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materials, contact the Law Department Field Office that serves your office or facility. See the Law Department
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This publication is intended only for internal training purposes and as a general reference to be used in conjunction with
training sessions conducted by the Law Department. It is not equivalent to an official handbook, manual, or policy statement,
and may contain representations that are subject to interpretation and potential change in the law. All examples are
intended as teaching exercises and not as representations of actual Postal Service events or practices.
LAW DEPARTMENT
uspslaw
Training for
Supervisors
Duty to
Provide
Information
to the Union
in Grievance
Matters
October 2002 Prepared by the Law Department
United States Postal Service
Visit the Law Department Web site at blue/uspslaw
for course and reference materials, directory listings,
publications, and more.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
10/2002
CONTENTS
A. General principles ................................ A - 1
• Sources of obligation ..................................... A - 1
• What information must be provided ........................... A - 1
• Requirements ........................................... A - 1
• Request ............................................... A - 2
• Relevant information ...................................... A - 3
• Continuing nature of duty .................................. A - 4
• Time for complying ....................................... A - 5
B. Information that is presumed relevant ................... B - 1
• Presumption of relevance .................................. B - 1
• Overcoming the presumption ............................... B - 1
• When the relevance is questionable, question .................... B - 2
C. Certain information is not presumed relevant .............. C - 1
• Matters excluded from grievance process ....................... C - 1
• Employees not represented by requesting union .................. C - 2
• Postal hiring practices ..................................... C - 2
• Moot grievance .......................................... C - 2
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
CONTENTS – continued
ii
10/2002
D. Privilege and confidentiality concerns ................... D - 1
• Exercise caution ......................................... D - 1
• Privileged information ..................................... D - 1
• Confidential information ................................... D - 2
• Accommodating confidentiality concerns and information needs ...... D - 3
E. The magnitude and cost of information requests ............ E - 1
• Both parties' duty ......................................... E - 1
• Limits on fishing expedition ................................. E - 1
• Limits on costs to USPS .................................... E - 2
• Nonlocal requests ........................................ E - 3
F. Practical advice .................................. F - 1
G. Checklist ......................................G - 1
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
A - 1
10/2002
A. General
principles
Sources of obligation
Sources of principles:
# National Labor Relations Act
# Collective bargaining agreement
What information must be provided
Management must provide information to
a requesting union when required by:
3 the collective bargaining agreement
("contract")
3 or the National Labor Relations Act
("NLRA")
+ Although the contract and the NLRA
largely overlap, one sometimes does
impose obligations upon
management that the other does not.
Requirements
3 Request
3 Potentially relevant information
3 Continuing nature of duty to respond
3 Time for complying with request
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
A - 2
10/2002
A. General
principles
(cont’d)
Request
# A request must be made.
C Under the NLRA, no duty to provide a
union information arises until a request
or a demand has been made.
CAVEAT: Even prior to a request,
management has the duty to develop and
disclose relevant facts.
# Once a request is made, both union
and management . . .
. . . must develop "all necessary
facts, including the exchange of
copies of all relevant papers or
documents in accordance with
Article 31."
– Article 15.2.Step 2(d) of major
National Agreements
+ A union may request
information . . .
# to investigate an existing grievance
and . . .
# to investigate a matter in order to
determine whether or not to bring a
grievance.
+ The NLRB’s definition of information
necessary to process grievances is
much broader than the definition
under the collective bargaining
agreement.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
A - 3
10/2002
A. General
principles
(cont’d)
Relevant information
Management must almost always provide
a union with . . .
# requested information . . .
# that is potentially relevant in the
investigation of . . .
C a grievance . . .
C or a possible grievance.
+ What is relevant:
A document is relevant when it
reasonably . . .
# could contain useful
information . . .
# or could lead to useful information.
A supervisor’s disagreement as to a
document’s relevance does not
necessarily make the document irrelevant
to the union, nor provide a valid reason
not to disclose it. The union needs to
show that the document is possibly
relevant to its pending or potential
grievance.
When an information request includes a
demand for both relevant and
irrelevant information:
3 the whole request cannot be denied;
3 management must provide the
information that is relevant.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
A - 4
10/2002
A. General
principles
(cont’d)
Relevant information (cont’d)
+ As examined below in Part D,
confidentiality concerns and claims of
privilege may affect how or even
whether relevant information is
disclosed.
Continuing nature of duty
Duty to respond to information requests is
continuing.
Management still has duty to respond to
information requests at further stages of
grievance process (Step 3, arbitration).
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
A - 5
10/2002
A. General
principles
(cont’d)
Time for complying
Timeliness: Management has an
obligation to respond to an information
request in a timely manner.
+ What is timely?
# No concrete guidelines:
3 Depends on situation and
reason
3 Delay of a few weeks may
violate NLRA.
# Apply a rule of reason to difficult
requests.
3 Examples: Archived information,
voluminous information,
information requiring the aid of
individuals on vacation, etc.
+ Unnecessary delay in completing
an information request will result in
the filing of an unfair labor practice
charge with the National Labor
Relations Board.
