United States Postal Service (Main Post Office)

942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United States Postal Service (Main Post Office) and Atlanta Metro Area Local, American Postal Workers Union, AFL-CIO and Amalgamated Local 310, National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders Di- vision of Laborers' International Union of North America, AFL-CIO. Cases 10-CA- 22420(P) and 10-CA-22671(P) July 19, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON Upon charges filed by Atlanta Metro Area Local (Metro), affiliated with the American Postal Work- ers Union, AFL-CIO (APWU) and Amalgamated Local 310 (Local 310), affiliated with the National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders of the Laborers' International Union of North America, AFL-CIO (Mail Han- dlers), the General Counsel of the National Labor Relations Board issued an order consolidating cases and a consolidated complaint against the United States Postal Service, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The Respondent filed an answer and an amended answer, and on Septem- ber 24, 1987, the Respondent filed a motion to transfer the proceeding to the Board and a Motion for Summary Judgment. On September 29, 1987, the Board issued an Order Transferring Proceeding to the Board and Notice to Show Cause. On Octo- ber 13, 1987, the General Counsel filed her re- sponse to the Board's Notice to Show Cause in which she agreed with the Respondent that this proceeding should be transferred to the Board and moved for summary judgment in her favor. There- after, the Respondent's request for "Special Leave to File a Reply to the Response of Counsel for the General Counsel to the Board's Notice to Show Cause" was denied.' Subsequently, however, the Respondent was granted leave to file a supplemen- tal memorandum of law. The determinative facts in this case are not in dispute. Based on the results of an investigation into gambling activity at the Atlanta, Georgia Post Office in the summer of 1986, the Respondent dis- ciplined and discharged a number of employees in the bargaining units represented by the Mail Han- dlers and the APWU. The Unions2 filed grievances ' The Respondent has requested oral argument The request is denied as the record and briefs adequately present the issues and the positions of the parties 2 We accept the Respondent's assertion in its amended answer that Local 310 and Metro are not bargaining agents of the Mail Handlers and APWU for the purpose of processing grievances but that they are, in- on behalf of the employees and in the course of preparing the grievances discovered that some su- pervisors also had been involved in the gambling activity. Subsequently, the Unions requested the Respondent to provide them with information re- garding the disciplining of supervisors arising out of the investigation into the gambling activity.3 APWU, through Metro, requested this information to establish that the disciplinary action taken against the bargaining unit employees was "harsh, punitive, disparate and not for just cause," while the Mail Handlers, through Local 310, asserted that the information was necessary to show disparate treatment of unit employees by the Respondent. The Respondent refused to supply the Unions with the requested information.4 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on the Motions for Summary Judgment The requested information clearly deals with in- dividuals outside the bargaining units and, there- fore, the General Counsel has the burden of dem- onstrating the information's relevance.6 The stand- ard for determining the relevancy of requested in- formation is a liberal discovery-type standard that merely requires that the information have some bearing on the issue between the parties.7 Here, the General Counsel asserts that the infor- mation regarding the discipline given supervisors for breaching the Respondent's regulations prohib- iting gambling activity has some bearing on the grievances alleging harsh, unjust, and disparate treatment of unit employees for violating the same rule. The Respondent attempts to rebut this argu- stead, the contractually authorized agents of the APWU and Mail Han- dlers Acceptance of this assertion , however, has no impact on our deter- mination, as the Respondent admits the agency status among the APWU and the Mail Handlers and their affiliated locals In this regard, the "Unions," as used in this decision, refer collectively to the APWU and Mail Handlers and/or their affiliated locals, Metro and Local 310 a The filings of the parties do not indicate precisely the requests made by the Unions The Respondent states that the Unions requested copies of investigative memoranda dealing with supervisors compiled by the Postal Inspection Service as part of the investigation into the gambling activity The General Counsel states that the APWU, through Metro, requested "certain information with regard to the disciplining of supervisors arising out of the gambling activity " The Respondent also states that the Mad Handlers, through Local 310, requested "all documents concerning the discipline and alleged misconduct of supervisory employees involved in the illegal lottery." 