Petitioners, v. NATIONAL LABOR RELATIONS BOARD v. West Penn Power Company

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WEST PENN POWER COMPANY and
THE POTOMAC EDISON COMPANY
D/B/A ALLEGHENY POWER and
ALLEGHENY ENERGY SUPPLY
COMPANY, LLC, A SINGLE
EMPLOYER, and Their Agent
ALLEGHENY ENERGY SERVICE
CORPORATION, No. 03-1984  Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
UTILITY WORKERS UNION OF
AMERICA, Local 102, AFL-CIO,
Intervenor. 

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 NATIONAL LABOR RELATIONS BOARD,
Petitioner,
UTILITY WORKERS UNION OF
AMERICA, Local 102, AFL-CIO,
Intervenor,
v.
WEST PENN POWER COMPANY and No. 03-2139 THE POTOMAC EDISON COMPANY
D/B/A ALLEGHENY POWER and
ALLEGHENY ENERGY SUPPLY
COMPANY, LLC, A SINGLE
EMPLOYER, and Their Agent
ALLEGHENY ENERGY SERVICE
CORPORATION,
Respondents. 
On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board
(6-CA-31003; 6-CA-31204; 6-CA-31400-2; 6-CA-31623)
Argued: June 3, 2004
Decided: January 12, 2005
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Petition for review denied in part and granted in part, and partial
remand ordered; cross-application for enforcement granted in part and
denied in part. Judge Michael wrote the majority opinion, in which
Judge Gregory joined. Judge Niemeyer wrote a dissenting opinion.
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COUNSEL
ARGUED: John Clark Unkovic, REED SMITH, L.L.P., Pittsburgh,
Pennsylvania, for West Penn Power Company, Potomac Edison
Power Company, and Allegheny Energy Service Corporation. Joan
Elizabeth Hoyte, Office of the General Counsel, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board.
Burton E. Rosenthal, SEGAL, ROITMAN & COLEMAN, Boston,
Massachusetts, for Intervenor. ON BRIEF: Arthur J. Chmiel, ALLE-
GHENY ENERGY, Fairmont, West Virginia; Darren P. O’Neill,
REED SMITH, L.L.P., Pittsburgh, Pennsylvania, for West Penn
Power Company, Potomac Edison Power Company, and Allegheny
Energy Service Corporation. Arthur F. Rosenfeld, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Robert J. Englehart, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
the Board. Stephanie R. Pratt, SEGAL, ROITMAN & COLEMAN,
Boston, Massachusetts, for Intervenor.
OPINION
MICHAEL, Circuit Judge:
This case is before us on the petition of West Penn Power Com-
pany and the Potomac Edison Company d/b/a Allegheny Power, Alle-
gheny Energy Supply Company, LLC, and their agent Allegheny
Energy Service Corporation (together, Allegheny Power or the Com-
pany) to review an order of the National Labor Relations Board
(NLRB or the Board). The Board has filed a cross-application for
enforcement of its order. The Utility Workers Union of America, Sys-
tem Local 102, AFL-CIO (the Union) has intervened on behalf of the
Board. The Board determined that Allegheny Power violated section
8(a)(1) and (5) of the National Labor Relations Act (the NLRA or the
Act), 29 U.S.C. § 158(a)(1) and (5), by failing to provide the Union
with information about the Company’s use of outside contractors for
bargaining unit work. We conclude that the Board is correct in its
decision to order the Company to produce requested information on
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incidents of contracting (also referred to as subcontracting), including
the use of a contractor for a special meter installation project. Further
consideration by the Board is warranted, however, with respect to the
Union’s request for contractor cost data, and we remand for this lim-
ited purpose. We therefore enforce the Board’s order except to the
extent that it requires the production of cost data.
I.
A.
Allegheny Power generates electricity and distributes it to custom-
ers in parts of several states, including Pennsylvania, Maryland, West
Virginia, and Virginia. Since the late 1930s the Company has had col-
lective bargaining agreements with the Union, which represents a unit
of approximately 1200 employees. The Union employees work at two
dozen service centers, several power stations, and two general shops
run by the Company in the four states mentioned above. The Compa-
ny’s use of contractors for regular work has been a subject of bargain-
ing for many years. In a November 1977 Memorandum of Agreement
(1977 side agreement) the Company agreed to "amplify" the informa-
tion provided to the Union in the Company’s "Quarterly Contract
Work Report." J.A. 280. The 1977 side agreement obligates the Com-
pany "to furnish [the Union with] the names of all contractors per-
forming ordinary maintenance and repair work" together with a
description of the work and its location. J.A. 280. Though not men-
tioned in the side agreement, the start and finish dates of the work
were included in the disclosures. For many years, or until about mid-
1998, the Company provided the Union with contractor work infor-
mation on a quarterly basis at the level of detail just described.
By the mid-1990s Allegheny Power was interested in reducing
costs associated with the use of outside contractors for regular mainte-
nance and repair work. The Union, on the other hand, was concerned
that the Company’s increasing use of contractors would lead to job
losses for its membership. The Union’s concern was heightened in
1996 when the Company proposed to lay off ninety-six bargaining
unit employees at locations in Pennsylvania. When the parties negoti-
ated a new labor agreement in 1996 (effective May 1, 1996, to May
1, 1999), they included two provisions to address these concerns.
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First, a "Contract Work" provision allowed the Company to continue
using outside contractors, but obligated the Company to "maintain[ ]
a basic operating and maintenance force of sufficient size to take care
of the expected regular work." J.A. 251. Second, a "Resource Shar-
ing" provision permitted the Company to temporarily reassign regular
employees to any company location where their services were needed.
The Company was required to follow a particular "order of prefer-
ence" in making reassignments: local employees were used first,
employees in contiguous locations were used next, and those in non-
contiguous locations were used last. Contractors were employed only
if none of the regular employee groups just listed was sufficient to
meet the demands of a job. Together, these provisions were intended
to maintain stable employment for bargaining unit employees, mini-
mize costs for the Company, and reduce the use of outside contrac-
tors. (In October 1997 the parties agreed to extend their May 1996
labor contract through April 30, 2001.)
In the mid-1990s the trend toward deregulation prompted Alle-
gheny Power to alter its corporate structure. Previously, Allegheny
Power was made up of one parent company with three operating util-
ity companies, each engaged in the generation and distribution of
electricity. The restructuring consolidated operations into two busi-
ness units, one for generation and one for distribution; a separate ser-
vice corporation performs administrative functions for the operational
units. According to the Company, the corporate reorganization led to
changes in its hiring and record keeping practices with respect to con-
tractors. Instead of hiring contractors on a "time and material basis,"
the Company began hiring them on a "project basis," paying a flat
sum for each job. J.A. 209. At the same time, the Company began
keeping records on contracting at a corporate center rather than at
individual service centers or facilities. Finally, in about mid-1998
Allegheny Power changed the format and substance of the contractor
reports provided to the Union, making less information available.
B.
The first information request at issue stems from Allegheny
Power’s switch to the new contractor report format in mid-1998. The
new report form had spaces for listing the name of the contractor, the
type of work, its location, and the number of workers. In practice,
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however, the Company noted only a broad description of the type of
work, and it usually wrote down "as needed" in the column calling for
the number of workers. Moreover, the new form had no space for
reporting a project’s start and end dates. Union president William J.
Sterner believed that the new reports were deplorably inadequate, and
he telephoned his complaints to the Company’s director of employee
relations, Robert N. Kemerer, on three or four occasions in 1999.
Sterner pointed out to Kemerer that the reports were incomplete and
lacking in detail. Sterner also emphasized to Kemerer that in order to
"enforce the contract," the Union "needed to know what was going on
out there as far as contracting was concerned." J.A. 134. After
Sterner’s telephone requests yielded no information, the Union made
seven written requests to the Company between September 1999 and
January 2001, pointing out that information on contracting was
incomplete, inadequate, untimely, or missing altogether.
The Union first wrote Allegheny Power about the contractor report
problem on September 22, 1999. The letter noted that the second
quarter reports were incomplete and that reports were missing for
many (seventeen out of twenty-three) of the union-represented service
centers. The Union requested complete information, stating that it was
necessary "for the Union to protect the interests of [its] members."
J.A. 277. When the Company failed to respond, the Union wrote
again on November 1, 1999, requesting a complete set of contractor
reports for the first three quarters of 1999. Finally, on January 17,
2000, Debra J. West, who had replaced Kemerer as employee rela-
tions director, supplied the Union with contractor reports for the third
quarter of 1999, showing contract work at a few locations. West
asserted that the Company had supplied "the most complete data" it
had and that it had satisfied its reporting obligations under the 1977
side agreement. J.A. 279.
