USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 1 of 20
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
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No. 23-11076 Non-Argument Calendar ____________________
UNITED PARCEL SERVICE, INC., Petitioner-Cross Respondent, versus NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross Petitioner.
Petitions for Review of a Decision of the National Labor Relations Board Agency No. 02-CA-275560 ____________________ USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 2 of 20
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Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges. PER CURIAM: United Parcel Service, Inc. (“UPS”), petitions for review of an order of the National Labor Relations Board (“Board”), which found that UPS committed unfair labor practices, in violation of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., by refusing requests for information submitted by the International Brotherhood of Teamsters, Local 804 (“Union”). The Union rep- resents workers at UPS facilities in New York. UPS petitions for review, disputing the Union’s entitlement to the information and maintaining that it satisfied its good-faith duty to bargain. The Board cross-petitions for enforcement of its order. After careful re- view, we grant UPS’s petition in part, remanding for further pro- ceedings as explained below, and we enforce the Board’s order in part. I. Factual Background During its “peak” season each year, running from October 15 to January 15, UPS hires about 10,000 seasonal package helpers at its facilities in Westchester, Long Island, and New York City (ex- cluding Staten Island). The seasonal employees are members of the bargaining unit at those facilities, represented by the Interna- tional Brotherhood of Teamsters, Local 804 (the Union). A national master agreement and a local supplemental agreement comprise the relevant collective bargaining agreement (“CBA”) between the Union and UPS, effective August 2018 to July USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 3 of 20
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2023. Under the master agreement, UPS must supply the Union with a monthly list of new hires, including seasonal employees, “[i]n order to assist the Local Unions in maintaining current and accurate membership records.” The list provides each new hire’s name, address, and Social Security number, among other infor- mation, but not email addresses or phone numbers. UPS compiles this information in an Excel file and forwards it to the Union. By the start of the 2020–21 peak season, following a lawsuit and grievances by seasonal employees, the Union suspected that UPS was not complying with CBA provisions governing seasonal- employee start times and wages. In particular, it believed that UPS was erroneously calculating wages for seasonal employees based on when they delivered their first package, instead of when they reported for and began their work. On January 21, 2021, the Union requested that UPS provide the following information for all seasonal employees hired from October 15, 2020, through January 15, 2021: (1) the employees’ “phone numbers and/or email addresses”; and (2) “[a]ll documents reflecting report times for all seasonal employees, including but not limited to Daily Sign in sheet, security sign in sheets, and daily time sheets.” According to the Union’s letter, it needed this information to “complete its investigation and prepare for any subsequent hear- ing involving [UPS’s] violation of the CBA in regards to” these sea- sonal employees. On February 3, 2021, UPS’s Director of Labor Relations, Warren Pandiscia, emailed the Union’s Director of Operations, USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 4 of 20
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Joshua Pomeranz, stating that UPS did not have daily sign-in sheets, security sign-in sheets, or daily timesheets that reflected sea- sonal employees’ reporting times, and that he was still “working on” the request for phone numbers and email addresses. In the weeks following this email, Pomeranz and Pandiscia discussed the request for contact information by phone, with Pandiscia empha- sizing that the information was not systematically kept by UPS and would need to be manually extracted from individual job applica- tions, which, in UPS’s view, was overly burdensome. Pomeranz maintained that UPS had an obligation to provide the information. During March and April 2021, Pomeranz and Pandiscia ex- changed multiple emails regarding the Union’s request for infor- mation. On March 9, Pomeranz sent a follow-up email to Pandis- cia, asking whether UPS “intend[ed] to respond or provide the re- quested information.” The same day, Pandiscia replied that he be- lieved he had responded. Pomeranz said that he had not received any response. On March 16, Pomeranz re-sent the Union’s January 21 information request. Pandiscia responded by asking what the request was in reference to, and whether it was associated with a grievance. Pomeranz replied that it “relat[ed] to the ongoing wage theft and separate agreements [UPS] makes with seasonal employ- ees.” Then, on April 7, Pomeranz asked for “a time frame or a clear rejection,” and Pandiscia replied that he was working on the infor- mation request, among others, but did “not have direct access to the information” and could not identify a specific date when it would be provided. On April 12, Pandiscia wrote that the requests “were responded to.” Pomeranz replied the same day and denied USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 5 of 20
