United States Postal Service

POSTAL SERVICE 181 360 NLRB No. 35 United States Postal Service and American Postal Workers Union, Local 1070, AFL–CIO. Cases 24–CA–090192, 24–CA–096216, 24–CA–096482, 24–CA–096075, 24–CA–097060, 24–CA–097087, and 24–CA–097089 January 30, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND SCHIFFER On September 30, 2013, Administrative Law Judge Michael A. Rosas issued the attached decision. The Re- spondent filed exceptions and the General Counsel filed an answering 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 brief and has decided to affirm the judge’s rulings, findings, and conclusions1 and to adopt the recommended Order as modified and set forth in full below.2 ORDER The National Labor Relations orders that the Respond- ent, United States Postal Service, San Juan, Puerto Rico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with American Postal Workers Union, Local 1070, AFL–CIO by unrea- sonably delaying in furnishing it with requested infor- mation that is relevant and necessary to the Union’s per- 1 The Respondent does not except to the judge’s findings and con- clusions. Its exceptions are limited to “[t]he ALJ’s recommendation that a cease and desist Order be issued against Respondent, United States Postal Service, Puerto Rico, its officers, agents, successors, and assigns.” Respondent contends that the Order is overbroad. Although the judge limited the notice posting requirement to Respondent’s facili- ties in San Juan, Puerto Rico, the judge inadvertently neglected to in- clude “San Juan” before “Puerto Rico” in the introductory sentence of the Order. We have modified the Order accordingly. See Postal Ser- vice, 356 NLRB 483 (2011), enf. denied on other grounds and remand- ed 660 F.3d 65 (1st Cir. 2011), and reaffirmed on remand 359 NLRB 1052 (2013). 2 We shall modify the judge’s recommended Order to conform to his findings and to conform to the Board’s standard remedial language. Specifically, the judge found that the Respondent had unreasonably delayed in providing the information requested on August 30 and 31, October 13 and 30, and November 5. The judge further found that the Respondent failed to provide certain information and failed to timely provide other information requested on November 11, and December 10, 23 and 26. Finally, the judge found that the Respondent failed to provide information requested on December 7, 18, 19, 22, and 29, 2012. We shall substitute a new notice to conform to the Order as mod- ified. formance of its functions as the collective-bargaining representative of the Respondent’s unit employees. (b) Refusing to bargain collectively with American Postal Workers Union, Local 1070, AFL–CIO by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish to the Union in a timely manner the infor- mation requested by the Union on November 11, and December 7, 10, 18, 19, 22, 23, 26, and 29, 2012, insofar as such information has not already been furnished. (b) Within 14 days after service by the Region, post at its San Juan, Puerto Rico facilities within Zip Code Clus- ter 009, copies of the attached notice marked “Appen- dix”3 in both English and Spanish. Copies of the notice, on forms provided by the Regional Director for Sub- Region 24, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, the notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 30, 2012. (c) Within 21 days after service by the Region, file with the Regional Director for Sub-Region 24 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. 3 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.” 182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain collectively with the American Postal Workers Union, Local 1070, AFL–CIO (the Union) by unreasonably delaying in furnishing it with requested information that is relevant and necessary to the Union’s performance of its functions as the collec- tive-bargaining representative of our unit employees. WE WILL NOT refuse to bargain collectively with the American Postal Workers Union, Local 1070, AFL–CIO (the Union) by failing and refusing to furnish it with re- quested information that is relevant and necessary to the Union’s performance of its functions as the collective- bargaining representative of our unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights listed above. WE WILL furnish the union with the information re- quested on November 11, and December 7, 10, 18, 19, 22, 23, 26, and 29, 2012, insofar as such information has not already been furnished. UNITED STATES POSTAL SERVICE Enrique Gonzalez Quinones and Vanessa Garcia, Esqs., for the General Counsel. Rebecca Horan, Esq., of St. Louis, Missouri, for the Respond- ent. Juan Carlos Gonzalez-Del Valle, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. These cases were tried in San Juan, Puerto Rico on August 27, 2013.1 The 1 At the commencement of the hearing, the General Counsel submit- ted an Order issued by the Regional Director that morning advancing American Postal Workers Union, Local 1070, AFL–CIO (the Union) filed the charges and amended charges in the above- captioned cases between September 17, 2012 and March 27, 2013,2 and the General Counsel issued a complaint on Decem- ber 31 and an amended complaint on March 29. The com- plaint, as amended, alleges that the United States Postal Service (the Postal Service) violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act (the Act)3 by unreasonably delaying in providing the Union with relevant information under their collective-bargaining agreement. For a remedy, the Union seeks a broad cease and desist order and an affirmative bargaining order. The Postal Service denied the allegations in the com- plaint, but now concedes that it delayed in providing infor- mation which the Union was