In a March 7, 2000, letter to the Company, the Union complained
again that the contractor reports had routinely been "many months
late." J.A. 281. The Union pointed out that the 1977 side agreement
did not limit the Union’s contractual and statutory rights to request
information about contracting. The Union noted that there were no
third quarter contractor reports for some seventeen locations, and it
asked the Company to clarify whether the failure to supply a contrac-
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tor report for a particular location meant there was no contract work
being done there.
The Company continued to provide the Union with contractor
information in the same incomplete fashion, submitting certain fourth
quarter 1999 data on March 24, 2000, and first quarter 2000 data on
May 1, 2000. The Company failed to answer the Union’s question
about whether the absence of reports for specific locations meant
there was no contracting. The Union continued to press for informa-
tion, reminding the Company in a May 24, 2000, letter that
"[i]mportant information about subcontracting has continually been
withheld from us." J.A. 338. The Union needed the information on
contracting, it said, in order to enforce the 1996 labor contract, includ-
ing the provisions on Resource Sharing, and "to respond to constant
questions from members" about contracting. J.A. 338. Union counsel
also weighed in, writing Company counsel on July 6, 2000, to request
"data on actual outside contractor usage, at each facility, by dates, job
locations, contractor names/addresses and specific types of work."
J.A. 44 (emphasis in original). The Union needed the data, its counsel
explained, to determine trends in contractor usage and investigate
"whether [bargaining unit] jobs or work tasks are being diverted" to
other locations. J.A. 43-44.
On July 24, 2000, the Company responded to the Union’s May 24
letter, stating that the Company had provided "readily available" con-
tractor information. J.A. 285. The Company claimed that it had timely
provided "such information as [it was] legally and contractually obli-
gated to supply." J.A. 286. The Company acknowledged, however,
that it was "considering the feasibility of refining the form and sub-
stance of [the new contractor] reports." J.A. 285. Next, on August 7,
2000, the Company provided the Union with certain second quarter
2000 reports, but reports on more than twenty locations were not
included.
The "huge gaps" in contractor information for many "locations and
months" were highlighted by the Union in a letter to the Company
dated August 18, 2000. J.A. 270. The Union complained that the "as
needed" language routinely inserted in the "number of [workers]" col-
umn in contractor reports was so general as to be meaningless.
Because of the Company’s inadequate responses, the Union con-
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cluded that it would become "harder to piece together [complete
information] as time [went] on." Id. As a result, in its letter of August
18, 2000, the Union requested data processing information from Janu-
ary 1, 1994, onward for contractor costs incurred by the Company.
The Union explained that this information would reveal trends before
and after the effective date of the 1996 collective bargaining agree-
ment, in which the Company committed to reduce the use of outside
contractors. The Union sought contractor cost data for each account-
ing period by location, vendor, and type of work, excluding "localities
not serviced by [Union] members and types of work not performed
by [them] in the past." Id.
The Company continued to send the Union some quarterly contrac-
tor reports, but the problems with gaps, abridged information, and tar-
diness remained. The Union made its final request on January 24,
2001, advising the Company that it had not timely or fully responded
to the Union’s ongoing requests for contractor information. The letter
noted that some of the reports were as much as seven months to two
years late. The Union again requested "data-processing [information]
showing the trends and amounts paid to outside contractors and the
work units performed by them." J.A. 311. The information was neces-
sary, the Union said, for it to investigate whether any particular inci-
dents of contracting violated the labor agreement’s Resource Sharing
provisions and whether general patterns of contracting violated the
Company’s commitment to allow unit employees to perform regular
maintenance and repair work. According to the Union, the informa-
tion would also be important for upcoming contract negotiations.
The Company’s failure to respond to the Union’s requests for con-
tractor information, made over a seventeen-month period from 1999
to 2001, may be summed up as follows. First, the contractor report
forms did not adequately describe the type of work performed or indi-
cate the start and end dates for contract jobs. Although the form had
a column for providing the number of workers used on a particular
job, the Company usually inserted "as needed" rather than a number.
And the Company did not respond to the Union’s objection that this
practice was not informative. Finally, at the hearing before the ALJ,
the Company’s employee relations director conceded that "as needed"
could only be relied on as an indication that a contractor had been
retained. She admitted (1) that the term could mean the job might not
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have been started, might be ongoing, or might be completed and (2)
that the Company made no effort to ascertain the status of the contract
work listed or the number of workers involved. Second, some of the
contractor information was provided as much as two years late. Third,
for a majority of locations (over twenty) no information was provided
at all for many calendar quarters, and the Union was never told
whether the failure to provide information for a particular location
meant that no contractors were being used. Fourth, no data processing
information on contractor costs was provided in response to the
Union’s requests, and the employee relations director admitted that
she made no effort to ascertain what sort of data processing records
might be available.
C.
The second information request at issue deals with Allegheny
Power’s electric load research initiative (ELRI), an experimental proj-
ect. The ELRI project involved the use of new meters designed to
measure customer electric usage and transmit the data on a real-time
basis over telephone lines to a data processing center. The Company
contracted with Itron, Inc. to install the new meters in a service area
in the Union’s jurisdiction, and the Union first learned about the proj-
ect when a Union member happened to see information about it in a
Company newsletter to customers. Thereafter, a bargaining unit meter
technician complained to the Union that he had seen a non-unit
employee, who was not observing proper safety precautions, doing
meter installation work in his service area.
On November 30, 1999, the Union wrote the Company and asked
for a copy of the Itron contract and the meter installation schedule.
The Union said it needed the information "to fully represent the inter-
ests of its members." J.A. 316. Four months later, on March 22, 2000,
the Company furnished the contract and schedule, which indicated
that the work had already begun. The Company explained in a subse-
quent, May 12, 2000, letter to the Union that it contracted out the
installation work on the ELRI project due to the existing workload of
the Union’s meter technicians and the large amount of work to be
completed in a short time.
In an effort to evaluate the Company’s claim, the Union requested
additional information in June 2000, including: (1) whether any unit
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employees were resource-shared out of the meter installation location
around the time the work was performed; (2) whether any unit
employees were resource-shared out of other locations during the
same time period; and (3) the staffing levels on the project compared
with those specified in the labor contract during any period in which
employees were being resource-shared into the meter installation
location. The Company responded by providing resource sharing
information concerning only unit meter technicians. It claimed that
because meter technicians alone would be qualified to work on the
installation project, only data about those workers were relevant to the
Union’s concern. Additionally, with respect to category (3), the Com-
pany replied that there were no labor contract provisions specifying
staffing levels in the relevant location. The Union countered on
August 18, 2000, that other unit employees such as servicemen and
substation electricians could have performed the meter installation
work. The Union thus renewed its request for information on any
employees who were resource-shared during the project; it also
renewed its request for staffing level data, pointing out that a side
agreement specified staffing levels for the location in question. The
Company, however, failed to provide any of this information.
D.
Dissatisfied with Allegheny Power’s responses to these and other
requests for information, the Union filed unfair labor practice charges
with the Board. Thereafter, the Board’s regional director, on behalf
of the General Counsel, issued a complaint against the Company
alleging that it had violated section 8(a)(1) and (5) of the NLRA by
either failing to provide information to the Union or failing to provide
it in a timely manner. The complaint dealt with information on six
subjects, including the Company’s use of outside contractors to per-
form unit work and the ELRI meter installation project. The case pro-
ceeded to a hearing before an administrative law judge who issued a
decision finding that the Company violated the Act by failing to pro-
duce information on two subjects, outside contracting and the meter
installation project. The ALJ ordered the Company to provide any
unfurnished information on the meter installation project. With
respect to information on contracting, the ALJ ordered the parties "to
bargain . . . in good faith to reach an accommodation over the level
of detail and time period of data to be provided." J.A. 423.
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The Board affirmed the ALJ’s determination that Allegheny had
not provided adequate and timely responses to the Union’s requests
for information on the two subjects mentioned. The Board altered the
ALJ’s choice of remedy on contractor information, ordering the Com-
pany to produce the information instead of bargaining over the extent
of production. The Company "should have bargained with the Union
over production of information at the time [it was requested]," the
Board said. J.A. 411. Moreover, the Board noted that "[a]ny issues
regarding the burdensomeness of producing the information are
appropriately handled at the compliance stage of the proceeding." Id.
Allegheny Energy now petitions for review of the Board’s order, and
the Board cross-applies for enforcement.
II.
