Postal Service

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 635 (N.L.R.B. 2000)

POSTAL SERVICE 635
United States Postal Service and American Postal
Workers Union Albany, NY Local 390, APWU,
AFL–CIO
United States Postal Service and Mid Hudson Area
Local, American Postal Workers Union, AFL–
CIO. Cases 3–CA–19545–1(P), 3–CA–19832(P), 3–
CA–20203(P), 3–CA–19856(P), and 3–CA–
20333(P)
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On December 31, 1997, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the judge’s
decision.
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 conclusions1 and to adopt
the recommended Order as modified.2
This consolidated case arises out of a dispute regarding
the obligations of the Respondent to respond to informa-
tion requests made by the Union. Over the course of sev-
eral months, between 1995 and 1996, the Union requested
from the Respondent various information which the Union
contended was necessary to process grievances. Each of
the Union’s requests either demanded an existing docu-
ment or expressly requested a response from the Respon-
dent. The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act by
refusing or otherwise failing to provide the requested in-
formation or by unnecessarily delaying its responses to the
Union’s requests. We agree with the judge that the Re-
spondent has violated Section 8(a)(5) and (1).

1 We find in agreement with the judge that the documents requested
in relation to the Szlamowicz grievance may be applicable to other
members of the bargaining unit as well, and are presumptively relevant.
The Respondent has not produced evidence to rebut that presumption,
and the Union is therefore entitled to the information requested. There-
fore we find that the issue is not moot.
Although he agrees with the judge that the Respondent violated the
Act by its delay in responding to some of the Union’s requests, Mem-
ber Hurtgen does not concur with the conclusion that the Respondent
violated the Act by failing to provide the other documents requested
with regard to the Szlamowicz grievance. In this regard, he notes that
the request was based solely on the Szlamowicz grievance. Since the
Szlamowicz grievance was resolved in favor of the grievant, the re-
quested documents are no longer relevant, and the matter is now moot.
2 We have modified the judge’s recommended Order to conform to
the requirements of Indian Hills Care Center, 321 NLRB 144 (1996),
as revised in Excel Container, Inc., 325 NLRB 17 (1997).
In adopting the judge’s Order we are not requiring that the Respon-
dent produce any documents which it knows the Union already has.
Thus, the Respondent is not required to supply the Union Supervisor
John Fuschino’s August 17, 1995 “investigative memorandum” with
regard to the alleged improper behavior by Supervisor George Guerin.
1. Supervisor Frank Appio’s attendance records
The Union requested copies of two forms related to at-
tendance (Forms 3971 and 3972) for Supervisor Frank
Appio for the preceding 12-month period, stating in its
request that it had reason to believe that the Respondent
was treating supervisors differently from “craft employ-
ees” with regard to attendance. The request was made in
the course of handling a grievance for bargaining unit
member Raymond Van Egghen, who had been issued a
warning letter because of his absences. The Respondent
offered to provide 6 months of Appio’s records, as 6
months was the period that the Respondent had reviewed
in determining to issue the warning letter to Van Egghen.
However, the Union insisted on obtaining the full 12
months of records requested. The Respondent provided no
records at all.
The judge found that the Respondent’s failure to supply
the requested information violated Section 8(a)(5) and (1)
of the Act because the Respondent had an obligation to
provide information pertaining to the alleged disparate
treatment between bargaining unit employees and supervi-
sory employees. He concluded that such information was
relevant because 1) both supervisors and bargaining unit
members are subject to the same “standards of behavior”
with regard to attendance; and 2) the Union’s request was
based upon factual information in its possession and not
mere suspicion. The judge rejected the Respondent’s con-
tention that the request was moot because the Van Egghen
grievance had been resolved.
The Respondent excepted on the grounds that the atten-
dance records were irrelevant to the Van Egghen griev-
ance. The Respondent contends that the Union failed to
provide objective facts to demonstrate that Supervisor
Appio had the same or similar attendance problems as Van
Egghen. Even if the requested information is relevant, the
Respondent argues, the Union is entitled to no more than 6
months of records, since that is the time period relied upon
in deciding to issue a warning letter to Van Egghen. Fi-
nally, the Respondent contends that the request for Ap-
pio’s attendance records is now moot, because the Van
Egghen grievance has been settled.
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 em-
ployees’ exclusive bargaining representative, including its
responsibilities related to processing grievances. GTE
California, Inc., 324 NLRB 424, 426 (1997); see generally
332 NLRB No. 62
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
Where, as here, the information sought concerns persons
such as supervisors who are outside the bargaining unit,
the union bears the burden of establishing the relevance of
the requested information. See United States Testing Co.,
324 NLRB 854, 859 (1997), rev. denied, enf. granted
160 F.3d 14 (D.C. Cir. 1998), rehearing en banc denied
(1999); Reiss Viking, 312 NLRB 622, 625 (1993).
The Board uses a broad, discovery-type standard in de-
termining relevance in information requests, including
those, like the instant case, for which a special demonstra-
tion of relevance is needed. Under that standard, even
potential or probable relevance is sufficient to give rise to
an employer’s obligation to provide information. United
States Testing, supra, at 859; Shoppers Food Warehouse,
315 NLRB 258, 259 (1994).
We find that the Union has satisfied its burden of estab-
lishing the relevance of Appio’s attendance records. The
judge found that the attendance rules applicable to Appio
were the same as those applicable to bargaining-unit
members. In addition, he concluded that the Union had
made its information request based upon objective evi-
dence of possible disparate treatment of bargaining unit
members in attendance matters. Appio’s frequent ab-
sences had been directly observed by union members, both
while he was a member of the bargaining unit and after he
became a supervisor. Persons currently under Appio’s
supervision observed that Appio was “out quite a bit” and
had a history of being out frequently. See Postal Service,
310 NLRB 701, 702 (1993) (supervisor information may
be relevant where both supervisors and unit employees are
subject to the same restrictions and union’s request is
based on more than “suspicion”); see also United States
Testing, supra, at 859 (a union satisfies its burden when it
demonstrates a reasonable belief supported by objective
evidence for requesting the information.).
The Union’s purpose in requesting Appio’s attendance
records was to determine whether Appio’s absences were
scheduled or unscheduled. That information would allow
the Union to evaluate whether there was disparate treat-
ment of supervisors and bargaining unit members with
regard to attendance. Appio’s records are clearly relevant
to this inquiry.
We also agree with the judge that the Respondent is ob-
ligated to provide the Union the requested attendance re-
cords for the entire 12-month period requested. The re-
cords are relevant under the Board’s broad discovery-like
standards. Moreover, the record shows that in other in-
stances management has issued warnings on the basis of
unscheduled absences over a 12-month period.
Finally, we affirm the judge’s conclusion that the Un-
ion’s request is not moot. In its written request for Ap-
pio’s records, the Union expressly stated that it had “rea-
son to believe that management is treating supervisor(s)
differently than [sic] craft employees concerning atten-
dance (unscheduled absences).” The concern with dispa-
rate treatment was reiterated in a later letter dated July 1,
1996 from Union Vice President Joseph Harden to the
Respondent. This request was relevant to all bargaining
unit members, and was not limited to Van Egghen. Con-
sequently, resolution of the Van Egghen grievance did not
obviate the need for the information.
2. Supervisor John Fuschino’s investigative report
We agree with the judge that the Respondent violated
Section 8(a)(5) and (1) by its negative response to the Un-
ion’s October 31 request for any investigative reports
made by Supervisor Frank Fuschino. The Fuschino report
addressed an incident that involved members of the bar-
gaining unit, and was presumptively relevant. See Calmat
Co., 331 NLRB No. 141 (2000). The Respondent was
therefore obligated either to produce the report or to pro-
vide the Union with some timely legitimate explanation
for its refusal. The Respondent did neither. Having re-
quested the Union to justify its October request in Novem-
ber, the Respondent advised the Union the following May
that it probably would not allow it to have a copy of the
report. We find the Respondent’s conduct inconsistent
with the obligation to bargain in good faith.
Unlike our dissenting colleague, we do not find it a de-
fense to our finding of a violation that, during the entire
period that the Respondent neither responded to the Un-
ion’s request nor produced the document, both the Union
and the Respondent were acting under a misapprehension:
both were unaware that the report at issue had already
been turned over to the Union as part of a response to an
earlier Union request. The relevant point, insofar as our
finding of violation is concerned,3 is that the Union was
unaware that it had the report and that the Respondent
neither produced the report again nor advised the Union
that it had previously provided a copy of the report. Be-
cause the Respondent made no timely appropriate re-
sponse to the Union’s request for a presumptively relevant
document, we find that the Respondent violated Section
8(a)(5) and (1) of the Act.4

3 We previously noted the remedial issue presented here. See fn. 2,
supra.
4 Member Hurtgen disagrees. The Respondent did not fail to reply
to the Union’s request. The Respondent told the Union that it was
unlikely that it would grant the request. As all parties now agree, the
information had already been provided to the Union at the time of the
Respondent’s reply. Based on the Respondent’s reply, it appears that
the replying official was unaware of this fact. The majority says that
the Union was also unaware that it had the information. In these cir-
cumstances, where there is a material mistake of fact, Member Hurtgen
POSTAL SERVICE 637
3. Lisa Lynch’s report
In the fall of 1995, Plant Manager Jim Thero asked EAP
Coordinator Lisa Lynch to conduct a “climate assessment”
of Tour III in the maintenance department. The request
was made in response to Lynch’s report to Thero that em-
ployees had complained to her about poor interpersonal
relationships and poor communication with George
Guerin, a supervisor on that shift. The assessment in-
volved the interviewing of Guerin and the employees un-
der his supervision.
The “climate assessments” that Lynch performs for the
Respondent include an evaluation of employee percep-
tions, a summary of those perceptions, and recommenda-
tions from employees to management officials. In inter-
viewing employees, Lynch seeks to obtain an understand-
ing of how the employees feel about working both with
one another and with their supervisors. Copies of the as-
sessments are provided to selected members of manage-
ment
The focus of the assessment is on the “interrelationships
with other employees and supervisors.” According to
Lynch, the climate assessments are not investigative re-
ports because the purpose of an assessment and the subse-
quent report is not to assess blame. Lynch does, however,
assure her interviewees of confidentiality.
