CROWLEY MARINE SERVICES, INC., Pеtitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 00-1036.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 15, 2000. Decided Dec. 22, 2000.
1295
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The absence of a reasoned Commission explanation requires us to reverse and remand the case for further proceedings.
So ordered.
Richard A. Cohen, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Leonard R. Page, General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel. Frederick L. Cornnell, Jr., Attorney, entered an appearance.
Before: EDWARDS, Chief Judge, SENTELLE and HENDERSON, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Dissenting opinion filed by Circuit Judge KAREN LECRAFT HENDERSON.
PER CURIAM:
The National Labor Relations Board (“NLRB” or “Board“) found, in agreement with the Administrative Law Judge, that the petitioner, Crowley Marine Services (“Crowley“), violated sections
There is no dоubt that, on the record before us, the Board was fully justified in finding merit in the Union‘s request for the information in connection with a possible grievance claim. Substantial evidence supports the Board‘s determination that the Union communicated to Crowley that the arbitration award was reasonably relevant to pending and possible future grievance claims. See, e.g., id. at 5 (finding that the Union explained the relevance of its request in written correspondence). As the Board explained, the information was sought and needed “to enable the Union to make an informed judgement [sic] about pursuing [contract grievance] remedies.” Id. at 8. Crowley argues, convincingly, that the record does not support a finding
An employer‘s duty to bargain in good faith with a labor organization representing its employees has long been acknowledgеd to include a duty to supply the union with requested information that will enable the union to perform properly its duties as a bargaining representative. This duty “undoubtedly extends to data requested in order properly to administer and police a collective bargaining agreement.” Oil, Chemical & Atomic Workers Local Union v. NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983).
Moreover, the Union was not required to show conclusively that the information it sought was technically “relevant” or that its request was based on a meritorious grievance. Rather,
[t]he fact that the information is of probable or potential relevance is sufficient to give rise to an obligation ... to provide it. Under this “discovery-type standard,” NLRB v. Acme Industrial Co., 385 U.S. at 437, 87 S.Ct. at 568, “‘relevant’ is synonymous with ‘germane‘” and, in the absence of some valid countervailing interest, an employer must disclose information requested by a union as long as that information has a bearing on the bargaining process. Local 13, Detroit Newspaper Printing & Graphic Communications Union v. NLRB, 598 F.2d 267, 271-72 (D.C. Cir. 1979).
Oil, Chemical & Atomic Workers, 711 F.2d at 359-60 (footnotes omitted).
Under this well-established case law, not much is required to justify a union‘s request for information that is related to its bargaining unit representation functions. And the judgment of the Board on this score is entitled to “great deference,” because “[d]etermining whether a party has violated its duty to ‘confer in good faith’ is ‘particularly within the expertise of the Board.‘” Local 13, Detroit Newspaper Printing & Graphic Communications Union, 598 F.2d at 272. Substantial evidence in the record supports the Board‘s conclusion that the Union met the required showing that the requested information was related to possible contract grievance claims.
Accordingly, it is hereby ordered that Crowley‘s petition for review is denied, and the Board‘s cross-application for enforcement is hereby granted in accordance with this opinion.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
His reasons are as two
grains of wheat hid
in two bushels of chaff; you
shall seek all day ere you find
them, and when you have them,
they are not worth the search.
William Shakespeare
The Merchant of Venice, Act I, sc. i.
The court‘s per curiam opinion knocks down the modest, but real, requirement that a union requesting information from an employer explain, at the time of its request, the relevance, or at least potential relevance, of information not ordinarily pertinent to its role as bargaining representative. In its place, the court leaves a flattened, if not phantom, hurdle. Accordingly, and for the reasons set forth below, I would grant the petition for review.
I. Background
The petitioner, Crowley Marine Services (CMS), is a subsidiary of Crowley Maritime Corporation (CMC), which through
The Inlandboatmen‘s Union of the Pacific (IBU or Union) represents the tankermen pursuant to a collective bargaining agreement with CMS. Article 1 of the agreement recognizes the IBU as the exclusive bargaining representative of CMS tankermen who work in northern California and provides for work preservation, prohibiting CMS from reassigning or transferring work to non-bargaining unit employees. Article 2 limits the scope and geographical jurisdiction of the agreement to the loading and unloading of CMS “bargages operating in Northern California, south to and including Morro Bay; north to Coos Bay and split discharges involving the Coos Bay Oregon Ports of Call and Columbia River area.” JA 126. Article 38, entitled “Favored Nations Clause,”2 provides that
Crowley Marine Services, Inc. (formerly Harbor Tug and Barge Company) agrees that for the life of this Agreement will not be able [sic] a participant in or contribute any assets, equipment under their control, nor employees to any company, partnership, or joint venture which intends or is tended to compete with or replace the tug, barge and towing services which are рresently offered or have been offered in the past by Crowley Marine Services, Inc. ... or which would have the effect of reducing the amount of work available to the Bargaining Unit.
