DirectSat USA, LLC

National Labor Relations Board - Board Decisions

Mar 20, 2018

366 NLRB No. 40 (N.L.R.B. 2018)

366 NLRB No. 40
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
DirectSat USA, LLC and International Brotherhood
of Electrical Workers, Local Union 21, AFL–
CIO. Case 13–CA–176621
March 20, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On July 20, 2017, Administrative Law Judge Charles
J. Muhl issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Charging Party Union filed answering
briefs, and the Respondent filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
and to adopt the recommended Order as modified.3
To begin, we disagree with the Respondent’s claim
that the judge violated its due process rights by deciding
this case on a legal theory that was not advanced by the
General Counsel. Before the judge, the General Counsel
argued that the Union needed to review the full, unre-
dacted Home Services Provider (HSP) subcontracting

1 The Respondent excepts to the judge’s partial denial of its motion
to strike portions of the Union’s brief to the judge, which allegedly
offered factual assertions and conclusions based on evidence not con-
tained in the stipulated record. We find it unnecessary to pass on that
exception because the judge did not rely on those portions of the Un-
ion’s brief and, in any event, those allegedly extraneous facts would not
affect the result in this case.
2 The Board does not rely on the judge’s statement that, in cases
where a union requests information relative to matters outside the bar-
gaining unit, “the standard is somewhat narrower and relevance is
required to be somewhat more precise.” The Board has found that a
union satisfies its burden to establish the relevance of non-unit infor-
mation if it demonstrates either “a reasonable belief, supported by
objective evidence, that the requested information is relevant,” Disney-
land Park, 350 NLRB 1256, 1257–1258 (2007) (citation omitted), or “a
‘probability that the desired information was relevant, and that it would
be of use to the union in carrying out its statutory duties and responsi-
bilities,’” Kraft Foods North America, Inc., 355 NLRB 753, 754 (2010)
(quoting NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967)).
Either way, the Board has consistently emphasized that the required
showing is subject to the same broad, “discovery-type standard” appli-
cable to other information requests, and that the union’s burden is
therefore “not an exceptionally heavy one.” Kraft Foods, supra (inter-
nal quotation marks and citations omitted); accord, e.g., A-1 Door &
Building Solutions, 356 NLRB 499, 500 (2011); Public Service Electric
& Gas Co., 323 NLRB 1182, 1186 (1997); Shoppers Food Warehouse,
315 NLRB 258, 259 (1994).
3 We shall modify the judge’s recommended Order and remedial no-
tice to conform to the Board’s standard remedial language.
agreement between DirecTV and the Respondent in order
to determine whether those entities were joint employers
for purposes of collective bargaining, or alternately to
verify the Respondent’s claims about the nature of their
relationship. The judge rejected both arguments and
found instead that the Union was entitled to see the full
HSP to verify the Respondent’s claim that it had fur-
nished all portions of that document relative to the scope
of bargaining-unit work.
“The Board, with court approval, has repeatedly found
violations for different reasons and on different theories
from those of administrative law judges or the General
Counsel, even in the absence of exceptions, where the
unlawful conduct was alleged in the complaint.” Local
58, Int’l Brotherhood of Electrical Workers (IBEW),
AFL–CIO (Paramount Industries, Inc.), 365 NLRB No.
30, slip op. at 4 fn. 17 (2017) (emphasis in original) (cit-
ing cases); accord, e.g., Davis Supermarkets, Inc. v.
NLRB, 2 F.3d 1162, 1169 (D.C. Cir. 1993), cert. denied
511 U.S. 1003 (1994). When analyzing whether a
judge’s finding of a violation on a theory that was not
clearly articulated by the General Counsel violates a re-
spondent’s due process rights, the Board considers (1)
whether the language of the complaint encompasses the
legal theory upon which the violation was found; (2)
whether the factual record is complete, or, in other
words, whether the facts necessary to find a violation
under the theory in question were litigated; (3) whether
the law is well established; and (4) the General Counsel’s
representations about the theory of violation, and the
differences between the litigated theory and the theory
upon which the judge relied in finding the violation. See,
e.g., Paramount Industries, supra (factors (1), (2), and
(3)); Sierra Bullets, LLC, 340 NLRB 242, 242–243
(2003) (factor (4)). We agree, for the reasons stated by
the judge, that the first two factors were satisfied in this
case. Furthermore, although the judge omitted the other
two factors from his analysis, on this record we are satis-
fied that both are met as well. As to the third factor, it is
well settled that unions have a legal right to assess and
verify for themselves the accuracy of employers’ claims
in bargaining. See, e.g., NLRB v. Truitt Mfg. Co., 351
U.S. 149, 152–153 (1956); Caldwell Mfg. Co., 346
NLRB 1159, 1160 (2006); Shoppers Food Warehouse,
315 NLRB 258, 259 (1994). And as to the fourth factor,
the Respondent does not, and cannot, claim to have re-
lied on the General Counsel’s representations of the case
in preparing its defense. Indeed, the case was submitted
on a stipulated record and the parties’ briefs to the judge
were due on the same day. Moreover, we note that the
Respondent has not identified any evidence it would
have produced, or any specific defense it would have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
otherwise put forth, if it had known the judge would de-
cide the case as he did.
As to the merits of the judge’s finding, we agree that
the Respondent was obligated to provide the full, unre-
dacted HSP to the Union in order for the Union to evalu-
ate the extent of work covered by the Respondent’s pro-
posal. We observe that the Respondent’s proposal with
regard to new product lines effectively amounted to hav-
ing the scope of bargaining-unit work defined by the
HSP. A union cannot be reasonably expected to inte-
grate another agreement between the employer and a
third party into its own collective-bargaining agreement
without having a complete understanding of the contents
of the incorporated document and the context of the rele-
vant portions within the document as a whole. The Re-
spondent thus rendered the entire HSP relevant to the
negotiation, giving rise to a duty to provide the full, un-
redacted document to the Union.4
ORDER
The Respondent, DirectSat USA, LLC, South Holland,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Interna-
tional Brotherhood of Electrical Workers, Local Union
21, AFL–CIO, by failing and refusing to furnish it with
requested information that is relevant and necessary to
the Union’s performance of its functions as the collec-
tive-bargaining representative of the Respondent’s unit
employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, pro-
vide the Union with a full, unredacted copy of the Home
Service Provider agreement between the Respondent and
DirecTV.
(b) Within 14 days after service by the Region, post at
its facility in South Holland, Illinois, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
13, after being signed by the Respondent’s authorized

