Postal Service

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 254 (N.L.R.B. 1993)

254
311 NLRB No. 35
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We agree with our colleague’s statement that a union’s request
for information relating to persons outside the bargaining unit re-
quires a special demonstration of relevance. In this case, as in Postal
Service, 301 NLRB 709 (1991), the relevance of the requested infor-
mation has a legal foundation, but the Union’s entitlement to the in-
formation turns on the Union’s possession of more than a mere sus-
picion of such relevance. We cannot, however, factually determine
without a hearing that the Union had no more than a mere suspicion
that the information was relevant.
Our colleague misinterprets the above paragraph. We are not
amending the complaint. We are merely stating what the General
Counsel must prove to prevail on the complaint he issued.
2 This factual uncertainty is also our basis for denying the General
Counsel’s Motion for Summary Judgment.
3 The cases on which our colleague relies all have records devel-
oped either at hearings or through factual stipulation of the parties.
The Board’s Rules do not provide for prehearing discovery, and, ac-
cordingly, it is not the Board’s usual procedure to require more than
allegations of legally significant factual issues to warrant a hearing
in an unfair labor practice matter. See Sec. 102.24(b), which specifi-
cally states that the party opposing summary judgment need not file
‘‘affidavits or other documentary evidence.’’
United States Postal Service and Trenton Metro-
politan Area Local 1020 American Postal
Workers Union, AFL–CIO. Case 22–CA–
17769(P)
May 28, 1993
ORDER DENYING MOTIONS
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 19, 1991, the Acting Regional Director for
Region 22 issued a complaint and notice of hearing in
the above-captioned case alleging that since May 17
and June 7, 1991, the Respondent has refused to fur-
nish certain information to the Union in violation of
Section 8(a)(5) and (1) of the Act. The Respondent
filed an answer admitting in part and denying in part
the allegations of the complaint, and submitting affirm-
ative defenses.
On February 24, 1992, the General Counsel filed a
Motion for Summary Judgment with the Board. On
February 26, 1992, the Board issued an order transfer-
ring proceeding to the Board and Notice to Show
Cause why the General Counsel’s motion should not
be granted. On March 10, 1992, the Respondent filed
a response to the Notice to Show Cause and Cross-
Motion for Summary Judgment. On March 16, 1992,
the Board issued a Supplemental Notice to Show
Cause why the Respondent’s motion should not be
granted. On April 2, 1992, the General Counsel filed
a response to the Supplemental Notice to Show Cause.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Having reviewed the parties’ submissions, we find,
for the reasons that follow, that the complaint raises
genuine issues of material fact which would best be re-
solved after a hearing before an administrative law
judge, and that therefore neither the General Counsel
nor the Respondent is entitled to summary judgment as
a matter of law.
The Union represents a unit of the Respondent’s em-
ployees and has a collective-bargaining agreement with
the Respondent. Following the filing of a grievance
over the Respondent’s discipline of employee Loichle,
the Union requested the attendance records of Super-
visor Bennett (who administered Loichle’s discipline).
As part of the filing of a grievance regarding discipline
in general, the Union requested the attendance records
of Supervisors Shetter and Murray. The General Coun-
sel alleges that the Respondent’s denial of these re-
quests violates Section 8(a)(5).
Under Section 102.24(b) of the Rules and Regula-
tions, the Board in its discretion may deny a motion
for summary judgment where it believes that a genuine
issue of fact may exist. It is apparent from the plead-
ings, motions, and responses that a genuine issue of
fact may exist as to whether the General Counsel can
establish that the Union is entitled to information re-
garding nonunit matters.
Although our dissenting colleague claims he can dis-
cern no disputed issue of fact, he acknowledges what
we consider the factual issue when he states that he
cannot tell from the papers before us on what basis the
Union believed the supervisory attendance records
were relevant.1 Having identified the factual uncer-
tainty, our dissenting colleague faults the General
Counsel for failing to prove the case at this stage of
the proceeding.2 We prefer to resolve this factual un-
certainty on the basis of evidence developed at a hear-
ing.3
ORDER
IT IS ORDERED that the General Counsel’s motion
and the Respondent’s Cross-Motion for Summary
Judgment are denied and the proceeding is remanded
to the Regional Director for further appropriate action.
MEMBER OVIATT, dissenting.
Finding no material issue of fact that would warrant
sending this case to a hearing, I would consider at this
time the merits of the Union’s requests for the three
supervisors’ attendance records. Because the General
Counsel has not established the relevance of the re-
quests, which concern persons who are not in the unit,
I would grant the Respondent’s Motion for Summary
Judgment and dismiss the complaint. I would deny the
General Counsel’s Motion for Summary Judgment ac-
cordingly.
