Crowley Marine Services, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2000 Decided December 22, 2000

No. 00-1036

Crowley Marine Services, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Kenneth W. Anderson argued the cause for petitioner.

With him on the briefs was Eugene Scalia.

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 Henderson.

Per Curiam: The National Labor Relations Board

("NLRB" or "Board") found, in agreement with the Adminis-

trative Law Judge, that the petitioner, Crowley Marine Ser-

vices ("Crowley"), violated sections 8(a)(5) and (1) of the

National Labor Relations Act ("NLRA") by refusing to pro-

vide the Inlandboatmen's Union of the Pacific ("IBU" or

"Union") with a copy of an arbitration award involving Crow-

ley Petroleum Transport, Inc. and the Seafarers International

Union ("SIU"). See Crowley Marine Services, Inc., 329

N.L.R.B. No. 92, at 10 (Nov. 10, 1999). The Union had

reason to think that the disputed arbitration award addressed

the manning of a tanker that replaced a Union-serviced

barge; therefore, the award was relevant to the Union's

assessment of how best to protect the interests of their

affected bargaining unit members. The Board specifically

found that Union representatives believed that the alleged

work-syphoning arrangement might be in violation of articles

1, 2 and 38 of its collective bargaining agreement with the

petitioner. See id. at 9. The Board therefore ordered Crow-

ley to furnish the Union with a copy of the arbitration award.

Crowley argues that the Board's order is unjustified, because

the arbitration award is irrelevant to the Union's legitimate

interests under the NLRA. We reject Crowley's claim.

There is no doubt 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 correspon-

dence). As the Board explained, the information was sought

and needed "to enable the Union to make an informed

judgement [sic] about pursuing [contract grievance] reme-

dies." Id. at 8. Crowley argues, convincingly, that the

record does not support a finding that the requested informa-

tion should be given to the Union to support future contract

negotiations or a possible recognition demand. This is beside

the point, however, because the information was properly

sought in connection with possible contract grievance claims.

Accordingly, the Board did not err in determining that the

information sought should have been provided to the Union.

An employer's duty to bargain in good faith with a labor

organization representing its employees has long been ac-

knowledged 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. Rath-

er,

[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 employ-

er 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 (foot-

notes 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 judg-

ment of the Board on this score is entitled to "great defer-

ence," 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 Print-

ing & Graphic Communications Union, 598 F.2d at 272.

Substantial evidence in the record supports the Board's con-

clusion that the Union met the required showing that the

requested information was related to possible contract griev-

ance 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 opin-

ion.

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 sub-

sidiary of Crowley Maritime Corporation (CMC), which

through various subsidiaries owns and operates tugs, barges,

tankers and other ocean-going vessels on the east and west

coasts of the United States. CMS primarily services the west

coast, operating tug and barge service along the Alaskan

coast and in the Puget Sound and San Francisco areas. Its

San Francisco operations involve the loading and discharge of

oil barges. It employs locally-based tankermen1 to perform

this work.

The Inlandboatmen's Union of the Pacific (IBU or Union)

represents the tankermen pursuant to a collective bargaining

__________

1 The term "tankermen" is somewhat of a misnomer. Tankermen

work on barges, not tankers. They are land-based and do not

travel with or aboard the barge as it travels between loading and

unloading locations. By contrast, the licensed (and unlicensed)

individuals who work on tankers, which are deep water vessels,

travel aboard the tanker and work at both the loading and unload-

ing destinations. See JA 31-33.

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 agree-

ment to the loading and unloading of CMS "barges 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 Agree-

ment 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 presently offered or

have been offered in the past by Crowley Marine Ser-

vices, 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 petrole-

um 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

__________

2 According to the record, the Favored Nations Clause represent-

ed a compromise designed to accommodate two competing interests.