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receiving any response. UPS ultimately did not produce any docu- ments responsive to the information requests. II. Procedural History On April 8, 2021, the Union filed an unfair labor practice charge against UPS. Following a hearing in early February 2022, an administrative law judge issued a decision finding that UPS vio- lated § 8(a)(5) and (1) of the NLRA by failing to provide the re- quested information. The ALJ found that the contact and report- time information was relevant. And it rejected UPS’s various de- fenses, including that (1) the Union wanted the information for use in arbitrations, rather than a bargaining matter; (2) the requested report-time information did not exist; (3) the Union sought contact information beyond the scope of the information-sharing provi- sions of the CBA; and (4) the contact information was unduly bur- densome to compile. UPS sought review by the Board, which affirmed the ALJ’s decision. The Board affirmed the ALJ’s ruling on the requested re- port-time information for the reasons stated by the ALJ. In partic- ular, the Board noted that, while the “Union set forth three exam- ples of possible sources of those report times,” it made “clear that the sources specified were nonexhaustive by using ‘included, but not limited to’ language.” So in the Board’s view, the Union was not required to modify its request when UPS responded that it did not have report times in any of the three explicitly listed sources, and UPS “was not entitled to limit its search for information in this manner.” The Board further found that UPS’s “perfunctory USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 6 of 20
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response to the Union’s request for the information was not suffi- cient to satisfy its duty under the Act to make a reasonable, good faith effort to respond to the Union’s information request.” Next, the Board rejected UPS’s argument that the request for phone numbers and email addresses was unduly burdensome because it would require manually sorting through approximately 10,000 employment applications. The Board noted that, even if a search for records “would require a substantial expenditure of time and money, the burden of fulfilling the request is not a basis for an outright refusal,” and the employer still has a duty to articulate its concerns to the union and offer to cooperate to reach a mutually acceptable accommodation, including about cost sharing. The Board found that UPS “did not demonstrate that fulfilling the Un- ion’s request would require a substantial expenditure of time and money, and the Respondent made no meaningful effort to bargain for a mutually acceptable accommodation with the Union,” such as estimating the time or cost involved or putting forth “specific alternative suggestions for a possible accommodation.” Accord- ingly, the Board found that UPS “failed to prove that the Union’s request was unduly burdensome or that it made a sufficient effort to reach a mutually acceptable accommodation with the Union.” Finally, the Board rejected in a brief footnote UPS’s argu- ment that it was not required to provide the requested contact in- formation because it went beyond the scope of the information- sharing provisions of the CBA. The Board asserted that “an USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 7 of 20
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employer has a statutory duty to furnish information that goes be- yond the scope of information that the contract requires it to fur- nish.” The Board ordered UPS to provide the Union with the in- formation requested and to “[m]ake a reasonable effort to secure any unavailable information requested . . . and, if that information remains unavailable, explain and document the reasons for its con- tinued unavailability.” UPS petitions this Court for review, and the Board cross-petitions for enforcement. III. Standards of Review We review the Board’s legal conclusions de novo and its fac- tual findings for substantial evidence. Mercedes-Benz U.S. Int’l, Inc. v. Int’l Union, UAW, 838 F.3d 1128, 1134 (11th Cir. 2016); see 29 U.S.C. § 160(e), (f). Substantial evidence is more than a “scintilla,” and is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Cooper/T. Smith, Inc. v. N.L.R.B., 177 F.3d 1259, 1261–62 (11th Cir. 1999) (quotation marks omitted). “So long as the Board has made a plausible inference from the record evidence, we will not overturn its determinations, even if we would have made different findings upon a de novo re- view of the evidence.” Id. at 1261. But “[w]hen the Board miscon- strues or fails to consider important evidence, its conclusions are less likely to rest upon substantial evidence.” Northport Health Servs., Inc. v. N.L.R.B., 961 F.2d 1547, 1550 (11th Cir. 1992). Although our review is deferential, “[w]e will not enforce a Board decision that fails to engage in reasoned decisionmaking.” USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 8 of 20
