United States Postal Service

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1282 (N.L.R.B. 1985)

1282 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United - States Postal Service and American Postal
Workers Union AFL-CIO, Wilmington, Dela-
ware Local . Case 4-CA-14067-P - ' - - -
30 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 14 May 1985 Administrative Law Judge
Irwin Kaplan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor. Relations Board has delegat-
ed 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, I and
conclusions and to adopt the recommended Order.
and (1) of the National Labor Relations Act, by failing
and refusing to furnish certain information requested by
the Local on behalf of American Postal Workers Union;
AFL-CIO (the International), which was "necessary"
and, "relevant" to the International's performance -as the
exclusive representative for the appropriate collective-
bargaining unit involved herein.- The aforenoted charges
gave rise to a complaint and notice of hearing which
issued on December 15, 1983.
Respondent filed an answer (amended at the hearing)
conceding, inter alia, jurisdictional facts but denying that
it committed any unfair -labor -practices. In its answer,
Respondent also denied the appropriateness of the a1=
leged unit for collective-bargaining purposes within the
meaning of Section 9(b) of the Act.' As an affirmative
defense, Respondent urges the Board to defer further
processing of the case, pending resort through the griev-
ance-arbitration procedures of the -collective-bargaining
agreement. '
On the entire record, including my observation of the
witnesses, and after careful consideration of the posttrial
briefs, I find the following
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, United
States ,Postal Service, Wilmington, Delaware, its
officers, agents, successors, and assigns, shall take
the action set forth in-the Order. - --
'The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law Judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), -enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In adopting the judge 's findings that the Respondent's failure to furnish
certain information requested by the Union violated Sec 8(a)(5) and (1)
of the - Act, we note that although the Union clearly had access to certain
information posted on the Respondent's bulletin board for purposes of de-
ciding whether to file grievances, the Union adequately demonstrated
that actual copies of such postings were necessary in order to document
grievances for processing beyond the level of the Local Thus, under
these circumstances , the fact that the information was publicly posted did
not fulfill the Respondent ' s obligation to provide the Union with the re-
quested documents '
Barbara C. Joseph, - Esq.; of Philadelphia, Pennsylvania,
for the General Counsel.
Joseph J. Mahon, Jr., Regional Labor Counsel, of Phila-
delphia, Pennsylvania, for the Respondent
DECISION -
STATEMENT OF THE CASE,
IRWIN KAPLAN , Administrative Law Judge . This case
was heard on March 20 and 21 , 1984,.in Philadelphia,
Pennsylvania . The underlying charges were filed on No-
vember 2 , - 1983, by American Postal Workers Union,
AFL-CIO, Wilmington , Delaware Local (the Local or
the Union), alleging in essence that the United States
Postal Service - (Respondent ) had violated Section 8(a)(5)
276 NLRB No. 143
- FINDINGS OF FACT-
I. JURISDICTION
The Respondent, United States Postal Service, is an in-
dependent establishment of the Executive Branch of
Government, created by the Postal Reorganization Act
of 1970, 39 U.S.C. § 101 et seq (the PRA). It provides
postal services for the United States of America and op-
erates facilities throughout the United States in the per-
formance of that function, - including facilities in Wil-
-mington, Delaware, which are involved in this proceed-
ing. By virtue of Section 1209 of the PRA, jurisdiction is
conferred on the Board. See also Postal Service, supra.
II THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that the Local is a labor or-
ganization within the meaning of Section 2(5) of the Act.
It is admitted, and I find, that the International is a
labor organization within the meaning of Section 2(5) of
the' Act.
'- Respondent however admitted , inter alia , that at all times material
herein, it has recognized the International as the exclusive collective-bar-
gaining representative for the alleged appropriate unit , as set forth in the
then outstanding collective-bargaining agreement (Jt Exh 1, art 1 )
Moreover, Respondent stipulated, inter alts , that under both, the Postal
Reorganization Act and National Labor Relations Act, tt is "obligated"
to bargain over nationwide units referred to in the aforesaid bargaining
agreement While the Board has noted a number of factors tending to
support the alleged nationwide unit, at the same time it has not precluded
a unit finding smaller in scope See United States Postal Service, 208
NLRB 948 (1974). Here, Respondent failed to treat the issue in its post-
trial brief and may have abandoned its unit position In any event, the
record is devoid of any factors tending to justify a departure from the
historical nationwide unit The Board has consistently abstained-from
changing any longstanding collective -bargaining units unless clearly re-
pugnant to the purposes and policies of the Act See Towne Plaza Hotel,
258 NLRB 69, 76 ( 1981), and cases cited therein In these circumstances,
I find that the alleged unit is appropriate for collective-bargaining pur-
poses
POSTAL SERVICE
It is admitted, and I find, that the requests for informa-
tion in question herein were made by stewards of the
Local, "designated by, and acting on behalf of,-"the Inter-,
national."
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Barry W. Jedlicka, a machine operator, has been em-
ployed by the Postal Service for approximately 10 years.
In September 1983,2 Jedlicka became a shop steward. In
that capacity, Jedlicka, inter alia, serviced certain unit
employees employed at Respondent's Wilmington, Dela-
ware facilities, mainly, with regard to step 1 of the griev-
ance-arbitration procedure set forth in the collective-bar-
gaining agreement . Under this procedure, any employee
who feels aggrieved, has a 14-day period to discuss the
matter with his immediate supervisor and "may be ac-
companied and represented by the employee's steward."
(Jt. Exh. 1, p. 52.) The Union also may initiate a griev-
ance at step 1 with or without the participation of The
grievant and such "union grievance may involve more
than one employee" (Id.) The steward has the "authority
to settle or withdraw the grievance in whole or in part,"
at step 1. (Id.)
