United Parcel Service, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 4, 2009

17-CA-024201 (N.L.R.B. Mar. 4, 2009)

JD(SF)–12–09
Oklahoma City, OK
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
UNITED PARCEL SERVICE, INC.
and Case 17-CA-24201
PATRICK O’BRIEN, AN INDIVIDUAL
Charles T. Hoskin, Esq. for the General Counsel.
Joshua Flynt, Esq. (Akin, Gump, Strauss,
Hauer & Feld, LLP) of Dallas TX for the Respondent
Patrick O’Brien, Pro Se.
DECISION
Statement of the Case
JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Oklahoma
City, Oklahoma, on November 21, 2008. The charge was filed June 19, 2008 and the complaint
was issued August 29, 2008. The complaint, as amended, alleges United Parcel Service, Inc.,
(Respondent) violated Section 8(a) (1) and (5) of the Act by refusing to furnish information
requested by Teamsters Local No. 886 (Union) necessary and relevant to the Union’s function
as exclusive collective-bargaining representative of bargaining unit employees. Respondent
timely denied any wrongdoing. On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by the parties, I make the following.
Findings of Fact
I. Jurisdiction
Respondent, an Ohio corporation, with an office and place of business located at 901 S.
Portland, Oklahoma City, Oklahoma has been engaged in the interstate shipment of freight.
During the past 12 months, Respondent in conducting its business operations derived gross
revenues in excess of $50,000 for the transportation of freight from the State of Oklahoma
directly to points outside the State of Oklahoma. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. The Facts
Respondent operates a shipping facility in Oklahoma City, Oklahoma known as the
Metro facility. Patrick O’Brien (O’Brien) has worked at Respondent’s Metro facility as a driver
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for the past 17 years and is a shop steward for the Union. Matthew Hoffman (Hoffman) is
Respondent’s Red River District Labor Relations Manager. The Red River District includes
Oklahoma City. Eric Baker (Baker) is Respondent’s Manager at the Metro facility and Steve
Stulce (Stulce) is O’Brien’s supervisor. For the past 20 years Teamsters Union Local 886 has
been the exclusive collective bargaining representative of Respondent’s employees in the
following appropriate bargaining unit (the unit):
All full-time and regular part-time feeder drivers, package drivers, sorters,
loaders, unloaders, porters, office clerical, clerks, mechanics, maintenance
personnel (building maintenance), car washers, United Parcel Service
employees in the employers’ air operation, and to the extent allowed by law,
employees in the export and import operations performing load and unload
duties, and other employees of the employer for whom a signatory Local Union is
or may become the bargaining representative.
Respondent and the Union have been parties to a series of collective bargaining
agreements; the latest of which is effective from December 31, 2007 to July 31, 2013.1 Patrick
O’Brien is a shop steward for the Union at Respondent’s Metro facility. Employees in the
bargaining unit sort, load, pick up and deliver packages to customers. There are about 50
drivers in the bargaining unit.
By letter on May 30, 2008,2 the Union through O’Brien requested that Respondent
provide it with a copy of the Daily Package Recap Report (Report)3 for the Metro facility on a
daily basis. The Report is a spreadsheet which is generated on a daily basis and lists
employees who worked the previous day, together with information concerning the number of
hours they worked, if they had a helper, if they were late, if they had called in sick, if the driver
performed loading and sorting duties, the number of deliveries and pickups of parcels made,
how many parcels were delivered and picked up, how much time the driver was on the road,
whether the driver met the time standards expected of them for making their deliveries and
pickups on their route that day and, the number of stops per hour on the road. Most of the
information contained in the Report is generated via a DIAD, an electronic wireless device used
by drivers to send and receive text based information. Respondent is able to communicate with
drivers through the DIAD on a 3x5 inch screen that can display four to five lines of text.
Copies of the Report are placed on a table every morning in the office of the Metro
facility for Respondent’s drivers to review. The Report usually ends up in the trash can at the
end of the day in one of the Metro facility offices. While Hoffman testified that the Reports are
maintained for 30 days, O’Brien was unaware such archives were maintained and when
Bateman tried to arrange an accommodation Stulce told her that he would not keep anything for
her. Regardless of whether the Reports were maintained for employee review there is no
dispute that Respondent refused to furnish copies of the Report to O’Brien. The Union has
received copies of the Report from Respondent in conjunction with pending grievances without
any restrictions on its use. The Report has been used in the past by the Union in grievance
disputes involving issues including pay and supervisors performing bargaining unit work. Two
pending grievances involve issues of work load and attendance for which the Reports may be
relevant. 4

1 JT. Exh. 9.
2 JT. Exh. 4.
3 JT. Exh. 8.
4 GC Exhs. 2 and 3.
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According to Respondent’s District Labor Relations Manager Hoffman, if one of
Respondent’s competitors like FedEx obtained a copy of the Report, it would put Respondent at
a competitive disadvantage by showing the competitor how Respondent operates its business.
