NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
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United States
Postal Service and American Postal
Workers Union, Phoenix
Metro Area Local, AFL–CIO. Case 28–CA–21451
July 31, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On February 27, 2008, Administrative Law Judge Gregory Z.
Meyerson issued the attached decision.
The General Counsel filed exceptions and a supporting brief, the
Respondent filed an answering brief to the exceptions, and the General Counsel
filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings,
and conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law judge is
adopted, and the complaint is dismissed.
Dated, Washington, D.C.
July 31, 2008
Peter
C. Schumber ,
Chairman
Wilma
B. Liebman, Member
(seal) National
Labor Relations Board
Johannes Lauterborn, Esq., for the General Counsel.
Samuel J. Schmidt, Esq., of Sandy, Utah, and Teresa A. Gonsalves, Esq., of Washington,
D.C., for the Respondent.
DECISION
Statement of the Case
Gregory Z. Meyerson,
Administrative Law Judge. Pursuant to
notice, I heard this case in Phoenix,
Arizona, on December 18 and 19,
2007. American Postal Workers Union,
Phoenix Metro Area Local, AFL-CIO (the Union
or the Charging Party) filed an unfair labor practice charge in this case on
July 2, 2007. Based on that charge, the
Regional Director for Region 28 of the National Labor Relations Board (the
Board) issued a complaint on October 22, 2007.
The complaint alleges that the United States Postal Service (the
Respondent or the Postal Service) violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act).
The Respondent filed a timely answer to the complaint denying the
commission of the alleged unfair labor practices, and raising a number of
affirmative defenses.
All parties
appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally and file briefs.
Based upon the record, my consideration of the briefs filed by counsel
for the General Counsel and counsel for the Respondent, and my observation of
the demeanor of the witnesses,2 I now make the
following findings of fact and conclusions of law.
Findings of Fact
i. jurisdiction
The Respondent provides postal services for the United
States of America and operates various facilities throughout the United States
in the performance of that function, including facilities in the Phoenix,
Arizona metropolitan area (the Phoenix facilities), which are a part of the
Respondent’s Arizona District. The Board
has jurisdiction over the Respondent and this matter by virtue of Section 1209
of the Postal Reorganization Act, 39 U.S.C. Section 1209. Also, I find that the Respondent is an
employer subject to the jurisdiction of the Board.
Further, the complaint alleges, the answer admits, and I
find that at all material times (the Union)
has been a labor organization within the meaning of Section 2(5) of the
Act. Additionally, the parties agree and
I find that at all material times herein the American Postal Workers Union, AFL–CIO
(the National Union), has been a labor organization within the meaning of
Section 2(5) of the Act; and that the Union has been a constituent local of the
National Union.
ii. alleged unfair labor practices
A. The Dispute
The Respondent and the National Union have had a long collective-bargaining
relationship, with the parties entering into their first contract in 1971. The present collective-bargaining agreement
(the Agreement) was effective on February 3, 2007, and remains in effect until
November 20, 2010. (Jt. Exh. 1.)
The complaint alleges, the answer admits, and I find that
the employees of the Respondent referred to in the present Agreement, including
the Respondent’s employees employed at its facilities located in Phoenix,
Arizona, in the Respondent’s Arizona District (the Unit), constitute a unit
appropriate for the purposes of collective-bargaining within the meaning of Section
9(b) of the Act and Chapter 12 of the PRA.
Further, since about 1971, the National Union has been designated
exclusive collective-bargaining representative of the Unit and has been
recognized as the representative by the Respondent. This recognition has been embodied in
successive collective-bargaining agreements, the most recent of which is the
present Agreement. At all material times
the National Union, based on Section 9(a) of the Act and Chapter 12 of the PRA,
has been the exclusive collective-bargaining representative of the unit.
The parties further agree that at all material times the National
Union has designated the Union as its designee for the purpose of conducting
certain of its functions as the exclusive collective-bargaining representative
of the unit, including, but not limited to, the filing and processing of
grievances and requests for information under the Agreement at the Respondent’s
Phoenix facilities, in the Respondent’s Arizona District.
The dispute between the Union and the Respondent involves
two separate areas of inquiry for which the Union
has requested information from the Respondent.
In the first instance, the Union has requested information submitted by
a private contractor who was the successful bidder on a temporary contract to
carry mail from the “Phoenix plant” to other postal facilities located on the
west side of the Phoenix valley and referred to as the Sun City Route. This information is recorded by the contractor
during the bidding process on a Postal Service Form 7468A (the Form). The Respondent has refused to furnish the Union with an unredacted copy of the Form, arguing that
the information supplied by the contractor is proprietary and confidential. On the other hand, the General Counsel
contends that the information contained on the Form is necessary and relevant
for the Union to properly administer the
Agreement, including for consideration in deciding whether to file grievances.
The second area of inquiry made by the Union
involves a series of weekly requests for the “clock rings” of “casual” employees. Clock rings are the daily hours, including
regular and overtime, worked by employees.
The Postal Service uses casual employees as a supplemental work
force. The Respondent does not deny that
the Union was entitled to these clock rings in
order to administer the Agreement.
However, it strongly denies that there was any unreasonable delay in
forwarding this information to the Union. Further, the Respondent contends that any
delay was inadvertent and resulted, in part, from the Union’s refusal to
cooperate with management by furnishing the specifics of what the Union was requesting.
The General Counsel is unpersuaded by such arguments and contends that
whether deliberate or not, the Respondent’s failure to timely furnish the
requested information was unlawful.
B. The Request for Form 7468A
The Union represents a unit of the Respondent’s motor vehicle
employees who are employed in the Postal Vehicle Services Department (PVS) at
the Phoenix Processing and Distribution
Center, also referred to as the
General Mail Facility in Phoenix, Arizona (the Phoenix
plant). This unit is comprised of approximately
200 tractor-trailer operators (truck drivers), clerks and vehicle
mechanics. The truckdrivers transport
bulk quantities of mail between the Phoenix
plant and retail postal facilities located throughout the Phoenix metropolitan area. These include a number of facilities located
on the west side of the Phoenix
valley. The route that services these
west side facilities is referred to as the Sun City Route.
The contract between
the National Union and the Postal Service appears to give the Postal Service
very broad subcontracting authority. As
its “expert” on the current agreement, the Respondent called its manager of
contract administration, John Dockins.
