U.S. Postal Service

National Labor Relations Board - Administrative Judge Opinions

Aug 5, 2008

24-CA-010805 (N.L.R.B. Aug. 5, 2008)

JD–41–08
San Juan, PR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
U.S. POSTAL SERVICE
and Case 24–CA–10805
NATIONAL POSTAL MAILHANDLERS’ UNION,
LOCAL 313, NPMHU
Jose Luis Ortiz, Esq., for the General Counsel.
Peter Gallaudet, Esq., of New York, New York, for
the Respondent.
Julio A. Figueroa, of San Juan, Puerto Rico, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in San Juan, Puerto
Rico, on April 22, 2008. The charge was filed November 15, 2007, by the National Postal
Mailhandler’s Union, Local 313 (the Union).1 The complaint, issued February 29, 2008, alleges
that the United States Postal Service (the Respondent) violated Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act) by failing and refusing to provide the Union with the test
scores and final ratings of all prospective candidates for mail handler positions in the
Respondent’s Caribbean District Registry for 2007. On March 14, 2008, the Respondent
answered the complaint, admitted its refusal to provide the information, but asserted that: (1)
such refusal was lawful because the information sought was not necessary or relevant to the
Union’s performance of its duties as the exclusive bargaining agent of the unit; (2) the test
scores sought were confidential in nature; (3) the Respondent partially responded to the request
by releasing nonconfidential information and engaged in discussions attempting to arrive at a
compromise solution.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

1 All dates are in 2007, unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
The National Labor Relations Board has jurisdiction over this matter by virtue of section
1209 of the Postal Reorganization Act. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Parties
The Union is the exclusive bargaining agent for mail handlers in the Caribbean District,
which includes the Commonwealth of Puerto Rico (the bargaining unit). Most of the
approximately 250 mail handlers in the Caribbean District are located at its main distribution
facility in San Juan, Puerto Rico (the San Juan Post Office). Approximately 70 percent of the
mail handlers are veterans of the United States armed forces. Julio Figueroa is president of the
Union. Miguel Pazo de Jesus is vice president.
The Respondent’s personnel involved in this controversy are the following: Carlos Perez,
a human resources specialist; Silvia Feliciano, a labor relations specialist; Carol Rubenstein, a
human resources manager; Priscilla Maney,2 a district manager; Keith Reed and Juan Delgado,
labor relations managers; and Leslie Rowe, a legal representative.3
B. The Collective-Bargaining Agreement
The term of the Union’s current collective-bargaining agreement with the Respondent is
November 21, 2006, to November 20, 2011.4 It contains several provisions relevant to this
controversy. Article 3 gives the Respondent “the exclusive right, subject to the provisions of this
Agreement and consistent with applicable laws and regulations” to hire employees for positions
within its organization.
Once hired, an employee begins a 90-day probationary period. If that period is
successfully completed, Article 12.1 directs a computation of seniority based upon the first day
of employment. Article 12.2 addresses the principles of seniority by clarifying that the parties
“will continue relative seniority standing properly established under past principles, rules and
instructions.” It is further noted that, “[i]f an employee requests a correction of seniority standing,
it is the responsibility of the requesting employee to identify and restate the specific instructions,
rule or practice in support of the request.” Responsibility for administration of seniority falls to
the “installation head.” The installation head is responsible for posting “a seniority list of Mail
Handlers on all official bulleting boards for that installation. The seniority list shall be corrected
and brought up to date quarterly.” As defined under this category, the bid process includes
employee requests for assignment to a vacancy, a newly established duty assignment or a
preferred assignment.

2 Stipulated fact No. 5 refers to a “Priscilla Manning” but the joint exhibits indicate that her
name is actually “Patricia Maney.”
3 Stipulated facts 1–8; Tr. 66–67.
4 Jt. Exh. 24.
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Article 15 authorizes the Union to file a grievance in the event that a dispute arises
between the parties as to wages, hours, and conditions of employment affecting more than one
employee in the office. A grievance is defined to include an employee complaint involving the
application or compliance with the provisions of the collective-bargaining agreement.