On about May 31, 2008, Carrie Ann Bateman (Bateman), a driver in the bargaining unit
and a Union shop steward asked supervisor Stulce if she was going to be given a copy of the
Report requested by O’Brien. Stulce said that he had to check with Hoffman. The following day
Stulce told Bateman that Respondent would not provide the Union with a copy of the Report.
When O’Brien returned from vacation, Bateman told him of Respondent’s refusal to furnish the
Report.
On July 9. 2008, O’Brien again asked Stulce for copies of the Report and Stulce told
O’Brien that Respondent could not give him the Report. O Brien testified without contradiction
that the Report could be used to monitor whether Respondent was violating the collective
bargaining agreement5 by working unit employees over 9.5 hours for any three days in a
workweek. One remedy for a violation of this provision of the contract was an award of triple
time pay. This was a new provision in the contract since December 2007 and was the subject
of an ongoing dispute between the parties. From January through May 2008 O’Brien testified
that unit employees had complained that they were being worked in excess of 9.5 hours per
shift. The Report would reflect if a driver had worked in excess of 9.5 hours in a shift.
In addition the Report reflected pay codes for bargaining unit employees and according
to O’Brien was the most accurate source of information to determine if employees were being
properly paid. The grievance reflected in General Counsel’s Exhibit 2 is an example of a pay
grievance where the Report would be relevant.
Bateman testified that the Report would be relevant to her own grievance6 that deals
with whether Respondent violated the collective bargaining agreement by assigning her work
inconsistent with her age and physical ability. Bateman contends that the Report shows how
many stops she had to make and that would show she was unfairly assigned work.
On July 23, O’Brien filed a grievance over Respondent’s refusal to provide the Report. 7
On about August 21, 2008 the Southern Region Area Parcel Grievance Committee, a joint panel
created by the parties’ collective bargaining agreement denied O’Brien’s grievance.8 Article 4 of
the CBA9 provides in part:
If a supplement has no provision allowing a Local Union to request
documents/information with regard to pending grievances, the following shall be
incorporated into the Supplement: “The Employer shall, upon request, provide
the Local Union or the steward designated by the Local Union, with
documents/information that is reasonably related (based on NLRA standards) to
the pending grievance.”

5 JT. Exh. 9, at 121-122.
6 GC Exh. 3.
7 JT. Exh. 5.
8 JT. Exh. 7, at 22, case 2008-08-227.
9 JT. Exh. 9, at 14.
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B. The Analysis
Complaint paragraphs 6 and 7 allege that Respondent violated section 8(a)(5) of the Act
by failing and refusing to furnish the Union with copies of the Report which, are necessary and
relevant to the Union’s performance of its duties as the exclusive collective bargaining
representative of the above described unit.
Counsel for the General Counsel contends that the Report is necessary and relevant to
the Union’s function as exclusive bargaining representative. Respondent argues that it has no
obligation to furnish the Reports because the Union did not specify the reasons it required the
Reports, the Reports are available to the Union, the Joint Board ruled the Union is not entitled to
the Reports absent a pending grievance and because providing the Reports would compromise
the confidentiality of the Reports.
It is axiomatic that a union is entitled to information that is necessary and relevant to its
duties as exclusive collective bargaining representative. NLRB v. Acme Industrial Co., 385 U.S.
432 (1967). The employer’s duty to furnish necessary and relevant information extends to
grievance initiation or processing. U.S. Postal Service, 337 NLRB 820 (2002).
A request for information concerning wages, hours and other terms and conditions of
employment of bargaining unit employees is presumptively relevant and must be supplied in a
timely manner. Fleming Companies, 332 NLRB 1086 (2000). In seeking such information the
union is not required to establish the precise relevance of the information unless the employer
can rebut the presumption that the information is relevant. Mathews Ready Mix, 324 NLRB
1005, 1007 (1997) enfd 165 F.3d 74 (DC Cir. 1999). Relevance is determined by a broad
discovery type standard. Pennsylvania Power Co., 301 NLRB 1104 (1991.
