
collective-bargaining relationship must provide the other party
with requested information if the requesting party cannot
perform its statutory responsibilities without the information.
The duty to provide requested information does impose a
burden on the party furnishing the information, and the burden
can be far from trivial. However, the justification for imposing
this burden comes from the most practical of reasons:
Necessity. Without the information, the requesting party cannot
perform a function entrusted to it by the Act, causing the
carefully-balanced system of collective bargaining to
malfunction.
Because the obligation to furnish requested information
arises to prevent a breakdown in the statutory scheme, this
requirement only exists when the requesting party seeks the
information to help it do things the statute expects it to do. For
example, the Act entrusts certain responsibilities to a union
which is the exclusive bargaining representative of a unit of
employees. These responsibilities include representing
employees in negotiating the terms of a collective-bargaining
agreement and in assuring that those terms are properly applied.
If such a union requests information which is relevant to one of
those functions and necessary to perform it, then an obligation
arises for the employer to furnish it.
If a union requests information for some purpose other than
performing a duty which the Act has imposed on it, then an
obligation to furnish the information never arises. Thus, a
requester’s true purpose determines whether the other party
must comply with the request.
In most cases involving an alleged refusal to furnish
requested information, the requester’s true purpose does not
become an issue. That purpose is obvious from the
circumstances and no one questions it or argues that the
asserted purpose is actually a pretext. However, the present
case is one of those less common ones in which the true
purpose for the information request becomes a disputed issue.
The complaint alleges that the Respondent has failed and
refused to furnish the Union with information relevant to the
Union’s duties and necessary for their performance, which the
Union sought in a number of information requests described
below. The Union’s chief shop steward at the Respondent’s
Texarkana facility made all of these requests. Most but not all
of those information requests pertain to grievances that the
steward, Reginald Thomas, had filed or caused to be filed on
behalf of himself as a bargaining unit employee.
To comply with these information requests, Respondent has
furnished the Union with a large number of documents, but not
everything described in the requests. In some instances,
discussed below, the Respondent asserts that the documents in
question do not exist. More fundamentally, the Respondent
argues that the Union made the information requests for
improper purposes, that is, for reasons other than discharging
its statutory duty to represent employees in the bargaining unit.
Respondent’s brief argues that the Union has allowed its
chief steward, Reginald Thomas, “to abuse the information
request process for his own personal gain. Mr. Thomas, one of
the most under-performing drivers in the Texarkana Center,
believes that UPS is discriminating against him by allowing
other drivers to work through their lunchbreaks so that their
performance appear better than his.” The brief further states:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Mr. Thomas filed an EEOC complaint and an NLRB
charge asserting this claim, both of which were dismissed
for lack of sufficient evidence. Mr. Thomas has also filed
18 grievances regarding UPS’ purported harassment of
him and 18 information requests regarding those grievanc-
es, all of which are the subject of this dispute. At about
the same time that the EEOC dismissed his complaint for
lack of sufficient evidence and days after being disciplined
for continued sub-par performance, Mr. Thomas began in-
undating UPS with grievances related to lunchbreaks, and
irrelevant, overly broad and unduly burdensome infor-
mation requests to determine whether other drivers were
taking and/or inaccurately recording their lunchbreaks.
Any attempt to engage Mr. Thomas regarding the scope of
his requests has been frustrated by his refusal to identify a
single driver he believes missed a lunchbreak, refusal to
narrow the scope of his information requests in any way
whatsoever, and refusal to explain why knowing what eve-
ry driver is doing every minute of every day for weeks at a
time is even remotely relevant to whether they took a
lunchbreak. Mr. Thomas fully acknowledges that he has
refused to give “an inch” on any of his requests, and has
made clear that he wants everything UPS has and does not
care whether UPS is required to expend hours and thou-
sands of dollars to respond to his requests. [Tr. at
270-272.] While Mr. Thomas’ grievances were subse-
quently settled, by his own doing, his position has not
changed. This type of conduct is demonstrative evidence
of Mr. Thomas’ intent to harass UPS and pursue, without
limits, his claim of discrimination.
Thus, Respondent contends that the information requests
submitted by Chief Steward Thomas were for his own personal
purposes rather than to obtain information necessary for the
Union to discharge its statutory responsibilities. If so, then the
obligation to furnish requested information never arose in the
first place.
A related argument presents the issue in somewhat different
terms: Did the Union make the information requests in good
faith? However, the Board does not presume and I will not
presume that a party to a collective bargaining relationship is
acting in bad faith. Instead, I will examine the evidence very
carefully.
Respondent argues that one indication of the Union’s bad
faith can be found in Chief Steward Thomas’ unwillingness to
compromise or reach an accommodation which might lessen
the Respondent’s burden while still giving the Union all the
information needed for it to fulfill its duties. However, great
care is warranted before drawing any conclusions from a
requester’s unwillingness to agree to a proposed
accommodation when the information request requires the
production of a great many documents and thus imposes a
substantial burden. It is well settled that the Board, in
determining which information requests must be honored, uses
“a liberal discovery-type standard.” See Postal Service, 337
NLRB 820 (2002); Brazos Electric Power Cooperative, 241
NLRB 1016 (1979). An information request which falls within
this broad scope certainly does not suggest bad faith simply
because of its size, so a refusal to narrow it would not, per se,
indicate bad faith. Instead, I must consider the totality of the
circumstances.
These factors include not only the scope of the information
request but also whether it seeks a number of different
documents which record the same information and, if so,
whether the requester was willing to discuss making the request
less onerous by excluding categories of documents which
merely duplicated the information available from other
documents without adding anything new. Additionally, facts
extrinsic to the information requests, such as statements
manifesting hostility or ulterior motive, also should be taken
into account. With those considerations in mind, I now turn to
the individual complaint allegations.
Complaint Subparagraphs 10(a) and (c), 11,
12(a) and (c)
On May 3 and 4, 2011, the Union requested information,
described below, in connection with the grievance of bargaining
unit employee Brandon Rayfield, whom the Respondent had
discharged. In this instance, the information requests prepared
by Chief Steward Thomas concerned an employee other than
himself. In preparing and submitting the information requests,
the chief steward clearly was performing a representation
function contemplated by the Act and expected of the
employees’ exclusive representative. In these circumstances,
there can be little doubt that the Respondent had a duty to
provide requested information to the extent such information
was relevant to the Union’s discharge of its representation
duties and necessary for that purpose.
Both the May 3 and 4 requests sought similar information,
but oe of the requests pertained to employees who worked in
area “37D” and the other sought the information for employees
who worked in area “37F.” Respondent has admitted that the
Union made such a request for information pertaining to
employees who had worked in “area 37D” from January 31
through April 29, 2011, as alleged in complaint subparagraph
10(a). Therefore, I find that the General Counsel has proven
the allegations raised by complaint subparagraph 10(a).
However, Respondent’s answer denied that the Union made a
request for similar information pertaining to employees who
had worked in “area 37F,” as alleged in complaint paragraph
10(c). Nonetheless, uncontroverted evidence, including the
information request itself, establish that the Union made it, as
alleged. Therefore, I find that the General Counsel has proven
the allegation raised in complaint paragraph 10(c).
The information requests sought the following
documentation for bargaining unit employees who had driven
routes in the specified areas (37D and 37F) during the time
period January 3 through April 29, 2011: (1) timecards; (2)
delivery reports; (3) manifests; and (4) telematics.
The first three types of documents—timecards, delivery
reports, and manifests—are so common in industry they require
no explanation. The Respondent’s brief described the fourth
type, “telematics,” as follows:
Telematics is a computer program with GPS technology
utilized to monitor a driver’s performance. Reports are
generated through telematics to determine where a driver is
located, the route taken by a driver on a particular date, how
UNITED PARCEL SERVICE OF AMERICA 9
long the driver was at a particular stop, if the driver is wearing
his seatbelt, whether the package car’s door is open, and other
information regarding the package car.
One of Respondent’s managers at its Texarkana office,
Randy Rosebaugh, testified as follows:
Telematics is a tool for gathering information. It’s safety,
service and production. Basically you pull in all kinds of
safety information from seat belt usage, bulkhead doors, if—a
driver is reported when idling. It shows over/under. It
shows—like the driver stop summary report would show, you
know, the time between each stop, how long they were there,
that kind of information.
From this testimony, I conclude that telematics gathers
information about the actions of bargaining unit employees
while they are on duty, and that this information pertains to
how they are performing various aspects of their jobs.
According to Thomas, the Respondent stated that it had
discharged Rayfield because Rayfield had not told the truth
about where he had stopped along his delivery route.
Telematics information about the operation of Rayfield’s
vehicle on the day in question certainly would be quite relevant
to this issue because it would show where he had stopped.
Moreover, because this requested information concerns the
working conditions of a bargaining unit employee, it enjoys a
presumption of relevance. Caldwell Mfg. Co., 346 NLRB 1159
(2006). The credited evidence does not rebut that presumption.
It is less clear that telematics information about other drivers’
actions would be relevant here, where the stated reason for the
discharge is not Rayfield’s actions but rather his supposed
failure to tell the truth about what he did. If Respondent had
discharged or disciplined any other employee for dishonesty
about his or her work, then information about that employee’s
work might have some relevance. Certainly, the Union would
have a reason to investigate to determine whether the other
employee had received less severe discipline than Rayfield for
essentially the same offense. However, the Union did not limit
its information request to documents concerning other
employees who had received discipline for dishonesty.
Moreover, the record does not establish that another
employee had received such discipline during the time period
covered by the information request. In these circumstances, it
is not at all obvious how telematics information about
employees other than Rayfield could relate to Rayfield’s
grievance or be necessary for the Union’s representation of
Rayfield in that matter.
Additionally, the information request seeks documents for a
considerable period of time after Rayfield’s discharge.
Although Respondent terminated Rayfield’s employment on
February 16, 2011, the information request seeks documents
from January 3 through April 29, 2011.
Considering the totality of circumstances, I conclude that the
requested telematics information concerning the actions of
employees other than Rayfield has very little relevance, if any
at all, to the Union’s representation of Rayfield. Therefore, I
further conclude that the record rebuts the presumption of
relevance which arises because the information pertains to the
work of bargaining unit employees.
On the other hand, I conclude that telematics information
about the vehicle Rayfield drove while working on the day or
days in question indeed is necessary and relevant and that
Respondent had an obligation to furnish it. (By “day or days in
question,” I mean those dates on which, according to
Respondent, Rayfield’s actual conduct did not match the
statements he made to supervision, resulting in his discharge.)
This telematics information provides evidence about what
Rayfield actually did, and thus is highly relevant to the merits
of his grievance.
Rayfield’s “driver recap summary” for each of the days in
question also would be relevant because it would provide
information relevant to whether Rayfield had been where he
said he had been at various times.
The other information described in the information request
does not appear relevant to Rayfield’s grievance. For example,
to demonstrate the relevance of the requested timecards, the
General Counsel elicited the following testimony from Chief
Steward Thomas:
Q. Now, looking at General Counsel’s Exhibit 4, I see
a check mark next to time card, dated from 1/3/2011 to
4/29/2011. Why did you request the time cards for that
period?
A. I wanted to know who ran his area during that peri-
od and if they took their lunch.
Q. Now, why would taking their lunch be relevant to
an integrity grievance?
A. If a driver did not take their lunch on this particular
area, because it’s pretty tight, they would not make those
stops, so I wanted to know if these drivers took their lunch
or not; was that the cause of some drivers not taking their
lunch or not finishing this area.
Q. And why did you request for a couple—well, that
period of time, January 3 to April 29?
A. Well, in my investigation, I had found out there was
other drivers who ran this area, and they told me them-
selves that, Yes, Reggie, I missed some stops during that
particular time, and I wasn’t disciplined. So I needed to
know who those drivers were.
Thomas’ testimony about the purported relevance of the
requested information is not persuasive. The record does not
suggest that Respondent discharged Rayfield for missing stops
but rather for not being truthful when answering management’s
questions about what he did. The record does not provide a
basis for concluding that information about the number of stops
made by other drivers would have any relevance to a discharge
for dishonesty. Likewise, whether other drivers took their
lunchbreaks has no obvious relevance to whether Rayfield lied
to management.
Thomas had an opportunity to explain the relevance when
asked “why would taking their lunch be relevant to an integrity
grievance” but his answer is not responsive. It did not explain
why information about other drivers’ actions would have any
bearing on whether Rayfield had been truthful. Even applying
the Board’s broad, discovery-like standard, I cannot conclude
that this requested information is relevant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Moreover, Thomas’ testimony, quoted above, does not allay
my concerns about his reliability as a witness. After indicating
that certain drivers told him that they missed some stops but
were not disciplined, Thomas said he “needed to know who
those drivers were.” Thomas had been a steward for 20 years.
Presumably, if a person said to him, “I missed some stops and I
wasn’t disciplined,” Thomas would know who that person was
and would not need any records to determine that fact.
Additionally, review of an employee’s timecard would not
show whether that person had missed stops.
Because Thomas’ claimed reason for seeking the records
cannot be correct, it raises some question about the true reason.
Thomas made the information request on a union form which
long has been used for this purpose. The form lists various
types of information, with a line by each. The requester places
a check mark on the line to signify that he is asking for that
information. As already noted, Thomas had been a steward for
2 decades, so it is quite possible that he simply checked the
particular lines routinely, without considering whether or not
the information really was relevant and necessary to the
grievance. The General Counsel’s brief states, in part, as
follows:
E. Information Routinely Requested by Thomas and Reasons
for the Requests
When processing or investigating the above-referenced
grievances, Thomas routinely requested certain documents.
Thomas sought the time cards to determine whether drivers
who ran the route took their lunch because if a route is “tight,”
taking a lunch period might cause the drivers not to finish the
area (their route) or may cause a driver not to complete his
route before 5:00 p.m. [Tr. 108, 123.] Time cards also show
which driver was on the route and if they were documenting
and taking their lunch. [Tr. 121, 123, 143, 154, 159, 162, 157,
171, 178, 184, 189, and 198.] In addition, time cards show
the driver’s name, employee identification number, the time a
driver punched in and out, the time a driver left and returned
to the building and the number of packages carried by the
driver on a route. [Emphasis added.]
However, to say that certain information is routinely
requested does not establish that it is relevant to a particular
grievance. Indeed, requesting the same information regardless
of the particular facts differs little from saying, “round up the
usual suspects.”
In analyzing whether requested information pertaining to
bargaining unit employees is relevant to, and necessary for the
Union in the performance of its representation duties, I begin
with the rebuttable presumption, noted above, that such
information is, in fact, relevant and necessary. Caldwell Mfg.
Co., above. Therefore, the question to be decided is whether
credited evidence rebuts this presumption.
The presumption does not change the Government’s burden
of proof, but merely counts as evidence to carry that burden.
The General Counsel still must show that when the Union made
its request it had a reasonable basis for believing that the
information would be necessary to it in carrying out its
statutory obligations. However, the Government may rely on
the presumption, unless rebutted, to carry that burden.
Unlike an absolute presumption, a rebuttable presumption
welcomes rather than precludes inquiry into the soundness of
its application in a particular instance. Because the rebuttable
presumption allows such inquiry, another question arises: What
evidence is sufficient to rebut the presumption?
The Board has articulated standards for determining what
must be shown to establish relevance when the requested
information does not enjoy a presumption of relevance. These
standards would apply, for example, when a union seeks
information about the employer’s subcontracting practices.
A presumption of relevance does not affect the definition of
relevance, that is, the standard by which relevance is tested, but
only affects the requirement of coming forward with evidence,
who bears that burden, and when. Accordingly, in examining
here whether the presumption of relevance has been rebutted, it
is appropriate to refer to the Board’s teachings on relevance in
cases where the requested information did not enjoy the
presumption. In other words, the way the Board has
approached the issue of relevance in cases not involving the
presumption provides essential guidance here, as well.
In Disneyland Park, 350 NLRB 1256 (2007), which
concerned a request for such subcontracting information, not
presumptively relevant, the Board stated that to show relevance
a union must do more than cite a provision of the collective-
bargaining agreement. It must demonstrate that the contract
provision is related to the matter about which information is
sought, and that the matter is within the union’s responsibilities
as the collective-bargaining representative.
Citing Island Creek Coal, 292 NLRB 480, 490 fn. 19 (1989),
the Board further stated in Disneyland Park that a union’s
explanation of relevance must be made with some precision. A
generalized, conclusory explanation is insufficient to trigger an
obligation to supply information.
Other Board cases, including Allison Corp., 330 NLRB 1363
(2000), and Providence Hospital, 320 NLRB 790, 793–794
(1996), enfd. 93 F.3d 1012 (1st Cir. 1996), illuminate the
meanings of “relevance” and “necessity” in the context of an
information request. In deciding whether the information at
issue in Allison Corp. was “necessary,” the Board looked to the
reason for the request at the time of the request.
By itself, the word “necessary” has no meaning, but attains
significance in relation to an objective. It states the obvious to
observe that if a question merely asks whether something is
“necessary,” the only appropriate answer is another question:
“For what?” In evaluating the necessity of an information
request, the “what” is the Union’s purpose at the time it made
the request, not some other objective it may have thought of
later.