CMS wanted assurances that the Union would "not undercut [the]

labor agreement with ... any competing companies." JA 41 (testi-

mony of Marina Secchitano, IBU Regional Director). Part A of the

Favored Nations Clause requires the Union "to equalize the total

IBU labor operating costs" if the Union enters into an agreement

with another company. JA 150. In return for this "bitter pill to

swallow," CMS would not "put [the Union] out of work by bringing

someone in to do th[e] work." JA 40-41.

the barge at the Avon facility using San Francisco-based

tankermen represented by the IBU. It then towed the barge

to Tosco's facility in southern California, where it was unload-

ed by tankermen who worked for Crowley Towing and Trans-

portation 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 Rodeo and Avon facilities to southern California.

The twelve unlicensed crew members of the Coast Range

were represented by the Seafarers International Union (SIU)

and the eight licensed officers aboard the Coast Range were

represented by the American Maritime Officers. Although

the record does not establish why Tosco chose to time charter

the Coast Range in lieu of renewing its time charter of Barge

450-6, one witness for CMS (Norman George, CPTI's manag-

er of tanker operations) testified before the ALJ that the

Coast Range had more than twice the carrying capacity of

Barge 450-6 as well as a faster steaming time. Additionally,

the tanker was fitted with a vapor recovery system and an

inert gas system, both required for use at the Rodeo facility.3

See JA 110-11.

As a result of Tosco's decision not to renew its time charter

of Barge 450-6, CMS tankermen based in San Francisco

__________

3 While the ALJ acknowledged George's testimony detailed the

Coast Range's advantages over Barge 450-6, she concluded that

there was no affirmative evidence that Barge 450-6 lacked the

same. Despite the absence of evidence to the contrary, she reject-

ed George's statement that Barge 450-6 did not have an inert gas

or a vapor recovery system because "there were no predicates

presented for this surmise." Crowley Marine Servs., Inc., 329

N.L.R.B. No. 92, at 6 (Nov. 10, 1999). She then concluded that

George's "surmise works to impede his credibility." Id.

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 en-

gaged [sic] by CMS." JA 170.

On November 21, 1997 the IBU sent CMS a letter request-

ing 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 be

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' infor-

mation 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

position 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... employ-

er [designated therein as CMS]... refused to provide infor-

mation 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 deter-

mine whether the Company provided information to an-

other 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 oc-

curred. 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 recognition 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 repre-

sents 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 8(a)(1) and (5) of the

National Labor Relations Act by refusing, beginning about

December 10, 1997, to provide the IBU with a copy of the

arbitration award between the petitioner 4 and the SIU. JA

8. After a hearing, the ALJ found that the Union "met its

burden of establishing the potential relevance of the [SIU

Arbitration Award] under the liberal discovery standard ap-

plied in these cases." Crowley Marine Servs., Inc., 329

N.L.R.B. No. 92, at 8 (Nov. 10, 1999). The ALJ held that

CMS's "own comments led the Union to reasonably believe

the SIU arbitration award contained information that would

indicate if it should pursue its belief that articles 1, 2, and 38

of the collective-bargaining agreement had been violated by

__________

4 The Board incorrectly stated that the arbitration award was

between CMS and the SIU. Instead it involved CPTI and the SIU.

See infra at 12 & n.10.

[CMS] when it terminated the barge operation5 and handled

the business with the tanker staffed by SIU members." Id.

The ALJ ordered CMS to furnish the Union a copy of the

SIU arbitration award and "all information requested by the

Union on and after November 21, 1997, concerning the SIU

arbitration award." Id. at 10. On November 10, 1999 the

NLRB issued an order affirming the ALJ's rulings, findings

and conclusions. CMS petitioned for review by this court and

the NLRB cross-petitioned for enforcement.

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 (1968); Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (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), regardless whether the court might have

reached a different conclusion de novo. See Universal Cam-

era Corp., 340 U.S. at 488.

The duty to bargain collectively, imposed upon an employer

by section 8(a)(5) of the National Labor Relations Act, in-

cludes a duty to supply the union with " 'requested informa-

tion that will enable [the union] to negotiate effectively and to

perform properly its other duties as bargaining representa-

tive.' " Oil, Chem. & Atomic Workers Local Union v. NLRB,

711 F.2d 348, 358 (D.C. Cir. 1983) (quoting Local 13, Detroit

Newspaper Printing and Graphic Communications Union v.