The complaint in this case alleges, among other
things, that the Union requested, and the Respondent
refused to supply, the attendance records of three su-
pervisors: Kathleen Bennett, Mark Shetter, and Thom-
as Murray. The specific reasons for the Union’s need-
255POSTAL SERVICE
1 Exh. G attached to the General Counsel’s Motion for Summary
Judgment informs us that the grievance involved employee R.
Loichle’s being ‘‘disciplined on attendance.’’
2 The Respondent’s papers also reveal that Bennett, who super-
vised employee Loichle, was the one responsible for Loichle’s sus-
pension for attendance problems.
3 If we cannot tell at this point in the case whether the Union had
more than a mere suspicion, one may fairly ask how the Respondent
was supposed to have known and determined its legal obligation.
ing this information are left to the complaint reader’s
imagination. In the most general of ways, the com-
plaint states only that the supervisors’ attendance
records were ‘‘necessary for, and relevant to, the
Union’s performance of its function as exclusive bar-
gaining representative.’’ Although admitting the factual
allegations of the complaint, the Respondent’s answer
denies the above-quoted legal conclusion. As one of its
affirmative defenses, the answer avers that the com-
plaint fails to state a claim for which relief can be
granted.
In his response to the Board’s Supplemental Notice
to Show Cause, the General Counsel continues to leave
the Board pretty much at sea as to the Union’s need
for this material. He comments vaguely that the re-
quest for the records ‘‘arose in the context of employ-
ees’ grievances involving attendance [Exhs. A and
B].’’ Exhibit A is a step 2 grievance appeal form al-
leging that Supervisor Bennett’s attendance records are
‘‘needed to process a grievance.’’1 Exhibit B is a form
memorandum from a union representative to manage-
ment requesting 2 years of Supervisor Murray’s attend-
ance records ‘‘to determine if discipline is even-handed
between management and craft.’’ Nothing is said in ei-
ther of these exhibits about the need for Supervisor
Shetter’s attendance records. He apparently got lost in
the shuffle.
We learn from the Respondent’s papers filed in re-
sponse to the Board’s Supplemental Notice to Show
Cause that the Union’s basis for seeking Supervisor
Bennett’s record2 was that it had ‘‘reason to believe
that Bennett’s attendance record is suspect’’ and that
this would show disparate treatment between employ-
ees and supervisors. The basis for the Union’s ‘‘be-
lief’’ remains a mystery. According to Superintendent
Wartel’s affidavit, the Union asked for Murray’s and
Shetter’s records just to determine whether discipline
was ‘‘even-handed between management and craft,
without offering specifics’’ and without relating the re-
quest to ‘‘any particular grievance,’’ either already
filed or that was under consideration for filing. None
of this is denied by the General Counsel who, in
agreement for once with the Respondent, advises us
that there is no genuine issue as to any material fact.
Not to be deterred by any understanding of the par-
ties, my colleagues deny the parties’ Motions for Sum-
mary Judgment on the ground that they raise genuine
issues of material fact. Perhaps inspired by the obscu-
rity of the complaint, the majority leaves me (and the
parties, as well) pretty much in the dark as to just what
are those factual issues. Thus, my colleagues contend,
in essence, that when the General Counsel alleges that
the attendance records are relevant, the Respondent de-
nies that they are relevant, and, based on the papers,
the Board cannot discern whether or not they are rel-
evant, this creates a factual issue warranting an evi-
dentiary hearing. Relevance, however, is not a question
of fact, but of law. See, e.g., Home Insurance Co. v.
Ballenger Corp., 74 F.R.D. 93, 101–102 (N.D. Ga.
1977) (court finds that general allegation of relevancy
of certain files does not establish their relevancy, and
discovery not permitted); Lynch v. Merrell-National
Laboratories, 646 F.Supp. 856, 864–866
(D.Mass.1986), affd. 830 F.2d 1190 (1st Cir. 1987);
Shape of Things To Come, Inc. v. Kane County, 588
F.Supp. 1192, 1193 (N.D.Ill.1984). Thus, the Board
may decide relevancy questions upon the undisputed
underlying facts, and no evidentiary hearing is nec-
essary.
In this case, there are no disputed underlying facts
because, as I will show, the General Counsel has not
backed up his claim of relevance with any facts that
would justify such a claim. Hence, there is nothing to
send to a hearing. In fact, my colleagues acknowledge
as much when they admit that they cannot decide with-
out a hearing whether the Union had ‘‘more than a
mere suspicion’’ that the information was relevant.
