United States Postal Service

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684 United States Postal Service and American Postal Workers Union National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL–CIO. Cases 16–CA–22766, 16–CA–22854, 16–CA–22855, 16– CA–22868, 16–CA–22931 16–CA–22961, and 16– CA–22989 April 30, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On January 21, 2004, Administrative Law Judge George Carson II issued the attached decision. The Re- spondent filed exceptions and brief in support. The Gen- eral Counsel filed a motion to strike Respondent’s brief and an answering brief to Respondent’s exceptions. Re- spondent filed a response to the motion to strike and a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings, findings,2 and conclusions3 and to adopt the recommended Order as modified.4 1 We deny the General Counsel’s motion to strike the Respondent’s brief in its entirety. However, we shall strike and disregard references in the brief to extra-record evidence. We assume, arguendo, that we may take official notice of the one-page excerpt of Respondent’s em- ployee labor relations manual (ELM) attached to its brief because the ELM is an official regulation of the Postal Service. This document does not affect our agreement with the judge’s conclusion that Respon- dent violated Sec. 8(a)(5) by unilaterally changing its established policy of automatically granting the requests of Spring area postal employees represented by the National Association of Letter Carriers to take leave without pay for their choice vacation period. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. 3 There are no exceptions to the judge’s conclusion that the Respon- dent committed several violations of Sec. 8(a)(5) by failing to provide information requested by the Unions. Member Schaumber notes that the issue of whether the relatively scant “impression” evidence presented at the hearing by two employees who were union stewards established a past practice with respect to granting requests for leave without pay is a close one. 4 We shall modify the order by limiting its provisions to the postal facilities involved in this case. In light of three Houston districtwide Board orders recently enforced by the Fifth Circuit, we find no need for the judge’s recommended special remedies of districtwide notice post- ing and a broad order. NLRB v. Postal Service, Case 03–61059 (2004) (unpublished order enforcing 339 NLRB 1162 (2003); NLRB v. Postal Service, Case 03–60908 (2003) (unpublished judgment granting appli- ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, United States Postal Service, Spring and Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(f). “(f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act.” 2. Substitute the following for paragraph 2(d). “(d) Within 14 days after service by the Region, post at its facilities within the Spring post office area and at its Windmill, Memorial Park, Jensen Drive, and North Shepherds Stations in Houston, Texas, copies of the at- tached notice marked ‘Appendix.’6 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent’s authorized representative, shall be posted by the 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since February 10, 1995.” 3. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE cation for enforcement of unpublished Board consent order in Cases 16–CA–22276, et al.); NLRB v. Postal Service, Case 03–60503 (2003) (unpublished judgment enfg. unpublished Board order in Cases 16– CA–21199, et al.). Member Liebman agrees with her colleagues that a broad cease-and- desist order is unnecessary here in light of the multiple Board orders containing broad cease-and-desist language that have recently been enforced against this employer in previous cases, cited above. See Beverly California Corp. (Beverly II), 326 NLRB 153, 157–158 (1998). However, she does not agree that the outstanding districtwide notice postings in two of those cases render a districtwide posting in this case similarly unnecessary. Rather, she finds that the greater remedial effect of successive districtwide postings, addressing distinct violations and visible to the employees over a greater period, is appropriate where, as here, an employer has demonstrated a proclivity to violate the Act. Thus, contrary to her colleagues, she would adopt the judge’s order for a districtwide posting in this case. 341 NLRB No. 100 POSTAL SERVICE 685 NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT threaten you with discipline for failing to comply with a procedure that we have unilaterally changed. WE WILL NOT refuse to bargain collectively with the American Postal Workers Union by unilaterally altering the procedure by which the American Postal Workers Union maintenance craft steward at the Spring post of- fice must obtain union time in order to carry out his rep- resentational responsibilities. WE WILL NOT refuse to bargain collectively with the National Association of Letter Carriers Branch 283, af- filiated with National Association of Letter Carriers, AFL–CIO, by unilaterally ceasing to automatically ap- prove requests for leave that involve employees repre- sented by that Union from taking leave without pay (LWOP) for choice vacation at the Panther Creek branch and other locations of the Spring post office. WE WILL NOT refuse to bargain collectively with the American Postal Workers Union by failing and refusing to provide requested information that is relevant and nec- essary to that Union as the collective-bargaining repre- sentative of the employees it represents. WE WILL NOT refuse to bargain collectively with the National Association of Letter Carriers Branch 283, af- filiated with National Association of Letter Carriers, AFL–CIO, by failing and refusing to provide requested information that is relevant and necessary to that Union as the collective-bargaining representative of the em- ployees it represents. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Act. WE WILL, upon request of the Union representing you, rescind the foregoing unilateral changes. WE WILL promptly furnish the American Postal Work- ers Union the information it requested on April 24, 2003, and WE WILL promptly furnish the National Association of Letter Carriers Branch 283, affiliated with the Na- tional Association of Letter Carriers, AFL–CIO, the in- formation it requested between January 10, 2003, and July 10, 2003. UNITED STATES POSTAL SERVICE Linda M. Reeder, Esq., for the General Counsel. Ernest A. Burford, Esq., for the Respondent. DECISION STATEMENT OF THE CASE GEORGE CARSON II, Administrative Law Judge. This case was tried in Houston, Texas, on November 3, 4, and 5, 2003, pursuant to a consolidated complaint that issued on September 29, 2003.1 The complaint, as amended at the hearing, alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening an employee and changing his working condi- tions in retaliation for his union activity and that the Respon- dent violated Section 8(a)(5) of the Act by making two unilat- eral changes and failing and refusing to provide relevant infor- mation.2 The Respondent’s answer denies all violations of the Act. I find that the evidence does establish that the Respondent violated Section 8(a)(1) and (5) of the Act substantially as al- leged in the complaint. On the entire record,3 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Board has jurisdiction of this matter pursuant to Section 1209 of the Postal Reorganization Act, 39 U.S.C. §1209. The answer admits, and I find and conclude, that the United States Postal Service (the Respondent or the Postal Service) is an employer subject to the jurisdiction of the National Labor Rela- tions Board (the Board). The Respondent’s answer admits, and I find and conclude, that American Postal Workers Union (the APWU), is a labor organization within the meaning of Section 2(5) of the Act. The Respondent’s answer admits, and I find and conclude, that National Association of Letter Carriers Branch 283, affili- ated with National Association of Letter Carriers, AFL–CIO 1 All dates are in 2003 unless otherwise indicated. 2 The charge in Case 16–CA–22766 was filed on May 1 and amended on July 29, the charge in Case 16–CA–22854 was filed on June 9, the charge in Case 16–CA–22855 was filed on June 9 and was amended on June 19, the charge in Case 16-CA-22868 was filed on June 13, the charge in Case 16–CA–22931 was filed on July 14, the charge in Case 16–CA–22961 was filed on July 25 and was amended on September 30, and the charge in Case 16–CA–22989 was filed on August 11. 3 The posthearing Stipulations of the Parties dated November 18 are received as Jt. Exh. 1. The General Counsel's Motion to Strike the Respondent's brief is denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686 (the Union), is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Overview This case arises in the Houston district of the Postal Service. The vast majority of the numbered complaint paragraphs allege that the Postal Service failed to provide or to provide in a timely manner requested relevant information at various postal facilities in that district. The answer admits all of the alleged requests and, at the hearing, the Respondent’s counsel stipu- lated to the relevance of the information sought in several re- quests. Grievances involving letter carriers represented by the Union are first addressed at an informal step A meeting with the appropriate station supervisor. If the grievance is not re- solved, a formal step A meeting is held with the respective station manager. Grievances not resolved at the formal step A meeting may be appealed to a joint management and union panel designated as the dispute resolution team, the DRT. An appeal must be made within 7 days from the formal step A decision. When an appeal file is sent to the DRT, it is supposed to be complete. The Union must appeal within the time limits to preserve the grievance even if requested relevant information has not been provided. The DRT will, depending upon the nature of the grievance, remand a grievance that is improperly documented or act upon it even in the absence of documenta- tion. See Postal Service, 339 NLRB 1162, 1165 (2003). In addressing the allegations of the complaint, I shall apply longstanding Board precedent as recently summarized in Postal Service, 337 NLRB 820, 822 (2002): The legal standard concerning just what information must be produced is whether or not there is “a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties and responsibilities as the employees’ exclu- sive bargaining representative.” Bohemia, Inc., 272 NLRB 1128 (1984). The Board’s standard, in determining which re- quests for information must be honored, is a liberal discovery- type standard. Brazos Electric Power