entitled to under the collective- bargaining agreement. It objects, however, to the General Counsel’s request for a cease and desist order with broad appli- cation to all Postal Service facilities within the Caribbean Dis- trict. Settlement discussions continued until just before the hearing commenced. I was informed that the Postal Service would amend its answer to admit all of the amended complaint allega- tions and that the only stumbling block was the remedy. The General Counsel insisted on a cease-and-desist order to be posted at every Postal Service facility within the Caribbean District. The Postal Service expressed a willingness to agree to a cease-and-desist order, but only one that was limited to the facility at issue in this case. Ultimately, the parties could not agree and the Postal Service proposed a unilateral settlement agreement for my approval pursuant to Board Rule 101.9(d). Since I was already at the hearing site and all parties prepared to proceed, I reserved deci- sion on the Postal Service’s application and received brief tes- timony relevant to a remedy.4 Upon review of the record, it is evident that the charging party did not agree as to the entirety of the proposed settlement. Moreover, the proposal was submit- ted to me only after I arrived at the hearing location in San Juan, Puerto Rico. Having heard all of the relevant, albeit brief testimony, I decline to accept the proposed unilateral settlement pursuant to Independent Stave Co., 287 NLRB 740, 743 (1987). On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Postal Service, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION The Postal Service provides postal services for the United States and operates various facilities throughout the United States in the performance of that function, including the the hearing in Case 24–CA–100739 from August 21 to August 20 in order for that case to be heard together with the above-captioned cases. (Tr. 6.) 2 All dates are between August 2012 and March 2013, unless other- wise indicated. 3 29 U.S.C. Secs. 151–169. 4 R. Exh. 1; Tr. 15–20. POSTAL SERVICE 183 DMDU Annex facility, located in Cataño, a municipality in the Commonwealth of Puerto Rico. The Postal Service admits, and I find, that the National Labor Relations Board (the Board) has jurisdiction over this matter pursuant to Section 1209 of the Postal Reorganization Act of 1970, 39 U.S.C. 1201 et seq., and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Parties The Postal Service’s Caribbean District encompasses two Caribbean neighbors, the United States Commonwealth of Puerto Rico and the United States District of the Virgin Islands. The Caribbean District consists of approximately 132 facilities divided into four Zip Code clusters. Facilities and zip codes within the Virgin Islands fall under 008, while Puerto Rico is divided into 3 clusters: 006 for zip codes in the west; 007 for zip codes in the east; and 009 for zip codes in the San Juan metropolitan area. Each cluster is managed by a Post Office Operations Manager (POOM). The DMDU Annex facility is organizationally included within Zip Code cluster 009 and is managed by Plant Manager Lisa Ojeda.5 The following Postal Service employees constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees in the bargaining unit for which it has been recognized and certified at the national level – maintenance, motor vehicle, postal clerks, mail equipment shop, and mate- rial distribution employees. At all material times, the Union has been designated and has served as the Unit’s collective-bargaining representative, and recognized as such by the Postal Service. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective, by its terms, from 2011 to 2015. B. The Union’s Information Requests Between August 30 and December 29, the Union submitted the following requests for information relating to the operations of the DMDU Annex. All of the requests were necessary and relevant to the Union’s performance of its duties as the exclu- sive collective-bargaining representative of unit employees. On August 30, the Union requested in writing that the Postal Service furnish it with contract, installation and war- ranty information relating to water fountains at its San Juan facilities. The Postal Service, however, unreasonably de- layed in furnishing the Union with such information until March 3. On August 31, the Union has requested in writing that the Postal Service furnish it with: (1) “Three-reassignment wait- ing list of all craft to enter the Caribbean District;” and (2) a “list of employees waiting for change of craft to custodian.” 5 Juan Delgado, the Caribbean District’s Manager of Human Re- sources, credibly testified regarding his district’s organizational struc- ture. (Tr. 21–28.) The Postal Service, however, unreasonably delayed in fur- nishing the Union with such information until October 26. On October 13, the Union requested, in writing, that the Postal Service furnish it with the “PSE Seniority List in order (applying entry day and tie breaker method).” The Postal Ser- vice, however, unreasonably delayed in furnishing the Un- ion with the requested information until March 9. On October 30, the Union requested, in writing, that the Postal Service furnish it with the “Updated list of Change of Craft Requests within the same Installation.” The Postal Ser- vice, however, unreasonably delayed in furnishing the Union with the requested information until March 3. On November 5, the Union requested, in writing, that the Postal Service furnish it with the “Copy of DMDU Cataño Annex Credit Card bill from May 1, 2011 until November 1, 2012, used to pay Alpine Cooler.” The Postal Service, however, unreasonably delayed in furnishing the requested information until March 3. On