Article 31.3(A) requires the Respondent to “make available for inspection by the Union
all relevant information necessary for collective bargaining or the enforcement, administration or
interpretation of this agreement, including information necessary to determine whether to file or
to continue the processing of a grievance under this Agreement. Upon the written request of the
Union, the Employer will furnish such information, provided, however, that the Employer may
require the Union to reimburse the USPS for any costs reasonably incurred in obtaining the
information.” Article 31.3(B) further states that “Requests for information relating to purely local
matters should be submitted by the local Union representative to the installation head or
designee. All other requests for information should be directed by the Union to the Vice
President, Labor Relations.”
C. Test 473 and the Hiring Register
Test 473 was the standard entrance examination given to all applicants for the mail
handler position at the Respondent’s facilities, including those in the San Juan Post Office. The
test is intended to measure an applicant’s aptitude, skills and abilities, and psychological
factors, such as personal characteristics, tendencies and experiences relevant to the position.
Applicants who took Test 473 were given a basic score. The minimum passing score for Test
473 was 70. Additional points for veteran’s preference, if applicable, were to be added in order
to arrive at a final rating. After Test 473 examinations were processed, applicants were sent a
notice of rating, which listed the basic score and final rating. Applicants were then placed, in
order of their final rating, on a hiring register for the San Juan Post Office (the 2007 hiring
register) for a period of 2 years.5
In 2007, over 9000 applicants took Test 473 for placement on the hiring register.
Approximately 8000 applicants passed the test and were placed on the hiring register. In
accordance with the Respondent’s standard procedure, human resource staff was required to
consider the applicants with the three highest final ratings for each vacancy. The three
applicants were then interviewed and a background investigation performed. After applicants
were offered employment and determined to be medically suitable, an enter-on duty (EOD) date
was issued. The EOD date is significant because it is the date used in determining seniority. In
2007, the San Juan Post Office hired 22 mail handler applicants.6
Once an applicant completes Test 473, the Respondent processes and scores the
information electronically in order to determine a basic score. Applicants eligible to receive a
veteran's preference receive an additional 5 or 10 points, whichever is applicable. Veteran’s
preference points, if any, are added onto the basic score to arrive at a final rating. The basic
scores of applicants without veteran’s preference points become their final ratings. Once a final
rating is determined, applicants were to be ranked on the 2007 hiring register in order of their

5 The Respondent offered the expert testimony of Martha Hennen, an industrial
psychologist, to support its contention that applicants are concerned about the disclosure of test
scores because they will reveal information about their aptitude, skills, abilities, and personal
characteristics. (Stipulation No. 9–10; Jt. Exhs. 20–22; Tr. 80–91, 98–102, 108–110, 119–121.)
6 R. Exh. 1; Tr. 104, 116–117, 119.
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standing. The 2007 hiring register contains, in pertinent part, an applicant’s name, date of birth,
standing, exam date, applicable veteran's points, basic score, and final rating.7
The Applicant Information Package for Examination 473 states in pertinent part, that
application information may be disclosed “to entities or individuals under contract with USPS”
and “as required by the National Labor Relations Act.”8 The “473 Answer Sheet,” which contains
personal background information, states that “[p]roviding the required information is voluntary,
but if not provided, you may not receive full consideration for a position.” Disclosure of the
information to others is restrictive to certain instances, including disclosure “to labor
organizations as required by law.”9 Finally, the Respondent’s Guide to Privacy and the Freedom
of Information Act includes “Disclosure to Labor Organizations” as a “Standard Routine Use” of
employees’ records:
As required by applicable law, records may be furnished to a labor organization when
needed by that organization to perform its duties as the collective bargaining
representative of Postal Service employee in an appropriate bargaining unit.10
D. The Union’s Information Request
Prior to July 2, Figueroa was approached by several bargaining unit employees, who
were veterans. They asked Figueroa why nonveteran coworkers started working before them,
even though the veterans applied much earlier than the nonveterans. As a result, on July 2,
Figueroa sent an e-mail to Perez, with a copy to Feliciano and Rubenstein, requesting a copy of
the 2007 hiring register:
PEREZ: The purpose of this message is to officially request the register listing for those
candidates qualified for hiring. The listing should include the veteran employees as well
as non-veterans and their position in the roster. Thanks in advance for your anticipated
cooperation pertaining this matter. Any questions, feel free to contact us at your earliest
convenience.11
Figueroa followed up on his request with another e-mail to Perez on July 17, with a copy
to Feliciano, Maney, and Reid. He explained that 15 days had passed since his initial request,
but no information had been provided. Another 9 days passed with no response and, on July 26,
Figueroa sent Perez an e-mail, with copies to Feliciano, Maney, and Reid, requesting the
information or a response. A short time later, Rubenstein replied by e-mail that Reid would
follow up on Figueroa’s request.12

7 There was no dispute as to the how the test is administered. (Tr. 101–104, 118, 137; Jt.
Exh. 20; R. Exh. 2.)