He is the individual who administers the contract with the National
Union for the Postal Service. Dockins
referenced article 32 of the contract, entitled “Subcontracting.” He testified that this article gives the
Postal Service “the right to subcontract any work[ ] of the unit out,” as long
as the Postal Service provides notice to the bargaining representative. Several witnesses, including Dockins and Dan
Benton, the Respondent’s manager transportation networks for the Phoenix plant,
testified that when the Postal Service awards a contract for mail
transportation between postal facilities, it is, thereafter, referred to as a
Highway Contract Route (HCR) to differentiate it from a route delivery
performed by the Respondent’s employees using Postal Service equipment, a Postal
Vehicle Service Route (PVS). Both
Dockins and Benton testified that a HCR is also called a Star Route.
The Postal Service awards three types of contracts,
regular, temporary, and emergency.
According to Royale Ledbetter, a Postal Service purchasing and supply
management specialist, a regular contract is utilized when the term is for as
long as 4 to 6 years. A temporary
contract may have a term of up to 2 years, and an emergency contract is
generally for no more than 6 months.
According to Dockins, temporary or emergency contracts are expressly
excluded from the notice and other requirements of article 32, and the Postal
Service may subcontract that work freely.
Specifically, he refers to article 32.2. H of the collective-bargaining
agreement, which states that “star route contracts let on a temporary or
emergency basis” are not encompassed by this “Section.” Dockins testified that “star route” is just
another way of referring to a HCR. Further,
he testified that Article 32.2. H refers to the entirety of Article 32, not
just article 32.2, and the Postal Service has consistently applied and
interpreted the phrase that way. He contended
that in the past no argument has been made to the contrary by the National
Union. It is important to note that this
contention was unrebutted by the production of any evidence from the General
Counsel.
In the specific matter before me, Benton testified that
the Postal Service had been for some time concerned with providing cost
effective service to the public during a period of explosive population growth
on the west side of the Phoenix metropolitan
area. An internal evaluation was
conducted, as a result of which, on March 2, 2007,
the Phoenix District submitted a request to upper management for permission to
convert the Sun City Route,
which was being serviced by Postal Service employees and equipment (PVS) to a
Highway Contract Route (HCR) to be serviced by the employees and equipment of a
private contractor. By letter dated
March 6, the Respondent’s Western Area Distribution Networks Office concurred
with the request by the Phoenix District to convert the Sun City Route. (GC Exh. 6, A-D.)
The letter of March 6 makes reference to the utilization
of a Postal Service Form 5505, for the fourth quarter of fiscal year 2006. The Form 5505 “Cost Evaluation-Postal Vehicle
Service vs. Contract Service” is used to compare the “estimated cost” to the
Respondent of hiring a private contractor to service the route verses
performing the work “in house” with Postal Service employees and
equipment. As is reflected in the
letter, it was estimated that the savings to the Postal Service by this conversion
was in excess of $850,000 per year.
It must be stressed that this Postal Service evaluation
and estimated savings anticipated that the conversion would be pursuant to a
“regular contract.” The collective-bargaining agreement between
the National Union and the Postal Service in article 32.2.A states that in
selecting the means to provide transportation, “the Postal Service will give
due consideration to public interest, cost, efficiency, availability of
equipment, and qualification of employees.”
However, as noted above, under Article 32.2.H, such requirements do not
apply to “temporary contracts.”
By letter of April 11, John Dockins, the Respondent’s manager
of contract administration, provided notice of the proposed conversion to the
National Union, through Robert Pritchard, director of motor vehicle services
division for the National Union.
Attached was a copy of the Form 5505 mentioned above. (R. Exh. 27.)
According to Dockins the information is provided for proposed “regular
contract” conversion so as to enable the parties to “engage in an intelligent
conversation,” as envisioned by Article 32.2 of the collective-bargaining agreement. There is some dispute between the parties as
to why subsequent discussions regarding the “regular contract” conversion were
not held, but it is not germane to the issues before me.
In any event, the Postal Service approved the conversion,
and a “regular contract” for the Sun
City Route was awarded to Eagle Express Lines,
with a beginning date of January 26, 2008.
The term of this “regular contract” is 3-years and 2-months. (R. Exh. 13.)
It is important to note that the Respondent has taken the position that
in awarding this “regular contract” and the “temporary contract,” which
preceded it, no bargaining unit members have lost their jobs. This contention is unrebutted by the General
Counsel.
Having recited the history of the “regular contract,” it
is now necessary to turn my attention to the “temporary contract,” from which
the Union’s request for information led to
this dispute. During the period of time
when the conversion request for regular service was pending at the Respondent’s
headquarters, the Respondent’s local managers at the Phoenix plant decided to temporarily
subcontract out the Sun City Route, pending final approval
and implementation of the “regular contract.”
This action was deemed a stop-gap measure in order to service the route
because of an anticipated increase in vacation time taken by Postal Service
drivers in the summer months, and due to normal attrition among the
drivers. Benton testified that he considered other
options to temporarily service the route, but they were not feasible in view of
fact that local management was in the process of seeking a regular conversion
of the route, and anticipated that approval for the regular conversion would
shortly occur. However, in the event
that headquarters denied the conversion request for regular service, the
temporary contract could simply be terminated.
During a meeting with the Union on April 24, local management
informed the Union’s motor vehicle director, Steven Auerbach, and the Union’s president, Mary Lou Pavoggi, of the plans to
subcontract the Sun City Route
beginning either May 19 or June 2. The
union officials expressed their desire to retain the work “in house,” however,
the Respondent’s local officials went forward with the plan for conversion of
this route.
Subsequently, the Postal Service solicited bids for a
“temporary contract” for the Sun City Route from various potential subcontractors
by sending them a packet, which, among other items, included the U.S.
Department of Labor wage determination for the contract that the subcontractor
is required to pay to employees in the specified occupations, and Postal Service
Form 7468A, the “Highway Transportation Contract-Cost Worksheet.”
The Form 7468A separates the bidding contractor’s estimated
costs into a number of categories the bidder expects to incur, including, among
others, the following: Vehicle Costs, Taxes, Registration, Fuel, Oil, Insurance,
Road Taxes, Tolls, Straight Time, Overtime, Payroll Taxes, Fringe Benefits, Suppliers’
Wages, and Return on Investment. The
final, or bottom line, on the Form is for the “Total Offer,” the amount the contractor
is proffering to accept as payment from the Respondent for the contractor’s
performance of the work bid upon. (GC Exh.
