NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,448, UNITED STATES POSTAL SERVICE and PHILADELPHIA PA AREA LOCAL, AMERICAN POSTAL WORKERS UNION aw AMERICAN POSTAL WORKERS UNION, AFL-CIO., (Aug. 26, 1994), National Labor Relations Board, (Aug 26, 1994)

UNITED STATES POSTAL SERVICE and PHILADELPHIA PA AREA LOCAL, AMERICAN POSTAL WORKERS UNION aw AMERICAN POSTAL WORKERS UNION, AFL-CIO.

314 NLRB No 152.Case Nos. 4-CA-18673-P and -18745-P. August 26, 1994

Before Gould, Stephens and Devaney.

Remedial Orders--Necessity for--Bargaining and Providing Data.--Despite a decision of the Third Circuit Court of Appeals requiring the NLRB to articulate the rationale for the Board’s imposition of an order mandating that an employer bargain over and provide information to a union concerning a new hiring process, the NLRB declined on remand to enter such an order. The Board found that it would not effectuate the purposes of the Act to enter an order of that nature because some issues relating to the union’s information requests were still pending before the NLRB. Section 10(c).

Back reference: ¶5320.245.

Supplemental decision following (CA-3 1994) 127 LC ¶11,057.

From Text of Board’s Decision

On September 30, 1992, the National Labor Relations Board issued its Decision and Order in the above-captioned case. [1] The Board found that the Respondent had violated Section 8(a)(5) and (1) of the Act by failing to bargain on request with the Intervenor, American Postal Workers Union, AFL-CIO, over the elimination of actual or suspected racial discrimination in the Respondent’s hiring practices, and by failing and refusing to provide information requested by the Intervenor Union that was relevant to its concerns over possible hiring discrimination.

On March 14, 1994, the United States Court of Appeals for the Third Circuit issued an order enforcing the Board’s Order in part and denying enforcement in part. [2] The court agreed with the Board that the Respondent had unlawfully failed to bargain and to provide requested information concerning the possible discriminatory impact of a new selection process known as OPTEX. [3] The court found that the Respondent had not acted unlawfully in failing to bargain or to provide information regarding a program of mail solicitation of job applicants, and it accordingly denied enforcement of the Board’s Order concerning those matters. Because it found that the General Counsel had failed to show that the mail solicitation program was a mandatory subject for bargaining, and because it found no relevant connection between that program and OPTEX, the court found no basis on which it could enforce the Board’s Order insofar as it required bargaining over the mail solicitation program or the production of related information. [4]

The court also denied enforcement of the affirmative portions of the Order concerning OPTEX, but for different reasons. The court found that, although the Respondent should have bargained over OPTEX on the basis of the information originally adduced by the Union, subsequent information had established that the Union’s theory of how OPTEX might lead to hiring discrimination was unfounded. “Thus,” according to the court, “the Board ordered bargaining and the production of information when it was apparently satisfied that OPTEX does not discriminate in the only way the union has ever plausibly suggested it might.” [5] The court stressed that it was not prepared to find that the Board’s affirmative remedies could not be enforced. However, on the record before it, the court was “reluctant to enforce such an order in the absence of an explanation of how the Board believes enforcement would further the purposes of the Act.” [6]

The court therefore declined to enforce the Board’s Order pertaining to OPTEX, but stated that, if the Board concluded that the purposes of the Act would be served by ordering the Respondent to bargain and to provide information concerning OPTEX, the Board should articulate its rationale, enter a new Order limited in scope to OPTEX, and petition anew for enforcement. If, in the alternative, the Board found that it would serve the purposes of the Act simply to enforce the portion of its Order requiring the Respondent to cease and desist from its unlawful practices and to post the appropriate notice, the court stated that the Board might renew its petition for enforcement, and that portion of the Order would be enforced. [7]

On May 18, 1994, the Board advised the parties that they might file statements of position concerning the issues raised in the court’s decision. The General Counsel, the Respondent, and the Unions filed statements of position.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board accepts the court’s decision as the law of the case. In view of the court’s decision, the Board finds that it would not effectuate the purpose of the Act to order the Respondent to bargain with the Union or to provide information concerning OPTEX. As we find that all of the Union’s information requests were related either to OPTEX or to the Respondent’s mail solicitation campaign, we shall not order the Respondent to comply with any of the Union’s information requests that are still at issue in this case. [8] “Accordingly, we shall issue a revised Order requiring the Respondent only to cease and desist from further violations, to post the appropriate notice, and to inform the Regional Director of the steps it has taken to comply with the revised Order. We shall also issue a new notice to conform with the provisions of the revised Order.