The judge concluded that the Respondent was obligated
to provide Lynch’s report to the Union. He viewed the
Respondent’s claim regarding Lynch’s report as one of
confidentiality, but concluded that the claim was “pretex-
tual.” He also found that the claim was raised for the first
time at hearing, and was therefore untimely. The Respon-
dent excepts, asserting that the Lynch report is not subject
to disclosure because: 1) the report was not relevant; 2) the
report consisted of summaries of witness statements and
was therefore privileged; and 3) the report was “self-
evaluative,” and therefore privileged on that basis.
We find no merit in the Respondent’s arguments. The
results of Lynch’s “climate assessment” of Tour III under
Guerin’s supervision are relevant to the Union’s investiga-
tion of the allegations regarding Guerin’s treatment of
bargaining unit members. As noted above, the Board uses
a broad discovery-like standard to measure relevance. See
United States Testing, supra. Information related to bar-
gaining-unit members is presumptively relevant. Lynch’s
report contains data regarding unit members and their em-
ployment relationships, both among themselves and with
their supervisor, and therefore is presumptively relevant.
Neither can the Respondent find refuge in claims of
privilege. The Respondent contends that the material in

efore not witness statements.
believes that there was no violation. And, if there was, there is no need
for a remedial order.
the Lynch report consists of witness statements or summa-
ries of witness statements and is therefore privileged.
Generally, witness statements, at least those obtained
through an investigation of alleged employee misconduct,
are privileged from pre-arbitration disclosure. See An-
heuser-Busch, Inc., 237 NLRB 982 (1978) (general
obligation to honor requests for information does not
encompass the duty to furnish witness statements
themselves). However, Lynch expressly testified that her
climate assessment and subsequent report did not
constitute an investigation. Neither the purpose nor the
result of the report was related to any specifically
identified event or circumstance witnessed by the
interviewees. The interviewees were, in short, not
witnesses and the summaries of Lynch’s interviews with
them are ther
Even if the summary contained in Lynch’s report were
construed as a summary of witness statements, the Union
would be entitled to obtain the summary. See Pennsyl-
vania Power & Light Co., 301 NLRB 1104, 1106 (1991).
In Pennsylvania Power & Light Co., the employer relied
upon information from informants in conducting an inves-
tigation of employee drug use, which led to discipline and
discharge of those who tested positive for drugs. The un-
ion sought a list of the informants who supplied the infor-
mation that led to the investigation, as well as the state-
ments themselves, which the employer declined to pro-
vide. The Board found that the employer was not obli-
gated to identify the informants, but was obligated to pro-
vide a summary of the informants’ statements. Id.
The Respondent also casts the climate assessment as a
“self-evaluative” internal investigation for which it claims
privilege. We reject the claim here. The case law indi-
cates instances in which employers have been required
under Section 8(a)(5) to provide to unions data “compiled
voluntarily and for the employer’s own purposes.”
Asarco, Inc. v. NLRB, 805 F.2d 194, 198 (6th Cir. 1986).
The Board has addressed an employer’s refusal to produce
such internal documents by treating the employer’s claim
as one of confidentiality. The Board balances the union’s
need for the requested information against any “legitimate
and substantial confidentiality interests” of the employer.
Detroit Newspaper Agency, 317 NLRB 1071, 1074
(1995); see generally Detroit Edison Co. v. NLRB, 440
U.S. 301(1979).
There is no basis upon which to exclude the Lynch re-
port from disclosure as a “self-evaluative” internal report.
The mere fact that the employer generates an internal
document does not per se make the document immune
from disclosure. Detroit Newspaper Agency at 1073.
Moreover, to invoke the balancing test for confidential
information, which is the test applicable to such internal
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
documents, the employer must first prove its confidential-
ity claim, id. at 1074. This the Respondent has failed to
do.
Finally, the judge also rejected the Respondent’s possi-
ble claim of “confidentiality”5 because the Respondent did
not raise the issue until the hearing or seek to demonstrate
that the balance of interests weighed against disclosure.
Consequently, the judge found, and we agree, that the Re-
spondent is now estopped from asserting the confidential-
ity issue.
Assuming arguendo that the Respondent is not estopped
from asserting the confidentiality claim, the Respondent’s
claim must still fail.6 A party claiming confidentiality
must tell the union of its claim and bargain to seek ac-
commodation of its interests. See Minnesota Mining &
Mfg. Co., 261 NLRB 27 (1982). Here, the Respondent did
not advise the Union that it was declining to produce the
Lynch report for reasons of confidentiality. Neither did it
make any effort to approach the Union to bargain about
limiting the information provided in order to protect the
alleged confidentiality.
Accordingly, we adopt the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
refusing to provide the Union a copy of the Lynch report.
4. Union’s request for reasons why Dorothy Holveg’s ab-
sence documentation was insufficient under Employment
and Labor Manual
We agree with the judge, for the reasons set forth in his
decision, that the Respondent violated Section 8(a)(5) and
(1) by failing to direct the Union to section 513.364 of the
Employment and Labor Manual (ELM) and failing to ex-
plain why Dorothy Holveg’s absence documentation was
insufficient. We differ with our dissenting colleague on
this point for the following reasons.
The Union’s written request sought to learn all reasons
why the documentation that Dorothy Holveg had provided
for her absence “[did] not meet the criteria outlined in
ELM 513.” The Union was concerned that the Respon-
dent had rejected a medical excuse of a type that it previ-
ously had considered sufficient and that by demanding
more detail than Holveg’s physician’s statement that she
was incapacitated, the Respondent was improperly seeking
restricted information about her medical condition.

5 The Respondent asserts that, contrary to the judge, it “never made a
claim of confidentiality.” Rather, it contends, it claimed privilege
based on the fact that the Lynch report consisted of witness statements
and that it was a “self-evaluative” report. However, the Respondent
requests that, if the Board finds the report is relevant and not privileged,
the parties be required to engage in “accommodative bargaining” re-
garding the report. Inasmuch as we reject the Respondent’s claim of
privilege, we deny the request.
6 We agree with the judge, for the reasons set forth above, that the
Respondent’s possible claim of confidentiality is without merit.
Merely referring the Union to the entire text of ELM
513 is not, in our view, a good faith response to the Un-
ion’s request for an explanation why Holveg’s documenta-
tion was insufficient under ELM 513. At a minimum, the
Respondent needed to direct the Union to the particular
portion of ELM 513 on which Respondent relied and to
identify the alleged deficiencies of Holveg’s documenta-
tion by reference to that section. The Respondent did not
direct the Union to ELM 513.364, which states that “Nor-
mally, medical statements such as ‘under my care’ or ‘re-
ceived treatment’ are not acceptable evidence of incapaci-
tation to perform duties.” Nor did the Respondent explain
why a physician’s express statement that an employee is
incapacitated is not sufficient evidence of incapacitation.
By failing to make an appropriate response to the Union’s
request for relevant information, the Respondent violated
Section 8(a)(5) and (1) of the Act.7
5. Additional requests related to Holveg’s absence
On October 10, 1996, the Union requested a written ex-
planation as to 1) why Supervisor Ray Reilly contacted
Dorothy Holveg’s personal physician and 2) why Reilly
insisted that Holveg provide him a specific diagnosis and
prognosis of her medical condition. The judge concluded
that the Respondent violated Section 8(a)(5) and (1) by
delaying more than 4 months to respond to the Union’s
requests. Reilly testified that he responded orally to both
requests, providing the information to another steward.
However, the judge found that Reilly’s response in Febru-
ary 1997, covered only the first inquiry regarding his con-
tact with Holveg’s physician and did not address the sec-
ond request regarding Reilly’s demand for a diagnosis and
prognosis of Holveg’s medical condition. The Respondent
excepts, arguing that it had no duty to give the Union a
written explanation of its reasons for insisting on a specific
diagnosis and prognosis of Holveg’s medical condition,
since no such document existed.
We agree with the judge that the Respondent’s delay of
several months in responding to the Union’s inquiry vio-
lated Section 8(a)(5) and (1). Where relevant information
is requested, the employer is required to furnish it in a
timely fashion. Overnite Transportation Co., 330 NLRB
No. 184 (2000). The Respondent provided no explanation
which would justify the 4- or 5-month delay.
7 Member Hurtgen disagrees with his colleagues’ conclusion that the
Respondent violated the Act by simply advising the Union to see sec.
513 of the ELM when the Union asked why Dorothy Holveg’s absence
documentation did not meet the criteria of sec. 513 of the ELM. He
would not require the Respondent to point out “chapter and verse” of
the ELM. In his view, if the Union needed more information after
reading sec. 513, it could have asked the Respondent for a clarification.
Member Hurtgen does not view the obligation to supply information as
extending to the giving of one’s position on the merits.
POSTAL SERVICE 639
Likewise, the Respondent’s failure to respond at all to
the second inquiry as to why a prognosis and diagnosis
were demanded violated the Act.8 The Respondent could
not simply remain silent in the face of the Union’s request
for information. We therefore affirm the judge’s finding
that the Respondent’s failure to respond to the Union’s
request violated Section 8(a)(5) and (1) of the Act.
6. Union’s request for reason why Holveg was scheduled
to report for September 28, 1996, and not paid
Holveg was scheduled to work on September 28, 1996.
She reported to work, but was not paid for any time, de-
spite the fact that persons reporting for work are generally
guaranteed a minimum of two hours work. The Union
requested the reason why Holveg was scheduled to report
and not paid.
Reilly9 testified that he orally provided the information
requested, advising that necessary medical documentation
had not been received prior to the scheduled reporting
date, as required. Therefore he did not schedule Holveg to
report. O’Neill, on the other hand, testified that she re-
ceived no response at all from Reilly. The judge credited
O’Neill’s testimony and concluded that the Union never
received a response. The judge further opined that even if
Reilly’s assertion that he had responded orally were to be
credited, the failure to provide a written response, or at
least an explanation that such information had been previ-
ously given, violated Section 8(a)(5) and (1).
We affirm the judge, but we do not pass on the judge’s
findings as to whether there would have been a violation if
Reilly’s testimony had been credited.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, U.S. Postal Service,
Albany, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified:
1. Substitute the following for paragraph 2(a).
“(a) Furnish the Union the requested information as set
forth in the decision herein.”
2. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by Region 3, post at all
facilities in the Albany and Poughkeepsie, New York area,
copies of the attached notice marked “Appendix.” Copies
of the notice, on forms provided by the Regional Director

8 The judge found that Reilly did not respond to the second request
notwithstanding Reilly’s testimony to the contrary. The Respondent
has not excepted to the judge’s factual finding on that issue.