In the instant case the information requested by the Union was presumptively relevant.
The Reports dealt with issues concerning wages and hours as well as information that could
lead to discipline. I find that Respondent has failed to show that the information is not relevant
to the Union’s duty of representing employees in the bargaining unit, accordingly the Union was
under no obligation to establish the relevance or reasons it needed the Reports. Respondent’s
reliance on Sara Lee Bakery Group, Inc., v. NLRB, 514 F.3d 422 (5th Cir. 2008), Crowley Marine
Services, Inc., 329 NLRB1054, 1059-1060 (1999), and Calmat Co., 283 NLRB 1103, 1106
(1987) for the proposition that a union must articulate a purpose for the information it seeks is
inapposite since the information requested in those cases dealt with non bargaining unit
information and thus was not presumptively relevant. Moreover, Sara Lee Bakery, to the extent
that it stands for the proposition that a union must articulate a need for presumptively relevant
information requested flies in the face of well-established Board precedent cited above that has
not been reversed by the Supreme Court. Therefore I am under an obligation to follow Board
precedent. Los Angeles New Hospital, 244 NLRB 960, 962, fn. 4 (1979).
Respondent also contends that the Union had access to the Reports and thus was under
no obligation to furnish them to the Union. While an employer is not obligated to furnish
information in the exact form requested as long as it is made available in a manner not so
burdensome or time consuming as to impede collective bargaining, an employer may be
required to furnish photocopies, particularly where the records requested are complex.
Abercrombie & Fitch Co., 206 NLRB 464, 466 (1973); AT&T, 250 NLRB 47 (1980).
The record reflects that the Reports were available for a limited time period of 30 days in
the supervisor’s office. Moreover, the Union stewards had a limited time to review the reports
before work and they were not permitted to copy the Reports. The Reports were multi-page
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spread sheets that could not be assimilated in a brief review as was the case with the one and
three-page reports in AT&T and Roadway Express, Inc., 275 NLRB 1107 (1985) where the
Board found that permitting the Union to review the documents was sufficient. Here
Respondent was under an obligation to make copes available to the Union.
Respondent next contends that the Joint Board decision absolved it of an obligation to
furnish the Reports. Article 4 of the parties’ collective bargaining agreement limits the Union’s
contractual right to information to pending grievances. However this does not diminish the
Union’s right to relevant information that is necessary to police the contract under Board law.
Reiss Viking, 312 NLRB 622, 625 (1993). This is because Article 4 does not constitute a waiver
of the Union’s statutory rights since there is no clear and unmistakable waiver of the Union’s
statutory rights. Hearst Corp., 113 NLRB 1067 (1955); Skyway Luggage Co., 117 NLRB 681
(1957). In addition the Board will not defer to arbitration under Collyer in information request
cases. Lithographers Local One-L (Metropolitan Lithographers of America), 352 NLRB 906, n. 2
(2008). Thus, the absence of a pending grievance is irrelevant to the Union’s right to
information in the context of grievance investigations. Audio Engineering, 302 NLRB 942, 944
(1991).
Finally Respondent contends that its confidential interests preclude divulging the Report
to the Union. An employer may have a valid basis for asserting confidentiality as a basis for
denying an information request. Detroit Edison Co., v. NLRB, 440 U.S. 301 (1979); Allen
Storage and Moving Co., 342 NLRB 501 (2004). However the party asserting the privilege has
the burden of proof and must assert the privilege in a timely manner at the time the request is
made with an effort to bargain in good faith to accommodate the confidential interest. US Postal
Service, 289 NLRB 942, 944 (1988); Allegheny Power, 339 NLRB 585, 589 (2003);
Pennsylvania Power, supra; GTE, 324 NLRB 424, 427(1997).
Here Respondent’s actions belie its contention that the Reports represent confidential
information that must be protected. The Reports have been made available to the Union in
conjunction with grievances in the past without regard to their confidentiality. The manner in
which Respondent both disseminates the Reports to its employees and disposes of the Reports
is haphazard and demonstrates no intent by Respondent to maintain their confidentiality.
Further at the time the Reports were requested by the Union, Respondent did not assert the
privilege and made no effort to accommodate its confidential interest. Indeed, Respondent’s
supervisors, without any effort to bargain, simply refused to provide the Reports despite the
Union’s effort to accommodate Respondent.
I conclude that Respondent has violated Section 8(a)(5) of the Act in refusing to provide
the Union with copies of the Report.