4 The Respondent did provide the Unions with information they re- quested relating solely to bargaining unit employees 5 The Respondent notes that the Postal Reorganization Act prohibits the Board from including supervisors in a bargaining unit. See 39 U S C § 1202(1) ' See Pfizer, Inc, 268 NLRB 916, 918 ( 1984), enfd 763 F 2d 887 (7th Cir 1985) ' Ibid See also Conrock Co., 263 NLRB 1293, 1294 (1982) (information of even probable or potential relevance to the union's duties must be dis- closed), enfd mem. 735 F 2d 1371 (9th Cir 1984) 289 NLRB No. 123 POSTAL SERVICE ment by stating that the supervisors and unit em- ployees have different responsibilities, are judged by different criteria and, therefore, are not similarly situated for purposes of discipline. The Respondent argues that the discipline received by the supervi- sors for violating the antigambling rule is not rele- vant to the grievances. We disagree. It is undisputed that the Respondent's restrictions on gambling activity apply equally to supervisors and unit employees. Although, as the Respondent asserts, there may be legitimate reasons for impos- ing different degrees of discipline on supervisors and unit employees for similar misconduct, the only reason offered to justify such a disparity for the gambling violation here is the different level of responsibility exercised by each group. We do not agree, however, given the nature of the rule in- volved and its applicability to both groups that the different degrees of responsibility accorded each group automatically translates into different stand- ards of discipline in this instance, thereby compel- ling a finding that the requested information has no bearing on the grievances.8 Nor do we agree with the Respondent's assertion in its supplemental memorandum of law that Marshall v. Western Grain Co., 838 F.2d 1165 (11th Cir. 1988), supports its Motion for Summary Judgment. In Marshall the court concluded that the plain- tiffs had not established a racial discrimination claim under Section 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by showing that the employer had given severance pay to nonminority, nonunit employees while refus- ing to give severance pay to the minority, unit em- ployees, where the collective-bargaining agreement restricted severance pay for the unit members. In reaching this conclusion the court stated that unit and nonunit employees are "never" similarly situat- ed. The Respondent seizes on this statement as sup- port for its contention that the unit employees and supervisors in this case are not similarly situated for purposes of discipline and, therefore, that the requested information is not relevant. The context of the court decision, however, shows that, essen- tially, the court found that unit and nonunit em- ployees can never be similarly situated for purposes of establishing a Title VII claim when one set of rules applies to the unit employees (through the collective-bargaining agreement) and another set of 8 See Department of Defense Dependent Schools, 28 FLRA No 33 (July 28, 1987) On remand from the court of appeals the Federal Labor Rela- tions Authority reversed its original decision and found information on adverse actions taken against supervisors for making false statements nec- essary to the union's representational responsibilities The union sought the information as evidence of disparate treatment given to unit employ- ees for engaging in the same misconduct as the supervisors , i e, making false statements 943 rules applies to the nonunit employees. That is not the situation in the instant dispute. Here, the same rule (a prohibition on gambling) is applicable to both the unit employees and the supervisors. Indeed, the reason offered by the Respondent in its Motion for Summary Judgment as support for its argument that the two groups are dissimilar was not that different rules controlling gambling ap- plied to the two groups but that the groups had different degrees of responsibilities. Thus, because the gambling prohibition here applies to both groups, the requested information potentially has "some bearing" on whether the unit employees were harshly, unjustly, or disparately treated. In rejecting the Respondent's arguments, we also note that "[a]rbitrators regularly consider such evidence as relevant to determining whether a unit employee has been disciplined for just cause."9 In this regard, an arbitrator who addressed the very information request involved here found the information rele- vant to the issue of the appropriateness of the disci- pline imposed on the unit members and to the de- fense of condonation. (See G.C. Exh. 3.) Further, to the extent the Respondent seeks to justify at the arbitration any disparity that is ex- posed, the arbitrator can determine the weight to be