9 The judge inadvertently refers to Reilly as “Lilly.” Lilly was the
Respondent’s labor relations representative, while Reilly was the Offi-
cer in Charge who supervised Holveg.
for Region 3 after being signed by Respondent’s author-
ized representative, shall be posted immediately upon re-
ceipt and maintained by Respondent for 60 consecutive
days in conspicuous places including all places where no-
tices are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices 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 proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by
the Respondent at any time since August 29, 1995.”
3. Substitute the attached notice for that of the adminis-
trative law judge.

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain collectively with the
American Postal Workers Union, AFL–CIO, and its
aforementioned locals as the exclusive representative of all
the employees in a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act, composed of maintenance employees, special
delivery messengers, motor vehicle employee, and postal
clerks, by refusing to provide or delay providing the Union
with information for the processing of grievances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL furnish the Union the following information:
(1) Forms 3971 and 3972 for Supervisor Frank Appio; (2)
the climate assessment report of Lisa Lynch; (3) an expla-
nation of why Supervisor Ray Reilly insisted that bargain-
ing-unit member Dorothy Holveg provide him a diagnosis
and prognosis of her medical condition; and (4) an expla-
nation of why Holveg was scheduled to report for Septem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
ber 28, 1996, and not paid; (5) Forms 1412 for the period
from May 28 to August 28, 1995, at the Albany GMF
window, requested in regard to the letter of demand issued
to bargaining unit employee Szlamowicz; (6) Forms 3320
for Szlamowicz for the period from May 28 to August 28,
1995; (7) Form 25 for the unit employees at the Albany
GMF and for Szlamowicz; (8) Forms 1412 for the entire
period of the letter of demand issued to Dorothy Holveg;
(9) all Plateskill PTF schedules for pay periods 19-2, 20-1,
20-2, and from September 7-17, 1996; and (10) all “notes,
directives, files, information, etc.” concerning Dorothy
Holveg’s suspension, including notes and memoranda of
Supervisors Picarello and Reilly.
UNITED POSTAL SERVICE
Robert A. Ellison, Esq., for the General Counsel.
Geraldine Rowe and Charles J. Zudek, Esqs., for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on June 9 and 10, in Albany, New York.
On various dates in 1995 and 1996 American Postal Workers
Union, Albany, New York Local 390, APWU, AFL–CIO (Local
390), and Mid Hudson Area Local, American Postal Workers
Union, AFL–CIO (the Mid Hudson) filed charges against the
United States Postal Service (Respondent). On February 28,
1997, a third amended consolidated complaint issued alleging
violations of Section 8(a)(1) and (5) of the Act. The thrust of the
complaint alleged that on various dates Respondent had refused
to furnish certain information in response to various written re-
quests from both Local 390 and the Mid Hudson.
Briefs were filed by counsel for the General Counsel and
counsel for Respondent. On my consideration of the entire re-
cord, the briefs, and my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
Respondent provides postal service for the United States of
America and operates various facilities throughout the United
States in the performance of that function, including a general
mail facility located at New Karner Road in Colonie, New York,
and about 16 other facilities in the Albany, New York vicinity
(the Albany facilities), general mail facilities located at Pough-
keepsie, New York, and Arlington, New York (the Poughkeepsie
facility), and a general mail facility located at Plattekill, New
York (the Plattekill facility).
The Board has jurisdiction over Respondent and this matter by
virtue of Section 1209 of the PRA.
It is admitted that Local 390 is a labor organization within the
meaning of Section 2(5) of the Act.
It is admitted that Mid Hudson is a labor organization within
the meaning of Section 2(5) of the Act.
It is also admitted that American Postal Workers Union, (the
Union) is a labor organization within the meaning of Section 2(5)
of the Act.
Since on or about 1971, the Union and Respondent have been
parties to successive collective-bargaining agreements for em-
ployees in the unit set forth below, the most recent of which is
effective by its terms for the period November 21, 1994, through
November 20, 1997.
All employees of Respondent employed nationwide in the fol-
lowing classifications of the collective-bargaining agreement
referred to above, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the
Act.
Maintenance employees, special delivery messengers, motor
vehicle employees, postal clerks
Joseph Harden, Local 390 vice president, testified that his lo-
cal represents approximately 1600 employees. He described the
information requests in issue that pertain to his local as follows:
The information requested by letter on August 3, 1995, seeks
the Forms 2608 and/or 2609 regarding 11 grievances. The
documents indicates that while the request was approved on Au-
gust 4, and that the information was provided except for griev-
ances 7 and 8. The forms are management step 1 and step 2
decision summary forms. The Union never received items 7 and
8. On about January 1996, the Union received notification that
the forms had not been compiled on these two grievances.
Harden testified that there were step 1 meetings on these two
grievances and were submitted to step 2 of the grievance proce-
dure on May 1, 1996, but the grievances were subsequently re-
solved. Thus, at the time of the information requests, the griev-
ances were pending. Normally, the form 2608 (step 1 summary)
is prepared by management right after the step 1 meeting. The
Union has routinely received the Forms 2608 and 2609 when
requested.
Under the contractual grievance procedure, a grievance must
be filed within 14 days from the incident. Management is re-
quired to provide its step 1 decision within 5 days. The step 2
form then has to be submitted by the Union within 10 days. Af-
ter the step 2 answer is provided, the Union has 15 days in which
to submit the matter to step 3.
The Board has held that the delayed and untimely submission
of information does not fulfill the duty to bargain under the Act
or obviate the need for a remedy. Association of D.C. Liquor
Wholesalers, 300 NLRB 224, 229 (1990). In this regard, the
Board has found delays of 5 weeks and 2 months to be excessive.
See Postal Service, 308 NLRB 547, 550 (1992), Postal Service,
310 NLRB 530, 536 (1993). While most of the requested infor-
mation was provided on a timely basis, I conclude that the delay
of 5 months (August to January) in informing the Union that
there were apparently no Forms 2608 and 2609 on item 7 and 8 is
excessive, and violative of Section 8(a)(1) and (5) of the Act.
On August 28, 1995, the Union requested all maintenance
craft assignment orders in accordance with a local memorandum
of understanding. The request noted that the Union had not re-
ceived the forms all year. Harden testified that these forms
(Forms 1723) involve craft employees who are given higher-level
assignments, and, pursuant to the local memorandum of under-
standing, the Union is to receive the forms each month. The
Union received no response to the request until January or May
1996.
POSTAL SERVICE 641
Manager of plant maintenance, Frank Fuschino, testified that
there was a turnover in secretarial personnel and the new secre-
tary was not aware that the assignment orders were supposed to
be provided to the Union.
Respondent does not deny that it unduly delayed in providing
the information. Thus, the information was provided 5 to 9
months after the request. I conclude such delay was violative of
Section 8(a)(1) and (5) of the Act. To the extent the information
was provided, the remedy would be limited to a cease-and-desist
order.
The Union’s August 29, 1995 request has six parts, and it was
partly approved on August 30. The terms pertain to a letter of
demand issued to window clerk Szlamowicz for a cash shortage.
The employee had a cash shortage of $203, and management was
seeking to have him reimburse the Postal Service for the short-
age.
Item 1 (Forms S71–3294–3368–3369) was provided on Octo-
ber 2, 1995.
Item 2 (Szlamowicz check lists May 28–August 28) was re-
ceived on October 2, 1995.
Item 3 seeks Szliamowicz’ form 17’s (stamp requisition forms)
for May 28–August 28. On October 2, the Union was only pro-
vided the forms for the period from July 25 to August 28.
Item 4 requests the unit 1412s (employee continuous account-
ability records) from May 28 to August 28 at the General Mail
Facility window. The request was denied on the asserted basis
that the information was not relevant. The forms show employee
balances, transfers of stock and other transactions by employees.
According to Harden, the Union was attempted to ascertain
where the cash shortage came about. In looking at these forms,
the Union may have been able to ascertain if there was a paper
error in connection with transfers of money and stamps from one
employee to another. With this information the Union might
have established a relationship between the transfer of stamps or
money between employees and Szlamowicz’ cash shortage. The
Union never received this information.
Item 5 seeks Forms 3320 for Szlamowicz during the May 28–
August 28 period. Management wrote “What?” next to the re-
quest. In May 1996, Harden met with the Employer’s labor rela-
tions representative, Dan Lilly, who advised that the 3320 was an
all-purpose form. Harden learned that the steward had put down
the wrong number, and he was actually seeking the Forms 3220
(envelope discount sheet). Apparently, it was never received by
the Union.
Item 6 requests the form 25 (stamp for record employee trust
fund and record unit trust) for the unit and Szlamowicz. Man-
agement again wrote “What?” next to the request. The informa-
tion was never provided. As of the time Harden met with Lilly in
May 1996, the grievance had been settled based on manage-
ment’s withdrawing of the letter of demand.
According to Lilly, management did not have copies of the
Form 17’s for May 28–July 24, and the Union never indicated
that the forms were still needed after it was informed of this. As
to the Forms 1412 (item 4), Lilly determined the information was
not relevant and the Union never indicated that this response was
unsatisfactory. Lilly similarly stated that he was never informed
by the Union that his responses to items 5 and 6 above were un-
satisfactory. The grievances was withdrawn by the Union after
step 2.
Argument
With regard to items 1, 2, and 3 above, I conclude that the 5-
week delay in providing the information was excessive, and in
violation of Section 8(a)(1) and (5). In addition, in regard to item
3, it appears that the information for the period from May 28 to
July 25 was never provided. To the extent that the information
does exist, I recommend Respondent be ordered to provide the
information. With regard to item 4 (Forms 1412), the Union has
clearly established their relevance, and Respondent’s refusal to
provide this information was violative of Section 8(a)(1) and 5. I
conclude that Respondent should be ordered to make the infor-
mation available to the Union. With regard to item 5, I conclude
it would not have been difficult for Respondent to seek a clarifi-
cation from the Union upon receipt of the request. In any event,
after the Union corrected the request in May, the Union was
never thereafter provided the information. Similarly, as to item
6, the information was never provided. In these circumstances, I
conclude Respondent violated Section 8(a))(1) and (5) and that
Respondent should be ordered to provide items 5 and 6 to the
Union.
