N.L.R.B. v. U.S. Postal Service

Decision Date30 November 1989
Docket NumberNo. 89-8041,89-8041
Parties133 L.R.R.M. (BNA) 2152, 113 Lab.Cas. P 11,683 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Peter D. Winkler, Scott MacDonald, Karen Cook, Washington, D.C., for petitioner.

John C. Oldenburg, U.S. Postal Service, Office of Field Legal Services, Southern Div., Memphis, Tenn., Jesse L. Butler, U.S. Postal Service, Stephen E. Alpern, Washington, D.C., for respondent.

Anthony L. Harrison, Harrison & Harrison, St. McDonough, Ga., for interested party Nat. P.O. Mail Handlers, Watchmen, et al.

Application for Enforcement of an Order of the National Labor Relations Board (Georgia Case).

Before TJOFLAT, Chief Judge, HATCHETT, Circuit Judge, and MORGAN, Senior Circuit Judge.

HATCHETT, Circuit Judge:

The United States Postal Service appeals the National Labor Relations Board's order requiring it to furnish to postal employees' unions, whose members are subject to disciplinary actions, records disclosing disciplinary actions taken against supervisors for engaging in conduct similar to that charged against the union employees. We enforce the Board's order.

FACTS

Following an investigation into gambling activities at the Atlanta, Georgia Post Office in the summer of 1986, Post Office authorities (Post Office) disciplined and discharged some of its bargaining unit employees. Amalgamated Local 310 ("Local 310"), an affiliate of the National Post Office Mail Handlers, Watchmen, Messengers and Group Lenders of the Laborers' International Union of North America, AFL-CIO ("Mail Handlers"), and the Atlanta Metro Area Local ("Metro"), affiliated with the American Postal Workers Union, AFL-CIO ("APWU") represented the employees. The Unions filed grievances with the National Labor Relations Board ("NLRB") on behalf of the employees. 1 In the course of preparing the grievances, the Unions discovered that some supervisors had been involved in the gambling activities. Consequently, the Unions requested that the Post Office provide them with information regarding the disciplining of supervisors arising out of the investigation into the gambling activities. The APWU, through Metro, requested this information to establish that the disciplinary actions taken against the bargaining unit employees were "harsh, punitive, disparate and not for just cause." The Mail Handlers, through Local 310, asserted that the information was necessary to show that the Post Office had engaged in disparate treatment of unit employees. The Post Office refused to supply the Unions with the requested information.

PROCEDURAL HISTORY

Each union filed charges with the NLRB against the Post Office alleging unfair labor practices. The General Counsel of the NLRB issued an order consolidating the cases and issued a consolidated complaint against the Post Office alleging a violation of section 8(a)(5) and (1) of the National Labor Relations Act ("NLRA"). The Post Office answered and thereafter filed a motion for summary judgment. The General Counsel responded and also moved for summary judgment. On July 19, 1988, the

NLRB granted General Counsel's motion for summary judgment. The NLRB found that the Post Office had violated the NLRA as alleged and issued an order requiring the unconditional release of the requested information.

CONTENTIONS

The Post Office contends that the NLRB erroneously concluded that the requested information is relevant; thus, it was error to grant summary judgment in favor of the General Counsel. The NLRB, on the other hand, contends that the requested information is relevant; thus, summary judgment was appropriate.

ISSUE

We must determine whether information concerning the disciplining of supervisors is relevant to the issue of disparate or otherwise unjust treatment of the bargaining unit employees under the applicable collective bargaining agreement.