8 Jt. Exh. 21, p.2.
9 Jt. Exh. 22, p.2.
10 Jt. Exh. 23, p. 68.
11 Figueroa’s motivation seeking the information—determining whether nonveterans with
lower final ratings were selected earlier than veteran applicants—was not disputed. (Jt. Exh. 1;
Tr. 18.)
12 Jt. Exhs. 2–4.
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Sometime in August 2007, Figueroa and Pazo de Jesus met with Reid in the latter’s
office. Figueroa informed Reid that he requested a copy of the 2007 hiring register. He also
explained to Figueroa that he received complaints from employee veterans that nonveteran
employees with the same standing as veteran candidates were being selected over veterans for
more favorable assignments. Reid told Figueroa he would receive the requested information
and brought Perez, a human resources specialist, into the discussion. Perez insisted that the
Union was not entitled to the information, but Reid ordered Perez to supply the requested
information anyway.13
Approximately 2 months elapsed without any information being provided to Figueroa.
However, on October 18, Figueroa received a letter from Delgado informing him that the
information request was extensive, related to confidential information, and was being
processed:
With reference to the above captioned request you [are] advised that we are currently
processing it. As you very well know your request is extensive and encompasses
confidential information. While we are in the process of producing such information we
are taking the necessary measures to protect it. You will be duly informed when the full
documents are available.14
Nearly a month passed and, on November 15, the Union filed an unfair labor practice
charge alleging the Respondent’s failure to provide the information requested on July 2. Another
2 months passed and, on December 17, Figueroa received an e-mail response to his
information request from Rowe. She informed Figueroa that 2007 hiring register information
relating to applicants’ scores would be redacted unless he obtained their consent.
I am the attorney representing the Postal Service in the Charge that you have brought
against the Postal Service regarding your request for information. Please contact me as
soon as possible to discuss a resolution. It is my understanding that you received the list
of candidates with the actual scores redacted. Do you have consent from these
individuals for us to release their scores? If so, please forward that consent to me and
the Agency will be more than willing to turn the documents to you without that
information redacted. If you do not have consent, perhaps a list of the candidates with
the order would suffice. I am not in the office today, but I am checking my messages.

13 I found Figueroa and Pazo de Jesus credible in their contention that they informed Reid
about their concern as to how the 2007 hiring register was being implemented with respect to
bargaining unit members. Reid denied that they told him the reason for the request. However,
the fact that Reid called Perez, who did not testify, into his office and told him to provide the
information, undercut his version of the conversation and corroborates the Charging Party’s
account. (Tr. 18–22, 67–72, 149, 151–152.) In other words, I find it unlikely that Reid would
have ordered the 2007 hiring register information disclosed without an explanation by the union
officials as to the basis for their request. On the other hand, I did not find credible Figueroa’s
testimony to the extent that he specifically requested applicants’ basic scores and final ratings at
this meeting. First, such information was not specifically mentioned in his July 2 request.
Secondly, his trial testimony conflicted with an earlier affidavit indicating that he did not ask for
the test scores at the August meeting. (Tr. 18, 51–54, 57.) In any event, the hiring register, in
unredacted form, does include basic score and final rating information.
14 Figueroa did not dispute Delgado’s credible testimony that he told Figueroa that it would
take “some time” to compile the information. (Jt. Exh. 5; Tr. 138.)
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Leave me a voice mail or return email of the best time to reach you to discuss further.