4 We further note that the Respondent did not, at any point, object to
disclosing the full HSP on grounds that doing so could reveal infor-
mation of a confidential, proprietary, or trade-secret nature. In addi-
tion, Member Emanuel observes that the Respondent did not assert a
confidentiality interest in its exceptions.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to the physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since March 18, 2016.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 20, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
DIRECTSAT USA, LLC 3
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with the
International Brotherhood of Electrical Workers, Local
Union 21, AFL–CIO (the Union), by failing and refusing
to furnish it with requested information that is relevant
and necessary to the Union’s performance of its func-
tions as the exclusive collective-bargaining representa-
tive of employees in the following appropriate bargain-
ing unit:
All full-time and regular part-time Installation/Service
Technicians employed by the Employer at its facility
located in South Holland, Illinois, but excluding all
other employees, confidential employees, guards, and
supervisors as defined in the National Labor Relations
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on March 18 and
May 19, 2016.
DIRECTSAT USA, LLC
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-176621 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Elizabeth S. Cortez, Esq., for the General Counsel.
Eric P. Simon, Esq. and Douglas J. Klein, Esq. (Jackson Lewis
P.C.), of New York, New York, for the Respondent.
Gilbert Cornfield, Esq. (Cornfield and Feldman LLP), of Chi-
cago, Illinois, for the Charging Party.
DECISION
CHARLES J. MUHL, Administrative Law Judge. The General
Counsel’s complaint in this case alleges that DirectSat USA,
LLC (the Respondent) unlawfully refused to provide infor-
mation to Local Union 21 of the International Brotherhood of
Electrical Workers, AFL–CIO (the Union). That Union repre-
sents the Respondent’s installation and service technicians, who
perform work for DirecTV, Inc. under a subcontract. The in-
formation at issue is a full and unredacted copy of the Re-
spondent’s contract—the “Home Service Provider” agree-
ment—with DirecTV. The situation arose in the context of
negotiations for a first contract covering the Respondent’s
technicians.
On April 10, 2017, the parties filed a joint motion and stipu-
lation of facts requesting that the case be decided without a
hearing and based on the stipulated record. On April 14, 2017,
I granted the motion and approved the stipulation of facts via
written order. Thereafter, the parties filed briefs on May 26,
2017. Based upon those briefs and the entire stipulated record,
I find that the Respondent violated the Act as alleged in the
complaint.1
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the installation and service of
satellite television equipment for DirecTV, from its facility in
South Holland, Illinois. In conducting its business operations
during the past 12 months, the Respondent has performed ser-
vices in excess of $50,000 in States other than the State of Illi-
nois. Accordingly, I find that, at all material times, the Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, as the Re-
spondent admits in its answer to the complaint. I also find, and
the Respondent admits, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
On February 11, 2014, the Union was certified as the exclu-
sive collective-bargaining representative of the Respondent’s
technicians, pursuant to Section 9(a) of the Act.3 The Re-
spondent and the Union began negotiations for a first contract
on September 4, 2014. Eric Simon, an attorney, represented the

