Postal Service

National Labor Relations Board - Board Decisions

Aug 27, 1996

321 N.L.R.B. 1199 (N.L.R.B. 1996)

1199
321 NLRB No. 164
UNITED STATES POSTAL SERVICE
1 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996). 1 All dates are for 1995 unless otherwise stated.
United States Postal Service and American Postal
Workers Union, Local 5188, AFL–CIO. Case
16–CA–17196(P)
August 27, 1996
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND FOX
On March 25, 1996, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order, as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified1 and orders that the Respondent, United
States Postal Service, Lake Jackson, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, as modified.
1. Substitute the following for paragraphs 2(b) and
(c).
‘‘(b) Within 14 days after service by the Region,
post at its facility at Lake Jackson, Texas, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 16, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since February 10, 1995.
‘‘(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.’’
Olivia Boullt, Esq., for the General Counsel.
Thomas H. Pigford, Esq. (U.S. Postal Service), of Memphis,
Tennessee, for the Respondent.
Alan S. Harrell, Vice President, Local 5188, of Lake Jack-
son, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
refusal to bargain case. The Government contends that, under
the National Labor Relations Act, 29 U.S.C. § 158(a)(5), the
U.S. Postal Service must comply with the Union’s blanket
request for copies (relevant to a grievance) of the personnel
files (exclusive of medical records) of two employees (Dawn
Hamilton and Bonnie Powell) because such production is
permitted under the ‘‘routine use’’ exception of the Privacy
Act, 5 U.S.C. § 552a(b)(3), where the Postal Service has
made no effort to classify specific items as confidential. Op-
posing, the Postal Service contends that a blanket request for
the entire personnel files (excluding medical records) is too
broad to fit within the ‘‘routine use’’ exception, and there-
fore, particularly when the Postal Service offered limited dis-
closure if the Union would name specific items, the Privacy
Act prohibits the Postal Service from granting the Union’s
overbroad request to disclose such personnel records. Finding
for the Government, I order the Postal Service to furnish the
requested copies to the Union.
I presided at this 1-day trial in Houston, Texas, on August
24, 1995, pursuant to the May 31, 1995 complaint and notice
of hearing (complaint) issued by the General Counsel of the
National Labor Relations Board, through the Regional Direc-
tor for Region 16. The complaint is based on a charge filed
February 10, 1995, by American Postal Workers Union,
Local 5188, AFL–CIO (Union, Local 5188, or Charging
Party) against United States Postal Service (Respondent,
Postal, Postal Service, or USPS). The pleadings establish,
and I find, that the Board has jurisdiction over Respondent
in this matter by virtue of Section 1209 of the Postal Reorga-
nization Act, and that the Union is a statutory labor organiza-
tion. The postal facility involved here is Respondent’s post
office at Lake Jackson, Texas.
Complaint paragraph 10 alleges that, since February 7,
1995,1 the Union, by letter, ‘‘has requested that Respondent
furnish a copy of the personnel files for employees Bonnie
Powell and Dawn Hamilton exclusive of medical records.’’
Respondent admits. Complaint paragraph 11 alleges that the
information requested by the Union is necessary for and rel-
evant to the Union’s performance of the duties as the exclu-
sive collective-bargaining representative of the unit. Postal
denies. Complaint paragraph 12 alleges that, since about Feb-
ruary 7, 1995, Respondent Postal, by and through its super-
intendent of postal operations, M.C. Kelly, ‘‘has failed and
refused, and continues to fail and refuse, to furnish to the
Union the information requested as described above in para-
graphs 10 and 11.’’ Postal denies. The refusal allegedly vio-
lates Section 8(a)(5) of the Act. Postal also denies that alle-
gation.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 References to the one-volume transcript of testimony are by vol-
ume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s and R. Exh. for those of Respondent USPS.
filed by the General Counsel and the Postal Service, I make
these findings and conclusions.
FINDINGS OF FACT
A. Background
1. Facts mostly undisputed
After calling Alan S. Harrell, the Union’s steward, the
General Counsel rested. (1:149.) Postal Service called Donna
H. Kinsel, a senior labor relations specialist for Postal Serv-
ice’s Houston District, and Myron Charles Kelly, a customer
service supervisor at Lake Jackson, and rested. (1:225–226.)