If the matter in question is not resolved at step 1 the
steward has the authority to file a step 2 appeal (within
10 days) and to continue to represent the grievant ate that
stage . While Jedlicka has filed a number of appeals, he
has not participated in any step 2 discussions. The local
union vice president is normally designated to deal with
management and to process the grievance at that level.
In dispute herein are requests for information in the
time period September 13 to October 20, most of which
was made by Jedlicka (G.C. Exhs. 2(a)-(1)), and the rest
by Local Union President Malcolm T. Smith (G.C. Exhs.
2(m)-(o)).3 According to Smith and Jedlicka the purpose
of these requests was to obtain documentation to support
grievances or to determine whether the facts justify a
formal grievance in the first instance. It is admitted
(G.C. Exh. 1(e), par. 7) that these requests were all made
as set forth in the complaint (G.C. Exh. 1(c), par. 7; see
also G.C. Exhs. 2(a)-(o)) as follows:
(a) On or about September 15, 1983, requested a
list of-all overtime between the hours of 0700 and
1000 hours of tour 1 employees from September 8,
1983-September 14, 1983, when these hours were,
and in what work area they were performed
(b) On or about October 18, 1983, requested a
time and attendance inquiry for machine qualified 1
& 6 clerks on tour 1 for pay period 21.
(c) On or about October 17, 1983, requested a
copy of the minutes of the Labor Management
meeting for October 6, 1983.
(d) On or about October 11, 1983, requested a
time and. attendance inquiry for all tour 1 employees
for pay' period 20, and a list of the employees on the
? All dates hereinafter refer to 1983, unless otherwise indicated
8 The request forms have been used. by the Union to obtain informa-
tion and documents from Respondent since at least 1980
1283
"OT Desired" list, from. October 1, through Decem-
ber 31.
(e) On or about October 5, 1983, requested a time
and attendance inquiry'of all qualified LSM opera-
tors in tour 1 for October 7, 1983 through October
10, 1983.
(f) On or about October 5, 1983, requested a time
and attendance inquiry for all qualified LSM opera-
tors on tour I for pay period 20 and 21.
(g) On' or about October 5, 1983, requested a
copy of'the holiday schedule for October 7, 1983
through October 10, 1983, as posted on October 5,
1983.
(h) On or about October 8, 1983, requested a
time and attendance inquiry on Gil Cunningham
(222-44-9925) from September 24, 1983 through
October 8, 1983, a time and attendance inquiry on
all qualified LSM New Castle clerks on tour 1 from
September 24, 1983-October 8, 1983, and a list of
all qualified LSM New Castle clerks on tour 1.
(i) On or about September 20, 1983, requested the
total hours worked by E. Ferst (221-36-2481) from
September 11, 1983 and each begin tour and end
tour.
(j) On or about September 16, 1983 requested a
list of qualified city box clerks on tour 1. .
(k) On or about September 15, 1983, requested an
attendance inquiry on all employees in pay locations
013 through 017 for 21 days beginning September
17, 1983.
(1) On or about September 13, 1983, requested a
list of all tour - 1 employees who are required and
qualified to key Delaware mail on the LSM, and a -
list of all job and numbers held by tour 1 employees
that are required to key Delaware mail on the LSM
and who hold that job and number.
(m) On or about October 20, 1983, requested a
list of. schools, volunteer lists and list of selections
for schools.
(n) On or about October 19, 1983, requested form
3971 for the.date, July 8, 1983; September 8, 1983,
September 15, 1983, September 29, 1983, September
30,' 1983, October 3, 1983, October 4, 1983, and Oc-
tober 6, 1983. - -
(o) On or about September 19, 1983, requested
for Joseph Piwinski the original posting for his job,
written justification of -abolishment, and the date the
job was awarded to J. Piwinski.
Smith- and Jedlicka testified that in mid- to late Octo-
ber they initiated a meeting with Respondent Director of
Employee and Labor Relations Irvin H. Carty Jr. to get
him to comply with the Union' s outstanding requests for
information. Further, they testified that they solicited
Carty's assistance in drafting certain of the- requests
whereby the Union was seeking clock rings of employees
showing their begin tours and end tours.4 The Union as-
4'Basically , employees have five clock, rings to cover the course of a
- day begin tour (BT), out to lunch (OT), into lunch (IL), end tour (ET), -
and moving from one job operation to another (MV) The information is
punched into the-Postal Service 's computerized system
1284 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD
sertedly wanted this information to ' establish who
worked and who did not work in order to determine,
inter alia, whether Respondent scheduled employees to
work overtime in a manner inconsistent with the con-
tract. (E.g., G C. Exh. 5.) To this, Carty was assertedly
unreceptive and failed to respond. Jedlicka acknowl-
edged that he may have thrown Carty off by inartfully
characterizing the information sought as "time and at-
tendance" inquiries. According to Smith and Jedlicka,
the meeting was also otherwise unproductive, as Carty,'
inter alia, noted the expense involved in complying, that
it was time consuming and contended that the Union did
not need the requested information. They asserted that
Carty spoke of grievances unrelated to the ones in ques-
tion, or where it matched, he failed to address himself to
the information requested.5 Carty did not "remember"
any October meeting but acknowledged that it could
have occurred, as testified.
It is undisputed that Carty met with Smith and Jed-
licka over the "requests" around mid-December.6 Short-
ly before the meeting , Carty, at the direction of-his supe-
rior, Postmaster Shirley McDonald, complied with some
of the Union's requests. (G.C. Exhs. 2(c), (d), (i), (j), and
(h).)7 While the witnesses differ somewhat as to how this
meeting came to pass, the substance of what transpired
therein is not materially disputed.
