FirstEnergy Generation, LLC

National Labor Relations Board - Board Decisions

Apr 27, 2015

362 NLRB No. 73 (N.L.R.B. 2015)

362 NLRB No. 73
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.
FirstEnergy Generation, LLC and International
Brotherhood of Electrical Workers, Local Union
No. 272, AFL–CIO. Case 06–CA–121513
April 27, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND MCFERRAN
On January 23, 2015, Administrative Law Judge David
I. Goldman issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
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.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, FirstEnergy Generation,
LLC, Shippingport, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.
Dated, Washington, D.C. April 27, 2015
______________________________________
Mark Gaston Pearce, Chairman

1 The Respondent excepts to the judge’s rejection of and failure to
consider its proposed Exh. 5, the complaint in a class-action lawsuit
filed against the Respondent on behalf of former union employees who
retired on or after January 1, 1996, and before January 1, 2005. We
find that the judge did not abuse his discretion in finding that this law-
suit, filed 8 months after the Union’s information request, would not
support the Respondent’s claim that the Union’s request was made in
bad faith for purposes unrelated to bargaining.
2 There are no exceptions to the judge’s finding that the Respondent
did not unreasonably delay in providing the Union with ownership
information it requested on January 6, 2014.
The judge’s decision referenced an earlier case involving these par-
ties, FirstEnergy Generation Corp., 358 NLRB No. 96 (2012). The
United States Court of Appeals for the Third Circuit vacated the
Board’s decision in that case and remanded the matter for further pro-
ceedings consistent with the Supreme Court’s decision in NLRB v. Noel
Canning, 134 S.Ct. 2550 (2014). The Board recently reconsidered de
novo and affirmed this earlier decision in FirstEnergy Generation
Corp., 362 NLRB No. 66 (2015).
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Julie R. Stern, Esq. (NLRB Region 6) of Pittsburgh, Pennsyl-
vania, for the General Counsel.
James A. Prozzi, Esq. (Jackson Lewis P.C.) of Pittsburgh,
Pennsylvania, for the Respondent.
Marianne Oliver, Esq. (Gilardi Oliver & Lomupo) of Pitts-
burgh, Pennsylvania, for the Charging Party.
DECISION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case
involves a union’s request during collective-bargaining negotia-
tions that the employer provide it with retiree benefits costing
information for the stated purpose of aiding the union in formu-
lating retiree benefits bargaining proposals for current employ-
ees. The government alleges that the employer violated the
National Labor Relations Act by refusing to provide the union
with the requested retiree benefits information. The employer
defends, contending that the requested retiree information has
not been shown to be relevant to the union’s representational
duties. In addition, the government alleges that the employer
unlawfully delayed providing a portion of requested company
ownership information to the union. The employer contends
that the information was furnished sooner than alleged and that
there was no unreasonable delay.
As discussed herein, I find that the retiree benefits infor-
mation is a relevant, indeed, an obviously relevant source of
information for a union engaged in collective-bargaining nego-
tiations that include as a mandatory subject of bargaining future
retiree benefits for current employees. The employer’s refusal
to provide such information violates the Act. As to the owner-
ship information, I find that, as the employer contends, it was
provided sooner than alleged by the government. The short
delay in furnishing all of the requested ownership information
has not been shown to be unreasonable under all the circum-
stances, and, therefore, I dismiss that allegation.
JURISDICTION
FirstEnergy is and at all material times has been a corpora-
tion with an office and place of business in Shippingport, Penn-
sylvania, at which FirstEnergy is engaged as a public utility in
the generation and distribution of electricity. In conducting its
operations during the 12-month period ending March 31, 2013,
FirstEnergy derived gross revenues in excess of $250,000 and
received at its Shippingport facility goods valued in excess of
$50,000 directly from points outside the Commonwealth of
Pennsylvania. At all material times, FirstEnergy has been an
employer engaged in commerce within the meaning of Section
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
2(2), (6), and (7) of the Act. At all material times, the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
STATEMENT OF CASE
On January 29, 2014, the International Brotherhood of Elec-
trical Workers, Local Union No. 272, AFL–CIO (Union) filed
an unfair labor practice charge alleging violations of the Act by
FirstEnergy Generation, LLC (FirstEnergy), docketed by Re-
gion 6 of the Board as Case 06–CA–121513. Based on its in-
vestigation, on June 30, 2014, the Board’s General Counsel, by
the Acting Regional director for Region 6 of the Board, issued
a complaint alleging that FirstEnergy violated the Act.
FirstEnergy filed an answer denying all alleged violations of
the Act.
A trial was conducted in this matter on October 6, 2014, in
Pittsburgh, Pennsylvania.1 Counsel for the General Counsel
and counsel for FirstEnergy filed post-trial briefs in support of
their positions by November 10, 2014.2
On the entire record, I make the following findings, conclu-
sions of law, and recommendations.
UNFAIR LABOR PRACTICES
Background
FirstEnergy is a multifacilities operation with plants across
the Mid-Atlantic United States, numerous local unions, and
perhaps 10,000 retirees. FirstEnergy operates the Bruce Mans-
field plant in Shippingport, Pennsylvania. The Bruce Mans-
field facility is composed of three units that generate electricity.