Allegheny Power makes several arguments in urging us to set aside
the Board’s order requiring the Company to provide the Union with
the requested information on contracting and the ELRI meter installa-
tion project. With respect to the information on contracting, the Com-
pany argues that (1) the Union failed to establish that the information
was relevant and necessary, (2) the Company provided the most com-
plete information available to it, and (3) production of the information
would have subjected the Company to an undue burden. The Com-
pany further argues that even if it violated the Act in failing to pro-
duce contractor information, the proper remedy is to require the
parties to bargain over the extent of the information to be provided.
With respect to the information on the ELRI project, the Company
contends that it was not relevant and that the Company made timely
and adequate responses in any event. Finally, as an overriding propo-
sition, the Company argues that the Union’s demands were made in
bad faith, thus excusing the Company for inadequate or late
responses. For the reasons that follow, we reject the Company’s argu-
ments, except that we remand for further consideration on the limited
issue of whether contractor cost data must be provided.
An employer’s obligation to furnish information needed by the bar-
gaining representative of its employees is rooted in the NLRA. It is
an unfair labor practice for an employer "to interfere with, restrain,
or coerce employees in the exercise of [their organizational and bar-
gaining] rights guaranteed" by the Act or "to refuse to bargain collec-
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tively with the representatives of [its] employees." 29 U.S.C.
§ 158(a)(1), (5). This, among other things, imposes "the general obli-
gation [on] an employer to provide information that is needed by the
bargaining representative for the proper performance of its duties."
NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967). And the duty
to provide information "extends beyond the period of contract negoti-
ations and applies to labor-management relations during the term of
an agreement." Id. at 436. A union’s right to information depends
"upon the probability that the desired information [i]s relevant, and
that it would be of use to the union in carrying out its statutory duties
and responsibilities." Id. at 437. This is a liberal, discovery-type stan-
dard, id. and id. n.6, which means that information is relevant if it "is
germane and has any bearing on the subject matter of the case," Wal-
ter N. Yoder & Sons, Inc. v. NLRB, 754 F.2d 531, 535 (4th Cir. 1985)
(internal quotation marks and citation omitted).
Some information, such as that concerning bargaining unit employ-
ees, is presumptively relevant. Id. When the presumption does not
apply — and the Board concedes it does not apply here — "[t]he
union need only make a formal request based on a reasonable belief
that the information is necessary and show that it is relevant in order
to trigger the employer’s obligation to give the information." Id. Of
course, the relevance of the information, or the basis for requesting
it, need not be stated when relevance is "apparent from the face of the
request." NLRB v. A.S. Abell Co., 624 F.2d 506, 513 n.5 (4th Cir.
1980). Finally, the Board’s determination of relevance "is entitled to
considerable deference" on review, and "[t]his is so regardless of
whether the ruling is viewed as a finding of fact which is conclusive
if supported by substantial evidence or [is viewed] as a mixed ques-
tion of law and fact in an area of substantial Board expertise." Florida
Steel Corp. v. NLRB, 601 F.2d 125, 129 (4th Cir. 1979).
III.
A.
Allegheny Power and the dissent contend that the Union failed to
establish the relevance of the requested contractor information or the
Union’s need for it. The Company divides the contractor information
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requests into two categories: (1) information about the incidents of con-
tracting1 and (2) information about the costs of contracting.
1.
We consider first whether the Union established the relevance of,
and need for, information concerning the extent of the Company’s use
of contractors. The Board found that the requested information about
contracting was relevant and necessary for the Union to police two
provisions in its contract, the Contract Work provision and the
Resource Sharing provision. Substantial evidence supports this find-
ing. First, the Contract Work provision allows the Company to con-
tract out maintenance and repair work if it maintains a workforce "of
sufficient size to take care of [its] expected regular work." J.A. 251.
This provision protects Union members from the diversion of bar-
gaining unit work to contractors. The Union’s interest in policing this
provision is underscored by the fact that the number of unit employ-
ees in Pennsylvania alone shrunk from 1022 to 896 between 1996 and
2000. Second, the Resource Sharing provision permits the Company
to reassign employees temporarily to perform necessary work. The
Company must assign this temporary work under an order of prefer-
ence established in the contract: available employees closest to the
location needing workers are reassigned first, and contractors are used
only as a last resort. Resource Sharing is intended to benefit the Com-
pany by reducing costs and to benefit the Union by reducing the use
of contractors. The Union can police the Company’s compliance with
the order of preference provision only if the Company provides it
with information about the extent of contractor use. Finally, the Union
received occasional word from members that they had seen contrac-
tors doing unit work at locations not listed on reports provided by the
Company. In sum, the requested information about the extent of con-
tracting is relevant to the Union’s duty to administer or police the col-
lective bargaining agreement.
1For purposes of this opinion, we define "information about the inci-
dents of contracting" to include non-financial information such as con-
tractor name and location, description and dates of work, and number of
workers involved.
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The Company and the dissent contend that the Union failed in its
burden to inform the Company of why the contractor information was
relevant when it was requested. See A.S. Abell Co., 624 F.2d at 513.
The Union’s burden to state relevancy is excused if the relevance of
the information is "apparent from the face of the request." Id. at 513
n.6. The record establishes that the Union informed the Company on
a number of occasions why the contractor information was relevant
and needed. To begin with, in 1999, before any written requests were
made, the Union president called the Company three or four times to
complain that the contractor information was incomplete and inade-
quate and that the Union needed to know where "contractors were
working and what they were doing" in order to "enforce the contract."
J.A. 134. When these oral requests yielded nothing, the Union fol-
lowed up with letters. Most of the letters explained why the informa-
tion was needed: "to protect the interests of [Union] members"
(September 22, 1999), J.A. 277; "to investigate the problems [that is,
claims that the Company was violating Resource Sharing and staffing
level provisions in the contract] or to respond to constant questions
from members" (May 24, 2000), J.A. 338; to ascertain "trends in con-
tractor hours" and to "investigate whether [bargaining unit] jobs or
work tasks are being diverted" from certain locations (July 6, 2000),
J.A. 43-44; to investigate "trends [in contracting] before and after" the
Company made "contract commitments" in 1996 to use Resource
Sharing to reduce outside contracting (August 18, 2000), J.A. 270; to
investigate whether "patterns of contracting have created across the
board unfairness" and whether "any particular subcontracting epi-
sodes" violated contractual provisions on Resource Sharing (July 24,
2001), J.A. 311-12.
Moreover, as the ALJ found and the Board noted, "the Union’s
motives in 1999 for obtaining [the contractor] data were crystal clear
to the" Company "in view of the parties’ long-running discussion on
this subject, since at least 1977." J.A. 422; see J.A. 411 n.4. Thus,
even if the Union had not fully stated in its written requests the rele-
vance of information about the use of contractors, relevance was
apparent from the face of the requests.2 In sum, to the extent the
2The Board determined that the contractor information was relevant for
the additional reason that the Union was "beginning to prepare for
collective-bargaining negotiations for a new contract." J.A. 411. The
Company argues that this, too, is error. We will not deal with this argu-
ment because the Union’s request was sufficiently justified by the need
to monitor the Company’s compliance with contractual commitments.
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Union was requesting information on the incidents of contracting, rel-
evance and need were established.
2.
Allegheny Power contends that the Board failed to apply the proper
standard for requiring it to provide contractor cost data. In concluding
that the Union was entitled to all of the information on contracting it
had requested, the Board did not distinguish between information on
the incidents of contracting and cost data. The cost data is relevant
here because it could show the extent of the Company’s use of outside
contractors. Nevertheless, to obtain "profit data or other aspects of an
employer’s financial condition," the "union must show a specific need
for the information in each particular case." ACL Corp., 271 N.L.R.B.
1600, 1602 (1984); see also United Furniture Workers of America v.
NLRB, 388 F.2d 880, 882 (4th Cir. 1967). Of course, when an
employer asserts cost as the reason for its "inability to meet the
union’s demands," that "may provide the [union with] justification for
requiring [financial] data." United Furniture Workers of America, 388
F.2d at 882. In any event, the Board did not determine whether the
Union had demonstrated a specific need for the cost data in this case.
The Company maintains that it "has never claimed that costs
played any role in its decision to subcontract." Br. of Petitioner at 38.
This position, the Board maintains, is contradicted by the Resource
Sharing provision in the labor contract, which states: "The intent of
Resource Sharing is to reduce costs and reduce the need for contract-
ing out work." J.A. 255 (emphasis added). The Board also points out
in its brief that the Union only requested the cost data toward the end
of its efforts, when it became concerned that the Company’s foot-
dragging was making it increasingly more difficult to piece together
information about contractor usage. We decline to settle this argument
because the Board should determine in the first instance whether the
Union has shown a specific need for the contractor cost data. We will
order a limited remand for that purpose.
B.