NLRB, 598 F.2d 267, 271 (D.C. Cir. 1979)); see Detroit

Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v.

Acme Indus. Co., 385 U.S. 432, 437 (1967). The obligation to

furnish relevant information is " 'rooted in recognition that

union access to such information can often prevent conflicts

which hamper collective bargaining,' and it undoubtedly ex-

__________

5 The ALJ incorrectly stated that CMS terminated the barge

operation. In fact Tosco, CMS's customer, terminated the barge

operation by not renewing its time charter of Barge 450-6.

tends to data requested in order properly to administer and

police a collective bargaining agreement as well as to requests

advanced to facilitate the negotiation of such contracts." Oil,

Chem. & Atomic Workers Local Union, 711 F.2d at 358

(quoting Florida Steel Corp. v. NLRB, 601 F.2d 125, 129 (4th

Cir. 1979)). "That is not to say, however, that the Act

requires an employer to lay open its books at any or every

union request; certain requirements must be met." General

Elec. Co. v. NLRB, 916 F.2d 1163, 1167-68 (7th Cir. 1990).

"Each case must turn upon its particular facts." NLRB v.

Truitt Mfg. Co., 351 U.S. 149, 153-54 (1956) ("The 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.").

The first question is always one of relevance. See Emery-

ville 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 disclosure, 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. In fact, "information that may

be 'relevant' in the broadest sense can nonetheless be with-

held 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 statutory duties and responsibilities.' " Oil, Chem. &

Atomic Workers Local Union, 711 F.2d at 359 (quoting

NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967)).

"Certain types of information are 'so intrinsic to the core of

the employer-employee relationship' that they are presump-

tively 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 con-

cerning 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 ordi-

narily relevant. See George Koch Sons, Inc., 950 F.2d at

1331.

Because the information the IBU requested involved non-

unit 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 Demo-

crat Publishing Co. v. NLRB, 629 F.2d 1320, 1324 (9th Cir.

1980)), although it need not demonstrate that the SIU arbi-

tration award was " 'certainly relevant or clearly dispositive

of the basic... issues between the parties.' " Id. (quoting

Westinghouse Elec. Corp., 29 N.L.R.B. 106, 107 (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, " 'relevant' is synonymous

with 'germane' and, in the absence of some valid countervail-

ing interest," the company had a duty to disclose the informa-

tion so long as it had a bearing on the bargaining process.

__________

6 And there can be no doubt that the IBU knew at the time of its

request that the information it sought involved non-unit employees

represented by the SIU. See JA 171. The IBU also knew that the

non-unit employees represented by the SIU were employed by

CPTI, not CMS. See JA 170.

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 presi-

dent that the SIU award was a product of arbitration. See

Crowley Marine Services, Inc., 329 N.L.R.B. No. 92, at 8

(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, presum-

ably, CT&T 7 would help the Union negotiate changes in its

collective bargaining agreement with CMS. See id. at 8-9.

Next, the Board hypothesized that since the Union had a duty

to police its collective bargaining agreement with CMS, the

fact that CPTI was CMS's "affiliate" alerted the Union as to

whether it had a claim under the work preservation clause of

its own agreement. See id. Finally, the Board thought that

the SIU arbitration award would assist the Union in deciding

"whether to make a claim for the work." Id. at 9 (explaining

that "the information may be later used for subsequent work

demands").

Although we give "great weight" to the Board's determina-

tion 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 fairly 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 (1951); Time Warner Cable v. NLRB, 160 F.3d

1, 3 (D.C. Cir. 1998). More important, we must examine the

__________

7 Although the record does not reflect the target of SIU's griev-

ance, its collective bargaining agreement was with CT&T.