According to Smith .and-Jedlicka, the December meet-
ing went ' much the same way as the October -meeting:
Carty would not disclose the acceptable terminology for
time and attendance inquiries and, in general, he contin-
ued to resist their efforts to obtain documentation. At
some point 'during the meeting, Carty was asked-whether
the time and attendance information would be furnished
if requested in layman's terms, and Carty responded in
the affirmative. Carty also told them that the time and
attendance inquiries, as requested by Jedlicka, were not
retrievable.8 According to Carty, Jedlicka was not listen-
5 As noted above, the General Counsel's witnesses asserted that some
of the information requested was to determine whether a justifiable basis
existed for the filing of a grievance Thus, not all of the requests contain
a grievance number (see, e g, 2(e), (k), and (1)) This may account for
Carty's confusion with grievances which did not correspond to their un-
derlying requests In any event , for reasons noted infra, I find that Re-
spondent 's noncompliance was attributable to other factors
6 As noted previously, the underlying unfair labor practice charges
were filed on November 2 (G C Exh 1(a)) .
The General Counsel maintains that G C Exhs 2(a) and (b) were
only partially complied with by Respondent
As explained by Carty, the Postal Service maintains a 7-6 code for
-so-called time and attendance inquiries Under Respondent 's computer-
ized recording system, employees are designated "authorizer badges"
containing their social security numbers These badges are inserted into a,
machine (badge reader or transactor) "to determine [inter alia] who is
working on a particular operation during a specific time of day and
how many people are working on that operation " Carty testified that in-
formation is retrievable "for anyting that has happened up to two hours
prior. If you want anything after that , then you have to insert it [badges]
two hours later " According to Carty, "Once the tour has ended," the
information cannot be recapture[d] " In other words, "time and attend-
ance" inquiries cannot be retrieved unless requested on the tour and day
in question This is disputed by Smith, who asserted that under the Postal
Service Data System (PSDS), clock ring information is transmitted to
Respondent 's data center in Wilkes Barre, Pennsylvania , and is returned
to the Wilmington installation as a computer printout for all employees
on a daily basis
ing and "I sort of lost my temper." When Smith or Jed-
licka asked him how to express in writing what they
wanted, Carty replied, "It is not my job as management
to tell you what you should be asking for: If you are re-
questing information, then you should know what the
hell you are asking for." The meeting ended shortly
afterward.
Jedlicka testified that in late December or early Janu-
ary 1984, while perusing the PSDS Time and Attend-
ance Handbook (G.C. Exh. 10), he came upon the term
"microfiche." At the time, Jedlicka was still searching
for the acceptable term reflecting begin tour-end tour
type information. The microfiche is a computer printout
consisting of 14 days of clock rings for an employee.
This printout is maintained by the finance section on
every employee, listing, inter alia, the employees' work
hours, days worked, overtime, work locations, job oper-
ations, nonscheduled workdays, and whether employees
worked on their nonscheduled days for an entire 2-week
pay period. Jedlicka testified that since he has discovered
"microfiche," he has substituted that term for "time and
attendance" inquiries on subsequent "requests" (none of
which are involved herein) and has achieved some com-
pliance from Respondent. However, Jedlicka asserted, at
times, he needs information for only 1 day or something
less than an entire pay period and- still does not know
how to secure such information from Respondent.
. B.. Discussion and Conclusions
1. Deferral contention
Respondent urges the Board to treat request for infor-
mation cases in the same manner as all other issues gov-
erned by its deferral policy. As such, and noting the na-
tional labor policy favoring arbitration, Respondent con-
tends, that the issues raised by the instant 'complaint
should be resolved through the grievance-arbitration pro-
visions agreed to by the parties. According to Respond-
ent "the Board's- intervention into proceedings of this
nature . . . undermines rather than enhances the collec-
tive bargaining process." The parties' collective-bargain-
ing agreement contains a section expressly dealing with
the Union's access to information which, in pertinent
part, states as follows:
Section 2. Information
The Employer will make available for inspection by
the Unions all relevant information necessary for col-
lective bargaining on the enforcement, administration
or interpretation of this Agreement, including informa-
tion necessary to determine whether to file or to contin-
ue the processing of a grievance under this Agreement.
Upon the request of the Union, the Employer will fur-
nish such information provided, however, that the
Employer may require the Union to reimburse the
USPS for any costs reasonably incurred in obtain-
ing the information . . . .
Nothing herein shall waive any rights the Union or
Unions may have to obtain information under the Na-
POSTAL SERVICE
tional Labor Relations Act, as amended. [Jt. Exh. 1,
pp. 83-84, emphasis added.]
While by virtue of the aforenoted-cited section, the
parties contractually agreed that the Union, on request,
be provided all "relevant information," the parties, at the
same time, contractually rejected the notion that this
provision constituted a union waiver to obtain such in-
formation under the Act. Respondent, for its part, does
not- argue waiver, but, rather, that the Board's overall
deferral policy is no less applicable to. request for infor-
mation cases. Further, Respondent maintains that griev--
ance arbitration is more expeditious than Board proceed-
ings, and points out that-the arbitrator charged with the
responsibility of interpreting the contract, is particularly.
well-suited to determine in each case what is "relevant
and necessary" to the processing of a grievance. .