1 On May 20, 2016, the Union initiated this case by filing the origi-
nal unfair labor practice charge against the Respondent. Region 13 of
the National Labor Relations Board (the Board) docketed the charge as
Case 13–CA–176621. On June 13, 2016, the Union filed a first
amended charge and, on September 14, 2016, the Union filed a second
amended charge. On September 23, 2016, the General Counsel issued
a complaint, alleging that the Respondent violated Section 8(a)(5) of
the National Labor Relations Act (the Act). On October 5, 2016, the
Respondent filed a timely answer to the complaint. Therein, it asserted
an affirmative defense, based upon Section 10(b) of the Act.
2 Stipulation of facts, pars. 7–10.
3 The full description of this appropriate unit (the Unit) is:
All full-time and regular part-time Installation/Service Technicians
employed by the Employer at its facility located at 9951 W 190th St.,
Mokena, Illinois, 60448, but excluding all other employees, confiden-
tial employees, guards, and supervisors as defined in the Act.
The Respondent relocated the Mokena facility to South Holland in or
around May 2015.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Respondent in these negotiations.4
One of the matters the parties addressed in bargaining was
whether new products or services offered by the Respondent
would be deemed bargaining unit work. On various dates from
November 12, 2014 through September 16, 2015, the Respond-
ent and the Union exchanged written proposals on this topic.
The Respondent proposed that such work would be outside the
unit. However, at its sole discretion, the Company could assign
the new work to unit employees, set their wage rates, and later
remove the work without any challenge through the grievance
and arbitration procedure. The Union, in turn, proposed having
this work assigned to bargaining unit employees. It also sought
to retain the right to negotiate the terms and conditions of em-
ployment related to this work. Finally, the Union proposed that
it be able to submit any disagreements over the new work to the
grievance procedure.5
The material events regarding the Union’s information re-
quest at issue in this case took place from November 2015 to
May 2016. First, on November 4, 2015, the Respondent sub-
mitted a revised proposal on new product lines.6 The first sen-
tence of that proposal stated: “In the event the Employer is
engaged with respect to products or services other than those
provided pursuant to its Home Service Provider agreement
with DirecTV, . . . .such work shall not be deemed bargaining
unit work.” (Emphasis in the original.)
Then on November 23, 2015, Dave Webster, a business rep-
resentative for the Union, sent an email to Lauren Dudley, the
Respondent’s human resources director.7 Webster stated in
relevant part: “[O]ne of the company proposals references the
HSP agreement with DTV. We’d like a copy of the agreement
referenced in the proposal.” Dudley responded via email dated
December 4, 2015.8 As to the Home Service Provider (HSP)
agreement with DirecTV, Dudley stated: “See attached, rele-
vant to scope of work.” She provided a portion of the agree-
ment, with redactions. In the “Recitals,” the unredacted provi-
sions described the businesses of DirecTV and the Respondent.
Then the “Agreement” section included an “Appointment of
Contractor” provision, which stated:
Authority. DIRECTV hereby engages [the Respondent] to
provide services in the installation and maintenance of
DIRECTV System Hardware (the “Services,” or “Fulfillment
Services” when referring specifically to initial customer in-
stallation services only) as defined herein and as identified in
Exhibit 1.a.i. attached hereto for DIRECTV customers locat-
ed in areas specified in Exhibit I.a.ii.. attached hereto. . .
.(Emphasis in the original.)
Dudley also provided the two exhibits referenced in this provi-
sion. The first gave a description of the work tasks the Re-
spondent would perform for DirecTV under the agreement.
The second contained a list of cities in which the Respondent
would perform the work.

4 The parties agree that, in that capacity, Simon was a Sec. 2(13)
agent of the Respondent.
5 Stipulation of facts, pars. 16–19; Jt. Exhs. 7–10.
6 Stipulation of facts, par. 20; Jt. Exh. 11.
7 Stipulation of facts, par. 21; Jt. Exh. 12.
8 Stipulation of facts, par. 22; Jt. Exh. 13.
On February 16, 2016,9 Webster sent an email to Simon,
which stated:
I have heard that AT&T has extended the DirecTV contract
with DirectSat for another 3 years. With AT&T & DirectSat
both installing the DirecTV Dish we need to understand the
relationship between AT&T & DirectSat and the shared work.
Please send a copy of the current agreement between Di-
rectSat & AT&T/DTV for use in bargaining.10
Simon responded via email dated February 20.11 Simon stated
therein:
We have no idea what you have heard or whom you have
heard it from, but your "information" is erroneous. DirectSat
has entered into no new agreements with AT&T. In early
2015, DirecTV extended its contract with DirectSat through
2018, but there has been nothing further.
As to the substance of your request, you seem to assert is rel-
evant (sic) because you believe DirecTV (I assume you refer
to AT&T because of the recent acquisition of DirecTV by
AT&T) and DirectSat have "shared" work. Again, you are
mistaken. There is no "shared" work. As far as DirectSat is
concerned, all of the work is DirecTV's. DirecTV currently
has, and always has had, the right to contract as much or as lit-
tle or none of its satellite TV system installation and service
work to DirectSat as it, in its sole discretion, may decide. Di-
rectSat only performs the work that DirecTV authorizes it to
perform. DirectSat has never had an exclusive right to in-
stall/service DirecTV systems. Just as DirecTV had the abil-
ity to decide to whom it would contract with or if it would
contract out installation/service work at all prior to the
AT&T-DirecTV merger, DirecTV (even as a subsidiary of
AT&T) continues to determine what and how much work to
contract out. This is not an issue DirectSat has any control
over or ever had any control over, and as such is not a manda-
tory subject of bargaining. Bargaining unit work has been and
will continue to be the installation and service of DirecTV
systems to the extent and degree DirecTV authorizes Di-
rectSat to perform such work. While Local 21 may have an
issue with DirecTV's subcontracting of such work, it is not
relevant to our negotiations.
On March 18, Webster resent the original information re-
quest to Simon, asking for a full copy of the HSP agreement.12
Once again, Webster noted the reference to the agreement in