Allegheny Power argues that it complied with the Act because it
provided the Union with the most complete information it had avail-
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able on the incidents of contracting. The dissent agrees with the Com-
pany, noting that once the Company switched to hiring contractors for
a flat fee on a "project basis," the "contractors, not [the Company],
determined the number and type of laborers used," and the Company
"did not collect such data from contractors." Post at 39. This does not
excuse the Company. It had the "affirmative obligation to make rea-
sonable efforts to obtain [from its contractors] relevant information,"
that is, information needed by the Union to police the collective bar-
gaining agreement. Pub. Serv. Co. of Colo., 301 N.L.R.B. 238, 246
(1991); see also Int’l Protective Servs., Inc., 173 L.R.R.M. 1023,
1077-78 (2003)("[A]n employer has a duty to supply [to the union]
relevant requested information which may not be in its possession,
but where the information likely can be obtained from a third party
with whom the employer had a business relationship."); Congreso de
Uniones Indus. de Puerto Rico v. NLRB, 966 F.2d 36, 37 (1st Cir.
1992) ("[A]n employer, confronted with [a union’s] information
request, [must] make reasonable efforts to obtain the relevant infor-
mation from another corporation, such as a parent company."). In this
case, the Company does not even claim that it asked its contractors
for the information, so it did not meet its obligation of making reason-
able efforts to obtain it.
The dissent cites Korn Indus., Inc. v. NLRB, 389 F.2d 117, 123 (4th
Cir. 1967), to assert that "Allegheny Power is not obligated to provide
the Union with information that it does not have." Post at 39. Korn
does not let an employer off the hook that easily; rather, Korn held
that the employer is not "required to furnish information which is not
available to it." 389 F.2d at 123 (emphasis added). Here, we do not
know whether information about the incidents of the Company’s use
of contractors would have been made available if the Company had
simply asked its contractors for it. Again, a reasonable effort by the
Company to obtain and turn over the contractor information is key;
for without this information, the Union cannot know whether the
Company contracted out unit work in violation of the labor contract.
C.
Allegheny Power argues that it was not required to produce the
contractor information because production would have subjected the
Company to an undue burden. The dissent adds that the Board "failed
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to give due attention to this defense." Post at 40. The Union’s
requests for contractor data were unduly burdensome, the dissent
claims, (1) because of "the[ir] number, repetitiveness, and overlap-
ping nature," id. at 39, and (2) because compliance would require the
Company "to implement new procedures" to gather and disseminate
the data, id. As we will explain, the Company failed to establish
undue burden at the request and hearing stages. Nevertheless, the
Board will allow any issues of undue burden to be revisited and han-
dled at the compliance stage.
The Union made seven written requests for contractor information
over a seventeen-month period. To the extent these requests were
repetitive or overlapping, it was largely the Company’s fault. For
example, on November 1, 1999, the Union reminded the Company
that it had not received contractor reports requested on September 22,
1999; on August 18, 2000, the Union requested centralized data pro-
cessing information on contractor costs because the information pro-
duced so far "ha[d] been so incomplete" and because non-cost data
from the field would be "harder to piece together as time goes on,"
J.A. 270; on January 24, 2001, the Union repeated its request for the
contractor "information [it had] been asking for, orally and in writing,
over the last two years," J.A. 312; and on January 24, 2001, the Union
reminded the Company that it had "never answered [its] questions as
to whether a missing report for a location meant there were no con-
tractors," id. (emphasis in original).
The Company has not made a case that producing the contractor
information would be an undue burden. To do so, the Company
would have to show — which it has not done — that it made a rea-
sonable effort to obtain the information from its contractors. In addi-
tion, the Company failed to make reasonable efforts to determine
what information was available within the Company. Specifically,
when the director of employee relations learned for the first time in
late 2000 that the Company maintained data processing records on
contract jobs, she made no effort whatsoever to investigate and deter-
mine what information might be available for production to the
Union. Finally, any burden on the Company to produce the informa-
tion may be of its own doing. As the Union warned in its request of
August 18, 2000: "As more months go by, managers will probably
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say it gets harder and harder to re-create what subcontracting
occurred." J.A. 270.
The Board considered the Company’s defense of undue burden, but
determined that the Company was "obligated to produce the informa-
tion" requested about contracting. J.A. 411. However, in the remedial
portion of its order the Board made clear that "[a]ny issues regarding
the burdensomeness of producing the information [can be] appropri-
ately handled in the compliance stage of the proceeding." J.A. 411.
This arrangement is consistent with the Board’s broad discretion to
fashion appropriate remedies. See Va. Elec. & Power Co. v. NLRB,
319 U.S. 533, 540 (1943); Safeway Stores, Inc. v. NLRB, 691 F.2d
953, 957 (10th Cir. 1982).
IV.
Allegheny Power next argues that the Board erred in determining
that it violated the Act by delaying the turnover of certain information
and by failing to provide other information on the ELRI project on
meter installation. The Union requested the Itron contract and
Resource Sharing and staffing-level data pertinent to the ELRI proj-
ect. The Company contends that the Union did not establish the rele-
vance of this information or make its relevance known to the
Company. The Board determined that the information requested on
this project was relevant to the Union’s "major and ongoing concern"
with contracting, J.A. 413, and the record supports this determination.
Further, as we have already discussed, see supra part III.A, the Com-
pany was fully aware that the Union was requesting this type of infor-
mation for the legitimate purpose of policing the collective bargaining
agreement.
The Company argues that the Board erred in finding that the Com-
pany was tardy in supplying the Union with a copy of the Itron con-
tract and the meter installation schedule. Again, we disagree. The
Company entered into its contract with Itron on October 6, 1999, and
the Union asked for a copy of the contract and installation schedule
on November 30, 1999. The Company did not supply the Union with
this information until March 22, 2000, almost four months after it was
requested. Work on the project was under way by this time, and the
Board found that the Company’s delay in providing the contract and
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installation schedule "prevented the Union from taking any action
before the contract work began." J.A. 413. Substantial evidence sup-
ports this finding, and the Board did not err in determining that the
Company unlawfully delayed in producing the information.
Finally, Allegheny Power contends that it provided all of the infor-
mation needed by the Union with respect to Resource Sharing and
staffing levels insofar as these subjects relate to the ELRI meter
installation project. The Company, however, limited the information
it provided on Resource Sharing to information about meter techni-
cians, even though the Union contended that other unit employees
could also do the installation work. In addition, requested staffing-
level information was not provided. The Board determined that the
Union demonstrated a need for the information: it was necessary for
the Union to police contractual provisions on Resource Sharing and
staffing levels, provisions that are relevant to the Union’s legitimate
concern about the Company’s use of outside contractors. The record
supports this conclusion. In sum, the Union was entitled to the
Resource Sharing and staffing-level data that was relevant to the
ELRI meter installation project.
V.
Allegheny Power argues that the Union acted in bad faith by flood-
ing it with information requests, thus excusing the Company for inad-
equate or tardy responses. See NLRB v. Wachter Constr., Inc., 23 F.3d
1378, 1386 n.8 (8th Cir. 1994) (when "the predominate purpose of the
party making the request [is] one of bad faith," the other party has no
duty to respond). The ALJ, after noting that he would evaluate the
case with the issue of bad faith in mind, made no finding of improper
motive or bad faith on the Union’s part. Nor would the record support
such a finding.
The dissent contends that the Union’s bad faith is evidenced by the
fact that it submitted to the Company over a nineteen-month period
in 1999 and 2000 "82 separate requests for information concerning 43
different subjects." Post at 27. A review of the list of the requests
reveals that they sought information on a broad range of legitimate
subjects implicating the Union’s duty to represent its members. Spe-
cifically, the Union requested information on subjects including pen-
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sion coverage, safety issues and accidents, employee evaluations,
disciplinary issues, underground training, workers’ compensation pro-
cedures, clothing issues, safety equipment costs, tool repair, and vaca-
tion and sick pay. When considered in context, the number of requests
over the particular time span (1999-2000) is hardly surprising. The
Union represented 1200 members at over thirty locations in four
states. Moreover, the requests came during times that were (and are)
challenging for both labor and management. As the Company empha-
sizes, "since the mid-1990s, the electric utility industry has been in a
state of flux due to significant government deregulation." Br. of Peti-
tioner at 7.
The Company and the dissent point to one of the Union’s later
requests for expanded information as a specific example of the
Union’s bad faith. This is the Union’s August 18, 2000, request for
data processing information on contractor costs from 1994 forward.