For many years, the Union has been the recognized collective-
bargaining representative of the production and maintenance
employees at the Bruce Mansfield plant.3 As of the time of the
hearing in this case, the union-represented bargaining unit at
Bruce Mansfield was composed of approximately 272 employ-
ees.
The most recent collective-bargaining agreement covering
the Bruce Mansfield unit of FirstEnergy employees was origi-

1 At the commencement of the hearing, counsel for the General
Counsel moved, without objection, to amend the complaint to correct
the caption, to delete the date of an alleged information request (para
10), and to change an alleged refusal to provide requested information
to an allegation of unlawful delay in providing information (para 13).
Further, at the commencement of the hearing the Respondent orally
amended its answer to admit paragraph 11 of the complaint.
2 Along with her brief, counsel for the General Counsel filed a mo-
tion to correct the transcript. No opposition to that motion was filed.
In an order filed concurrently with this decision, the motion is granted
to the extent set forth in the order.
3 The precise contours of the recognized bargaining unit are as fol-
lows:
all production and maintenance employees, including Control Room
Operators, employees in the Stores, Electrical, Maintenance, Opera-
tions, I & T, and Yard Departments at the Bruce Mansfield Plant, ex-
cluding technicians, office clerical employees and guards and other
professional employees and supervisors as defined in the National La-
bor Relations Act as amended.
nally to be in effect from December 5, 2009, through February
16, 2013. In a memorandum of agreement dated August 16,
2012, the parties extended the collective-bargaining agreement
by one year, until February 15, 2014, when the agreement ex-
pired.
Negotiations for a successor collective-bargaining agreement
began with the “kickoff” meeting on December 19, 2013.
Herman Marshman, Jr., the Union’s president, was lead negoti-
ator for the Union. Anthony Gianatasio was the Employer’s
lead negotiator. During this initial December 19 meeting, Fred
von Ahn, the vice president of the Bruce Mansfield plant, pro-
vided the Union with an overview of financial issues. He dis-
cussed the current condition of the company generally, and the
Bruce Mansfield facility specifically, with regard to matters
such as the company’s stock price, the price of electricity, EPA
regulations, and other matters pertaining to the future prospects
for operation of the facility.
At the December 19 meeting, FirstEnergy distributed a
“Company Interests Discussion Document” which listed por-
tions of the labor agreement it was proposing to modify in ne-
gotiations.
One issue listed on this document was the Employer’s pro-
posal to “end the retiree medical box” in the successor agree-
ment. This was a reference to the chart or box listed on page 61
of the labor agreement and that was part of the health insurance
provisions (Article XVIII, Section 3). The collective-
bargaining agreement provided that employees who retired on
or after February 16, 2008 (the date of the expiration of the
previous agreement) were entitled to health care coverage from
the Employer “in accordance with the terms and conditions of
the plan in effect for active employees.” The box (and portions
of Article XVIII, Section 3) set forth the amount of the Em-
ployer’s contribution toward medical and prescription drug
coverage for such employees who retire during the term of the
collective-bargaining agreement and continue to participate in
the health care plan available to active employees.
The Employer refers to employees retiring during the term of
the current labor agreement (and as far back as February 16,
2008) as “in-the-box” retirees. The Employer refers to former
employees who retired under a previous labor agreement (i.e.,
preceding the February 16, 2008 date) as “out-of-the-box” re-
tirees. Such employees are not covered by the box on page 61
of the labor agreement, and the retiree health care subsidies
applicable to current employees when they become “out-of-the-
box” retirees is a matter of dispute between the parties.
The Employer’s proposal to eliminate the box for a successor
labor agreement was understood by all parties as proposal to
end employer subsidies toward retiree health care coverage for
“in-the-box” employees under the new agreement (i.e., for cur-
rent employees who would retire under the successor labor
agreement).
The Union’s January 6 request for information regarding
ownership of the Bruce Mansfield units
The parties met again on January 6, 2014. At the end of this
meeting, the Union made a written information request to
FirstEnergy, which included the following:
IBEW Local 272 Information request:
FIRSTENERGY GENERATION, LLC 3
What is the Company’s percentage of ownership of all three
units at Mansfield? What percentage is owned by any capital
investment group?
By letter to Union President Marshman dated January 20,
2014, FirstEnergy’s lead negotiator Gianatasio responded to the
Union’s information request. His letter stated, inter alia:
In response to your correspondence of January 6, 2014, please
find the following information:
1. What is the Company’s percentage of ownership of all
three units at Mansfield?
Response: 93.825% of Unit 1 at Bruce Mansfield is owned by
investment banks/trustees and is leased back to FE Genera-
tion, LLC; who is responsible for operating the same. This
transaction does not impact the terms of your cba in any man-
ner.
2. What percentage is owned by any capital investment
groups?
Response: This information is proprietary and is not in any
manner relevant to the negotiation or maintenance of the cba.