# Therefore, all requests must be
promptly answered, and in all cases
must be answered within 21 days.
# If a longer period of time is needed,
a letter should be sent to the
requesting party explaining the
reasons for the delay.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
B - 1
10/2002
B. Information
that is
presumed
relevant
Presumption of relevance
Certain information is presumed to be
relevant. This means:
+ Unless management has a good
reason for not disclosing it, it must
be provided to the union upon
request.
Presumed to be relevant information:
C pertaining to the wages, hours, and
working conditions . . .
C of individuals represented . . .
C by the requesting union.
Overcoming the presumption
# The presumption of relevance can be
defeated.
# The burden is upon management to
show:
C that the information requested, . . .
C even though it concerns individuals
represented by the union, . . .
C is in fact irrelevant.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
B - 2
10/2002
B. Information
that is
presumed
relevant (cont’d)
When the relevance is
questionable, question
When the relevance of requested
information is not obvious or apparent,
it is proper, wise, and safe to:
3 first ask the union, in writing, to
explain the relevance of the
information sought
When the request is unclear:
3 ask the union, in writing, for
clarification as to the nature of its
request;
3 do not deny the request merely
because the relevance of the
information requested is unclear.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
C - 1
10/2002
C. Certain
information is
not presumed
relevant
Certain information is generally
presumed to be not relevant
# Information about matters which are
not grievable because they are
excluded from the grievance
procedure
# Information about employees not
represented by the requesting union
CAVEAT: In some matters, e.g., a
jurisdictional dispute between
unions concerning work
assignments, or claims of more
favorable discipline of a
supervisor, this information may
be clearly relevant.
# Information about postal hiring
practices
# Information relating to a grievance
matter that has become moot
Matters excluded from grievance
process
# Information about matters . . .
C that are not grievable . . .
C because those matters are excluded
from the grievance procedure (e.g.,
probationary employees).
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
C - 2
10/2002
C. Certain
information is
not presumed
relevant (cont’d)
Employees not represented by
requesting union
# Union carries the burden to show the
information and documents are
relevant; only if it meets that burden
is there an obligation to disclose.
Postal hiring practices
# Information about postal hiring
practices
+ unless . . .
3 the union indicates that it is
investigating . . .
3 and the requested information is
relevant in determining . . .
3 whether there is EEO-type
discrimination operating in those
matters.
Moot grievance
# Information relating to a grievance
matter that has become moot.
Moot = no longer remains an issue
that can be remedied in the
grievance procedure
After a grievance matter has become
moot, there is no duty to produce
information about that grievance.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
C - 3
10/2002
C. Certain
information is
not presumed
relevant (cont’d)
C. Certain
information is
not presumed
relevant (cont’d)
Moot grievance (cont’d)
3 Example: If a discipline grievance is
settled, a later request going to the
basis for the discipline need not be
honored, due to mootness.
CAVEAT: If the request is relevant when
made, but later becomes moot, delay in
providing the information may
nonetheless violate the NLRA.
+ Keep in mind:
# What may appear to be a clearly
winning procedural defense (e.g.,
timeliness) or a winning defense on
the merits (e.g., the contract clearly
does not say what the union
contends) will not render a matter
irrelevant. The union has the right to
make its full case, and to conduct a
relevant investigation in order to do
so.
# There may be rare occasions when
the very burdensomeness of a request
could justify its refusal. That
determination should be made with
the approval of Labor Relations.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
D - 1
10/2002
D. Privilege
and
confidentiality
concerns
Exercise caution
Certain information is privileged and/or
confidential and may not be disclosed.
+ If you are unsure whether certain
information is privileged or confiden-
tial, or whether circumstances require
disclosure, contact Labor Relations.
+ The Law Department is available to
consult with Labor Relations and/or
postal supervisors as complex legal
questions arise.
Privileged information
Certain information is privileged and must
not be disclosed.
Examples of privileged information:
# the identity of confidential informants
# internal management communica-
tions about the strengths and weak-
nesses of management's grievance
and arbitration positions
# documents covered by the attorney-
client privilege
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
D - 2
10/2002
D. Privilege
and
confidentiality
concerns (cont’d)
Confidential information
Certain information is confidential and
may not be subject to disclosure.
Examples of confidential information:
# Social security numbers
# Medical and psychological records
# IQ tests
+ What to do when the union requests
confidential information:
3 Don't flatly refuse to provide it. A
flat refusal to provide even
confidential information will be
considered a violation of the
NLRA.
3 Instead of denying it automati-
cally –
C identify the confidential infor-
mation and . . .
C invite the union, in writing, to
explore ways with you to . . .
C produce the information that
will minimize or avoid the confi-
dentiality problem . . .
