On Application for Enforcement of an Order of the National Labor Relations Board (4-CA-18673(P)) (4-CA-18745(P)).
Before: Stapleton, Hutchinson and Roth, Circuit Judges.
STAPLETON, Circuit Judge:
Before us is a petition from the National Labor Relations Board ("the Board") for enforcement of an order, 308 N.L.R.B. No. 189, 1992 WL 296020 (Sept. 30, 1992). The Board ruled that Respondent United States Postal Service had violated Subsections 8(a)(5) and (1) of the National Labor Relations Act ("the NLRA"), 29 U.S.C. § 158(a)(5) and (1), in two ways: first, by refusing to bargain with its employees' collective bargaining agent, Intervenor American Postal Workers Union, AFL-CIO ("APWU"), over the elimination of two new hiring procedures in the Postal Service's Philadelphia Division which the APWU alleged to be unlawfully discriminatory; and, second, by refusing to supply information about these hiring procedures to the APWU upon the APWU's request. The Board ordered the Postal Service to bargain with the APWU over the elimination of the procedures and to provide the APWU with a portion of the information it had requested.
We conclude that the APWU's basis for alleging that one of the Philadelphia Division's new hiring procedures was unlawfully discriminatory was insufficient to trigger an obligation on the part of the Postal Service to provide information or to bargain concerning that procedure. Regarding the other new hiring procedure, we find substantial evidence to support the Board's Conclusion that the Postal Service committed unfair labor practices by refusing to bargain and by failing to supply relevant information at an appropriate time. Nevertheless, because the Board found, as a fact, that the second new hiring practice held no potential for unlawful discrimination, we decline to enforce its order to bargain over that practice in the absence of some explanation as to how the Board believes such bargaining would serve the purposes of the NLRA. I.
The Postal Service is an independent establishment in the executive branch of the United States government with the authority to appoint its own employees. 39 U.S.C. §§ 201, 1001(b). The APWU is the exclusive bargaining representative for all postal clerks, motor vehicle employees, special delivery messengers, and maintenance employees in the Postal Service. At all times relevant to this enforcement action, the APWU and the Postal Service were parties to a nationwide collective bargaining agreement ("the National Agreement"), which was effective from July 21, 1987, to November 20, 1990.*fn1 The National Agreement also covered city letter carriers, who were represented by the National Association of Letter Carriers, AFL-CIO.
In June of 1989, the Postal Service's Philadelphia Division Manager, Charles James, presented an "Affirmative Action Report" to the Postal Service's Board of Governors. The Philadelphia Daily News published an account of the report which stated that the Philadelphia post office was trying to increase the number of Hispanics, Asians, and white women in its work force. It stated that James had told the Board of Governors that affirmative action hiring had resulted in "an excellent representation" of black employees, but not of employees belonging to the other three groups. "'Raising the awareness of good postal jobs among Hispanics and white females so that they will apply for our examinations' will be a major focus of the local postal service this year," the news report quoted James as saying. The news report continued:
The postal service will seek to get articles about postal employment into Hispanic newspapers and to place postal employment displays in shopping malls and child care centers, James said.
"We are exploring how we can obtain a mailing list of existing working women who make less than $15,000 yearly," he said, to inform them of Postal Service examinations.
"The policy of the Postal Service," James explained, "is to hire a work force that is representative of the community in which it is located."
James said he is concerned that there is no Hispanic female and a slight decrease in the number of black females in middle-management ranks. He said he plans to begin a "mentoring program" in Philadelphia . . . to encourage minorities and women to move to higher assignments.
Rose DeWolf, Post Office Hopes Hiring Plan Will Deliver, Philadelphia Daily News, June 12, 1989, at 30.
After reading the newspaper article, Gregory Bell, the General President of the APWU's Philadelphia area local ("the Local"), wrote a letter to James, dated June 22, 1989, accusing him of "an attempt to cause racial tension within the work force, and between the work force and the public" by implying that too many black postal employees worked in the Philadelphia Division. Bell requested information about the statistics and Postal Service plans reported in the newspaper article and demographic information about the Philadelphia Division's employees. Bell sent copies of his letter to ten members of Congress, the two United States Senators from Pennsylvania, and four postal officials, including the Postmaster General.
In a letter dated July 18, 1989, D.J. Bugey, the Human Resources Director of the Philadelphia Division, responded to Bell's June 22 letter. Bugey stated that the Daily News had quoted James accurately "with respect to Postal Service Affirmative Action planning." Bugey continued: "It is our policy to hire a workforce that is representative of the community in which our installations are located. In pursuit of that objective, we review and compare our workforce profile with that of the Civilian Labor Force provided from Postal Service Headquarters each year." Bugey provided Bell with data from the Department of Labor on the Philadelphia area labor force based on the 1980 census as well as more recent data from the Commonwealth of Pennsylvania. Bugey also sent Bell a demographic analysis of postal employees in the Philadelphia Division. The data showed a smaller percentage of Hispanics and non-minority women in the Philadelphia area's postal work force than in its general work force.