The Employer’s response to the Union’s request for owner-
ship information about the three Bruce Mansfield units provid-
ed information only about unit 1. Gianatasio testified that
Marshman made follow-up oral references to his requests for
the “financial information” on both the January 21 and Febru-
ary 5 meetings and on February 5, specifically raised the issue
of the ownership of units 2 and 3. According to International
Union Representative Mike Welsh, when asked about the own-
ership information on February 5, the Employer told the Union
that “we still don’t have the information.” Marshman testified
that his February 11 email to the Employer complaining that
“as of 2-11-14” the Employer had not provided requested in-
formation, “especially financial data concerning the Mansfield
Plant specifically,” would, in his view, have included the re-
quest for ownership information.
The parties’ final meeting before a five-month hiatus was on
February 12. According to Gianatasio, at the February 12
meeting, Plant Director Rawlings and Gianatasio had a “very
lengthy sidebar” discussion with Marshman and other union
representatives, at which time “Mr. Rawlings and I talked to
Herman [Marshman] and his group that he brought on sidebar,
and we notified him that units that units 2 and 3” of the Bruce
Mansfield plant “are owned by the Company, just to clarify.”
However, on February 18, the Union wrote to a FirstEnergy
representative at corporate headquarters in Akron, Ohio, and,
among other items, stated that it was “still waiting for the fol-
lowing information: . . . What is the company’s percentage of
ownership of all three units at the Mansfield Plant?” By letter
dated March 12, the Employer responded to the Union’s Febru-
ary 18 letter, stating, in response to the questions regarding
Bruce Mansfield’s ownership that “As per the Company’s re-
sponse on January 20, 2014, unit 1 is 93.825 % owned by in-
vestment banks/trustees and is leased back to FE Generation,
LLC. The Company has 100% ownership of units #2 and #3.”
I credit Gianatasio’s testimony with regard to the February
12th conversation with Marshman and the union representatives
during the extensive sidebar on that date. It was offered with a
credible demeanor. Moreover, it is essentially uncontradicted.
Marshman appeared to agree on cross-examination that some-
time before February 18 (the date of the Union’s renewed re-
quest for ownership information) he had a sidebar discussion
about the ownership issue with Gianatasio. Tr. 87 (“We talked
about it. Yes sir.”) Asked if Gianatasio “in fact, orally in-
formed you at that sidebar about the ownership of units 2 and
3,” Marshman stated: “I don’t recall if that was the date of dis-
cussion, or whether he gave me the ownership, or it was Mr.
Rawlings.” This is vague, but more an admission than a denial,
and tends to corroborate Gianatasio’s testimony. Pressed on
the issue, Marshman testified that before receiving the March
12 letter from the Employer, “I think some information was
communicated” regarding the ownership for units 2 and 3, alt-
hough Marshman said “I’m not exactly sure by who or when.”
Given all this testimony, I credit Gianatasio and find that he (or
Rawlings) told the Union on February 12 that the Employer
owned units 2 & 3.4
The Union’s January 27 information request regarding retiree
health care costs
At the parties meeting on January 27, 2014, the Union gave
the Employer a request for information regarding the cost and
utilization of employee and retiree health insurance. The full
request stated the following:
IBEW LOCAL 272 INFORMATION REQUESTS:
1. What is the Company's total cost for health insur-
ance?
2. What is the Company's total cost for retiree health
insurance?
3. What is the Company's cost for health insurance for
hourly employees at the Bruce Mansfield Plant?
4. What is the Company's cost for health insurance for
[Local] 272 retirees from the Bruce Mansfield Plant? ·
5. How many retirees from the Bruce Mansfield Plant
are over the age of 65 using health insurance and what is
the cost to the Company?
6. How many retirees from the Company are over age
65 and using health insurance and what is the cost to the
company?
7. What are the 2014 First Energy Health Insurance
Plan(s) descriptions and costs (total Company costs and
employee costs)?
Items 2, 4, 5, and 6 of the requested information concerns re-
tiree benefits. At the January 27 meeting, in response to the

4 Counsel for the General Counsel argues on brief that the Union’s
February 18 letter to the Respondent stating that it was still waiting for
information regarding, inter alia, ownership, demonstrates that the
Union had not been previously told orally about the ownership of units
2 and 3. That is a plausible argument. However, in light of the credi-
bly-offered testimony of Gianatasio, and Marshman’s testimony, de-
tailed above, I reject the General Counsel’s argument. Perhaps the
Union wanted the information formalized in writing (as it had been
requested), or perhaps there was some confusion. However, I believe,
and find, that the information was conveyed orally to the Union’s lead
negotiator Marshman on February 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
request, an Employer representative told Marshman that he did
not represent retirees. Marshman agreed, but told the Employer
he needed this information to formulate proposals with regard
to the future retirees (i.e., the current employees).
FirstEnergy provided a written response to the Union’s re-
quest by letter from Gianatasio to Marshman dated February 7,
2014.
In response to the Union’s request #2 (“What is the Compa-
ny’s total cost for retiree health insurance?”), the Employer
responded:
Response: The union does not represent FirstEnergy retirees
and as such this information is not relevant for bargaining
purposes.