For no good reason, the Company says, "the Union suddenly changed
its demand from seeking information regarding contractors from 1999
and 2000 to seeking detailed cost information from as far back as
1994." Id. at 28 (emphasis in original). Although we are remanding
for the Board to give further consideration to whether the cost data
should be produced, there is no evidence that the Union sought this
information in bad faith. The Union was frustrated because it had not
received timely and complete information on contracting after asking
for it repeatedly. Because of the passage of time, the Union was legiti-
mately concerned that information would be hard to piece together in
the field. This led the Union to conclude that central data processing
information showing longer-term trends in contracting might be the
only means to evaluate the Company’s 1996 commitment to reduce
its reliance on outside contractors. The Union’s thinking, which it
revealed to the Company, reflects no dishonesty of purpose.
The Company makes the broad assertion that it responded in good
faith to the Union’s requests. Picking up on this, the dissent says that
"[h]ad the record been taken as a whole, the Board could not have
reasonably concluded that Allegheny Power failed to meet its statu-
tory obligation to bargain in good faith." Post at 34 (citing NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 154 (1956) (internal quotation marks
omitted)). The dissent appears to suggest that the Company’s
responses to the contractor information requests do not amount to a
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violation because the available personnel were "forced to respond
simultaneously to other topical requests made by the Union." Id.
There is no rule that excuses an employer from complying with
requests for relevant information on some subjects simply because it
has complied with requests on other, unrelated subjects.
In any event, we have reviewed the record as a whole, see 29
U.S.C. § 160(f), and several significant factors are present to defeat
the Company’s good faith argument. First, the Company did not make
any effort, let alone a reasonable one, to obtain the requested informa-
tion from its contractors. Second, the Company never answered the
Union’s question of whether the failure to provide reports for seven-
teen of the two dozen service centers meant there was no contracting
in those areas. Third, the Company did not respond to the Union’s
early objection about the vagueness of the "as needed" language
inserted in the "number of [workers]" column on most of the new
contractor report forms. Fourth, the employee relations director did
not make any investigation into what the Company’s data processing
records might show with respect to the incidents of contracting.
Finally, when the Company did provide information, it was often
many months late. Simply put, the Company fell short in meeting its
obligations under the NLRA.
VI.
In sum, an objective reading of the record reveals that the Board
did not err in concluding that Allegheny Power violated section
8(a)(1) and (5) of the NLRA by its failure to respond adequately to
the Union’s requests for information about contracting and the ELRI
project and by its delay in furnishing information. Therefore, with one
limited exception, we deny the Company’s petition for review. The
petition is granted to allow a remand to the Board for further consid-
eration of the Union’s request for contractor cost data. We grant the
Board’s cross-application for enforcement of its order except as it
relates to cost data.
PETITION FOR REVIEW DENIED
IN PART AND GRANTED IN PART,
AND PARTIAL REMAND ORDERED;
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CROSS-APPLICATION FOR ENFORCEMENT
GRANTED IN PART AND DENIED IN PART
NIEMEYER, Circuit Judge, dissenting:
Over a 19-month period, Local 102 of the Utility Workers Union
of America (the "Union") presented Allegheny Power with 82 sepa-
rate requests for information regarding 43 distinct issues. During this
period, no collective bargaining or arbitration was taking place or was
imminent. Nonetheless, Allegheny Power responded to every request
— albeit inadequately from the Union’s perspective — and devoted
hundreds of employee hours to doing so. Dissatisfied with the
responses, the Union filed complaints alleging that Allegheny Power
violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act by
failing to provide information relevant and necessary to the Union’s
role as the employees’ exclusive bargaining representative.
The National Labor Relations Board ("NLRB" or "Board") found
two violations, holding that Allegheny Power failed to make an ade-
quate response to the requested information on 2 of the 43 issues by
not providing all the information requested or failing to provide it
timely. Accordingly, the Board concluded that Allegheny Power did
not act in good faith in discharging its responsibilities under the
National Labor Relations Act. From the NLRB’s order, Allegheny
Power filed this Petition for Review, and the NLRB filed a Cross-
Application for Enforcement of its order.
Because the Board (1) failed to consider the record as a whole; (2)
failed to require the Union, as a condition to obtaining information,
to demonstrate the legal relevancy and need for the information
requested; and (3) failed altogether to address Allegheny Power’s
claimed defenses — burdensomeness, non-existence of documents
requested, and Union bad faith — any one of which would have pro-
vided Allegheny Power with a complete defense, the Board’s order
cannot be enforced. Had the Board imposed the legal requirement on
the Union of demonstrating the legal relevancy and need for the infor-
mation or had the Board considered the context of Allegheny Power’s
conduct, it would have had to conclude, on the basis of binding prece-
dent, that Allegheny Power did not fail in its "statutory obligation to
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bargain in good faith." NLRB v. Truitt Mfg. Co., 351 U.S. 149, 154
(1956).
For these reasons, I would grant Allegheny Power’s Petition for
Review and deny the Board’s Cross-Application for Enforcement of
its order.
I.
The National Labor Relations Act provides that employers engage
in unfair labor practices when they "interfere with, restrain, or coerce
employees in the exercise of the rights" guaranteed by the Act or
when they "refuse to bargain collectively with the representatives of
[their] employees." 29 U.S.C. § 158(a) (1), (5). As part of these statu-
tory obligations, employers have a "general obligation . . . to provide
information that is needed by the bargaining representative for the
proper performance of its duties." NLRB v. Acme Indus. Co., 385 U.S.
432, 435-36 (1967). Thus, a union’s right to obtain relevant informa-
tion "is statutory and not contractual." NLRB v. Am. Nat’l Can Co.,
924 F.2d 518, 522 (4th Cir. 1991).
Because the duty to provide information is inherent in the require-
ments imposed by the Act, this duty is highly dependent upon con-
text. The Supreme Court has instructed that "[t]he duty to supply
information under § 8(a)(5) turns upon ‘the circumstances of the par-
ticular case,’ and much the same may be said for the type of disclo-
sure that will satisfy that duty." Detroit Edison Co. v. NLRB, 440 U.S.
301, 314-15 (1979) (citation omitted). Indeed, an employer is not
automatically obligated to produce available information merely
because a union demands it, nor to produce information in a manner
the union requests. See id. at 314. Rather, the relevant inquiry "must
always be whether or not under the circumstances of the particular
case the statutory obligation to bargain in good faith has been met."
Truitt Mfg., 351 U.S. at 153-54; see also Local 13, Detroit Newspaper
Printing & Graphic Communications Union v. NLRB, 598 F.2d 267,
270-71 (D.C. Cir. 1979) (clarifying that the good-faith requirement
applies both to employer and union). We therefore examine the nature
of the union’s requests for information, the statutory context in which
the requests were made, and the nature of the employer’s response
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when determining whether an NLRB ruling is appropriate in "the cir-
cumstances of the particular case."
Accordingly, to obtain information under § 8(a)(5), a union must
demonstrate, as a condition to obtaining the information, that the
information is relevant and necessary to its performance of collective
bargaining responsibilities. See NLRB v. A.S. Abell Co., 624 F.2d 506,
510 (4th Cir. 1980). While information pertaining to union employees
is presumptively relevant, other information is not entitled to such a
presumption. Id. Thus, when a union demands information other than
information pertaining to union employees, the union bears the bur-
den of establishing its relevancy. See Walter N. Yoder & Sons, Inc.
v. NLRB, 754 F.2d 531, 535 (4th Cir. 1985); A.S. Abell, 624 F.2d at
510. To demonstrate relevancy, a union must
make a formal request based on a reasonable belief that the
information is necessary and show that it is relevant in order
to trigger the employer’s obligation to give the information.
. . .
* * *
. . . [I]nformation is relevant if it is germane and has any
bearing on the subject matter of the case.
The practical burden upon the union then is to show that the
information will aid investigation of contract violations
where the union has established a reasonable basis to sus-
pect such violations have occurred. Actual violations need
not be established in order to show relevancy.
Walter N. Yoder & Sons, 754 F.2d at 535 (internal quotation marks
and citations omitted). A union must also provide facts that support
its assertion of relevancy and need. See Rice Growers Ass’n of Cal.,
Inc., 312 N.L.R.B. 837, 838 (1993). "Reasons not brought to the
attention of the Company at the time but later used to justify positions
in administrative hearings should not be used to convict the Company
of an unfair labor practice when these reasons were not brought to its
attention contemporaneously, they being not apparent from the face
of the request." A.S. Abell, 624 F.2d at 513 n.5.
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When a union has carried its burden of demonstrating relevancy
and necessity, the burden of production shifts to the employer. Even
so, the employer need not produce information that it does not have,
nor need it conduct studies for the purpose of supplying the union
with the information requested. See Howe K. Sipes Co., 319 N.L.R.B.