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Int’l B’hood of Teamsters Local 947 v. N.L.R.B., 66 F.4th 1294, 1304 (11th Cir. 2023). “The Board’s decision must be logical and ra- tional, and our task is to examine carefully both the Board’s find- ings and its reasoning, to assure that the Board has considered the factors which are relevant to its decision.” Ridgewood Health Care Ctr., Inc. v. N.L.R.B., 8 F.4th 1263, 1275 (11th Cir. 2021) (quotation marks omitted). IV. Discussion An employer violates the NLRA if it “refuse[s] to bargain collectively with representatives of [its] employees,” 29 U.S.C. § 158(a)(5), or “interfere[s] with . . . employees in the exercise of the rights guaranteed” by the NLRA, id. § 158(a)(1). In this regard, it is well established that an employer has a duty under the NLRA “to provide information that is needed by the bargaining repre- sentative for the proper performance of its duties.” N.L.R.B. v. Acme Indus. Co., 385 U.S. 432, 435–36 (1967). In general, “[t]he key question in determining whether in- formation must be produced is one of relevance.” N.L.R.B. v. U.S. Postal Serv., 888 F.2d 1568, 1570 (11th Cir. 1989). Information per- taining to bargaining unit employees is “presumptively relevant.” Id. In determining the relevance of the requested information, the Board “need not decide the merits of the underlying dispute for which the information is being sought.” Id. It is enough if the Board finds 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.” Id. (quotation marks omitted). USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 9 of 20
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According to Board precedent, an employer may be excused from complying with a request for information if it “effectively re- buts the presumption of relevance” or “otherwise shows that it has a valid reason for not providing the requested information.” United Parcel Serv. of Am., Inc. (UPS), 362 N.L.R.B. 160, 162 (2015). For in- stance, an employer may have a legitimate claim that a request for information is “unduly burdensome or overbroad.” Id. But “the burden in time and money necessary to fulfill a request for infor- mation is not a basis for refusing the request.” Pratt & Lambert, Inc., 319 N.L.R.B. 529, 532 (1995). Rather, the employer must “articu- late [its] concerns to the union and make a timely offer to cooperate with the union to reach a mutually acceptable accommodation.” UPS, 362 N.L.R.B. at 162. “[W]here an employer fulfills those ob- ligations, the union may not ignore the employer’s concerns or re- fuse to discuss a possible accommodation, even when the re- quested information is presumptively relevant.” Id. At bottom, “[t]he parties must bargain in good faith as to who shall bear such costs.” Pratt & Lambert, 319 N.L.R.B. at 532. Because UPS raises distinct arguments as to the Union’s two request for information, we consider each request separately. A. The Union’s Request for Additional Contact Information For starters, UPS does not dispute the Board’s finding that the Union’s request for “phone numbers and/or email addresses” for all seasonal employees hired from October 15, 2020, through January 15, 2021, was presumptively relevant, and it has not at- tempted to rebut that presumption. So the question is whether USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 10 of 20
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UPS established “a valid reason for not providing the requested in- formation.” UPS, 362 N.L.R.B. at 162. 1. Undue Burden UPS first argues that the request was unduly burdensome because it would have required manual review of more than 10,000 individual job applications, in part because such records were not required under the CBA. It further contends that it met its good- faith duty to bargain over an accommodation but was rejected out of hand by the Union. Substantial evidence supports the Board’s rejection of these arguments. Even assuming manually reviewing more than 10,000 applications represents a major expenditure of time and money, and so would ordinarily be considered unduly burdensome, “the burden in time and money necessary to fulfill a request for infor- mation is not a basis for refusing the request.” Pratt & Lambert, Inc., 319 N.L.R.B. at 532. And the record supports the Board’s determination that UPS failed to bargain in good faith over an accommodation—assuming it was not excused from providing this information, which we ad- dress below. The record shows, as the Board stated, that UPS did not provide an estimate of the time or costs involved in producing the information, nor did it put forth alternative suggestions apart from a bare request from Pandiscia to “minimize the number of employees.” UPS fails to explain how its proposed narrowing to the Union would have accommodated the Union’s goals, nor is there any evidence that it attempted to bargain over the costs USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 11 of 20