The General Counsel,. in opposing deferral, relies
largely on the reasons expressed by the Board in General"
Dynamics Corp. (also General Dynamics 1), 268 NLRB
1432 fn. 2 (1984). There, the union had requested infor-
mation to determine whether to file grievances (which it
later did) regarding the subcontracting of unit work. The
Board, in rejecting the deferral contention, stated as fol-
lows:
[W]e find no merit in encumbering the process of
resolving the pending subcontracting grievances
with the inevitable delays attendant to the filing,
processing ,' and submission to arbitration of a new
grievance regarding the information request. Such a
two-tiered arbitration process would not be consistent
with our national policy favoring the voluntary and ex-
peditious resolution of disputes through arbitration.
Nor would it be consistent with prior Board decisions
in the area . See, e.g ., Safeway Stores, 236 NLRB
1126 fn. 1 (1978); St. Joseph's Hospital, 233 NLRB
1116 fn. 1 (1977). [Emphasis added.]
The Board's reasons for refusing to abstain in General
Dynamics are fully consonant with the views articulated
by the Supreme Court, some 17 years earlier in NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967). In assessing the
relative merits of Board intervention versus Board defer-
ence to an arbitrator (involving an employer's obligation
to furnish- information that allows a union to decide
whether to process a grievance), the court, inter alia, ob-
served as follows (id. at 438-439):
Far from intruding upon the preserve of the arbi-
trator, the. Board's action [The Board ordered the
employer to furnish the union the requested infor-
mation.] was in aid of the arbitral process. Arbitra- -
tion can function properly only if the grievance
procedures leading to it can sift out unmeritorious
claims . For if all claims originally initiated as griev-
ances had to be processed through to arbitration,
the system would be woefully overburdened. Yet,
that is precisely what the respondent's restrictive
view would require. It would force the union to
take a grievance all the way through to arbitration
without providing the opportunity to evaluate the
merits of the - claim. [Footnote omitted.] The ex-
1285
pense of arbitration might be placed upon the union
only for it to learn that the - machines had been rel-
egated ' to the junk heap . Nothing in federal labor
law requires such a result.
In the case at hand , Respondent either overlooks or
impliedly ignores the Union 's statutory right to relevant
information (absent waiver and none herein is contended
or found to exist). This statutory right has been accorded
prominence by the overwhelming - weight of time-tested
decisions by the Board and the - courts . See NLRB v.
Acme Industrial Co., 385- U. S. at 437 ; New York Times
Co., 270 NLRB 1267, 1273-74 (1984); Pfizer, Inc., 268
NLRB 916, 918 ( 1984); National Cleaning Co., 265
NLRB 1352, 1353 ( 1982);- Chesapeake & Potomac Tele-
phone Co., 259 NLRB 225, 226-227 (1981), enfd. 687
F.2d 633 (2d Cir . 1982); General Dynamics Corp ., supra at
1632. Cf. United Aircraft Corp ; 204 NLRB 87-9 (1973).9
While the Board has provided concrete expression to
the Federal labor policy favoring arbitration , e.g;; Collyer
Insulated Wire, 192 NLRB 837 (1971); United Technol-
ogies Corp., 268 NLRB 557 ( 1984), it has , as noted above,
time and again impliedly rejected the notion that blind
adherence thereto serves that policy or enhances collec-
tive bargaining . Accordingly, I reject Respondent's con-
tention that deferral is appropriate in the circumstances
of this case.- -
2. The-substantative allegation: Whether the
requested information is relevant and necessary
This case turns largely on whether the requested infor-
mation is relevant and necessary to the Union in the ex-
ercise of its responsibilities as the exclusive collective-
bargaining representative for the unit employees in-
volved herein. For ' it has long been established that an
employer has a duty to provide, on" request, information
"relevant in carrying out its statutory responsibilities."
NLRB v. Acme Industrial Co., 385 U.S at 437; Truitt
Mfg. Co., 351 U.S. 149-(1956). Whether the requested in-
formation is relevant and necessary is determined by the
factual circumstances on a case-by-case basis. Procter &
Gamble Mfg. Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir.
1979); Washington Hospital Center, 270 NLRB 396.(1984).
There are, however, certain types of information pertain-
ing to wages, hours, and working conditions of bargain-
ing unit employees so intrinsic to the core of employer-
employee relationship that the requested information is
considered presumptively appropriate. Newspaper Guild
Local 95 (San Diego) v.. NLRB, 548 F.2d 863, 867 (9th
Cir. 1977). Accord: Teleprompter Corp. v. NLRB, 570
F.2d.4-(Ist Cir. 1977); Procter & Gamble Mfg. v. NLRB,
9 In United Aircraft, the Board determined that the "waiver" question.
in the circumstances therein be best resolved at arbitration, it has not
since deferred to arbitration the union 's statutory right to have produced
relevant information See General Dynamics Corp (General Dynamics II),
270 NLRB 829 (1984) Here, in urging deferral, Respondent also relied
on certain rejected documents including a non-Board settlement of a ear-
lier case (rejected, R Exhs 2-4), all of which, inter alia, antedated Gen-
eral Dynamics I. It is not contended that the settlement agreement consti-
tuted a waiver Of greater significance is that the parties contractually ac-
knowledged the Union 's right "to obtain information under the National
Labor Relations Act, as amended " (Jt Exh 1 at 84)
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supra at 1315. The Board has also recently observed that
the "information need not necessarily be dispositive of
the issue between the parties, it need only have some
bearing' on it." Pfizer, Inc., 268 NLRB at 918: Further,
the Board has noted that a broad discovery-type stand-
ard is to be applied. Id.- In applying the foregoing consid-
erations and principles to the instant case I find, for rea-
sons noted below, that in the main the requested infor-
mation is presumptively relevant. As such, the burden is
on Respondent to show a lack of relevance. See Procter
& Gamble Mfg. v. NLRB, supra, citing principally News-
paper Guild Local 95 (San Diego) v. NLRB, supra; Cur-
tiss-Wright Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir:
1965).