Cooperative, 241 NLRB 1016 (1979). The Board, in determining that informa- tion is producible, does not pass on the merits of the grievance underlying a request. The complaint identifies the respective case numbers fol- lowed by the allegations relating to that case. For clarity, this decision shall follow that format and shall address the specific complaint paragraphs in order except where information re- quests relate to similar issues or employees or where the para- graphs are interrelated as they are regarding the alleged unilat- eral changes and Section 8(a)(1) and (3) violations. B. Case 16–CA–22766 This is the only case involving the APWU. Warzel Booty, a letter box mechanic with more than 18 years employment, was assigned to the Spring main office. The Spring post office, a part of the Houston District, has its own postmaster and in- cludes four stations, the Spring main office, and the Klein, Woodlands Metro, and Panther Creek branches. To avoid any confusion, I shall refer to the Spring area. The APWU repre- sents employees in the following appropriate unit: All maintenance employees, special delivery messengers, mo- tor vehicle employees, postal clerks, mail equipment shop employees and distribution centers employees; but excluding managerial and supervisory personnel, professional employ- ees, employees engaged in personnel work in other than a purely non-confidential clerical capacity, security guards as defined in Public Law 91-375, 1201(2), all postal inspection service employees, employees in the supplemental work force as defined in Article 7 [of the collective-bargaining agree- ment], rural letter carriers, mail handlers and letter carriers. APWU Maintenance Craft Director James Clack explained that the APWU is “sectioned off by crafts,” thus, the clerk craft has a different steward than the maintenance craft. Booty served as chief steward for the APWU in the maintenance craft for the Spring area for approximately 2 years. Although as- signed to the Spring main office, Booty was the only steward for that craft in the Spring area, and he, therefore, handled grievances at the outlying branches. Prior to April 23, when Booty needed time to investigate grievances or attend grievance meetings, he would verbally request the time from his craft supervisor. The APWU refers to the initial formal grievance meeting as a step 1 meeting rather than step A. On April 23, Booty received a letter addressed to him as APWU stew- ard/letter box mechanic from Richard Osborne, acting station manager of the Spring main post office. The letter provides in pertinent part, as follows: Effective immediately . . . [w]hen a need arises for you to util- ize union steward time to investigate or present a grievance or rebuttal, you must immediately notify your immediate super- visor S. Keasling in writing. When . . . you must present a Step 1 [grievance], you also must notify your supervisor . . . in writing . . . . These instructions must be adhered to and any deviations from such instructions will result in corrective ac- tion. Upon receipt of the foregoing instructions Booty requested “[c]opies of the specific section of the handbooks and manual or directive that management . . . relied upon to change the procedure for requesting union time and Step 1” meetings and “[c]opies of the last 15 grievances filed where Richard Osborne was a Step 1 or Step 2 designee.” Booty testified that he made the second portion of the request in order to establish the change in the practice. Booty testified that he received no re- sponse to either of the foregoing requests for information. Complaint Paragraphs 8 Through 16 These related complaint paragraphs allege that the reference to “corrective action” in the letter of April 23 constituted a threat of unspecified reprisals in violation of Section 8(a)(1) of the Act, that imposition of the requirement that Chief Steward Booty request time to conduct union business in writing consti- tuted discrimination against him in violation of Section 8(a)(3), that this requirement was a unilateral change in violation of Section 8(a)(5) of the Act, and that the failure to provide the information that Booty sought violated Section 8(a)(5) of the Act. POSTAL SERVICE 687 There is no contention that the Postal Service bargained with the Union prior to imposing the requirement that Booty submit requests in writing. Maintenance Craft Director Clack testified without contradiction that other APWU craft stewards request and receive union time verbally. The Respondent, in its brief, argues that its “request that Mr. Booty put his request for union time in writing . . . did not amount to a unilateral change because it was a request directed only to him” and that this “instruction . . . to one employee” did not constitute “a material, substantial, and significant change,” that required bargaining. I disagree. If, as the Respondent asserts, the change did not con- stitute “a material, substantial, and significant change” the Re- spondent could, as phrased in its brief, have made a “request” that Booty put in his requests in writing. Contrary to the phras- ing in the Respondent’s brief, there was no request. There was, as quoted above, an unequivocal direction accompanied by a threat of “corrective action.” Any contention that the foregoing did not constitute a material and substantial change is belied by the threat of discipline for violation of the unilaterally imposed requirement. The Respondent points out that all letter carrier stewards request union time in writing and that a written record would assure that there would be no disputes over whether union time had been requested by the APWU maintenance steward. The Respondent’s rationales for the change are not the issue. The issue is whether the Respondent was obligated to bargain before making the change. The direction to submit requests in writing was made to Booty in his capacity as maintenance craft union steward. This was not an insubstantial change in the manner in which Booty carried out his job duties as a Postal Service employee. It was a material alteration in the manner in which he carried out his steward duties on behalf of mainte- nance craft employees represented by the APWU. In his repre- sentative capacity as steward, Booty was the APWU just as Manager Osborne was the Postal Service. Thus, although, the letter of April 24, was from Osborne to Booty, effectively the Postal Service directed the APWU that, with regard to the maintenance craft, it must request time to conduct union busi- ness and step 1 grievance meetings in writing and, concomi- tantly, wait until a Postal Service official responded in writing in order to carry out its representational responsibilities. Fur- thermore, if the representative of the APWU failed to do so, that representative would be subject to “corrective action.” I find that the foregoing change in past practice materially altered the manner in which the representative of the APWU could carry out that union’s representational responsibilities. The Board, in Carpenters Local 1031, 321 NLRB 30, 32 (1996), held that a unilateral change affecting one employee did not preclude finding an 8(a)(5) violation, noting that the layoff of one employee in a unit of two employees “seriously under- mines the union’s status as the employees’ collective bargain- ing representative.” The rationale regarding undermining the status of a union is even more apparent in this case where the employer totally ignored the APWU and sought to unilaterally impose its desired change in past practice upon that Union without negotiation by issuing a management directive to the one APWU maintenance craft shop steward at the facility. In so doing, the Respondent violated Section 8(a)(5) of the Act. The General Counsel, citing Advanced Installations, Inc., 257 NLRB 845 (1981), argues that a threat to discipline em- ployees for violation of a rule established by a unilateral change violates Section 8(a)(1) of the Act. I agree and find that the threat of “corrective action” for violation of this unilaterally imposed requirement violated Section 8(a)(1). See GHR En- ergy Corp., 294 NLRB 1011, 1048 (1989). The General Counsel further argues that the imposition of the requirement that Booty request union time in writing consti- tuted discrimination “because of Booty’s union activity” in violation of Section 8(a)(3) of the Act. The General Counsel does not discuss or explain how the imposition of the require- ment that Booty submit a written request affected his hire or tenure of employment or the terms and conditions of his em- ployment as an employee of the Postal Service. Although the requirement unilaterally altered the manner in which he could carry out his representational responsibilities in violation of Section 8(a)(5) and threatened corrective action in violation of Section 8(a)(1) if Booty did not comply, the requirement was a procedural requirement made to him in his representative ca- pacity, not an adverse personnel action. If Booty had failed to comply and been disciplined, that discipline would have vio- lated the Act. See GHR Energy Corp., supra at 1048. Because Booty complied with the requirement, there was no adverse action taken against him that related to his hire or tenure of employment as an employee. I shall recommend that the 8(a)(3) allegation be dismissed. As set out in paragraph 14 of the complaint, Booty sought both documents relied upon by the Postal Service in making the change and grievances relating to past practice. The Postal Service contends that it attempted to present the information sought by Booty within a week of his request and again on June 27. Acting Station Manager Osborne testified that a supervisor informed him that Booty had refused a proffer of the requested information, but there is no direct evidence of this nor is there any document or notation reflecting any such refusal. I credit Booty that there was no response to his request. Booty was not questioned regarding an attempt to formally present this infor- mation to the Union at its main office. On June 27, a delegation consisting of Carol Clark, secretary to the Spring postmaster; Stephanie Keasling, Booty’s supervi- sor; Jennifer Joseph, station manager of the Klein branch; and Barbara Wright, station manager of the Panther Creek branch; went together to the main office of the Union with a stack of documents that had been placed in sealed envelopes by Carol Clark. All members of the delegation agree that they spoke with a group of union representatives and that Booty joined those representatives. All agree that the union representative with whom they initially spoke, not Booty, refused to accept the stack of sealed envelopes. Supervisor Keasling recalls that, as they continued to talk, Booty asked to