given the evidence in light of the justification offered. Although the requested information, even if it contains evidence of disparate treatment, may not provide conclusive proof of the allegations in the grievances, this does not mean that the infor- mation fails to meet the relevancy standard by which such requests are judged. i ° Under the cir- cumstances of this case, where both supervisors and unit employees violated the Respondent's gam- bling prohibition-a prohibition that applies equally to both groups-evidence relating to the discipline given supervisors is information that has some bearing on the determination of whether the unit employees have been treated harshly, unjustly, or disparately. ii Further, we agree with the arbitrator who found that information of this type is relevant to the de- fense of condonation. For example, if the requested 9 North Germany Area Council v. Federal Labor Relations Authority, 805 F 2d 1044, 1048 (D C Cir 1986) i° See Pfizer, Inc, supra, 268 NLRB at 918 (information need not be dispositive of the issue between the parties but need only have some bear- ing on it) i' The Respondent also argues that allowing disclosure of the request- ed information, in effect, requires it to apply the bargaining unit's discipli- nary standards to supervisors The Respondent claims such an imposition of unbargamed-for disciplinary standards for supervisors interferes with its broad discretion in this area We disagree As stated, any disparity in the discipline given supervisors and unit employees and its significance can be explained by the Respondent and that explanation can be consid- ered by the decision maker in determining the weight to be given evi- dence of disparity 944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD information reveals that supervisors engaged in gambling activities with the bargaining unit em- ployees, the Unions can claim that the Respondent condoned the activity. This defense may or may not prevail. We are not concerned with the merits of a nonfrivolous defense, however, but only with the information's relevance to it.12 Accordingly, we find that the General Counsel has carried her burden of establishing the relevance of the requested information and that the Respond- ent has not refuted its relevance. Even assuming the information's relevance, how- ever, the Respondent asserts that the information need not be disclosed because it is confidential.13 In attempting to carry its burden of proof on this issue, as the party asserting confidentiality, the Re- spondent contends that disclosure should not be re- quired because of the sensitive nature of the infor- mation. The Respondent notes that the information may show that the supervisors violated postal regu- lations and possibly state and Federal law. The Re- spondent further asserts that allowing access to such information risks eroding the undivided loyal- ty it requires of its supervisors.14 The Respondent claims that supervisors will be less willing to act if the Unions can embarrass and harass the supervi- sors by gaining access to the type of information requested here. We do not agree that these asserted reasons for keeping the information confidential outweigh the Unions' interest in gaining access to the information. That disclosure of the information may reveal that supervisors violated the Respondent's prohibi- tion and possibly state and Federal laws against gambling is not a sufficient reason for finding that 12 Cf Pfuer, Inc, supra, 268 NLRB at 918 (Board is not concerned with merits of a grievance in passing on information request) 12 See Pfizer, Inc, supra, 268 NLRB at 919 14 The Respondent also asserts that it has an inherent right to keep confidential from the Union all information in a supervisor's personnel file "in virtually any circumstance" because revealing such information to the Union would tend to impair the supervisor's loyalty to the Respond- ent. It cites Postal Service, 280 NLRB 685 ( 1986), enfd. 841 F.2d 141 (6th Cir 1988), as supporting this assertion, claiming that Postal Service, re- flects the "mirror image" of the Respondent's request here. We disagree. In Postal Service, the majority concluded that a list of union officials and stewards who had applied for supervisory positions was relevant and or- dered its disclosure to the union In reaching this result the ma jority rea- soned that the possibility that union officials or stewards might be disloy- al to the union if they were aspiring to positions in management made it reasonable for the union to exclude them from union representational functions in order to avoid undermining employee confidence in the col- lective-bargaining representative. The majority thus found that the names of those who were applying for supervisory positions were relevant to the union's interest in avoiding injurious conflicts of interest in its repre- sentatives It is clear, for the reasons stated below, that no such conflict- of-interest potential is implicated here . What