While the underlying grievance has since been settled, this
does not render the issue moot. See Metlox Mfg. Co., 225 NLRB
1317, 1328 (1976), (“[E]ven assuming that all three of the griev-
ants are no longer employed by the Respondent or have lost all
interest in their grievances it does not render the grievances moot
and make the Union’s need for the information academic, for, in
processing grievances like the ones involved herein, the Union is
‘safeguarding not only the particular employee’s interest, but also
the interest of the entire bargaining unit by exercising vigilance to
make certain that the employer does not initiate or continue a
practice of imposing punishment unjustly.’”) T. U. Electric, 306
NLRB 654 (1992) (leave to compliance stage a determination of
effect of withdrawal of grievance on affirmative relief provi-
sions); Postal Service, 307 NLRB 429 fn. 2 (1192) (although
arbitration concluded, respondent failed to show information only
possibly relevant in proceeding to reopen arbitration to which
arbitrator had no authority).
On September 11, 1995, the Union requested a “copy of the
signed written agreement to extend the Local MOU Maint. Holi-
day Pecking . . . order beyond the one year test period,” and a
“copy of any notes made by verbal agreement pertaining to
above.” On September 14, the first part was approved, and the
second part was disapproved on the basis that “personal notes are
personal.” On January 26, 1996, there was a further response
that in fact there was no signed written agreement in existence,
and, as to the second part of the request, personal notes are not
required to be shared.
According to Harden, the Union was contending that if there
was anything negotiated that the notes would “back up” the exis-
tence of such an agreement. He further noted that the notes were
not personal in that they would have been notes concerning a
meeting between the parties and they would have shown whether
there was any agreement to extend the 1-year trial period.
Fuschino testified that he informed the Union that there was no
written agreement to extend the MOU, and that he normally
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
would have done so 2 or 3 weeks after receipt of the information
request. Fuschino further contends that, since there was no writ-
ten or verbal agreement, there were no notes pertaining to such
an agreement.
Lilly states that since there was no extention of the test period,
there were in fact no “notes made by verbal agreement.” How-
ever, Lilly never advised the Union of this in responding to the
information requests.
As to the request for the “signed written agreement,” Fuschino
testified that he “would have” informed the Union within 2 or 3
weeks of receipt that there was no written agreement. While it
appears that there is fact was not such written agreement, it is less
than clear that Respondent ever expressly informed the Union of
this. In these circumstances, I conclude that Respondent’s failure
to timely advise the Union of the nonexistence of such an agree-
ment was unlawful, and violative of Section 8(a)(1) and (5).
With regard to the request for any notes regarding such an
agreement, I further conclude that Respondent’s express denial of
the request is also violative of Section 8(a)(1) and (5). Respon-
dent appears to take the position that such notes are “personal.”
However, the Board has observed that such a claim of confiden-
tiality is limited to a few categories, i.e., that which would reveal
highly personal information, substantial proprietary information,
could reasonably be expected to lead to harassment or retaliation
and traditional privilege. Detroit Newspaper Agency, 317 NLRB
1071, 1073 (1995). None of those exceptions apply here. Ac-
cordingly, I conclude that Respondent refusal of the request for
notes was violative of Section 8(a)(1) and (5). In this regard, it
also appears that Respondent never even advised the Union that it
apparently has no such notes. In these circumstances, I would
conclude that Respondent should be ordered to provide the notes
to the extent they exist and, if they do not exist, to timely inform
the Union of that fact.
On October 11, 1995, the Union requested (1) all maintenance
craft route sheets for all occupational groups and tours, (2) copy
of all maintenance craft routes by-passed report for AP 13, show-
ing total hours by-passed year to date, and, (3) copy of all main-
tenance craft routes reported with variance for AP 13, showing
total hours year to date with reported variances.” The exhibit
reflects that the request was approved on October 12, and that
items 2 and 3 were sent to the Union on October 27 and that
Respondent was still working on item 1. In this regard, a memo-
randum dated October 17, Lilly instructed Maintenance Manager
John Fuschino to have the Union identify which copies it needed,
to which Harden replied to Lilly that “We need all copies re-
quested.” An October 26, 1995 memorandum from Fuschino to
Lilly notes that the information was being forwarded to Lilly, but
that item 1 was too numerous to copy, and suggesting that a un-
ion steward review the materials in maintenance control. Harden
responded to Lilly that the route sheets are filed in folders, and
the only time involved in making copies would be removing the
routes sheets from folders and walking them down to Lilly’s
office. A December 14, 1995 notation indicates that Fuschino
had informed Harden on October 24 that he would provide the
requested information, but that it still had not been received as of
December 14, 1995. Accordingly, on December 27, 1995,
Harden informed Lilly that it was Harden, not a steward, who
was handling the subject (improper staffing/by-passed routes);
the routes sheets should be in folders and if there were only one
copy in each file, Harden would make the copies himself, the
route sheets are relevant to investigate a possible grievance on
maintenance craft staffing, there had been a new staffing package
completed by management. Harden further advised Lilly that, as
to the request for “all maintenance craft routes by-passed report
for AP 13, showing total hours by-passed year to date,’’ he was
seeking a copy of all maintenance craft routes by-passed Reports
showing total hours bypassed for the year to date, and, if there
was no such report, then the Union was seeking the total hours
by-passed for each AP ([i.e., accounting period.)] Harden also
noted that the Union was seeking the same information as to all
maintenance craft routes reported with variances for the year to
date.
Harden testified that there had been a number of grievances
regarding maintenance staffing and routes. As to item (1) above,
Harden states he never received this information. As to his De-
cember 27, 1995 note to Lilly, Harden received no response until
May 1996, at which time he received the custodial route sheets.
However, he still has not received the route sheets for other main-
tenance occupational groups, including electronic technicians,
maintenance mechanics, stationery engineers, and electricians.
Fuschino acknowledged that only custodial route sheets were
provided, and not those of other maintenance craft occupations,
although they did exist, since normally improper staffing had
been a custodian issue.
While it appears that Respondent timely provided some of the
information covered under items 2 and 3 above, not all of it was
provided. As to item 1, only the custodial route sheets were pro-
vided, and there was a delay of 7 months in providing it. As of
this date, the route sheets for the remaining maintenance groups
have still not been provided. Accordingly, I conclude that by
causing a delay in providing such relevant information, and by
failing to provide such other information Respondent violated
Section 8(a)(1) and (5) of the Act. I further conclude that Re-
spondent be affirmatively ordered to provide the remaining in-
formation.
On October 19, 1995, the Union requested: (1) copy of oper-
ating instructions pertaining to new plastic baler machine, includ-
ing hooks or manuals, and (2) list of custodians trained on the
machine.
On January 25, 1996, Harden was informed that his operating
instructions were on order from the manufacturer. The informa-
tion was requested pursuant to a grievance alleging that the cus-
todians assigned to the machine were entitled to a higher pay rate
for that work. Thus, the Union was trying to ascertain the extent
of expertise or training that was required. Harden ultimately
received the operating instructions and list of custodians in May
1996. Lilly asserts that the list of custodians was provided on
January 23, 1996.
Harden noted that in general the delay in receiving requested
information jeopardizes grievances in that the Union may believe
it has a meritorious grievance but does not have the supporting
documentation and there may be additional arguments that could
otherwise have been advanced in support of the grievance. Also,
even when the Union receives the information at a later step of
the grievance procedure, Respondent could argue that the Union
POSTAL SERVICE 643
is estopped from raising arguments on the basis that they should
have been advanced at the initial stages of the grievance.
Fuschino testified that he informed the Union that the manual
had been misplaced and that a request had been made to the
manufacture for a copy. Although it was received, Fuschino did
not know if it was provided to the Union until about 1 week prior
to the hearing herein.
Although the information was received, I conclude that the de-
lay was unlawful. Thus, the list of custodians was not provided
until 3 months after the request (under Lilly’s account) or 7
months (under Harden’s account). Although Respondent had to
order the instructions from the manufacturer, it appears that the
Union was not informed of this fact and 3 months after the re-
quest. I conclude such delay in informing the Union violated
Section 8(1)(1) and (5) of the Act.

On August 31, 1995, the Union requested copies of all blue-
prints for the Carrier Annex and Fort Orange Station, including
exterior grounds, General Mail Facility and Vehicle Maintenance
Facility (GMF and VMF), and the GMF and VMF exterior
grounds, in connection with a maintenance staffing grievance.
Harden testified that custodial staffing is based largely on the
interior and exterior square footage. The requested information
would verify management’s computation of area. The Union did
not obtain access to the information until May 1996, when
Harden met with Lilly and explained further the need for the
information. Harden noted that he had previously discussed the
need for this information.
The evidence shows that the Union’s request for the blueprints
as initially effectively denied. However, while Lilly asserts that
he received no response from the Union as to relevance, Harden
asserted that it had explained the need for this information to
Respondent. In this regard, it would appear that the relevance is
sufficiently set forth on the information request form. In any
event, I conclude that the delay of over 8 months in providing
this information is excessive and violative of Section 8(a)(1) and
(5).
On August 31, 1995, the Union requested the “contract costs”
reports showing total dollars and contractors for all fiscal year
1995 expenditures from the “MARS” reporting system.
Harden testified that this information pertained to the possible
contracting out of bargaining unit work. On September 13, 1995,
Lilly responded by questioning the relevance of the request. In
March 1996, the Union was informed by Respondent that the
report did not show total dollar expenditures. Lilly states that he
learned on March 8, 1996 that there were no documents respon-
sive to the request, and he passed on that information to the Un-
ion on March 11.
Fuschino testified that he submitted to Lilly what he viewed as
a contract cost report. He states that Lilly told him that the Union
felt what was provided was not responsive and that the Union
was asked to clarify the request but never did so.
I conclude that such delay, of over 6 months in responding to
the request was excessive, and violative of Section 8(a)(1) and
(5).
On October 31, 1995, the Union requested (1) a copy of all in-
vestigation reports including recommendations made by Em-
ployee Assistance Program (EAP) Coordinator Lisa Lynch,
postal inspectors, and Maintenance Manager John Fuschino re-
garding George Guerin, pertaining to alleged improper behavior
(threats and harassment) by Guerin, a supervisor, toward the tour
three shop steward and custodians, and (2) a copy of any actions
including disciplinary action, taken against Guerin regarding
these allegations.
On November 9, 1995, Lilly asked the Union to provide justi-
fication for the request.
According to Harden, bargaining unit employees had been dis-
ciplined for engaging in similar misconduct and the Union was
attempting to establish that the Employer had treated them in a
disparate manner. The Union had been advised by a shop stew-
ard that he had been threatened by Guerrilla on two occasions.