November 11, the Union requested, in writing, that the Postal Service furnish it with: (1) “Space Requirement to the APBS, LCUS SWYB and other Operations,” and (2) “PS form Form 919, 929.” The Postal Service, however, failed and re- fused to furnish the Union with the requested information re- garding the Space Requirement to the APBS, LCUS SWYB and other Operations, and unreasonably delayed in providing the Union with the PS Form 919, 929 until March 3. On December 7, the Union requested, in writing, that the Postal Service furnish it with the “3972 of Luis Fernandez for pay period 10.” The Postal Service, however, failed and re- fused to furnish the Union with the requested information. On December 10, the Union requested, in writing, that the Postal Service furnish it with “Accession Reports for pay peri- ods (PP): 1, 2, 4, 21, 22 and 23 for calendar year 2011, and pay periods 12, 20, 21, 24, 25 and 26 for calendar year 2012.” The Postal Service, however, unreasonably delayed in providing the Accession Report for pay period 24 until March 14. As to the remainder of the request, the Postal Service failed and refused to furnish the information. On December 18, the Union requested, in writing, that the Postal Service furnish it with the following information: (1) Bidding history of Kevin Rodriguez; (2) Updated Human Re- sources list for change of craft to custodial; (3) Copy of the letter sent to employees concerning the change of craft list with the intention of filling a labor custodial position; (4) Copy PRD-10 of the following facilities: Boquer6n, Can6vanas, Cotto Laurel PO, Dorado, Florida, Isabela PO, Sabana Hoyos, and Salinas PO; (5) Copy of the contract or document to per- form labor custodial duties for the same facilities, as listed in (4) above; (6) “Accession Report, effective date of vacancy of position no. 95442464 vacated by Aurea Quiles”; and (7) Copy of the job history of position no. 95442464; (8) Copy of the bidding history of employee Aurea Quiles. On December 26, the Union requested, in writing, that the Postal Service fur- nish it with the “Updated seniority of laborer custodial.” The Postal Service, however, failed and refused to furnish the Union with the requested information. On December 19, the Union requested, in writing, that the Postal Service furnish it with a “Copy of the contract to per- 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD form duties of mail processing equipment at the dumper of the APBS feeder on 12119/12.” The Postal Service, however, failed and refused to furnish the Union with the information requested. On December 22, the Union requested, in writing, that the Postal Service furnish it with a “Copy of the Updated Emer- gency Evacuation Plan.” The Postal Service failed and refused to furnish the Union with the information requested. On December 23, the Union requested, in writing, that the Postal Service furnish it with the following information: (1) “Laborer Custodial Seniority List Updated”, and (2) “PRD-10 of PSE’s.” The Postal Service, however, unreasonably delayed in furnishing the Union with the “Laborer Custodial Seniority List Updated” until March 3, and failed and refused to furnish the Union with the “PRD-10 of PSE’s.” On December 26, the Union requested, in writing, that the Postal Service furnish it with the following information: (1) Copy of the salary history of welder Luis Casilla, and (2) “Copy of the interview panel consensus final rating sheet of laborer custodial Jorge Flores for BEM position, for interview held on September 12, 2012.” The Postal Service, however, unreasonably delayed in furnishing the Union with a “Copy of the salary history of welder Luis Casilla” until March 9, and failed and refused to furnish the “Copy of the interview panel consensus final rating sheet of laborer custodial Jorge Flores for BEM position, for interview held on September 12, 2012.” On December 29, the Union requested, in writing, that the Postal Service furnish it with the following information: (1) “Copy of notification sent to the Union of change of Begin Tour for Job ID# 70041443;” (2) “All information relating the reassignment of Kevin Rodriguez from City Carrier to Laborer Custodial;” and (3) “Agreement between the Union and Man- agement relating the reassignment of Kevin Rodriguez from City Carrier to Laborer Custodial.” The Postal Service, howev- er, failed and refused to furnish the information requested. After delaying, failing or refusing to provide the aforemen- tioned information to the Union, the Postal Service implement- ed remedial measures in order to avoid a recurrence of similar unfair labor practices. As a result, Senior Plant Manager Ojeda implemented procedures to ensure that DMDU managers and supervisors responded in a timely fashion to future information requests.6 Legal Analysis The Postal Service admitted that it violated Section 8(a)(5) and (1) of the Act by unreasonably delaying, failing and refus- ing to provide the Union, on 14 occasions between August 30 and December 29, 2012, with information that was necessary and relevant to the performance of its duties as the exclusive collective-bargaining representative of unit employees. Moreo- ver, the Postal Service does not object to issuance of a tradi- tional cease-and-desist order. It does, however, object to the General Counsel’s request for an Order directing the posting of 6 Lisa Ojeda, the Senior Plant Manager, provided credible testimony as to the measures taken after the violations occurred. (Tr. 32–33, 39– 41.) such a notice at every Postal Service facility within the Carib- bean District. The Postal Services argues that a broad cease- and-desist order is unwarranted and a traditional cease-and- desist order limited to the specific facility involved in this