review the documents before signing for them, but this request was refused because “we couldn’t open it [them],” presumably because they were sealed and designated as certified mail. No member of the delegation could testify regarding specifically what was in any of the sealed envelopes, and no member of the delegation as- serted that she knew that any documents subject to the informa- tion request that is the subject of these complaint allegations DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688 were included. The refusal of the Union to accept the docu- ments is noted with the date June 27 and the initials JJ. Jennifer Joseph was not recalled to identify the initials. At the hearing herein, one of those sealed envelopes was opened. It contained none of the grievances that the Union had requested. Acting Station Manager Osborne, when he had ini- tially been asked whether Booty was provided the information he requested, testified, “Yes, he was.” After the envelope was opened, Osborne recalled that the requested grievances had to be tracked down because of a new computer system and that he “was able to retrieve them afterwards.” Osborne admitted that he made no attempt to present the grievances to Booty after he retrieved them. The Respondent, by failing to provide copies of grievances at which Osborne served as its step 1 or 2 desig- nee, violated Section 8(a)(5) of the Act. Prior to assuming his duties at the Spring main office, Os- borne had been located in Katy, Texas. Katy is not in the Spring area, thus the manner in which stewards requested union time at that location has no relevance to the unilateral change instituted in the Spring area. I shall recommend that only cop- ies of relevant grievances, i.e., grievances arising in the Spring area in which Osborne served as the Step 1 or 2 designee, need to be provided to the Union. The record does not establish whether there was any re- sponse to the request for “[c]opies of the specific section of the handbooks and manual or directive that management . . . relied upon to change the procedure for requesting union time and Step 1” meetings. Counsel for the General Counsel questioned Osborne only regarding the absence of any grievances in the envelope. Counsel for the Respondent did not question Osborn regarding the contents of the envelope, and no party asserted that there was any other document in it that was relevant to this proceeding. Thus, there is no probative evidence that the Re- spondent responded to the Union’s request for documents that it relied upon when making the unilateral change. By failing to respond to the request of the Union for the foregoing relevant information, either by providing it or acknowledging that it did not exist, the Respondent violated Section 8(a)(5) of the Act. C. Case 16–CA–22854 This case involves requests for information submitted by Chief Steward Paula Papich, a letter carrier at the Windmill Station in Houston. The station manager is Gloria Solis. Complaint Paragraph 17 Letter carrier Marie Asscherick worked under a medical re- striction limiting her to her assigned route. On January 13, due to a shortage of vehicles, Asscherick was required to carry part of another route and a portion of her assigned route was carried by a different carrier. On February 19, Papich requested a copy of the medical restriction, i.e., the “work only assignment re- striction” for Asscherick. Papich made a second request for the same document on February 21. Although Station Manager Gloria Solis initially testified that she believed that Supervisor Mary Warner provided the information, she later acknowledged that the Postal Service advised the Union in a letter dated Octo- ber 3, that the Postal Service did not have a copy of Ass- cherick’s work restrictions. By failing to provide a timely re- sponse to the foregoing request for relevant information the Respondent violated Section 8(a)(5) of the Act. Complaint Paragraph 18 On March 1, letter carrier Jim Hanratty received a notice of discipline for deviating from his assignment on January 27. He claimed that he was at lunch at the time in question. On March 15, Papich requested the 1080, which was the disciplinary package assembled by the Postal Service, any notes from a predisciplinary meeting held with Hanratty, a record of any prior discipline imposed upon him, and the form 3996, a re- quest for auxiliary assistance or authorization for overtime filed by Hanratty on January 27 that would have shown his lunch time and location. Papich received no response and requested the information twice more, on March 19 and 26. In late July, the disciplinary package, the 1080, was provided. Station Manger Solis testified that all of the requested information was provided and that she wrote on the third request “information was supplied to Ms. Papich already.” Solis did not write down the date that the information was purportedly provided. The relevance of the information was not disputed. I credit Papich. The fact that she submitted a third request belies the assertion of Solis that the information was submitted on a date that she did not record when writing that the information had been “supplied . . . already.” By failing to provide the 1080 in a timely manner as alleged in subparagraph 18(a) and by failing to provide the remaining information as alleged in subpara- graphs 18(b), (c), and (d), the Respondent violated Section 8(a)(5) of the Act. Complaint Paragraph 19 On February 22, PTF (part-time flexible) employee Hector Torres attempted to bid for a “T-6 vacancy.” When a route is vacant for more than 40 hours, five regular workdays, it should be posted for bids to deliver the route on a temporary basis. Chief Steward Papich testified that the Postal Service refused to permit Torres to bid on the vacancy. In further testimony, she acknowledged that the vacancy had not been posted. Notwith- standing the failure of the Postal Service to post the vacancy, Papich submitted an information request for a “Form 13 . . . to fill T-6 vacancy” that Torres informed her he had submitted. Station Manager Solis explained there was no such documenta- tion, a bid, because the vacancy was not posted. I fail to see the relevance of a purported bid submitted for an unposted va- cancy. The Postal Service refused to permit bids on the va- cancy because it did not post the vacancy. There is no issue before me regarding the failure to post the vacancy. I note that, following the filing of the charge herein, the Postal Service provided the Union with a certified letter dated October 3 stat- ing that it had no Form 13 from Torres. Thus, even if the in- formation requested were found to be relevant, the Postal Ser- vice responded, albeit in an untimely manner, to the request, and no affirmative remedy is required. I shall recommend that this allegation be dismissed. Complaint Paragraphs 20 and 21 The foregoing two paragraphs relate to class action griev- ances concerning overtime. The Union contended that carriers not on the overtime desired list had been forced to work over- POSTAL SERVICE 689 time on March 22 and 28 and again on April 5 and 7 before the overtime desired list had been exhausted. Papich requested “everything reports,” computer generated documents that show the employees’ clock rings, i.e., the specific time worked in- cluding any overtime, for all carriers for the relevant days and whether they worked overtime, the overtime alert report for March 22 through 28, the work assignment only list and “forced [overtime]” list for April. Counsel for the Respondent stipulated that the information requested was relevant. Papich acknowledged that a portion of the everything reports was provided, but that there were “pages missing” because the submission was limited to the clock rings of carriers on the overtime desired list. The issue, as noted, was forcing carriers not on the overtime-desired list to work. Station Manager Solis testified that “the supervisors pulled the documentation off the computer, and they tell me they pulled it for her as soon as possible.” The report of supervisors to Solis regarding what they told her does not refute Papich’s testimony that the infor- mation initially provided to her was incomplete. The parties stipulated that all of the requested information was provided on July 19. By failing to provide all carrier everything reports, the overtime alert report for March, the work assignment only list and April forced overtime list in a timely manner, the Respon- dent violated Section 8(a)(5) of the Act. D. Case 16–CA–22855 The charge in this case was filed on June 9. On August 13, the Regional Director, in a letter to all parties, stated that he had considered the charge and “decided that further proceedings . . . should be handled in accordance with the Board’s deferral pol- icy.” Thereafter, in a paragraph designated “Decision to Defer,” the Regional Director states that he is “deferring further pro- ceedings on the charge to the grievance/arbitration process” and states that the issues raised by the charge involve an alleged unilateral change in the collective-bargaining agreement by “permitting the postal clerk craft to perform manual tertiary sorts.” Although the charge also alleges failure to provide in- formation, the deferral letter does not mention the information requests, several of which related to the alleged unilateral change. The letter does not purport to be a partial deferral. On August 29, the initial consolidated complaint herein was issued. Paragraphs 28 through 40 related to information re- quests contained in the charge in Case 16–CA–22855. On Sep- tember 12, the Postal Service filed its answer to the foregoing complaint which includes several affirmative defenses. Para- graph 4 of the affirmative defenses states: “The Respondent received a Decision to Defer dated August 13, 2003 on Charge 16–CA–22855.” The instant complaint issued on September 29. It alleged, as did the initial complaint, in paragraphs 28 through 40, the failure to provide information. The Respondent’s an- swer, dated October 14, expands upon the affirmative defense set forth in paragraph 4: “The Respondent received a Decision to Defer dated August 13, 2003 on Charge 16–CA–22855, therefore the Board should dismiss the charge and sever it from the Consolidated Complaint.” At the hearing herein, the Re- spondent filed a Motion for Summary Judgment relating to the allegations arising from Case 16–CA–22855. That motion was untimely, and it is denied. The Region did not issue an amended deferral letter or oth- erwise respond to the issue raised by the Respondent’s affirma- tive defense. The General Counsel argues that the Regional Director, by the terms of the deferral letter, retained authority to “revoke deferral and resume processing of the