Thank you.15
Figueroa responded to Rowe’s e-mail a few hours later and insisted on full compliance
with his information request or an explanation of the legal basis for failing to produce the
information:
I’m Julio A. Figueroa, President of Local 313 and the person who brought the charges
against the agency that you represent. It is my intent that this request be fulfill [sic] in his
[sic] entirety as requested. I have not received any of the documents you mentioned
because the local agency have [sic] never provided to the union in any form or shape. It
is very interesting that you requested me a consent of documents that are of public
domain which not includes any sensitive items that are forbidden from any law or even
the HIPPA law. This information is not even included in the restrictive information as
stipulated in the ELM. It is also very interesting the renuency of the agency to provide
this information but on the other hand, was willing to provide the personal information of
these persons to include addresses, cellular phone numbers and even social security
numbers without any hesitation. This information that is more restrictive in reality than
the requested information by the union. More over, What the agency have to hide by
providing information of a hiring roster with the names and rankings and/or scores of the
individuals in the roster? Do you really understand what we are talking about? We are
talking about information related to my responsibility as the representative of the
employees in the US Postal Service. Ms. Rowe, I kindly request to you that if there is
any written provision and/or law that include [sic] the information requested is so
restrictive and sensitive that the agency can’t provide it to any union official or person,
please enlighten me with it. If not, I encourage you to provide the information to the
union as requested.16
On December 19, Delgado sent Figueroa a letter informing him the information was
available to be reviewed in his office or that he would mail a copy of the hiring register to him.17
On December 20, however, Rowe sent an e-mail to Figueroa, with a copy to the Board agent
investigating the Union’s charge, indicating the Respondent’s willingness to provide the 2007
hiring register information, but with the basic scores and final ratings redacted:
I haven’t been able to reach you. I believe we can provide you the requested information
without turning over the scores. The eligibility list provides the rank and the veteran’s
status. The scores will be redacted. The documents are extensive and it will take
manpower to go through each sheet. Please contact me as soon as possible. I believe
this is a way to satisfy your request without compromising the privacy of the test takers.
If you have consent of the anyone [sic] from the list, we can forward their test score to
you. There are nearly 1000 pages. We can prepare an estimated bill for the
information.18

15 Jt. Exh. 6.
16 Jt. Exh. 7.
17 R. Exh. 3.
18 Jt. Exh. 8.
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A short while later, Figueroa responded to Rowe’s e-mail, rejecting her offer to provide
the information requested, but with the scores redacted:
MS. ROWE: I submitted you a response on Monday, December 17, 2007 based on the
first message that you sent me by e-mail. I believe that I was very specific about it and
you never responded back. It is my position, as union president, that the scores that you
want “redacted” from the report are outside the scope of the intent of sensitive
information and/or restricted information as specified in the ELM, the CIM or any other
provisions that rules the USPS. Based on this, I won’t be able to accept the information
offered because it do not fulfill my request and defeat [sic] the purpose of my collective
bargaining investigation. As you noticed already, if you can’t contact me by any other
means, you can always contact me by e-mail (julio40@prtc.net) or by any other written
correspondence available (My fax # is (787) 764-2121 or my address PO Box 366086,
San Juan, PR 00936-6086). Again, I’ll be looking forward to receive your response at
any time.19
Rowe responded a short time later and stated she would provide Figueroa the next day
with a copy of one page from the register, with the scores redacted, in order to demonstrate how
the information request could be granted “without violating the privacy of the applicants.”
Figueroa responded that he looked forward to reviewing the documentation to see if it would
satisfy his request.20
On December 21, Figueroa reviewed copies of the hiring register in Delgado’s office. He
told Delgado the information was not satisfactory due to these redactions. Delgado informed
him the basic scores constituted confidential and sensitive information that could not be
disclosed.21
Later that day, Rowe e-mailed Figueroa a copy of page 715 from the 2007 hiring
register. The sheet contained the names of and information relating to six applicants.