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 consid-

er the basis for a union's information or bargaining demand

can the employer violate the NLRA by rejecting the de-

mand.' " 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 fail

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 letter 8 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

reason for the IBU's request. See supra at 5. The Board,

however, cannot supply reasons nunc pro tunc and post litem

__________

8 The Board found, however, that "[t]he Union's November 21

letter indicates it tried to get the information from [CMS] on

previous occasions without success." Crowley Marine Services,

Inc., 329 N.L.R.B. No. 92, at 9 (Nov. 10, 1999). Nothing in the

letter or elsewhere in the record indicates that the Union had

previously requested the arbitration award.

9 Marina Secchitano, the IBU's regional director, confirmed at the

hearing that "any discussion with Crowley" about the SIU arbitra-

tion award request was contained in the correspondence and that

she had no "actual discussion with anyone from Crowley about the

arbitration award." JA 45.

motam to conclude that the Union met its burden to affirma-

tively 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 prac-

tice charge was filed, did not give the reasons supplied years

later by the Board.10

The per curiam opinion states that the Union "had reason

to think" that the SIU arbitration award was relevant and

that the Union "believed" it had been wronged. Maj. Op. at

2. The Union's thoughts and beliefs, however, are irrelevant

to whether the Union explained to CMS the relevance of the

arbitration award at the time of its request. While I agree

that "not much is required" to establish relevancy, see Oil,

Chem. & Atomic Workers, 711 F.2d at 359, here there is

simply no record support for the Board's conclusion that the

IBU timely explained relevance as it was required to do.

The Board pointed to the IBU's February 13, 1998 letter as

adequately alerting CMS to the relevance of the SIU arbitra-

tion award because the letter stated that the award would

__________

10 Moreover, the Board's, the ALJ's and the Union's repeated

references to Crowley subsidiaries other than CMS interchangeably

with CMS, with no record evidence that CMS and other CMC

subsidiaries operated other than independently of each other, fatally

skewed its view of the record as a whole. For example, the IBU's

February 13, 1998 letter formally requesting the SIU arbitration

award explained that "[i]t is important to determine whether the

Company provided information to another Union that should have

been provided to us." JA 173. But the "company" that was in a

position to provide the SIU with information about the Tosco time

charter of the Coast Range was CT&T or CPTI, not CMS. Neither

CT&T nor CPTI is a party to this action. See also supra note 4.

Likewise, the IBU's November 21, 1997 to CMS letter asked "what

the Company intended to do with the tankers" even though the IBU

had previously been informed that CMS did not operate or own any

tankers. JA 170-71. And at oral argument the Board counsel

questioned whether CPTI had the wherewithal to purchase Tosco's

tankers, suggesting that the parent CMC was orchestrating some

scheme to replace CMS barges with CPTI tankers at Tosco's Avon

facility. This assertion lacks any record support.

provide information about the contract under which the arbi-

tration arose. Relying solely on the Board's spare discussion

of that letter,11 the per curiam opinion concludes that "[s]ub-

stantial evidence supports the Board's determination that the

Union communicated to Crowley that the arbitration award

was reasonably relevant to pending and possible future griev-

ance claims." The opinion glosses over the issue of timeli-

ness; 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 "grievance," 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

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11 The per curiam opinion grants the Board's cross-petition only

to the extent that the Union's purported "grievance" rendered its

information request relevant. It does not affirm the other Board

theories of relevance.

12 Furthermore, I do not think the letter adequately set forth the

work preservation theory. The February 13 letter states: "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 deter-

mine whether the Company provided information to another Union

that should have been provided to us. If so, under what circum-

stances was this information provided that led the Union to believe

a contract violation occurred." JA 173. The Union did not explain

why it wanted to know under what contract the SIU claims were

made other than its suspicion that "the Company," see supra note

10, provided information to the SIU that it should have provided to

the Union. In fact, the Union never explained that it wanted the

information because it might pursue a work preservation claim.

And even if there were similarities between the SIU contract and

the IBU collective bargaining agreement with CMS (which the

Union did not allege), I believe any similarity would support a work

claim theory of relevance, not a work preservation theory because

the IBU's collective bargaining agreement limits its representation

to tankermen who work on barges, not the unlicensed individuals

who work on tankers like the Coast Range. The Union did not and

does not now base its request on a work claim theory.

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 rea-

sons 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.