charge” and that the Re- spondent has not been prejudiced since it had notice from the presence of the allegations in the complaint that the General Counsel intended to litigate the refusal to provide information. I do not agree. On August 13, the Region totally deferred Case 16–CA–22855 with no reservations or exceptions. The Respondent, upon observing that allegations from that case were included in the consolidated complaint, raised the deferral issue in its answer by pleading as an affirmative defense that those allegations were included in a charge that had been de- ferred and should, therefore, be dismissed and severed from the complaint. The Region took no action to clarify the situation. Cf. Chatham Mfg. Co., 221 NLRB 760 (1975). No revised deferral letter issued. The Respondent has sustained its af- firmative defense. I shall recommend that the allegations aris- ing from that charge which has been deferred in its entirety to the parties’ grievance/arbitration procedure be dismissed from this complaint. This dismissal shall be without prejudice to any further proceedings or actions that may be appropriate upon completion of the arbitration process and review of the matters considered at arbitration. Insofar as the Board should not agree with the foregoing rec- ommendation, in order to avoid a potential remand, I shall ad- dress the allegations set out in the complaint. All of the infor- mation requests were made by Chief Steward Lana Park at the Memorial Park Station. Chief Steward Park acknowledges that all information except the items alleged in complaint subpara- graphs 33(a) and (c) were provided, albeit not in a timely man- ner, on July 22. Complaint Paragraphs 28, 29, and 30 The foregoing paragraphs relate to three separate information requests filed on behalf of letter carrier B. B. Shelvin who felt that he was being harassed by his supervisor. The first, relating to January 28, sought carrier clock rings for Shelvin to show he was present, a form 3996 requesting assistance or overtime submitted by Shelvin, and clock rings for other carriers sent to deliver mail on Shelvin’s route. This request was initially sub- mitted to the closing supervisor, John Johnson, on February 1. A second request for the same information was submitted to carrier foreman Samuel Eapen on February 11. The next re- quest relating to Shelvin sought clock rings and the form 3996 submitted on February 11 and 14, and the final request sought Shelvin’s clock rings for February 3. These requests were all submitted to Supervisor Eapen. Park denied receiving the foregoing information until July 22. Eapen testified that, when he received a request, he would seek to respond but that he would not do so if he was too busy. When asked whether he responded to the request to which Su- pervisor Johnson had failed to respond, Eapen testified, “[A]t that time I might have been busy.” Notwithstanding his failure to confirm that any of the specific information sought regarding Shelvin was provided, Eapen testified that Park “received all DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 690 the information . . . [i]t may be late, but . . . my manager pro- vided that to her.” At the time of the foregoing requests, the position of station manager was filled by Benita Clark. The parties, in a posthearing stipulation, agreed that, if called as a witness, Clark would testify that she told Park that if she had not received needed documentation she should notify her be- fore the formal step A meeting. The parties further stipulated that Park denied that there was any such agreement. Regardless of any agreement, the record establishes the foregoing requests for relevant information, and there is no probative evidence that the Union received the information in a timely manner. By failing to provide the foregoing relevant information in a timely manner, the Respondent violated Section 8(a)(5) of the Act. Complaint Paragraph 31 and 32 These two paragraphs relate to information requested in con- nection with the Union’s grievances regarding “segmentation,” i.e., the performance by clerks of “tertiary sorts,” work that the letter carriers claimed and the issue that the General Counsel acknowledges was deferred. Notwithstanding the deferral, the complaint alleges the failure to timely provide the foregoing information. Paragraph 31 alleges that the Postal Service failed to provide a copy of the “regulation permitting clerks to per- form manual tertiary sort of flats for routes 2417/2472.” Chief Steward Park acknowledges that the Postal Service provided documents purportedly responding to that request. The infor- mation was provided to Park by Ricardo Johns, who had been assigned as station manager in early April. Johns acknowl- edged that he had no personal knowledge regarding what in- formation he gave to Park, that what he gave her “came at [to] my level with the package from the supervisor.” Park argued that the information provided was “information that I did not request,” and made a second request for the regulation. The Postal Service’s timely response to the initial information re- quest included no regulation, suggesting that no such regulation existed. No additional information was provided. The deferral of the grievance regarding segmentation establishes that the Postal Service contends that it was privileged to made the work assignment in question and that, although Park did not consider the documents provided to be responsive, the Postal Service did consider them responsive. Although the complaint alleges that the Respondent failed “to timely furnish” the information sought in paragraph 31, I find that the Respondent made a timely response to that infor- mation request, and I shall recommend that paragraph 31 of the complaint be dismissed. Station Manager Johns had no document reflecting that the Union received the information that is the subject of paragraph 32 of the complaint. He asserted that the documentation was provided because the grievance was submitted to the dispute resolution team, but his testimony reflects no independent knowledge of what was in the package submitted. Park testi- fied that the information was not received until June 22. I find that the Respondent failed to provide the information set out in paragraph 32 of the complaint in a timely manner in violation of Section 8(a)(5) of the Act. Complaint Paragraph 33 On May 24, Park requested information relating to a com- plaint that the Postal Service was working two casual employ- ees, identified in the request as Nelson and Pasquale, in lieu of bargaining unit employees. The information sought included the form 50 for the casual employees which would reflect their date of hire, the employee activity report showing the hours they worked, form 3997, the weekly work schedule, and the carrier complement reports showing work hours including over- time for the regular work force. On July 23, Park received a certified letter stating that the form 50 was privileged from disclosure pursuant to the Privacy Act. On July 22, she re- ceived the activity report and carrier complement reports. She testified that she never received the form 3997, the weekly work schedule for the date in question. Station Manager Johns had no independent recollection regarding what information was provided but asserted that Park received all of the informa- tion in a timely manner because Park signed off on “the pack- age that was sent to the DRT” and it was not “her modus of operandi” to do so if the submission was insufficient. John’s testimony is contradicted by the Privacy Act claim regarding the form 50 and by the requirement that submissions must be made to the DRT in a timely manner even if the package is incomplete. I credit Park and find that the Respondent violated Section 8(a)(5) of the Act by failing to provide the relevant information sought in complaint subparagraphs 33(b) and (d) in a timely manner and failing to provide the relevant information sought in subparagraph 33(a) and (c). Insofar as the form 50 itself is protected by the Privacy Act, the Respondent need only provide the hire dates of employees Nelson and Pasquale. E. Case 16–CA–22868 This case involves information requests made at the Jensen Drive Station to Acting Station Manager Larry Edmond and 204(b) Supervisor Issia Carr by Steward Ramon Martinez. Complaint Paragraph 41 On January 10, Steward Martinez presented an information request to Supervisor Issia Carr seeking, among other items, carrier schedules for December 27, 2002, through January 3. Martinez made this request after hearing that letter carriers were not receiving their 5 o’clock window of operations pay. The 5 o’clock window is significant to employees because after that time employees receive an additional $10 per hour. Marti- nez testified that Supervisor Carr informed him that the sched- ule could not be found. Insofar as the Postal Service re- sponded, I shall recommend that this allegation be dismissed. Complaint Paragraph 42 In late January, the Union became concerned that carriers who were supposed to be receiving overtime were not being maximized because carriers who had not volunteered for over- time were being forced to work overtime in order to complete their routes by 5 p.m. On January 28, Martinez presented Su- pervisor Carr with an information request seeking, among other items all “time clock ring sheets from January 11 through 24.” Martinez testified that the Union was also concerned that some clock rings were being changed. Carr testified that “nine times POSTAL SERVICE 691 out of ten I go ahead and pull the information that he needs. If not, I put it in front of the computer, and in the mornings, the manager will pull it.” Carr acknowledged that she had no re- cord reflecting what information she did provide to Martinez. She did not keep a record of the occasions upon which she left the request for Edmond to complete. Despite the absence of any record, Carr testified that she provided the foregoing in- formation to Martinez. I do not credit that testimony. Martinez specifically recalled, “I didn’t receive the reports, so there was no way to prove the actual times.” He therefore was unable to file a grievance. By failing to provide the foregoing informa- tion, the Respondent violated Section 8(a)(5) of the Act. Complaint Paragraph 43 On February 21, not having received the information re- quested on January 28, Martinez requested all carrier schedules from December 27, 2002, through February 21. He made this request in regard to the Union’s continuing concern with the issue that employees on the overtime desired list and PTF letter carriers were not begin maximized. He received no response. Martinez recalled that a management official, he believes it was Acting Station Manager