In the present case, the requested information pertains to the
work of bargaining unit employees and therefore does enjoy the
presumption of relevance. However, Respondent has denied
that the requested information is relevant and the record raises
serious concerns. For example, based on the testimony of
Chief Union Steward Thomas, other record evidence and my
observations of the witnesses, I find that Thomas had a
persistent, perhaps even obsessive hostility towards Manager
Rosebaugh, that Thomas had remarked that he would like to see
UNITED PARCEL SERVICE OF AMERICA 11
Rosebaugh fired, and that Thomas had used at least one
information request for an improper purpose.
These unusual circumstances call into question the union
steward’s motivation for submitting the information requests
and, therefore, whether the requests satisfy the Board’s
standards. The circumstances make it not merely desirable but
quite important to ask whether the evidence rebuts the
presumption of relevance.
The literal wording of the Act does not describe a specific
obligation to provide requested relevant and necessary
information. However, the Board and courts have found that
the Act can create such a requirement because in certain
circumstances, without such information, the requesting party
cannot perform the duties which the Act imposes.
Thus, the duty to furnish requested relevant and necessary
information arises by necessity; without such information, the
system of collective bargaining which Congress carefully
crafted breaks down. Board and court precedent has
circumscribed the duty to furnish information so that it arises
only when the requested information is sought and needed for a
party to perform the functions contemplated by the Act.
A failure to comply with the duty to furnish requested
information frustrates the balanced collective-bargaining
system devised by Congress to reduce industrial strife, but
abuse of the information request process for improper purposes
likewise causes harm. Just as the Board protects this system by
enforcing the duty to furnish information (when it arises), it has
a similar interest in keeping the process free of abuse.
For example, if the Union in this case used an information
request for an objective other than to perform its statutory
representation function, and were I then to order the
Respondent to furnish the information, that action would, in a
sense, make me complicit in the misuse. It would engage the
authority of the Federal Government in furtherance of an
improper purpose. Therefore, where the record gives reason to
be concerned about the requesting party’s motivation, it serves
the purposes of the Act to determine whether the evidence
supports the presumption.
Indeed, the question of whether the requesting party is
seeking the information to perform its statutory duties actually
arises as a threshold matter before any presumption of
relevance can come into play. If the requesting party is not
acting in furtherance of its statutory duties, then there is no
obligation to furnish the information and the analysis stops.
Only when the requesting party’s purpose is proper does the
analysis go on to consider whether the information sought is
relevant to that purpose, the issue which the presumption
addresses.
In sum, the fact that the requested documents pertain to
bargaining unit work and therefore enjoy a presumption of
relevance does not foreclose me from determining whether the
Union made the information request for a proper purpose.
Where, as here, there are independent reasons to question the
purpose, it serves the objectives of the Act to examine this issue
carefully.
Here, I find that the Union’s purpose, at the time it made the
information request, was to contest and seek to undo
Respondent’s discharge of Rayfield. This purpose is
unmistakably clear from the face of the May 3, 2011
information request itself. The first paragraph of the form
states: “The Union needs the following information or copies
as requested to adequately investigate and or/process a
grievance concerning: [blank space]” the blank appears only
the handwritten notation “52 termination.” The name of the
discharged employee, Brandon Rayfield, appears lower on the
form.
The number “52” refers to article 52 of the supplemental
collective-bargaining agreement, which is captioned “Discharge
or Suspension.” Clearly, the information request sought
information pertaining to Rayfield’s discharge, in connection
with the grievance over that discharge. Nothing on the
information request form suggests any other purpose.
Similarly, the only reason stated on the Union’s May 4, 2011
information request is “52 termination.” This documentary
evidence strongly supports a finding that the Union’s objective
in requesting the information was solely to provide employee
Rayfield effective representation in the grievance proceeding
concerning Rayfield’s discharge.
For reasons discussed above, I doubt the reliability of some
of Thomas’ testimony. Nonetheless, it is significant that this
testimony also supports a finding that the Union requested the
information to prepare to represent Rayfield effectively.
Thomas’ testimony on cross-examination includes the
following:
Q. So even though the grievance was settled, you still
think that the information request that’s tied to that griev-
ance, when it’s settled and resolved, should continue?
A. Well, when I filed for the information request, that
information request—I was needing those documents for
that grievance. [Emphasis added.]
For these reasons, I find that when the Union filed the
request, its purpose was to obtain information to support its
processing and advocacy of Rayfield’s grievance. Because the
requested information pertained to bargaining unit employees,
it enjoys the rebuttable presumption of relevance discussed
above. Caldwell Mfg. Co., above. In other words, I begin by
presuming that the requested information is relevant and
necessary to this purpose.
Judging the information request against the Union’s
purpose—representing Rayfield in the grievance process over
his discharge for dishonesty—I conclude that the credible
evidence clearly rebuts the presumption of relevance and
necessity. Except for the records pertaining to Rayfield’s work
on the day or dates in question, the Union could not reasonably
have concluded that the requested information was relevant or
necessary to the issues raised by the Rayfield discharge.
In reaching this conclusion, I am mindful, as discussed
above, that the Board applies a broad, discovery-type standard
in determining relevance of information sought in information
requests. Daimler Chrysler Corp., 344 NLRB 772 (2005).
Under that standard, even potential or probable relevance is
sufficient to give rise to an employer’s obligation to provide
information. Postal Service, 332 NLRB 635 (2000).
However, information about what other drivers did has no
potential, let alone probable relevance to Rayfield’s discharge
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
for supposedly lying to management about what Rayfield had
done. The record does not reflect how such information could
be relevant to Rayfield’s grievance or even how it could lead to
relevant information. Therefore, except for the telematics
information and the “driver recap” summary or summaries
showing Rayfield’s activities on the date or dates in question, I
conclude that the presumption has been rebutted.
Considering the breadth of this standard, I conclude that the
requested telematics data for the period before Rayfield’s
discharge, and limited to those dates pertaining to Rayfield’s
allegedly false statements, meets the “relevant and necessary”
test and that if such information existed, Respondent had an
obligation to provide it.
However, the business manager of the Texarkana facility,
Randy Rosebaugh, testified that Respondent did not begin
using telematics at that facility until March or April 2011,
which would have been after Rayfield’s discharge (although
before the May 3 and 4, 2011 information requests). Based on
my observations of the witnesses, I conclude that this testimony
is reliable and I credit it. Therefore, I find that Respondent did
not begin using telematics at the Texarkana facility until
sometime in March 2011 at the earliest.
Respondent obviously cannot be expected to furnish
information that it didn’t have. As noted above, I have
concluded the telematics information for days after Rayfield’s
discharge was not relevant or necessary.
As discussed above, I also conclude that the requested
“driver recap summaries” for the day or days in question were
relevant and necessary. The record does not establish that
Respondent provided this information before about January 11,
2012, at the earliest. Considering the totality of the
circumstances, I conclude that such a delay, of 8 months, is not
reasonable. West Penn Power Co., 339 NLRB 585 (2003).
Accordingly, I further conclude that Respondent, by its
failure to furnish the driver recap summaries for the day or days
in question within a reasonable time, violated Section 8(a)(5)
and (1) of the Act. However, as noted above, Respondent
entered into a settlement agreement which was approved by the
Region on March 8, 2012, but later set aside. This settlement
and its effects will be discussed later in this decision.
Complaint Paragraphs 10(b), 11, and 12(b)
Complaint paragraph 10(b) alleges that since about May 3,
2013, the Union has requested in writing that Respondent
furnish the Union with the following information for all
Texarkana Center drivers who ran area 29A from January 31
through April 29, 2011: (1) timecards; (2) delivery reports; (3)
manifests; and (4) telematics.
Complaint paragraph 11 alleges that this information is
relevant to and necessary for the Union’s performance of its
duties as the exclusive bargaining representative.
Complaint paragraph 12(b) alleges that since about May 3,
2011, the Union has failed and refused to furnish this
information to the Union. Respondent has denied all of these
allegations.
The information request itself is in evidence. Based on that
document and related testimony, I conclude that the
government has proven the allegations raised in complaint
paragraph 10(b).
This information request pertains to four grievances, filed
March 8 and 11, April 14, and May 2, 2011. In each of these,
Reginald Thomas was the grievant and another union steward
signed the grievance on behalf of the Union. The grievances
invoked article 37 of the collective-bargaining agreement,
which stated, in part, as follows:
(c) The Employer shall make a reasonable effort to re-
duce package car drivers’ workdays below nine and one
half (9.5) hours per day when requested. If a review indi-
cates that progress is not being made in the reduction of
assigned hours of work, the following language shall ap-
ply, except in the months of November and December:
Such requests may only be made for the five (5) month
periods beginning on each January 1 and June 1 of each year.
No later than thirty (30) days prior to each January 1st and
June 1st, each package center will post a “9.5 opt-in/opt-out
list’ for the applicable five (5) month period. Each full-time
seniority driver in the center must make an election to opt-in
or opt-out of the 9.5 language in this subsection no later than
ten (10) days prior to the applicable five (5) month period.
Those full-time drivers who choose to opt-out of the 9.5
language in this subsection will have no right to file a
grievance alleging excessive overtime either under this
subsection or under an excessive overtime provision in the
Supplement, Rider or Addendum.
Drivers who choose to opt-in on the 9.5 list shall have the
right to file a grievance if the Employer has continually
worked a driver more than nine and one half (9.5) hours per
day for any three (3) days in a workweek.
Thomas did not have an exact copy of his March 11, 2011
grievance. However, from the record I conclude that it was
similar to his April 14, 2011 grievance, which stated, in
pertinent part, as follows:
The company has caused me to work over 9.5 hours per day
week ending April 9, 2011. The grievant requests penalty pay
for all time worked over 9.5 hours per day.
In connection with these grievances, Chief Steward Thomas
also submitted the May 3, 2011 information request described
in complaint subparagraph 10(b). As noted above, the request
sought the following information for all Texarkana Center
drivers who ran area 29A from January 31 through April 29,
2011: (1) timecards; (2) delivery reports; (3) manifests; and (4)
telematics.
Thomas made the information request on a standard union
form which included the words, “The Union needs the
following information or copies as requested to adequately
investigate and/or process a grievance concerning [blank
space].” In the blank, Thomas had written “9.5 hours Article
63.” Thus, the relevance of the requested information must be
evaluated in relation to the stated purpose of the request, in this
case, to investigate and/or process a grievance concerning the
contractual provision limiting employees to 9.5 hours work per
day.
UNITED PARCEL SERVICE OF AMERICA 13
Thomas testified as follows concerning the reasons for
seeking the information specified in the request:
Q. Does this request seek information for all drivers or
just those in a particular area?
A. No. This information was looking for every driver
that ran Area 29A during this period.
Q. And what’s 29A?
A. 29A is my route, so I wanted to know who besides
me was working over nine- and-a-half hours, and I re-
quested that information to find out who it was.
Q. Why did you request the time cards?
A. Time cards would give me--would let me know if
the driver who ran 29A during this period documented and
took their lunch.
Q. Why did you request the delivery reports?
A. Delivery records would tell me what driver during
this period--what he had on the package car, how many
packages he had for on the car, and who signed for it.
Mainly how many business stops he had and who signed
for it, and if he or she missed anything.
Q. And how would that assist in your 9.5 grievance?
A. Well, the number of packages on the car, who
signed for it, would let me know that if a person had more
business stops than I had a particular day, it would take
them longer. If I had more business stops than that person
had that particular day, it would take me longer, so I need-
ed to know that information to process my grievances.
Q. Why did you request the manifest?
A. Manifest is a dispatch of the day. It tells exactly
what’s on the car, where it is, and how many packages it is
and how many stops it is. I needed that information to
know what kind of day these particular drivers was going
out with.
Q. Why did you request the telematics?
A. Also, it’s for every driver that ran 29A. I needed to
know exactly what the driver did that day, like how many
miles he had, how many times he backed up, how many
times he delivered a package with the door open. These
all reflects on a driver’s day. If he’s delivering packages
when the door’s open, he’s going to have an easier day
than I would.
The relevance of requested information depends on the
purpose for which it is sought. In this instance, the Union made
the information request in connection with the grievances
concerning the hours Thomas worked during 2 separate weeks.
Thomas sought “penalty pay” for hours he worked in excess of
9.5 per day. Assuming that Thomas was entitled to such
penalty pay, computing it would require reference only to
documents showing how much Thomas had worked; it would
not be necessary to examine records showing how many hours
other drivers had worked.
Additionally, the contractual language, quoted above, allows
drivers to “opt out” of the 9.5-hours provision. If Thomas had
been seeking a remedy for employees other than himself,
presumably the information request would have sought records
showing which drivers had opted in or out. It did not.
Therefore, I conclude that the grievances pertained only to
Thomas. Accordingly, the only issues presented by the
grievances concerned how many hours Thomas worked each
day of the weeks in question.
Focusing narrowly on the information actually needed to
resolve issues raised by the grievance would lead to the
conclusion that only documents showing how many hours
Thomas had worked would be relevant, and that documents
showing the hours worked by other employees would not be.
Thus, I would have to conclude that except for Thomas’ own
time records, the remaining requested documents would not be
relevant or necessary and would not have to be furnished.
However, would such a conclusion be consistent with Board
precedent? As noted above, the Board tests the relevance of the
requested information using a liberal discovery-type standard.
Daimler Chrysler Corp., above. Under this standard, even
potential or probable relevance is sufficient to give rise to an
employer’s obligation to provide information. Postal Service,
332 NLRB 635 (2000); Certco Food Distribution Center, 346
NLRB 1214 (2006).
Yet, it remains difficult to see how records concerning work
performed by other employees would have any potential
relevance, let alone probable relevance, to grievances seeking a
remedy for one person, Thomas. Certainly, this information
could have potential or probable relevance for some other
purposes. For example, if union negotiators wanted to know
how effectively the 9.5-hour clause was working so that they
could propose different language to correct any problems, then
information about the hours actually worked by bargaining unit
employees would clearly be relevant. However, relevance must
be judged in relation to the purpose for which the information
had been requested. That purpose here pertained to grievances
seeking a remedy for only one employee.
Judging the relevance of the information requested based on
the stated purpose of the request, I conclude that the records of
drivers other than Thomas would not have potential or probable
relevance even under a broad “discovery-type standard.”
Of course, the Board’s application of a “discovery-type
standard” in determining relevance does not suggest that
discovery during litigation is exactly the same thing as an
information request within a bargaining relationship. The
adversarial relationship which characterizes litigation stands
distinct from the attitude of cooperation which contributes to
the success of a long-term bargaining relationship.
Congress enacted the National Labor Relations Act to reduce
the industrial strife which resulted in labor disputes disrupting
commerce. 29 U.S.C. Section 151. Long-term collective-
bargaining relationships, in which the parties respect each other
and work out their differences in good faith, foster industrial
stability, and peace. In such a partnership the parties find ways
to compromise.
The Board contemplates that when an information request
would impose a great burden, the parties, if possible, will try to
negotiate an arrangement satisfying both sides. Thus, it places
a duty on a party burdened by an information request to inform
the requesting party promptly and seek an accommodation.
Mission Foods, 345 NLRB 788 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Respondent did precisely that. However, when Respondent
sought an accommodation, Thomas refused to budge. On
cross-examination, Thomas gave the following testimony:
Q. BY MR. CRIDER: For every single information re-
quest you’ve made that’s encompassed within this hearing,
within this complaint, have you ever given one inch?
JUDGE LOCKE: I’ll allow it. Overruled.
Q. BY MR. CRIDER: Have you ever compromised at all
on anything?
A. All this information is needed in processing griev-
ances.
Q. Is the answer, no, Mr. Thomas, because I believe it
is. Do you agree with me that you haven’t compromised
on one request you’ve made? Of all the dozens and dozens
of requests that are made a part of this complaint, no com-
promise by you at all. Agree or disagree?
A. We need this information to process grievances.
MR. CRIDER: Your Honor—
THE WITNESS: I guess I agree, because—
Q. BY MR. CRIDER: Okay. Thank you. It was simple.
You agree.
A. Yes.
Q. Now, the company on the other hand has written
multiple letters to you, saying, We need to find some mid-
dle ground so that we don’t have to respond to unreasona-
ble requests that cost thousands of dollars and hours and
hours and hours. Correct?
A. Yes.
Q. Yet you’ve not given an inch.
A. (No audible response.)
Another portion of Thomas’ testimony also reveals his
unwillingness to compromise. In this testimony, on direct
examination, Thomas described a conversation he had with
Manager Rosebaugh on about May 24, 2011. Management
recently had furnished the Union with computer-generated
documents in response to the Union’s information request.
However, Thomas did not understand these records because
they did not present the information in its “native format,” the
format which Thomas was accustomed to seeing. So Thomas
complained to Rosebaugh that the Respondent had not
furnished the information which the Union had requested.
Q. Now, directing your attention to about May 24,
2011, which would have been about four days after you
received that, did you have another conversation with Mr.
Rosebaugh about the information?
A. Yes. I think—I’m not real sure, but I think he
asked me what I was really looking for. I think it was
about—a conversation about telematics, what I was really
looking for. And I think that was the day. But I remember
having that conversation with him, and I told him, I want
everything that you—that telematics entails. Everything
that you showed me telematics has, that’s what I want.