9 All dates hereinafter are in 2016, unless otherwise specified.
10 Stipulation of facts, par. 23; Jt. Exh. 14. AT&T acquired Di-
recTV on or about July 24, 2015.
11 Stipulation of facts, par. 24; Jt. Exh. 15.
12 Stipulation of facts, par. 25; Jt. Exh. 16. In this communication,
Webster also requested information concerning “how the technician’s
scorecard is determined. Not only the metrics, but how the metrics are
determined and by whom.” On April 6, Simon responded with a differ-
ent, redacted portion of the HSP agreement. (Stipulation of facts, par.
28; Jt. Exh. 19.) This portion listed the categories of performance
standards DirecTV set for the Respondent, as well as the definition of
each category. The General Counsel does not allege or argue that the
Respondent’s conduct as to this Union request for information was
unlawful.
DIRECTSAT USA, LLC 5
the Respondent’s new product lines proposal. At a bargaining
session on March 22, Simon acknowledged the Union’s re-
newed information request. Simon stated that the Respondent
already provided the Union with the relevant portions of the
HSP agreement. The Union also submitted a revised proposal
regarding new product lines. That proposal retained the Re-
spondent’s earlier language referencing the HSP agreement,
except that the new work was deemed bargaining unit work.
On April 5, the Union again reiterated its request for a full
copy of the HSP agreement, based upon the Respondent refer-
encing the agreement in its new product lines proposal.13
On May 19, Webster sent the following email to Simon:
In connection with DirectSat negotiations I renew my request
for a FULL copy of the HSP agreement between DirectSat
and DirecTV/AT&T in addition to all current agreements
with sub contractors, to evaluate the extent of control of Di-
rectSat by DirecTV/AT&T.14
Simon responded via email the same day.15 He said: “We have
already provided you with all relevant information regarding
this request. We see no reason to supplement our response.”
The Union filed the original unfair labor practice charge in
this case on May 20. Then on May 22, Simon sent a letter16 to
Webster to “further explicate DirectSat’s rational (sic) for de-
clining to provide a complete copy of the HSP Agreement. . . .”
Simon stated in relevant part:
The request for the full copy of the HSP agreement to evalu-
ate DirecTV's control over DirectSat is irrelevant to negotia-
tions between DirectSat and Local 21 regarding terms and
conditions of employment of DirectSat employees. The "ex-
tent of control" of DirecTV over DirectSat has no bearing on
negotiations over wages, hours, or other terms and conditions
of employment which are exclusively controlled by DirectSat.
As previously explained to you at the table, DirecTV does
not, and has no control over the wages paid to DirectSat em-
ployees or the metrics used to evaluate the performance of
unit employees. These decisions are vested exclusively in Di-
rectSat. For the last 2+ years since Local 21 was certified as
the representative of employees of DirectSat's Chicago South
(now South Holland location), DirectSat has bargained in
good faith over the wages, hours and other terms and condi-
tions of employment of unit employees. DirecTV has no role
in these negotiations. DirectSat has never asserted that it can-
not agree to a proposal on any issue because DirecTV might
disapprove. Nor is the ability of DirectSat to enter into a col-
lective bargaining agreement with Local 21 subject to approv-
al by DirecTV.
DirectSat has provided Local 21 with those portions of its
contract with DirecTV which may have some relevance to our
negotiations - the scope of work covered by the HSP agree-

13 Stipulation of facts, par. 27; Jt. Exh. 18.
14 The General Counsel’s complaint only alleges and relies upon the
Union’s requests for the full HSP agreement dated March 16 and May
19. It does not include the Union’s requests dated November 23, 2015,
February 16, and April 5.
15 Stipulation of facts, par. 30; Jt. Exh. 21.
16 Stipulation of facts, par. 31; Jt. Exh. 22.
ment and the metrics used by DirecTV to evaluate the per-
formance of DirectSat under the HSP agreement. (DirectSat
did not object to providing this information on the basis that
while DirectSat has full authority to set performance metrics
for unit technicians, DirectSat has stated that the metrics es-
tablished by DirecTV to evaluate DirectSat help inform Di-
rectSat in establishing performance metrics for technicians.)
For all the foregoing reasons, the Union's request for the full
HSP contract is not relevant to any issue in negotiations and
DirectSat declines to provide it.
ANALYSIS
The General Counsel’s complaint alleges that the Respond-
ent violated Section 8(a)(5) by refusing to provide the Union
with a full, unredacted copy of its HSP Agreement with Di-
recTV. The only issue in dispute is the relevance of the agree-
ment to the Union’s duties as the bargaining representative of
the Respondent’s technicians.17
I. LEGAL STANDARD
An employer has a statutory obligation to provide to a union
that represents its employees, on request, information that is
relevant and necessary to the union’s performance of its duties
as the exclusive collective-bargaining representative. Piggly
Wiggly Midwest, LLC, 357 NLRB 2344, 2355 (2012); NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–436 (1967); NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 152 (1956). When the union's
request deals with information pertaining to employees in the
unit that goes to the core of the employer-employee relation-
ship, the information is “presumptively relevant.” National
Broadcasting Co., Inc., 318 NLRB 1166, 1169 (1995), citing to
Shell Development Co. v. NLRB, 441 F.2d 880 (9th Cir. 1971).
However, an employer’s contracts with customers are not pre-
sumptively relevant. F.A. Bartlett Tree Expert Co., Inc., 316
NRLB 1312, 1313 (1995). Thus, the Union here must establish
the relevance of the information. Sheraton Hartford Hotel, 289
NLRB 463, 463–464 (1988). To demonstrate relevancy, a
liberal, discovery-type standard applies and the union’s initial
showing is not a burdensome or overwhelming one. NLRB v.
Acme Industrial Co., 385 U.S. at 437; The New York Times Co.,
270 NLRB 1267, 1275 (1984). Nonetheless, where the request
is for information with respect to matters outside the unit, the
standard is somewhat narrower and relevance is required to be
somewhat more precise. Island Creek Coal Co., 292 NLRB