30, 38 (1995) ("[A]n employer can be expected to supply only that
information which it actually possesses or it can reasonably acquire.
There is no requirement that, in response to a request for information,
an employer conduct independent cost studies or analysis"); see also
Korn Indus., Inc. v. NLRB, 389 F.2d 117, 123 (4th Cir. 1967). The
employer also need not honor the union’s request when the employer
can demonstrate that the union’s request was made in bad faith. See
NLRB v. Wachter Constr., Inc., 23 F.3d 1378, 1385 (8th Cir. 1994).
Finally, an employer cannot be compelled to provide information if
doing so would cause undue burden. See Westinghouse Elec. Corp.,
129 N.L.R.B. 850, 864 (1960) ("[T]he obligation of an employer to
bargain in good faith does not require him to comply with a Union’s
request for information if compliance is ‘unduly burdensome’"); see
also Wachter Constr., 23 F.3d at 1388; Safeway Stores, Inc. v. NLRB,
691 F.2d 953, 956 (10th Cir. 1982).
With these principles in hand, we review the NLRB rulings for
compliance with them. And with respect to findings, we determine
whether they are "supported by substantial evidence on the record
considered as a whole." 29 U.S.C. § 160(f).
II.
The employer in this case, West Penn Power Co. and The Potomac
Edison Co. d/b/a Allegheny Power and Allegheny Energy Supply Co.
("Allegheny Power"), engages in the generation and distribution of
electricity and operates power stations in Maryland, Pennsylvania,
Virginia, and West Virginia. Allegheny Power maintains collective
bargaining agreements with four different unions, including the union
in this case, the Utility Workers Union of America (the "Union"),
with the earliest agreement reached in the late 1930s. The relevant
collective bargaining agreement between Allegheny Power and the
Union became effective May 1, 1996, to expire April 30, 1999. But
by an agreement reached in October 1997, the collective bargaining
agreement was extended through April 30, 2001.
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Over the years, Allegheny Power had long provided relevant infor-
mation requested by the Union so that the Union could perform its
duties as the collective bargaining representative. In addition, in 1977,
Allegheny Power entered into an agreement ("1977 Agreement") to
provide the Union with copies of "Quarterly Contractor Work
Reports" regarding non-union contractors under hire by the Company.
Under this arrangement, Allegheny Power provided the names of con-
tractors that performed ordinary maintenance and repair work for the
Company, the specific work performed, and the location of such
work. The 1977 Agreement also permitted the Union to submit spe-
cific requests for contractor data and required the Company, in
response, to "furnish similar information and disclosure within its
possession on contractors or subcontractors whenever the Union
believe[d], in good faith, it ha[d] a specific dispute or grievance on
a specific use of contractors." This agreement, however, contained no
requirements regarding the exact format of the contractor reports, and
no such requirements were ever added by the parties.
During the mid-1990s, government deregulation and increasing
utility competition created significant challenges for, and required
commensurate adjustments by, the electric utility industry. In
response to the challenges, Allegheny Power changed from an
"operating-company" model to a "business-unit" model, which
involved the consolidation of three previously separate operating
companies into a single entity. Among the changes that resulted from
this consolidation was a shift from hiring non-union contractors "on
a time and material basis" to hiring them on a "project basis." After
that change, Allegheny Power provided job specifications to the con-
tractors for each project, and the contractors, in turn, charged a flat
rate, allocating such workers and resources as they deemed necessary
to complete the project.
In the years before 1999, Allegheny Power received "very few
requests" for information from Local 102, the Pennsylvania chapter
of the Union. But all of that changed in May 1999.
Beginning with a request on May 3, 1999 and continuing for some
19 months thereafter, the volume of information requests submitted
by Local 102 increased dramatically and expanded well beyond the
traditional information requests relating to arbitration or contract
negotiations. Indeed, there was no arbitration or contract negotiation
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ongoing or anticipated in 1999; the 1999 expiration date of the collec-
tive bargaining agreement had been extended to 2001 through an
October 1997 agreement. Yet the record shows that Local 102 sub-
mitted, over the next 19 months, 82 separate requests for information
concerning 43 different subjects, ranging over a wide gamut from
matters regarding individual Union members, to clothing concerns,
underground training, and tool repair. Moreover, these requests were
made in addition to ongoing meetings between Company officials and
their Union counterparts "to talk about general company issues" and
"to talk and resolve issues such as fire resistant clothing, resource
sharing . . . [and] grievances." These requests were also in addition
to regular telephone conversations between the Company and Local
102. Despite the open avenues for oral communication, however, the
number of the Union’s formal information requests continued to
swell.
Faced with this significant increase in information requests, Alle-
gheny Power’s response required — as the ALJ found in this case —
the effort of "five fulltime employees [devoting] hundred[s] of hours."
The president of Local 102 later agreed that the Union had "asked for
voluminous information, and . . . got voluminous information,
although not always everything [it] wanted." And the ALJ found that
Allegheny Power responded "in some fashion" to all of the requests.
A summary of the requests and responses, as contained in the record
at J.A. 343-51, follows:
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Apparently dissatisfied with Allegheny Power’s responses, the
Union filed complaints with the NLRB, alleging that Allegheny
Power failed to provide timely and sufficient information on 6 of the
43 topics requested by Local 102, namely requests with respect to (1)
Quarterly Contractor Work Reports, (2) the Electric Load Research
Initiative project, (3) foreign electric utilities, (4) meter-related data
at the Oakland and Cumberland service centers, (5) Local 102 mem-
ber Phil Cosner, and (6) 10-hour vacations. On numbers (1) and (2),
the NLRB found violations.
With respect to number (1), the Quarterly Contractor Work
Reports, Local 102 complained that changes to the format of Alle-
gheny Power’s reports reduced the flow of information to the Union
and thus constituted an unfair labor practice. Prior to 1998, each ser-
vice center and power station in the Allegheny Power network com-
piled numerical totals of the non-union workers contracted to perform
specified tasks and then provided these data to the Union. In 1998,
following Allegheny Power’s reorganization, the Company central-
ized its data collection efforts and began to hire outside contractors
on a "project basis." As a result of these changes, the information pro-
vided to Local 102 in the Quarterly Contractor Work Reports became
more "general" than had previously been the case. Instead of provid-
ing numerical data and descriptions of the employees staffing a proj-
ect, Allegheny Power listed the number to be "as needed" by the
contractor because the contractor, not Allegheny, determined the
number and kinds of workers to staff the project, billing Allegheny
Power only on a project basis, not on a time-and-materials basis. This
generalization in reporting, the Union contended, constituted an unfair
labor practice.
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With respect to number (2), the Electric Load Research Initiative
project (the "ELRI" project), Local 102 complained that Allegheny
Power provided inadequate information on an untimely basis. In
October 1999, Allegheny Power entered into a contract with Itron,
Inc., to install hardware and provide data collection services for the
ELRI project, a pilot program designed to ascertain whether data from
customers’ meters could be transmitted to the utility by telephone, in
real time, without the use of meter readers. After a Union worker
noticed ELRI-related activity in 1999 at a Frederick, Maryland facil-
ity, the Union contacted Allegheny Power in November 1999 and
requested a copy of the Company’s contract with Itron, along with a
time schedule for installation of the ELRI meters. Allegheny Power
provided this information in March 2000. The Union then made two
further requests in April 2000 for a significant amount of additional
information on numerous topics. For example, the Union sought
"whatever documents describe or refer to the Company’s ELRI work
and the activities of Itron, including but not limited to advisories and
newsletters"; descriptions of training and safety procedures relating to
the ELRI project; use of identification by Itron’s workers; and
detailed information on "each individual who has been involved with
the project." Despite the magnitude of this request, Allegheny Power
responded within one month with a lengthy, point-by-point response.
This response was, in turn, met by another broad inquiry the follow-
ing month, and, after first informing the Union that the breadth of the
inquiry was causing delay in the Company’s response, Allegheny
Power then provided another lengthy reply. Later, apparently on its
own initiative, Allegheny Power provided Local 102 with copies of
its ELRI project newsletter along with an accounting of subcontractor
hours devoted to the project, broken down by location. Nevertheless,
in its complaint to the NLRB, the Union contended that Allegheny
Power’s responses were untimely and inadequate and thus constituted
an unfair labor practice.
In finding that Allegheny Power committed unfair labor practices
in failing to provide adequate information on a timely basis, the Board
found that the parties’ 1977 Agreement on the Quarterly Contractor
Work Reports did not limit the Union’s right to make information
requests pursuant to § 8(a)(5). It concluded that the Union sought
such information "to police its collective-bargaining agreement" and
that "the timing of the requests, as related to the upcoming [contract]
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negotiations, strongly supports the Union’s need for the information."