Kinsel gave general information, while Kelly testified as to
the specific events as Harrell did for the General Counsel.
There was no rebuttal stage. The facts are mostly undisputed.
Perhaps the only disputed factual item is whether Kelly gave
Harrell certain sanitized copies of some Form 50s. As I de-
scribe later, I credit Kelly that he did so, and I disbelieve
Harrell’s denial.
2. The parties
As established by the pleadings, since 1971 the American
Postal Workers Union, AFL–CIO (APWU), has been the ex-
clusive collective-bargaining representative for employees in
the following bargaining unit at Respondent’s Lake Jackson
facility:
All maintenance employees, special delivery employees,
motor vehicle employees and postal clerks, but exclud-
ing all other employees, guards and supervisors as de-
fined in the Act.
Since 1971, I find, Postal Service has recognized the
APWU as the exclusive bargaining representative for the
unit’s employees, and this recognition has been embodied in
successive collective-bargaining agreements (CBAs). The
most recent CBA, or contract, was effective initially, by its
terms, from June 12, 1991, through November 20, 1994.
(G.C. Exh. 5 at 219.)2 The parties stipulated that the contract
has been extended and remains in effect. (1:51–52.) The
pleadings also establish, and I find, that at all times since
1971, based on Section 9(a) of the Act, the APWU has been
the exclusive bargaining representative of the unit. (Com-
plaint paragraph 8, which the Postal Service’s answer admits,
names the National Association of Letter Carriers as the ex-
clusive bargaining representative. In view of the other admit-
ted allegations, and the record, including the recognition
clause of the contract (G.C. Exh. 5 at 1), I find that reference
to NALC was inadvertent, and that the intended allegation,
understood by the Postal Service, was to APWU.)
As clarified at the beginning of the trial (1:8–9), Postal
Service admits, for the purposes of this proceeding, the com-
plaint paragraph 9 allegation that at all material times the
Union (Local 5188) has been acting as APWU’s agent re-
specting employees in the Lake Jackson bargaining unit.
3. The underlying dispute
Dawn Hamilton and Bonnie Powell are part-time flexible
(PTF) clerks at Lake Jackson. (1:28; G.C. Exh. 5 at 15.)
Hamilton has more seniority at Lake Jackson than does Pow-
ell. (1:148, 191.) However, as Supervisor Kelly testified, se-
niority is not considered by management in making job as-
signments to PTFs because, as PTFs are not regular career
employees under the contract, management is not restricted
by seniority in making job assignments. (1:191–193.) The
underlying dispute here pertains to whether management may
choose Powell over Hamilton for assignment to relief win-
dow clerk duties. At the time of events here, a 1994 griev-
ance (number 5188–943, or simply, 943) was pending arbi-
tration over an actual assignment of Powell, rather than the
more senior Hamilton, to relief window clerk duties. (1:28,
135–136.) Later, it was determined by management that
training for such duties was required, for legal reasons, to
protect the Postal Service. (1:223–225.) Management then
scheduled Powell rather than Hamilton for that training, with
the training to begin in early February 1995. (1:215–216.)
The job assignment dispute is the root source of the current
dispute. (1:121–122.)
4. The current dispute
a. Grievances filed
(1) Grievance 952—copies of personnel files
After conferring with Hamilton in early February 1995,
Union Steward Harrell considered filing a grievance over the
February 1995 training assignment. (1:27–29.) To facilitate
the Union’s chances for a successful grievance, on February
7, 1995, Harrell submitted a written request, dated February
6, requesting copies of the official personnel files (OPFs,
1:125), excluding medical records, of Powell and Hamilton.
(G.C. Exh. 2; 1:26, 185.) The request gives no reason for
this blanket request other than, as stated on the preprinted
form, that the copies are requested so that the Union may
‘‘identify whether a grievance exists and, if so,’’ to enable
the Union to determine the relevancy of the documents to the
grievance.