In response to the Union’s request #4 (“What is the Company’s
cost for health insurance for [Local] 272 retirees from the
Bruce Mansfield Plant?”), the Employer responded:
Response: The in the box retirees are the only retirees that
may be arguably covered by the Local 272 contract. See At-
tachment #1.
The union does not represent retirees who are “out of the box”
and as such this information is not relevant for bargaining
purposes.
Attachment #1 contained, inter alia, figures showing for “in-
the-box” retirees only, the costs of coverage, retiree contribu-
tions, company contributions, and retiree opt out payments,5 for
years 2012 and 2013.
In response to the Union’s request #5 (“How many retirees
from the Bruce Mansfield Plant are over the age of 65 using
health insurance and what is the cost to the Company?”), the
Employer responded:
Response: There are 27 “in the box” retirees age 65 or older
who are enrolled in coverage. There are 64 “in the box” retir-
ees under age 65.
The union does not represent retirees who are “out of the box”
and as such this information is not relevant for bargaining
purposes.
In response to the Union’s request #6 (“How many retirees
from the Company are over age 65 using health insurance and
what is the cost to the Company?”), the Employer responded:
Response: The union does not represent retirees who are “out
of the box” and as such this information is not relevant for
bargaining purposes and has not been provided. The cost of
local 272 “in the box” retirees is included in Attachment #1.
In subsequent sidebar meetings these issues were discussed
by the parties. In the context of the Employer’s proposal to end

5 Under the collective-bargaining agreement, the Union can elect to
have employees and “in-the-box” retirees withdraw from the FirstEner-
gy sponsored healthcare plan and obtain coverage from a Union-
selected plan. Under this arrangement, FirstEnergy contributes and
forwards payment to the Union-selected health care provider in an
amount per employee and retiree equal to the contribution FirstEnergy
would otherwise make if the employee or retiree participated in the
Employer-sponsored plan.
employer contributions toward (“in-the-box”) retiree health
care, Marshman explained that he wanted the requested retiree
benefits information in order to better understand the overall
costs and burdens on the Employer of providing retiree health
care. At the hearing, Marshman testified that the Union was
seeking both “site specific and company[-wide]” retiree bene-
fits information. Specifically with regard to his request for
company-wide retiree health care cost information, Marshman
testified that the Union wanted to assess “What is the compa-
ny’s contribution towards healthcare? . . . [W]hat percentage of
revenue does this actually stand for?” Marshman testified that
the Union wanted to compare the cost of what the Employer is
paying for retirees company-wide to its costs for retiree
healthcare at the Bruce Mansfield facility.
In a February 11, 2014 letter to the Employer’s headquarters
in Akron, Ohio, the Union wrote:
The union understands that we do not represent retirees.
However, the cost associated with current retirees’ healthcare
is important and necessary in making proposals for future re-
tirees’ healthcare. All information requests are relevant, and
we would like the company to give a full response for items 2,
4, 5, and 6 from the February 7, 2014 letter.
The Union did not receive this information from the Em-
ployer. Some of the requests were renewed in a separate re-
quest made August 1, 2014 by the Union. The Employer’s
response limited the provision of health care benefits infor-
mation to active and “in-the-box” retirees. At the hearing,
Gianatasio testified that the Employer did not provide the Un-
ion with information regarding “out-of-the-box” retirees be-
cause “our proposal deals with future retirees and doesn’t im-
pact out-of-the-box retirees in any way or any manner.” In
addition, Gianatasio testified at the hearing that “we don’t track
out-of-the-box retirees by local.” According to Gianatasio,
“when you’re in a different pool, you’re in a broader pool . . . a
company-wide pool, if you will.”
Analysis
Section 8(a)(5) of the Act provides that it is an unfair labor
practice for an employer “to refuse to bargain collectively with
the representatives of its employees.” 29 U.S.C. § 158(a)(5).6
“An employer's duty to bargain includes a general duty to
provide information needed by the bargaining representative in
contract negotiations and administration.” A-1 Door & Build-
ing Solutions, 356 NLRB No. 76, slip op. at 2 (2011); NLRB v.
Truitt Mfg., Co., 351 U.S. 149, 152–153 (1956); NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–436 (1967). An employer,
on request, must provide a union with information that is rele-
vant to its carrying out its statutory duties and responsibilities
in representing employees. Acme Industrial, supra; Dodger
Theatricals, 347 NLRB 953, 867 (2006).
Here, the General Counsel alleges that the Respondent vio-

6 In addition, it is settled that an employer's violation of Sec. 8(a)(5)
of the Act is also a derivative violation of Sec. 8(a)(1) of the Act. Ten-
nessee Coach Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th
Cir. 1956). See ABF Freight System, 325 NLRB 546 fn. 3 (1998).
FIRSTENERGY GENERATION, LLC 5
lated Section 8(a)(5) and (1) of the Act by refusing to provide
the Union with requested retiree healthcare information. Fur-
ther, the General Counsel alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by unreasonably delaying
furnishing the Union with the requested ownership information
for units 2 and 3 of the Bruce Mansfield facility. Below, I con-
sider each of these allegations.