8k and Res. Exh. 23.) It is very
important to note that the Form only contains the potential contractor’s
estimate of costs and does not reflect any actual wages or other payments
made. According to Royale Ledbetter, the
Respondent does not even “require” that potential contractors provide anything
other than the bottom line bid, which is the only listed item that a bidding
contractor cannot readjust. However, she
indicated that it is to the bidder’s advantage to supply the additional
information itemized on the Form, so as to be able to seek future adjustments
and modifications from the Postal Service, assuming the successful bidder’s
costs increase. This testimony from
Ledbetter, a purchasing and supply management specialist for the Respondent,
was unrebutted by the General Counsel.
Ultimately, the Respondent awarded the temporary contract
for the Sun City Route
to MTR Transport LLC. The term of the
contract was from June 2 to October 31, 2007.The
temporary contract number was #852L7.
(GC Exh. 8k.)
On June 1, the Union
presented the Respondent with a request for information, listing 14 separate
items, the first of which was a “[c]opy of the 7468A for Sun City Route or temporary contract
#852L7.” (R. Exh. 6.) By memorandum dated July 7, Benton responded, informing Auerbach that the
Form 7468A was “proprietary information and the supplier’s line item costs are
not public information.” Benton did furnish the Union with the amount of the successful
contractor’s bid, $2,321,323, and advised that if the Union
was still requesting the “cost worksheet” to “please explain the relevancy of
the request[ed information].” (R. Exh.
7.)
In a letter dated July 9, Auerbach responded that the Union “would like to review the 7468A and compare the
data against the 5505 that was submitted showing the breakdown for the cost
related to the postal services calculations.”
(R. Exh. 9.) Also, Postal Service
paralegal Beverly Burge testified that on July 19 she participated in a
telephone conversation with Auerbach during which he reiterated that the Union
wanted to see the Form 7468A to compare it to the Form 5505, and further that
he wanted to compare the cost of labor reflected on the Form 7468A with “some Department
of Labor figures on wages.”
Burge responded by email dated July 27, indicating that
the Union’s justification for obtaining the
Form 7468A, showing the contractor’s itemized costs, was inadequate as “cost
was not the driving factor behind establishing [the] 852L7,” the temporary
contract. Further, she reminded Auerbach
that the Union had already been furnished
Forms 7505B,7409B, and
5443, which “forms have the annual costs needed for grievance purposes.” (R. Exh. 15.)
It is the Respondent’s position, as testified to by Benton, that in preparing
for and soliciting bids for a “temporary contract” that “cost” is not the overriding
factor. It was allegedly for that reason
that no Form 5505 was every prepared for the “temporary contract” number
#852L7.
Benton’s testimony is supported by his memorandum to Auerbach dated July
31, in which he states that the Form 7468A cannot be compared to a Form 5505
for the “temporary contact” as no Form 5505 was prepared. The memo reflects that his was because “cost
was not a primary consideration in the establishment of [the] temporary
contract.” (Res. Ex. 10.) This evidence
was never rebutted by the General Counsel.
Auerbach testified that on several occasions he explained
to Beverly Burge in conversations that another reason the Union
needed to see the Form 7468A was to determine whether the successful bidder was
complying with the Department of Labor (DOL) regulations on wages and
benefits. While the undersigned is not
clear as to precisely when Auerbach made these arguments, I accept his
testimony that this was part of the Union’s
justification as to why it needed the Form.
However, as the Respondent’s counsels point out in their post-hearing
brief, the cost of wages and benefits, as estimated by the contractor on the
Form 7468A, was just that, an “estimated” cost.
The contractor was at liberty to change an item on its work sheet except
the final bottom line figure. Further,
it was only after actual wages and benefits were paid by the contractor to its
employees that there could possible be a violation of DOL regulations.8
It is undisputed that at some time during this period Benton sent Auerbach a
non-disclosure agreement, to be used in connection with the receipt of the Form
7468A. According to Auerbach, he could not sign the
agreement as its terms were “extremely restrictive.” It is unclear as to whether Auerbach’s
decision not to sign the non-disclosure agreement caused the Respondent,
through Beverly Burge, to withdraw the agreement, but it was withdrawn. Auerbach testified that Burge informed him
that the Union would only be provided with the
bottom line figure, the total bid amount, and not the contractor’s various cost
estimates from the Form 7468A.
Thereafter, on August 2, Burge provided the Union
with a heavily-redacted copy of the Form 7468A from the successful contractor
whose bid was accepted for the “temporary contract” on the Sun City Route. All estimated costs were redacted. The only itemized monetary figure left unredacted
was the bottom line total bid offer. (GC
Exh. 8k)
1. Legal analysis (The Form 7468A)
In a recent case, Disneyland
Park and Disney California Adventure, 350 NLRB No. 88 (2007), the Board
recited certain well established legal principles regarding an employer’s obligation
to provide requested information to a union representing the employer’s employees. As the Board said, “An employer has the
statutory obligation to provide, on request relevant information that the union
needs to the proper performance of its duties as collective bargaining
representative.” The Board cited to a
number of Supreme Court decisions including, NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956); NLRB v. Acme Industrial Co., 385 U.S.
432, 435–436 (1967); and Detroit Edison
Co. v. NLRB, 440 U.S. 301 (1979).
Further, the Board added that, “This includes [information needed for]
the decision to file or process grievances,” citing to Beth Abraham Health Services, 332 NLRB 1234 (2000).
Specifically, where the union’s request for information pertains
to employees in the bargaining unit, the Board reiterated that the “information
is presumptively relevant and the [r]espondent must provide the
information. However, where the
information requested by the union is not presumptively relevant to the union’s
performance as bargaining representative, the burden is on the union to demonstrate
the relevance.” Disneyland Park; and cases cited therein including, Richmond Health Care, 332 NLRB 1304
(2000); Associated Ready Mixed Concrete,
Inc., 318 NLRB 318 (1995), enfd. 108 F.3d 1182 (9th Cir. 1997); Pfizer, Inc., 268 NLRB 916 (1984), enfd.
736 F.2d 887 (7th Cir. 1985). The Board
went on to say that “[a] union has satisfied its burden when it demonstrates a
reasonable belief, supported by objective evidence, that the requested information
is relevant,” citing to Knappton Maritime
Corp., 292 NLRB 236, 238–239 (1988).
Finally, in the Disneyland case the Board repeated its well
established principle that it “uses a broad discovery-type standard in
determining the relevance of requested information. Potential or probable relevance is sufficient
to give rise to an employer’s obligation to provide information.” Still, where the information requested is not
presumptively relevant, as not pertaining to employees in the bargaining unit,
“the General Counsel must present evidence either (1) that the union demonstrated
relevance of the nonunit information, or (2) that the relevance of the information
should have been apparent to the respondent under the circumstances. [Internal citations omitted] Absent such a showing, the employer is not
obligated to provide the requested information.”