Edmond, informed him, “We’ll get them to you.” Carr, when asked whether she provided the fore- going information, answered, “Yes.” Martinez, who was seek- ing to file a grievance based upon the information received, testified that the information was not provided. I credit Marti- nez. By failing to provide the requested relevant information, the Respondent violated Section 8(a)(5) of the Act. Complaint Paragraph 44 In February, the Union continued to be concerned that em- ployees had not been properly compensated for the 5 o’clock window. On February 26, Steward Martinez presented an in- formation request to Acting Station Manager Larry Edmond seeking “copies of all five o’clock window of operations pay authorizations” from October 2002 through February 21. After filing the charge herein on June 13, Martinez received the documents for the first 15 pay periods in 2003, covering the time period from December 25, 2002, through July 12. Consis- tent with the allegation in paragraph 56 of the complaint, I find that the Respondent violated Section 8(a)(5) of the Act by fail- ing to timely furnish the foregoing information. Martinez acknowledged that the Union had, pursuant to a prior request, received documentation for October and Novem- ber 2002, but that he thereafter misplaced those documents. When he was unable to locate the documents, he included that time period in the request he made on February 26. At the hearing, counsel for the General Counsel amended complaint paragraph 44, that initially alleged a time period of December 27, 2002, through February 21, 2003, to allege October 2002 through February 21, 2003. Although the Respondent failed to provide the same information a second time, no amendment was offered to paragraph 56 that alleges that the Respondent failed “to timely furnish” the information set out in paragraph 44. I have so found with regard to the information that was ultimately provided. In view of the foregoing, no further find- ing is warranted. Complaint Paragraph 45, 46, 48, and 49 Pursuant to its continuing claim that employees on the over- time desired list and PTF employees were not being maxi- mized, Martinez, on March 12, presented Edmond with a re- quest for “copies of carrier clock rings” for pay period February 22 through March 7. Martinez testified again that an additional concern of the Union was that clock rings were being changed. Martinez recalls that Edmond stated that he would “get it,” but that he did not do so. Acting Station Manager Edmond, when shown this informa- tion request at the hearing, testified that it would take a” day or two” to obtain this information from the computer. He did not testify that the information sought was provided. Rather, in response to counsel for Respondent’s questions, he testified that there was no reason that he would not provide the information and that, to the best of his knowledge, it was provided. Marti- nez’ credible testimony that it was not provided contradicts Edmond’s speculation, and I credit Martinez. With regard to this same issue of maximization of overtime, Martinez, on April 19, presented Supervisor Carr with a request for carrier clock ring sheets from April 5 through 18 as well as the volunteer overtime list and overtime desired list for that same period. Martinez explained that after the overtime desired list and PTFs have been exhausted, the Postal Service is “sup- posed to ask for volunteers among the regular letter carriers not on the list before they force anyone to work overtime.” Al- though the overtime desired list is available at some stations, Martinez testified that, at Jensen, it is kept in the manager’s office. On April 30, Martinez presented Supervisor Carr with a re- quest for “carrier everything reports” for April 19 through 30. Martinez explained that, as with his prior request, he wanted the clock rings, he but had learned that the report upon which clock rings were shown was now a computer generated docu- ment referred to as the “carrier everything report.” As with his prior requests, Martinez did not receive the documents and, when he verbally reminded management of his request, he was told, “okay,” or, “we’ll get it,” but the documents were not produced. On May 6, Martinez presented an information request to Carr seeking copies of the letter carriers’ schedule and the car- rier reports for the pay period April 26 through May 2. He testified that this request, like the request for clock rings, re- lated to maximization of overtime. As already discussed, Carr, when summarily asked whether she provided the information at issue, answered, “Yes.” When asked how she knew she had done so, Carr answered, “I just remember.” In view of Carr’s acknowledgement that she main- tained no record of what she provided, I have no confidence in that assertion. Martinez had a document, the information re- quest, and a desire to act upon the information that he received. Although Carr asserted that she provided all of the information sought in the foregoing requests, except the request of March 12 which was handled by Edmond, I do not credit her testi- mony. I find that the Respondent, by failing to provide the information sought in paragraphs 45, 46, 48, and 48 violated Section 8(a)(5) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692 Complaint Paragraphs 47 In preparation for filing a class action grievance to create regular part-time positions for PTF letter carriers at the Jensen Drive Station, Martinez presented an information request to Supervisor Carr on April 30. The request seeks the total num- ber of regular route carrier positions in the Houston District, the total number of regular route carrier positions that did not have regular carriers assigned as of April 30, and the total number of regular carrier positions in the Houston District filled by PTF carriers on “in-station or “hold down” bids. Martinez explained that the Postal Service was only allowed to have 12 percent of the total work force as PTF letter carriers, that 88 percent should be regular letter carriers. The documents he sought would show whether this formula was being adhered to and, to assure accuracy, he wanted to assure that the figures provided did not count PTF employees holding temporary bids as regular letter carriers. Edmond informed Martinez, within a week, that he did not “have access to that information.” Edmond did not deny making the foregoing response. At the hearing he as- serted that Martinez, as a steward at Jensen Drive, was not enti- tled to information concerning employees at other locations. No authority for the foregoing opinion was stated. Martinez testified that he was certain that Edmond “could have called somebody higher up the chain of command and gotten that information for me.” Although Carr testified to providing the carrier information at Jensen Drive, Martinez, who had the conversation with Edmond, denied receiving any other re- sponse. Although, unless specifically requested, a steward at one fa- cility cannot represent a unit member at a different facility, there is no probative evidence before me that a steward is not entitled to information that must be obtained from other facili- ties that is relevant to representation of the employees at the facility of the requesting steward. The information requested by Martinez in connection with a potential class action griev- ance at the Jensen Drive Station sought information relating to unit employees in the same administrative entity, the Houston district. Failure of the Postal Service at a small facility to ob- tain requested relevant information from “the main facility in Poughkeepsie” was found to violate the Act in Postal Service, 303 NLRB 502, 308 (1991). The Respondent, by failing to provide the requested information relating to a potential class action grievance, violated Section 8(a)(5) of the Act. Complaint Paragraph 50 Martinez testified that the Union not only was concerned re- garding the number of regular positions but also was concerned that “casual letter carriers were being used to the detriment of the regular workforce.” Martinez explained that casuals “can only be worked for two consecutive 90-day periods, except for a 21-day period during December, and also they can’t be worked 40 hours per week. The Union believed that some casuals “were working 40 hours or more per week.” With re- gard to the foregoing concern, Martinez, on May 6, presented Supervisor Carr with an information request seeking copies of the “time records of all casual letter carriers working in Hous- ton District Area 1, and the total number of hours they worked each week for the time period March 22, 2003, through May 2, 2003.” Acting Station Manager Edmond did not deny that he again informed Martinez that “he had no access to those re- cords.” Although casual employees are not unit employees, the in- formation sought by the foregoing request related directly to the working conditions of unit employees insofar as the informa- tion sought would potentially show that casual employees were being used impermissibly. I find the foregoing request relevant and that the failure of the Respondent to provide the informa- tion violated Section 8(a)(5) of the Act. Complaint Paragraph 51 On May 20, Martinez presented an information request to Edmond requesting FMLA (Family Medical Leave Act) docu- ments for letter carrier Phillip Bridges for October 2002 and January and the supervisory “notes of [the] predisciplinary hearing for Phillip Bridges.” Bridges had informed Martinez that he had submitted the proper documentation but that his request for medical leave had not been accepted for those peri- ods. The Postal Service contended that no documentation was submitted and Supervisor Carr informed Martinez that the Postal Service was considering taking action against Bridges for being absent without leave in connection with those ab- sences. In connection with this controversy, a predisciplinary inter- view was held with Bridges on a date not specified in the re- cord. Martinez was present at the predisciplinary meeting and took his own notes. He testified that Phillips contended that he had submitted the appropriate paperwork, “and they [the Postal Service] were saying that he hadn’t.” The supervisory notes of the predisciplinary interview would have confirmed the Postal Service’s intention to discipline Bridges for failure to submit the paperwork and were clearly relevant to the Union. The failure of the Respondent to provide the supervisory notes vio- lated Section 8(a)(5) of the Act as alleged in subparagraph 51(b) of the complaint. The basis for the intended discipline was the alleged failure of Bridges to have submitted the very paperwork that Martinez sought in the information request. In these circumstances I find no basis for exalting