Later that day, after conferring with the local postmaster,
Michael Heitmann (who apparently conferred, at some point
that day, with Donna Kinsel (1:153–154), Kelly told Harrell
that Kelly could not furnish copies of the personnel files, but
that (as Kelly wrote on the bottom of the request form which
he returned to Harrell) an employee could review her person-
nel file with the steward present. (1:186, 197–199, 211–213,
217.) Harrell said that was unacceptable and expressed his
view that he had a right to copies of the entire files, less the
medical records. (1:30, 186.) Harrell never explained why he
needed copies of the entire files, nor did Kelly say anything
about confidential material. Neither, apparently, did Kelly
mention the Privacy Act. However, Harrell is aware that the
Privacy Act applies to Postal Service and covers release of
official personnel files. (1:143.) Kelly acknowledges (1:215–
217) that he assumed the request pertained to the 1994 griev-
ance and to the February 1995 training assignment. Even so,
he did not review the personnel files to ascertain relevancy
because ‘‘we do not give copies of personnel files out.’’
(1:217–218.)
1201UNITED STATES POSTAL SERVICE
The next day, February 8, Harrell filed a grievance, oral
at Step 1, but which became grievance 5188–952 (952, here-
in), by which the Union protested the ‘‘Refusal to provide
information necessary to file grievances.’’ (G.C. Exh. 3.) Su-
pervisor Kelly denied the Step-1 grievance on the same basis
that he had denied the request, and Harrell again expressed
his view that he had a right to copies of the entire files, less
the medical records. (1:31–35.) Again, neither explained the
basis for his position. The Union appealed to Step 2. (G.C.
Exh. 3.) At Step 2, held February 15, Harrell expressed his
same position, that he was entitled to the copies as requested.
Postmaster Heitmann said that Postal Service was not obli-
gated to furnish entire personnel files and (now opening the
door a bit) stated that Harrell would have to be more spe-
cific. (1:41–42.) In the absence of specifics from Harrell,
Heitmann denied the grievance, and followed up with a letter
to Harrell. After an introductory paragraph, the text states
(G.C. Exh. 3 at 2):
Your request [G.C. Exh. 2] was for the copies of the
personnel folders for PTF Bonnie Powell and PTF
Dawn Hamilton. Supr. Kelly informed you that an em-
ployee would be allowed to review their personnel fold-
ers in your presence if requested by the employee.
In our Step II meeting you informed me that the only
documentation that you would accept would be com-
plete copies of Ms. Powell and Ms. Hamilton’s person-
nel folders. You were informed that if you would be
more specific in what relevant documentation you wish
to review it would be made available to you. Such doc-
umentation could consist of but not limited to, Training
Records etc. Art. 17.3 of the National Agreement gives
you the right to review records necessary to process a
grievance or determine if a grievance exists. If you will
be more specific in what records you require your re-
quest will not be unreasonably denied.
After reviewing all facts of this case, I can find no
violation of the National Agreement. The grievance is
therefore denied.
The Union appealed to Step 3. (G.C. Exh. 4.) In its Step-
3 appeal, the Union, in a two-page attachment containing its
position statement, debates certain points, such as whether it
had been or needed to be specific. Finally, in the penultimate
paragraph, number 5, the Union writes (G.C. Exh. 4, empha-
sis added):
5. The Union’s informational request was made in good
faith. The relevancy will be shown in Grievance
#5188953 which follows. [See the next topic.]. Steps 1
and 2 of Grievance #5188953 have been held, despite
the Union’s being crippled by the lack of information
necessary to process that grievance.
The Union’s Step-3 appeal was denied by a document
which was not offered in evidence. (1:46–47.) The grievance
procedure normally ends, before arbitration, at Step 3 (1:38),
and grievance 952 currently is pending arbitration. (1:46.)
(2) Grievance 953—window training
In the meantime, the Union filed grievance 5188–953
(953, herein). This is the ‘‘Hamilton’’ grievance (1:36, 48,
56, 95–96, 138), or the ‘‘core’’ grievance (1:129, 138, 145),
as Harrell alternatively describes it, or even the ‘‘training’’
grievance. Although referenced as ‘‘Seniority,’’ the focus of
the ‘‘core’’ grievance protests the February 1995 window
training given to PTF Powell rather than to PTF Hamilton.