In the matter before me, there can be little doubt that
the Form 7468A concerns “subcontracting” exclusively. The Form itself does not directly pertain to
employees within the bargaining unit.
(GC Exh. 8k.) It is a cost worksheet
prepared by a contractor offering a bid to perform certain work for the Postal
Service, which bid was solicited by the Postal Service. As noted above, no Postal Service employee
lost any work as a result of this subcontracting under the “temporary contract”
#852L7. The Form is required to be
submitted by the contractor as part of the bidding process. Ultimately, the successful bidder is awarded
the contract and the route is converted from one performed by the Respondent’s
employees and equipment (PVS) to one performed by the subcontractor’s employees
(HCR).
Based on the unrebutted testimony of John Dockins, and a
review of the collective-bargaining agreement, I conclude that the agreement
gives the Respondent exclusive authority to subcontract work to private contractors
performing under the terms of a “temporary contract.” (Jt. Exh. 1, art. 32.2.H) In this respect, the language of the
collective-bargaining agreement, which gives the Respondent the authority to
subcontract work, is less restrictive for a “temporary contract,” than it is
for a “regular contract.” As I read the
collective-bargaining agreement and understand the unrebutted testimony of
Dockins, the Postal Service is not required to even consult with the Union when deciding whether to award a “temporary
contract” for conversion of a route from PVS to HCR. While the Respondent did consult with the Union regarding the Sun City Route “temporary contract,” it
appears that this was merely a courtesy extended by the Postal Service to one
of its negotiation partners.
It is well established that “subcontracting information…is
not presumptively relevant and therefore a union seeking such information must
demonstrate its relevance.” Ingham Regional Medical Center , 342
NLRB 1259, 1262 (2004), citing Sunrise
Health & Rehabilitation Center., 332 NLRB 1304 (2000); Associated Ready Mixed Concrete, supra. In the matter before me, I am of the view
that as the requested Form 7468A concerns only the “subcontracting” of the Sun City Route, it is not presumptively
relevant. As the National Union has
specifically relinquished to the Respondent the exclusive authority to subcontract
delivery routes (HCR) under “temporary contracts” (Jt. Exh. 1, art. 32.2.H), it
is even more obvious that this issue is not presumptively relevant. Ingham
Reg’l Medical Center., supra. Further, I conclude that the Union’s
“generalized conclusionary explanation of relevance is ‘insufficient to trigger
an obligation to supply information that is on its face not presumptively
relevant.’” Disneyland Park, supra,
at *14, quoting Island Creek Coal Co.,
292 NLRB 480, 490 fn.19 (1989), enfd. 899 F.2d 1222 (6th Cir. 1990).
The Union’s proffered
reasons for its need to view the unredacted Form 7468A are without merit. Auerbach argued to management that the Union needed the unredacted Form so that they could
compare it to and verify the figures provided on the Form 5505 cost
evaluation. According to the testimony
of Bob Pritchard, the Union was concerned
about a contractor “low balling” the Postal Service by submitting
unrealistically low costs and a low bid, in order to obtain the contract. Presumably, the contractor would then return
to the Postal Service in subsequent years and attempt to have the value of its
contract increased, alleging increased costs.
However, there was no Form 5505 prepared in connection
with the “temporary contract.” Auerbach
was so informed on several occasions. A
number of the Respondent’s managers explained to him that “cost” was not the
overriding issue in converting the Sun City Route from a PVS to a HCR. Rather, the Respondent was principally
interested in providing quality service to the public during the interim period
prior to the anticipated conversion of the route through a “regular
contract.” The “temporary contract” gave
the Respondent’s local management the flexibility they needed while awaiting
the final decision on the regular conversion.
Accordingly, even assuming the Union
obtained an unredacted copy of the Form 7468A with the itemized list of the
contractor’s costs, there was no Form 5505 for the “temporary contract” to
which it could be compared.
Even so, the Respondent provided the Union with other information
that the Union might use in arguing that the
contractor was “low balling” the Postal Service. The redacted Form 7468A containing the
contractor’s bottom line bid price to service the route was furnished to the Union. (GC Exh.
8k.) Additionally, the Union was provided
with Postal Service Form 7409B, which contained the annual mileage of the
temporary contract, the contract rate (bottom line cost figure), the rate per
mile, the name of the contractor to whom the temporary contract was awarded,
and the contract term; Form 5443, which provided annual miles of the temporary
contract, annual hours, vehicle requirements (including quantity, description,
length, cubes and payload), the effective date of the award, the contract term,
and the name of the successful contractor; and Form 7405B, which provided the
contract term, the name of the successful contractor, the rate of contract
compensation (bottom line cost), and the name and position of the offeror. (R. Exh. 4.)
Accordingly, the Union’s
argument that it needed the unredacted Form 7468A to compare it to the Form
5505 is mertless. Additionally, the
Postal Service furnished the Union with alternate documents, which the Union could use to determine whether the successful
contractor was under-valuing its costs to arrive at a “low ball” bottom line
bid.
The second reason proffered by the Union
as to why it needed the unredacted Form 7468A was to ensure that the contractor
awarded the “temporary contract” was complying with the Service Contract Act
(SCA), and the Department of Labor’s (DOL) wage determinations. As
set forth in the Respondent’s contract solicitation, bidders are required to
comply with the SCA and DOL’s wage determinations. (R. Exh. 24.)
While the Form 7468A has a place for the contractor to list the expected
wages and benefits to be paid to its employees while servicing the route, a
number of management officials testified that these were just “estimated”
expenses, which could be altered as the contractor saw fit. Only the bottom line amount of the contract
could not be altered by the successful bidder.
Further, the figures listed on the Form were submitted before the
contract was awarded and before even one cent in wages or benefits were paid to
employees. The Form does not reflect any
actual wage or other payments made. This
testimony was unrebutted by the General Counsel.
According to Royale Ledbetter, it is the DOL, and not the
Postal Service, which is ultimately responsible for enforcement of the SCA and
compliance with the related wage determinations. Any complaints regarding a contractor’s
alleged noncompliance are referred by the Postal Service to the DOL. The DOL then investigates and takes action as
necessary. Further, as noted earlier,
the Postal Service does not even require contractors bidding on a route to list
the estimated wage and benefits costs.
Only the bottom line cost of the contract is absolutely required from
the bidder. This figure was provided to
the Union through a number of different
documents, including the redacted Form 7468A.