liti- gation is the appropriate remedy. Broad cease-and-desist orders are appropriate when an em- ployer is shown to have a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employee’s fundamen- tal statutory rights. Hickmott Foods, 242 NLRB 1357 (1979); Postal Service, 345 NLRB 409 (2005). T he Board reviews the totality of the circumstances to ascertain whether the employ- er’s specific unlawful conduct demonstrates an attitude of op- position to the purposes of the Act to protect the rights of em- ployees generally. Postal Service, 345 NLRB at 410. Failure to respond to information requests, although unlawful and a per- sistent problem, does not necessarily amount to egregious or widespread misconduct, and a lack of regard for employees’ fundamental statutory rights. See Albertsons, Inc., 351 NLRB 254, 260 (2007). The Postal Service produced testimony by managers explain- ing their efforts to avoid similar recurrences in the future. The remedial steps undertaken by the Postal Service in this instance, however, were insufficient to undo the harm caused by its fail- ure to timely provide relevant information necessary for the Union to effectively represent the interests of unit employees. In Postal Service, 345 NLRB at 410, the Board considered the following factors in determining the scope of a cease-and-desist order: (1) the frequency of the failures to furnish information within a 2-year period at the same facility; (2) whether the vio- lations occurred after issuance of a narrow cease-and-desist order (suggesting the inadequacy of the order to deter future violations); (3) whether the information requests related to grievance investigations (suggesting that repeated unlawful refusals to provide the information have the potential to hide other misconduct); (4) whether the Respondent presented a weak defense of its actions; (5) the extent of the history of in- formation request violations at Respondent’s locations nation- wide within the past 2 decades; (6) whether the Board previous- ly issued broad cease-and-desist orders against Respondent for similar repeated information request violations at facilities within the same district; and (7) whether the Board’s issued a concurrent decision against Respondent for the same violation. While there is a lengthy history of similar violations and Board orders at other Postal Service facilities around the coun- try, the facility at issue in this case is not included in that rec- ord. Moreover, there is no indication that the information re- quested related to grievance investigations. The General Coun- sel contends that the Board’s recent decision in U.S. Postal Service, 359 NLRB 1052 (2013), along with a recently author- ized complaint and informal settlement agreement, evidence a pattern of similar violations. Vague references to a complaint and settlement agreement, however, do not constitute evidence of violations. Moreover, in its recent U.S. Postal Service deci- sion, the Board did order the Postal Service to furnish the Un- ion with requested information and post notices at its San Juan area facilities. The Board issued its order, however, only after a remand from the United States Court of Appeals for the First POSTAL SERVICE 185 Circuit on the contentious issue of confidentiality interests ap- plicable to personnel records of unit employees and job appli- cants. Only when an employer has an extensive history of viola- tions, or a history of noncompliance with cease-and-desist or- ders, should a broad cease-and-desist order be granted. Postal Service, 345 NLRB at 411. The violations established here consist of delays in providing information to the Union regard- ing certain operations at the DMDU Annex in Cataño, Puerto Rico. There is no evidence of a previous violation in connec- tion with this facility. Because no proven pattern or practice of unlawful activity exists at this and other facilities in the Carib- bean District, a broad remedy requiring a District-wide notice posting is unwarranted. See Consolidated Edison, 323 NLRB 910, 911 (1997) (Board reversed judge’s finding that the cease- and-desist order should be posted at all of the employer’s facili- ties, not just the facility where the improper conduct occurred, as the unlawful activity affected only one employee at that facility). As noted in Postal Service, 359 NLRB 1052, 1056 (2011), however, the Board did require the Postal Service to post a traditional cease-and-desist order at its “San Juan, Puerto Rico” facilities.7 The DMDU facility is located within the Postal 7 This remedy language carried over from the Board’s earlier deci- sion at 356 NLRB 483, supra, in which it adopted that portion of the judge’s recommended remedy. Service’s San Juan area “cluster” of facilities. Accordingly, a cease-and-desist order will issue directing the Postal Service to post a traditional cease-and-desist order at its San Juan, Puerto Rico facilities, also referred to as Zip Code cluster 009. CONCLUSIONS OF LAW 1. By unreasonably delaying, failing and refusing to provide the Union with information that was necessary and relevant to the performance of its duties as the exclusive collective- bargaining representative of Unit employees, the Postal Service has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of Act. 2. The aforementioned unfair labor practices affected com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Postal Service has engaged in certain unfair labor practices, I shall order it to cease and desist there- from and to take certain affirmative action designed to effectu- ate the policies of the Act. I shall recommend that the Postal Service be ordered to furnish the information requested to the Union and post an appropriate notice. [Recommended Order omitted from publication.]