At Step 1, held February 13, Supervisor Kelly denied the
training grievance (the ‘‘Hamilton’’ or ‘‘core’’ grievance).
(1:36, 47–48, 55–56, 191, 209–210.) The Union appealed to
Step 2 (G.C. Exh. 6), which was denied in part because the
1994 grievance is pending arbitration. (G.C. Exh. 7.) The
Union appealed Postmaster Heitmann’s denial to Step 3
(G.C. Exh. 8), and that appeal was denied. (1:91.) The
APWU decided not to proceed to arbitration on grievance
953, and that ‘‘core’’ grievance, as Harrell describes (1:91),
is ‘‘dead.’’
As Harrell asserts (1:77–79), and Kelly acknowledges
(1:219), at Step 1 of the ‘‘core’’ grievance Harrell read his
entire six-page position statement (G.C. Exh. 9) to Kelly, and
then supplied Kelly with a copy of the statement. Harrell’s
postion statement is typed single space, and except for a cou-
ple of short pages, it utilizes the full page. After reciting a
history of events, starting in 1993, Harrell’s statement
reaches, at page 3, the Union’s argument section. Harrell
there advances three grounds: (1) The Rule of Seniority
(under which he discusses his contractual argument); (2) The
Stated Policies of the USPS on Training and Development
(where, as the title suggests, Harrell cites and discusses var-
ious Postal Service policies found in training and labor rela-
tions manuals); and (3) The Rule of Reasonableness.
Under the last ground cited, Harrell has three lettered para-
graphs. In paragraph A he summarizes the claimed superior
training, experience, and capability of PTF Dawn Hamilton.
In paragraph B he describes the asserted deficiencies of PTF
Bonnie Powell. Paragraph C reads (as elsewhere in quoted
material, I correct any typos which are not material) (G.C.
Exh. 9 at 5):
C. The Union has sought to find some reasonable ex-
planation for Management’s actions. It tried to find an
answer in Grievance #5188943 [the 1994 grievance
pending arbitration] and has tried to find one in this
Grievance of Mrs. Hamilton. Yet the Union can find no
logical and sound business reason to ‘‘promote’’ Mrs.
Powell over Mrs. Hamilton. The Union, however, has
found instead allegations of favoritism, cronyism, man-
agerial stubbornness and deal making. The Union also
finds from Management’s refusal to provide the Union
with information to process this grievance, an appear-
ance of impropriety, an attempt to stonewall the Union,
and an attempt to thwart Mrs. Hamilton from filing this
grievance.
The Union’s papers on appeal to Step 2 (G.C. Exh. 6)
added to the earlier papers by bringing events up through
Step 1. (1:57.) Harrell’s three grounds also are repeated. At
the Step-2 meeting of February 24 (1:56), Harrell met with
Postmaster Heitmann. (1:84.) If anything, Harrell presented
his position in more detail. (1:85.) Respecting the request for
copies of the personnel files, Heitmann said that Postal Serv-
ice would not furnish copies of every document generally,
and that Harrell was simply on a ‘‘fishing’’ expedition for
information. Harrell reiterated his position that he had a right
to copies of the entire personnel files, less medical records.
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1:85.) At the Step-1 meeting with Kelly, and at the Step-
2 meeting with Heitmann, there was no mention by manage-
ment of confidentiality or of the Privacy Act. (1:85–86.)
(3) Grievance 954—copies of supporting documents
The final grievance is 5188–954 (954, herein). Based on
a refusal to provide information, grievance 954 (G.C. Exh.
10) focuses on obtaining ‘‘Copies of all documents or
records which refer to or reflect the factors causing you to
deny the above referenced Grievance.’’ (This is a reference
to the ‘‘Hamilton’’ or training grievance, grievance 953,
G.C. Exhs 6, 7, 8.) (G.C. Exh. 10 at 3; 1:110–111.) The
Union wanted to see Respondent’s support for Kelly’s ref-
erences, at the Step-1 denial of the ‘‘Hamilton’’ or ‘‘core’’
grievance, to Powell’s experience, training, and efficiency.