Thus, the Union’s
argument that it needed the unredacted Form 7468A from the successful bidder on
the “temporary contract” in order to ensure compliance with the SCA and DOL
regulations is without merit. The Form
would in no way have served as evidence that the contractor was in violation of
the SCA or DOL wage determinations. Only
time would reveal the details of the contractors compliance with the statute
and regulations, and only after the contractor servicing the route began to pay
wages and benefits to its employees.
As noted above, I have concluded that as the Union is seeking information strictly concerning the
“subcontracting” of the Sun City
Route through a “temporary contract,” its request
for the Form 7468A is not presumptively relevant. Further, I have concluded that the reasons
proffered by the Union for requesting the Form
are meritless and do not establish relevance.
However, assuming, for the sake of discussion, that the Union has
established the relevance of its request for the Form, I concur with the Respondent’s
argument that the Form should be protected against disclosure based on
proprietary and confidentiality concerns, which outweigh the Union’s
need for the information.
Where an initial showing of relevance is made by a union,
an “employer has the burden to prove a lack of relevance… or to provide
adequate reasons as to why [it] cannot in good faith, supply such
information.” National Grid USA
Service. Co., 348 NLRB 1235, 1242
(2006). In the “seminal case” of Detroit Edison v. NLRB, 440 U.S. 301,
315, 318–320 (1979), the Supreme Court held that where the relevance of
requested information has been established, an employer can meet its burden of
showing an adequate reason for refusing to supply the information by
demonstrating a “legitimate and substantial” concern for the confidentiality
interests that might be compromised by disclosure. Where an employer has raised issues of
asserted confidentiality, the Board first determines whether the employer has
established legitimate and significant confidentiality interests and, if so,
then balances those interests against the union’s need for the requested
information. National Grid, supra; Detroit Edison,
supra, at 315, 318; Minnesota Mining
& Mfg. Co., 261 NLRB 27, 30 (1982); Pfizer Inc., 268 NLRB 916 (1984).
The Respondent’s
purchasing and supply management specialist, Royale Ledbetter, testified that
the Postal Service protects the Form 7468A from disclosure for four principal
reasons. First, the release of this
information may adversely affect the Postal Service and the taxpayers by
resulting in the submissions of higher bids.
Should competitors know the amount being bid on a contract, they may
seek to offer a bid that is only slightly lower than that submitted, thus, not
allowing the market forces at work in “blind bidding” to result in even lower
bids being received.
Second, the Union should not be permitted to obtain through an
information request that which it gave up the right to receive through the
collective-bargaining agreement. As I
have explained, the plain language of article 23.2.H, plus the unrebutted
testimony of John Dockins, leads me to conclude that the Respondent can convert
a PSV route, using Postal Service employees and equipment, into a HCR, using the employees and equipment of a
private contractor, under the terms of a “temporary contract,” without
providing any justification or information to the Union. (Jt. Ex. 1.)
Third, in the
contract between the Postal Service and the successful bidder awarded the
route, it states that the Respondent will not release the Form 7468A to any
party, other than the contractor itself.
The specific language is, “If you receive an award, Form 7468A furnished
by you will not be distributed to individuals other than the supplier.” (Res. Ex. 24, Terms and Conditions, p. 23,
section 3.1.2.A((2)(d).) Certainly, to
thereafter release the information to the Union
would constitute a breach of that agreement.
Fourth, the Form
7468A constitutes what, for all practical purposes, is the contractor’s
“business plan.” It sets out in detail
the bidder’s estimated costs and even anticipated “return on investment.” (GC Exh.
8k, and R. Exh. 23.) It is the
contractor’s “blueprint” for success.
The Form constitutes confidential, proprietary information, which if disclosed
to a competitor could seriously and irreparably damage any competitive advantage
that the bidder may have. In fact, the
Postal Service’s internal supply guidelines, entitled “Supplying Principles and
Practices,” acknowledge this, and, thus, preclude disclosure of the information
contained on the Form to other suppliers.
(R. Exh. 26, at 247.) The
Respondent’s guidelines state, that “[i]nformation may not be disclosed to any
supplier as to another’s…[b]usiness and financial information that is privileged
or confidential, including cost breakdowns, profit, indirect cost rates, and
similar information.” (Id. at 293.)
The Board has
repeatedly held that “in dealing with union requests for relevant but
assertedly confidential information, [it is] required to balance a union’s need
for such information against any ‘legitimate and substantial’ confidentiality
interests established by the employer, accommodating the parties’ respective
interests insofar as feasible in determining the employer’s duty to supply the
information.” Allen Storage & Moving Co., Inc., 342 NLRB 501, 502 (2004)
(citing Detroit Edison, supra, and Minnesota Mining, supra).
In balancing the
conflicting right of the Union to obtain the Form 7468A with the Respondent’s
right to keep the successful bidder’s proprietary information confidential, I
conclude that the balance clearly tips in favor of the Postal Service. As I have indicated above, the Union’s stated reasons for needing the costs enumerated
on the Form are meritless. The Form
7468A could not be compared to the Form 5505, as no Form 5505 was prepared by
the Postal Service prior to entering into the “temporary contract” for the Sun City Route. Cost was not the overriding factor in
awarding this contract. Further, the
costs listed on the Form 7468A were merely estimates, which the contractor was
free to change, as long as there was no change to the bottom line bid
price. Again, the possession of this
information could not benefit the Union as
“estimates” would not establish that the contractor was “low balling” the Respondent. Since no wages or benefits were paid until
the contract went into effect, the Form could also not serve as a basis to file
charges with the DOL regarding alleged violations of the SCA.
The collective-bargaining
agreement provided the Respondent with the exclusive right to enter into a
“temporary contract” for conversion to a HCR.
(Jt. Exh. 1, art. 32.2.H.) While
there appears to be no legitimate basis upon which the Union could file a
successful grievance, even assuming such a basis, the Union has failed to
articulate how it’s possession of the Form 7468A could assist in that endeavor. On the other hand, the Respondent has
demonstrated the serious and irreparable harm that could befall the contractor
if the Form 7468A containing its “business plan” were disclosed to competitors. Also, the harm to the Postal Service could be
substantial by way of causing the Postal Service to breach its assurance to
bidders that the information on the Form would remain confidential. A release of the information could adversely
affect the bidding process by resulting in the Respondent having to pay too
much for the temporary conversion of the Sun City Route.