On August 21, 1989, James, Bell, and other APWU representatives attended a meeting with Pennsylvania Senator Arlen Specter. After the meeting, James issued a press release and sent a letter to postal employees in Philadelphia to clarify his prior comments to the press and to the Board of Governors. James included copies of his press release and his presentation to the Board of Governors with his letter to postal employees. In the letter and press release, James stated that the Postal Service was not "attempting to reduce the number of minority employees in the Division," but was "simply trying to make underrepresented groups aware of postal employment opportunities so that they take the postal employment test." He stated that presentations to the Board of Governors on affirmative action programs were expected of local managers by the Board. He also stated that the Equal Employment Opportunity Commission requires a yearly report showing any work force underrepresentation and plans to correct it.
The APWU expressed no further dissatisfaction with the Postal Service's hiring policies until approximately five months later, in January of 1990, when the Philadelphia Division implemented the two new hiring practices which are at issue. The first new practice was the mailing of solicitations to women living in the Philadelphia city and in the Philadelphia suburbs encouraging them to apply for clerk and carrier positions at the Philadelphia Division. For this purpose, the Philadelphia Division purchased two mailing lists. From Donnelly Marketing, an Illinois marketing firm, the Philadelphia Division purchased a list of 42,702 working women residing in the "191" and "190" zip codes earning $15,000 or less annually. Philadelphia city zip codes begin with the numerals 191; Philadelphia suburban zip codes begin with the numerals 190. From the American Student List Co., a New York firm, the Philadelphia Division purchased a list of 5,222 women residing in the 191 and 190 zip codes who were graduated from high school in 1989. The Human Resources staff of the Philadelphia Division sent solicitations to every woman on the mailing lists. Lacking an automated mailing system, the Human Resources staff placed the 47,924 solicitations in envelopes and sealed and labeled the envelopes manually. The Human Resources staff performed this task over the course of several weeks beginning in January, 1990, and finishing in February, 1990. All the solicitations mailed were identical except the Human Resources Staff changed the date on the cover letters several times so that the targeted women would not receive correspondence which appeared to be outdated.
The Philadelphia Division's second new hiring practice was the use of a computerized system, dubbed OPTEX,*fn2 for randomly selecting applicants to take the examination which establishes eligibility for employment with the Postal Service. OPTEX was part of an effort by the Postal Service to streamline its recruitment efforts. Traditionally, all applicants for postal positions with the Philadelphia Division had been tested, and all applicants who achieved satisfactory examination scores had been placed on an employment waiting list. OPTEX departed from past practices by randomly selecting applicants to take the test and by testing the selected applicants only as needed, thereby reducing the waiting list of eligible applicants. The objectives of OPTEX were to reduce testing costs and to minimize unwarranted optimism among applicants about their chances of being hired. The Postal Service began to experiment with OPTEX in 1986, trying it at 23 major postal installations. By 1989 the Postal Service had granted the postmasters at the 50 largest post offices (including Philadelphia) the discretion to try OPTEX.
About the time Bell learned of the implementation of OPTEX by the Philadelphia Division, Bell learned that a number of people residing in urban Philadelphia told the Local that they knew people residing in the Philadelphia suburbs who had received notices inviting them to apply for jobs with the Philadelphia Division. The people living in urban Philadelphia complained to the Local that they had not received invitations themselves. Bell did not provide to the Postal Service or to the administrative law Judge at the unfair labor practice hearing information regarding the size or demographic composition of the group of complaining urban residents or of the group of suburban invitees they had mentioned.
Upon receiving these complaints, Bell sent James a series of letters, dated February 1, 27, 28 and March 19, 1990, in which he accused James of having adopted the new hiring practices in an attempt to reduce the postal employment opportunities of blacks and other minority groups. Bell demanded that the new hiring practices be rescinded and that the Postal Service supply him with extensive information regarding their implementation and operation. On February 7 and 9, Bell sent similar letters to Senator Specter, the President and Vice-President of the APWU, and other Postal Service officials. On February 9, Bell filed a grievance under the Grievance Arbitration Procedure of Article 15 of the National Agreement, and, on February 23 and March 20, Bell filed with the NLRB the unfair labor practice charges which are the subject of this appeal. In letters dated March 9, April 24, and October 2, 1990, the APWU informed the Postal Service that it adopted as its own Bell's information and bargaining requests and also the unfair labor practice charges Bell had filed on behalf of the Local. The Board regarded the APWU's October 2, 1990, letter as the APWU's demand for bargaining over elimination of the new hiring practices.*fn3
Taken together, Bell's letters to James set forth his theory of how the new procedures might discriminate against minorities. Two elements of Bell's theory are relevant to the instant Board enforcement application. First, Bell expressed the belief that residents of the Philadelphia suburbs were receiving preferential notification of job opportunities with the Philadelphia post office at the expense of the Philadelphia urban community where more minorities reside. Second, concerning OPTEX, Bell insisted that postal regulations enabled any applicant on the eligibility roster for one postal facility to transfer to an eligibility roster at another postal facility. That being the case, Bell continued, applicants for employment at suburban facilities, who were not subject to random selection (because OPTEX was not used in the suburbs), could establish their eligibility in the suburbs and later transfer to the Philadelphia roster, leap-frogging the many, largely minority, applicants who would apply in Philadelphia but would be screened from taking the eligibility examination by OPTEX.
In responses to Bell and to the APWU, the Postal Service refused to rescind its new hiring practices or to supply much of the requested information. It did offer general explanations of its hiring goals and procedures, and assurances that it was implementing its new procedures fairly. On the subject of the solicitation of potential job applicants, John Marshall, Human Resources ...