Information relating to basic scores and final rating scores, however, had been redacted:
As I promised yesterday, attached is page 715 of the 1398 pages of information. This
document reflects applicants who are on the register for the Mail handler position at the
Caribbean District. Listed on this page is the following information: The
Standing/Ranking of the Applicant, the Applicant’s name, Veteran’s Points, Exam date,
date NTAC mailed out the result, the Enter On Registry date, and Expiration Date. This
provides you with sufficient information to satisfy your request for information. As I
indicated earlier, if you have consent from any of the applicants, we will be happy to
release their score to you. If you would like the entire list in this form, please let me know
as soon as possible. Also if you are alleging that these individuals are members of your
union, please advise. Thank you.22
Later that day, Figueroa responded to Rowe’s e-mail and rejected the contention that the
information contained on the sheet would satisfy the information request:

19 Jt. Exh. 9.
20 Jt. Exhs. 10–11.
21 Tr. 142, 145.
22 Jt. Exh. 12; R. Exh. 2.
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MS. ROWE: First let me clarify something. It is the union who will decide what information
will be sufficient or enough because it is the union who is conducting the investigation
and or the possibility that a grievance may be filed (EL-312 Section 413 and Article 17
and 31 of the CIM). Second: The consent from the candidates that you are trying to
impose on the union is clearly outside the scope of the provisions mentioned above.
Third: I personally review this [sic] pages today with Mr. Juan Delgado, Mgr. LR in
Puerto Rico and I strongly disagree to receive information which is different from the
information properly requested by the union. It is not true that the information you intend
to provide include the information you mentioned. As a matter of fact, out of the listing for
example, you can’t even detect who is a veteran and who is not. Fourth: You have argue
[sic] that I need consent or that the information can’t be provided but at any time you
have provided us with any legal provision that support your resistance to provide the
information. Based on these facts, I’m hereby kindly request [sic] that the information be
provided by the union as requested and to avoid any more delays. This is been going on
since August and I believe enough time has gone by already. Any more questions, feel
free to contact me at your earliest convenience.23
The Respondent’s law department followed up by sending the Union a copy of the 2007
hiring register with confidential information redacted, including basic scores and final ratings.
That information was not satisfactory and Figueroa submitted a new information request to the
Respondent on January 30. The new request, unlike the July 2 request, specifically requested
applicants’ basic scores and final ratings. He copied Feliciano and Reid on the request:
The purpose of this letter is to kindly request the following information: Caribbean District
Hiring Registers including the scores of all the candidates (veteran and non-veteran) for
the year of 2007. The information shall include the name, the scores, whether or not they
are veterans, the final scores for each candidate and their eligibility position in the
register. Any questions, feel free to contact me at any time.24
Reid responded to Figueroa’s e-mail on January 30. Reid inquired as to the relevance of
the request, since many on the 2007 hiring register were not employees and, thus, not
represented by the Union. He added that the request was being reviewed by the Respondent’s
legal department, but asked whether the information provided thus far was satisfactory. He also
asked Figueroa to explain why he sought this information and the names of any individually
known to have been “harmed” as “many on the register are non employees not represented” by
the Union. Figueroa replied shortly thereafter:
The information provided was not complete because all the scores were blackened.
Since the case still pending at the NLRB and we have already spoken about this
situation once, the charges at the NLRB had to be amended for the clarification
purposes and I had to sent you the proper request (even though we verbally have
discuss it many times) for the record. The Law department wanted to give me the same
information that I rejected previously from Juan and you. Based on this, I again
requested that all scores shall be provided as requested. Any questions, let me know.25

23 Jt. Exh. 13.
24 Jt. Exh. 14.
25 Jt. Exh. 15.
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On February 1, Figueroa supplemented his comment to Reid by insisting that the
relevance of the information would be determined by the investigation to be conducted by the
Union:
As an experience Labor Relations lawyer, you should be aware that the relevancy of the
information requested is based on the investigation that the union will be performing.
How I will be able to probably present a case when I don’t have information necessary,
for comparison purposes, to determine whether or not a violation really occurred. You
also know that in contract cases the union have the burden of proof and that is the
purpose and the necessity of this report. More over, if you don’t want to provide the
information now, it is your prerogative but I have interest, the right and I also have the
“need to know” if this information will be a key element in demonstrating my case when I
presented, if that’s the case.
You are also very aware of the provisions of Article 17, 19 and 31 of our CBA, who
entitle me to this information.
I have a question: Why are you so reluctant know to provide this information when you
have personally agreed to provided to me in the prior occasion? Is there something I
should not know now?
Any questions, please feel free to contact me at your earliest convenience.26
On February 1, Figueroa e-mailed Rowe, but addressed it to Delgado. He requested a
copy of the 2007 hiring register including the names of all candidates, their basic scores,
veterans preference status, final rating scores, and eligibility positions.27 Rowe replied on
February 4:
Are you requesting the same list of information that was sent to you previously? You
should have received a list containing over 8,000 names as recently as January 8, 2008.