Q. Okay. Did he say anything about the size of the
telematics report?
A. Yes. He said that was a huge file and that I would
be asking a lot. And I told him, which was kind of smart,
but I told him that was not my problem.
This conversation reflects a pattern characteristic of how
Thomas dealt with the Respondent concerning information
requests: The request itself is broad and burdensome, and
Respondent raises the possibility of an accommodation. In
seeking such a compromise, the Respondent quite reasonably
asks about the Union’s true purpose—”what I was really
looking for”—so that the contours of the information request
could be shaped to fit the need. However, Thomas never
provides such an explanation but instead digs in his heels. In
this instance, when Rosebaugh alluded to the burden, Thomas
replied dismissively that it wasn’t his problem.
A similar pattern appears in written communications,
discussed later in this decision. When the Respondent seeks to
lessen its burden by negotiating an accommodation based on
the Union’s needs, the Union ignores the request for an
explanation, and merely repeats that it wants every document
requested. Both the failure to explain and the refusal to
compromise reflect on the Union’s motivation.
Thomas’ testimony acquires particular significance when
considered together with his hostility towards Manager
Rosebaugh, his seeking information clearly irrelevant to the
stated purpose, his refusal to withdraw information requests
even after the grievance prompting the request had been settled,
and the nonresponsive answers he offered on cross-
examination.
The Board has held that there is a presumption that a union
acts in good faith when it requests information from an
employer, until the contrary is shown. Hawkins Construction
Co., 285 NLRB 1313, 1314 (1987), enfd. denied on other
grounds 857 F.2d 1224 (8th Cir. 1988). This presumption
cannot be rebutted simply by pointing to the large size of the
information request and the burden it thereby imposes. See
Mission Foods, above. Some other evidence is necessary.
In the present case, ample additional evidence supports a
conclusion that the requesting party acted in bad faith. The
record clearly establishes that the drafter of the information
request, Chief Steward Thomas, harbored hostility towards the
Texarkana Center’s manager, Randy Rosebaugh. Thomas did
not deny having said that he hoped Rosebaugh would be fired.
Additionally, the information request now under
consideration sought documents beyond those relevant to the
stated purpose of the request. Other information requests
drafted by Thomas, such as those described in complaint
paragraphs 10(a) and 10(c), discussed above, also sought
irrelevant information.
Certainly, the mere fact that some of the requested
information was irrelevant falls far short of establishing an
improper purpose. However, the inclusion of irrelevant matters
in an information request takes on additional significance
because of the Union’s intransigence when asked to narrow the
request.
Moreover, Chief Steward Thomas had demonstrated a
willingness to use the information request process for purposes
other than the Union’s statutory duties. Specifically, in the
information requests described in complaint paragraphs 10(a)
and 10(c), and discussed above, Thomas not only had sought
relevant records but also documents he could use in connection
with EEOC charges. On cross-examination, Thomas ultimately
UNITED PARCEL SERVICE OF AMERICA 15
admitted that it was not appropriate to use the information
request procedure to obtain such information. From his
reluctance to make such an admission and his attempts to evade
the question, I conclude that Thomas well knew that he was
misusing the information request procedure but did so anyway.
To support the Government’s argument that the Union did
not act in bad faith, the General Counsel’s brief cites a judge’s
recent decision in United Parcel Service, 2013 WL 819359
(NLRB Division of Judges, March 4, 2013). In this decision,
the judge held that neither the length of the requests nor the
requester’s failure to tailor a request to the specific nature of the
grievance sufficed to establish that the request had been made
in bad faith. In contrast, the present record also provides
credible evidence of the requester’s hostility. Moreover, as
already noted, the Union’s inability to explain its need for the
information and its unwillingness to exclude irrelevant and
redundant documents, do not shout “good faith.”
Thomas’ willingness to “hijack” the information request
procedure for his own purposes even though he knew it was not
appropriate, his unyielding refusal to make any
accommodation, his admitted hostility to the center’s manager
and his undenied desire that the manager be fired form a
consistent picture which rebuts the presumption that the
information request had been made in good faith. I find that
Thomas was using his position as chief steward for his own
ends rather than to perform the Union’s statutory duties as
exclusive bargaining representative.
Further, I conclude that Thomas’ conduct can be attributed to
the Union, which enabled and condoned it. The record
establishes that the Union had a practice which allowed Chief
Steward Thomas to make information requests on its behalf.
Thomas did so using a form titled “Steward Request for
Information,” which bore the Union’s name, address, telephone
number and logo. An assistant business manager, Tommy
Driggers, acted as an intermediary between Thomas and
Respondent but the record does not establish that Driggers ever
told Thomas to change or revise an information request.
In these circumstances, Thomas acted with at least the
apparent authority of the Union. Respondent received
information requests on union forms bearing the Union’s logo
and address, and communicated about the requests with one of
the Union’s business agents. Under all the circumstances,
Respondent reasonably would believe, and would have no
reason to doubt, that Chief Steward Thomas was speaking and
acting for the Union and reflected union policy. See, e.g.,
Albertson’s, Inc., 344 NLRB 1200 (2005). Respondent
reasonably would believe that the requests came from the
Union in its capacity as exclusive representative of bargaining
unit employees.
In sum, I conclude that Chief Steward Thomas’s bad faith is
attributable to the Union and taints the information request
under consideration here. However, the existence of bad faith
does not necessarily render an information request entirely
void. Rather, the effect of the bad faith must be judged, in each
instance, on the totality of the circumstances.
The information requests described in complaint paragraphs
10(a) and 10(c), discussed above, sought documents which the
Union needed in connection with the grievance concerning a
discharged employee, Rayfield. Although I conclude that
Thomas acted in bad faith when he sought to use the
information requests for purposes unrelated to Rayfield’s
grievance—for example, by seeking information for use in
connection with EEOC charges, and by seeking information for
a time period after Rayfield’s discharge—this bad faith should
not affect the Respondent’s obligation to furnish those
requested documents which are indeed relevant to the Union’s
representation of Rayfield.
Stated another way, the grievant Rayfield should not be
penalized because a union steward abused the information
request process. The Union still needed information to
represent Rayfield adequately. Therefore, I have concluded that
Respondent remained obligated to provide this information in
timely fashion, even though it had no duty to furnish other
information sought by the request.
Applying similar reasoning to the information request under
consideration here would lead to the conclusion that
Respondent did have an obligation to furnish time records
sufficient to show whether Thomas himself worked 9.5 hours or
more on the days in question even though no duty would arise
to furnish records of other employees. However, I do not reach
this conclusion because I find both that Thomas acted in bad
faith when he filed the information requests and that this bad
faith was of such a character as to relieve the Respondent of the
duty to furnish information.
It should be stressed that not every improper motive for
making an information request will be so egregious as to
extinguish the duty to furnish information. However, I find that
in this instance, unlike in the information requests pertaining to
the Rayfield grievance, Thomas was not merely trying to use
the information request procedure for a purpose (the EEOC
charges) unrelated to the Union’s statutory duties, he was
attempting to use this process for a malicious purpose.
Thomas harbored an intent to cause management such extra
work and inconvenience that it foreseeably would do harm to
the Respondent’s operations. Such an intention constitutes a
particularly virulent strain of bad faith.
Ordinarily, the presence of a proper reason for the
information request—here, to obtain information relevant to the
issue raised by the grievances (the “9.5 hours” issues)—creates
an entitlement to requested relevant and necessary information,
and the concurrent existence of another purpose does not erase
the obligation to provide that information. However, for
reasons to be discussed further below, I conclude that Thomas’
retaliatory motive is so antithetical to the purposes of the Act,
has such great potential to damage the collective-bargaining
process, and affected the Union’s conduct to so great an extent,
that it cannot be ignored.
In this regard, the retaliatory motive affected not only the
decision to file the information requests and the content of
those requests, but also the Union’s willingness to engage in the
discussion process, the give and take, which forms the essence
of the collective-bargaining relationship. In these
circumstances, and for reasons discussed further later in this
decision, I conclude that Thomas’ retaliatory motive cannot
simply be ignored or held to be of no consequence. To do so
would condone the misuse of the information request process
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
and set a highly pernicious precedent.
Although not fully on point—because it does not address the
present situation involving the coexistence of both a proper and
improper objective—a recent Board decision does provide
some guidance. In ACF Industries, LLC, 347 NLRB 1040
(2006), a union and employer had been involved in collective
bargaining for a new agreement but were reaching impasse.
When the employer was about to declare impasse and
implement its final offer unilaterally, the union made an
information request. The Board found that this information
request “was purely tactical and was submitted solely for
purposes of delay.” Therefore, it concluded, the employer’s
failure to furnish the information right away did not violate the
Act.
It is true that the union in ACF Industries, unlike the Union
here, had no purpose which triggered the obligation to furnish
information. Its desire to delay impasse was the sole
motivation for its information request. However, in the present
case, the improper purpose, although not the only motive, so
dominated the Union’s actions that the legitimate objective
became increasingly less significant.
If Thomas’ primary purpose had been obtaining information
to bring his grievance to a successful resolution, he would
readily have agreed to an accommodation allowing the
exclusion of irrelevant and unnecessary documents. His
insistence that Respondent furnish documents he did not need
for grievance processing demonstrates that the objective of
inflicting inconvenience on the Respondent had become more
important.
The intent to burden supervisors with the time-consuming
task of gathering, copying and furnishing massive amounts of
documentation gave Thomas’ bad faith an egregious quality,
and this motivation had become the dominant one.
Nonetheless, Respondent made a good-faith effort to comply
with the information request. In these circumstances, any
omission by the Respondent neither manifested bad faith nor
violated the Act.
Therefore, I recommend that the Board dismiss the
allegations arising from complaint paragraphs 10(b) and 12(b).
Complaint Paragraphs 10(d), 11, 12(d)
Complaint paragraph 10(d) alleges that since about June 29,
2011, the Union has requested in writing that Respondent
furnish it with the following information for all Texarkana
Center drivers for June 24, 2011: (1) timecards; (2) delivery
reports; (3) manifests; (4) virtual OJS; and (5) telematics.
Complaint paragraph 11 alleges that this information is
necessary for, and relevant to, the Union’s performance of its
duties as exclusive bargaining representative. Complaint
paragraph 12(d) alleges that since June 29, 2011, Respondent
has failed and refused to furnish the Union with the requested
information. Respondent denies all of these allegations.
The record clearly established that on June 29, 2011, the
Union made the information request, which itself is in
evidence. However, that document differs from the language in
complaint paragraph 10(d) in one significant respect.
According to the language in the complaint, the Union
requested copies of the specified documents for “all Texarkana
Center drivers.” However, from the request itself, which does
not use the words “all Texarkana Center drivers,” the scope of
the request is not clear.
The Union made the request on a standard form customarily
used for that purpose. Check marks appear to the left of “Time
Card,” “Delivery Reports” and “Manifest” and, to the right of
these words appears the handwritten notation “June 24, 2011.”
However, the request does not indicate for which employees
these documents were requested.
On the same form, a check mark appears to the left of the
word “Other” and to the right of that word appears the
following in handwriting:
Virtual OJS—for date June 24, 2011
Telematics—for date June 24, 2011
Counsel for the General Counsel, during her cross-
examination of Manager Rosebaugh, referred to this
information request as seeking the specified documents “for all
Texarkana drivers” and Rosebaugh did not contradict that
characterization. However, his failure to disagree with the
word “all” does not convince me that he believed the
information request included documents for drivers other than
Thomas. Counsel for the General Counsel did not specifically
ask Rosebaugh about the scope of the information request but
merely mentioned in passing, as part of her question, that it
sought the documents “for all Texarkana drivers.”
Chief Steward Thomas prepared the information request, so
he should know what information he was seeking at the time he
signed the document. He testified concerning the reasons he
sought the various types of documents. This testimony is more
consistent with a conclusion that he requested only documents
pertaining to his own work on June 24, 2011, and did not ask
for similar documents reflecting the work of other employees
on that date:
Q. Now, turning your attention to Exhibit 18, request
information for just one day?
A. Yes. June 24. That’s the day--2011. I’m sorry.
That’s the day that he gave me the virtual OJS, and it was
on a Friday.
Q. Why did you request the time cards for that day?
A. Time cards will show the company that I took my
lunch--documented and took my lunch that day.
Q. The delivery reports?
A. Delivery reports tell the company exactly how
many business stops I had that day, and if I had any misses
that day.
Q. The manifest?
A. It was a dispatch of the day of how many stops I
was having on the car and where they were loaded.
Q. The virtual OJS?
A. Yes. I wanted a copy of the virtual OJS, because
we had a meeting on Tuesday of that following week
about the virtual OJS done on Friday, and he was going
over this with me, and I wanted a copy of it. I wanted to
know exactly what he knew.
Q. Why did you request a telematics for June 24?
UNITED PARCEL SERVICE OF AMERICA 17
A. Telematics, too, gives a detailed day of what hap-
pened out on a--particularly on 29A that particular day,
and when we were talking on that Tuesday about the vir-
tual OJS and telematics, Supervisor Carnes went over a
few things with telematics in his hand, so he had a copy of
telematics with him, going over a few things on telematics,
and I wanted a copy of it.
Q. Did you get the copy?
A. No.
This testimony, by the union steward who filed the
information request, does not indicate that he was seeking
documents pertaining to any employees other than Thomas
himself. Based on this testimony and the fact that the
information request itself does not state “for all Texarkana
employees,” I conclude that complaint paragraph 10(d) erred in
alleging that the Union’s June 29, 2011 information request
sought the specified documents for all Texarkana employees.
Rather, I find that it requested only the specified documents
which pertained to Thomas’ work on June 24, 2011.
Chief Steward Thomas made this information request in
connection with a grievance of the same date. The grievant was
Thomas himself. Before addressing whether the requested
information was relevant to the grievance, it is necessary to
ascertain the exact nature of the grievance. What action did the
grievance allege to be improper or in violation of the collective-
bargaining agreement?
In typical cases, the thrust of a grievance can be summarized
in a few words because the grievance alleges either a
disciplinary action without “just cause” or a failure to comply
with a specific contractual provision. However, it is not quite
so easy to determine exactly what Thomas was grieving here.
The grievance form includes a blank space for “statement of
position.” In that space, Thomas wrote the following:
Supervisor Josh Carne talk with me about a Virtual OJS ride
given to me Friday June 24, 2011. Steward Ricky Stout
present. He went through Telematics of the day. Says that I
backed more than usual says to watch excessive time. Told
his [sic] that there was no excessive time. The company uses
this tool to target certain drivers and will not give a copy of
Telematics when asked. I never saw any other drivers
questioned for the day of June 24, 2011.
On the line for “Remedy Requested,” Thomas wrote “To be
made whole.” In the space for listing the contractual provisions
allegedly violated, Thomas wrote “[Articles] 37 & 66 and all
that apply.”
In his testimony, Thomas referred to this grievance as a
“harassment grievance for giving me a virtual OJS.” The
phrase “virtual OJS” is a term of art within Respondent’s
operations and requires some explanation.
As discussed above, GPS-related devices on the delivery
vans capture data about the location and movements of the
vehicle. This data, when processed by the computer, yields
much the same information that a passenger aboard the van
could have obtained by observation. The technology thus
eliminates the need for a supervisor actually to ride with the
driver.
When a supervisor physically rides in the delivery van to
observe a driver’s performance, it constitutes on-the-job
supervision or “OJS.” When the supervisor uses the
technology in lieu of riding in the vehicle, it is a “virtual OJS.”
Thomas described the “virtual OJS” as follows:
They pretty much track you, like how long it take you to get
from one stop to the next, what was your SPORH from that
stop to the next stop, what time you got to your next stop, and
it goes on all day like that. And they track you all day, and
they, at the end of the day or at the end of the time, they go
over this information with you.
(“SPORH” is an acronym for “stops per on-road hour,” one of
the metrics used by management to evaluate a driver’s
efficiency.)
The grievance cites article 37 of the collective-bargaining
agreement and article 66, which is part of a supplemental
agreement. However, the grievance did not specify which
sections of these articles applied. Sections 2 and 3 of article 37
state as follows:
Section 2:
Not more than one (1) member of management will ride with
a driver at any time except for the purpose of training
management personnel. No driver will be scheduled for more
than one (1) day’s ride per year with more than one (1)
member of management on the car. Such day will not be used
for disciplinary purposes. The sole reason for two (2)
management employees on the car is for supervisory training.
If a supervisor assists a driver during an O.J.S., that day will
not be used in determining a fair day’s work.
During scheduled safety training for feeder drivers the
supervisor will only drive for demonstration purposes and this
will not exceed one (1) hour per workday.
Section 3
Any alleged violation of this Article shall be subject to the
applicable grievance procedure. Where an employee has
submitted a grievance regarding an excessive number of rides,
no member of management shall ride with that employee
unless and until the local level hearing is concluded provided
such hearing is held within five (5) working days. If the
Union has a legitimate reason for not being available within
the five (5) working days, the period will be extended up to a
total of ten (10) working days.
The language quoted above applies to “OJS,” instances in
which a supervisor actually rides with a driver. It is not clear to
what extent this language also limits the use of “virtual OJS,” if
it does at all.