form over sub- stance. Martinez was told that that Bridges had not submitted the paperwork, and therefore he knew that the Postal Service was claiming that it did not have the requested documents when he made the information request. I shall recommend that sub- paragraph 51(a) of the complaint be dismissed. F. Case 16–CA–22931 The case, like Case 16–CA–22854, concerns information re- quests made by Chief Steward Paula Papich at the Windmill station. Complaint Paragraphs 64, 65, and 66 All three of the information requests in the above paragraphs relate to class action grievances regarding overtime. As re- flected in the discussion of complaint paragraphs 20 and 21, the Union alleged that carriers were being forced to work overtime before the overtime desired list had been exhausted. Paragraph 64 relates to a request for all carrier everything reports for March 8 through March 14, and paragraph 65 relates to a re- quest for those reports for March 29 and April 4. Paragraph 66 POSTAL SERVICE 693 relates to a request, on April 16, that repeats the April 9 request for the carrier everything reports for March 29 and April 4 and additionally seeks the overtime alert report for all carriers for March 29 through April 4. The Respondent stipulated that all of the requested foregoing information was relevant. Although the Union requested carrier everything reports for all carriers, Papich testified that the Postal Service did not provide all such reports. She testified that no overtime alert reports were pro- vided. Solis testified that she relied upon her supervisors to provide requested information to the Union. Supervisor Mary Warner was not specifically asked about any of these requests. Super- visor Warren Thornton was asked about the request submitted on April 16 and testified, “As far as I know” the documentation was provided. I credit Papich. The Respondent, by failing to provide the foregoing relevant information violated Section 8(a)(5) of the Act. G. Case 16–CA–22989 The allegations in this case relate to information requests made by Mark Kessinger, chiefs of the Union at the Postal Service’s North Shepherd Station in Houston in April and May. The first two such requests were submitted to Supervisor Jesse Guerrero. All subsequent requests were submitted to Elizabeth Owens, who became station manager in April and directed that all information requests be submitted directly to her. Neither Guerrero nor Owens testified. The answer admits the receipt of these requests and Kessinger’s unrebutted credible testimony establishes that none of the requested information was pro- vided. Thus, the only issue is whether the requested informa- tion was relevant. Complaint Paragraph 71 On April 5, Kessinger presented to supervisor Jesse Guerrero an information request to support a grievance that he filed on behalf of unit employee Lathorn King. King had complained that he was being loaned to the Irvington Station while casual employees were being allowed to work hours that he would have worked as a part-time flexible (PTF) carrier at the North Shepherd Station. The information request sought the North Shepherd PTF schedule for March 31 and April 2 in order to establish that King was assigned to another station on those days, the North Shepherd casual employee schedules for those 2 days in order to establish that casual employees did work at North Shepard, and the Irvington Station overtime desired list (ODL) in order to determine whether the assignment of King had deprived any Irvington employees of overtime in violation of the collective-bargaining agreement. I find that the re- quested information was relevant. Complaint Paragraph 72 On April 11, Kessinger presented to Supervisor Guerrero a request relating to a grievance he filed on behalf of employee Alexis Butler. Butler had received a 7-day suspension at the Fairbanks Station. Shortly thereafter he was transferred to the Windmill Station where, he informed Kessinger, he had re- quested to see a steward in order to grieve his suspension. He was then transferred to the North Shepherd Station where Kessinger filed the grievance on his behalf. The information request sought the suspension notice because Butler had mis- placed the copy that had been given to him, the discipline pack- age and notes relied upon to impose the discipline, Butler’s request to see a steward at the Windmill Station in order to establish that the attempt to grieve the suspension was timely and the schedule for “Butler and Shop Steward while Butler was at Windmill Station” in order to establish that a steward was present on the day that Butler could have met with the steward. I find that the requested information was relevant. Complaint Paragraphs 73 and 74 On April 18, Kessinger presented two information requests to Station Manager Owens regarding grievances filed on behalf of Isaac Richard who claimed that he had been denied the op- portunity to work overtime on April 8 and 16. The request relating to April 8 seeks the ODL (overtime desired list) for April 8, the ODL worksheet or “square sheet” for April 8 which would show who was assigned overtime, and the overtime re- port which would show how much overtime was worked by each carrier assigned overtime. The request relating to April 16 seeks the same information for April 16 as well as the unit schedule for April 16 that would have reflected which carriers were scheduled to work overtime, the crew list for “NSOT (nonscheduled overtime) for April 8 and 16 which would show employees who were off but were willing to work nonsched- uled overtime, and the “[b]ack of the overtime desired list” which would show telephone calls to nonscheduled carriers offering them an overtime opportunity. The Respondent stipu- lated that all of the foregoing requests were for presumptively relevant information and, I so find. The Respondent did not stipulate to the Union’s request for a copy of “Ike Richard’s restrictions.” Kessinger testified that Richard reported to him that management had told him that he was not called on April 16 because “they didn’t have any work within his restrictions.” Kessinger testified that providing a response to that portion of his request would establish whether Richard had any restric- tions and, if so, what they were relative to the claim that there was no work within his restrictions. I find the foregoing re- quest relevant. Complaint Paragraphs 75 and 82 On May 6 and May 10, Kessinger presented information re- quests to Station Manger Owens that arose from an incident involving employee Leticia Angulo. Angulo had alleged that another employee had bitten her, and she filed a complaint pursuant to the Postal Service’s “zero tolerance” for violence policy. Although Angulo participated as a witness in the inves- tigation, she expressed concern to Kessinger that her complaint would not be taken seriously. Kessinger filed the May 6 re- quest seeking the zero tolerance report in order to assure Angulo that her complaint had been fairly investigated. Angulo was taken off of the clock for the time she was away from her duties due to her participation in the investigation. When she was paid she discovered that she had been compensated as a PTF carrier whereas, on the date she was taken off of the clock, she had been assigned to a regular route pursuant to an in- station bid award. The May 10 request sought the in-station bid award to Angulo, the pay adjustment made for Angulo regard- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694 ing the zero tolerance investigation, the hours worked by Angulo for the 14 days prior to the investigation, and part time flexible (PTF) hours worked during the period. Kessinger ex- plained that if Angulo were not awarded pay for the in-station bid route, he needed the additional information to establish Angulo’s proper compensation as a PTF carrier. I find that all of the foregoing requested information was relevant. Complaint Paragraphs 76, 77, and 80 In early May, letter carrier Shelia Miller-Brown complained to Kessinger that she had learned that other members of her crew had been making more money than she by working un- scheduled days, that “she had been passed over too many times during the last two months for overtime on her nonscheduled day.” Pursuant to her complaint, Kessinger, on May 8, re- quested the overtime desired list for the past 60 days, from May 6, 2003, the nonscheduled overtime desired list for the past 60 days from May 6, 2003, and Miller-Brown’s assignments and unscheduled days during same period. The foregoing informa- tion was clearly relevant in order to establish whether Miller- Brown had been passed over as she was alleging. At the same time on May 8, Kessinger presented Station Manager Owens with a second information request relating to Miller-Brown having been charged leave without pay (LWOP) when she was absent due to a medical emergency. This request sought Miller-Brown’s pay stub to confirm that she was charged LWOP, and “medical documentation from hospital, from family practice and radiologist,” documents that Miller- Brown had informed Kessinger that she had submitted in order to obtain medical leave. When questioned regarding whether he had obtained Miller-Brown’s authorization regarding the foregoing information, Kessinger testified that she signed the grievance form. He denied being aware of any special proce- dure regarding obtaining documents submitted by an employee in support of a claim for medical leave, and the Postal Service presented no testimony establishing any such procedure. The requested information was relevant. On May 10, Kessinger presented Owens an information re- quest relating to a complaint from Miller-Brown that she had missed an overtime opportunity on May 9. Kessinger requested the “everything report” for Miller-Brown that showed her clock rings, the overtime desired list, and the form 3996 submitted by Miller- Brown requesting assistance or authorization for over- time. Counsel for the Respondent stipulated to relevance of the foregoing information. Complaint Paragraphs 78 On April 29, the Postal Service refused to accept documenta- tion presented by employee Derrick Brown regarding sick leave. On May 10, Kessinger presented to Owens an informa- tion request seeking the form 3971 (the leave request) submit- ted by Brown for April 25 and 26 and the policy relied upon to refuse the documentation that he attempted to present. Counsel for the Respondent stipulated to the relevance of the foregoing information request. Complaint Paragraph 79 Letter carrier Arthur Wiley, like Miller-Brown, complained to Kessinger in early May that he was being passed over for overtime opportunities. On May 10, Kessinger presented an information request to Owens for the overtime desired list that would have