Are you now asking for the test scores (basic and final) that were previously redacted
from the list? Or are you asking for something different? The list that was forwarded to
you contains the name, eligibility, rank, and veteran’s status for the Mail Handler’s
position. Please advise. Thank you.28
Reid also replied to Figueroa on the same day, explaining that he was “attempting to
assess relevance as to who may have been injured and your right to represent their interest.”
He further explained that there was a problem with the request to the extent that it sought
information about individuals that don’t work for the Postal Service and something that
happened to them prior to [being] hired.” Reid concluded with an offer to work on a “resolution if
you provide me more information about what you are trying to prove.”29 There was no further
communication between the parties.

26 Jt. Exh. 16.
27 Jt. Exh. 17.
28 Jt. Exh. 18.
29 Jt. Exh. 19.
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Analysis
The General Counsel contends that the Respondent is required to provide the test
scores on four grounds: the Respondent is required under the Privacy Act to provide the Union
with information which is presumptively relevant in accordance with the National Labor
Relations Act; the test scores on the hiring register are essential to determine whether the Union
should file a grievance regarding the Respondent’s possible departure from its hiring standards
and policies; and the Respondent’s requirement of a waiver from applicants is unfounded,
unrealistic, and overly burdensome; and the Union’s need for test scores outweighs the
Respondent’s confidentiality claim.
The Respondent resists disclosure of the basic scores and final ratings on several
grounds. First, the Respondent asserts the General Counsel failed to demonstrate that
knowledge of the scores of more than 8000 applicants was necessary and relevant to the
performance of its duties. In the alternative, even if the test scores were relevant to the Union’s
performance of its duties, the Respondent asserts it met its burden of showing an adequate
reason for refusing to disclose them, unless applicants consent to their release. Finally, the
Respondent contends that the request for the test scores on the hiring register as of July 2007
contained the names of applicants, not the employees who were hired. As such, the information
requested would not have included the names and test scores of the veteran employees who
complained to the Union or the nonveteran employees that they complained about.
An employer is obliged to provide a union, upon request, information that is relevant and
necessary to its role as the exclusive bargaining representative of its employees. Detroit Edison
Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967). Where the requested information involves matters outside the bargaining unit, however,
the union has the burden of demonstrating a reasonable objective basis for the information.
Comar Inc., 349 NLRB 342, 361–362 (2007); Tri-State Generation & Transmission Assn., 332
NLRB 910 (2000); Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). That burden is not
an exceptionally heavy one, requiring only a showing of “probability that the desired information
[i]s relevant, and that it would be of use to the union in carrying out its statutory duties and
responsibilities.” NLRB v. Acme Industrial Co., supra at 437; Shoppers Food Warehouse, supra
at 259; Postal Service, 310 NLRB 391, 392 (1993). In this regard, the Board follows the broad
standards of pretrial discovery in determining the relevance in information requests. Kathleen's
Bakeshop, LLC, 337 NLRB 1081, 1093 (2002), enfd. 2003 WL 22221352 (2d Cir. 2003).
Information pertaining to bargaining unit employees is presumptively relevant and
necessary, and must be produced. In this regard, the General Counsel argues, at page 7 of his
brief, that the Union needs a copy of the 2007 hiring register for the San Juan Post Office in
order to “verify that the sum of an applicant’s test score, plus the veteran points, add up to the
applicant’s ranking in the hiring roster. Without the test scores, the Union is unable to objectively
examine whether the Postal Service has engaged in the discrimination of employee veterans by
not adding the veteran points to an applicant’s test score.” Figueroa followed up on his July 2
information request by meeting with Delgado in August and asking for a copy of the 2007 hiring
register. It was not reasonably foreseeable at that time, however, that the Respondent, in
processing the request, would ultimately provide a redacted version of the 2007 hiring register.
That issue arose, in fact, on December 21, when the Respondent provided the Union with a
redacted version of the 2007 hiring register. Figueroa objected to that production, but
resubmitted another information request on January 3, specifically requesting another copy of
the hiring register, but unredacted as to the basic scores and final ratings of applicants.