17 In its answer to the complaint, the Respondent asserted a 10(b)
defense. It makes no argument in this regard in its brief. In any event,
the facts do not support this defense. The Union’s first request for the
HSP agreement occurred on November 23, 2015. The Respondent
provided its partial response on December 4, 2015. The Union again
requested the full agreement on February 16. The Respondent’s first
refusal to provide the full agreement occurred on February 20. Thus,
the 10(b) period began to run as of February 20, when the Respondent
clearly and unequivocally denied the Union’s request for the full
agreement. Quality Building Contractors, Inc., 342 NLRB 429, 431
(2004). The Union filed its initial unfair labor practice charge on May
20 and it was served on the Respondent on that same date. (Stipulation
of facts, par.1.) Thus, the charge filing occurred well within the re-
quired 6-month period from when the alleged unfair labor practice
occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
480, 487 (1989), citing to Ohio Power Co., 216 NLRB 987,
991 (1975).
II. DID THE UNION HAVE AN OBJECTIVE, FACTUAL BASIS TO
SUSPECT THE RESPONDENT AND DIRECTV WERE
JOINT EMPLOYERS?
To demonstrate relevance, the General Counsel first argues
that the Union needed to determine if DirecTV and the Re-
spondent were joint employers for purposes of collective bar-
gaining.18 Information concerning the existence of a joint em-
ployer relationship also is not presumptively relevant and a
union has the burden of demonstrating its relevancy. Connecti-
cut Yankee Atomic Power Co., 317 NLRB 1266, 1267 (1995);
Knappton Maritime Corp., 292 NLRB 236, 239 (1988). A
union cannot meet its burden based on a mere suspicion that a
joint employer relationship exists. It must have an objective,
factual basis for so believing. Kranz Heating & Cooling, 328
NLRB 401, 402–403 (1999). However, a union is not obligated
to disclose those facts to the employer at the time of the infor-
mation request. Baldwin Shop ‘N Save, 314 NLRB 114, 121
(1994). It is sufficient if the General Counsel demonstrates at
the hearing that the union had, at the relevant time, a reasonable
belief.19 Cannelton Industries, Inc., 339 NLRB 996, 997
(2003).
Both Connecticut Yankee Atomic Power and Kranz Heating
& Cooling, supra, involved situations where unions demon-
strated a reasonable belief that two entities were joint employ-
ers. In Connecticut Yankee, the union investigated the working
conditions of subcontracted employees at a plant where it rep-
resented permanent employees. The union obtained facts indi-
cating the employer with whom it had the collective-bargaining
relationship played a role in the hiring, work scheduling, and
supervision of the subcontracted employees. In addition, a
union representative became aware of prior Board cases where
similar claims of joint employer status were made. In Kranz
Heating, the union discovered a variety of objective facts sug-
gesting joint employer status. The union there represented
employees in a business that allegedly closed. Following the
closure, the union determined that a newly formed company
was operating the same or similar business from the same loca-
tion. The new company also was using the same equipment
and telephone number. In these cases, the unions formed a
reasonable belief of joint employer status based upon their col-
lection of objective facts, before making their information re-
quests. See also Piggly Wiggly Midwest, 357 NLRB at 2357–
2358; Knappton Maritime Corp., 292 NLRB at 239; Cannelton