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. Respondent has been at all times material an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union is, and has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
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3. Respondent violated Section 8(a)(1) and (5) of the Act by refusing to provide the
Union with information.
4. The unfair labor practices described above are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
Remedy
Counsel for the General Counsel contends that as part of the Remedy, Respondent
should be required to send information via DIAD to its employees advising them that there is a
Notice to Employees citing, Nordstrom, Inc., 347 NLRB No. 28 fn. 5 (2006). In Nordstrom Inc.
the Board declined to require electronic posting in the absence of a record demonstrating that
the Respondent customarily communicates with its employees electronically. However, the
Board noted it was open to modifying standard notice posting language where the General
Counsel provides evidence at an unfair labor practice hearing that a Respondent customarily
communicates with its employees electronically and proposes such modification to the
administrative law judge in the unfair labor practice proceeding.
Here General Counsel both offered evidence concerning Respondent’s electronic
communication with its employees and proposed modifying the standard notice posting
language in the instant proceeding to include electronic notice posting.
The evidence concerning Respondent’s use of its electronic DIADs reflects that it
regularly communicates with its employees via the DIADs to advise them to take breaks, to
warn them of hazardous road conditions and tell them of missed packages. It appears that the
DIADs are capable of displaying four to five lines of text on their 3 by 5 inch screens. Given
Respondent’s customary communication with its employees via the electronic DIAD and given
the DIAD’s capacity for short text messages, it seems appropriate in this case to recommend
modifying standard Board notice posting language to include communicating with its employees
via DIAD that a Notice to Employees had been posted and in what locations.
Having found that the Respondents violated the Act as set forth above, I shall order that
it cease and desist there from and post remedial Board notices addressing the violations found.
ORDER
Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended Order.10
The Respondent United Parcel Service, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
a. Refusing to bargain in good faith with Teamsters Local No. 886 as the collective
bargaining agent of the employees in the following unit:

10 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
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All full time and regular part time feeder drivers, package drivers, sorters,
loaders, unloaders, porters, office clerical, clerks, mechanics,
maintenance personnel (building maintenance), car washers, United
Parcel Service employees in the employers’ air operation, and to the
extent allowed by law, employees in the export and import operations
performing load and unload duties, and other employees of the employer
for whom a signatory Local Union is or may become the bargaining
representative.
b. Refusing to provide the Union with requested information.
c. In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designated to effectuate the policies of the Act:
a. Upon request meet and bargain at reasonable times and places with Teamsters
Local No. 886, as the exclusive collective bargaining representative of the employees in the
above mentioned unit.
b. Upon request provide the Union with copies of the Daily Package Recap Report.
c. Within 14 days after service by the Region, post at its 901 S. Portland, Oklahoma
City, Oklahoma facility copies of the attached notice marked “Appendix.”11 Copies of the notice,
on forms provided by the Regional Director for Region 17, after being signed by the
Respondents’ authorized representative, shall be posted by the Respondents immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. Respondent shall further notify its employees in the above bargaining unit, via DIAD,
that a “Notice to Employees” has been posted at its 901 S. Portland, Oklahoma City, Oklahoma
facility. In the event Respondent has gone out of business or closed any of the facilities
involved in these proceedings, the Respondents shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the
Respondents at any time since June 2008.
d. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official, on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. March 4, 2009
_____________________
John J. McCarrick
Administrative Law Judge

11 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
Accordingly, we give our employees the following assurances:
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT refuse to bargain in good faith with Teamsters Local No. 886 as the collective
bargaining agent of the employees in the following unit:
All full time and regular part time feeder drivers, package drivers, sorters,
loaders, unloaders, porters, office clerical, clerks, mechanics, maintenance
personnel (building maintenance), car washers, United Parcel Service
employees in the employers’ air operation, and to the extent allowed by law,
employees in the export and import operations performing load and unload
duties, and other employees of the employer for whom a signatory Local Union is
or may become the bargaining representative.
WE WILL NOT refuse to furnish information requested by the Union that is relevant and
necessary to the Union’s performance of its duties as your collective bargaining representative.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the National Labor Relations Act.
WE WILL notify employees in the above bargaining unit, via DIAD, that a “Notice to Employees”
has been posted at the 901 S. Portland, Oklahoma City, Oklahoma facility.
UNITED PARCEL SERVICE, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
8600 Farley Street, Suite 100
Overland Park, Kansas 66212-4677
Hours: 8:15 a.m. to 4:45 p.m.
913-967-3000.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT
BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE
OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 913-967-3005.