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In this case, the Union’s July 2 request sought a copy of the entire 2007 hiring register
for the San Juan Post Office. Of the over 8000 applicants initially placed on the 2007 hiring
register, 22 were hired and their names removed from the list. There were complaints among
that group hired—the veteran employees—that nonveterans with lower final ratings were hired
before them. Figueroa did not, however, state that he was attempting to investigate the
Respondent’s implementation of Article 12, the seniority provision in the collective-bargaining
agreement. Nor did he seek to limit the information sought to the 22 hired applicants/bargaining
unit members.
Information sought regarding applicants for employment is typically found to involve
matters outside the bargaining unit. See, e.g., Finch, Pruyn & Co., 349 NLRB 270, 278–280
(2007) (prehire drug and alcohol testing of applicants is not a mandatory subject of bargaining
and, therefore, information concerning such testing is not deemed presumptively relevant).
Accordingly, 2007 hiring register information as to applicants who were not hired and, thus, are
not bargaining unit members, would not be presumptively relevant. As to that information, the
Union has the burden of demonstrating a reasonable objective basis for the information. In
addition, the Union must address the concerns about confidentiality raised by the Respondent,
who relies on the Supreme Court’s application of privacy interests to proposed disclosure of
employee aptitude test scores in Detroit Edison Co. In this regard, the Respondent, at pages
28-36 of its brief, relies on the Court’s recognition of the fact that the revelation of aptitude test
scores “may threaten an individual’s ego and sense of self-worth.” The Respondent also refers
to the testimony of its industrial psychologist, Dr. Martha Hennen, to say essentially the same
thing.
Until recently, longstanding Board precedent held that “the requesting union need not
inform the signatory employer of the factual basis for its requests, but need only indicate the
reason for its request.” Corson & Gruman Co., 278 NLRB 329, 334 (1986), enfd. 811 F.2d 1504
(4th Cir. 1987). A majority of the Board questioned that standard, however, in Contract Flooring
Systems, Inc., 344 NLRB 925 (2005), indicating they did not necessarily agree with Board
precedent that a union can simply state a reason for its request. In any event, the burden of
establishing the relevance of such information “is not exceptionally heavy” and would be
satisfied by “some initial but not overwhelming demonstration by the union.” St. George
Warehouse, Inc., 341 NLRB 904, 925 (2005), citing Hertz Corp., 319 NLRB 597, 599 (1995).
There is no contention that the Respondent discriminated against any of the applicants
who were not hired. As such, information concerning applicants who were not hired and
remained on the 2007 hiring register involves matters outside the bargaining unit and has no
relevance to this case. Cf. Mid-Continent Concrete, 336 NLRB 258 (2001), enfd. 308 F.3d 859
(8th Cir. 2002) (union informed employer of factual basis underlying its contention of
discrimination based on applicant's union activities); Hardesty Co., 336 NLRB 258 (2001) (union
entitled to review applicant list where it informed employer of belief that union member was
discriminated against, in part, because he wore a union cap).
Nevertheless, the facts underlying the Union's concern about the improper
administration of seniority among the mail handlers hired in 2007 were communicated to the
Respondent at the hearing on April 22, 2008. Article 12 of the collective-bargaining agreement
requires computation of seniority based upon the first day of employment, incorporates prior
seniority principles, authorizes employees to request correction of seniority standing, and
requires the installation head to post a seniority list, which is to be updated quarterly. As such,
information necessary for the calculation and verification of seniority of existing employees,
such as that contained on the 2007 hiring register, would be presumptively relevant to the
Union’s role.
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It is not clear whether the Respondent also asserts confidentiality under Detroit Edison
as also extending to a class of disclosure limited to the 22 employees hired in 2007. In any
event, it does not. Although Detroit Edison involved a request for the testing records of current
employees, the testing related to their applications for new positions. As such, the union sought
the records of unsuccessful applicants. Contrary to the information request in Detroit Edison, the
disclosure of the 2007 hiring register information to the Union would have related only to the
successful applicants and bargaining unit members. The Respondent here seemed to recognize
this right on the part of the Union in its responses to the Union on December 21, 2007 and
January 30, 2008.