Similarly, the Board found that Allegheny Power violated § 8(a)(5)
by failing adequately to provide the union with "staffing-level data"
from the ELRI project. The Board also found that a four-month delay
by Allegheny Power in responding to one of the Union’s four written
requests on the ELRI project also violated § 8(a)(5), as did the Com-
pany’s failure to provide resource-sharing information beyond meter
technicians. As a remedy for these purported violations, the NLRB
entered an order, dated July 11, 2003, requiring Allegheny Power to
provide the data sought by the Union.
From the Board’s order, Allegheny Power filed this Petition for
Review, and the Board filed a Cross-Application for Enforcement of
its order.
III.
In addressing the two issues on which the NLRB found violations,
the Board measured only a handful of Allegheny Power’s responses
in isolation, without considering the 19-month context in which the
Company had responded to the Union’s numerous information
requests. In doing so, the Board failed to address the issues on the "re-
cord considered as a whole," as required by statute. 29 U.S.C.
§ 160(f). For the same reason, it also failed to take into account, again
as required by law, "the circumstances of the particular case." See
Truitt Mfg., 351 U.S. at 153 (emphasis added). When the record as a
whole is considered, the evidence does not support a finding that
Allegheny Power failed in its "statutory obligation to bargain in good
faith." Id. at 154.
The Union submitted 82 requests for information, and the ALJ
found as facts that no request by the Union went unanswered and that
Allegheny Power committed the resources of five full-time employees
to provide responses to these requests. Even on the two issues as to
which the Board found violations, the Union had made multiple and
various requests, and Allegheny Power was required to make numer-
ous responses, providing the Union with a large volume of material.
Taken in this context, Allegheny Power’s responses do not justify the
Board’s finding that the Company failed to bargain in good faith.
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The Union chose to litigate the responses on 6 subjects, but these
6 inquiries represented only a small portion of the 43 subjects on
which the Union demanded information. Also, there were repeated
and various inquiries on many subjects, so that the 43 different topics
became the subject of 82 separate inquiries presented over the space
of 19 months. In addition, the Board failed to consider that the vol-
ume of information that the Union requested was far greater than the
number of requests that had theretofore been made by Local 102, or,
for that matter, by any other union. It also failed to take accurate
notice of the extent to which the requests were proximate to other rel-
evant events, such as arbitration cases or contract negotiations. The
failure to take these contextual elements into account fatally under-
mined the NLRB’s findings.
In his findings of fact, the ALJ found:
From May 1999 to December 2000, the Union requested
information from [Allegheny Power] regarding 43 subject
areas, which was a substantial increase over previous years.
The Company responded in some fashion to all 43 requests,
taking five fulltime employees hundred[s] of hours to do so.
Moreover, the ALJ acknowledged that in the midst of this deluge, the
staffperson employed by Allegheny Power to manage such requests
was replaced. Finally, the ALJ noted that "[t]he most recent
collective-bargaining agreement ran from May 1, 1996 to May 1,
1999, but the parties extended it until April 30, 2001," a fact appar-
ently overlooked by the Board.
To appreciate these statistical data in the record, the Board would
have had to have recognized that beginning on May 3, 1999, and con-
tinuing through December 7, 2000, the Union issued on average one
request every seven days, and that additional requests were submitted
even before responses had been received from Allegheny Power on
earlier requests. Yet Allegheny Power responded to every request. Of
the 82 submitted, it responded to 32 (or 40%) within a 30-day period;
54 (or 67%) within 60 days; and 65 (or 80%) within 90 days. More-
over, the 43 various topics of inquiry were not submitted chronologi-
cally or in discrete time periods. To the contrary, the Union submitted
information requests in a haphazard fashion. For example, on Septem-
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ber 22, 1999, the Union submitted its first request regarding the Quar-
terly Contractor Work Reports. While Allegheny Power was
preparing its response to that request, the Union submitted nine addi-
tional requests for information concerning seven other topics. None-
theless, the Company responded to all of these other inquiries, taking
an average of 24 days per inquiry to submit its responses. This exam-
ple demonstrates how a narrow view of the record — examining only
the response to the one request on Quarterly Contractor Work Reports
— produces a distortion of the facts. Yet this was the approach fol-
lowed by the Board.
In addition, the Union’s information requests were complex in
nature and required aggregations of many different types of data. The
record before us on appeal contains only a limited snapshot of the
total information requests, but even this small portion of the picture
is dramatic. For example, the Union wrote on April 13, 2000, to
request information about the ELRI project, and it asked for nine dif-
ferent categories of information, ranging from details about Alle-
gheny Power’s contract with Itron, to information on each person
involved in the ELRI project, to descriptions of the skills related to
the ELRI project, to training programs implemented by Allegheny
Power to develop such skills. To answer these inquiries required Alle-
gheny Power to devote significant amounts of time and human
resources, particularly considering that the limited number of the
Company’s personnel was also forced to respond simultaneously to
other topical requests made by the Union.
The inclusion of these contextual elements, which the Board failed
to consider, provides a totally different picture from that presented by
the Board and by the majority. Had the record been taken as a whole,
the Board could not have reasonably concluded that Allegheny Power
failed to meet its "statutory obligation to bargain in good faith." See
Truitt Mfg., 351 U.S. at 154.
IV.
In considering out of context the two topics on which the Board
found violations — the Quarterly Contractor Work Reports and the
ELRI project — the Board also failed to enforce upon the Union its
established legal duty to demonstrate factually, as a condition to
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receiving information, that the information is relevant and necessary.
The Board accepted implicitly the Union’s highly generalized state-
ment, made without any factual support, that the information was
needed "in order for the union to protect the interests of [its] mem-
bers." In challenging the adequacy of this explanation as a justifica-
tion for the information, Allegheny Power contends that, because the
information did not relate to Union members, the Union was required
to demonstrate the relevance of the information and the Union’s need
for it, particularly when no arbitration or collective bargaining negoti-
ations were ongoing or pending. Allegheny Power’s position is indis-
putably supported by applicable law.
When information requested does not pertain to union employees
— as is the case for the two issues before us — it is not presumptively
relevant. See Wachter Constr., 23 F.3d at 1384; A.S. Abell Co., 624
F.2d at 512; United Furniture Workers v. NLRB, 388 F.2d 880, 882
(4th Cir. 1967) (finding that cost, profit, and other financial informa-
tion are not presumptively relevant). In order to obtain information
that is not presumptively relevant, the Union must
make a formal request based on a reasonable belief that the
information is necessary and show that it is relevant in order
to trigger the employer’s obligation to give the information.
. . .
* * *
The practical burden upon the union then is to show that the
information will aid investigation of contract violations
where the union has established a reasonable basis to sus-
pect such violations have occurred.
Walter N. Yoder & Sons, 754 F.2d at 535 (emphasis added) (internal
quotation marks and citations omitted).
In addition, for financial data, the Union had to show a "specific
need in each particular case" or had to establish that the Company, by
way of justification for subcontracting work, claimed a present finan-
cial inability to meet the Union’s demands. United Furniture Work-
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ers, 388 F.2d at 882; see also Equitable Gas Co. v. NLRB, 637 F.2d
980, 993 (3d Cir. 1981) ("[D]ata regarding subcontracting costs where
bargaining is not required, is relevant only when lower costs are urged
by the employer as a motivating factor behind the subcontracting
decision").
Finally, regardless of the subject matter of a request, the Union in
every case is obligated to establish its claim to the information, see
Rice Growers Ass’n, 312 N.L.R.B. at 838, and the justification must
be presented to the employer "contemporaneously," not merely as a
later rationalization made during administrative hearings, A.S. Abell
Co., 624 F.2d at 513 n.5.
The Union’s justifications for the information in this case met none
of the criteria established by law. Rather, the Union simply relied on
the conclusory, boilerplate-type statement that the Union needed the
information "to protect the interests of its members." The requests
allege no contract violations, negotiations, or arbitrations, and they
contain no facts supporting the Union’s claim that the information
was necessary "to protect the interests" of Union members. Subse-
quent requests repeated and expanded the Union’s demands but con-
tinued to lack explanations. Such "boilerplate" justifications do not
meet the requirements of law. Wachter Constr., 23 F.3d at 1385
(internal quotation marks omitted). Moreover, approving the use of
"boilerplate" rationales would "wreak havoc on a negotiating pro-
cess." Id. at 1386. Further, with respect to the Union’s demands for
financial data, the Union never contended that Allegheny Power
asserted that lower costs had been a motivating factor in its subcon-
tracting decisions.