JA 150-51.
Before June 30, 1997 Tosco Oil Company (Tosco), a petroleum and refining company, time chartered the services of Barge 450-6 owned by CMS. Tosco used Barge 450-6 to transport petroleum products from its Avon facility in San Francisco to its refinery operations in southern California. Under the time charter, CMS operated the barge. It loaded the barge at the Avon facility using San Francisco-based tankermen reprеsented by the IBU. It then towed the barge to Tosco‘s facility in southern California, where it was unloaded by tankermen who worked for Crowley Towing and Transportation Company (CT&T), another subsidiary of CMC, and who were represented by the SIU. JA 176.
Around March, 1997 Tosco bought Union Oil Company of California (Unocal), including its Rodeo refinery in the San Francisco area and three tankers. Tosco sold two of the tankers, the Coast Range and the Blue Ridge, to Crowley Petroleum Transport, Inc. (CPTI), a newly created subsidiary of CT&T. Tosco then entered into a time charter with CPTI. Under the time charter, CPTI provided the vessel (the Coast Range) and crew to transport Tosco oil and refinery products from the
As a result of Tosco‘s decision not to renew its time charter of Barge 450-6, CMS tankermen based in San Francisco ceased work at Tosco‘s Avon facility. CMS laid off one tankerman, Eugene S. Tracy, and reassigned Barge 450-6 to Alaska. On July 15, 1997 Tracy filed a grievance claiming that CMS laid him off “due to Crowley shifting the work that [Tracy] was formerly doing on the 450-6 to one of the new ... tankers that Crowley purchased from Tosco.” JA 166. His grievance asserted that CMS‘s actions violated articles 1 and 38(B) of the collective bargaining agreement and he sought reinstatement and back pay. On August 7, 1997 the IBU filed a generic grievance to cover all of its members. Its grievance asserted that the “Company [designated therein as CMS] violated the agreement when [it] refused to bargain the effects of this change and when [it] hired non-IBU crews to perform our work, displacing the tug and barge and towing services with tankers.” JA 167.
By letter dated August 21, 1997, the petitioner denied Tracy‘s grievance. The letter explained that “CMS did not shift the work that was formerly performed by Barge 450-6 to one of the new oil tankers that a separate company, Crowley Petroleum Transport, Inc. (CPTI) purchased from TOSCO. ... It is our understanding that TOSCO, in light of its new needs, decided that Barge 450-6 was not suitable.” JA 168. CMS also noted in the letter that it had transferred Barge 102 to the west coast and thus had not reduced its barge operations. By separate letter also dated August 21, 1997, CMS denied the IBU‘s grievance on two grounds. First, it explained that the grievance was untimely. Second, CMS found the grievance without merit because it was not CMS that shifted the work formerly performed by Barge 450-6 to the tanker operated by CPTI. The letter explained that “CPTI is a separate company and in a substantially different type of business than the barge transportation engaged [sic] by CMS.” JA 170.
On November 21, 1997 the IBU sent CMS a letter requesting that the parties take the “IBU grievance to arbitration to decide if the Company violated the Tankermen Agreement when [it] replaced the tug and barge service on the TOSCO run with [its] tankers.” JA 171. The letter explained:
Your position has been that the grievance was untimely. As I have pointed out to you, the Company has not been forth coming with information on this issue. In fact, the Company did not come to us and inform us they would bе doing this. I have tried to get more information from you on occasion and you have indicated “you do not know“.
How can the Union be expected “to know” information regarding the purchase of the tankers and what the Company intended to do with the tankers when you, Manager of Labor Relations, don‘t even know.
JA 171. The penultimate paragraph contained the critical request for information: “Please provide me with a copy of the arbitration with the SIU that deals with the crewing of these ships [the tankers] at your earliest convenience.” JA 171.
By letter dated December 10, 1997, CMS reiterated its pоsition that the IBU grievance was untimely. With respect to the IBU‘s request for the SIU arbitration award, CMS stated that it was “at a loss to understand the relevance of such a request.” JA 172. It explained that “[t]he crewing of such blue water vessels should not be any particular concern to a union representing barge tankerman.” JA 172. The letter asked the IBU “to explain... why an arbitration decision on the crewing of a vessel on which the IBU has no recognition or other claim could possibly be relevant to the IBU.” JA 172.