(1:111.) Harrell concedes that he had no specific documents
in mind, but that he wanted copies of whatever documents
Kelly had in mind. (1:118–121.) Denying grievance 954, Su-
pervisor Kelly told Harrell that he had to be more specific.
(1:112.) Harrell submitted a February 15 letter (G.C. Exh. 10
at 4) requesting reconsideration, but his request was rejected.
(1:112.) The Step-2 appeal (G.C. Exh. 10; 1:115) was denied
by Postmaster Heitmann’s decision letter. (G.C. Exh. 11) of
March 9 (1:113, 116.) Heitmann’s March 9 denial letter
states, in relevant part (G.C. Exh. 11):
Management must again require that you be more
specific in your request as it would be next to impos-
sible to provide you with a copy of every document
used, for example: The National Agreement, acquired
knowledge etc.
After reviewing all facts of this case, I can find no
violation of the National Agreement. The grievance is
therefore denied.
The Union’s appeal to Step 3 was denied (no documents
in evidence), and grievance 954 is pending arbitration.
(1:113, 135–136.) Harrell testified that he never received any
documents pursuant to the request which is the subject of
grievance 954. (1:117.)
b. Specific requests granted
At times during the grievance steps, Harrell requested spe-
cific items, and Postal Service granted these requests. Thus,
by his written request (G.C. Exh. 8 at 4) dated February 23,
Harrell requested copies of the clerks’ schedule for the week
of February 25 through March 3. (1:67. Harrell admits that
Postal Service supplied that document. (1:90, 132; G.C. Exh.
8 at 5.)
According to Harrell, he never specifically asked for cer-
tain training documents. (1:86.) Nevertheless, he concedes
that, at the Step-2 meeting on the training, or ‘‘Hamilton,’’
grievance, Postmaster Heitmann tendered him two documents
showing training for Powell. (1:67, 86, 132–133; G.C. Exh.
8 at 6–7.) Harrell acknowledges that Heitmann told him that
if Harrell would name documents, Heitmann would try to
furnish them. (1:133–134, 143.)
Although it is not certain that Harrell requested certain
items during the investigation of the instant unfair labor prac-
tice charge, Supervisor Kelly furnished them to Harrell on
the report (from a paralegal in Postal Service’s legal office)
that the specific items were in question. Thus, to show se-
niority dates and related items, Kelly gave Harrell sanitized
copies of the Form 50s (personal and job history data forms,
as shown by R. Exh. 3, 1:199–200) of Powell and Hamilton.
(1:186–191, 202–209.) To the extent Harrell’s denial of ever
receiving anything other than the clerks’ schedule and the
training records (1:86–88), and his denial of ever receiving
the Form 50s (1:89), states that Kelly did not give him the
sanitized versions of the Form 50s, I do not credit Harrell.
Crediting Kelly, I find that Kelly furnished the sanitized
Form 50s to Harrell as Kelly described.
According to Harrell, he never requested any disciplinary
records of either Powell or of Hamilton. (1:134.) Neverthe-
less, Harrell admits that, if ever given copies of the files, one
item he will look for will be records of any disciplinary ac-
tion. (1:94.) On the report that awards and discipline were
in question during the charge investigation, Kelly, after
searching the personnel files, told Harrell that there were no
certificates of achievement and no records of disciplinary ac-
tions. (1:195–196.)
B. Discussion
1. The regulatory scheme
Congress has placed the Postal Service under the jurisdic-
tion of the Board, to the extent not inconsistant with the
Postal Reorganization Act (PRA), 39 U.S.C. § 1209(a). Con-
gress has also, through the PRA, at 39 U.S.C. § 410(b)(1),
subjected Postal Service to the Privacy Act of 1974, 5 U.S.C.
§ 552a.