been in effect for April 22 and 30 and May 8. Kessinger explained that grievance packages must be complete, thus, the list requested on behalf of Miller-Brown for the 60 days prior to May 6, even if it had been provided, would have been with that grievance, thus the Union needed separate documentation regarding Wiley’s grievance. Kessinger ac- knowledged that the current overtime desired list was posted and, if he had been told that he could make a copy, he would have done so, but “I needed permission to leave my unit and go do that.” Kessinger also requested the call-in sheets for un- scheduled overtime for April 22 and 30 and May 8 and the overtime reports for those same 3 days. I find all of the forego- ing information relevant to the grievance that the Union filed on behalf of Wiley. Complaint Paragraph 81 At some time in the past, employee Richard Dowgun suf- fered an on-the-job injury. Thereafter he was assigned limited duty. In early May, Dowgun informed Kessinger that someone in management had told him that his limited duty assignment was going to change, but he received no written notification. Following their conversation, Kessinger, on May 10, presented an information request to Owens seeking a copy of Dowgun’s limited duty position. Kessinger explained that the limited duty document is a letter from the Postal Service offering a limited job duty position to an injured employee that sets out the duties to be performed, where they will be performed, and the hours involved. Kessinger explained that Dowgun was concerned whether the verbal information he received was correct and whether the Postal Service was going to change his assignment. Kessinger, although never receiving the requested document, filed a grievance and Dowgun’s assignment was not changed. When counsel for the Respondent questioned Kessinger regard- ing his knowledge of approval of limited duty positions by the Department of Labor, Kessinger pointed out that the request he made was made to the Postal Service and that he was aware that after any Department of Labor approval, “the Post Office has to make the offer of a limited duty position.” Counsel stated that he would make “a legal argument at a later time.” No such argument appears in the Respondent’s brief. The Union having received information that comments had been made regarding changing Dowgun’s assignment, its request for the document establishing that assignment was relevant. Having found that all of the information requested by the Union as set out in complaint paragraphs 71 through 82 was relevant, I find that the failure of the Respondent to provide the information that did exist or respond regarding which specific items of requested information did not exist violated Section 8(a)(5) of the Act. H. Case 16–CA–22961 Complaint Paragraphs 96 through 99 Paragraph 99 alleges that the Postal Service unilaterally changed its procedure for approving leave for “Choice Vaca- tion” time in that, prior to July, requests to use leave without pay (LWOP) for Choice Vacation were automatically approved POSTAL SERVICE 695 but that, in July, the Postal Service, in its Spring area, began granting approval on a case-by-case basis. Paragraph 96 of the complaint alleges the failure to provide requested information relating to that alleged unilateral change. Employees of the Postal Service bid for Choice Vacation for each upcoming year in December. Thus, in December 2002, employees at each post office wrote onto a master vacation schedule the days or weeks that they desired to take as vacation in 2003. The number of employees permitted to take vacation at a single time is con- trolled by local agreement. In the Spring area the number can- not exceed 14 percent of the workforce at each station. Slots are awarded on the basis of seniority. As previously stated, the Spring area includes the Spring Maine office and three branch offices. In July, the Postmaster of the Spring area was Dave Critelli; however, he was on detail. From March until September, Matthew Lopez was “in charge of all four” stations. The evidence relating to these allegations come from the Panther Creek branch. The acting station man- ager at Panther Creek is Barbara Wright assisted by 204(b) Supervisor Donna Pease. Michael Carew, chief steward of the Union at Panther Creek, testified that, prior to July, employees who had insufficient annual leave to take their Choice Vacation were automatically approved to take their Choice Vacation time using LWOP. In early July, letter carriers Pat Givens and Lena Gibson submitted leave requests on the appropriate form, Form 3971, to take their Choice Vacation using LWOP. On July 5, Supervisor Pease informed Carew that she had denied Gibson’s leave request, that “there was a new policy in Spring [i.e. the Spring area post offices], that they were now going to examine the LWOP for [sic] a case-by-case basis.” Carew responded that this “wasn’t right because they had always approved it.” Pease responded that “this is coming from Ms. Wright, . . . that’s just the policy and you’re going to have to take it up with her [Station Man- ager Wright].” Carew filed a grievance and a request for in- formation. The grievance is currently pending arbitration. Maryke Cudd initially testified that, when she was “effec- tively” the Panther Creek station manager from March 2000 until May 2002, all requests for LWOP were examined on a case-by-case basis. Thereafter she acknowledged that the su- pervisors, not she, handled all employee leave requests and that she could recall no instance in which she had acted on an em- ployee leave request. Alternate Shop Steward Jackie Jackson, who has worked at Panther Creek for 20 years, testified that employees who wanted to take their Choice Vacation time but had insufficient annual leave were “granted leave without pay” and that this practice had been followed “[e]ver since I’ve been a letter carrier, since ‘83.” Supervisor Pease denied that there was any change of policy, testifying that “[w]e’ve always done it on a case-by-case basis.” Pease later testified that employees turn in their leave slips and that she will “approve it or disapprove it,” but that, pursuant to the vacation schedule, Choice Vacation time is “blocked for them so that they have the option of taking it or not taking it.” Pease’s acknowledgement that it is the employee who has the option is consistent with Carew’s testimony that, prior to July, Choice Vacation was automatically approved. Significantly, Pease did not deny Carew’s testimony that she told him “there was a new policy in Spring” and that requests for Choice Vaca- tion using LWOP were now going to be examined on “a case- by-case basis.” Persuasive evidence that the Postal Service implemented a new policy in the Spring area is established by the failure of the Postal Service to introduce any document showing any instance prior to July in which an employee’s request for Choice Vaca- tion using LWOP was denied. Pease’s undenied statement to Carew reported a “new policy” in the Spring area. Matthew Lopez, who was in charge of all four of the Spring locations, was not asked and did not deny that a “new policy” had been implemented. Acting Station Manager Wright was not asked and did not deny that a “new policy” had been implemented. I find that Pease correctly reported to Chief Steward Carew that there was a “new policy” and that implementation of that pol- icy, reviewing requests to use LWOP for Choice Vacation time on a case-by-case basis, had resulted in the denial of employee Gibson’s leave request. Prissy Grace, president of branch 283, testified without con- tradiction that there was no bargaining with the Union regard- ing the foregoing change in procedure and that the Union has protested whenever it has learned that leave for Choice Vaca- tion has been denied because “people have the right to the leave they signed up for on that roster in December.” She also ex- plained the rationale behind automatic approval, noting that, on the basis of their selection of Choice Vacation, employees make cruise and hotel reservations for those dates. The foregoing evidence establishes that the Respondent did, without notice to or bargaining with the Union, cease automati- cally approving requests for leave that involved employees in the Spring Area taking LWOP for Choice Vacation and began considering those requests on a case-by-case basis. The forego- ing unilateral change related to employees’ terms and condi- tions of employment and violated Section 8(a)(5) of the Act. Following Carew’s conversation with Supervisor Pease, he filed a grievance and a request for information. The informa- tion he sought included the original of the form 3971 submitted by Lena Gibson, all form 3971s for Choice Vacation time from 1990 to 2003 for Pat Givens, who Carew understood had, over that time period, been approved to take LWOP, form 3971’s for the last five employees in the Spring area, excluding Givens, who had taken LWOP during their Choice Vacation time in order to show the extent of the practice, corresponding time and attendance reports for the same dates as in order to show that the carrier used LWOP for Choice Vacation time, and all form 3971s for all employees in the Spring area who used LWOP during their Choice Vacation time since 1970 to show the lon- gevity of the practice. Supervisor Pease testified that she gave Carew access to all records that she could locate, but admitted that she “only knew where the 3971s for the two previous years” were located. She acknowledged that, thereafter, a box appeared that contained documents from the years 1999 through 2001. She did not know where the box came from. She initially testified to pro- viding only the time and attendance reports for Givens, but then asserted that she provided all time and attendance reports. Carew testified that he received only the time and attendance report for Givens for the year 2002. Carew acknowledged re- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696 ceiving access to documents that included the 3971 forms for employees at Panther Creek “for the past three years.” He testi- fied that he was not provided a copy of the form 3971 for Lena Gibson showing the denial of her requested LWOP for her Choice Vacation time, and there is no claim that he was pro- vided that document. The evidence suggests that the Postal Service had additional documents to which the Union was not given access. Carew testified that, when being provided the Panther Creek docu- ments, he was given access to four boxes of documents. He testified that there were eight additional boxes at the post of- fice, “under a conference table” that contained documents from prior years and that he knew this because, in connection with other grievances, he had been given