Instead of explaining, the IBU, on February 9, 1998, filed an unfair labor practice charge, alleging that “the... employеr [designated therein as CMS]... refused to provide information requests by the union relevant to a labor dispute.” JA 3. Four days later the IBU sent a letter to CMS formally demanding, inter alia, the SIU arbitration award. The letter explained:
It has come to our attention that the Company was claiming the work was given to the SIU as a result of an arbitration. I would like to know what contract the grievance that led to arbitration was filed under, whether it was the tug and barge operation or the ship operation that claims were made under. It is important to determine whether the Company provided information to another Union that should have been provided to us. If so, under what circumstances was this information provided that led the Union to believe a contract violation occurred. As you know, we were not given information in advance of the transfer of equipment, and the Company is claiming that the tug and barge operation was not replaced by the tanker operation.
JA 173. The petitioner responded by letter dated March 10, 1998. Thomas P. Baldwin, CMS‘s manager of labor relations, wrote: “I am unclear, and you still have not explained to me, why an arbitration decision on crewing of a vessel on which the IBU has no reсognition or any other claim, could be relevant to the IBU. The oil tanker operation, Crowley Petroleum Transport, Inc. (CPTI) is a deep-sea company and is a completely separate company from Crowley Marine Services, Inc. (CMS). The IBU-San Francisco Region represents shore-based tankermen in San Francisco.” JA 175. The Union did not respond to the letter.
The National Labor Relations Board (NLRB or Board) issued a Complaint and Notice of Hearing on April 30, 1998, alleging that CMS violated section
II. Analysis
Review of a Board order is deferential. The court applies the substantial evidence test to the Board‘s findings of fact and application of law to the facts, see NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and accords due deference to the reasonable inferences that the Board draws from the evidence, see Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C.Cir.1980), regardlеss whether the court might have reached a different conclusion de novo. See Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. 456.
The duty to bargain collectively, imposed upon an employer by section
The first question is always one of relevance. See Emeryville Research Ctr., Shell Dev. Co. v. NLRB, 441 F.2d 880, 883 (9th Cir.1971). The relevance threshold is low so as to permit broad disclosure of information. See General Elec. Co., 916 F.2d at 1168. Broad disclоsure, however, is not unlimited disclosure. See id. “A union‘s bare assertion that it needs information ... does not automatically oblige the employer to supply all the information in the manner requested.” Detroit Edison Co., 440 U.S. at 314, 99 S.Ct. 1123. In fact, “information that may be ‘relevant’ in the broadest sense can nonetheless be withheld without violating the duty to bargain in good faith.” General Elec. Co., 916 F.2d at 1168. The employer‘s duty depends on the “probability that the desired information [is] relevant, and that it [will] be of use to the union in carrying out its statuto-
“Certain types of information are ‘so intrinsic to the core of the employer-employee relationship’ that they are presumptively relevant. ‘Conversely, when the requested information is not ordinarily pertinent to a union‘s role as bargaining representative, but is alleged to have become pertinent under particular circumstances, the union has the burden of proving relevance before the employer must comply.‘” NLRB v. George Koch Sons, Inc., 950 F.2d 1324, 1331 (7th Cir.1991) (citations omitted). Information about non-unit employees is not ordinarily pertinent to a union‘s role as a bargaining representative. See Oil, Chem. & Atomic Workers Local Union, 711 F.2d at 359 (“[W]hen information not ordinarily pertinent to collective bargaining, such as information concerning nonunit employees, is requested by a union, relevance is not assumed.‘“) (quoting Press Democrat Publishing Co. v. NLRB, 629 F.2d 1320, 1324 (9th Cir. 1980)); George Koch Sons, Inc., 950 F.2d at 1331 (“[O]ther courts of appeals have held that a union‘s request for information about employees with whom a union does not have a bargaining relationship is not presumptively relevant.“) (emphasis original). Likewise, information pertaining to the operations of employers with whom the union has no bargaining relationship is not ordinarily relevant. See George Koch Sons, Inc., 950 F.2d at 1331.
Because the information the IBU requested involved nonunit employees represented by the SIU and employed by CPTI,6 the IBU had a duty to “affirmatively demonstrate relevance to bargainable issues,” Oil, Chemical & Atomic Workers Local Union, 711 F.2d at 359 (quoting Press Democrat Publishing Co. v. NLRB, 629 F.2d 1320, 1324 (9th Cir.1980)), although it need not demonstrate that the SIU arbitration award was “‘certainly relevant or clearly dispositive of the basic... issues between the parties.‘” Id. (quoting Westinghouse Elec. Corp. v. International Union of Electrical Workers, 238 N.L.R.B. 102, 107, 1978 WL 8089 (1978)); see also United States Testing Co. v. NLRB, 160 F.3d 14, 19 (D.C.Cir.1998), reh‘g and suggestion for reh‘g en banc denied (Jan. 20, 1999). Under the “discovery-type standard,” Acme Indus. Co., 385 U.S. at 437, 87 S.Ct. 565, “‘relevant’ is synonymous with ‘germane’ and, in the absence of some valid countervailing interest,” the company had a duty to disclose the information so long as it had a bearing on the bargaining process. Oil, Chem. & Atomic Workers Local Union, 711 F.2d at 360 (citations omitted).