If the Respondent here were a private sector employer, not
subject to the Privacy Act, and with a CBA such as exists
here, the proper request of the Union, as the exclusive bar-
gaining representative, might well have to be honored. See
Bloomsburg Craftsmen, 276 NLRB 400 (1985). But where
files, such as personnel files, contain confidential information
as well as information which is not confidential, only a blan-
ket refusal by the employer constitutes a violation. Barcardi
Corp., 296 NLRB 1220, 1224 (1989). Even Postal Service’s
initial response, restrictive as it was, was not a blanket re-
fusal. And thereafter, Postal Service began asking Harrell to
be specific, assuring him that it would seek to accommodate
his request. Then, at the February 13 Step-1 meeting on the
‘‘core’’ grievance, Harrell first set forth in detail his three
grounds of need and of relevancy.
The Privacy Act contains an exception, pertinent here, au-
thorizing disclosures for ‘‘routine use.’’ 5 U.S.C.
§ 552a(b)(3). The term ‘‘routine use’’ is defined, 5 U.S.C.
§ 552a(a)(7), as a use ‘‘for a purpose which is compatible
with the purpose for which it was collected.’’ (Emphasis
added.) Postal Service v. NALC, 9 F.3d 138, 140 (D.C. Cir.
1993).
Pursuant to the notice requirements of the Privacy Act,
Postal Service has published a list of routine uses. That list
includes one, Routine Use M, which specifically applies to
labor organizations. Routine Use M provides (R. Exh. 1 at
internal 334, August 1994, section C,2,m):
m. Disclosure to Labor Organizations
Pursuant to the National Labor Relations Act, records
from this system may be furnished to a labor organiza-
1203UNITED STATES POSTAL SERVICE
3 Oddly, at this point the words ‘‘upon its request’’ may have been
omitted inadvertently from this version of Routine Use M. See U.S.
Postal Service v. NALC, id. at 140, and Postal Service, 301 NLRB
709, 713 (1991).
tion3 when needed [emphasis added] by that organiza-
tion to perform properly its duties as the collective-bar-
gaining representative of postal employees in an appro-
priate bargaining unit.
Sections 353.325d and 353.326 of Postal Service’s own
Administrative Support Manual (R. Exh. 2 at internal 148;
1:166–167) remind management that disclosure to collective-
bargaining agents is a routine use exception. When in doubt,
a manager is to ‘‘obtain the advice of the chief field coun-
sel.’’ There is even an internal accounting procedure estab-
lished for disclosure to bargaining representatives of informa-
tion in OPFs. (R. Exh. 2 at internal 145, section 353.313a.)
2. ‘‘Rule of Reason’’ or a ‘‘Fishing’’ expedition?
Harrell explains his request for copies of the entire person-
nel files (minus medical records) as being what he needs to
analyze Postal Service’s decision process in order to deter-
mine whether Postal Service made ‘‘the most rational
choice.’’ Harrell describes this as the ‘‘rule of reason’’
(1:48–49), and he asserts that the CBA allows for such an
approach (1:97, 108) even though (1:140) the three-word
term is not itself specified in the contract. Harrell concedes
that, in effect, this would be ‘‘second-guessing’’ manage-
ment’s decision process. (1:97.) As noted above, Harrell ac-
knowledges (1:85) that, at the February 24 Step-2 meeting of
the ‘‘core’’ grievance, Postmaster Heitmann protested that
Harrell was simply on a ‘‘fishing expedition for informa-
tion.’’ In fact, Harrell’s own description of his purpose dem-
onstrates that a fishing expedition is exactly what he is seek-
ing. Quite simply, Harrell is seeking production for discov-
ery. Thus, Harrell testified that, on receiving copies of the
personnel files (less the medical records), he would look for
anything that would support the Union’s position that PTF
Hamilton would be the superior choice over PTF Powell.
(1:42–43.) Harrell wants to be able to argue that he has re-
viewed the (copies of) the personnel files, and that the files
do not support management’s decision. (1:94–95.)