C while meeting the union's le-
gitimate needs.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
D - 3
10/2002
D. Privilege
and
confidentiality
concerns (cont’d)
Accommodating confidentiality concerns
and information needs
Some examples:
# Seeking the consent of the individual
to whom the confidential matters per-
tain for their release
# Sanitizing the diagnosis of a medical
condition (e.g., cancer or AIDS) from
an OWCP form when all the union
needs to know are the employee's
work restrictions
# Releasing information to a medical
professional retained by the union
who can perform an independent re-
view for the union (perhaps determin-
ing that a medical diagnosis does or
does not support certain work restric-
tions) while yet being ethically bound
not to release the medical diagnosis
itself
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
E - 1
10/2002
E. The
magnitude
and cost of
information
requests
Both parties' duty
It's the duty of the union, as well as
management:
# Under the NLRA, a union has the
same obligation as management to
provide relevant information upon
request.
Limits on fishing expedition
# Management may deny an
information request that constitutes a
"fishing expedition."
# Union must have some reasonable
basis for suspecting the information
is relevant.
# Use caution in denying a request on
this basis:
C Clear cases of "fishing expedition"
are rare.
C Consult Labor Relations before
denying the request.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
E - 2
10/2002
E. The
magnitude
and cost of
information
requests (cont’d)
Limits on costs to USPS
The Postal Service may charge for
reasonable expenses incurred in providing
requested information to a union.
3 Allowed by Article 31.3 of major
National Agreements
+ In determining what to charge, follow
the Administrative Support Manual
(ASM) Section 352.7 regarding
Freedom of Information Requests.
# The ASM provides that with respect to
a given request:
C The first two hours of search time
and the first 100 pages of
photocopying are free.
C For additional time or copies,
specified charges can be imposed.
# Should a sizable union request for
information be made, review the
question of charging for it with Labor
Relations.
+ For a voluminous request, a good
practice is to provide the union a
detailed estimate of the costs to be
incurred for the information, with an
inquiry to the union as to whether it
still desires the information. The
supervisor at this time can also
request that the union provide
payment if it still wants the
information.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
E - 3
10/2002
E. The
magnitude
and cost of
information
requests (cont’d)
Nonlocal requests
Refer them to national level.
# Under Article 31.3 of the major
agreements, when a union requests
information that is not purely local to
the installation where the request is
made, that part which is not local
"shall be directed by the National
President of the Union to the Vice
President for Human Resources."
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
F - 1
10/2002
F. Practical
advice
+ Keep in mind:
# If you have any questions or
reservations, seek the advice of
Labor Relations and/or the Law
Department.
# Even if you think a request is
meritless, do not ignore it!
# Treat all requests in a timely
manner.
+ Keep a log of all requests and
responses. To better track whether
and when information is provided,
designate someone to log in all
requests, noting when the information
has been provided or, if not, the
reason for the denial.
+ This training material is only a guide.
You may well face information
requests that are difficult to
categorize or go outside of the
situations covered here. Information
requests regarding confidential
information can be especially difficult
to handle. In those cases, seek the
advice of Labor Relations
professionals before responding to
the requests.
+ Among the most troublesome cases
involving the Postal Service that are
brought before the National Labor
Relations Board, the agency that
enforces the NLRA, are those arising
from information matters. In many
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
F - 2
10/2002
F. Practical
advice (cont’d)
cases, relevant information requested
by a union either was not provided or
was not provided in a timely manner.
When requests are handled in this
way, these are difficult cases to
defend. Even if you think a request is
improper, do not ignore it.
+ Because of the volume of requests,
the local relationship with a union, or
past disputes about the time or even
the fact of the transmission of
information given in response, it is a
good idea to maintain a log of a
union's requests and of your
responses. It is also advisable to
have the union's representatives sign
receipts when information has been
provided.
+ Finally, when in doubt, call Labor
Relations. The Law Department is
available to consult with Labor
Relations and/or postal supervisors
as complex legal questions arise.
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
G - 1
10/2002
G. Checklist
9 Has the union made a request for
information?
9 Is the information potentially
relevant to the investigation of a
grievance or a possible grievance?
9 May any document requested
reasonably contain useful
information or information that
could lead to useful information?
9 Does the information requested
pertain to the wages, hours, or
working conditions of
individuals represented by the
union?
9 If the request is questionable, have
I asked the union in writing to
explain the relevance of the
information sought?
9 If the request is unclear, have I
asked the union in writing for
clarification of the nature of the
request?
9 Is the information requested
confidential?
9 If so, have I written to the union,
inviting it to discuss ways to
produce the information which may
avoid the confidentiality
problem, while meeting the union's
legitimate needs?
9 Is the information privileged?
Training for Supervisors
Duty to Provide Information to the Union in Grievance Matters
G - 2
10/2002
G. Checklist
(cont’d)
9 If the information is confidential, priv-
ileged, ambiguous, or of question-
able relevance, or the request is so
broad as to appear to be a fishing
expedition, have I conferred with
Labor Relations?
9 If the information sought is not
purely local, have I referred this to
the national level?
9 If a demand for both relevant and
irrelevant information has been
made, have I provided the relevant
information?
9 If the request is voluminous, have I
provided the union with a detailed
estimate of the costs and asked the
union if it still wants the information?
9 Have I provided the information in a
timely manner?
9 Have I kept a log of the union's
requests and our responses?
9 Have I obtained a signed receipt
for provided information from the
union representative?