the Respondent's argument amounts to is that it should never have to disclose anything about its su- pervisors to the Union if that disclosure would displease the Respondent's supervisors. The Postal Service case on which the Respondent relies pro- vides no support for that proposition . Member Johansen dissented in Postal Service on other grounds the information must remain confidential. Other- wise, virtually all requests for information on ac- tivities leading to disciplinary or potential legal action would be found to have such status. More- over, unlike information reflecting confidential as- sessments by testing professionals of an individual's "basic competence," no established public policy against disclosure of the information requested here exists.15 The information in question concerns will- ful activity of a kind that the Respondent has itself made the public basis for discipline and discharges of employees. Further, there was no showing that the supervisors expected the requested information to remain confidential or that the Respondent made a commitment to the supervisors to keep the infor- mation confidential. 16 We recognize that the Respondent has a strong interest in preserving supervisor loyalty. We dis- agree with the Respondent, however, that disclo- sure of the requested information to the Unions for use in grievance proceedings threatens this interest. In the instant case, both supervisors and unit em- ployees engaged in gambling activity and the Re- spondent itself investigated the activity. Thus, the unit employees who participated in the prohibited activity were as aware of any supervisory involve- ment as was the Respondent. In these circum- stances we fail to perceive the threat that the Union's requests pose to the supervisors' loyalty. Moreover, as the General Counsel points out, su- pervisors who have engaged in prohibited conduct already have compromised their loyalty and have undermined their authority to enforce their em- ployer's rules. Thus, we find that the Respondent's interests in keeping the information confidential do not out- weigh the Unions' interests in having the informa- tion disclosed. Finally, the Respondent argues that it need not disclose the information because it is restricted from doing so under the Privacy Act of 1974, 5 U.S.C. § 552(a). The Respondent admits, however, that the requested information is stored in two 15 Compare NLRB v. Detroit Edison Co, 440 U S 301, 318 (1979) (in denying a request for psychological test results the court took judicial notice of established professional and governmental policies against dis- closure and the sensitivity of any human being to disclosure of psycho- logical information that may be taken to bear on the person 's basic com- petence), with Salt River Valley v. NLRB, 769 F.2d 639, 642 (9th Cu. 1985) (in requiring disclosure of employee's personnel file the court relied on fact that though the information may demonstrate employee's level of success at his job, it did not attempt to provide an objective measure of his intelligence or psychological fitness). 16 See Salt River Valley, supra, 769 F.2d at 642 (in requiring disclosure of employees' personnel file the court relied on employees' lack of expec- tation of confidentiality and lack of employer's committment to employ- ees that information would remain confidential). Cf. Detroit Edison Co, supra, 440 U.S. at 306 (employer made express commitment to employees that information would remain confidential). POSTAL SERVICE 945 record systems which provide for disclosure pursu- ant to the routine uses exception in the Privacy Act. Further, the Respondent admits that one of the routine uses which both record systems provide for is the following: Pursuant to the National Labor Relations Act, records from this system may be furnished to a labor organization upon its request when needed by that organization to perform prop- erly its duties as the collective bargaining rep- resentative of postal employees in an appropri- ate unit. Nonetheless, the Respondent asserts that the re- quested information is not relevant to the Unions' performance of their duties as collective-bargaining representatives and, therefore, the information need not be disclosed. Of course the problem with this argument is that its premise (that the information is not relevant) is erroneous. Thus, given our finding that the requested information is relevant and given that the very use for which the information has been requested is defined as a routine use for the information, we find that the Privacy Act does not prevent disclosure of the information.17 Accordingly, we find that the Respondent violat- ed Section 8(a)(5) and (1) of the Act by failing to furnish the requested information to the Unions, and we grant the General Counsel's Motion for Summary Judgment-" On the entire record the Board makes the following FINDINGS OF FACT 1. JURISDICTION The Respondent provides postal services for the United States of America and operates