Thomas referred to the grievance as a “harassment
grievance.” Article 66, section 1 states as follows:
The parties agree that the principle of a fair day’s work for a
fair day’s pay shall be observed at all times and employees
shall perform their duties in a manner that best represents the
Employer’s interest. The Employer shall not in any way
intimidate, harass, coerce or overly supervise any employee in
the performance of his or her duties. The Employer will treat
employees with dignity and respect at all times, which shall
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
include, but not limited to, giving due consideration to the age
and physical condition of the employee. Employees will also
treat each other as well as the Employer with dignity and
respect.
However, the language of the grievance itself doesn’t
describe any conduct which obviously would fall within the
meaning of “harass, coerce or overly supervise” or which failed
to treat an employee “with dignity and respect.” The grievance
only alleges that a supervisor told Thomas that on this
particular day he backed his vehicle more than usual and that he
should “watch excessive time.” Those words, on their face,
seem to be rather mild job-related criticism.
Moreover, the grievance does not specifically allege that
management had subjected Thomas to repeated “virtual OJS.”
Rather, the grievance simply asserted that “The company uses
this tool [virtual OJS] to target certain drivers and will not give
a copy of Telematics when asked. I never saw any other drivers
questioned for the day of June 24, 2011.”
Although it is not clear to me that the grievance, on its face,
alleges a contract violation, it should be noted that I do not have
authority to weigh the merits of the grievance which forms the
basis for the information request and do not do so. Certco Food
Distribution Center, above. Thus, I will neither consider nor
entertain any opinion concerning how an arbitrator might rule if
called upon to resolve the grievance.
Because the requested documents pertain to the work of an
employee in the bargaining unit, they enjoy a presumption of
relevance. Accordingly, the sole question to be decided is
whether credible evidence rebuts this presumption.
Nothing in the record rebuts the presumption of relevance.
Therefore, I find that the government has proven that the
requested documents are relevant to the Union’s performance
of its duties as exclusive bargaining representative and
necessary for that purpose.
Above, in discussing the allegations raised in complaint
paragraph 10(b), I found that the record established that the
Union had made that particular information request in bad faith,
and that the bad faith was egregious enough to relieve the
Respondent of any obligation to furnish any of the requested
information. However, also as noted above, such a conclusion
must be made, in each instance, based on the totality of the
relevant, credited evidence. Moreover, because such a
conclusion about the Union has consequences for the
employees the Union represents, it should be reached rarely and
reluctantly.
Here, considering the totality of the circumstances, the
record does not establish that the Union, by Steward Thomas,
demonstrated the bad faith necessary to relieve the Respondent
of its duty to furnish the information. For the reasons discussed
above, I have concluded that the information request described
in complaint paragraph 10(d), and now under consideration,
only sought documents pertaining to Thomas’ work on one
particular day, and did not ask for documents pertaining to
other employees. Thus, unlike the information request
discussed above with respect to complaint paragraph 10(b), this
present information request is not a blunt object with which to
cudgel management for personal retaliatory reasons.
Thomas testified that Respondent never produced the
requested documents. The Respondent does not contend
otherwise. Rather, its District Labor Relations Manager, Cedric
Williams, testified that the documents described in complaint
paragraph 10(d) do not exist.
With the possible exception of the Telematics and “virtual
OJS” documents, the June 29, 2011 information request sought
documents—timecards, manifests and delivery reports—which
Respondent routinely generates and uses. Therefore, I
understand Williams testimony, that the documents “do not
exist,” to mean that they no longer exist.
Additionally, Thomas testified that, during his June 24, 2011
meeting with Supervisor Carnes, when they discussed the
telematics information Carnes had a copy of it in his hand.
Crediting this uncontradicted testimony, I find that, on January
24, 2011, the telematics document did exist.
Manager Rosebaugh testified that his office retains manifests
for 14 days and retains timecards for 22 days. Rosebaugh
further testified that the telematics report includes a “driver stop
summary report” which is kept for 30 days. The record does
not establish that Respondent deviated from its customary
document retention practices with respect to the records sought
in the June 29, 2011 information request. Accordingly, I infer
that the requested documents remained in existence at the
Texarkana facility when management received the June 29,
2011 information request.
The Union certainly is entitled to have copies of the
information relied upon by a supervisor in counseling a
bargaining unit employee to improve his work performance.
Without these documents, the Union cannot make an informed
decision regarding how best to represent the employee.
Therefore, I find that Respondent had a duty to furnish the
Union with this requested information in a timely fashion and
that doing so imposed little burden. Further, I find that
Respondent did not do so.
Accordingly, I conclude the Respondent breached its duty to
bargain in good faith and thereby violated Section 8(a)(5) and
(1) of the Act. As discussed above, Respondent entered into a
settlement agreement which the Region approved on March 8,
2012. The effect of that settlement agreement will be discussed
later in this decision.
Complaint Paragraphs 10(e), 11, and 12(e)
Complaint paragraph 10(e) alleges that since August 31,
2011, the Union has requested in writing that Respondent
furnish the Union with the manifests for all Texarkana Center
drivers who ran area 29A for the dates August 22–24, 2011.
Complaint paragraph 11 alleges that this requested
information is necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-bargaining
representative of the unit.
Complaint paragraph 12(e) alleges that since August 31,
2011, the Respondent has failed and refused to furnish the
Union with this requested information. Respondent denies all
of these allegations.
On August 31, 2011, Thomas, in his capacity of chief union
steward, filed a grievance on behalf of himself. He testified
that he filed the grievance “because the company was giving
me a three-day OJS ride, and I wasn’t happy about it.” This
UNITED PARCEL SERVICE OF AMERICA 19
was actual OJS, with a supervisor in the vehicle observing
Thomas as he worked, and not a “virtual OJS” ride.
On the same date, the Union filed an information request
related to this grievance. Union Steward Vince Coker, rather
than Thomas, signed this request, which is in evidence. Based
on this exhibit and testimony related to it, I find that the
General Counsel has proven the allegations raised in complaint
paragraph 10(e).
With respect to the allegation raised by complaint paragraph
11, that the requested information was relevant to the Union’s
performance of its duties as the exclusive bargaining
representative and necessary for that purpose, I begin by noting
that the requested documents pertain to the work of bargaining
unit employees. Therefore, they are presumptively relevant.
Nothing in the record rebuts this presumption. Accordingly,
I conclude that the Government has proven the requested
documents’ relevance and necessity.
Thomas testified that he never received the manifests for the
dates August 22–24, 2011. As noted above, Manager
Rosebaugh testified that his office retains manifests for 14
days. Thus, absent some departure from routine practice, the
manifests for August 22–24, 2011, would still have been at the
Texarkana terminal when the Respondent received the
information request on August 31, 2011. The record does not
reflect any departure from routine practice during this time
period.
Respondent introduced into evidence a large number of
documents which, it asserts, it furnished the Union in response
to the information requests. Some of these documents lack
titles and dates. However, to the extent that the documents
could be identified with respect to date, none appeared to be a
manifest for August 22, 23. or 24, 2011.
Additionally, Respondent cross-examined Union Chief
Steward Thomas, who testified that he had not received these
requested documents. If Respondent had, in fact, furnished the
manifests for these dates, it could have confronted the witness
with such documents. However, it did not. Therefore, I find
that Respondent did not furnish the Union with the requested
manifests for August 22, 23. and 24, 2011.
Nonetheless, for the reasons discussed below, I conclude that
Respondent’s failure to furnish these manifests did not breach
its duty or violate the Act. Although Respondent did not
provide the three manifests, it did furnish the Union with the
relevant information.
For clarity, it may be noted that the information request
sought a number of different documents in addition to the
manifests mentioned in complaint paragraph 10(e). The
government is not alleging that Respondent failed to furnish the
Union with these other documents, but only that Respondent
has not provided the Union with certain of the requested
manifests.
Indeed, even a casual examination of the information request
reveals that it sought a vast number of documents. Apart from
the manifests mentioned in the complaint, the requested
information includes timecards, delivery reports, time between
stops summaries, and driver recap summaries for all drivers
who drove in area 29A from January through August 2011.
Additionally, it requested “driver recap summary (telematics)”
for these drivers “as far back as telematics goes.”
Complying with this information request imposed a
significant burden on the Respondent, and yet the General
Counsel alleges only that Respondent failed to furnish the
requested manifests. Thus, it appears clear that Respondent did
furnish the Union with almost all of the numerous documents,
leaving out only these three manifests. However, the record
does not indicate that Respondent purposefully withheld these
three pieces of paper or that it would have any motivation or
reason to do so.
The record does indicate that the manifests would have
provided no new information, relevant to the grievance, which
was not contained in the other documents which Respondent
did furnish to the Union. Chief Steward Thomas, testifying
about another information request, described a manifest as
follows:
Manifest is a dispatch of the day. It tells exactly what’s on
the car, where it is, and how many packages it is and how many
stops it is.
Elsewhere in his testimony, Thomas gave this description of
a manifest:
It tells exactly what’s on the car, where it is, and how many
packages it is and how many stops it is.
Although the complaint alleges that Respondent did not
furnish the manifests sought in the August 31, 2011 information
request, that same information request also asked for delivery
reports for the same period of time, and Respondent did provide
the Union with these documents. Thomas described the
contents of such delivery reports while he was testifying about
another information request he had filed:
Q. Why did you request the delivery reports?
A. Delivery records would tell me what driver during
this period—what he had on the package car, how many
packages he had for on the car, and who signed for it.
Mainly how many business stops he had and who signed
for it, and if he or she missed anything.
At another point in his testimony, Thomas provided a similar
description of delivery reports:
Q. What would the delivery reports show?
A. If--I wanted to know what was on the package car,
where the particular drivers were delivering packages,
how many business stops they had, and if they were deliv-
ering their stops--packages from the time they showed
their lunch, this give me a little bit better detailed report.
Comparing Thomas’ descriptions of the manifests with his
descriptions of delivery reports, I find that the two types of
documents provide essentially the same information. Thus,
even if Respondent failed to furnish the requested manifests, it
did not prejudice Thomas, whose grievance concerned being
singled out for ride-along supervision.
Presumably, Thomas wanted to use the manifests to
determine whether he had been given a heavier workload than
other drivers. If he had, in fact, been given more time-
consuming assignments than other employees who worked in
the same area, such a difference would explain his less
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
satisfactory scores on indices such as stops-per-onroad-hour.
The delivery reports which Respondent did furnish gave
Thomas information similar to that in the manifests and
therefore did not prejudice Thomas’ ability to make this review.
An employer is not obligated to furnish information in the
exact form requested; rather, it has an obligation to bargain in
good faith. Coca-Cola Bottling Co. of Chicago, 311 NLRB
424, 427 (1993) (Member Oviatt, concurring), citing NLRB v.
Borden, Inc., 600 F.2d 313 (1st Cir. 1979).
In sum, Respondent furnished all relevant information even
if it could not find or provide the three manifests. Therefore, I
recommend that the Board dismiss the allegations related to
complaint paragraphs 10(e) and 12(e).
Complaint Paragraphs 10(f), 11, and 12(f)
Complaint paragraph 10(f) alleges that since September 1,
2011, the Union has requested in writing that Respondent
furnish the Union with the following information for every
Texarkana Center driver who ran area 30D from January 2011
through September 1, 2011: (1) timecards; (2) delivery reports;
(3) manifests; (4) time between stop section summary; (5)
weekly operation report; (6) driver recap summary; and (7)
telematics including average speed of the vehicle on the route.
Respondent has admitted this allegation. Based on this
admission, I find that the government has proven the
allegations raised in complaint paragraph 10(f).
Complaint paragraph 11 alleges that this requested
information is relevant to and necessary for the Union to
perform its duties as exclusive bargaining representative, which
Respondent denies. The Respondent also denies the allegation
in complaint paragraph 12(f) that since September 1, 2011, it
has failed and refused to furnish the Union with this requested
information.
Thomas’ displeasure with being more closely supervised did
not dissipate after he filed the August 31, 2011 information
request described in complaint paragraph 10(e) and the related
grievance. Thomas drafted the additional information described
in complaint paragraph 10(f). Although another steward signed
this September 1, 2011 request, it is clear that Thomas was the
moving force behind it.
A consistent motif throughout this case concerns
Respondent’s data-intensive approach to management. The
existence of a large amount of numerical data, and its use by
management, certainly bears on the relevance of the requested
information. Therefore, a brief description of the conflict
between Thomas and management concerning the data and its
use may be helpful.
Respondent’s quantitative approach to management may not
be unique, but Respondent does rely on information technology
to a remarkable if not singular extent. Advances in sensors and
microprocessors have made possible data streams which could
hardly have been imagined a century ago, when Frederick
Taylor early advocated the methodical study of workflow to
improve productivity. Respondent has equipped its delivery
vehicles with devices to harvest this abundant data. Then it
crunches the numbers.
The algorhythms yield scores such as SPORH, which, as
noted above, reflects a driver’s stops-per-on-road-hour. Using
such indices, Respondent determines which drivers need
additional supervision to meet its standards. Respondent states
that it scheduled Thomas for greater supervision because his
performance data indicated a need for improvement.
Thomas, on the other hand, asserts that Respondent is not
being forthright with its mathematical analysis and is using
these numbers as a pretext. On September 2, 2011, he filed
another grievance protesting the “OJS ride.” In this grievance,
Thomas stated as follows:
It does not matter what SPORH that I run on my area. The
company always says that I am over allowed. They have
manipulated and falsified the records to harass me. Third day
of a lock in ride. What number is the company looking for?
Thus, Thomas contends not only that Respondent is seeking
to discriminate against and harass him but also that Respondent
is using falsified records as a pretext for doing so. For clarity, it
should be noted that notwithstanding this claim, no issue
concerning discrimination or harassment is before me. The
complaint in this case does not allege that Respondent has
discriminated against Thomas for reasons prohibited by the Act.
Additionally, the complaint does not allege that Respondent or
its supervisors made any unlawful threat or statement, or
engaged in any unlawful conduct from which an intent to
discriminate against Thomas could be inferred. Rather, all
violations alleged in the complaint pertain to Respondent’s duty
to provide information requested by the Union.
Respondent has denied that the September 1, 2011
information request, described in complaint paragraph 10(f),
sought information relevant to the Union’s representation duties
and necessary for that purpose. The requested information
pertains to the work of bargaining unit employees and therefore
is presumptively relevant. The presumption, however, is
rebuttable.
To examine whether the record rebuts the presumption of
relevance, I begin by finding the Union’s purpose in making the
information request. As a threshold matter, such purpose must
involve the Union’s performance of a duty which the Act
requires it to do as the exclusive bargaining representative. If
the purpose meets this test, then I consider how the requested
information relates to that purpose.
Chief Union Steward Thomas drafted the information
request. His testimony sheds light on the purpose:
Q. Okay. Now, I see the January 2011 through Sep-
tember 1, 2011. Why did you choose that time period?
A. This was for every driver that ran Area 30D, and I
wanted to know--that’s the adjacent route to mine, and the
adjacent route pretty much helps me if--during that
three-day ride, my complaint was that center manager
Randy Rosebaugh was taken off stops from my truck,
from my package car, give it to 30D, and giving me the
easy stops from his package car, so that makes the SPORH
even higher when he does that. If I give him business
stops, which takes me longer to get a signature, and he
gives me residentials where I can just drop off, the
SPORH is going to be higher, so I wanted that infor-
mation, because I knew that center manager Randy
UNITED PARCEL SERVICE OF AMERICA 21
Rosebaugh was manipulating that SPORH. [Emphsis add-
ed.]
Clearly, Thomas has attributed to management a sinister
motive which management itself absolutely denies. As noted
above, no evidence supports Thomas’ accusation that
Respondent falsified data.
From management’s perspective, here is what happened:
When the Respondent’s analytic data indicated that Thomas
was working less productively than other employees, Manager
Rosebaugh decided to have a supervisor ride along with
Thomas to observe how he was doing the work and, once the
problem was identified, to work with Thomas on solving it.
Thomas’ testimony suggests that Rosebaugh also took an
interim step to alleviate the problem: The manager made
Thomas’ job easier by having him deliver packages which did
not require him to get the recipient’s signature. Such packages
can be delivered more quickly than those which require the
driver to knock on a door and hand someone a tablet to sign.
These two management actions seem perfectly unremarkable
and unexceptional. Certainly, when numerical data indicated
that a driver could work more efficiently, assigning a supervisor
to observe and advise the driver is far from extraordinary.
Likewise, it takes some imagination to view as discriminatory a
temporary lightening of the workload.
Nonetheless, Thomas considered these actions to be part of a
stratagem to hurt him by manipulating and falsifying the data.
Such a plot necessarily would entail three stages: First, the
manager would assign him work which could be done more
quickly, establishing a benchmark of how many packages
Thomas could deliver in an hour. Second, management would
then assign him work that took longer, but still hold him to the
original benchmark. Third, management would discipline
Thomas when he failed to meet this standard.
In the absence of any evidence that Respondent actually was
trying to set Thomas up for discipline or that management was
manipulating the data to create a pretext, Occam’s Razor dices
the plot theory in favor of the simpler explanation, that
management was trying to help Thomas become more efficient.
The record provides no support for Thomas’ conjectured plot.