The Union understood that supervisors were under the same
standards of conduct as bargaining unit employees. In this re-
gard, the Postal Service’s “zero tolerance” policy against vio-
lence, and threats of violence, apply to all employees. Pursuant
to this policy, which provides that such acts can result in termina-
tion of employment, a Crisis Team may be activated by contact-
ing the EAP coordinator. A Postal Service newsletter provides
that every incident involving threatened or actual assaults must
be reported by supervision to threat assessment team members,
who are trained to investigate such incidents “and to recommend
appropriate action based on USPS policy.”
Harden states that on May 23, 1996, Lilly told Harden that
there were no disciplinary actions in Guerin’s file pertaining to as
alleged July 22, 1995 incident between Guerin and the steward.
With regard to the request for investigation reports, Lilly told
Harden at that time that it was unlikely they would be provided
and were not provided. No other reason was given. Harden and
Lilly had previously discussed this issue on several occasions.
Harden noted that among the bargaining unit employees disci-
plined for having engaged in alleged similar misconduct were
Harden, Zebrowski, Slingerlands, Noska, and another whose
grievance was headed for arbitration. Harden had been issued a
letter of warning in June 1995 for uttering profanities, whereas
the Union had been informed by unit employees that Supervisor
Guerin had engaged in profanities and verbal threats.
EAP Coordinator Lisa Lynch (whose position now carries the
title Workplace Intervention Analyst) testified that her duties
including providing summarizations and recommendations to
management. In doing so, Lynch undertakes work climate as-
sessments after discussions with the appropriate managers, and
then interviews the employees involved. Lynch testified that
employees must be free from the fear of retaliation and therefore
it is necessary to maintain confidentiality. In this regard, Lynch
states that she does not take individual affidavits, and that the
summaries that she prepares do not specify by name what em-
ployees who are interviewed by her have to say. Whatever notes
Lynch has are considered by her to be personal and are not
shared with anyone. The reports or summaries Lynch prepares,
names the employees who were interviewed and summarizes
their perceptions, and makes recommendations to the appropriate
plant management official. The reports generally provides em-
ployees’ perceptions and the basis therefor.
In the fall of 1995, Lynch was asked by the plant manager, Jim
Thero, to conduct a climate assessment involving tour 3 in the
maintenance department after Lynch reported to Thero that vari-
ous employees had complained to her about Guerin. Thereupon,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
Lynch interviewed employees under Guerin’s supervision indi-
vidually, as well as Guerin. Lynch knew that the Union was
aware that she was interviewing these individuals. Lynch states
she assured the employees that she would only provide summari-
zations to management and not identify by name what they said
to her. While Lynch suggested the possibility that if her report
were made available to the Union it might end up being posted, it
is noteworthy that there is no evidence at all that the Union was
approached at any time about limiting disclosure upon receipt of
the information. Lynch’s report was sent to Plant Manager
Thero, Maintenance Manager Fuschino, labor relations, the man-
ager of human resources, and the acting plant manager, as they
were the persons responsible for taking corrective action.
On cross-examination, Lynch stated that her recommendations
include whether discipline is necessary, although management
makes the actual determination as to the issuance and type of
discipline. Her practice is to advise individuals that what they
tell her is considered confidential, unless it involves criminal
activity, sexual harassment, or a threat. When asked whether she
had ever asked individuals if they had any objection to releasing
information to third parties, Lynch replied that that is an option
that might be presented. In this particular instance, Lynch inter-
viewed six or seven individuals, including Guerin. Lynch told
them that she had been asked by Thero to conduct a climate as-
sessment to provide recommendations and that only summariza-
tion’s would be submitted by her to Respondent. The names of
the individuals interviewed, however, are contained in her report.
Lynch testified hat the zero tolerance policy against violence or
threats of violence applies to all postal employees, supervisory
and nonsupervisory, equally. Normally, Lynch would be notified
by management as to any action taken against individuals.
Fuschino testified that, based on his investigation, he had made
a determination that there was an incident involving Guerin and
ascertained what he considered to be the facts. Fuschino com-
plied investigative records within 2 to 4 weeks of the incident. In
the investigation, Fuschino interviewed a number of bargaining
unit employees, including Mannion, Zebrowski, Chapman, Hal-
pin, Kennedy, as well as Guerin. Fuschino testified that he con-
sidered the report to be confidential and that he told those inter-
viewed that the report would only be provided to Thero and the
postal inspectors. Fuschino testified that, to the best of his
knowledge, the Union never provided justification for the re-
quest.
Fuschino testified that he reviewed Lynch’s report with Thero
to be able to determine if the results of his own investigation
were accurate. Fuschino expressed his belief that if such infor-
mation was released to the Union, the employees who provided
information might be ostracized by their coworkers. Fuschino
states that in his report he recommended that both Guerin and the
employee involved in the incident bother be given EAP counsel-
ing. He indicated that he was unaware that any of his investiga-
tive reports had been made available to the Union. However,
Fuschino acknowledged that he had assumed that the investiga-
tive report in question had been provided to the Union because
one of the employee statements appended to the report had been
posted in the men’s locker room.
On August 10, 1995, the Union had requested all witness
statements concerning the Guerin incident. Lilly approved the
request the same day. On August 17,m Fuschino’s investigative
memorandum, with attached witness statements, were provided
to the Union. The report indicates that Fuschino considered both
Guerin’s and Zebrowski’s behavior “unacceptable” and that “I
will seek official reprimand for both employees.”
According to Lilly, in addition to advising the Union to pro-
vide justification for the request, he search for documents that
might be responsive and he discovered there were no “investiga-
tion reports” compiled by postal inspectors. Lilly states that he
informed the Union on May 23, 1996 that this information re-
quest was not being honored by Respondent.
As set forth above, the Union has demonstrated that the re-
quested information concerning Guerin is relevant to establish
possible disparate treatment by Respondent against bargaining
unit employees. In this regard, Respondent’s “zero tolerance
policy” applies equally to bargaining unit and supervisory per-
sonnel, unit personnel had been disciplined for the same conduct,
including the steward, Zebrowski, who had been involved in the
same incident with Guerin, and the Union was aware not only of
Guerin’s conduct, but also that Respondent had conducted an
investigation into Guerin’s conduct, as well as the identities of
thos bargaining unit employees interviewed by management. It
is further obvious that the information request provides justifica-
tion on its face entitling the Union to receipt, i.e., improper be-
havior [threats and harassment] by Guerin toward the steward
and custodians. The Union’s suspicions that Guerin was in fact
that beneficiary of disparate treatment against Zebrowski appears
to have been borne out. Thus, while Fuschino claims that here
merely recommended that both Zebrowski and Guerin receive
EAP counseling, it appears that Zebrowski was also disciplined,
while Guerin was not, even though Fuschino had recommended
that both of them receive official reprimands.
Such investigative reports are generally disclosable. See, e.g.,
NLRB v. New Jersey Bell Telephone Co., 936 F.2d 144 (3d Cir.,
1991), enfg. 300 NLRB 42 (1990); United Technologies Corp.,
277 NLRB 584, 589 (1985). It is submitted that Lilly’s admitted
refusal to provide such reports is unlawful, and Respondent
should be ordered to provide them.
Respondent first made its claim of confidentially at the trial.
IN this regard, as to Fuschino’s report, Respondent had previ-
ously willingly provided it, or a report Fuschino had prepared on
a different incident involving Guerin. The defense of confidenti-
ality had never been raised before this trial. In these circum-
stances, I agree with the General Counsel’s contention, that Re-
spondent is estopped from raising this contention at trial. Simi-
larly, with regard to EAP Coordinator Lynch’s report, no claim
of confidentiality had been raised prior to the trial. In conclude
that this claim is therefore pretextual. In this regard, to the extent
Lynch’s report was made available to Respondent for further
action to be taken by Respondent, such a report should similarly
have been available to the Union at its request. Further, Respon-
dent at no time approached the Union about limiting the amount
of information provided, such as deleting names of witnesses,
etc., or restricting dissemination. If Respondent was genuinely
concerned about the possibility of harassment or embarrassment
of and by employees, it could have addressed such concerns to
the Union. In fact, as noted above, Lynch’s report did not even
reveal in her report by name the information provided her.
POSTAL SERVICE 645
See Minnesota Mining & Mfg. Co., 261 NLRB 27, 30 (1982),
Board required to balance union’s need for information against
any “legitimate and substantial” confidentiality interests. The
accommodation in each case depends on its particular circum-
stances; New Jersey Bell Telephone Co., 289 NLRB 318, 319–
320 (1988), no showing the absentee records contained informa-
tion of an “intimate and highly personal nature,” fact that an em-
ployee does not give formal consent, or might even object, to
disclosure does not in itself constitute grounds for withholding,
even where employer shows the records contain highly intimate
medical or other information, information disclosable although
names of employees deleted on showing that disclosure would
invade personal privacy interests and union could function with-
out disclosure of names; Assn. of D.C. Liquor Wholesalers, 300
NLRB 224, 229 (1990), general, belated, and eschewed asser-
tions of confidentiality do not justify withholding of information
where it fails to come forward with some offer to accommodate
its concerns with its bargaining obligations, Mobil Oil Corp., 303
NLRB 780 (1991), employer required to provide summary of
informant’s report regarding employee use of illegal drugs;
Postal Service, 305 NLRB 997 (1991), “interest confidentiality
does not outweigh union’s right to obtain information from In-
spection Service Manual about use of force by postal inspection
against employees, absent showing disclosure would be used to
disrupt investigatory process, also required to disclose Inspection
Service findings made with respect to complaints of postal in-
spector misconduct, although names of complainants may be
withheld”; Postal Service, 307 NLRB 429, 433–434 (1992), no
showing union was prone to breach confidentiality of disciplinary
action letter issued against supervisor, employer made no attempt
to mitigate any real or imagined business concerns by proposing
to provide information subject to reasonable restrictions, thereby
failing to meet obligation to bargain for an accommodation be-
tween parties’ rights and interests; employer failed to even in-
form union of claim of confidentiality; Holiday Inn on the Bay,
317 NLRB 479, 481–483 (1995), no recognized established pub-
lic policy against disclosure of information concerning discipline
imposed for comparable infractions, as “the information in ques-
tion concerns willful activity of a kind that the Respondent had
itself made the public basis for discipline and discharges of em-
ployees” no showing employees or supervisors expect discipli-
nary records to remain confidential nor that employer has made
commitment to them to maintain confidentiality of disciplinary
records; Detroit Newspaper Agency 317 NLRB 1071, 1072–1074
(1995), blanket claims of confidentiality will not be upheld, con-
fidentiality claims must be timely raised so that parties can at-
tempt to seek accommodation; untimely where claim raised for
first time at or shortly prior to hearing, confidential information
limited to highly personal information such as medical or psycho-
logical information, substantial proprietary information, such as
trade secrets, that which could be expected to lead to harassment
or retaliation, and that which is traditionally privileged, such as
memoranda prepared for litigation; employer must first prove
confidentiality claim before balancing union’s need for informa-
tion against legitimate and substantial confidentiality interests.