Under recent Board law, whether the Respondent's duty to respond to the Union's
information request runs from July 2, 2007 or April 22, 2008, the Respondent would, in either
instance, be ordered to provide the requested information. See H & R Industrial Services, 351
NLRB No. 81, slip op. at 5–6 (2007). See also Dodger Theatricals Holdings, Inc., 347 NLRB 953
fn. 3 (2006), where Member Schaumber, citing Contract Flooring Systems, Inc., 344 NLRB 925
(2005), stated that he would find a violation where the union apprises the employer of its factual
basis at the unfair labor practice hearing, the union's disclosure supports the relevancy of the
information, and the employer continues to withhold it. The violation would be as of the date of
the hearing, but the remedy is the same. The Respondent would be ordered to disclose the
relevant and necessary information.
In view of the trial testimony supporting the relevant portion of the information request,
which is authorized pursuant to the seniority provisions of Article 12 of the collective-bargaining
agreement, I find that the Union had a valid reason for requesting information which was
necessary and relevant to its representation of employees. The Respondent provided a
satisfactory defense to the production of the entire 2007 hiring register, but having received a
valid explanation at the hearing, it is not justified in continuing to refuse, as it seems to do in its
brief, to disclose the test scores of the 22 mail handlers hired by the San Juan Post Office in
2007. Accordingly, by failing and refusing to provide necessary and relevant information to the
Union which was requested by e-mail transmissions on July 2, 2007 and January 30, 2008, and
further clarified at the hearing on April 22, 2008, the Respondent has violated its duty to bargain
in good faith, and has violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By failing and refusing to provide the Union, in writing, with the information requested
in the Union's information request of July 2, 2007 and January 31, 2008, and more fully
explained at the hearing on April 22, 2008, the Respondent has unlawfully refused to bargain
with the Union and has violated Section 8(a)(5) and (1) of the Act.
2. The violation set forth above is an unfair labor practice affecting commerce within the
meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it be required to cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act. I shall recommend that Respondent be
ordered to furnish, in part, the requested information to the Union, and to post an appropriate
notice.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended30
ORDER
The Respondent, U.S. Postal Service, San Juan, Puerto Rico, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with National Postal Mailhandler’s Union, Local 313
by refusing to furnish it with information that it requests that is relevant and necessary
requested to the Union’s performance as the collective-bargaining representative of the
Respondent’s bargaining unit employees.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Promptly furnish the Union with the relevant portion of the information requested in its
July 2, 2007 e-mail transmission, specifically, all of the information contained on the 2007 hiring
register, including the basic scores and final ratings, for the 22 applicants hired for the San Juan
Post Office in 2007.
(b) On request, bargain collectively in good faith with the Union with regard to wages,
hours, and other terms and conditions of employment of employees in the appropriate unit
specified in the collective-bargaining agreement between Respondent and the Union which
agreement is in effect through November 20, 2011.
(c) Within 14 days after service by the Region, post at its San Juan, Puerto Rico facilities
copies of the attached notice marked “Appendix.”31 Copies of the notice, on forms provided by
the Regional Director for Region 24, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent 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. In the event that, during the pendency of these
proceedings, the Respondent closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all employees and former
employees employed by the Respondent in the position of mail handler at the San Juan Post
Office during 2007.

30 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 purposes.
31 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(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. August 5, 2008
____________________
Michael A. Rosas
Administrative Law Judge
JD–41–08
San Juan, PR
APPENDIX
NOTICE TO MEMBERS
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 on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain collectively with the National Postal Mailhandler’s Union, Local
313 by refusing to furnish it with information that it requests that is relevant and necessary to the
Union’s performance of its functions as the collective-bargaining representative of our unit
employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights set forth above.
WE WILL promptly furnish the Union with the relevant portion of the information requested in its
e-mail transmissions of July 2, 2007 and January 30, 2008, specifically, all of the information
contained on the 2007 hiring register, including the basic scores and final ratings, for the 22
applicants hired for position of mail handler for the San Juan Post Office in 2007.
U.S. POSTAL SERVICE
(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.
525 F. D. Roosevelt Avenue, La Torre de Plaza, Suite 1002
San Juan, Puerto Rico 00918-1002
Hours: 8:30 a.m. to 5 p.m.
787-766-5347
JD–41–08
San Juan, PR
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, 787-766-5377.