No credible evidence indicates that Respondent or any of its
supervisors harbored animus against Thomas. No credible
evidence indicates that management altered or manipulated any
data for any reason.
Both the record and my observations of the witnesses leave
me with the strong impression that neither Rosebaugh nor any
other manager was trying to set Thomas up for disciplinary
action. Rather, they were using the data to manage “by the
numbers.” Thomas may have disliked such rigorous
supervision but that does not make it unlawfully discriminatory.
The information request which Thomas drafted sought 8
months worth of documents “for every Texarkana Center driver
who ran area 30D” even though Thomas admitted that he
worked a different route. In his testimony quoted above,
Thomas explained his belief that Manager Rosebaugh was
reassigning some of his work—delivery stops which Thomas
ordinarily would have made—to drivers working in area 30D.
However, even if Rosebaugh made such reassignments, they
would have amounted only to the most ordinary exercise of
supervisory judgment. Indeed, it would seem to be a self-
evident principle that if a bottleneck occurs, route around it.
The record does not include a scintilla of evidence that
Rosebaugh was plotting against Thomas, and Thomas’ own
testimony fails to offer any credible basis for concluding that
Rosebaugh harbored such an intention. Moreover, Thomas did
not provide a cogent explanation of how the requested
documents could reveal such a plot.
Assuming for the sake of analysis that supervisors indeed
wanted to set Thomas up for discipline by making his numbers
look good so that later he would be unable to meet the same
standard, all the documents would show—at most—is that
Thomas had received easier assignments than some of the other
drivers, which also would happen if management simply was
concerned about how quickly the packages were being
delivered and shifted some of the load to more efficient
employees. Thomas’ testimony does not explain how the
requested documents could help prove that management had
harassed him, as he alleged in the grievance. Likewise, he did
not explain how these records could reveal or even hint at the
existence of a plot to make him look bad.
Although Thomas offered this conjecture and may even
believe it, no credible evidence supports it. The present record
leaves me with the strong impression that Rosebaugh is
following the practice of management by objectives, not
management by machinations. In the complete absence of
proof that Rosebaugh was plotting against Thomas, and in the
presence of persuasive evidence that management simply was
trying to improve efficiency, I cannot make Thomas’ belief a
folie à deux.
It is not necessary to enter the forbidden area of weighing the
merits of a grievance to question how seriously Thomas
believed that the requested documents would assist him in
pursuing the grievance. In one sense, the grievance seemed to
be secondary to the information requests, rather than the other
way around. The grievance provided justification for the
information requests which, essentially, had become Thomas’
ammunition. Thomas considered management’s meticulous
measurement of his work performance to be harassment. The
information request procedure armed him with a way to make
that scrutiny more costly.
Thomas, as chief union steward, well knew that the purpose
of the information request must relate to the Union’s
performance of its statutory duties. Thus, as described in the
Witness Credibility section, above, he tried repeatedly to evade
answering a question concerning whether it was proper to use
the information request procedure to obtain information to
support an EEOC charge.
He clearly understood that claiming a grievance-related
purpose would make the information request appear more
legitimate. Moreover, Thomas’ demonstrated willingness to
use the information request procedure for one inappropriate
purpose—gaining information to support an EEOC charge—
leads me to conclude that he would be willing to use it for other
inappropriate purposes.
Thomas claimed that he was gathering information for his
grievance, and at least procedurally, that was true. However,
that claim also strikes me as disingenuous. I find that Thomas’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
primary motivation for filing broad, onerous information
requests was to strike back at management. It was the one
means available to him to make management’s work
unpleasant.
Additionally, if management’s efforts to supervise Thomas
consistently resulted in having to respond to onerous
information requests, it might well discourage such supervision.
Such a retaliatory purpose hardly created a duty to furnish
information. Just as it was not proper to use an information
request to delay impasse, as in ACF Industries, LLC, above, it
is not proper to use an information request either as a means of
retaliation or to discourage supervisors from doing their jobs.
The obligation to furnish information arises only if the
requesting party seeks the information to perform one of its
responsibilities under the Act, and only then if the information
is relevant to and necessary for that purpose. However, the law
does not impose on a union a duty either to take vengeance or
to prevent management from supervising an employee.
For the same reasons discussed above in connection with
complaint paragraphs 10(b) and 12(b), I conclude that bad faith
motivated the filing of the information request under
consideration here, and that such bad faith was so egregious
that it nullified the Respondent’s duty to furnish the requested
information. Therefore, I recommend that the Board dismiss
the allegations raised by complaint paragraphs 10(f) and 12(f).
Complaint paragraphs 10(g) through 10(n), 10(p), 11, 12(g)
through 12(n), and 12(p)
Beginning November 21, 2011, and approximately once
every 10 days thereafter, Chief Steward Thomas filed a
grievance on behalf of all bargaining unit employees working at
the Texarkana facility, and in connection with each grievance
submitted an information request. The grievances all complain
about the same matters, but for different time periods. The
December 19, 2011 grievance, quoted here, is typical:
The Company has caused the drivers in the Texarkana Center
to skip their lunch, drive over the speed limit, and work
unsafe in order to achieve the companies [sic] manipulated
and falsified performance numbers. Most drivers skip their
lunch or take part of their lunch or take their lunch after the
8th hour in fear of retaliation from center manager Randy
Rosebaugh. Rosebaugh uses these manipulated and falsified
performance numbers to scare most drivers into not taking
their lunch or taking their lunch after the 8th hour. Most
drivers put their lunch into the DIAD but do not take their
lunch. The grievant request[s] all drivers to be paid for the
lunch they did not take. Part or all of the lunch.
Remedy requested: To be made Whole. Drivers paid part or
all the 1 hour lunch they did not take.
The statement that most drivers “put their lunch into the
DIAD but do not take their lunch” means that most drivers
indicate on time records that they stopped work to take a
lunchbreak but actually did not cease working during the time
identified as lunchbreak.
Thomas gave the following explanation for why he filed an
additional, but similar, grievance about every 10 days:
Q. Now, I see you requested documents for all drivers
in the Texarkana Center from November 7 through No-
vember 18, 2001. Why did you select that time period?
A. Well, under the collective-bargaining agreement,
we can only file grievances every ten days. After ten days,
they’re late, so at this period of time, I was filing these
lunch grievances every ten days, and I was filing these
steward requests for information every time I filed a lunch
grievance.
As I understand this testimony, Thomas considered there to
be a continuing problem which remained uncorrected, so, to
cover the latest 10-day period, Thomas would file another
grievance.
The Union filed an information request in connection with
each such grievances. Complaint paragraphs 10(g) through
10(n) and 10(p) allege that the Union made these information
requests, described in the following paragraphs.
Complaint paragraph 10(g) alleges that since November 21,
2011, the Union has requested in writing that Respondent
furnish the Union with the following information for all
Texarkana Center drivers for the dates of November 7, 2011
through November 18, 2011: (1) timecards; (2) delivery
reports; (3) manifests; (4) telematics also includes average
speed of vehicle in motion on each route; (5) time between stop
section summary; (6) weekly operation report; and (7) driver
recap summary. Based on the admission in Respondent’s
answer, I find that the government has proven the allegations in
this complaint paragraph.
Complaint paragraph 10(h) alleges that since December 5,
2011, the Union has requested in writing that Respondent
furnish the Union with the following information for all
Texarkana Center drivers from week ending November 26,
2011, to the week ending December 3, 2011: (1) timecards; (2)
delivery reports; (3) manifests; (4) telematics also includes
average speed of vehicle in motion on each route; (5) time
between stop section summary; (6) weekly operation report;
and (7) driver recap summary. Based on the admission in
Respondent’s answer, I find that the government has proven
these allegations.
Complaint paragraph 10(i) alleges that since December 19,
2011, the Union has requested in writing that Respondent
furnish the Union with the following information for all
Texarkana Center drivers from the week ending December 10,
2011 to the week ending December 17, 2011: (1) timecards; (2)
delivery reports; (3) manifests; (4) telematics also includes
average speed of vehicle in motion on each route; (5) time
between stop section summary; (6) weekly operation report;
and (7) driver recap summary. Based on the admission in
Respondent’s answer, I find that the government has proven
these allegations.
Complaint paragraph 10(j) alleges that since January 3,
2012, the Union has requested in writing that Respondent
furnish the Union with the following information for all
Texarkana Center drivers from the week ending December 24
to the week ending December 31, 2011: (1) timecards; (2)
delivery reports; (3) manifests; (4) telematics also includes
average speed of vehicle in motion on each route; (5) time
between stop section summary; (6) weekly operation report;
UNITED PARCEL SERVICE OF AMERICA 23
and (7) driver recap summary. Based on the admission in
Respondent’s answer, I find that the government has proven
these allegations.
Complaint paragraph 10(k) alleges that since January 16,
2012, the Union has requested in writing that Respondent
furnish the Union with the following information for all
Texarkana Center drivers from the week ending January 7 to
the week ending January 14, 2012: (1) timecards; (2) delivery
reports; (3) manifests; (4) telematics also includes average
speed of vehicle in motion on each route; (5) time between stop
section summary; (6) weekly operation report; and (7) driver
recap summary. Based on the admission in Respondent’s
answer, I find that the Government has proven these
allegations.
Complaint paragraph 10(l) alleges that since January 30,
2012, the Union has requested in writing that Respondent
furnish the Union with the following information for all
Texarkana Center drivers from the week ending January 21 to
the week ending January 28, 2012: (1) timecards; (2) delivery
reports; (3) manifests; (4) telematics also includes average
speed of vehicle in motion on each route; (5) time between stop
section summary; (6) weekly operation report; and (7) driver
recap summary. Based on the admission in Respondent’s
answer, I find that the government has proven these allegations.
Complaint paragraph 10(m) alleges that since March 19,
2012, the Union has requested in writing that Respondent
furnish the Union with the following information for all
Texarkana Center drivers from the week ending March 3 to the
week ending March 17, 2012: (1) timecards; (2) delivery
reports; (3) manifests; (4) telematics including map; (5) time
between stop section summary; (6) weekly operation report;
and (7) driver recap summary. Based on the admission in
Respondent’s answer, I find that the government has proven
these allegations.
Complaint paragraph 10(n) alleges that since April 2, 2012,
the Union has requested in writing that Respondent furnish the
Union with the following information for all Texarkana Center
drivers from the week ending March 24 to the week ending
March 30, 2012: (1) timecards; (2) delivery reports; (3)
manifests; (4) telematics including map; (5) time between stop
section summary; (6) weekly operation report; and (7) driver
recap summary. Based on the admission in Respondent’s
answer, I find that the government has proven these allegations.
Complaint paragraph 10(p) alleges that since April 16, 2012,
the Union has requested in writing that Respondent furnish the
Union with the following information for all Texarkana Center
drivers from the week ending April 7, 2012 to the week ending
April 14, 2012: (1) time cards; (2) delivery reports; (3)
manifests; (4) telematics including map; (5) time between stop
section summary; (6) weekly operation report; and (7) driver
recap summary. Based on the admission in Respondent’s
answer, I find that the government has proven these allegations.
Complaint paragraph 11 alleges that the requested
information was relevant to the Union’s representation duties
and necessary for that purpose. Complaint paragraphs 12(g)
through 12(n) and 12(p) allege that Respondent failed and
refused to furnish the requested information. Respondent
denies these allegations.
Each of the information requests seeks a number of different
documents for each of the drivers working at the Texarkana
Center. After receiving the first two of the information
requests—the ones dated November 21 and December 5,
2011—Respondent’s labor relations manager, Cedric Williams,
sent a letter to Business Agent Driggers. This December 15,
2011 letter asked the Union to provide more details about the
information request and sought to negotiate a compromise
which would give the Union the information it needed while
reducing the Respondent’s burden. Williams’ letter stated, in
part, as follows:
UPS objects to the requests because as drafted they are
overly broad and unduly burdensome. Accordingly, UPS
requests that the union provide additional details regarding
the information sought so the parties can determine
whether responsive information can be provided through a
less burdensome process and whether the scope of the re-
quests can be reasonably narrowed to focus on the specific
individuals involved in the relevant grievance or investiga-
tion.
Williams’ letter continued with a description of the
information requests, noting that they would result in the
expenditure of dozens of hours of work and the production of
hundreds of pages of documents. The letter then stated:
Please specifically identify what information the union is
attempting to obtain through the information requests so UPS
can determine whether responsive information can be
provided through a less burdensome process. In addition, the
requests reference Articles “18, 37, 66, 68, 54 and all that
apply” but do not indicate whether the request relates to a
specific grievance or how the requests might otherwise relate
to the union’s representation of its members. We are not
aware of a specific grievance that would make this request as
drafted relevant. Please identify the grievance or investigation
to which the requests relate so the scope of the requests can be
reasonably narrowed to focus on information regarding the
specific individuals involved in the grievance or investigation.
We look forward to your response.
Driggers replied with a one-paragraph letter dated December
21, 2011, which stated in its entirety as follows:
This letter confirms the receipt of your December 15, 2011
letter requesting specificity of information that the Union is
attempting to obtain through steward requests dated
November 21, 2011 and December 5, 2011. Stewards Reggie
Thomas and Michael Fowler have submitted these requests
due to the fact that Texarkana management is aware that
Package Car Drivers are not properly taking or properly
recording their contractual meal period as spelled out in the
CBA. This has been brought to Center Manager Randy
Rosebaugh’s attention twice in local level hearings with no
correction having been made. These information requests
have been made to identify which Package Car drivers are
being allowed or forced by the Company to violate the CBA.
I am enclosing the specific grievances that were turned in
along with these information requests. Thank you for your
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
response in this matter and I look forward to a speedy
resolution.
Labor Relations Manager Williams replied by a January 6,
2012 letter which quoted the details of the information requests
and again protested that the requests were overly broad and
unduly burdensome. Williams noted that because the Union
had requested various records for every Texarkana driver for
almost a month during the holiday peak season, complying with
the request would require many hours of work. The letter
continued as follows:
The union is well aware that it is not necessary to review six
different categories of documents to determine whether a
driver took a meal period on a particular day. One category of
documents would provide the necessary information.
Moreover, an investigation of whether a driver took a meal
period does not require the analysis of twenty-four days of
work. The union could determine whether drivers are taking
meal periods by reviewing time records for a single day from
a reasonable sampling of drivers. In the alternative, the union
could simply review the time records of drivers who allege
they have missed meal periods, if any such drivers actually
exist.
UPS is not aware of any specific drivers who have pending
grievances regarding missed meal periods. If a driver had
alleged he missed his meal period and filed a grievance then it
would be reasonable for the union to request the driver’s time
records for the days in which the driver allegedly missed his
meal period. That is not the current situation with regard to
the pending information requests. Instead, the union has
chosen to go on a “fishing expedition” but expects UPS to
clean and gut the fish. Please narrow the scope of the overly
broad requests so UPS can provide responsive information
through a less burdensome process.
The Union responded to Williams’ request for an
accommodation by January 9, 2012 letter. Steward Thomas,
not Business Agent Driggers, signed this letter. Parts of
Thomas’ letter are confusing because of their grammar or
structure. For example, at one point the letter states:
The Union is aware that the company keeps most of the
information requested at the center for a period of fifteen to
twenty-two days. It should not be any reason for the
Company to provide the information requested.
At another point, the letter states that “The information
provided can also clear any and all past Steward Information
Request,” followed by a list of such requests which begins with
the two May 3, 2011 information requests discussed earlier in
this decision. The meaning of this passage remains elusive.
However, in contrast, Thomas’ letter becomes quite
unambiguous when denying Williams’ request for an
accommodation or compromise. Although Thomas’ letter does
not explain why he was unwilling to find a middle ground, it
leaves little doubt that no compromise proposal would be
forthcoming. At one point, it states:
We feel that the information requested is not overly broad and
unduly burdensome as it is the information needed in defense
of each grievance filed.
At another point, Thomas’ letter states:
This letter should clarify and clear up any confusion of the
Company as to what is needed by the Union. The information
is vital for the grievance process. The policing of the contract
is the primary job of the Stewards in the Texarkana Center.
We feel this information is needed for the enforcement of the
Collective Bargaining Agreement in Texarkana.
At no point in the letter does Thomas explain the basis for
his statement that “We feel this information is needed for
enforcement of the Collective Bargaining Agreement.” Similar,
the letter does not even attempt to answer—indeed, it does not
even acknowledge—William’s statement that “The union is
well aware that it is not necessary to review six different
categories of documents to determine whether a driver took a
meal period on a particular day.” Similarly, Thomas’ letter does
not even acknowledge, let alone respond to or address,
Williams’ suggestions concerning ways the Union could obtain
the information it needed without seeking the vast amount of
documentation described in the information requests.
Chief Steward Thomas had a choice: On the one hand, he
could indulge the personal animosity he harbored towards
Manager Rosebaugh. He could use his power as a union
officer, his authority to file grievances and information
requests, to cause needless extra work for the manager and,
when possible, make him look bad.
On the other hand, Thomas could choose to give priority to
the needs of the bargaining unit employees he represented.
Serving them effectively as steward entailed putting aside
personal pique and dealing with management in good faith to
resolve problems.