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involved in producing the information. Accordingly, the Board reasonably concluded that Pandiscia’s communications, without more, fell short of showing that it “bargained in good faith in order to reach agreement on the scope of and cost-bearing aspect of pro- ducing the requested documents.” Because the Board “made a plausible inference from the rec- ord evidence, we will not overturn its determinations.” Cooper/T. Smith, 177 F.3d at 1261; N.L.R.B. v. Gaylord Chem. Co., LLC, 824 F.3d 1318, 1325 (11th Cir. 2016) (“The Board’s finding of an unfair labor practice must be upheld if it is based upon substantial evidence con- tained in the record taken as a whole, and based upon reasonable inferences drawn from the facts as found.”) (quotation marks omit- ted). While UPS cites other evidence favorable to it, we are not persuaded that the Board overlooked or misconstrued important evidence. See Northport Health Servs., 961 F.2d at 1550. 2. Contract Coverage UPS next contends that it was excused from providing the requested contact information under the “contract coverage” doc- trine, since the CBA already provided for the sharing of certain con- tact information for new hires, but not phone numbers or email addresses. In UPS’s view, that provision fixed the parties’ rights as to the provision of contact information for new hires, preventing the Union from unilaterally expanding the scope of that infor- mation through its later requests. The “contract coverage” theory is a doctrine largely devel- oped by the D.C. Circuit Court of Appeals, which stems from the USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 12 of 20
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principle that courts and the Board “are bound to enforce lawful labor agreements as written.” N.L.R.B. v. U.S. Postal Serv., 8 F.3d 832, 836 (D.C. Cir. 1993). As explained by that court, the doctrine recognizes that “the duty to bargain under the NLRA does not pre- vent parties from negotiating contract terms that make it unneces- sary to bargain over subsequent changes in terms or conditions of employment.” Id. Thus, a union “may exercise its right to bargain about a par- ticular subject by negotiation for a provision in a collective bargain- ing contract that fixes the parties’ rights and forecloses further man- datory bargaining as to that subject.” Id. (quotation marks omit- ted). And “[w]hen a contract settles a union’s rights, ordinary con- tract interpretation determines the scope of those rights.” Am. Med. Response of Conn., Inc. v. N.L.R.B., 93 F.4th 491, 496 (D.C. Cir. 2024); see Wilkes-Barre Hosp. Co., LLC v. N.L.R.B., 857 F.3d 364, 376 (D.C. Cir. 2017) (“[W]hen parties negotiate for a contractual provision limiting the union’s statutory rights, we will give full effect to the plain meaning of such provision.”). The Board generally adopted the contract-coverage approach in 2019, under which it “will honor the parties’ agreement, and in each case, it will be governed by the plain terms of the agreement.” See MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, *2 (Sept. 10, 2019). Previously, the Board had analyzed contract defenses under a waiver theory. See id. The D.C. Circuit recently held that the statutory “duty to provide information,” which is derivative of the duty to bargain, USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 13 of 20
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“may be modified by agreement between employer and union,” just like other subjects of collective bargaining. Am. Med. Response, 93 F.4th at 496. So when an employer makes a contractual defense that its duty to provide information was excused by the contract, the Board first “must determine whether a collective bargaining agreement relieves the employer of the duty to provide infor- mation.” Id. That’s consistent with the approach the Board has recently adopted. See MV Transp., 368 N.L.R.B. No. 66, *2 (“[U]nder the contract coverage test we adopt today, the Board will first review the plain language of the parties’ collective-bargaining agreement, applying ordinary principles of contract interpretation . . . .”) Here, though, the Board, in rejecting UPS’s contract de- fense, did not conduct any analysis of the CBA to determine whether or in what circumstances it relieved UPS of the duty to provide information. And it declined to rely on the ALJ’s “refer- ence to the ‘clear and unmistakable’ and ‘contract coverage’ stand- ards.” Instead, the Board asserted in a footnote that “[t]he perti- nent principle is that an employer has a statutory duty to furnish information that goes beyond the scope of information that the contract requires it to furnish.” While we agree with the Board that the “[t]he duty to fur- nish information is a statutory obligation which exists independent of any agreement between the parties,” U.S. Postal Serv., 308 N.L.R.B. at 359, that duty nevertheless “may be modified by agree- ment between employer and union,” Am. Med. Response, 93 F.4th USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 14 of 20