I. ALLEGED UNLAWFUL REFUSAL TO PROVIDE RETIREE
INFORMATION
The Union seeks the Respondent’s retiree health care spend-
ing with the number of and cost for retirees over age 65 broken
out. The Union seeks this information for Bruce Mansfield
retirees and for the Respondent company-wide.
“Generally, information concerning wages, hours, and other
terms and conditions of employment for unit employees is
presumptively relevant to the union's role as exclusive collec-
tive-bargaining representative. By contrast, information con-
cerning extra-unit employees is not presumptively relevant;
rather, relevance must be shown.” A-1 Door & Building Solu-
tions, supra, slip op. at 2 (citations omitted).
Where a showing of relevance is required—either because
the presumption has been rebutted or because the request con-
cerns nonunit matters, the burden is “not exceptionally heavy.”
Leland Stanford Junior University, 262 NLRB 136, 139 (1982),
enfd. 715 F.2d 473 (9th Cir. 1983); Shoppers Food Warehouse,
315 NLRB 258, 259 (1994). “The Board uses a broad, discov-
ery-type of standard in determining relevance in information
requests.” Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006);
A-1 Door & Building Solutions, supra. In accordance with this
“discovery-type” standard, “potential or probable relevance is
sufficient to give rise to an employer’s obligation to provide
information.” Disneyland Park, 350 NLRB 1256, 1258 (2007).
The information sought need not be dispositive of the issues
between the parties but must have some bearing on it. Pennsyl-
vania Power & Light Co., 301 NLRB 1104, 1105 (1991). It
need only be shown that it would be of use to the union in car-
rying out its statutory duties and responsibilities. Wisconsin
Bell Co., 346 NLRB 62, 64 (2005).
Notably, once this “discovery-type” standard has been
shown for non-unit information, the duty to provide the infor-
mation is the same as it is with presumptively relevant unit
information. Depending on the circumstances and reasons for
the union's interest, information that is not presumptively rele-
vant may have “an even more fundamental relevance than that
considered presumptively relevant.” Prudential Insurance Co.
of America v. NLRB, 412 F.2d 77, 84 (2d Cir.) cert. denied 396
U.S. 928 (1969).
Thus, where a union is obligated to establish relevance, it
need only demonstrate a reasonable belief, based upon objec-
tive facts, that the requested information is relevant. Disney-
land Park, 350 NLRB at 1258 (2007); Dodger Theatricals, 347
NLRB at 967. Even absent a showing of probable relevance,
an employer is obligated to furnish the requested information
“where the circumstances put the employer on notice of a rele-
vant purpose which the union has not spelled out.” National
Extrusion & Mfg. Co., 357 NLRB No. 8, slip op. at 48 (2011)
(quoting Allison Co., 330 NLRB 1363, 1367 fn. 23 (2000))
enfd. 700 F.3d 551 (D.C. Cir. 2012).
It is settled by Supreme Court precedent that former bargain-
ing unit employees who are currently retired are nonunit em-
ployees—indeed, they are not employees under the Act. Allied
Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404
U.S. 157, 176 (1971) (holding “that retirees are neither ‘em-
ployees’ nor bargaining unit members”). Thus, a union’s re-
quest for retiree benefits information seeks nonunit information
and requires a showing (or apparent notice through circum-
stances) of relevance.
At the same time, in considering whether the relevance
showing has been made, it is not insignificant that with regard
to retiree benefits the “broad discovery-like standard” of rele-
vance (Caldwell Mfg., supra) is being applied in a context
where the importance of retiree benefits to current unit employ-
ees is well recognized and well settled. In ruling that retiree
were nonemployees, the Supreme Court nevertheless recog-
nized that “[t]o be sure, the future retirement benefits of active
workers are part and parcel of their overall compensation and
hence a well-established statutory subject of bargaining.”
Pittsburgh Plate Glass, 404 U.S. at 180; Midwest Power Sys-
tems, 323 NLRB 404, 407 (1997) (“current bargaining unit
employees [ ] have an obvious direct interest in their future
retirement benefits as an integral part of their compensation
package”).
In this case, the General Counsel alleges that the Respond-
ent’s refusal to provide the requested retiree information vio-
lates the Act. The Respondent refused to provide costing and
other information as to “out-of-the-box” retirees, and contends
that it has not been demonstrated to be relevant.
I do not agree with the Respondent’s assessment. Union
President Marshman requested this retiree information in the
midst of collective-bargaining negotiations and told the
FirstEnergy negotiators he needed this information to formulate
proposals with regard to the bargaining unit’s future retirees.
This explanation was reiterated in the Union’s February 11
letter to the Employer.
The Union’s explanation of the need for retiree benefits cost
and other information in order to collectively-bargain for the
future retirement of current employees articulated and estab-
lished the relevance of the Union’s request to its representa-
tional duties on a mandatory subject of bargaining.