On November 30, 1995, the Union requested the work
hours—EAR (employee activity reports) Reports for all customer
service transitional employees between November 11 and 24,
1995, regarding alleged use of transitional employees to the det-
riment of career employees. On December 4, 1995, Lilly replied
that he needed the names and social security numbers of the indi-
viduals for whom the Union was seeking the information.
Harden testified that under the collective-bargaining agree-
ment there are certain conditions required before transitional
employees can work overtime hours. There were only five to
seven transitional customer service employees. The Union fi-
nally received the information on May 17, 1996.
I conclude that Respondent’s 6-month delay in providing the
information was unlawful, and violative of Section 8(a)(1) and
(5).
On December 14, 1995, the Union requested a copy of the
snow removal contract for the Fort Orange station 1995–1995,
including the bid solicitation and list of unsuccessful bidders
regarding an issue of subcontracting.
Harden testified that bargain unit custodians normally perform
snow removal of sidewalks, and a contractor was performing this
work. The Union wanted to ascertain exactly what work had
been contracted out. The Union received the snow removal con-
tract on March 11, 1996, and at that time the Union was informed
that the other two items did not exist.
Ultimately, the parties agreed that unit employees would re-
move snow from sidewalks.
According to Lilly, the contract and other materials, if they
had existed, were located at the Northwest Area Office in Win-
dsor, Connecticut, and it thus took some time to obtain the docu-
ment. Lilly did not indicate when he requested the materials
from Windsor and when he received them. While the informa-
tion request attached to Lilly’s declaration provides that the re-
quest had been approved on December 15, 1995, it is noteworthy
that the copies submitted by the General Counsel did not contain
such notation.
I conclude that the 3-month delay in providing the information
was unlawful and in violation of Section 8(a)(1) and (5). In this
regard, it is inherently unlikely that Respondent had timely in-
formed the Union that the request had been approved and that it
would be seeking to obtain the document. If it had, there would
have been no apparent reason for the Union to file an unfair labor
practice charge on this subject.
On June 3, 1996, the Union requested copies or access to Tour
II Maintenance Supervisor Frank Appio’s Forms 3971 and 3972
for the preceding 12 months. The request alleges that the Union
had reason to believe supervisors were being treated differently
than craft employees concerning attendance (unscheduled ab-
sences) regarding a grievance over a warning issued to employee
Raymond Van Egghen.
On June 10, Labor Relations Specialist Lisa Hambalek replied
that supervisors are not similarly situated to craft employees and
that the Union need to identify specific reasons to establish the
relevance of the information. On July 1, Shop Steward John
Zebrowski responded that it was “a known fact Mr. Appio has
missed a lot of work within the last 12 months. Everyone under
his supervision knows that as well as everyone in the mainte-
nance craft. In order to say whether or not their [sic] unsched-
uled absences or scheduled absences, we first have to review his
3971’s and 3972’s. As for the concerns about the privacy of this
information. . . . the only information left should be the dates of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
the absences, the number of hours used, and whether or not there
[sic] scheduled or unscheduled absences. . . . Our intent is to
establish disparate treatment, and the information requested is
relevant because Mr. Appio had missed a lot of time, and that is
not mere suspicion as you state in your memorandum but
fact. . . . I would note that Mr. Appio is on tour 3, and so is the
grievant...who received the L.O.W. from Mr. Appio.”
On September 18, Lilly informed the Union that management
would disclose the 397s during the 6 months preceding Van
Egghen’s warning. On October 4, Harden responded that the
Union was not limited to the same timeframe as Van Egghen’s
recorded unscheduled absences to prove disparate treatment. In
this regard, the Union noted that in other instances management
has issued warnings on the basis of unscheduled absences over a
12-month period.
Harden testified that the 397’s are leave slips and the 392’s is a
leave analysis form used in tracking attendance over a 12-month
period. The Union had reason to believe Supervisor Appio’s
attendance record was problem of an extended period of time,
based on information provided by employees working under his
supervision. Supervisors and bargaining unit personnel are sub-
ject to the same attendance policies, including scheduled and
unscheduled absences. Harden also noted that the Union rejected
the Employer’s offer to provide the information for a 6-month
period since the Union had information to believe Appio’s atten-
dance had been deficient for at least 12 months.
The Union has never received any of the information re-
quested, although the underlying grievance was ultimately settled
prior to arbitration, on February 13, 1997. Harden testified that
the Union could not verify rumors that Appio’s absences were
unscheduled without access to the requested forms.
Lilly states that he informed Harden on May 23, 1996, that this
information would not be provided to the Union.
The Board has consistently found an obligation on the part of
the Postal Service to provide information pertaining to disparate
treatment between bargaining unit employees and nonunit and/or
supervisory employees where, as here, they are subject to the
same standards of behavior and there is a factual basis beyond
mere suspicions for the request. Thus, the steward advised Re-
spondent that it was a known fact that Appio had been frequently
absent during the 12 months covered and the employees under
Appio’s supervision had informed the Union that Appio had an
attendance problem over an extended period of time. That was
based upon their observations. The only question that the forms
would have addressed is whether or not those absences had been
unscheduled. Postal Service, 289 NLRB 942 (1988), information
regarding disciplining of supervisors arising out of the investiga-
tion into gambling activity; Postal Service, 301 NLRB 709
(1991), information relating to allegation, investigation and dis-
position of supervisors’ alleged falsification of documents and
complete disciplinary files where guilty established; Postal Ser-
vice, 307 NLRB 429, 432–434 (1992), disciplinary action letter
issued to supervisor ordered disclosed where bargaining unit
employee received higher level of discipline for similar violation
of policy against violence or threats thereof; Postal Service, 310
NLRB 391 (1993), supervisors’ timecards ordered disclosed
where they had been personally observed by steward reporting
late for work and both unit employees and supervisors are subject
to Respondent’s attendance and tardiness rules; Cf., Postal Ser-
vice 310 NLRB 530, 536–537 (1993), Respondent not required to
provide information pertaining to supervisor’s falsification of
documents and return to work, where there was no evidence rule
applied equally to supervisors and mere assertion that “every-
body knew” supervisor had falsified timecard was mere suspi-
cion; Postal Service, 310 NLRB 702 (1993), 702–703 vague,
general reports, not linked to specific time period and dependent
on unnamed witnesses’ subjective judgments about what might
“border” on leave abuse insufficient to establish relevance. In the
present case, the information request was limited to a single su-
pervisor for a specific period based upon factual information
within the Union’s possession. I conclude that the failure to sup-
ply the requested information to the Union was violative of Sec-
tion 8(a)(1) and (5).
The fact that the underlying grievance has since been settled
does not, for the reasons cited along by itself render the Union’s
entitlement to the information moot. Accordingly, I conclude
that Respondent be ordered to provide these items.
Kathleen O’Neill, Mid Hudson Local steward, recording
secretary, and executive board member, testified that her duties
encompassed the Poughkeepsie main facility, which encom-
passes an Arlington branch, and the Plattekill post office.
On December 11, 1995, by letter, the Union requested all of
the 3972’s for calendar year 1995 in the “Arlington Branch, Poke
[sic] P.O. A bargaining unit employee at the Arlington branch,
Terry O’Neill, had been issued a letter of warnings for attendance
problems. The form 3972 is a chart of employee attendance over
a period of time, normally covering one year, on 1 of 2 sheets of
paper. O’Neill attendance record with that of the other employ-
ees in the office to determine whether she had been discriminated
against or treated disparately. There were approximately seven
clerical employees, several carriers, and a couple of maintenance
employees working at Arlington.
The information had not been received as of the step 1 and 2
grievance meetings, and therefore O’Neill did not have the bene-
fit of this information and could not conduct an investigation for
purposes of these meetings or in preparing a submission to the
step 3 union representatives. The Union did not receive the in-
formation until late February, at which time the grievance was
already at step 3. I this regard, Poughkeepsie Postmaster Thomas
Nucifore informed O’Neill on January 3, 1996 that the request
involved 372 pages of duplication and billed the Union $105 in
costs. On January 19, O’Neill advised Nucifore in writing that
on January 5 he had agreed to provide the information at no
charge since the information was well below the 100-page limita-
tion, having been limited to the Arlington facility. The letter
further stated that the information had not yet been received.
I conclude that without the information, the Union was unable
to properly present much of a case at steps 1 and 2, even though
O’Neill was aware that other employees had absences, by not
having the requested information she was unable to document her
contention.
In this regard, O’Neill testified that without such requested in-
formation, the Union was prevented from being able to show that
Respondent’s treatment of a grievant is different fro that of other
employees. With the information, a grievance settlement at step
1 and 2 would be much more likely. In addition, by the time a
POSTAL SERVICE 647
grievance is appealed to step 3 it is difficult to get information
“out of the system”.
Poughkeepsie postmaster Thomas Nucifore testified that the
request encompassed 372 pages and that was the reason for as-
sessing costs. He added that he was told in late January or mid-
February 1996, presumably by his superiors, to provide the in-
formation without charge. Nucifore construed the request as
including employees at the Poughkeepsie post office, although he
acknowledged that the information request properly identified the
Arlington branch. The request forms encompassed 2 to 4 pages
per employee covered.
On rebuttal, O’Neill testified that 3972,s provided totaled
about 20 to 25 pages and could not have taken long to assemble
and copy. In this regard, O’Neill explained by phone to Nucifore
that she only wanted the forms for the Arlington facility. This
was conveyed to Nucifore shortly after the information request.
The credible facts establish that the information request was
clearly on its face limited to the Arlington facility and thus only
covered 20–25 pages. Even after O’Neill repeated to Nucifore on
January 5 that all she was seeking was the Arlington forms, they
were not provided until late February, over 2 months after the
request, at which time the grievance was already at step 3. Ac-
cordingly, Respondent’s unjustified delay in providing the infor-
mation was unlawful.