18 In Browning-Ferris Industries of California, Inc., 362 NLRB No.
186 (2015), the Board instituted a revised standard for determining
joint employer status. Under that standard, two or more entities are
joint employers if they share or codetermine those matters governing
the essential terms and conditions of employment. Possessing authority
over those terms is sufficient to establish joint employer status. Such
terms include the direction of the work force, dictating the number of
workers to be supplied, and determining the manner and method of
work performance.
19 Of course, in this case, no hearing occurred. Accordingly, the ob-
jective facts relied upon by the Union either must have been disclosed
at the time of the requests or included in the stipulation of facts.
Industries, Inc., 339 NLRB at 997.
In contrast in this case, the stipulated facts do not establish
the Union had an objective basis for believing the Respondent
and DirecTV were joint employers, at the time it made the in-
formation requests. Prior to its March 16th request, the Union
only knew that DirecTV and the Respondent had a contractual
relationship, under which the Respondent provided installation
and maintenance services to DirecTV. The mere existence of a
service contract between two companies is not a sufficient basis
to reasonably believe they might be joint employers. If it were,
then every agreement between an employer and a subcontractor
would be deemed relevant to the question of joint employer
status, based upon nothing more than the contract’s existence.
The Union also knew that both DirecTV and the Respondent
installed and serviced DirecTV equipment. But the fact that
both companies performed the work, standing alone, is not an
objective basis for concluding DirecTV possessed control over
how the Respondent did so. When the Union made its May
19th request, the only new information it had obtained were
DirecTV’s performance standards for DirectSat contained in
the HSP agreement. However, nothing therein suggested Di-
recTV had any control over how the Respondent went about
meeting those standards. Finally, the stipulated record contains
no additional, contemporaneous facts relied upon by the Union
for believing a joint employer relationship existed. Taken to-
gether, these minimal facts fall into the category of mere suspi-
cion. The Union needed more here.20
III. DID THE UNION NEED THE REQUESTED INFORMATION TO
VERIFY CLAIMS MADE BY THE RESPONDENT?
The General Counsel also contends the Union was entitled to
the full HSP agreement to verify the accuracy of claims made
by the Respondent concerning the relationship between the two
entities. Relevance can be established in this fashion. Caldwell
Manufacturing Co., 346 NLRB 1159, 1160 (2006) (relevance
established where employer made specific factual assertions in
bargaining concerning need to improve competitiveness and,
thereafter, union requested cost and productivity information in
part to evaluate the accuracy of the claims); Shoppers Food
Warehouse Corp., 315 NLRB 258, 259 (1994) (union was not
required to accept at face value an employer’s assertion that
two entities were separate operations). The U.S. Supreme
Court itself stated in Truitt Mfg. Co. that if “an argument is
important enough to present in the give and take of bargaining,
it is important enough to require some sort of proof of its accu-
racy.” 351 U.S. at 152–153.
In this case, the stipulated facts likewise fail to establish that
the Respondent claimed it and DirecTV were not joint employ-
ers. Prior to the Union’s information requests, the only con-
ceivable assertions Simon made in this regard were in his Feb-
ruary 20 letter. Simon said there was no “shared work” be-
tween the companies. He also stated repeatedly that DirecTV
had the exclusive right to contract out all or none of its work to

20 Although Webster also stated the Union needed the HSP agree-
ment “for use in bargaining” and “in connection with DirectSat negotia-
tions,” such statements are too general and conclusory to establish
relevance. F.A. Bartlett Tree Expert Co., 316 NLRB at 1313; Island
Creek Coal Co., 292 NLRB at 490 fn. 19.
DIRECTSAT USA, LLC 7
the Respondent. In evaluating joint employer status, the Board
looks to whether the employers share control over terms and
conditions of employment, not whether they share work.
Browning-Ferris, supra. Those terms and conditions include
determining the manner and method of employees’ work per-
formance, not the amount of work one employer subcontracts
to another. The General Counsel has overstated the signifi-
cance of Simon’s statements. See F.A. Bartlett Tree Expert
Co., 316 NLRB at 1313. The closest Simon came to putting
joint employer status at issue was in his May 22 letter to the
Union, after the Union filed its unfair labor practice charge.
Therein, Simon stated DirecTV had no control over the wages
paid to DirectSat employees or the metrics used to evaluate the
performance of unit employees. Simon also stated that Di-
recTV had no role in the negotiations and could not require that
the Respondent seek its approval to enter into a collective bar-
gaining agreement. However, these statements all came after
the Union submitted its information requests for the full HSP
agreement. Thus, those requests could not test the accuracy of
claims that had not yet been made. In sum, the Respondent
never denied that it and DirecTV were joint employers. It also
did not deny any of the specific factors used to evaluate joint
employer status. Therefore, the Union cannot establish the
relevance of the full, unredacted HSP agreement on this basis
either.
However, the Union is entitled to verify the Respondent’s
repeated claim that it furnished all the relevant portions of the
HSP agreement on the scope-of-unit-work issue. First, no
question exists, and the Respondent concedes, that information
in the HSP agreement on the scope of unit work is relevant to
the Union’s representational functions.21 This conclusion is
supported by the stipulated facts. The dispute over the HSP
agreement only arose because the Respondent itself included a
reference to the agreement in its November 23, 2015 scope-of-
unit-work bargaining proposal. The Respondent thereby put
into play what services it furnished to DirecTV pursuant to the
agreement. The Company was seeking in bargaining to classify
any work performed outside of the agreement as nonbargaining
unit work. The Union certainly is entitled to know the universe
of bargaining unit work as defined in the agreement, in evaluat-
ing the Respondent’s proposal. Moreover, the Respondent
repeatedly told the Union it had provided all relevant parts of
the HSP agreement in this regard. In its initial, three-page re-
sponse dated December 4, 2015, the Respondent provided only
a portion of the agreement it alone deemed “relevant to scope
of work.” Thereafter, on March 16, the Union asked for a full
copy of the HSP agreement and reiterated that the Respondent
referenced the agreement in its new product lines proposal. At
the bargaining session on March 22, Simon again stated the
Company already had provided all the relevant portions of the
agreement. The Union then resubmitted its request for the full
agreement on both April 5 and May 19.
Thus, the question presented is whether the Respondent uni-
laterally could decide what portions of the HSP agreement were
relevant, only turn over those portions, and then refuse to pro-
vide the remainder of the agreement when the Union requested