It seems obvious—as much common sense as precedent—
that in the midst of collective-bargaining negotiations for a
labor agreement, as far as making decisions determining, in-
forming, and shaping bargaining for future retiree benefits for
current employees, the information most likely to be relevant is
information on the benefits for current retirees. Such infor-
mation enables the union to see the Respondent’s costs, costs
per retiree and rate of retiree participation in employer-
sponsored benefits. Information on Bruce Mansfield retirees
provides the Union with the costs to the Employer associated
with current retiree benefits, a figure that the Union may decide
should be bargained up through benefit increases for future
retirees or allowed to be bargained down for future retirees as a
means of increasing the amount of compensation available for
wages or other items. The age 65 breakdown provides the Un-
ion information about the willingness of the Medicare-eligible
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
to participate, which is relevant to the bargaining position and
demands of the Union with regard to future retiree benefits.
The ability to compare Bruce Mansfield retiree costs to the cost
of retiree benefits company-wide offers the Union guidance on
the relative burden of retiree benefits to Bruce Mansfield. The
comparison of the age 65 costs and population between Bruce
Mansfield and the entire company allows the Union some in-
sight into whether the benefits at Bruce Mansfield are relatively
costly or inexpensive as a component of the Respondent’s
overall spending on retiree health care.
The relevance of such information has been recognized by
the Board. See, Connecticut Light & Power Co., 220 NLRB
967, 967–968 (1975) (union entitled to requested explanation of
amount and methodology of determining increases in pension
benefits for past five years for current retirees in order for union
to evaluate its pension proposal and/or formulate other pension
proposals for current unit members); Union Carbide Corp., 197
NLRB 717 (1972) (information on the employer’s experience
as to pension and insurance costs and benefits received by retir-
ees requested by union for upcoming negotiations and so it
could better understand the plan must be provided so that union
can bargain intelligently with respect to these matters for active
employees); Cf. Allison Corp., 330 NLRB at 1368, fn. 30 (re-
quested subcontracting information relevant to negotiation for
new contract, because “[f]or example, based on information
regarding the nature, frequency and extent of subcontracting the
Union may wish to propose modifications to the management-
rights clause as it relates to subcontracting”).
Contrary to the suggestion of the Respondent, the Union is
not required to disclose some elaborate plan for its use of retir-
ee benefits information in the negotiations. It need not “prove”
how it can efficaciously use the information. It is relevant to
bargaining about future retiree benefits, and that rationale is
more than sufficient given the operative “discovery-like” stand-
ard. A request for current retiree information in order to bar-
gain over future retiree benefits is a request tightly tethered to
the rationale for it—as there is no more appropriate source of
data to enable the Union to bargain intelligently for future retir-
ee benefits than costs, burdens on the employer, and the de-
mographics associated with current retiree benefits costs. To
find that this information is not relevant to the Union’s stated
purpose of formulating retiree benefit proposals for future retir-
ees would consign the Union to bargaining in the dark over this
indisputably mandatory subject of bargaining.
Indeed, given the settled Supreme-Court and Board recogni-
tion that retiree benefits are an integral part of the active em-
ployee’s overall compensation, a request for retiree information
during the middle of collective-bargaining negotiations that
involve the subject of retiree benefits would seem to be a situa-
tion “where the circumstances put the employer on notice of a
relevant purpose” even if—unlike here—“the union has not
specifically spelled out” its purpose in asking for the retiree
information. National Extrusion & Mfg. Co., 357 NLRB No. 8,
at slip op. 48 (quoting Allison Co., 330 NLRB at 1367 fn. 23));
Ohio Power Co., 216 NLRB 987, 990 fn. 9 (1975) (“The ade-
quacy of the requests to apprise the Respondent of the relevan-
cy of the information must be judged in the light of the entire
pattern of facts available to the Respondent.”), enfd. as modi-
fied 531 F.2d 1381 (6th Cir. 1976).
Notably, the distinction drawn by the Respondent between
“in-the-box” retirees—for whom it was willing to provide the
Union information, and “out-of-the-box” retirees—for whom it
refuses to provide information—is a specious distinction in
terms of what information is relevant to the Union.
While the 2009 labor agreement, and the Employer’s pro-
posal to change it, involved only subsidies for “in-the-box”
retirees, the Union is entitled to bargain—and seek information
to aid in that bargaining—for current employees’ retirement
benefits that will cover these future retirees long beyond “the
box.” These concepts—“in the box” and “out of the box” are
contractual constructs developed by the parties. It is not a stat-
utory distinction. Current employee retiree benefits are a man-
datory subject of bargaining in or out of any box developed by
the parties. The existing arrangements are subject to change for
future retirees through mandatory bargaining that could—
should the parties agree—contractually extend future retiree
employer-subsidized benefits well beyond the “in-the-box”
period described in the current contract. In terms of the Un-
ion’s right to information—and bargaining—it is irrelevant that
the Employer asserts that it is not interested in extending con-
tractual retiree benefits for future retirees. And, in fact, as all
parties to this litigation know well, the subject of subsidies to
future “out-of-the-box” retirees and the Respondent’s duty to
bargain over it, has in the past been very much an issue for
these parties.7 The Employer’s view that it need not bargain
over “out-of-the- box” retiree benefits for current unit employ-
ees is not one shared by the Union. It is a subject that the Un-
ion has every right and reason to seek information about in
order to formulate its bargaining demands—which is exactly
the purpose for which Marshman told the Respondent the Un-
ion was seeking the information.