It was a clear choice. Thomas could not nurse both a grudge
and the bargaining relationship. Thomas’ January 9, 2012
letter, ignoring the Respondent’s request that the parties try to
reach an accommodation, indicates which choice Thomas
made.
Nonetheless, the record plainly establishes and I find that the
Respondent made a good faith effort, indeed, an effort
bordering on the heroic, to comply fully with the request. On
January 18, 2012, the Respondent furnished to the Union a
sizable box of requested documents. The box weighed about
60 pounds.
On January 20, 2012, Labor Relations Manager Williams
sent another letter to the Union, again seeking some middle
ground which would satisfy both sides. The letter, which
Williams addressed to Business Agent Driggers, included the
following:
UPS is not aware of any driver other than Reggie Thomas
who has a pending grievance regarding missed meal periods.
It would be reasonable for the union to request Mr. Thomas’
time records for the days in which he allegedly missed his
meal period. That is not the current situation with regard to
the pending information requests seeking information
regarding every driver at the Texarkana facility. The union
continues its practice of making overly broad requests for
information that is not necessary to conduct its investigation.
UNITED PARCEL SERVICE OF AMERICA 25
Please narrow the scope of the overly broad request so UPS
can provide responsive information through a less
burdensome process.
On January 21, 2012, Steward Thomas sent a letter to Labor
Relations Manager Williams. It informed him that “the
information received is not the information requested.”
However, the letter did not explain that statement. It neither
described what documents were in the box the Respondent
furnished or stated how those documents differed from the ones
requested. The letter did state that Thomas had informed
Manager Rosebaugh “that the information received was not the
information requested.” However, the letter did not describe
what Thomas had told Rosebaugh.
Thomas’ letter did not mention the Respondent’s request for
an accommodation or offer to meet to discuss one. Instead, the
letter turned accusatory: “This is another attempt by the
company to prolong providing the necessary information that is
needed to complete the union’s investigations.” However,
considering that the Respondent had just furnished the Union
with a 60-pound box of documents, and in the absence of any
evidence that the Respondent was intentionally dragging its
feet, the accusation that Respondent was trying “to prolong
providing the necessary information” is difficult to square with
reality.
Thomas’ letter does not explain what he meant by “the
union’s investigations.” The record does not establish that any
employee except Thomas believed that Respondent was
falsifying records to require employees to work without taking
lunchbreaks. Such a belief finds as little evidentiary support as
Thomas’ suspicion that management was plotting to set him up
for future discipline by making his workload easier. Likewise,
it is difficult to understand how Thomas could accuse the
Respondent of trying to prolong providing the “necessary
information” when the Union had ignored the Respondent’s
requests to explain the relevance and the Respondent had just
furnished the Union with a 60-pound box of documents.
On March 6, 2012, Respondent’s labor relations manager,
Cedric Williams, signed a settlement agreement in Cases 16–
CA–028064, 16–CA–062316, and 16–CA–070588. The
Board’s Regional Director for Region 16 approved the
settlement.
During this time period, Thomas continued to file a
grievance and information request about every 10 days. All the
grievances concerned the “missed lunch” issue.
On March 28, 2012, Respondent’s labor relations manager
sent a letter to Union Business Agent Driggers. It again
protested that the Union’s information requests were overly and
unnecessarily broad and burdensome. The letter again
suggested ways the Union could obtain necessary information
which would be less burdensome to Respondent. As the
Respondent had requested previously, this letter urged the
Union to narrow the scope of “the overly broad request so UPS
can provide responsive information through a less burdensome
process.”
Although Respondent had sent this letter to Business Agent
Driggers, the chief steward replied to it. Thomas’ April 1, 2012
reply did not indicate any willingness to narrow the scope of
the information request or to negotiate any accommodation. To
the contrary, Thomas took a hard line:
The company had the opportunity to tell a NLRB judge that
the Union information request[s] were overly broad and
unduly burdensome but chose to take the settlement
agreement. It is time for all this whining to stop and give the
Union the information it is seeking.
Later, of course, the Respondent did, in fact, present its case
to an NLRB judge, who also heard Thomas’ testimony,
observed him and the other witnesses and assessed their
credibility. Both my impressions of the witnesses, discussed
above, and the entire record lead me to conclude that Thomas
was not acting in good faith when he made the information
requests. Although he claimed to seek the information for
grievance-related purposes, I find that his dominant motive was
retaliatory.
The letters from Thomas to Respondent’s labor relations
manager particularly bolster the conclusion that the Union,
through Chief Steward Thomas, was not acting in good faith.
The unwillingness even to discuss an accommodation provides
one indication of bad faith, but equally telling is the Union’s
failure to explain, in any of the letters, exactly how the
requested information related to performance of the Union’s
statutory duties. Instead of providing even a brief explanation,
Thomas simply ignored the issue, stating instead that
Respondent had the ability to comply with the information
request. However, asserting that the Respondent could comply
in no way addresses the issues of relevance and necessity.
Respondent repeatedly raised the issue of necessity by
observing that it appeared the Union could obtain all the
information it needed from documents in just one of the
categories the Union had sought, and then asking the Union
why it needed the documents in all the other categories. This
was a fair question and the Union’s duty to bargain in good
faith obligated it to provide an answer.
Beyond vague conclusory statements that the requested
information was needed for enforcement of the collective-
bargaining agreement, Thomas’ letters do not explain or even
try to explain why all the requested documents in all the
categories were necessary.
Instead of answering the Respondent’s legitimate question,
Thomas used the same tactic which he attempted, less
successfully, on the witness stand. He ignored it. When the
Respondent repeated the question in a subsequent letter,
Thomas ignored it again, and again. This evasive tactic, when
used on the witness stand, does not manifest candor, and when
used off the witness stand it does not manifest good faith.
It is true that the requested information enjoys a presumption
of relevance because it pertains to bargaining unit employees,
but that presumption does not affect a union’s duty to provide a
genuine answer when an employer says, “This request is very
burdensome. Why do you really need all this information?
Can’t we cut it down?” If the union simply replied, “it’s
presumed relevant,” that terse response would not be useful in
discussing a compromise or accommodation. After all, parties
acting in good faith are supposed to work these things out, if
they can, and one indication of good faith is the willingness to
make an honest effort.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
Stated another way, a presumption is a legal concept which
affects which party must present evidence, and when, during a
hearing. But even if a presumption sometimes might substitute
for evidence in that arena, it cannot substitute for facts in the
rest of life. Here, the Respondent had a legitimate interest in
knowing why the Union needed all the requested information
so that it might propose a less burdensome way of meeting the
Union’s needs. The Union’s failure to answer this question
reflected on its good faith.
In a case involving information which does not enjoy the
presumption of relevance, the General Counsel’s burden of
proof includes establishing that when the union made its
information request, it had a reasonable basis for believing that
the information would be necessary to it in carrying out its
statutory obligations. Allison Corp., above, citing Providence
Hospital, 320 NLRB 790, 793–794 (1996), enfd. 93 F.3d 1012
(1st Cir. 1996). In another decision not involving
presumptively relevant information, the Board concluded that
the union’s letter to the employer, explaining the union’s
purpose in seeking the information, was not explicit enough to
convey this objective to the employer. Rice Growers Assn., 312
NLRB 837 (1993). The Board cited Kentile Floors, 242 NLRB
755, 757 (1979), for the principle that relevance cannot be
established by speculative argument alone, without supporting
evidence.
When the Union replied to the Respondent’s letters, it
ignored the relevance-related questions which the Respondent
had asked. For the reasons discussed above, I have concluded
that the Union manifested bad faith when it ignored rather than
addressed these questions.
Moreover, the Union still has not provided a persuasive
explanation regarding why the requested information is relevant
to the performance of the Union’s statutory duties or necessary
for that purpose. Although the requested documents enjoy a
presumption of relevance, that rebuttable presumption does not
bar me from inquiring into whether the requested documents
are, in fact, relevant to and necessary for performance of the
Union’s statutory duty. As noted above, if the Union has sought
the documents for a reason unrelated to its duties under the Act,
then the Act should not be brought to its assistance.
The facts in this case can be, and I believe should be,
distinguished from those in Associated General Contractors of
California, 242 NLRB 891 (1979). In that case, the Board
disagreed with the judge’s understanding of the motivation for
the unions’ information request. The Board stated that the
judge’s “conclusions appear totally based on attribution to the
Unions of ulterior motivations for requesting the contested
information. And such attribution is, in turn, largely the product
of speculation and conjecture.”
The “ulterior motivations” supposedly were to obtain
information useful for organizing activities. Of course, unions
routinely engage in the perfectly lawful and accepted endeavor
of trying to recruit new members and, particularly, to organize
employees of nonunionized employers and thereby become the
employees’ exclusive representative. The Act itself recognizes
the propriety of such organizing efforts, protects employees’
right to engage in organizing and provides for the certification
of unions that win secret ballot elections. Nonetheless, and
apart from the information which an employer must provide in
connection with a Board-conducted election, a union’s
organizing efforts do not trigger a duty to furnish information.
Only a union’s activities related to the representation of
employees, such as negotiating and administering a collective-
bargaining agreement and processing grievances, entitle the
exclusive representative to request and receive relevant and
necessary information.
In Associated General Contractors of California, the Board
found no sound factual basis for the judge’s conclusion that the
unions had made the information request to further their
organizing efforts rather than for policing and administering the
collective-bargaining agreement. However, the Board went
further: Even if the unions sought the information for
organizing as well as for contract administration, the
representation purpose obligated the employers to furnish
requested relevant and necessary information, and the existence
of another purpose did not diminish that obligation.
The Board stated that “it is well established that, where a
union’s request for information is for a proper and legitimate
purpose, it cannot make any difference that there may also be
other reasons for the request or that the data may be put to other
uses. Utica Observer-Dispatch, Inc. v. N.L.R.B., 229 F.2d 575
(2d Cir. 1956).” Associated General Contractors of California,
242 NLRB at 894.
In the present case, the Union filed its information requests
in connection with grievances. Because representing
bargaining unit employees in grievance proceedings clearly
falls within a union’s statutory duties, it certainly can be argued
that the Union had at least one purpose which triggered the duty
to provide requested relevant/necessary information.
Moreover, based on Associated General Contractors of
California, it further can be argued that the parallel existence of
another purpose will not extinguish that duty.
I do not find that the Union filed the grievances simply as a
pretext to justify the information requests. Rather, in this
instance two separate motives probably were at work. It
appears likely that Thomas filed the grievances with a desire to
win them if he possibly could, but win or lose, he was also bent
on imposing on management as heavy a burden as possible
through the information requests. Winning a grievance may
well have seemed a remote possibility to Thomas, one which
depended on factors beyond his control. However, as chief
union steward, he possessed the immediate certain ability to
inflict distress through onerous information requests.
That ability may not quite amount to a “superpower,” but it
was a real power, indeed the only real power which Thomas
could use to strike back against those whom he perceived to be
harassing him. The fact that the discrimination charges he filed
with the Board and the EEOC gained no traction did not change
his subjective interpretation. Respondent’s “by-the-numbers”
management style might appear to an outsider to be rigorous
but neutral, to be as unbiased and impersonal as a computer.
Thomas still took it personally.
Likewise, the present record does not document any
management falsification of the performance numbers—as
Thomas alleged in grievances—and does not reveal any plot
against Thomas, but the absence of such proof does not
UNITED PARCEL SERVICE OF AMERICA 27
diminish Thomas’ personal perception of persecution or make it
any less powerful a motivator. I cannot and do not pass any
judgment on Thomas’ strong feeling that he had been wronged,
but note that it explains why Thomas filed onerous information
requests and remained unwilling to grant even the slightest
relief from the burden.
Indeed, the record clearly shows that the information
available from the various requested documents overlapped and
that not all the documents would be necessary to provide the
relevant and necessary information. In the total circumstances
here, where agreeing to an appropriate accommodation would
cause no harm, the refusal to narrow the request by eliminating
redundant documents, or even to explain why all are needed, is
evidence of a vindictive objective.
Unlike Associated General Contractors of California, above,
in which the inference of “ulterior motivations” was a matter of
conjecture, the present record provides a sound basis, consistent
with my observations of the witnesses, to conclude that a
retaliatory purpose tainted both the drafting and filing of the
onerous information requests and the Union’s refusal to agree
to any accommodation. However, the differences between the
present case and Associated General Contractors of California
go even further, to the nature of the “ulterior motivations.” The
malignancy of the retaliatory intent in the present case makes
Associated General Contractors of California inapposite.
Even if the unions in that former case intended to use the
requested information for organizing, that purpose does not
disrupt the statutory scheme. To the contrary, the Act
specifically protects employees’ rights to form, join or assist
labor organizations. A union’s intent to organize thus is
compatible with the collective-bargaining system created by
Congress when it passed and amended the Act.
On the other hand, using the information request process as a
weapon of retaliation greatly damages bargaining relationships
and undermines the system Congress envisioned. That system
fails when rational self-interest gets trampled by the brooding
beasts of spite.
It should be stressed that the mere presence of hostile feeling
does not signal that the information request process has been
converted from plowshare into a sword wielded with malice.
Rather, such a rare kind of change will manifest a constellation
of additional symptoms including these: (1) The information
request or requests will require the production of a vast number
of documents; (2) furnishing them will be time-consuming and
onerous; (3) because of overlap and redundancy, all relevant
and necessary information can be obtained from a subset of the
records sought; (4) the requesting party is unwilling to agree to
any accommodation which would reduce the burden even if the
compromise would still provide all relevant and necessary
information; (5) the requesting party is unwilling or unable to
offer a plausible explanation as to why every single document
is necessary.
The Act created a system which requires each side to deal
with the other in good faith. Although this system does not
compel either side to make any particular concession, it
absolutely depends on the willingness of the parties to
communicate with each other and contemplates that each side
will be agreeable to compromises which do not harm its own
position. By itself, a party’s unwillingness to make a particular
compromise does not suggest that the party is acting in bad
faith, but an unwillingness to make any compromise at all over
a long period of time certainly does.
In other words, the same kind of prolonged intransigence
which indicates bad faith during contract negotiations also
manifests bad faith in the context of information requests. It
suggests an objective antithetical to the purposes of the Act, and
this objective, unlike the possible “ulterior motivation” in
Associated General Contractors of California—organizing
employees—is not benign. To the contrary, appropriating a
mechanism designed to promote informed bargaining and
changing it into an engine of retaliation is malignant. Such a
cancerous mutation poses too much danger to be condoned.
To summarize, I find that bad faith tainted the Union’s
drafting and filing of the information requests and caused its
refusal to agree to any accommodation which would reduce the
burden on Respondent. Notwithstanding the Union’s
unwillingness to narrow the information requests, the
Respondent worked very hard to comply with those requests
and furnished the Union with a prodigious number of
documents.
In these circumstances, where Respondent acted in good
faith notwithstanding the Union’s misuse of the information
request procedure, I conclude that any failure to furnish all of
the requested documents does not breach the Respondent’s duty
to bargain in good faith and does not constitute a violation of
Section 8(a)(5) and (1) of the Act. Therefore, I recommend that
the Board dismiss the allegations raised by complaint
paragraphs 10(g) through 10(n), 10(p), 12(g) through 12(n) and
12(p).
Complaint Paragraphs 10(o), 11, and 12(o)
Complaint 10(o) alleges that since April 13, 2012, the Union
has requested in writing that Respondent furnish the Union with
the “time between stops” summary report for stops 1-2, 8-9,
16-18, 25-26, 29, 31-34, 36-37, 40-41, 43-46, and 48 for driver
Brandon Blizzard for April 11, 2012. Respondent’s answer
admits this allegation.
Respondent denies that this information is relevant to and
necessary for the Union’s performance of its duties as exclusive
collective-bargaining representative, as alleged in complaint
paragraph 11, and also denies that it has failed to furnish it, as
alleged in complaint paragraph 12(o).
The requested information pertains to the work of a
bargaining unit employee, and the record does not rebut the
presumption of relevance. I conclude that the government has
proven that the requested information is relevant to and
necessary for the performance of the Union’s duties as
exclusive representative, as alleged in complaint paragraph 11.
The Union’s information request sought many other
documents—timecard, delivery reports, driver recap summary,
manifest, weekly operating report, virtual OJS report and
telematics—besides the “time between stops summary” reports.
As the General Counsel noted in the government’s posthearing
brief, “Respondent provided these documents and they are not
the subject of a Complaint allegation.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
In other words, the sole documents allegedly not produced
were the “time between stops” reports. However, as the
General Counsel’s brief acknowledges,
Respondent, through Rosebaugh, said Respondent no longer
uses time between stop summary reports, but uses the driver
stop summary reports instead.
The “driver stop summary report” referred to in the General
Counsel’s brief is actually a section of the “telematics” data. It
is highly plausible that Rosebaugh would stop using the older
“time between stops” summaries when the more comprehensive
telematics data became available. (As noted above, Rosebaugh
began using telematics data at the Texarkana facility in March
or April 2011, about a year before the information request
under consideration here.)
Chief Steward Thomas’ testimony does not contradict that of
Manager Rosebaugh:
Q. Does the company run time-between-stops summar-
ies frequently?
A. I don’t know. I hadn’t seen one in a while.
Thus, based on the consistent evidence in the record, I
conclude that Respondent did not provide the “time between
stops” summaries because it no longer kept such documents.