21 R. Br., p. 10, fn. 5.
it. Board precedent is clear that the Respondent was not enti-
tled to do so. In this regard, the factual situation here is similar
to that in Piggly Wiggly, supra. In that case, a union requested
sales and franchise agreements from an employer, whom it
suspected had an alter-ego relationship with certain franchisees.
The employer argued, in part, that the requested information
was unnecessary, because its attorney had provided one para-
graph of an agreement to the union and later told the union that
the documents requested contained no other relevant infor-
mation. The judge rejected the employer’s argument that the
response was sufficient and it did not have to provide the full
agreements. The judge stated: “The [u]nion is not required to
take the [employer’s] word for it, but has the right to assess and
verify for itself the accuracy of the [employer’s] claims in bar-
gaining.” The Board adopted the judge’s conclusion that the
employer violated the Act, by delaying in providing the agree-
ments. See also Knappton Maritime Corp., 292 NLRB at 239–
240 (providing an excised copy of a sales agreement, but not
the full, original copy, violated the Act); Southern Ohio Coal
Co., 315 NLRB 836, 844–845 (1994) (an employer telling a
union its version of what was in, and not in, a sales agreement
did not satisfy the union’s right to have access to an unexcised
copy of that agreement).
Furthermore, the Union’s inability to identify other specific
relevant information in the HSP agreement cannot be held
against it, since it has never seen the agreement. Olean Gen-
eral Hospital, 363 NLRB No. 62, slip op. at 7 (2015). In Olean
General, a union requested a copy of a patient care survey con-
ducted by a third party. Staffing had been an issue in contract
negotiations. The Union wanted to determine if staffing was
addressed in the report, even though it had no knowledge the
survey contained such information. The Board rejected the
employer’s claim that the union failed to demonstrate a specific
need for the patient care survey. The Board noted that, since
the employer had seen the report and knew what was in it, the
employer had ample opportunity to show that the information
in it would be of no benefit to the union. The same principle
applies in this case. Although it did provide a partial response
to the Union, the Respondent never made an attempt to show
the Union that the remainder of the HSP agreement lacked
information relevant to the scope of unit work.
Finally, the Respondent contends the Union never objected
to its providing only three pages of the HSP agreement. It is
true that the Union never stated the partial response was inade-
quate. It also did not provide much in the way of an explana-
tion as to why it needed the full HSP agreement. Nonetheless,
what the Union did do was submit a request for the full agree-
ment, on three occasions, after receiving the Company’s initial
response. The Union’s conclusion that the initial response was
not sufficient obviously can be inferred from its subsequent
requests for the full agreement.
For all these reasons, I conclude that relevance is established
here, because the Union is entitled to verify the Respondent’s
claim that it has provided all portions of the HSP agreement
relevant to the scope of unit work. By failing to provide the
full, unredacted HSP agreement, the Respondent violated Sec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
tion 8(a)(5).22
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to provide the Union with infor-
mation it requested on March 18 and May 19, 2016, specifical-
ly a full, unredacted copy of the Home Service Provider agree-
ment between the Respondent and DirecTV. The HSP agree-
ment is necessary and relevant to the Union’s performance of
its duties as the collective-bargaining representative of unit
employees.23