In fact, even if the Union intended only to bargain for
maintenance of subsidies for future “in-the-box” retirees, the
burden or lack thereof of cost to the Respondent in paying for
“out-of-the-box” retirees, and their eligibility for Medicare (i.e.,
at age 65) would reasonably figure into the Union’s assessment
of the proper position to take regarding benefits for future “in-
the-box” retirees. Thus, information sought on “out-of-the-box”
retirees relates to and informs a proposal for “in-the-box” retir-
ees.
It is also irrelevant that the specific employer bargaining
proposal on the table in the current negotiations concerns only
the future “in-the-box” retirees. It is the relationship of the
retiree information to the Union’s bargaining concerns that
renders the information relevant and producible. In this regard,
the Respondent appears to confuse the situation here with that
in which the issue is whether an employer must provide infor-
mation it would otherwise not have to provide because the em-
ployer’s demands or statements in bargaining render the infor-

7 See, FirstEnergy Corp., 358 NLRB No. 96 (2012) (finding em-
ployer in violation of Act for unilaterally eliminating retiree subsidies
that will affect current employees when they reach “out-of-the-box”
retiree status) (petition to enforce dismissed by the Third Circuit Court
of Appeals in light of NLRB v. Noel Canning, 134 S.Ct. 2550 (2014),
and returned to the Board at Board’s request for further consideration).
FIRSTENERGY GENERATION, LLC 7
mation relevant to the union’s verification of the employer
positions. See, e.g., National Extrusion & Mfg. Co., 357 NLRB
No. 8, slip op. at 3; Caldwell Mfg. Co., 346 NLRB 1159
(2006); Taylor Hospital, 317 NLRB 991 (1995), review denied,
82 F.2d 406 (3d Cir. 1996). But this line of cases does not limit
the right of a union to request and receive nonunit information
for which the union has explained the relevance, regardless of
whether there is a bargaining proposal already on the table that
justifies the union’s information request.
Other objections of the Respondent are also without force.
For instance, it is probative of nothing that the Union requested
and was denied similar information in early 2009. That was not
litigated and does not inform my decision. That the Respond-
ent provided the Union with data limited to “in-the-box” retir-
ees does not ameliorate the obligation to provide the Union
with requested information about out-of-box retirees. As ex-
plained above, the Employer misconceives its role in the infor-
mation gate-keeping process when it asserts on brief, as its
witness essentially did in trial (Tr. 121, 123), “that the Union
received all that it needed to negotiate a Company proposal to
‘end the retiree medical box’ in a successor agreement” (R. Br.
at 14). Within reason, it is for the Union, not the Employer to
decide what information can be of use to it—and here, its re-
quest for retiree data was well within reason. Contrary to the
Respondent’s argument (Br. R. at 15) the Union did explain
with adequate “precision” why it wanted the retiree infor-
mation: to formulate proposals for its unit members’ retiree
benefits.
The Union’s right to knowledge-based bargaining is not a
stingily-dispensed right, but rather, a right central to the Act,
and part of the promise of union representation. It is a right
intended to support the bargaining process: “The objective of
the disclosure [of requested information] obligation is to enable
the parties to perform their statutory function responsibly and
'to promote an intelligent resolution of issues at an early stage
and without industrial strife.'“ Clemson Bros., 290 NLRB 944,
944 fn. 5 (1988) (quoting Monarch Tool Co., 227 NLRB 1265,
1268 (1977)). Once it was established—as I believe it was
here—that the requested information was relevant to the Un-
ion’s bargaining interests, the information must be provided,
without regard for the Employer’s opinion about what infor-
mation was needed by the Union. There is no question here of
the data being confidential or unrelated to the legitimate scope
of concerns and representational duties of the Union. Its re-
quest for unit retiree information is fully justified by the expla-
nation that it is needed to formulate bargaining proposals on the
subject of future retiree benefits, a subject which is indisputably
a mandatory subject of bargaining.8

8 At the hearing, Gianatasio testified that in reviewing the Union’s
information request he learned from his benefits department that the
Respondent “doesn’t track out-of-the-box retirees by local.” According
to Gianatasio, “out-of-the-box” retiree information is maintained in a
company-wide pool. On brief the Respondent suggests (R. Br. at 15)
that Gianatasio’s testimony is akin to an assertion that the requested
information does not exist. It is not. Rather, the testimony confirms
that the information exists—the issue suggested by Gianatasio’s testi-
mony is one of burdensomeness. But that defense is unproven on this
record and, in any event, untimely. There is no evidence it was ever
II. ALLEGED DELAY IN PROVIDING REQUESTED OWNERSHIP
INFORMATION
The duty to furnish information requires “a reasonable good-
faith effort to respond to the request as promptly as circum-
stances allow.” Good Life Beverage Co., 312 NLRB 1060,
1062 fn. 9 (1993).” An unreasonable delay in furnishing such
information is as much of a violation of Section 8(a)(5) of the
Act as a refusal to furnish the information at all. “Valley Inven-
tory Service, 295 NLRB 1163, 1166 (1989). “Absent evidence
justifying an employer's delay in furnishing a union with rele-
vant information, such a delay will constitute a violation of
Section 8(a)(5) inasmuch ‘as the Union was entitled to the in-
formation at the time it made its initial request, [and] it was
Respondent’s duty to furnish it as promptly as possible.’”