Throughout all steps of the grievance procedure, Harrell
has insisted that the Union has the right to receive copies of
the entire personnel files, excluding medical records. (1:35,
42, 85.) Postal Service has never offered to furnish copies of
the personnel files without copies of any matters deemed by
management to be confidential. That type offer has not been
made. (1:92.) In fact, management did not expressly state
that it was not furnishing copies of the files because of con-
fidentiality or because of the Privacy Act. (1:85–86.) How-
ever, such failure to mention seems irrelevant if the Privacy
Act applies, and, in any event, Harrell is aware that the Pri-
vacy Act applies to the Postal Service and covers the release
of OPFs. (1:143) Although it would not appear that, for this
case, grievance 952 (copies of personnel files) or 954 (copies
of supporting documents) needs to rest on an underlying
grievance (recall that grievance 953, the training assignment,
no longer exists), the 1994 grievance is still pending arbitra-
tion, and that grievance involves the same two employees.
(1:92.)
3. Conclusions
The question under the Privacy Act issue, I find, is wheth-
er the Union ‘‘needed’’ (Routine Use M) the copies of the
OPFs of PTFs Powell and Hamilton. That is similar to ask-
ing whether the request was for ‘‘relevant’’ items. As the
Union, at least arguably under the contract may grieve on the
basis that a more logical choice was available to manage-
ment, it seems clear that the Union ‘‘needed’’ the copies of
the official personnel files (OPFs) of PTFs Powell and Ham-
ilton. I so find. Always casting the burden on the Union to
name specific documents, management never made any effort
to accommodate both its interests and that of the Union by
assuming the burden of classifying specific items, if any, as
confidential. Postal Service had that burden and also the bur-
den to negotiate with the Union about such confidential clas-
sification in an effort to balance the interests of both the
Postal Service and the Union. Postal Service, 309 NLRB
309, 312 (1992); Postal Service, 307 NLRB 429, 434 (1992).
Because Postal Service was not authorized by the Privacy
Act to withhold production of the documents generally, I
find, as alleged, that Respondent Postal Service violated 29
U.S.C. § 158(a)(5) when, on and after February 7, 1995, it
refused to supply to the Union, in accordance with the
Union’s written request dated February 6, 1995, copies (ex-
cluding medical records) of the OPFs of PTF clerks Bonnie
Powell and Dawn Hamilton. Postal Service, supra. Dept. of
Defense v. FLRA, 114 S.Ct. 1006 (1994), which did not
reach the ‘‘routine use’’ exception (see id. at 1018 fn. 3),
does not require a different result.
CONCLUSIONS OF LAW
1. At all times since about 1971, and based on Section
9(a) of the Act, the APWU has been the designated exclusive
collective-bargaining representative of the employees, at
Postal Service’s Lake Jackson, Texas facility, in the follow-
ing appropriate bargaining unit:
All maintenance employees, special delivery employees,
motor vehicle employees and postal clerks, but exclud-
ing all other employees, guards and supervisors as de-
fined in the Act.
2. At all material times, and for the purposes of this case,
APWU Local 5188 has been APWU’s agent for various pur-
poses, including administering the collective-bargaining
agreement, respecting employees in the bargaining unit.
3. Respondent U.S. Postal Service violated Section 8(a)(5)
and (1) of the Act on and after February 7, 1995, when it
refused to supply the Union copies (excluding medical
records) of the official personnel files (OPFs) of part-time
flexible (PTFs) clerks Bonnie Powell and Dawn Hamilton.
4. The unfair labor practices found affect commerce within
the meaning of 29 U.S.C. § 152(6) and (7).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, U.S. Postal Service, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union, Amer-
ican Postal Workers Union, Local 5188, AFL–CIO, by refus-
ing to furnish it with copies of the official personnel files
(OPFs), less medical records, of part-time flexible (PTF)
clerks Bonnie Powell and Dawn Hamilton.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish the Union with copies of the OPFs
of PTFs Bonnie Powell and Dawn Hamilton, less any medi-
cal data.
(b) Post at its facility in Lake Jackson, Texas, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
16, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain with the Union, American
Postal Workers Union, Local 5188, AFL–CIO as the exclu-
sive collective-bargaining representative of the Lake Jackson,
Texas employees in the following appropriate unit:
All maintenance employees, special delivery employees,
motor vehicle employees and postal clerks, but exclud-
ing all other employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, furnish the Union with copies of the
OPFs of PTFs Bonnie Powell and Dawn Hamilton, less any
medical data.
UNITED STATES POSTAL SERVICE