various fa- cilities throughout the United States in the per- formance of that function, including its facility in Atlanta, Georgia, the only facility involved in this proceeding. The Board has jurisdiction over the Respondent and this matter by virtue of Section 1209 of the Postal Reform Act of 1970. II. LABOR ORGANIZATION The complaint alleges and the Respondent admits that the Unions are labor organizations within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICE A. Recognition Since about July 1974, the APWU has been, and remains, the exclusive representative of employees 17 See Postal Service, supra at 693, enfd 841 F 2d 141 (6th Cit. 1988) 18 The Respondent's Motion for Summary Judgment is denied in the following appropriate unit by virtue of Sec- tion 9(a) of the Act: All maintenance employees, special delivery messengers, motor vehicle employees and postal clerks employed by the Respondent. Since about July 1971, the Mail Handlers has been, and remains, the exclusive representative of the employees in the following appropriate unit by virtue of Section 9(a) of the Act: "All mail han- dlers, watchmen, messengers and group leaders." The Respondent has been a party to successive collective-bargaining agreements with the APWU and the Mail Handlers since about July 1974 and July 1971, respectively. B. Request and Refusal About February 17, 1987, the APWU, through Metro, requested the Respondent to provide it with information regarding the disciplining of supervi- sors arising out of a gambling raid that resulted in disciplinary action against employees in the unit APWU represents. About January 15 and May 12, 1987, the Mail Handlers, through Local 310, requested the Re- spondent to provide it with information regarding the disciplining of supervisors arising out of a gam- bling raid that resulted in disciplinary action against employees in the unit the Mail Handlers represents. Since about January 29, 1987, the Respondent has refused to provide the requested information to the Mail Handlers or its Local 310 and since about February 20, 1987, it has refused to provide the re- quested information to the APWU or its Metro local. We find that these refusals constitute unlaw- ful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after January 29, 1987, to bargain with the Mail Handlers and by refusing on or after February 20, 1987, to bargain with the APWU by refusing to produce the information these Unions requested concerning the disciplinary records of supervisors involved in gambling activi- ty at the Respondent's Atlanta facility, the Re- spondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5 and (1) and Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in unfair labor practices, we shall recommend that it be ordered to cease and desist and that it take cer- 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tain affirmative action necessary to effectuate the policies of the Act. We shall, inter alia, require the Respondent to furnish the Unions, on request, the disciplinary records of supervisors involved in gambling activi- ty at the Respondent's Atlanta facility. ORDER The National Labor Relations Board orders that the Respondent, United States Postal Service, At- lanta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Unions, American Postal Workers Union, AFL- CIO and the National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders Divi- sion of Laborers' International Union of North America, AFL-CIO by refusing to furnish them or their affiliated Locals, Atlanta Metro Area Local and Amalgamated Local 310, respectively, the re- quested disciplinary records of supervisors in- volved in gambling activity at the Respondent's Atlanta facility. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, furnish the Unions, or their affili- ated Locals named above, the requested discipli- nary records of supervisors involved in gambling activity at the Respondent's Atlanta facility. (b) Post at its facility in Atlanta, Georgia, copies of the attached notice marked "Appendix."19 Copies of the notice, on forms provided by the Re- gional Director for Region 10, 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 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with American Postal Workers Union, AFL-CIO and National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders Division of Laborers' Interna- tional Union of North America, AFL-CIO by re- fusing to furnish them or their affiliated Locals, At- lanta Metro Area Local and Amalgamated Local 310, respectively, the requested disciplinary records of supervisors involved in gambling activity at our Atlanta facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, furnish the Unions, or their affiliated Locals named above, the requested disciplinary records of supervisors involved in gambling activity at our Atlanta facility. UNITED STATES POSTAL SERVICE 19 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 Nation- al 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."