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at 496. Cf. New Jersey Bell Tel. Co., 289 N.L.R.B. 318, 330 (1988) (“It is of course possible for a union to waive its right to relevant infor- mation.”). Thus, as in American Medical Response, the Board “erred by putting the cart before the horse,” concluding that UPS failed to provide requested information before determining whether UPS was excused from providing the information by the plain language of the parties’ collective-bargaining agreement. See id.; MV Transp., 368 N.L.R.B. No. 66, *2. The Board on appeal cites its precedent in U.S. Postal Service, which rejected an argument similar to the one UPS makes here. But that case was decided under a theory of waiver, not contract coverage. See U.S. Postal Serv., 308 N.L.R.B. at 359 (finding no “clear and unmistakable waiver” for the right to additional infor- mation where the agreement “d[id] not provide that only that in- formation shall be furnished”). And the Board has since made clear that waiver analysis is distinct from contract analysis. So we cannot simply swap the Board’s analysis under a waiver theory for its anal- ysis under a contract-coverage theory. We express and imply no opinion about the merits of UPS’s contract defense. We hold only that the Board did not engage in reasoned decisionmaking when it failed to determine whether the parties’ CBA relieved UPS of the duty to provide information. See Ridgewood Health Care Ctr., 8 F.4th at 1275; see also Am. Med. Re- sponse, 93 F.4th at 498 (noting that the Board “should also consider whether [the employer] forfeited or failed to exhaust this defense with respect to any of the information requests”). We therefore USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 15 of 20
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grant UPS’s petition as to this matter, set aside that portion of the Board’s order, and remand for the Board to consider these matters in the first instance. B. The Union’s Request for Report Time Information The Board also concluded that UPS violated § 8(a)(5) and (1) in relation to the requested information about seasonal employees’ report times. UPS maintains that it could not have violated the NLRA because it made a good-faith effort to look and no such doc- uments existed. It also contends that the information was not rel- evant. We address each argument in turn, starting with relevance. 1. Relevance UPS steadfastly maintains that it could withhold report-time information because, in its view, the purpose of the Union’s re- quest was solely meant to aid the seasonal employees’ extra-con- tractual wage-theft claims, and to evade limitations on class-wide discovery. But “[t]he possibility that a union may use relevant in- formation for a purpose the employer finds objectionable is no jus- tification for withholding it.” N.L.R.B. v. CJC Holdings, Inc., 97 F.3d 114, 117–18 (5th Cir. 1996). And UPS’s attempt to confine the re- quest solely to extra-contractual matters is not supported by the record. 1
1 We reject UPS’s reliance on the Supreme Court’s decision in Epic Systems
Corporation v. Lewis, 584 U.S. 497 (2018). While it appears UPS raised a similar argument before the Board, and so is not barred from presenting it on appeal, contrary to the Board’s position on appeal, we fail to see the relevance of Epic Systems in this case. Epic Systems held that the NLRA could not be used to USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 16 of 20
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For starters, the ALJ found that the report time information was both presumptively and actually relevant. As noted above, the CBA contains provisions governing seasonal employees’ start times and how they must be paid. Based on testimony at the hear- ing, the ALJ found evidence that “the Union had reason to suspect that seasonal employees were not being paid correctly”—that is, that they were being paid from the time their first delivery was rec- orded, rather than their actual start time—“and to investigate the matter by requesting their report times.” That finding was adopted by the Board. Aside from asserting that employees are not paid based on their report times, UPS entirely fails to engage with this reasoning in its briefing on appeal. So it has not shown that sub- stantial evidence does not support the Board’s finding that the re- port time information was relevant to the Union’s statutory duty to investigate potential violations of the CBA. Instead, UPS contends that it reasonably understood the in- formation request to relate to only certain extra-contractual claims being pursued by former UPS employees. See, e.g., The Fremont- Rideout Health Grp., 357 N.L.R.B. 1899, 1906 (2011) (finding no vio- lation of the NLRA where the employer “reasonably construed the information request to refer to [an] unfair labor practice charge,” not to the union’s bargaining unit responsibilities). But it’s not
invalidate or abrogate arbitration agreements limiting class-wide relief. See 584 U.S. at 502–03, 525. It says nothing at all about requests for information. See, e.g., id. at 521 (noting that the rights protected by the NLRA “stand every bit as strong today as they did yesterday”). USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 17 of 20