(See majority opinion fn. 1, supra.)3 The charge al-
leges, however, only the Union’s belief that Bennett’s
record was suspect—not more than that. Even if at a
hearing the General Counsel proved that suspicion, my
colleagues agree that this would not be enough to re-
quire turning over the attendance records. By, in effect,
substituting an allegation—‘‘more than a mere sus-
picion’’—that does not appear in the complaint, my
colleagues attempt to find a disputed factual issue that
simply is not there.
Where, as here, the General Counsel has not alleged
in his complaint sufficient facts at the least to make
out some, if not a facially valid, showing of relevance,
the Board should proceed, as I would do, to find the
complaint insufficient as a matter of law. To do other-
wise, like the majority, rewards the General Counsel
for putting no facts in his complaint to justify his
claim of relevance, and encourages similar loose plead-
ing in the future. That approach is not consonant with
what I understand to be fair notice pleading (particu-
larly, as my colleagues are aware (see majority opinion
fn. 3, supra), in the absence of this Agency’s providing
for prehearing discovery) and is thus unwise public
policy. For these reasons, I prefer to decide the parties’
motions on their papers, and I shall now do so.
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See Postal Service, 301 NLRB 709 (1991).
It is well established that a union’s request for infor-
mation relating to persons outside the bargaining unit
requires a special demonstration of relevance. E. I. du
Pont & Co., 268 NLRB 1031 (1984); Amphlett Print-
ing Co., 258 NLRB 86 (1981); and Leland Stanford
Junior University, 262 NLRB 136 (1982), enfd. 715
F.2d 473 (9th Cir. 1983). The union must show that
it has a reasonable basis for requesting the information.
NLRB v. Leonard B. Herbert, Jr & Co., 696 F.2d
1120, 1124 (5th Cir. 1983); Blue Diamond Co., 295
NLRB 1007 (1989). What constitutes a reasonable
basis obviously depends on the circumstances of each
case. San Diego Newspaper Guild Local 95 v. NLRB,
548 F.2d 863, 867–868 (9th Cir. 1977); Curtis-Wright
Corp. v. NLRB, 347 F.2d 61, 67 (3d Cir. 1965). But
one thing is certain: the facts must establish more than
a mere suspicion of possible relevance for the union to
be entitled to information pertaining to nonunit em-
ployees. Sheraton Hartford Hotel, 289 NLRB 463, 464
(1985). Further, the required showing must be more
than a mere concoction of some general theory that at-
tempts to explain how the information would be useful
to determine whether the employer has committed
some unknown contract violation; otherwise, the union
would have unlimited access to any data in the em-
ployer’s possession. Southern Nevada Builders Assn.,
274 NLRB 350, 351 (1985), and cases cited there.
Even assuming for argument’s sake that Supervisor
Bennett’s attendance record, if actually poor, might be
relevant to the processing of the Loichle grievance,4 I
find that the Union’s case for needing Bennett’s record
is legally unsupportable. Stating, as does the Union,
that someone’s attendance record is ‘‘suspect’’ tells me
nothing about that attendance record that would justify
the assumption that it is in fact poor, or even that it
is arguably poor. The Union’s suspicion does not es-
tablish the record’s relevance. See Sheraton Hartford
Hotel, supra. In fact, all the Union’s information re-
quest does is raise the specter of a fishing expedition,
perhaps in retribution for Bennett’s having disciplined
Loichle. I prefer to ‘‘cut bait.’’
The Union’s requests for Shetter’s and Murray’s at-
tendance records are even farther afield. The requests
relate to no particular grievance or dispute over an in-
terpretation of the contract, or to the enforcement of
the contract, and the Union does not contend the infor-
mation is necessary for upcoming contract negotia-
tions. We are told instead that the records are nec-
essary to determine whether discipline is ‘‘even-hand-
ed.’’ I note that there is not even an allegation that
Shetter and Murray have bad attendance records for
which they have not been properly disciplined. More
to the point, although it may be good management
practice in some circumstances, the General Counsel
has not referred us to any rule of the Respondent or
of law requiring even-handedness in the treatment of
supervisors and employees that would justify the
Union’s interest in supervisors’ attendance records,
poor or otherwise. Plainly, their relevance has not been
established in this case. See Southern Nevada Builders
Assn., supra.
I would find that the Respondent is entitled to sum-
mary judgment as a matter of law. Accordingly, I
would deny the General Counsel’s Motion for Sum-
mary Judgment.