22 The General Counsel did not advance the legal theory upon which
I am finding a violation. Nonetheless, under the circumstances of this
case, I find it appropriate to exercise my discretion in this manner. See,
e.g., Local 58, International Brotherhood of Electrical Workers (Para-
mount Industries, Inc.), 365 NLRB No. 30, slip op. at 4 fn. 17 (2017)
(where the violation was alleged in the complaint, the factual basis for
the violation was clear from the record, the law was well established,
and no due process concerns were implicated, the Board found a viola-
tion on a different legal theory than that pursued by the General Coun-
sel); Riverside Produce Co., 242 NLRB 615, 615 fn. 2 (1979) (where
the allegations were generally encompassed in the complaint, the issues
were fully litigated, and the record fully supported the conclusions, the
Board approved of a judge’s finding of violations not specifically al-
leged in the complaint). Because this case was submitted pursuant to a
stipulated record, no factual disputes exist. The complaint contained an
allegation of unlawful conduct by the Respondent, specifically its re-
fusal to provide the Union with a full copy of the HSP agreement. The
parties similarly agreed that the issue in this case was “Whether the
Respondent has violated Section 8(a)(5) of the Act by failing and refus-
ing to provide the Union with a full unredacted copy of the [HSP
agreement] between DirecTV and DirectSat.” (Stipulation of facts, p.
2.) The complaint allegation and statement of the issue are sufficiently
broad to encompass this legal theory. As a result, the Respondent has
not been denied due process. Indeed, the Respondent addressed this
theory in its brief. It repeatedly argued that the Union did not object to
its initial response. In doing so, the Respondent advanced the conten-
tion that its initial response was adequate under the law. Finally, the
stipulated facts fully support finding a violation on this basis.
23 After the parties submitted their briefs, the Respondent filed a
motion to strike portions of the Union’s brief, because they were not a
part of the stipulated record. The first section at issue is entitled: “The
Possible Joint Employer Status of DirectSat and DirecTV.” In this
section, the Union contends that, during the time period when it re-
quested the full HSP agreement, it became aware that the issue of
whether the Respondent and DirecTV were joint employers was being
litigated in a Fair Labor Standards Act case in Federal court. However,
this fact is not in the stipulated record. Thus, I agree with the Respond-
ent that, in this regard, the Union is inappropriately seeking to intro-
duce new facts that are not properly before me for consideration. The
Union also attached a decision of the Fourth Circuit Court of Appeals
from January 2017, well after the material dates in this case, concerning
the joint employer status of the two companies. The Union requested
that I take judicial notice of the decision, as well as the Union’s reliance
on the decision as part of the reason for its information request. Of
course, a judge can take judicial notice of an appellate court’s decision
on a material legal issue. But the Union’s claimed reliance on this
decision is a factual, not a legal, matter. Any such reliance to substan-
4. The above unfair labor practice affects commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, the Respondent must cease
and desist from refusing to provide the Union with requested
information that is necessary and relevant to the performance of
its duties as the exclusive collective-bargaining representative
of the Respondent’s installation and service technicians. The
Respondent also must provide the Union with a full, unredacted
copy of the HSP agreement.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent, DirectSat USA, LLC, South Holland, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the In-
ternational Brotherhood of Electrical Workers, Local Union 21,
AFL–CIO, by failing to provide information requested by the
Union that is necessary and relevant for the Union’s perfor-
mance of its duties as the collective-bargaining representative
of the employees in the Unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days, provide the Union with a full, unredact-

tiate its information request had to be presented either at the time the
request was made or in the stipulated factual record. Neither occurred.
Thus, I grant the Respondent’s motion to strike this portion of the Un-
ion’s brief and have not considered that section in reaching this conclu-
sion of law.
The second brief section at issue is entitled: “How A Technician’s
Earnings Are Determined.” Therein, the Union addresses the concur-
rent information requests it submitted to the Respondent concerning
DirecTV’s performance standards, as well as the technicians’ score-
cards and performance metrics. Contrary to the Respondent’s conten-
tion, the stipulated record does contain facts regarding the performance
standards information requests. (Stipulation of facts, par. 28; Jt. Exh.
19.) Thus, I deny the Respondent’s motion to strike this section.
Nonetheless, as previously discussed, the General Counsel’s complaint
in this case alleges only the Respondent’s failure to provide the full
HSP agreement, not any information concerning performance stand-
ards. The General Counsel’s brief contains no argument concerning
performance standards, including their relation, if any, to the requests
for the full HSP agreement. That issue simply is not before me. Ac-
cordingly, I find the Union’s performance standards argument has no
bearing on the complaint allegation here and I do not rely upon that
section of the Union’s brief in reaching this conclusion of law.
24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DIRECTSAT USA, LLC 9
ed copy of the Home Service Provider agreement between the
Respondent and DirecTV.
(b) Within 14 days after service by the Region, post at its
facility in South Holland, Illinois, copies of the attached notice
marked “Appendix.”25 Copies of the notice, on forms provided
by the Regional Director for Region 13, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent and maintained for 60 days in conspicuous
places including all places were notices to employees are cus-
tomarily posted. In addition to the physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other elec-
tronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time
since March 18, 2016.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Regional Director attesting to the
steps the Respondent has taken to comply.
Dated, Washington, D.C., July 20, 2017.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to bargain in good faith with
the International Brotherhood of Electrical Workers, Local
Union 21, AFL-CIO (the Union), by failing to provide the Un-
ion with information that is necessary and relevant to the per-
formance of its duties as the exclusive collective-bargaining
representative of employees in the following, appropriate bar-
gaining unit:
All full-time and regular part-time Installation/Service Tech-
nicians employed by the Employer at its facility located in
South Holland, Illinois, but excluding all other employees,
confidential employees, guards, and supervisors as defined in
the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days of this order, provide the Union
with a full, unredacted copy of the Home Service Provider
agreement between us and DirecTV. The Union requested this
information on March 18 and May 19, 2016 and the infor-
mation is relevant to the Union’s duties as your collective-
bargaining representative.
DIRECTSAT USA, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/13-CA-176621 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.