On December 11, 1995, by letter, the Union requested the
quarterly listings from the Postal Data Center for the Arlington
Branch and Poughkeepsie Main post office for the third and
fourth 1995 calendar year quarters. On January 2, 1996, the
request was denied on the basis of relevance. This also pertained
to the warning issued on Terri O’Neill. The requested informa-
tion lists the amount of leave each employee uses per quarter,
which would have enabled the Union to pinpoint the employees
who had a lot of leave usage so that their printouts could be
pulled out and compared with the grievant’s. Steward O’Neill
testified tat it is much easier to use the quarterly listing to pin-
point those employees with substantial leave usage instead of
poring through hundreds of sheets of paper.
On February 22, 1996, O’Neill was informed tat the request
was being forwarded to the timekeeper for processing. However,
O’Neill was subsequently told that Respondent did not have the
records. The information was never provided. The letter of
warning was ultimately purged from the grievant’s file after the
grievant was submitted to step 3.
According to Nucifore, he denied the request because there
was no such report available from the Postal Data Center. He
claims that his response, “no relevance” was just his way of say-
ing he didn’t have it.
I conclude it is clear that the information, if it had existed or
does exist, is relevant, as established by O’Neill. Contrary to
Nucifore testimony, I conclude that the request was denied by
hum on the basis of relevance. I conclude such denial was there-
fore unlawful, and Respondent has further violated Section
8(a)(1) and (5) by belatedly informing the Union that it did not
have the records.
On December 11, 1995, by letter, the Union requested the
“hours type inquiry report” from September to November 30,
1995 for all Arlington clerks. On January 2, 1996, the request
was denied with the notation, “request needs to be specific to
type of leave”.
O’Neill testified that this information would provide a printout
listing employees’ time worked, leave time, leave without pay
time, and sick leave, and would assist the Union in pinpointing
those employees in the office with similar or worse attendance
records. However, on February 22, 1996, after repeated requests,
the information was provided. By that time, the grievance had
been appealed to step 3 over a month earlier.
Nucifore testified that he was informed by the timekeeper that
the request had to be by specific code. He believed that after
informing O’Neill of threat, she resubmitted the request and that
Nucifore gave it to the timekeeper. He assumed that the informa-
tion was provided because he didn’t receive any further com-
plaints from O’Neill.
The information ultimately received by O’Neill totaled about
17 pages. O’Neill further testified that Nucifore did not provide
the information to the timekeeper until the end of January, byt
that Nucifore refused to allow the timekeeper to process the in-
formation request on the clock and that Nucifore was not allot-
ting any overtime for the timekeeper.
O’Neill testified as had Harden, as to the strict time limitations
under the contractual grievance procedure. The Union has 14
days to file at step 1, and Respondent must answer within 5 days,
although Respondent often denies the grievance the same time it
is filed. The Union has 10 days to appeal to step 2. The step 2
meeting is supposed to be held within 7 days.
I conclude that the original denial of the information request
was unlawful and in violations of Section 8(a)(1) and (5) in this
regard, Nucifore, in denying the request, wrote that the request
had to be by type of leave, made it apparent that the request was
based on any type of leave, since the Union’s intention was in
pinpointing other employees with worse attendance records,
irrespective of the type of leave taken. I further conclude that the
delay of more than 2 months I ultimately providing the informa-
tion was unlawful and in violation of Section 8(a)(1) and (5). In
this regard, it appears that Nucifore unduly impeded the Union’s
receipt of the information by his delay in submitting authoriza-
tion to the timekeeper and restricting the timekeeper from work-
ing overtime to access the 17 pages of printouts.
On December 11, 1995, by letter, the Union requested a copy
of all the Forms 3971 for Terri O’Neill for all the dates cited in a
letter of warning that issued on December 1, 1995.
Shop Steward O’Neill testified that that forms are used by em-
ployees requesting leave and the type of leave requested, which is
then approved or disapproved by the supervisor.
The information was not provided until the grievance was at
step 3.
I conclude such delay in providing the information was in vio-
lation of Section 8(a)(1) and (5).
On September 18, 1996, by letter the Union requested copies
of the Forms 1412 and IRT tapes for the entire audit period of a
letter of demand issued n employee Dorothy Holveg on August
31, 1996.
O’Neill testified that the 1412; daily financial form, was only
provided for one day, August 28, 1996; and that the IRT tapes
were apparently not maintained for Plattekill. In this regard,
Holveg was issued the letter of demand for having a cash short-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
age and the 1412’s would show what occurred on a daily basis.
O’Neill had requested the 1412’s for not only one day, but for the
entire audit periods. Normally, a series of cash shortages during
an audit period take place when a letter of demand issues. By
examining the 1412’s the Union can ascertain if there may have
been a mathematical error. The standard audit period is 3 or 4
months. I the particular letter of demand issued on Holveg, there
was a 1-month period, and O’Neill wanted the information dur-
ing that entire period to see if there was a mathematical error or
some other problems during the letter of demand period. In other
words, the opening and closing balances of not only the day of
the alleged shortage, but other days would be pertinent to deter-
mine if there was a consistency or inconsistency.
The single 1412 that was provided the Union, was not pro-
vided until January 30, 1997, which was well after the letter of
demand grievance had been submitted to step 3. The letter of
demand grievances is still in step 3 or may be scheduled for arbi-
tration.
Reilly testified that the audit period for the letter of demand
only covered 1 day.
Argument
I conclude, from the information request and O’Neill’s testi-
mony that the Union was requesting, and was entitled to, the
Forms 1412’s for the entire audit period, and Respondent failure
to provide them is unlawful and in violation of Section 8(a)(1)
and (5). Reilly’s assertion that the audit period for the letter of
demand was limited to one day is not convincing. Thus, even if
the letter of demand itself was based upon an shortage the oc-
curred on only one date; August 2; the Forms 1412 for preceding
and subsequent dates might establish how the alleged shortage on
that date occurred. In addition, on September 4, 1996, then—
OIC Picarello referred to several alleged discrepancies; August
19, 26, 28, and 31. I conclude that the 1412’s for those dates, as
well as the other dates covered by the information request, could
shed light on the letter of demand. In these circumstances, apart
from the delay in providing the single Form 1412 and delay in
informing the Union that there were apparently no IRT tapes. In
conclude that the failure to provide the additional Forms 1412 is
unlawful and in violative of Section 8(a)(1) and (5), and that
Respondent should be ordered to provide them to the Union. In
this regard, it is noted that the underlying grievance is still pend-
ing at step or arbitration.
On September 20, 1996, by letter, the Union requested (1) All
Plattekill clerks’ timecards for pay periods 19–2 and 20–1, 1996,
and, (2) a copy of all part-time flexible schedules in Platteskill for
pay periods 19–2, 20–1, and 20–2, for the period of September
7–17, 1996.
O’Neill testified that grievant Holveg had been ordered to re-
port to work and was sent home. Moreover, there was an issue as
to whether Holveg had been charged with the correct number of
leave hours taken. In addition, the Union believed that Respon-
dent had departed from past practice by only placing the start
times, and not the ending times, o the PTF schedules.
Only after the grievances had gone to step 3 did the Union re-
ceive a response that was in late January 1997. However, the
schedules for the first and last weeks of September were
not included in the materials provided. Without the schedules
for those weeks, O’Neill testified she was unable to compare
them with Holveg’s time cards for those two weeks, which were
the periods covered by the grievance. The time cards requested
were received in late January.
As noted, however, the time cards themselves, without the
schedules, did not enable the Union to verify the leave charged to
Holveg.
Argument
I conclude the unlawful delay of more than 4 months in pro-
viding the information and Respondent’s failure to provide all of
the PTF schedules violated Section 8(a)(1) and (5). I further
conclude that Respondent should be ordered to provide the re-
maining schedules.
On September 20, 1996, by letter, the Union requested “All
reason(s) why, in writing, Clerk Dorothy Holveg’s documenta-
tion provided for absence of September 9–September 23, does
not meet the criteria outlined in ELM 513 as alleged by LICD.
Picarello/manager regarding AWOL issued September 18, 1996
via mail.
O’Neill testified that the information was needed because
Holveg had provided doctor’s notes which normally were con-
sidered sufficient by Respondent when employees are responding
to requests for medical documentation. The doctor’s notes that
Holveg provided explained that she was incapacitated for the
period in question. OIC Reilly wanted Holveg to provide a
statement as to the nature of Holveg’s medical condition, which
according to the Union, is considered to be restricted medical
information. The only response the Union received was referring
back to ELM Employee and Labor Relations Manual 513, which
is the portion that refers to medical documentation. In this re-
gard, O’Neill testified that other employees have provided Re-
spondent with the exact doctor’s note than Holveg had provided
and this was the first time in O’Neill’s experience such a note
was deemed unacceptable. Apparently in late January 1997,
Respondent provided the Union with a copy of section 513.
I concluded that part from the delay of over 4 months in re-
sponding to the information request. The explanation given by
Respondent was inadequate. Thus, in responding to a request for
the reasons the medical documentation did not meet the EM
March 13 criteria, Respondent merely provided a copy of section
March 13. I conclude that Respondent’s failure to specifically
direct the Union’s attention to section 513.364 and to give some
explanation as to what documentation it was seeking was unlaw-
ful, and violative of Section 8(a)(1) and (5).
I further conclude, Respondent should be ordered to give the
Union such an explanation.
On October 10, 1996, by letter, the Union requested copies of
(1) the PTF schedule for pay periods 20–2 and 21–1, (2)
Holveg’s timecard for period 21-1, and, (3) reason why Holveg
was scheduled to report for September 28, 1996 and not paid for
reporting.
O’Neill testified that the information requested would have
enabled the Union to ascertain if Holveg was scheduled to report
on the date in question, if in fact she reported, if she was not paid,
and, if not, the reasons therefor. The Union received no response
until long after the grievance had been appealed to step 3.
POSTAL SERVICE 649
As to item (1), although O’Neill testified that she did not re-
ceive the schedules for all the periods, it appears at this time that
the schedules for the two requested periods may have been pro-
vided in late January. Although item (2) was received in late
January, the Union never received any reponse to item (3).