Finally, it is
important to note that the Respondent did attempt to satisfy the Union’s desire for information about the “temporary contract”
through means of a redacted Form 7468A and by furnishing other Postal Service
Forms that provided some of the same information as that contained on the
7468A. (GC Exh. 8K, and R. Exh. 4.) None of that satisfied the Union. However, while the Union
initially offered to execute a nondisclosure agreement, Auerbach ultimately
declined to sign such an agreement, which he categorized as overly restrictive.
While the Postal Service ultimately withdrew the offer, the Union’s reluctance
to enter into such an agreement offers an interesting perspective as to whether
the Union thought that if it obtained the
document it would be able to restrict third parties from viewing the
information. Apparently it did not feel
confident that it could do so.
Based on the above, I conclude that the refusal by the
Postal Service to furnish the Union with an unredacted Form 7468A for the Sun
City Route (temporary contract #852L7) did not constitute a violation of
Section 8(a)(1) and (5) the Act.
C. The Request for the Clock Rings
Paragraph 6(d) of
the complaint alleges that from about mid-April 2007 through mid-August 2007,
the National Union, by the Union, made in person requests of the Respondent that
the Union be furnished with “[t]he daily hours, including regular and overtime
work, worked by casuals per week through clock rings or overtime analysis
reports.” Further, the complaint alleges
that this information was necessary and relevant to the National Union in order
for it to perform its collective-bargaining and representative duties on behalf
of the unit employees, and that the Respondent delayed in furnishing the Union with the requested information in violation of the
Act.
During the hearing,
the parties stipulated that the Union was entitled to the orally requested
information, which was relevant and necessary for the Union
to carry out its collective bargaining responsibilities. However, the Respondent declined to stipulate
that the requests for the information were made during the time period set
forth in the complaint, and strongly denied that the Postal Service engaged in
any unreasonable delay in furnishing the requested information. The stipulation having been admitted into
evidence, there is no dispute as to the relevance of the requested information,
or the Union’s right to receive it.
Casual employees
are used as a supplemental work force.
They are not part of the bargaining unit, and, of course, any
utilization of casuals constitutes work time not available to the regular
career unit employees. It is undisputed
that in December of 2006, the Union filed a
grievance alleging that the Respondent was hiring casual instead of career
employees in violation of the collective-bargaining agreement.
Steve Auerbach
testified that on December 11, 2006, he filed a written request for information
with the Respondent. In that written
document, he requested “clockrings for all MVS Casuals from the first day of
their placement up to this date. That
weekly clockrings be given the Union as long
as casuals are employed in MVS.” (GC
Exh. 13.) Pursuant to that request,
Auerbach received clock rings from the supervisor of transportation at the Phoenix plant, Dean
Murdoch. Auerbach testified that he also
spoke with the manager of the facility, Keith Tucker, about receiving the click
rings and that Tucker “okayed” him to receive the information, which was subsequently
provided to him by either Tucker or Murdoch. Auerbach acknowledged that he received the
information “promptly” and on a regular basis, every few weeks from the time of
his original request until he last received the information on approximately
May 11, 2007. It is important to note
that in effect, Auerbach admits receiving the requested information from the
Respondent in a timely fashion from approximately December 11, 2006 through May
11, 2007, a period of five months.
Michael Meaker
replaced Tucker as the transportation manager at the Phoenix facility. Meaker testified that his start date and
first day on the job in his new position was April 30, 2007. However, he did not assume his official
duties and begin taking over the assignment of work until 2 weeks later, in
mid-May. During these first 2 weeks in
his new position, Meaker was transitioning and working directly with his
predecessor, Keith Tucker. It is
significant to note that Meaker assumed his official duties in mid-May at
approximately the same time that Auerbach testified he last received the clock
ring information on a regular basis.
According to
Meaker, he first met Auerbach on Meaker’s first day at his new job,
April 30. He recalls a conversation
with Auerbach in mid-May when Auerbach first mentioned to him the Union’s need for the clock ring time records. Meaker testified that at the time he “didn’t
really know” how the transportation department processed Union requests for
information. Later he learned that the transportation
department kept a log where Union requests for information were recorded along
with the status of the request. (Res.
Ex. 1.) However, not knowing of the existence
of the log for some time, Meaker testified he did not “log in” Auerbach’s
request made to him for the clock rings.
Meaker acknowledged that he had a number of subsequent conversations
with Auerbach, in which Auerbach, among many other issues, mentioned the Union’s need for the clock rings and other
information. Meaker’s testimony was
unrebutted that through this period he furnished the Union
with other requested information.
However, he admitted that he “dropped the ball” in not furnishing
Auerbach with the clock rings.
Meaker indicated
that he failed to furnish the Union with the clock rings simply because he was
very busy learning a new job, did not realize the Union’s
immediate need for the records, and merely due to his inadvertence. According to Meaker, as a manager, in his
previous dealings with Postal Service unions, he had never used untimeliness as
a basis to deny a grievance, and so did not fully understand that time was an
issue. In explaining his attitude,
Meaker testified that he has “never played a time game with the Union.”
Dean Murdoch
testified that from April 30 until he transferred to Seattle
at the end of August, he reported to Meaker.
He testified that he never discussed the Union’s
request for the clock rings with Meaker.
Further, while Auerbach had previously come directly to him to request
and receive the clock rings, starting in April, Auerbach no longer did so. He knows of no reason why Auerbach suddenly
stopped requesting the records directly from him. In commenting about the log that was kept by
the transportation department to record and track Union requests
for information, Murdoch testified that “oral” requests were not typically recorded.
Finally, while Murdoch initially helped train Meaker, he still had his
own job to perform, and from April through the end of August, when he transferred,
he made a number of trips to Seattle
in preparation for his transfer. Accordingly,
during this period of time, he was not always on site at the Phoenix plant. His replacement in Phoenix was Chuck Hydeman, who he was also
responsible to train.
Auerbach testified
that he would speak with Meaker approximately once a week about getting the
clock rings for the casuals. However,
Auerbach apparently decided initially not to press Meaker about not furnishing
the records, as Auerbach appreciated that Meaker was busy learning a new
job. According to Auerbach, Meaker “was
very busy, and he was learning the job, so I figured okay, I won’t push real
hard. I understand [Meaker’s] learning,
so okay, you know, I wanted to work with him.”
Auerbach was willing to give Meaker “some latitude because [he]
understood someone [like Meaker] not knowing transportation [at the Postal
Service].” Auerbach claims that Meaker
told him that he was going to assign the task of gathering the clock rings to
Chuck Hydeman, who was taking over for Dean Murdoch. On cross-examination, Auerbach testified that
it was for that reason that he did not take his unfulfilled request for the
information to Murdoch, who had previously given him the records, or to Dan
Benton, manager, transport networks.