Instead, the same information could be found in the documents
which Respondent did furnish the Union.
In sum, I find that Respondent provided all the requested
information. Indeed, as the General Counsel’s brief admits,
Respondent furnished the Union with a “virtual OJS report”
which included essentially the same information which would
have been observable by a supervisor riding in the delivery
vehicle.
It would require advanced bureaucratic myopia to conclude
that Respondent did not furnish the requested relevant
information because it did not give the Union a piece of paper
bearing the title “time between stops report” but instead
provided other documents showing the time between stops.
Therefore, I conclude that the Respondent fully met its duty to
provide requested relevant and necessary information.
Accordingly, I recommend that the allegations raised by
complaint paragraphs 10(o) and 12(o) be dismissed..
Complaint Paragraphs 10(q), 11, and 12(q)
Complaint paragraph 10(q) alleges that since April 23, 2012,
the Union has requested in writing that Respondent furnish the
Union with the following documents for all Texarkana Center
drivers who ran area 29A during the week ending April 21,
2012: (1) time between stop section summary; and (2) weekly
operation report. Based on the admission in Respondent’s
answer, I find that the General Counsel has proven this
allegation.
Complaint paragraph 11 alleges that the requested
information is relevant to and necessary for the Union’s
performance of its duties as exclusive representative of the
bargaining unit. Complaint paragraph 12(q) alleges that
Respondent has failed and refused to furnish the requested
information. Respondent denies both of these allegations.
The requested information pertained to a grievance filed on
behalf of Thomas, who testified that he had been given “an
intent to terminate for not running the SPORH. . .” In other
words, management considered his stops-per-onroad-hour
number unsatisfactory. Accordingly, he requested records of all
drivers who had worked this route during a particular week so
that he could compare their SPORH scores with his own.
The records pertain to the work of bargaining unit employees
and are presumptively relevant. Moreover, in this instance, the
record does not reflect any improper purpose. The records are
for only a 1-week period, and limited to drivers similarly
situated to Thomas. I conclude that the presumption of
relevance stands unrebutted. Accordingly, I further conclude
that the government has proven that the requested documents
are relevant to and necessary for the Union to perform its
functions as exclusive bargaining representative, as alleged in
complaint paragraph 11.
This information request, like the one described in complaint
paragraph 10(o), discussed immediately above, actually sought
more information than alleged in the complaint. However, the
Respondent provided other portions of the information, and the
complaint only describes that information which allegedly was
not furnished.
Thus, the information request also sought timecards, delivery
reports, manifests, “virtual OJS” and “telematics including
map” for the drivers who worked Thomas’ route on this
particular week. The complaint does not allege that
Respondent failed to furnish these documents and I find that
Respondent did, in fact, provide them.
However, the complaint does allege that Respondent violated
the Act by failing and refusing to provide the requested “time
between stops” summaries. However, as discussed above, the
Respondent had ceased using this report, because other records
provided this information and more.
Thomas also sought the weekly operations reports because
they provided information about the SPORH scores of the other
drivers. The complaint alleges that Respondent failed to
furnish the Union with these requested documents. However,
the more detailed telematics information included precise
information about stops and times.
I conclude that Respondent did furnish all requested
information. Arguably, there may be situations in which a
specific document, requested by name, must be produced to
satisfy an information request. For instance, that might be the
case if circumstances had called into question the authenticity
or contents of the document itself. Such a question might
concern whether the document included a particular clause or
had been properly executed. However, those circumstances are
not present here.
To the contrary, Thomas’ testimony makes clear that he
requested these documents for the information they contained,
notably, the SPORH scores. Because this information could be
found in other documents, which Respondent did produce,
there has been no refusal to provide information. Accordingly,
I recommend that the unfair labor practice allegations arising
from complaint paragraphs 10(q) and 12(q) be dismissed.
Complaint Paragraphs 10(r), 11, and 12(r)
Complaint paragraph 10(r) alleges that since April 25, 2012,
the Union has requested in writing that Respondent furnish the
Union with the “time between stops” section summary for
UNITED PARCEL SERVICE OF AMERICA 29
driver Leland Spinks for the week ending April 14, 2012.
Based on the admission in Respondent’s answer, I find that the
General Counsel has proven this allegation.
Complaint paragraph 11 alleges that the requested
information is relevant to the Union’s performance of its duties
as exclusive bargaining representative, and relevant for that
purpose. Complaint paragraph 12(r) alleges that Respondent
has failed and refused to furnish the requested information.
Respondent denies both of these allegations.
Chief Steward Thomas submitted this information request in
connection with a grievance he had filed on behalf of
bargaining unit employee Leland Spinks, who was contesting
being subjected to heightened supervision. Although the
information request sought a number of different documents,
the only ones identified in complaint paragraph 10(r) are “time
between stops” summaries. The General Counsel’s brief
includes a footnote stating that “The other documents Thomas
requested were provided and, accordingly, were not made the
subject of a complaint allegation.” The General Counsel’s brief
also stated as follows:
Respondent provided some of the documents requested, but
failed to provide the time between stop section summary. [Tr
211; R. Exh. W.] Thomas was never notified that Respondent
no longer used the time between stop section summary and
would not have asked for the forms if he had been notified.
[Tr. 457.]
Although the General Counsel’s brief states that “Thomas
was never notified that Respondent no longer used the time
between stop section summary,” it would not appear that the
government is arguing that Respondent violated the Act by
failing to provide such notice. Certainly, the complaint does
not include any allegation that Respondent committed an unfair
labor practice by failing to notify the Union that it had
discontinued use of a form. See Raley’s Supermarkets & Drug
Centers, 349 NLRB 26, 28 (2007) (“At no time, even after
learnng that such a report did not exist, did the General Counsel
amend the complaint to allege that the Respondent violated the
Act by failing to timely inform the Union that there were no
such reports. Accordingly, we would not find a violation on
that basis.”)
Chief Steward Thomas testified as follows concerning why
he sought the “time between stops” summary:
Q. Okay. Why did you request the time-between-stops
summary?
A. Well, time-between-stops is important for determin-
ing what the SPORH was for Leland on each stop, and that
determines the SPORH for the whole day, so we wanted a
copy of the time-between-stops summary.
However, the record establishes that the April 25, 2012
information request sought, in addition to the time-between-
stops summary, the telematics data for the same period and
route, and the General Counsel does not dispute that the
Respondent indeed furnished the telematics data. In the
testimony quoted above, Thomas indicated he wanted the time-
between-stops summary so that the SPORH could be
determined, but elsewhere in his testimony, Thomas admitted
that the telematics data provided this information:
Q. What is telematics?
A. Telematics is a complete day of a driver, how long
that driver--what time that driver left, how long that driver
takes to get to his first stop, how long that driver is in his
first stop, going to his second stop, how long that driver
from his second stop to his third stop, and it also generates
SPORH for each stop. [Emphasis added.]
Although Thomas was complaining that he needed the time-
between-stops summary to ascertain the SPORH, the
Respondent had furnished that same information as part of the
telematics data. Considering that the telematics data not only
included the SPORH but other detailed information useful for
supervision and planning, it is no wonder that management
discontinued use of the time-between-stops summary. Why
would any company, let alone one so focused on efficiency as
the Respondent, continue to use an old form which was
redundant?
Indeed, it seems so obvious that management would
discontinue an out-of-date form that Thomas’ testimony—that
he was never notified—comes across as a bit disingenuous.
Considering Thomas’ familiarity with the telematics data, he
reasonably would have figured out for himself that the old form
no longer served a purpose.
The Respondent provided the information. For the Union to
insist that it had to be delivered on an outdated form quite
literally exalts form—a form—over substance. An argument
that the Union did not receive the requested information would
be like a restaurant customer complaining that he did not get
the cornbread he ordered because it came in a muffin rather
than a wedge.
In sum, I conclude that the government did prove the
relevance and necessity of the requested information, as alleged
in complaint paragraph 11, but that Respondent, contrary to the
allegation in complaint paragraph 12(r) furnished the
information. Accordingly, I recommend that the Board dismiss
this allegation.
Complaint Paragraphs 10(s), 10(u), 11, 12(s), and 12(u)
Complaint paragraph 10(s) alleges that since May 9, 2012,
the Union has requested in writing that Respondent furnish the
Union with the time between stop section summary for driver
Reggie Thomas area 29A for April 30, 2012. Based on the
admission in Respondent’s answer, I find that the government
has proven this allegation.
Complaint paragraph 11 alleges the relevance and necessity
of the requested information, and complaint paragraph 12(s)
alleges that Respondent has failed and refused to furnish it.
Respondent denies these allegations.
Complaint paragraph 10(u) alleges that since May 18, 2012,
the Union has requested in writing that Respondent furnish the
Union with the time between stop section summary report for
driver Reggie Thomas for the weeks ending May 7 and May
15. (This information request is in evidence as GC Exh. 77.)
Based on the admission in Respondent’s answer, I find that the
General Counsel has proven this allegation.
Complaint paragraph 11 alleges the relevance and necessity
of the requested information, and complaint paragraph 12(u)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
alleges that Respondent has failed and refused to furnish it.
Respondent denies these allegations.
The requested information concerns the work of bargaining
unit employee Reggie Thomas and enjoys a presumption of
relevance. Although, as discussed above, I have concluded that
Thomas did not always act in good faith when filing
information requests in his capacity as chief steward, it is not
necessary to revisit that issue here. Rather, I will assume for
the sake of analysis that Thomas acted in good faith and for a
proper purpose in filing the information requests under
consideration here. Further, I will presume that the government
has proven the relevance and necessity of the information, as
alleged in complaint paragraph 11.
The allegations in complaint paragraphs 10(s), 10(u), 12(s),
and 12(u) raise the same kind of issues as those discussed
above in connection with complaint paragraphs 10(r) and 12(r).
The actual information requests submitted by the Union seek
more information than described in complaint paragraphs 10(s)
and 10(u), and Respondent furnished the Union everything
except the “time between stops” forms.
The telematics information which Respondent did furnish the
Union provided the same information which could have been
obtained from the “time between stops” forms and, indeed,
more. Accordingly, for the same reasons discussed above, I
conclude that Respondent fully complied with the information
requests alleged in complaint paragraphs 10(s) and 10(u).
Further, I conclude that Respondent did not violate the Act and
recommend that these allegations be dismissed.
Complaint Paragraphs 10(t), 11 and 12(t)
Complaint paragraph 10(t) alleges that since May 18, 2012,
the Union has requested in writing that Respondent furnish the
Union with the manifests for April 30, May 2 and 3, 2012, for
driver Reggie Thomas for area 29A. Based on the admission in
Respondent’s answer, I find that the General Counsel has
proven this allegation.
Complaint paragraph 11 alleges that the requested
information is relevant to and necessary for the performance of
the Union’s duties as exclusive bargaining representative.
Complaint paragraph 12(t) alleges that Respondent has failed
and refused to furnish it to the Union. The Respondent denies
these allegations.
The requested information described in complaint paragraph
10(t) is only part of the entire information request which the
Union submitted to management on May 18, 2012. The actual
information request prepared by Thomas and submitted to the
Respondent on May 18, 2012, is in evidence as General
Counsel’s Exhibit 75. It sought the following documents for a
2-week period: Timecards, delivery reports, manifests, weekly
operating reports, driver recap summaries, virtual OJS report
and telematics, including maps.
On May 24, 2012, the Respondent provided the Union with
documents in response to this information request. Of all the
documents requested, the government only alleges that
Respondent failed to furnish three of them, the manifests for
April 30, May 2, and May 3, 2012. The General Counsel’s brief
acknowledges that “other information requested pursuant to this
request was provided.”
The record indicates that after receiving information in
response to a request, Thomas would review the documents and
then, if any of the requested documents had not been provided,
would send a note to Business Agent Driggers. This note
would specify which documents had not been received.
Driggers, in turn, would email the Respondent to seek the
missing information. These records do not establish that the
Union informed the Respondent that it had not received
manifests for April 30, May 2 and 3, 2012.
In view of the substantial amount of documentation which
Respondent furnished to the Union in less than a week after the
information request, in the absence of evidence establishing
that the Union notified Respondent that it had not received the
three manifests, and considering that they comprised only a
fraction of the documentation requested and provided, it is
difficult to conclude that the Respondent acted in bad faith.
However, before deciding that issue, it is appropriate to take
into account the reason for the information request.
The information request pertained to a grievance filed on
behalf of Reggie Thomas. This grievance, like the information
request, is dated May 18, 2012. Although another steward
signed the grievance, Thomas drafted it. In it, Thomas stated as
follows:
The company has manipulated and falsified the performance
numbers to harass me. On May 15, 2012 meeting with
Supervisor Josh Carnes, Steward Mike Fowler present.
Discussed was the previous day SPORH and over allowed
hours. Management has treated me differently because of my
attitude, personality, past incidents and experiences, and union
activity. They also treat me differently because I have filed
NLRB charges against them.
As noted above, the complaint in this matter does not allege
that Respondent discriminated against Thomas, or any other
employee. The General Counsel does not allege that
Respondent engaged in unlawful discrimination of any kind.
Additionally, no credible evidence suggests that the Respondent
falsified performance numbers and the General Counsel does
not allege that Respondent engaged in harassment of Thomas or
any other employee.
The grievance itself, quoted above, together with Thomas’
testimony, indicate management again considered Thomas’
performance “numbers” to be unsatisfactory and discussed it
with Thomas at a meeting also attended by a union steward
representing Thomas.
The grievance leaves no doubt that Thomas did not believe
the performance numbers with which the supervisor confronted
him. Rather, he considered these numbers to have been
“manipulated” and “falsified” in an attempt to harass him.
No extrinsic evidence suggests that anyone altered these
measurements. Likewise, no credible evidence suggests that
any supervisor or manager intended to harass Thomas. In the
absence of such evidence, I find that Supervisor Carnes, in his
meeting with Thomas, was simply following the established
procedure for counseling an employee whose performance did
not measure up.
Presumably, Thomas wanted to look for and find evidence
which would support his belief that management was altering
UNITED PARCEL SERVICE OF AMERICA 31
the performance numbers to harass him. To that end, he filed
the information request. In addition to searching for documents
showing some kind of manipulation or falsification of the data,
Thomas may also have been looking for mitigating factors
which might explain or justify the amount of time he had taken
to make his deliveries. Thus, he gave the following explanation
for why he had requested manifests:
Q. Okay. Why did you request the manifests?
A. Manifests gives a dispatch of the date. It lets me
know if I’m heavy or not on those particular weeks and
tells me how many stops is on the car, where they’re lo-
cated on the car, which is important.
If his delivery van (or “package car,” in Respondent’s
terminology) had been loaded almost to overflowing, the time it
took him to complete his route might well increase.
Although I have found that in some instances, described
above, Thomas used the information request procedure to lash
out at management and to retaliate, I do not get the sense that
he did so in this particular matter. Here, Thomas did not seek a
nearly astronomical number of documents and then refuse to
compromise.
Rather, this particular information request sought a more
limited number of documents for a relatively brief time period,
a period related to the counseling he had received for
unsatisfactory performance numbers. Moreover, by this point,
Thomas was aware that his job might well be in jeopardy and,
therefore, he felt a need to discredit the data which might be
used as the basis for his discharge. Therefore, I conclude that
the record does not rebut the presumption of relevance which
the requested information enjoys. Accordingly, I conclude that
the government has proven the allegations raised in complaint
paragraph 11 concerning the relevance and necessity of the
requested information.
No evidence suggests, even remotely, that Respondent
withheld the three manifests when it furnished the Union with
the other 100-or-so pages of documents. Likewise, the record
neither reveals nor even hints at any reason why management,
which had furnished a number of manifests, might not want
Thomas or the Union to have these particular three. The only
reasonable conclusion is that the failure to provide the Union
with these three manifests was inadvertent.
Could the Union have received the information recorded on
the manifests but from a different source? If so, it would be
similar to the situation discussed above, in which the telematics
data provided all the information to be gleaned from the times-
between-stops summaries. However, the telematics
information, which concerns the location of the vehicle at each
point in time, does not duplicate the manifest information,
which lists the name of the recipient and the method of
shipment (such as “ground” or “first day air”) for each package
on the vehicle.
If not the telematics data, might some other requested
document duplicate the information on the manifest? On cross-
examination, Thomas testified, in part, as follows:
Q. BY MR. CRIDER: It’s your testimony that manifests
weren’t produced. Is that what you’re saying?
A. No. I say, all the manifests wasn’t produced. I got
most of the information. I was missing April 30, May 2
and May 3. I made that clear.
Q. Okay. Page 5312, is that a manifest for April 30?
A. That is not a manifest. This is a delivery report.
This is not a manifest.
. . . .
Q. BY MR. CRIDER: Now, the driver delivery report
and the manifests contain essentially the same infor-
mation, do they not, Mr. Thomas?
A. No, they do not.
Q. What’s the difference?
A. Driver manifests is a dispatch report. It tells exact-
ly how many packages are on the package car, how many
stops a driver has, and where they are located on the pack-
age car.