In its findings, the ALJ acknowledged that the Union "used no
magic words to state specifically why it wanted more and better sub-
contracting information." But the ALJ stated that he "believe[d] that
the Union’s motives in 1999 for obtaining this data were crystal
clear," and he wrote that "data on subcontracting will no doubt be use-
ful to the Union in negotiating the successor agreement in 2001."
Although it is true that the law does not require a union to provide
"magic words," it does require a union to provide a reason for its
request and, if necessary, to support its reason with facts. See A.S.
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Abell Co., 624 F.2d at 512, 513 n.5; Rice Growers Ass’n, 312
N.L.R.B. at 838. By stating that the reason that the Union required the
data was "crystal clear," the ALJ evidently felt that the rationale was
apparent from the face of the requests. See A.S. Abell Co., 624 F.2d
at 513 n.5 (suggesting that a rationale can be accepted if it is "appar-
ent from the face of the request"). This, however, is not supported by
the record. The first two requests made by the Union (September 22,
1999, and November 1, 1999) are so threadbare that Allegheny Power
would have been forced to guess at their rationale. Indeed, quite logi-
cally, the Company regarded the information requested in 1999 to be
governed by the 1977 Agreement, and that agreement required the
Union to tie its demands to "a specific dispute or grievance on a spe-
cific use of contractors." Recognizing that these contractual obliga-
tions were not met, the Board relied only on the statutory duty, which
allows other justifications of relevancy. Because the record supported
no other justifications, the Board relied on two post-hoc rationaliza-
tions, which were not even made by the Union until 21 months after
its initial inquiry.
According to the Board, the Union’s requests were justified
because the information requested enabled the Union "to police its
contract," since its collective bargaining agreement permitted Alle-
gheny Power to subcontract work "only to the extent that the [Com-
pany] maintained a workforce sufficient to perform the regular
expected work of the [Company]." The Board also asserted that the
data enabled the Union to enforce a "Resource Sharing" provision in
the collective bargaining agreement that allowed Allegheny Power to
send Union employees to different job sites within the Company’s
network. As plausible as these two rationales might be, they were
stated by the Union after the fact, and then only to win their case. We
have clearly stated that a supporting rationale must be articulated
"contemporaneously" with the information request and must not be
provided later to bolster a case for administrative review. See A.S.
Abell Co., 624 F.2d at 513 n.5. Certainly the Board cannot rely on
post-hoc rationalizations to determine that the Company acted in bad
faith, when it was given no legally sufficient reason at the time the
requests were made.
In addition, the Board noted that the "parties were beginning to pre-
pare for collective-bargaining negotiations for a new contract" and
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that "the timing of the [Union’s] requests, as related to the upcoming
negotiations, strongly supports the Union’s need for the information."
This conclusion, however, is based on a misconception of the record.
While the collective bargaining agreement between Allegheny Power
and the Union did run from May 1, 1996, to May 1, 1999, the Board
failed to recognize that in October 1997 the parties had extended the
contract to April 30, 2001. Just as importantly, the Union itself did
not rely on "upcoming negotiations" to justify its requests until Janu-
ary 2001, at which point it was looking to the looming April 30, 2001
expiration date. The record simply does not support the NLRB’s
rationalization that the Union’s information requests, which began in
1999, "related to . . . upcoming negotiations."
In the absence of an impending arbitration, collective bargaining,
or some other suspected contract violation, the Board erred in finding
violations of §§ 8(a)(1) and 8(a)(5). The Board simply failed to recog-
nize that the Union, along with the Company, was obliged to fulfill
certain legal duties in its information requests.
V.
Finally, the Board failed to address three affirmative defenses
advanced by Allegheny Power, any of which could have precluded
the finding of a violation by the Board. Allegheny Power contended
(1) that it was not obligated to generate information — i.e., informa-
tion that it did not have — nor was its failure to provide information
in the format requested by the Union a basis for finding a violation;
(2) that the information requests were unduly burdensome; and (3)
that the Union’s conduct in making so many burdensome and irrele-
vant requests over a short period of time, in the particular factual con-
text, evidenced bad faith on the part of the Union. I address these in
turn.
A.
One of the Union’s most persistent assertions relates to Allegheny
Power’s failure to provide specificity with respect to Quarterly Con-
tractor Work Reports. In finding a violation on this claim, the Board
failed to respond adequately to the Company’s defense that after
1998, when Allegheny Power changed its method of doing business
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in engaging contractors, it did not itself have the information
requested. Before 1998, Allegheny Power was able to give the spe-
cific number of persons working on each project because it paid con-
tractors on a time-and-material basis. But in 1998, Allegheny Power
altered its method of doing business by electing to hire contractors for
a flat fee on a "project basis," as part of a general restructuring effort
in the wake of utility deregulation. Under the "project" approach, con-
tractors, not Allegheny Power, determined the number and type of
laborers used to accomplish a given project, and the number of work-
ers was not part of the contractors’ billings. Consequently, Allegheny
Power did not collect such data from contractors in the course of its
business. Moreover, no one has suggested that Allegheny Power
retained, in the regular course of business, the number and type of
laborers used to accomplish the tasks subcontracted out on a flat-fee
basis to independent contractors, when the contractors themselves
made the determination.
It is well-established that Allegheny Power is not obligated to pro-
vide the Union with information that it does not have, nor to provide
information in the format desired by the Union. See Korn Indus., Inc.
v. NLRB, 389 F.2d 117, 123 (4th Cir. 1967) (holding that an employer
need not produce information that is not available to it for the purpose
of supplying the union with information requested); Food Employer
Council, Inc., 197 N.L.R.B. 651, 651 (1972) (holding that an
employer need not furnish information in the exact form in which the
union requested it). The finding that Allegheny Power violated the
Act by failing to supply this information is thus erroneous by reason
of the established principles of Korn Industries and Food Employer
Council.
B.
The Board also failed to take into account the burdensomeness of
the Union’s demand, particularly in light of the number, repetitive-
ness, and overlapping nature of the requests, as well as the Compa-
ny’s explanations for the absence of more elaborate responses. Under
the NLRB’s ruling, Allegheny Power would be forced to implement
new procedures and direct new or existing resources to gather, com-
pile, and disseminate contractor data that otherwise would be of no
value to the Company. After 1998, such data simply were no longer
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relevant to Allegheny Power because of its shift to project-based con-
tracting. Forcing the Company to create a process whose sole purpose
would be to gather data to satisfy the Union’s demands would work
an undue burden on the Company. The NLRB failed to give due
attention to this defense, considering that the Company is not obli-
gated to produce information that it does not have and would have to
generate with additional resources. Cf. Wachter Constr., 23 F.3d at
1388; Safeway Stores, Inc. v. NLRB, 691 F.2d 953, 956 (10th Cir.
1982).
C.
Finally, Allegheny Power has alleged that the Union’s requests
were made for ulterior motives and in bad faith. The Board never
addressed this issue, which would provide Allegheny Power with a
complete defense. See Wachter Constr., 23 F.3d at 1380 (holding that
a company did not have to honor an information request because "the
union’s predominant purpose in making its request was to harass the
employers and force them to cease a practice permitted under the col-
lective bargaining agreement").
In this case, Allegheny Power contends that the flood of informa-
tion requests submitted by the Union began shortly after Allegheny
Power indicated that it would not pay Union officers for attendance
at certain meetings. After Allegheny Power made its position known
to the Union, the Union made six requests within a six-week period,
and the requests continued thereafter. The Company contended that
the "Union’s campaign of flooding Allegheny Power with informa-
tion requests, shortly after this dispute, with no contract negotiations
scheduled or pending, and in a dramatic departure from its past
behavior, . . . demonstrates the bad faith motive for these requests."
In further support of its claim, the Company contended that on two
occasions when Allegheny Power asserted that it had provided all the
information requested, "the Union suddenly changed its demand from
seeking information regarding contractors from 1999 and 2000 to
seeking detailed cost information from as far back as 1994" and, with
respect to the 10-hour vacation issue, changing its demand to seek all
information since 1996.
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VI.
At bottom, it is apparent that the National Labor Relations Board
so narrowed its focus in this case that it (1) failed to view the record
as a whole and to consider Allegheny Power’s conduct in that con-
text; (2) failed to apply to the Union its legal duty to satisfy certain
conditions before receiving information; and (3) failed to address the
three affirmative defenses raised by Allegheny Power. Had the Board
followed the law and addressed all of the issues before it, it could not
have found on this record that Allegheny Power violated §§ 8(a)(1)
and 8(a)(5) of the National Labor Relations Act, 29 U.S.C.
§ 158(a)(1) and (5).
Accordingly, I would grant Allegheny Power’s Petition for Review
and deny the Board its Cross-Application for Enforcement.
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