Woodland Clinic, 331 NLRB 735, 737 (2000) (Board’s brack-
ets), quoting, Pennco, Inc., 212 NLRB 677, 678 (1974).
The General Counsel alleges an unlawful delay by the Re-
spondent in providing ownership information on Bruce Mans-
field units 2 and 3 as requested by the Union.
The initial complaint issued by the General Counsel alleged
that this information was requested by the Union on January 2,
and again on January 6, and never provided by the Employer.
However, at the outset of the hearing the claim was amended to
delete the January 2 date and allege only that a January 6 in-
formation request was made, and that it was satisfied, but not
until March 12.
However, the facts as I have found after hearing the evidence
are that the Union’s January 6 request for information on Bruce
Mansfield’s three units’ ownership was partially answered on
January 20, and then, when the incomplete response was raised
by the Union on February 5, the Employer stated that it did not
yet have the information, and then fully answered (orally) on
February 12. A subsequent February 18 union letter seeking
the information was responded to by the Employer on March
12.
On these facts, I do not find a violation. On brief, the Re-
spondent argues that Gianatasio intended that his January 20
answer regarding the majority ownership of unit 1 by an in-
vestment banks/trustee be understood as an implicit acknowl-
edgment that the other units—2 and 3—were owned directly by
the Respondent. Whether or not Gianatasio meant that, I do not
think that the silence on units 2 and 3 reasonably conveyed that.
Still, after the Union raised the lapse, the Respondent answered
satisfactorily within one week’s time. Notably, there was no
affirmative refusal to provide and no extended lapse. The par-
ties stipulated that numerous other items of requested infor-
mation were provided, which further suggests that there was no
purposeful or bad-faith delay. Indeed, the testimony of Union
Representative Welsh suggests that the Employer told the Un-
ion that it had not obtained the information on the ownership of
units 2 and 3 as of February 5. But it was provided by February

raised with the Union. Rather, the Respondent simply refused to fur-
nish the information. H&R Industrial Services, 351 NLRB 1222, 1224
(2007) (employer’s duty to raise issue of burdensomeness when it
receives information request and to bargain about arrangements to
satisfy the request); Martin Marietta Energy Systems, 316 NLRB 868,
868 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
12. The disputed information was provided before the con-
tract’s expiration and there is no claim that this particular issue
or information undermined the negotiations. Based on all the
circumstances, I do not find an unreasonable delay in providing
the ownership information.
CONCLUSIONS OF LAW
1. The Respondent FirstEnergy Generation, LLC, is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Charging Party, the International Brotherhood of
Electrical Workers, Local Union No. 272, AFL–CIO (Union),
is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Union is the designated collective-bargaining repre-
sentative of the following bargaining unit of the Respondent’s
employees:
all production and maintenance employees, including Control
Room Operators, employees in the Stores, Electrical, Mainte-
nance, Operations, I & T, and Yard Departments at the Bruce
Mansfield Plant, excluding technicians, office clerical em-
ployees and guards and other professional employees and su-
pervisors as defined in the National Labor Relations Act as
amended.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to provide relevant information
requested by the Union regarding retiree benefits.
5. The unfair labor practices committed by the Respondent
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist there from and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent shall provide the Union with the infor-
mation that it has to date failed and refused to provide that was
requested by the Union in its January 27, 2014 information
request to the Respondent, as described in the decision in this
matter.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted at the Respondent’s facility wherever the notices to em-
ployees are regularly posted for 60 days without anything cov-
ering it up or defacing its contents. In addition to physical post-
ing of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event
that, during the pendency of these proceedings 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 employees and
former employees employed by the Respondent at any time
since February 7, 2014. When the notice is issued to the Re-
spondent, it shall sign it or otherwise notify Region 6 of the
Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent FirstEnergy Generation, LLC, Shippingport,
Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish information requested by
the Union that is relevant and necessary for the Union to fulfill
its role as the collective-bargaining representative of the unit
employees.
(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) Provide the Union with the information requested Janu-
ary 27, 2014, regarding retiree benefits.
(b) Within 14 days after service by the Region, post at its
facilities in Shippingport, Pennsylvania, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 6, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where notices
to employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 employees and former employees employed by the
Respondent at any time since February 7, 2014.
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 6 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. January 23, 2015

9 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.
10 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.”
FIRSTENERGY GENERATION, LLC 9
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to furnish the Union with information
requested by the Union that is relevant and necessary for the
Union to fulfill its role as your collective-bargaining repre-
sentative.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL provide the Union with the retiree benefits infor-
mation requested in the Union’s January 27, 2014 information
request.
FIRSTENERGY GENERATION, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/06-CA-121513 or by using the QR
code below. Alternatively, you can obtain a copy of the deci-
sion from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by
calling (202) 273-1940.