In the case at hand, the requests for information were
made in conjunction " with grievances already filed or
contemplated. Most of these requests were made by
Shop Steward -Jedlicka and related,- in the main, to possi-
ble improper scheduling of overtime and holiday work
assignments. For-example, on d request form received by
Respondent on September 16, Jedlicka had requested "A
list of all overtime between the hours of 0700 and 1000
hours of tour 1• employees from September 8th 1983 thru
[sic] Sept. 18, 1983. When those hours were and in what
work area they, were performed.".(G.C. Exh. 2(a).) Jed-
licka testified credibly' ° that machine operators had
complained that they were forced to work overtime on
different operations and -away from their normal work
stations, such as in-the box section; when qualified box
section employees should have been required to work
the overtime." Respondent did not respond to Jedlicka's
request and a written grievance-dated September 22 fol-
lowed. (G.C. Exh. 3.)
At step 2 of the aforenoted grievance, Respondent ac-
knowledged that box section employees be required- to
work overtime before machine operators in the box area,
as contended by Jedlicka. According to Respondent, as it
had agreed to the Union's contractual interpretation in
10 Of the five -witnesses to testify, Jedlicka was clearly the most im
pressive His testimony was largely corroborated by Smith and Carty, or
not denied by Carty I found Jedlicka to be responsive , consistent, plausi-
ble, and forthright As for the last • of these factors, it is noted , inter alia,
that Jedlicka volunteered early in his testimony, "I guess my, word, time
and attendance is what threw Carty and myself off" Carry, on the other
hand , was unresponsive , inconsistent , implausible , and demonstrated poor
recall in important areas For example , Carty could not recall the impor-
tant October meeting with Smith and Jedlicka, shortly before the instant
charges were-filed, although he acknowledged that it could have oc-
curred as stated by the General Counsel' s witnesses I also find it some-
what incongruous for Carry to assert, on one hand , that he was "trying to
find out what the hell [the Union] wanted and why they wanted it," and
on the other hand ; when the Union asked for help in communicating,
Carty refused, stating, "_it is not my job as management " While Smith at
times was conclusionary and unresponsive , I found overall his testimony
to be internally consistent , as well as corroborated substantially by Jed-
licka On the basis of the foregoing , the entire record , and my observa-
tion of demeanor factors, I credit Jelicka and Smith over Carty, in all ma-
tenal areas where their testimony is in conflict
'ii Jedlicka relied on 'art 8, sec. 5 of the collective-bargaining agree-
ment which provides iii pertinent part that "[w]hen needed, overtime for
regular full-time employees shall be scheduled among qualified employees
doing similar work in the work location -where the employees regularly
work " (Jt Exh 1 , p 16) Certain contractual provisions are set forth and
examined herein only to determine whether the requested information has
potential relevance and not to convey any opinion regarding the merits
of the Union's contractual claims Acme Industrial Co, supra at 437-438
principle, there was no longer any factual dispute "and
consequently no need or relevancy" for the requested
factual data which Carty testified would take a week to
compile. The record indicates and I find otherwise. It is
noted, for example, that the grievance was only partially
resolved and had advanced to - step 3 where it remained
at the opening of the instant hearing. Moreover, the
Union was seeking a broader remedy than mere confir-
mation of its contractual position, i.e., overtime compen-
sation for qualified box clerks who were wrongfully
passed over and administrative leave for the machine op-
erators who actually performed the overtime. Thus, inter
alia, the Union needed to know the identity of the indi-
viduals so involved. Clearly, without more, the fact that
Respondent may have needed a week to gather such in-
formation (as testified by Carty) does not appear unduly
burdensome. _
As for Respondent's challenge of "relevance" on the
basis that there is no longer a factual dispute (contrac-
tually), this-in no way addresses the Union' s legitimate
concerns over the identity of unit employees wrongfully
treated, in regard to an appropriate remedy, relative to
the overtime in question during the time period covered
by the request and grievance. The Board observed in
Conrock Co., 263 NLRB 1293, 1294 (1982):
[R]elevant information cannot be rendered irrele-
vant by an employer's promise not to raise a par-
ticular defense at an arbitration proceeding. That
notion is inconsistent with a union 's right to evalu-
ate relevant information while deciding whether to
pursue the grievance at all. Also, a union has the
right and the responsibility to frame the issues and
advance whatever contentions it believes may lead
to the successful resolution of a grievance.
Similarly, in the instant case, the Union has a right to
evaluate the specific information sought to determine its
position for further processing of the greivance -(which,
as noted above , was still outstanding at the time the
hearing herein opened), including the scope of an appro-
priate remedy. In these circumstances,. Respondent, by
merely denying the existence of any contractual factual
issue, has not effectively rebutted the General Counsel's
showing of relevance. Accordingly, I find Respondent's
failure to furnish the requested information is violative of
Section 8(a)(5) of the Act, as alleged.
The record also disclosed that Jedlicka erroneously re-
ferred to "time and attendance." on certain requests
(G.C. -Exhs. 2(b), (d), (e), (f),- (h), and (k)), when he- was
actually seeking the clock rings for employees showing,
inter alia, the time employees began and ended their
tours. In one such request, Jedlicka made inquiry of all
qualified machine 1 & 6 clerks on tour 1 for pay period
21 (G.C. Exh. 2(b)). It appears that generally junior em-
ployees are require t to work holidays before senior em-
ployees and this- information was needed, inter alia, to
support the grievance of Kathleen Zdrojewski, a quali-
fied machine 1 & 6 clerk on tour 1 (G.C. Exh: 4). Zdro-
jewski had aggrieved her assignment to work a holiday,
although Gale Cook, a junior qualified machine I -& 6
clerk, had not been scheduled to work on that occasion.