As noted above,
Auerbach testified that he last received clock rings from the Respondent on May
11. On July 2, the Union
filed the unfair labor practice charge involved in this case. (GC Exh. 1(a).) That was a little less then two months after
receiving the last clock rings. This was
the only charge filed in this case, apparently intending to cover both the
allegation that the Respondent had failed to furnish the Form 7468A and the
casual clock rings. However, the charge
itself simply reads, “During the past six months the above named employer has
failed and refused to provide the Union with
relevant and necessary information including but not limited to information
regarding the motor vehicle craft.” As
counsel for the Postal Service points out in her post-hearing brief, the charge
on its face contains no description of the information that the Union was
lacking, did not specify who had submitted the information requested, or the
date of the request, nor did it explain the relevance of the information requested.
The Respondent
received the charge on July 5, 2007. The
matter was then turned over for processing to Beverly Burge, a paralegal for
the western area law office of the Postal Service. According to Burge, on July 11 she participated
in a conference call with Auerbach and Dan Benton to discuss the charge. During this conversation, Auerbach acknowledged
that the Union was seeking the Form 7468A for
the temporary contract on the Sun
City Route.
However, Auerbach indicated that without his notes he could not say what
other information might be at issue in the charge.
Benton then contacted several union
officials, including president Pavoggi and vice president Cuccinotto in an
unsuccessful effort to determine what information the Union
was complaining had not been furnished.
On July 19, Benton
and Burge placed a conference call to Auerbach and again attempted to determine
specifically what documents the Union had allegedly
requested, which were the subject of the charge, in addition to the Form
7468A. Burge testified that when asked
what other documents were involved, Auerbach responded, “I’m not going to tell
you. I won’t tell you until I’ve told my
full story to the Board.” According to
Burge, she was “dumbfounded,” as usually the Union
was interested in “get[ting] its hands on” the requested documents as soon as
possible, and so would want to cooperate.
She testified that Auerbach’s response “seemed irrational…really
odd.” Further, her testimony is
supported by notes that were made by her simultaneously with this conversation,
in which she records Auerbach’s response.
(R. Exh. 21.)
When cross-examined
by counsel for the Postal Service about this conversation, Auerbach was vague,
evasive, and uncooperative. He claimed
not to recall certain specifics about this conversation, as he did about other
matters when under cross-examination.
After watching Auerbach testify, I am of the belief that he displayed
“selective memory” when trying to avoid answering difficult questions from
counsel for the Respondent, often responding with, “I can’t say.” In this respect, I found his testimony less
than credible. On the other hand, I
credit Burge’s testimony whenever the two disagree. She seemed straight forward and candid, with
no attempt to avoid answering difficult questions. Although both Auerbach and Burge were partisans
for their respective sides, he seemed to testify with an agenda in mind, and
she did not.
Counsel for the
Postal Service pressed Auerbach as to what response he gave Burge on July 19,
but still he testified, “I may or may not.
I can’t say for sure.” Finally, counsel
asked him if it was “fair” to say that he at least told Burge that he was going
to the Board, and did not want to talk about the requested documents with
her. Auerbach reluctantly admitted that
it was a fair statement, and also that he has never furnished Burge with the
specific information as to what documents were encompassed by the charge.
It is, of course,
part of the Respondent’s defense that its managers were attempting to furnish
the Union with any relevant information that the Union had requested, and that
had Burge and Benton known earlier as to what specific information was
encompassed by the charge, it would have been immediately provided to the Union.
Burge testified at
some length about her efforts to get Region 28 of the Board to specify the
records that were alleged by the Union not to
have been provided. However, according
to Burge, it was not until August 21 that the Respondent learned from the
Region, not the Union, that it was the casual
clock rings or time records that were at issue in the charge. This testimony was unrebutted. Further, Burge testified that upon getting
that information, she contacted Benton and
informed him that it was the casual clock rings, which were the remaining documents
that the Union contended in the charge had not
been furnished.
Benton testified that upon learning from Burge that
it was the casual clock rings that the Union was complaining about in the
charge, he directed Meaker to make them available to the Union
and so informed Auerbach in writing dated August 23. Further, Benton informed Auerbach that additional
clock rings would be made available to him within a week. (R. Exh. 11.)
Once Meaker learned from Benton that the charge
involved the clock rings, he almost immediately made them available to
Auerbach. None of this is apparently
disputed, as paragraph 6(d) of the complaint only alleges a failure to provide
the clock rings through mid-August 2007.
Finally, it is
worth noting that Benton testified that prior to
August 23, he personally was not aware that the Union
was complaining it had not received certain clock rings for casual
employees. According to Benton,
had he known earlier that the Union had requested these records and that they
had not been provided, he would have directed that management furnish them to
the Union immediately.
1. Legal analysis (the clock rings)
There is no dispute that the clock rings requested by the
Union were relevant and necessary for the Union’s performance of its
collective-bargaining duties, and that the Respondent was required to furnish
these documents to the Union promptly. However, the parties strongly disagree as to
whether the Postal Service’s delay in providing the clock rings to the Union was unreasonable.
The case law is clear that “the duty to furnish requested
information cannot be defined in terms of a per se rule. What is required is a reasonable good faith
effort to respond to the request as promptly as circumstances allow.” West
Penn Power Co., d/b/a Allegany Power, 339 NLRB 585, 587 (2003), enfd. in
pertinent part 349 F.3d 233 (4th Cir. 2005).
Further, “[i]n determining whether an employer has unlawfully delayed responding
to an information request, the Board considers the totality of the
circumstances surrounding the incident.”
The Earthgrains Co.,
349 NLRB No. 34, at *22 (2007) (quoting West
Penn Power Co., 339 NLRB at
587).
In my view, the
time period that the Union was required to
wait for receipt of the requested documents and the reasons for such a delay
are critical in determining whether the Respondent was acting in good
faith. To begin with, the parties do not
agree as how long receipt of the documents was delayed. Union official Auerbach acknowledged that he
did receive the requested information “promptly” and on a regular basis from
approximately December 11, 2006, through May 11, 2007, a period of 5
months. However, complaint paragraphs
6(d) and 6(g) allege that the Respondent delayed in furnishing the clock rings
beginning on or about “mid-April 2007.”
That date is plainly wrong, as Auerbach testified that he last received
the clock rings on approximately May 11, 2007.
Accordingly, I conclude that the time period during which the documents
were not forthcoming begins no earlier than approximately May 11.