Lilly testified that in late October he faxed the schedules and
time cards. He further claims that O’Neill had been verbally
provided item (3). Thus, he contended that he advised that the
medical documentation had not been received prior to the sched-
uled reporting date, as required, and therefore Holveg was not
scheduled to report.
As to items (1) and (2), the information was not provided until
more than 3 months after it was requested, long after the griev-
ance had been appealed to step 3. I conclude that this delay was
unlawful, and violative of Section 8(a)(1) and (5. As to item (3),
I conclude that a response was never provided to the Union. In
addition, even if Reilly’s assertion that he verbally provided a
response to the Union is credited. I conclude that the failure to a
written response, or at least an explanation that such information
had been previously been verbally given, was unlawful, and vio-
lative of Section 8(a)(1) and (5). The Union’s entitlement to this
information is clear. Thus, in Parsons Electric Co., 304 NLRB
890 (1991), the employer therein unlawfully failed to comply
with a request for reasons why an applicant referred by the union
under an exclusive hiring hall was rejected by the employer. The
Board majority noted that, as in the present case, the request was
limited to specific reasons regarding a single individual in the
context of a specific grievance.
On October 10, 1996, by letter the Union requested a copy of
(1) reason why OIC Reilly contacted Holveg’s personal physi-
cian on about pay period 20–2, and (2) the reason why Reilly was
insisting that Holveg provide a diagnosis and prognosis of her
medical condition. The information request cited a Privacy Act
violation.
O’Neill testified that another steward received a response from
Respondent in February or March 1997, long after the grievance
was submitted to step 3 in November, 1996.
Reilly testified that he verbally responded to the requests and
informed the Union that had called the physician only to find out
if there were evening hours and, as to (2) the medical notations
merely indicated Holveg was incapacitated and gave no other
information. Since the Plattekill office had only two clerks,
Reilly stated that he needed to know when to expect Holveg to be
able to return to work.
I conclude that the credible evidence shows that Respondent
delayed more than 4 months in responding to the request, and
thus violated Section 8(a)(1) and (5). In this regard, the February
5, 1997 response provided only covered item (1) above. As
noted, the Union was entitled to a response to the request for
“reasons”. Parsons Electric, supra.
On October 10, 1996, by letter the Union requested a copy of
PTF schedules of all Plattekill clerks for July, August, Septem-
ber, and October 1996.
Respondent responded in late January 1997. However, ac-
cording to O’Neill, the schedules for the first and last weeks of
September were missing. (The attachments to the request reflect
that the schedules for the first weeks of September were not pro-
vided. O’Neill testified that the information was needed in con-
nection with a past practice grievance in that Respondent had
threatened to change the practice of posting starting and finishing
times on the schedules by posting only the starting times, which
in fact the schedules ultimately provided indicate took place.
Reilly testified that whatever schedules he had were faxed in
October and provided again in late January.
I conclude, Respondent’s delay in supplying the information
for over 3 months was unlawful and violative of Section 8(a)(1)
and (5). In addition, the continued failure to provide the sched-
ules for parts of September violated Section 8(a)(1) and (5). I
therefore conclude, Respondent should be ordered to provide the
remaining schedules. If Respondent does not have the, Respon-
dent should inform the Union of that fact and the reasons there-
fore.
On October 10, 1996, by letter, the Union requested all “notes,
directives, files, information, etc.” In reference to a 7-day suspen-
sion issued to Holveg.
O’Neill testified that the information request was standard in
cases of discipline. In this instance, Holveg had been disciplined
regarding attendance and sick leave usage. O’Neill was aware
from discussions with management that a supervisor had given a
written report that Holveg had been seen at a diner with O’Neill
on one occasion when Holveg had called in sick. Initially, the
request was denied. However, the Union did receive notes from
the Milton post master, but was not provided the notes OIC
Picarello which were part of the disciplinary action. Thus, the
Union did not receive most of the information and files underly-
ing the discipline. In this regard, in disciplinary grievances the
Employer bears the burden of proof and the Union routinely
requests, and receives, the statements, notes, files, etc. Here, OIC
Reilly told O’Neill on December 5, 1996 that he had the informa-
tion but was going to provide it until he was instructed to do so.
Reilly testified that in October he attempted to fax two buck
slips from Milton Postmaster Starkey, but that Reilly was not
providing any of his notes, since they were “personal” and
“would necessarily be the outcome of the final thought process.”
O’Neill testified that in October 1996 the Employer had at-
tempted to fax some information to the Union but they were
illegible. O’Neill advised Reilly of this at the time.
I conclude the Union’s request for all “notes, directives, files,
information, etc.” Pertaining to the disciplinary suspension was a
proper one, and Respondent’s denial of the request was unlawful,
and violative of Section 8(a)(1) and (5). In this regard, the Board
has generally ordered the disclosure of internal investigation
reports. NLRB v. New Jersey Bell Telephone Co., 936 F.2d 144
(3d Cir. 1991), enfg. 300 NLRB 42 (1990). Also, in Jewish Fed-
eration Council, 306 NLRB 507 (1991), the employer was or-
dered to provide “copies of all documents and statement in its
possession which support the Employer’s [discipline], copies of
all disciplinary memos/letters. . . .” Accordingly absent a show-
ing that such information does not exist, I conclude Respondent
is ordered to provide all the requested information, including, but
not limited to, Picarello’s and Reilly’s notes and memoranda. As
set forth above, none of the narrow circumstances in which the
Board has upheld a claim that the notes are “personal” or “confi-
dential” apply here. I conclude that by its failure to supply such
information, Respondent violated Section 8(a)(1) and (5).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650
Reilly testified that on September 30 he informed O’Neill that
she would be able to review the documents requested on Septem-
ber 18 and 20, but that the request for copies was denied since the
Plattekill facility did not have a photocopy machine. Thereafter,
it was agreed that the materials would be faxed to the Union.
Reilly acknowledged that he was aware that there were difficul-
ties with the fax machine, but claims he was never told that the
materials were unreadable. In any event, in January 1997 Reilly
compiled all information conversed by the charge, consisting of
22 separate requests, and brought it to Respondent’s labor rela-
tions office. Reilly acknowledged that unreplaced materials,
such as time cards, could be safely sent to labor relations by reg-
istered mail. The labor relations office was located 50 feed from
the Mid Hudson Local’s offices.
Acting labor relations specialist Richard DeGiorgio testified
that on December 19, 1996 he received from O’Neill a summary
of the information requests at Plattekill and the difficulty O’Neill
was encountering in obtaining it. On receipt, DiGiorgio stated
that he advised the Union that he would make sure the informa-
tion would be made available if the Union was entitled to it.
On rebuttal, O’Neill testified that she was present in the Union
office the first time the materials were faxed, October 15, and she
informed Reilly that the materials coming over were not read-
able. Reilly told O’Neill that he would work o the fax machine
and try again. When the materials were faxed again on October
21, O’Neill was out of the office at the time. The following day,
October 22, she called Reilly and informed him. Thereafter,
when she had arranged to view the information at the Plattekill
facility. Reilly told O’Neill that he didn’t have time f or her to let
her review the materials.
O’Neill further testified that she had given a copy of the Plat-
tekill information requests to DiGiorgio and on December 23,
1996, and he told her he would not provide the information to
her. It was that refusal that led to the filing of separate griev-
ances.
Argument
I conclude that while Respondent should not be found to have
violated the Act merely because it had no copying responsibility
for the delays in excess of 4 months in providing the information.
Thus, Respondent acknowledges that it could have securely sent
the materials by registered mail to the labor relations office ofr
copying, byt chose not to do so. In addition, even after DiGior-
gio ws provided in December with a summary of the information
request, it was not provided until well over a month thereafter. In
these circumstances, I conclude that the delay in providing the
information was unlawful, and violative of Section 8(a)(1) and
(5).
CONCLUSIONS OF LAW
1. The Board had jurisdiction over Respondent pursuant to
Section 1209 of the Postal Reform Act.
2. The American Postal Workers Union, AFL–CIO (APWU)
and its Local 390 and Mid-Hudson Local is a Labor organization
within the meaning of Section 2(a) of the Act.
3. At all times material herein the APWU, and Local 390 and
Mid-Hudson have been the exclusive representative within the
meaning of Section 9(b) of the Act for the following employees:

maintenance employees, special delivery mes-
sengers, motor vehicle employees, and postal
clerks

4. By delaying the furnishing of certain information, set forth
in the decision herein, and by refusing to furnish other informa-
tion, requested by the Union, Respondent has violated Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act.
REMEDY
It having been found that Respondent has violated Section
8(a)(1) and (5) of the Act by delaying the furnishing of certain
information requested, as set forth in this decision, I shall rec-
ommend Respondent cease desist therefrom, and take certain
affirmative action necessary to effectuate the policies of the Act.
With respect to such information which was ultimately, but
unlawfully furnished to the Union in an untimely manner is rec-
ommended, as part of the order that Respondent be precluded in
the grievance-arbitration procedure from objecting to the Union’s
introduction of evidence and resulting arguments obtained on an
untimely basis from Respondent.
With respect to such information not furnished to the Union, it
is recommended that Respondent furnish such information upon
request by the Union, should have been raised by the Union at
preceding steps. Similarly, to the extent such information has
been withheld from the Union, it is recommended that Respon-
dent should be affirmatively precluded from relying on the with-
held information in support of its grievance-arbitration positions.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended1
ORDER
The Respondent, United States Postal Service, Albany, New
York, and its Local 390 and its Mid Hudson Local, it officers,
agents, successors, and assigns, shall
1.Cease and desist from
(a) Refusing to bargain collectively with the American Postal
Workers Union, AFL–CIO and its aforementioned locals as the
exclusive representative of all the employees in a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act, composed of maintenance employees,
special delivery, messengers, motor vehicle employees, and
postal clerks, for refusing to provide or delay providing the Un-
ion with information for the processing of grievances.
(b) In any like or related manner interfere with, restrain, or co-
erce employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request, furnish the Union the requested information set
forth in this decision herein.
(b) Post at all facilities in the Albany and Poughkeepsie, New
York area, copies of the attached notice marked “Appendix B”2

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
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 pur-
poses.
POSTAL SERVICE 651
Copies of the notice, on forms provided by the Regional Director
for Region 3 after being signed by Respondent’s authorized rep-
resentative, shall be posted immediately upon receipt and main-

2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tained by Respondent for 60 consecutive days in conspicuous
places including all places where notices are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3 in writing within
20 days from the date of this Order what steps the Respondent
has taken to comply.