POSTAL SERVICE 1287_
- "According, to Respondent, the facts relative to' Zdro-
jewski's grievance were not contested but turned on
whether a medical note submitted by Cook ,justified man--
agement 's assignment . Jedlicka, on the other hand,
wanted. the information also to' determine whether other
senior employees' were.improperly assigned over junior
employees during the pay period in question. Respondent
did not comply with, the request. -
On, another "time and attendance" request, Jedlicka
made inquiry for "all tour 1 employees for pay period
20." (G.C. Exh 2(d).) He also requested .'•`a list of the
employees on the `O.T. Desired' [overtime] list from
Oct[ober] 1 thrw Dec[ember] 31." (Id.) Jedlicka ex-
plained that he wanted to determine which employees
were required to work 6 consecutive days of overtime in
violation of the collective-bargaining agreement (Jt. Exh.
1).12 As.for requesting the overtime desired list, Jedlicka
explained that he wanted to exclude from any grievance
those individuals who desired the overtime "because-it is
their option." A grievance was subsequently filed where-
in Jedlicka noted, inter alia, that he "[had] not received
any information from Mr. Carty-[request] not denied-
not approved." (G C. Exh: 5.)
The record disclosed that several weeks after the in-
stant charges were filed, Carty had partially -approved
the aforenoted request and in writing advised the Union
that -"time and attendance inquiries cannot be retrieved
unless requested on the tour and day in question." (See
request attachment to G C. Exh. 5.) Thus, Respondent
contends, that it was not possible to "physically" honor
the Union's request for time and attendance inquiries. As
for the requested overtime list, Respondent points out
that the Union later secured the document. However, for
reasons noted more fully- infra, I find that Respondent,
inter alia , failed to-justify why it waited approximately 2
months to partially respond and comply to the Union's
request.
Jedlicka's other "time and attendance inquiries" also
related to concerns over improper scheduling of over-
time and holidays (G.C. Exhs. 2(e), (f), (h), and (k)).
Again, this information was largely sought to either sup-
port grievances or to determine whether there was a
basis to file a grievance in the first instance 13
As noted previously, Jedlicka acknowledged that his
reference to "time and attendance" might have confused
Carty. Jedlicka had first become a shop steward in Sep-
tember 1983, and made his "time and attendance" inquir-
ies in the time period September 16, 1983, through Octo-
ber 20, 1983. ,The record disclosed that Jedlicka dis-
cussed his difficulties in getting Carty to comply with
those inquiries, as. well as other of his requests, with
Local Union President Smith. In mid- or late October
Smith and Jedlicka sought out and met with Carty over
Jedlicka's problems in getting Carty to respond. Howev-
er, the -meeting was unproductive. Carty was largely un-
responsive and- put off the union officials as to how they
could obtain employees' clock rings, stating basically
' 12- Art 8, sec 5(F) in pertinent part states " ' no full-time regular
employees will be, required to work overtime on more than five (5) con-
secutive days in a week "
13 G C Exhs 5 and 6 (grievances) correspond to G C Exhs 2(t) and
(h), respectively '
that t , was too costly, and time consuming to comply.
The instant unfair labor 'practice charges were filed
within 1 or 2 weeks of that meeting.
At a chance meeting in December, Smith and Jedlicka
got Carty to agree, in principle, to provide clock ring in-
formation if their written requests were expressed in lay-
man's terms. However, Carty refused to cooperate in
drafting acceptable language and admittedly lost his
temper at the Union's persistence. As testified by Carty,
he advised Smith and Jedlicka as follows:
It is not my job as management to tell you what
you should be-asking for;. if you are requesting in-
formation, then you should know what the hell you
,are asking for.
In assessing the total record, I find that the aforenoted
remarks by Carty tend to reflect on his overall erroneous
perception of Respondent's statutory responsibilities, vis-
-a-vis, the requests in question. For example, in the cir-
cumstances of this case Respondent was not relieved of
its statutory obligations merely because Carty indicated
that he would be receptive to future requests if com-
posed in less confusing language. Compare Minnesota
Mining & Mfg. Co., 261 NLRB 27, 31 fn. 23 (1982),
where the Board in rejecting respondent's contention
,that the overly broad request relieved it of any obliga-
tion to comply, noted, inter alia, that "the record did not
indicate. that Respondent sought specific clarification." (Em-
phasis added.) Further, insofar as respondent possesses
the requested information, it must make some effort to
"inform" the union so that the union may, if necessary,
modify -its requests accordingly. See Westinghouse Elec-
tric Corp., 239 NLRB 106, 113 (-1978).