The Board ruled that the Union affirmatively explained the relevance of the SIU arbitration award. It first noted that an unnamed CMS official informed the Union‘s national president that the SIU award was a product of arbitration. See Crowley Marine Services, Inc., 329 N.L.R.B. No. 92, at 8, 1999 WL 1046770 (Nov. 10, 1999). Next, the Board found that CMS failed to inform the Union of the pending change in operation of Barge 450-6 and that the SIU arbitration award demonstrated that it had provided information to another union. See Id. Third, the Board opined that any information about the contract under which the SIU pursued its grievance against, presumably, CT&T7 would help the Union negotiate changes in its collective bargaining agreement with CMS. See id. at 8-9. Next, the Board
Although we give “great weight” to the Board‘s determination on the relevance of requested information, Oil, Chemical & Atomic Workers Local Union, 711 F.2d at 360, our review is not “a mere rubber stamp substituting judicial abdication for judicial review. It is imperative that the reviewing court examine all of the evidence in context to ensure that the Board‘s findings fаirly and accurately represent the picture painted by the record.” General Elec. Co., 916 F.2d at 1168 (quoting NLRB v. Harvstone Mfg. Co., 785 F.2d 570, 574-75 (7th Cir.1986)); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Time Warner Cable v. NLRB, 160 F.3d 1, 3 (D.C.Cir. 1998). More important, we must examine the reasons the Union proffered at the time of the demand for the information. See George Koch Sons, Inc., 950 F.2d at 1330; General Elec. Co., 916 F.2d at 1169; NLRB v. A.S. Abell Co., 624 F.2d 506, 513 n. 5 (4th Cir.1980) (“[W]e deal with the fact situation presented to the Company at the time it acted.“). “[O]nly after an employer has had an opportunity to consider the basis for a union‘s information or bargain-ing demand can the employer violate the NLRA by rejecting the demand.” Hertz Corp. v. NLRB, 105 F.3d 868, 873 (3d Cir.1997) (quoting NLRB v. United States Postal Svc., 18 F.3d 1089, 1102 n. 7 (3d Cir.1994)). The court must look at the record as a whole as it existed when the Union made its demand. See United States Testing Co., 160 F.3d at 19 (“[C]ontext is everything.“); General Elec. Co., 916 F.2d at 1170.
Viewing the record at the time of the IBU‘s demand, I fаil to find any evidence to support the Board‘s conclusion that the Union affirmatively and timely explained the relevance of its request. Not one of the facts and theories of relevance posited by the Board was made known to CMS, much less communicated by the Union at the time of its demand. Before filing the unfair labor practice charge, the Union had made only one request for the SIU arbitration award, in the November 21, 1997 letter8 to CMS, and the letter constitutes the Union‘s sole attempt to obtain the information before filing an unfair labor practice charge.9 The letter gave no reаson for the IBU‘s request. See supra at 1299-1300. The Board, however, cannot supply reasons nunc pro tunc and post litem motam to conclude that the Union met its burden to affirmatively demonstrate the relevance of the SIU arbitration award at the time it requested the information. Even the February 13, 1998 “formal demand,” made after the unfair labor practice charge was filed, did not give the reasons supplied years later by the Board.10
The Board pointed to the IBU‘s February 13, 1998 letter as adequately alerting CMS to the relevance of the SIU arbitration award because the letter stated that the award would provide information about the contract under which the arbitration arоse. Relying solely on the Board‘s spare discussion of that letter,11 the per curiam opinion concludes that “[s]ubstantial evidence supports the Board‘s determination that the Union communicated to Crowley that the arbitration award was reasonably relevant to pending and possible future grievance claims.” The opinion glosses over the issue of timeliness; it ignores the fact that the February 13, 1998 letter was written almost three months after the Union made its request and four days after it filed an unfair labor practice charge. Even the Union‘s February explanation, however, failed to alert CMS to its “grievаnce,” that is it was considering a claim under the work preservation clause.12 Likewise, while the Union heard of the SIU arbitration award from someone at CMS, I fail to see how this fact made the substance of the award relevant. Finally, the Union‘s assertion that it had no notice of Tosco‘s decision not to renew the Barge 450-6 time charter is irrelevant to whether the Union disclosed its reasons establishing relevance. Thus, I fail to find anything approaching substantial evidence in the record showing that the Union met its burden to timely and affirmatively explain the relevance of its request.
Accordingly, I dissent.
In re BLUEWATER NETWORK and Ocean Advocates, Petitioners.
No. 99-1502.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 16, 2000. Decided Dec. 22, 2000.
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