At this point, Thomas did not elaborate on what information
a manifest recorded but a delivery report did not. Thus, his
testimony seems to imply that manifests list the packages
carried and the stops but that delivery reports do not. However,
such an impression would be absolutely incorrect. Earlier in
his testimony, on direct examination, Thomas described a
delivery report:
Q. Now, we’ve already talked about the time card.
The next check is delivery reports. What are delivery re-
ports?
A. Delivery records tell exactly what a driver had on
his package car that day as far as the amount of stops,
what stops they were, what time he delivered, who signed
for the stops, and if he or she missed any stops or not.
Comparing this testimony, on direct examination, with
Thomas’ testimony on cross-examination leads to the
conclusion that delivery reports do, in fact, record essentially
the same information as manifests. For example, Thomas
testified that the manifest “tells exactly how many packages are
on the package car” and he testified that the delivery reports
“tell exactly what a driver had on his package car.”
Similarly, Thomas testified that the manifest shows “how
many stops” the driver made and that the delivery report shows
“the amount of stops, what stops they were. . . and if he or she
missed any stops or not.” In sum, Thomas’ descriptions of
delivery reports and manifests do not support his denial that the
two documents provide essentially the same information.
Indeed, this denial seems one further symptom indicating that
Thomas’ testimony should be viewed cautiously.
Without doubt, a manifest and a delivery report both record
similar information about the number of packages and the
number of stops, but that doesn’t warrant a conclusion that
there are no differences. It would be surprising for a company
so focused on efficiency to use two forms when one would do.
Because manifests and delivery reports serve different
purposes, undoubtedly they diverge in certain respects.
However, the question here is whether the two types of
documents differ in any way material to the Union’s needs as
exclusive bargaining representative. In other words, do the
delivery reports include all the information which Thomas
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
sought—and expected to obtain from the manifests—to defend
against the assertion that he was working too slowly?
Obviously, the number of packages which Thomas had to
deliver on a given day would be relevant to how long it should
take him to finish the route. Similarly, the number of stops has
obvious relevance.
If Thomas believed that the manifests recorded some other
information relevant to his needs, information not available
from the delivery reports, he certainly would have said so
during his testimony. He cannot easily be described as a
disinterested witness whose lack of concern about the outcome
would lead him to overlook a fact favorable to his side.
Moreover, if the manifests contained any relevant
information not available through the delivery reports, it seems
likely that when Thomas sent his note to Business Agent
Driggers about the completeness of the information provided,
he would have mentioned that three manifests were missing.
Likewise, the business agent would have informed the
Respondent. The fact that Thomas did not mention the three
missing manifests in his note to Driggers, so that the business
agent could request them from Respondent, leads me to
conclude that Thomas did not consider the three manifests all
that important because he could obtain the same information
from the documents which had been furnished.
In these circumstances, I find that Respondent did furnish to
the Union all the relevant information sought by the Union’s
information request. Further, I find that Respondent made a
fully reasonable attempt to locate the requested records, that it
acted in good faith, and that the failure to find the three
manifests was inadvertent. Therefore, I conclude that
Respondent did not violate the Act as alleged in complaint
paragraphs 10(t) and 12(t) and recommend that the Board
dismiss these allegations.
The Settlement Agreement
On March 6, 2012, the Respondent and Charging Party
executed an agreement which settled three of the five charges
which form the basis of the Third Consolidated Complaint in
this matter. Those charges are Cases 16–CA–028064, 16–CA–
062316, and 16–CA–070588. The Regional Director for
Region 16 of the Board approved this settlement agreement on
March 8, 2012.
However, on May 21 and July 13, 2012, respectively, the
Union filed additional unfair labor practice charges which were
docketed as Cases 16–CA–081494 and 16–CA–085218. On
October 31, 2012, the Regional Director issued the complaint
(more fully, the “order further consolidating cases, third
consolidated complaint and notice of hearing”) which had the
effect of setting aside the settlement agreement, reviving the
complaint allegations from Cases 16–CA–028064, 16–CA–
062316, and 16–CA–070588 and incorporating them in a single
complaint along with allegations from the more recently filed
cases.
Here, I must consider whether the Region properly set aside
the settlement agreement and revived the allegations it had
resolved. The answer to that question carries significant
consequences because I have found some of the allegations
raised by the earlier charges to be meritorious. If the settlement
agreement properly should have remained in effect, it would
lay those meritorious allegations to rest—they would be
deemed settled and remedied—and block further action on
them here. However, if the Regional Director properly set
aside the settlement agreement, then the once-settled
meritorious allegations have gained new life and must be
remedied here.
To state the legal principle more exactly, well-established
Board precedent holds that a settlement agreement disposes of
all issues involving presettlement conduct unless prior
violations of the Act were unknown to the General Counsel, not
readily discoverable by investigation, or specifically reserved
from the settlement by the mutual understanding of the parties.
Fruehauf Trailer Services, 334 NLRB 344 (2001); In
Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978).
In determining whether setting aside the settlement
agreement is warranted, I draw guidance from another
venerable line of Board precedent. The Board has long held
that “a settlement agreement may be set aside and unfair labor
practices found based on presettlement conduct if there has
been a failure to comply with the provisions of the settlement
agreement or if postsettlement unfair labor practices are
committed.” Scripps Memorial Hospital Encinitas, 347 NLRB
52 (2006), citing Twin City Concrete, 317 NLRB 1313 (1995),
quoting YMCA of Pikes Peak Region, 291 NLRB 998, 1010
(1988), enfd. 914 F.2d 1442 (10th Cir. 1990).
Accordingly, I must decide whether either of two events has
occurred: (1) Has the Respondent failed to comply with the
provisions of the settlement agreement? (2) After the
settlement agreement went into effect, did Respondent commit
an unfair labor practice? If the answer to either question is
“yes,” then setting aside the settlement agreement was
warranted.
In determining whether Respondent failed to comply with
the terms of the settlement, it is helpful to begin with a
description of those provisions, which are quite rigorous. In
addition to the provisions typical of such informal settlements,
the agreement includes other, less common requirements which
obligate the Respondent to take a number of extraordinary
steps. These requirements included posting notices not only in
places where notices to employees customarily were posted, but
also near each computer station at the Texarkana facility;
providing a copy of the settlement agreement to every
supervisor and manager working at the Texarkana facility
(including individuals who worked as temporary supervisors
for at least 10 days per year); training each supervisor and
manager about the duty imposed by the Act to furnish the
Union with requested relevant and necessary information;
cautioning each supervisor and manager that failure to furnish
such information or an unreasonable delay in providing it “shall
not be tolerated” and would “subject the responsible supervisor
or manager to discipline, up to and including discharge” and
requiring each supervisor and manager to “acknowledge in
writing that he or she has been furnished with a copy” of these
instructions, understood them, and would “conduct himself or
herself consistently therewith, and will not in any way commit,
engaged [sic] in induce, encourage, permit or condone any
violation of this Settlement Agreement and Notice Posting.”
UNITED PARCEL SERVICE OF AMERICA 33
Another atypical provision in the settlement agreement
obligates the Respondent to conduct one or more employee
meetings at which a “responsible management official” would
read the Notice to Employees out loud. The Board has
characterized such a requirement as an “extraordinary” remedy.
See Chinese Daily News, 346 NLRB 906, 909 (2006).
Although a number of the requirements described above go
beyond those typically found in informal settlement
agreements, the General Counsel does not contend that
Respondent failed to comply with them. Rather, the General
Counsel, through the Regional Director for Region 16,
concluded that the Respondent had not complied with the
settlement agreement because of language which actually did
not appear in the body of the settlement agreement itself.
Nothing in the body of the settlement agreement obligated
Respondent to train union officials in how to interpret
computer-generated data. However, as noted above, the
agreement did require Respondent to post a Notice to
Employees that was appended to the settlement as “Attachment
A.” This Notice included the following:
WE WILL, if unable to provide the Union with infor-
mation in the format requested by the Union, provide the
Union with in-person training in interpreting the docu-
ments provided and provide reasonable Union time in
which to receive the training. This training will take place
within five (5) business days of providing the information.
The General Counsel contends that Respondent did not
follow through with this training and that its failure to do so
constitutes a breach of the settlement agreement sufficient to
justify setting it aside. Consideration of this rather novel issue
must begin with a review of what actually happened.
On March 23, 2012, the Respondent furnished to the Union
some computer-generated documents in a format other than the
“native” format which the Union had requested. On April 4,
2012, Respondent’s labor relations manager sent a letter to
Union Business Agent Tommy Driggers. It stated:
UPS will be responding to the Union’s information requests
with documents that may not be in their native format. The
Company will provide in-person training to Union officials to
assist them in interpreting these documents. Please let me
know if the Union would like to participate in the in-person
training and provide proposed dates and times for the training.
The Company will identify a mutually convenient time and
will schedule the training.
Please let me know if you have questions.
After Driggers received this letter, he did not inform the
Respondent of available dates for the training. Rather, on April
10, 2012, Driggers sent the letter to Chief Steward Thomas by
fax. However, Thomas took no action. Thomas offered this
explanation for his inaction:
Q. Did you provide dates and times for the training?
A. No.
Q. Why not?
A. I am a steward. I am not responsible in giving dates
and times. I can’t set up dates and times for the training.
That has to come higher up than me, because that would
be more like Tommy’s job.
Q. Okay. Was there any other reason why you didn’t
provide the dates and times for the training?
A. No. But the settlement agreement says that the
training had to be done by March 23, and I was assuming
that we would have this training done by March 23.
Thomas’ testimony that the settlement agreement required
training by March 23 is incorrect. As noted above, the
language in question was not in the body of the settlement
agreement but rather in the notice, and it made no reference to
March 23. It simply stated that within 5 business days of
furnishing information in a format other than requested by the
Union, the Respondent would provide training to the Union.
Respondent furnished the documents of March 23, a Friday,
and 5 business days later would have been March 30.
Although Thomas testified that he did not have authority, as
a steward, to inform the Respondent of available dates and
times for the training, this modest disclaimer strikes me as a bit
disingenuous. It was Thomas, not Driggers, who signed the
settlement agreement on behalf of the Union. Similarly,
Thomas, acting for the Union, signed the unfair labor practice
charges on behalf of the Union.
The record as a whole creates a rather strong impression that
the information requests were Thomas’ crusade, with Business
Agent Driggers quietly going along rather than “making
waves.” In one instance, when Respondent’s labor relations
manager sent a letter to Driggers, it was Thomas, not Driggers,
who replied.
Moreover, Business Agent Driggers certainly must have sent
the letter to Thomas for a reason, either so that Thomas could
communicate directly with Respondent about dates for the
training or else so that Thomas could inform Driggers about
convenient dates which Driggers could then pass along to the
Respondent. However, the Union did not provide Respondent
with suggested dates for the training and it never took place.
The record suggests that such training would not have been
necessary anyway. Thomas testified that after March 23, he did
not receive any documents from Respondent which were not in
the desired “native” format.
The General Counsel argues that the Union’s failure to reply
to the request for training dates does not matter, that the only
relevant fact is simply that the training never occurred.
Moreover, the government notes that the Respondent’s April 4,
2012 letter was not sent within 5 business days of the date
when it furnished the information. That is true. Respondent
sent this letter on the 8th business day.
Nonetheless, I conclude that Respondent did not violate the
terms of the settlement agreement. This conclusion rests on
several reasons.
First, the language of the settlement agreement did not
obligate Respondent to provide this training. By signing this
document, Respondent agreed to post the Notice to Employees
but agreement to post the Notice is not the same as an
agreement to perform the actions described in the Notice. The
settlement agreement included a number of extraordinary
requirements, such as that a “responsible management official”
read the Notice to Employees. The parties placed these terms
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
in the body of the agreement and they clearly were binding on
Respondent. Whether or not the Notice referred to them does
not alter the Respondent’s obligation to comply.
Just as easily, the parties could have included in the
agreement itself language requiring Respondent to provide the
document-interpretation training. They did not.
Alternatively, the parties easily could have included in the
settlement agreement language which not only required a
management official to read the notice out loud to employees—
itself an extraordinary requirement—but also required
Respondent to comply with the statements in the Notice.
However, they did not.
In Gadsden Tool, Inc., 327 NLRB 164 (1998), the Board,
citing the Supreme Court’s decision in H. K. Porter Co. v.
NLRB, 397 U.S. 99 (1970), noted that it had no authority to
change the substantive terms of the parties’ collective-
bargaining agreement by altering the effective dates. The
agreement under consideration here is not a collective-
bargaining agreement but a settlement agreement. All the same,
I would feel uncomfortable reading into the body of the
agreement words which the parties did not include.
Accordingly, I conclude that Respondent did not fail to
comply with the terms of the settlement agreement as they were
written.
However, even were I to assume that the Respondent had an
obligation to give effect to this language in the notice, the
Respondent made a good-faith effort to do so. It sent a letter
asking the Union to recommend dates for the training, and it
could not schedule the training without that information. After
all, the training was for union officials, some of whom, like
Driggers, were not Respondent’s employees. Respondent
needed to know when these individuals would be available
before it could set a training date.
The Union had sought this training, claiming it was
necessary for understanding the reams of documents it was
requiring Respondent to produce. Then abruptly, inexplicably,
union officials lost interest. In fairness, the Union’s turning
fickle should not put Respondent in a pickle. Because it was
the Union’s inaction which stalled the training plans, it would
be both illogical and unjust to blame the Respondent.
Moreover, Thomas’ testimony indicates that after March 23,
2012, the Respondent did not furnish records in a “non-native
format” requiring interpretation, so the training was no longer
needed. The absence of need for this training may well explain,
or at least partially explain, the Union’s failure to reply to the
Respondent’s request for available dates.
Further, the fact that the Respondent did not send the letter
until April 4, 2012—8 business days after providing the
documents rather than the specified 5days—is at most a de
minimis breach of the settlement agreement, and one which did
not cause the Union prejudice or disadvantage. Indeed, the
Union’s failure to reply to Respondent’s request for dates
suggests a lack of concern about the short delay. Setting aside
the settlement agreement because of this microscopic
peccadillo—if it amounted even to that—would not be
appropriate.
In sum, I conclude that there has been no failure to comply
with the settlement agreement which would warrant setting it
aside. Now, I turn to the second possible basis for doing so, the
existence of postsettlement unfair labor practices.
For the reasons stated above, I have concluded that
Respondent violated the Act by the conduct alleged in
complaint paragraphs 10(a) and 12(a), 10(c) and 12(c), and
10(d) and 12(d). These violations took place before the
settlement and were addressed by the settlement. However, the
evidence does not establish that Respondent committed any
unfair labor practices after executing the settlement agreement.
At the prehearing stage of an unfair labor practice case, the
acting General Counsel, through the Regional Director, must
make decisions using the information in witness statements
rather than based on testimony tested by cross-examination.
This necessary reliance on affidavits defers the resolution of
credibility issues to the hearing stage. Based on such
credibility determinations, I have concluded that the
Respondent did not commit postsettlement violations.
Accordingly, the settlement agreement should be reinstated.
Further, I conclude that the Respondent has complied fully
with the settlement agreement. Because compliance with the
settlement has remedied all presettlement violations, and
because there are no postsettlement violations, I recommend
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, United Parcel Service of America, Inc.,
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Charging Party, International Brotherhood of
Teamsters, Local Union 373, is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all material times, the Charging Party has been and is
the exclusive bargaining representative, within the meaning of
Section 9(a) of the Act, of a bargaining unit of Respondent’s
employees, consisting of all feeder drivers, package drivers,
sorters, loaders, unloaders, porters, office clerical, clerks,
mechanics, maintenance personnel (building maintenance), and
car washers, excluding all guards, professionals and supervisors
as defined in the Act. This unit is an appropriate unit for
collective bargaining within the meaning of Section 9(b) of the
Act.
4. The Charging Party, in its capacity of exclusive bargaining
representative, requested that Respondent furnish it with the
information described in paragraphs 10(a), 10(c), and 10(d) of
the order consolidating cases, third consolidated complaint and
notice of hearing (the complaint) in this matter. This
information was relevant to the Charging Party’s performance
of its duties as exclusive bargaining representative and
necessary for that purpose. The Respondent failed and refused
to furnish this requested information to the Charging Party in a
timely manner, thereby violating Section 8(a)(5) and (1) of the
Act.
5. On March 6, 2012, the Respondent and the Charging Party
executed a settlement agreement in Cases 16–CA–028064, 16–
CA–062316, and 16–CA–070588. On March 8, 2012, the
Regional Director for Region 16 of the Board approved this
settlement. This settlement agreement covered the violations
described above in paragraph 4.
UNITED PARCEL SERVICE OF AMERICA 35
6. No basis sufficient in law exists to warrant setting aside
the settlement agreement described above in paragraph 5.
7. Respondent has complied fully with the settlement
agreement referred to above in paragraph 5, and such
compliance has fully remedied the violations described above
in paragraph 4.
8. Apart from the violations described in paragraph 4 above,
the Respondent did not violate the Act in any manner alleged in
the complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended1

1 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ORDER
The settlement agreement in Cases 16–CA–028064, 16–CA–
062316, and 16–CA–070588, approved by the Regional
Director on March 8, 2012, is reinstated and the complaint is
dismissed.
Dated at Washington, D.C., August 15, 2013

ommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.