There then follows
the period of time between May 11 and the filing of the unfair labor practice
charge on July 2, which charge was received by the Respondent on July 5. This was a period of just under two
months. It was at the start of this period
that Michael Meaker began to fully perform all his duties as the new
transportation manager at the Phoenix
facility. Both Meaker and Auerbach agree
that during this period Auerbach frequently requested the clock rings from
Meaker, with Auerbach testifying the requests were as frequent as once a
week.
Meaker candidly
testified that he “dropped the ball” in not furnishing Auerbach with the clock
rings. He admits this was simply
inadvertence on his part, caused by being extremely busy trying to learn and
perform a totally new job, which required all his attention. Further, he testified that he did not
appreciate the importance of time in producing the requested documents.
It seems from his
testimony that Auerbach was initially very sympathetic to Meaker’s plight in
learning to perform a new job. Auerbach
testified that Meaker “was very busy, and he was learning the job, so I figured
okay, I won’t push real hard…I wanted to work with him.” However, Auerbach also testified that he did
not seek to get the documents from anyone else, such as Dan Benton, or Dean
Murdoch, from whom he had previously received these records. It is unclear as to why he did not do
so.
In any event,
Auerbach’s sympathetic attitude soon changed, and he filed the unfair labor
charge at issue. Thereafter, his actions
appear to me to be rather strange. When
Beverly Burge received a copy of the charge, she called Auerbach on July 11 in
an attempt to determine what records were specifically at issue, as the charge
was worded generally. In that initial conversation,
Auerbach told Burge that he did not know, as he was without his notes. She pursued the matter, and on July 19 again
called Auerbach to question him about what records the Union
was complaining had not been furnished. According to the testimony of Burge, which I
credit for the reasons stated above, when she asked him what documents were
involved in the charge, other than the Form 7468A, he responded, “I’m not going
to tell you. I won’t tell you until I’ve
told my full story to the Board.”
Further, it is undisputed that Auerbach never informed the Respondent
that the charge involved the failure to furnish the casual clock rings. It was not until August 21 that Burge learned
from Region 28 of the Board, not the Union, of
the specifics of the charge. Two days
later, on August 23, the Respondent supplied the Union
with the requested clock rings.
Paragraphs 6(d) and
6(g) of the complaint allege that the Respondent’s failure to furnish the Union with the clock rings ended on about August 23,
2007, which, of course, is two days after the Region informed Burge of the
specifics of the charge.
However, it is the Respondent’s position that the failure of its Phoenix plant managers to furnish the clock rings to the Union effectively ended on July 11, when Burge first attempted
to find out from Auerbach what document’s he was requesting. As the Union was essentially uncooperative
after that time, the Respondent takes the position that its managers were not
responsible for any further delay in delivering the requested documents to the Union. I agree.
According to Burge,
she was “dumbfounded” by Auerbach’s response to her question as to what
documents were encompassed by the charge.
Certainly his response was rather surprising, and seems to clearly
suggest that Auerbach was much more interested in having the Board find that
the Respondent had committed an unfair labor practice, rather than in obtaining
the clock rings as soon as possible. I
would characterize Auerbach’s attitude as “playing gotcha” with the Postal
Service. He was simply not going to
cooperate with the Respondent once the charge was filed, even if that meant, as
it did, that the Union would have to wait even longer to receive the clock
rings.
It is clear to me
from the credible testimony of both Burge and Benton that they were diligently
trying to determine the specifics of the unfair labor practice charge in order
to furnish the Union with whatever relevant information the Union
was entitled to receive. In fact, that
is exactly what they did, two days after learning that the clock rings constituted
the items not furnished, in addition to the Form 7468A. The Union obstructed
this effort through Auerbach’s refusal to furnish the specifics of the
charge. I believe that under these circumstances,
the Union had a duty to cooperate with the
Respondent, which it failed to fulfill.
As the Union failed
to cooperate with the Respondent when first requested to do so by Burge on July
11, and continued to so refuse, I conclude that such a lack of cooperation
serves to toll the period of the Respondent’s failure to furnish the Union with the requested clock rings. Accordingly, I am of the view that the total
period during which the Respondent failed to furnish the Union with the clock
rings was from on or about May 11 to July 11, an approximately two month
period.
I will now turn my
attention to that two month period to determine whether, under the totality of
the circumstances, the Postal Service had failed to put forth a good faith
effort to respond to the Union’s request for
the clock rings as promptly as circumstances allowed. West Penn Power Co., supra; The Earthgrains Co., supra. For the following reasons, I conclude that
the Respondent did not fail to do so.
It is important to
put the request for the clock rings in perspective. Auerbach testified that he first requested
the weekly clock rings on December 11, 2006, and that he promptly received them
and continued to do so through May 11, 2007.
Therefore, it is undisputed that he received the documents promptly and
on a regular basis every few weeks for that five month period.
However, what changed in the department after that period was the replacement
of Keith Tucker with Michael Meaker as the transportation manager.
Meaker was new to
the Respondent’s transportation operation.
Previously all his experience at the Postal Service had been in the
distribution operation. His first day in
his new position was April 30, followed by two weeks of training with
Tucker. Initially he was very busy
learning his new job. Auerbach
recognized the situation and seemed to sympathize with Meaker. Auerbach testified that he knew Meaker “was
very busy, and he was learning the job.”
Further, Auerbach “figured okay, I won’t push real hard. I understand [Meaker is] learning.” On cross-examination, Auerbach even acknowledged
that as being new to the transportation manager position, Meaker needed some
additional time to “transition.”
There is no
question that Meaker did not intentionally fail to furnish the clock rings to
the Union.
He credibly and candidly admitted that he “dropped the ball” in not
acting more expeditiously to furnish the Union
with these documents. Meaker simply
failed to appreciate the time element involved in responding to Auerbach’s
request for the records. In his past
positions with the Postal Service, his dealings with the Respondent’s unions
had apparently not involved production of requested documents within any
specific period of time. Meaker credibly
testified that in the past he had “never played a time game with the Union.” Further,
Meaker testified that despite being very busy learning his new job, he did
furnish Auerbach with certain requested documents during this period of time,
other than the clock rings. (R. Exh.
1.) This testimony from Meaker is
unrebutted.
While Meaker should
have acted expeditiously to furnish the clock rings, and in not doing so
“dropped the ball,” it seems odd that Auerbach did not take his request for the
records to another manager, in particular Dean Murdoch. For many months prior to Meaker’s assumption
of the transportatio