While the record disclosed that other information re-
quested by Jedlicka (G.C. Exhs., 2(g), (i), and (j)) was
eventually furnished by Carty, it is noted that he did so
only after he was directed to comply by his superior and
after the underlying unfair labor practice charges had al-
ready been filed. During the critical time period in ques-
tion, Carty virtually ignored the requests-out of animosi-
ty and disregard for Jedlicka's intelligence and/or com-
petence. For example, Carty explained that he did not
discuss "information" with Jedlicka because. "I didn't like
him." Further, Carty testified that, "[he] was not particu-
larly impressed by [Jedlicka's] mental prowess."_ Accord-
ing to Carty, there could be no' meaningful dialogue with
Jedlicka, because no.matter what Carty had to say, Jed-
licka was going to insist on compliance. Thus, Carty de-
cided not • to "deal with [Jedlicka]" and "waste [his]
time." - ' -
On the total state 'of this record, I find unjustified,
Carty's refusal to deal with Jedlicka, concerning the re-
quested information. found herein to be relevant to the
Union in carrying out its statutory responsibilities. It is
noted that Carty's assessment of Jedlicka was not sup-
ported by concrete examples or probative evidence oth-
erwise . Indeed, even by Carty's own admission, he had
only met with Jedlicka "for a few minutes" on one or
possibly two occasions before deciding not to deal with
him. This is hardly a sufficient basis for Carty to justify
bypassing or ignoring Jedlicka as the appropriate union
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent for such matters. Compare, Procter & Gamble Mfg.,
Co. Y. NLRB, supra at 1317. -
Nor do I consider Jedlicka's relative inexperience as a
shop steward (noted'- by Respondent), in the circum-
stances of this case as significant. The-credited testimony
disclosed that Jedlicka acted with the advice and guid-
ance of senior union officials, including Local Union
President Smith. The- latter, who had long service as. a
shop steward, also had difficulties obtaining, relevant in-
formation from Carty during the time period encom-
passed by the allegations. For example, Carty never re-
sponded to Smith's request for-the "list of Schools, vol-
unteer list,' list of selection. of schools" received by Re-
spondent- on October 20. (G.C. Exh. 2(m).) According to
Smith, Respondent improperly solicited volunteers to
attend various schools of training in a manner infringing
upon certain contractual rights of-maintenance craft em-
ployees. Smith eventually received this information in
December, in connection-with another grievance. Also in
December,-Smith reached an agreement with other man-
agement officials whereby school assignments would be
made in accordance with the national contract. Carty
testified that he did not provide the requested informa-
tion because it was already posted 'on the bulletin boards.
Smith however testified credibly and without contradic-
tion that the Union was not -permitted to- remove any-
thing from the bulletin boards and he wanted documen-
tation to support'a potential grievance.
An employer's statutory obligation to furnish the
union relevant information; on request, absent special cir-
cumstances, - is not relieved merely because the union
may have access to the requested information from other
"sources. See New York Times Co., 265 NLRB 353 (1982),
citing Kroger Co., 226 NLRB 512 (1976), and Bel Air
Bowl, 247 NLRB 6 (1980). In Kroger Co., supra at 513,
the Board reasoned and instructed-as follows: -
The' union is under no obligation to utilize a burden-
some procedure of obtaining desired information where
the employer may have such information available in a
more convenient form. The Union is entitled to an
accurate and authoritative' statement of facts which
only the employer is in, a position to^make. It is thus
clear that where a request for relevant information
adequately informs the employer of the 'data
needed,` the employer must either supply such infor-
mation or adequately set forth the reasons why it is
unable to comply. [Emphasis added.] .
Here, there were no special circumstances shown justi-
fying Carty's disregard of the Union's request in ques-
tion. - Indeed, Carty admitted that compliance with
Smith's request would not -have -presented -a problem.
Nor do I find the fact that the Union was eventually fur-
nished the information, in the circumstances of this case,
dispositive of the issue. The Union was entitled-to the in-
formation in a timely fashion. See, e.g., Quality Engi-
neered Products, 267 NLRB 593, 598 (1983); Intermoun-
tain Rural Electric Assn., 253 NLRB 1153, 1159 (1981).
In short, I find that •Carty's sustained inattention to
Smith's request was unjustified and deficient. As Re-
spondent failed to timely and adequately meet its statuto-
ry obligations, I find that it violated Section 8(a)(5) =of
the Act as alleged.
With regard to another of Smith's requests (G.C. Exh.
2(n)), I find that the evidence in support thereof is incon-
sistent and falls short of establishing. a violation. Smith
was seeking eight approved leave forms (Form 3971) rel-
ative to Herman Jackson, a general mechanic, to support
a grievance protesting his suspension. The General -
Counsel contends that by Carty waiting approximately 2
months and furnishing only five of'the eight documents,
Respondent did not fulfill'its obligations-under the Act.
I find insufficient evidence tending to show that Carty
failed to provide whatever Forms 3971 were in Respond-
ent's possession. In this regard, it is noted, inter alia, that
Carty had indicated on the form that the request had
been approved. Without more, I find- it unlikely that
Carty would do so and yet hold back some Of the infor-
mation . The Union for its part acknowledged, on the
form itself, that the information had been furnished,
albeit "received late." As for the timeliness, I am unper-
suaded that the Union actually needed the information. It
appears -employees are generally provided' copies of
Forms 3971 (whether approved or denied), and Jackson
himself appeared to have had copies of the documents
which were later furnished by Respondent. Jackson did
not testify and Smith's testimony in this area was unclear
and somewhat inconsistent . The obligation to furnish in-
formation'is not unlimited. See, e.g.; American Standard,
203 NLRB 1132, 1133 (1973); Southwestern Bell Tele-
phone Co., 173 NLRB 172 (1968). Under all the circum-
stances, I am not persuaded that the General Counsel has
established any need or relevance. Accordingly, I shall
recommend that this allegation be dismissed.
Still further, the record disclosed that, Carty, never, re- -
sponded to another of Smith's requests, received by Re-
spondent on October 20. (G.C. Exh. 2(o).) Smith was -
seeking the. following information concerning the. abol-
ishment of employee Joseph Piwinski's -job: "Original
posting that was bid, written justification of abolishment,
date job was awarded to J. Piwinski." (Id.) .