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clear how the requested information was even relevant to the ex- tra-contractual claims. As the ALJ noted, UPS did not “articulate how the Union would use information regarding the 2020–2021 peak season in wage arbitrations brought by employees who did not work that season,” and it has not done so on appeal. Nor do we think it reasonable for UPS to believe that the Union’s stated concern with “wage theft” related to only extra-contractual mat- ters. As we just explained, the Union’s statutory representational duties encompassed investigating whether UPS had violated CBA provisions governing start times and wages—or more informally, had engaged in wage theft. Its information request claimed the in- formation was needed for its investigation about and potential fu- ture hearings on “violations of the CBA.” And its later communi- cations with UPS did not contradict that stated purpose. For these reasons, UPS has not shown that the Board’s resolution of these matters was unsupported by substantial evidence or otherwise con- trary to law. 2. Unavailability There is no dispute that an employer cannot be expected to provide information it does not have. “But employers do have an obligation to make reasonable efforts to secure any unavailable in- formation.” Sara Lee Bakery Grp., Inc. v. N.L.R.B., 514 F.3d 422, 429 (5th Cir. 2008). In particular, in responding to requests for relevant information, the employer must “provide the information in its possession, make a reasonable effort to secure any unavailable in- formation, and, if any information remains unavailable, explain USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 18 of 20
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and document the reasons for its continued unavailability.” Garcia Trucking Serv., Inc., 342 N.L.R.B. 764, 764 n.1 (2004). Here, substantial evidence supports the Board’s finding that UPS failed to comply with its duties in this regard. The Union re- quested “[a]ll documents reflecting report times for all seasonal employees, including but not limited to Daily Sign in sheet, secu- rity sign in sheets, and daily time sheets.” Thus, the request on its face was not “limited to” the three listed sources of report time in- formation. But Pandiscia’s response, on behalf of UPS, was limited to those sources—stating that UPS “does not have daily sign in sheets, security sign sheets or daily time sheets that reflect report- ing times for seasonal employees”—and ignored the overarching request for “[a]ll documents reflecting report times.” And UPS does not identify any evidence to contradict the ALJ’s finding that “the evidence does not indicate that the Respondent looked for all potential sources of seasonal employee report times other than the sources suggested by the Union.”2 Thus, we agree with the Board that Pandiscia’s email re- sponse does not reflect a “reasonable effort to secure any unavaila- ble information.” Garcia Trucking, 342 N.L.R.B. at 764 n.1. And Pandiscia’s oral comment that UPS “does not memorialize what time people show up to work” was little more than a bare denial.
2 UPS suggests that the ALJ, on this point, was referring to text messages
which, according to UPS, would not have been available to UPS or shown report times. But regardless, UPS cites no evidence that it conducted an in- quiry beyond the sources named by the Union. USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 19 of 20
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There is no evidence that UPS “explain[ed] and document[ed] the reasons for its continued unavailability” to the Union, Garcia Truck- ing, 342 N.L.R.B. at 764 n.1, including, for example, the steps Pan- discia took to obtain the information, that some of the information would not “reflect if the employee’s a seasonal employee or not,” and that some information was not retained for more than 30 days. 3 Accordingly, the Board reasonably concluded based on the record that UPS’s “perfunctory” response to the Union’s request for report time information violated § 8(a)(5) and (1). V. Conclusion In sum, we grant UPS’s petition in part and deny it in part. We hold that the Board failed to engage in reasoned decisionmak- ing with respect to UPS’s contract defense to the request for addi- tional contact information, so we grant UPS’s petition as to those violations, deny the Board’s petition for enforcement, and remand for further proceedings. We otherwise conclude that the Board’s rejection of UPS’s claim of undue burden was supported by sub- stantial evidence. As for the violations stemming from the request for report-time information, we deny UPS’s petition and grant the Board’s petition for enforcement.
3 At most, Pandiscia testified that he explained to the Union “numerous times”
that “daily time cards expire or time out after two and a half weeks,” but there is no similar testimony that he communicated problems with other sources of information, or other unnamed sources of information, to the Union. USCA11 Case: 23-11076 Document: 38-1 Date Filed: 08/30/2024 Page: 20 of 20
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Petition GRANTED IN PART and DENIED IN PART. Cross-petition for enforcement GRANTED IN PART and DENIED IN PART.