access to some of the other boxes. On August 12, in the supply room, Carew discovered another box, the box that Pease acknowledged had appeared, and that it contained some form 3971s. Carew recalled that manila envelopes were marked with the years 2000 and 2001. Pease recalled that they were for 1999, 2000, and 2001. Re- gardless of whose recollection is correct, any form 3971s dated after June 2000 would, of course, have been in the 3 years pre- ceding the information request. Acting Station Manager Wright informed Carew that he was only being provided form 3971s for 3 years because that is the specified retention period. Carew acknowledged that conversa- tion and agreed that the Postal Service’s manual provides that the foregoing documents must be retained for 3 years. Wright contacted her superior, Matthew Lopez, who was in charge of the Spring area in July. As a result of their conversation, Wright concluded that Carew was authorized to file grievances only on behalf of Panther Creek branch employees and, there- fore, did not provide Carew with documents other than docu- ments relating to those employees. Notwithstanding the fore- going, the General Counsel argues that Carew was entitled to review documents for the entire Spring area for prior years. Carew testified that, notwithstanding the 3 year retention re- quirement, he was familiar with arbitration decisions which reflected that “10 years seemed to be a common ground for establishing a past practice.” That testimony is uncontradicted. The foregoing testimony establishes that, although the Postal Service requires retention for 3 years, arbitrators consider evi- dence up to 10 years old when determining past practices. Thus, the record establishes that documents for a period of 10 years would be relevant in the presentation of a grievance. Chief Steward Carew’s testimony relating to other boxes sug- gests that additional information relevant to the Union’s request was available albeit not within the retention period required by postal regulations. There is no probative evidence that any records more than 10 years old would be relevant and I shall recommend that no documents earlier that 1993 need be pro- duced and that the complaint allegations in that regard be dis- missed. The Union, through Supervisor Pease’s statement to Chief Steward Carew, was informed that the new policy was a policy of the Spring area. It was not limited to Panther Creek. The Union sought to establish that the new policy altered the long- standing past practice in the Spring area and requested docu- ments that it believed would show the consistent past practice. The requested time and attendance documents for the last five employees who took LWOP for their Choice Vacation in the Spring area were, therefore, relevant. The failure to provide Gibson’s form 3971 request for LWOP for Choice Vacation that was denied is obviously relevant and the failure of the Re- spondent to provide it violated the Act. The Respondent’s limi- tation of access to form 3971s for only 3 years at Panther Creek violated the Act. By failing to fully provide all of the informa- tion sought by the Union as set out in paragraph 96 of the com- plaint, the Respondent violated Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. By threatening discipline for failure to comply with a uni- laterally changed procedure, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By unilaterally altering the procedure by which the APWU maintenance craft steward must obtain union time in order to carry out his representational responsibilities and by unilaterally ceasing to automatically approve requests for leave that involve employees taking LWOP for Choice Vacation and approving those requests on a case-by-case basis in the Spring Post Office, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. 3. By failing and refusing to provide the APWU with infor- mation it requested on April 24, 2003, and by failing and refus- ing to provide, or to provide in a timely manner, the Union with information it requested between January 10, 2003, and July 11, 2003, as found herein, the information being relevant and necessary to the APWU and the Union as the collective- bargaining representatives of the employees in the appropriate units, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The General Counsel has requested special remedies. In view of the multiple facilities involved herein and the Board Order in Postal Service, 339 NLRB 116 (2003), I shall, as re- quested by the General Counsel, recommend a broad order and district wide posting. Counsel has also requested the reading of the notice and reinstatement of grievances. None of the viola- tions found herein occurred subsequent to the Board’s Order in August, thus, I shall not recommend the reading of the notice. Nor shall I recommend the reinstatement of grievances. In ordering the Respondent to reinstate a grievance, I would effec- tively be ordering the waiver of time limitations agreed upon by the parties and incorporated in their collective-bargaining agreement. Although I have found no case that states that I lack the authority to do so, that principle is implicit in North- west Pipe & Casing, Co., 300 NLRB 726, 736–737 (1990), and Postal Service, 307 NLRB 429 at fn. 2 (1992). Thus, I must deny the request. POSTAL SERVICE 697 The Respondent having made unilateral changes affecting the terms and conditions of unit employees, it must, upon the request of the unions representing employees in those units, rescind those changes. The Respondent having failed and refused to provide the APWU with information it requested on April 24, 2003, and having failed and refused to provide the Union with informa- tion it requested between January 10 and July 11, 2003, it must promptly supply said information, as set forth below. I shall recommend that the Respondent be required to pro- vide any of the information that I have found to have been unlawfully withheld as set forth in paragraphs 14, 18(b), (c), and (d), 42, 43, 44, 45, 46, 47, 48, 49, 50, 51(b), 64, 65, 66, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, and 96, or inform the Union that the information does not exist. As my findings re- flect, in some instances a portion of the information encom- passed in some of those paragraphs has been provided. Infor- mation that has been provided need not be reprovided.4 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5 ORDER The Respondent, United States Postal Service, Houston, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening discipline for failure to comply with a unilat- erally changed procedure. (b) Refusing to bargain collectively with American Postal Workers Union by unilaterally altering the procedure by which the APWU maintenance craft steward at the Spring Post Office must obtain union time in order to carry out his representational responsibilities. (c) Refusing to bargain collectively with National Associa- tion of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL–CIO, by unilaterally ceas- ing to automatically approve requests for leave that involve employees taking LWOP for Choice Vacation at the Panther Creek branch and other locations of the Spring Post Office. (d) Refusing to bargain collectively with American Postal Workers Union by failing and refusing to provide requested information that is relevant and necessary to that Union as the collective-bargaining representative of employees in the fol- lowing unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All maintenance employees, special delivery messengers, mo- tor vehicle employees, postal clerks, mail equipment shop employees and distribution centers employees; but excluding managerial and supervisory personnel, professional employ- ees, employees engaged in personnel work in other than a 4 If the Board should disagree with my recommend dismissal of Case 16–CA–22855, the Respondent should be ordered to provide the dates of hire of the employees named in subpar. 33(a) and the information set out in subpar. (c) of the complaint. 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. purely non-confidential clerical capacity, security guards as defined in Public Law 91-375, 1201(2), all postal inspection service employees, employees in the supplemental work force as defined in Article 7 [of the collective-bargaining agree- ment], rural letter carriers, mail handlers and letter carriers. (e) Refusing to bargain collectively with National Associa- tion of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL–CIO, by failing and refus- ing to provide, or failing and refusing to provide in a timely manner, requested information that is relevant and necessary to that Union as the collective-bargaining representative of em- ployees in the following unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All letter carriers; but excluding managerial and supervisory employees, professional employees, employees engaged in personnel work in other than a purely non-confidential cleri- cal capacity, security guards, Postal Inspection Service em- ployees, employees in the supplemental workforce as defined in Article 7, rural letter carriers, mailhandlers, maintenance employees, special delivery messengers, motor vehicle em- ployees, and postal clerks. (f) In any other manner interfering with, restraining, and co- ercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Upon the request of the American Postal Workers Union, rescind the unilateral alteration of the procedure by which the its maintenance craft steward at the Spring Post Office must obtain union time in order to carry out his representational re- sponsibilities. (b) Upon the request of the National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL–CIO, rescind the unilateral cessation of automatically approving requests for leave that involve em- ployees taking LWOP for Choice Vacation at the Panther Creek branch and other locations of the Spring Post Office. (c) Promptly furnish the American Postal Workers Union and the National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL– CIO, with the information found to have been unlawfully with- held from them as set forth in the remedy section of this deci- sion. (d) Within 14 days after service by the Region, post at all its facilities within the Houston, Texas, district, copies of the at- tached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698 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 has gone out of business or closed the facility involved in these proceedings, the Respon- dent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at its North Shepard Station at any time since January 10, 2003. (e) 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. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found.