-The record disclosed that Piwinski had been a long--
time employee and, on his retirement,- his job became
vacant. It is - undisputed that Respondent had the right,
under the collective -bargaining agreement, to abolish the
job. Smith wanted the requested information to deter-
mine whether Piwinski's job was actually abolished _(as
asserted by Carty), or downgraded. In the latter event,
under the collective -bargaining agreement , Respondent,
inter alia , must post a notice advising of the action taken
and the reasons therefor. (Art. 37, sec, 3.)
The record revealed that Piwinski's original bid' was
back in 1963--and Respondent does not maintain such bids
over that length of time. Carty testified that he told an
unnamed union official that Respondent no longer pos-
sessed Piwinski 's -original bid. While Carty's testimony -is
not free from doubt, I find no basis, in the circumstances
of this case, to reject his assertion that. Respondent no
longer had the requested information. Whether Respond-
ent violated the collective -bargaining agreement by fail-
ing to negotiate over the subject or violated the Act by
engaging in a unilateral change are matters not -before
POSTAL SERVICE - 1289
me for consideration. Under all the circumstances, I find
that the General Counsel has failed to demonstrate the
requisite relevance. Accordingly, I- shall recommend that
this allegation, be dismissed.
In sum, I=find that Respondent failed to fulfill its statu-
tory'obligations in violation of Section 8(a)(5) of the Act,
as alleged, with regard to paragraphs 7(a) through (m) of
the complaint. Further, I find that the General Counsel
failed to establish by a preponderance of probative or
credible evidence that Respondent violated the Act with
regard to paragraphs 7(n) and (o) of the Act. According-
ly, I shall recommend that these latter two allegations be
dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The International and Local are labor organizations
within the meaning of Section 2(5) of the Act.
3. The unit noted- in footnote 1 above is appropriate
for collective bargaining within the meaning of Section
9(b) of the Act. ..
4. At all times material herein, the International has
been the exclusive collective-bargaining representative in
the aforesaid appropriate unit within the meaning of Sec-
tion 9(a) of the Act.
5. At all times material herein, the Local was designat-
ed by, and acted on behalf of, the International with
regard to all matters in dispute.
6. By failing and/or refusing to timely furnish the
International or its duly authorized agent, the Local,
with the information requested, as alleged in paragraphs
7(a) through (m) in the instant complaint, Respondent
has failed to fulfill its statutory obligations and has there-
by engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
7. Respondent has not violated Section 8(a)(5) and (1)
of the Act with regard to paragraphs 7(n) and (o) of the
instant complaint.
8. The unfair labor practices noted in paragraph 6
above affect commerce within the meaning of Section
2(6) and (7) of'the Act. -
THE REMEDY
Having found that Respondent has engaged in conduct
violative of Section 8(a)(5) and (1) of the Act, I recom-
mend that Respondent cease and desist therefrom and
take additional affirmative action necessary to effectuate
the purposes of the Act.
With regard to the requested information found herein
to be relevant and not yet furnished, I recommend that
Respondent be ordered to timely do so, as well as be or-
dered to-timely furnish, on request, all relevant informa-
tion which is necessary for the Union to effectively rep-
resent unit employees under the Act. As for any financial
burden on Respondent to so comply, it is noted that the
collective-bargaining agreement provides that "the em-
ployer may require the Union to reimburse the USPS for
any costs reasonably incurred in obtaining the informa-
tion." (Jt. Exh. 1, p. 83.) As noted previously,-the Union
does not know how to obtain clock rings for a period of
less than 14 days. The record is unclear and conflicting
as to whether such information can be retrieved. In any
event, it would appear to be the responsibility of the par-
ties themselves, in the first instance, to bargain in good
faith to meet the Union's needs on this-subject. See, e.g.,
Food Employers Council,-197 NLRB 651 (1972). -
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend--
edi4 - I
ORDER - • - • -
The Respondent, United States Postal Service, Wil-
mington, Delaware,- its officers,.. agents, successors, and
assigns, shall •
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
the American- Postal Workers Union, AFL-CIO
(through its authorized agent-Wilmington, Delaware
Local), as the exclusive representative of its employees in -
the appropriate-unit, by failing and refusing, on request,
to furnish it with information relevant and reasonably
necessary to the performance by the Union of its-obliga-
tions as bargaining representative.
(b) In any like or related-manner interfering with, co-
ercing, or restraining employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Timely furnish the Union with the information re-
quested in paragraphs 7(a) through (m) in the instant
complaint, as well as other information, on request, rele-
vant and reasonably necessary to the performance by the
Union of its obligation as bargaining representative.
(b) Post at its facility in Wilmington, Delaware, copies
of the. attached notice marked "Appendix." 15 Copies of
the notice, on forms- provided by the- Regional Director
for Region 4, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced,-or- covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. •
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe
cifically found. •
14 If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations, the findings, conclusions , Land 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
15 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al -Labor Relations Board "
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with the
American Postal Workers Union , AFL-CIO or its duly
authorized agent , Wilmington, Delaware Local, as the
exclusive representative of our employees in the appro-
priate unit, by failing and refusing , on request , to timely
furnish it with information relevant and reasonably nec-
essary to the performance by the Union in fulfilling its
obligations as bargaining representative.
WE WILL NOT in any like or related manner interfere
with, coerce, or restrain our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
WE WILL timely furnish the Union or its duly author-
ized agent, Wilmington, Delaware Local, as the exclu-
sive bargaining representative of our employees in the
unit found appropriate herein, with information hereto-
fore requested and noted in paragraphs 7(a) through (m)
of the instant complaint as well as other information, on
request, relevant and reasonably necessary to the Union
in fulfilling its obligations as bargaining representative.
UNITED STATES POSTAL SERVICE
0