DISCUSSION

Section 8(a)(5) of the National Labor Relations Act (29 U.S.C. Sec. 158(a)(5)) makes it an unfair labor practice for an employer to "refuse to bargain collectively with representatives of [its] employees...." In this regard, it is well established that under the NLRA, an employer has a duty "to provide information that is needed by the bargaining representative for the proper performance of its duties." NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967). This obligation "unquestionably extends beyond the period of contract and applies to labor-management relations during the term of the agreement." NLRB v. Acme Industrial Co., 385 U.S. at 436, 87 S.Ct. at 568. Accordingly, an employer's failure to provide relevant information concerning the evaluation or processing of a grievance constitutes a violation of the NLRA. See Acme Industrial; C & P Telephone Co. v. NLRB, 687 F.2d 633, 635-36 (2d Cir.1982). The duty to furnish information turns upon "the circumstances of the particular case." NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153-54, 76 S.Ct. 753, 756, 100 L.Ed. 1027 (1956). The key question in determining whether information must be produced is "one of relevance." Emeryville Research Center, Shell Development Co. v. NLRB, 441 F.2d 880, 883 (9th Cir.1971). Information that pertains to employees in the bargaining unit is presumptively relevant. NLRB v. Rockwell-Standard Corp., 410 F.2d 953 (6th Cir.1969). Conversely, information concerning non-unit employees, including supervisory personnel, does not enjoy a presumption of relevance, and it is incumbent upon the requesting party to prove relevance. NLRB v. Jaggars-Chiles-Stovall, Inc., 639 F.2d 1344, 1347 (5th Cir.), cert. denied 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 100 (1981). In determining the relevance of the requested information, relating to non-unit employees, a liberal discovery-type standard is employed. NLRB v. Acme Industrial Co., 385 U.S. at 437, 87 S.Ct. at 568 (1967). The NLRB need not decide the merits of the underlying dispute for which the information is being sought. NLRB v. Acme Industrial Co., 385 U.S. at 437-39, 87 S.Ct. at 568-69. Rather, the NLRB need only find a "probability that the desired information [is] relevant, and that it would be of use to the union in carrying out its statutory desires and responsibilities." NLRB v. Acme Industrial Co., 385 U.S. at 437, 87 S.Ct. at 568.

In order to sustain a motion for summary judgment, the moving party has the burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in a light most favorable to the nonmoving party. See Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). Since the facts in this case are not in dispute, the NLRB can prevail by demonstrating that it is "entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Thus, if we conclude that, based on the facts, the requested information is relevant, we must affirm the NLRB's decision. Although we are not bound by the NLRB's decision, it is nevertheless "entitled to considerable deference."

NLRB v. International Assoc. of Bridge, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978).

In this case, the Unions argue that information concerning the discipline given supervisors for breaching of the Post Office's regulations prohibiting gambling has some bearing on their grievances alleging harsh, unjust, and disparate treatment of unit employees for violating the same regulations. The Post Office, on the other hand, responds by arguing that the supervisors and unit employees have different responsibilities; therefore, they are not similarly situated for purposes of discipline. Thus, the Post Office asserts that the discipline it imposed upon supervisors for violating the anti-gambling regulation is not relevant to whether the discipline it imposed upon the unit employees was harsh, unjust, or disparate. Moreover, the Post Office argues that even if the information is relevant, the Post Office is not required to disclose such information because of the confidential and privileged nature of the information.

It is undisputed that the restriction on gambling activity applies equally to supervisors and unit employees. 2 The Post Office, however, argues that legitimate reasons exist for imposing different degrees of discipline on supervisors and unit employees for similar conduct. According to the Post Office, because supervisors have increased responsibilities and powers, information concerning supervisory discipline is not comparable to the discipline given the unit employees. Thus, the Post Office asserts, information concerning supervisory discipline is not relevant to the issue of disparate or unjust treatment under the collective bargaining agreement.

First, we conclude, as did the NLRB, that given the nature of the rule involved and its applicability to both groups, the different degrees of responsibility accorded each group does not automatically translate into different standards of discipline in this instance, thereby compelling a finding that the requested information has no bearing on grievances.

Second, we reject the Post Office's assertion that under the holding of Marshall v. Western Grain Co., 838 F.2d 1165 (11th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988), we are required to conclude that the requested information is presumptively not relevant. In Marshall, this court concluded that the plaintiffs 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. Sec. 2000e, et seq. The plaintiffs, in Marshall, showed that the employer had given severance pay to non-minority non-unit employees while refusing to give severance pay to non-minority unit employees, where the collective bargaining...

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