Florida Power and Light Company

National Labor Relations Board - Administrative Judge Opinions

Dec 27, 2018

12-CA-211064 (N.L.R.B. Dec. 27, 2018)

JD–86–18
Juno Beach, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FLORIDA POWER & LIGHT COMPANY
and Case 12–CA–211064
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL–CIO,
LOCAL UNION 641
Rafael Aybar, Esq., for the General Counsel.
Richard J. Joy, Esq. and Christin M. Russell, Esq.,
Florida Power & Light Co. Law Department,
of Juno Beach, Florida, for the Respondent.
Greg King, of Naples, Florida, for the Charging Party.
DECISION
CHARLES J. MUHL, Administrative Law Judge. In September 2017, Hurricane Irma struck
the State of Florida and caused extensive damage, including to the electrical service of
Respondent Florida Power & Light Company. To restore electricity, the Respondent utilized
bargaining unit employees represented by Local 641 of the International Brotherhood of
Electrical Workers union. The Respondent also brought in outside contractors. By agreement,
all workers were scheduled for 6 a.m. to 10 p.m. shifts, with any work beyond those hours
constituting overtime. The collective-bargaining agreement between the Respondent and the
Union required the Company to offer any overtime work to unit employees before it could be
offered to contractors. When the Union learned of the possibility that contractors were working
outside the scheduled shift, it submitted an information request to the Respondent. The Union
sought a list of all the contractors performing restoration work and the timesheets for contract
workers. Although it provided the contractor list, the Respondent did not furnish the
timesheets. The General Counsel’s complaint alleges the Respondent violated Section 8(a)(5) of
the National Labor Relations Act, by refusing to furnish relevant, requested information to the
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Union. Because it did not provide all of the relevant, requested information, I conclude the
Respondent violated the Act as alleged. I also find the Respondent unlawfully failed to inform
the Union until the hearing that certain responsive information did not exist.
STATEMENT OF THE CASE5
On December 5, 2017, International Brotherhood of Electrical Workers (IBEW), AFL–
CIO, Local Union 641 (the Charging Party) initiated this case by filing the original unfair labor
practice charge in Case 12–CA–211064 against Florida Power & Light Company (the
Respondent). The Charging Party is a member of System Council U–4 of the IBEW (collectively 10
the Union). On May 4, 2018, the Union filed an amended charge. On May 31, 2018, the
General Counsel, through the Regional Director for Region 12 of the National Labor Relations
Board (the Board), issued a complaint against the Respondent. The complaint alleges the
Respondent violated Section 8(a)(5) of the National Labor Relations Act (the Act) by failing and
refusing to furnish the Union with information that is necessary for and relevant to the Union’s 15
performance of its duties as the exclusive collective-bargaining representative of certain
employees of the Respondent. On June 13, 2018, the Respondent filed an answer to the
complaint, denying the substantive allegations and asserting multiple affirmative defenses. On
October 29, 2018, in Naples, Florida, I conducted a trial on the complaint.
20
On the entire record and after considering the briefs filed by the General Counsel and
the Respondent on December 3, 2018, I make the following findings of fact and conclusions of
law.1
FINDINGS OF FACT25
I. JURISDICTION
The Respondent is engaged in the business of operating an electric public utility that
transmits, distributes, and sells electricity at various locations throughout the State of Florida. 30
The Respondent’s principal office and place of business is in Juno Beach, Florida. In conducting
its business operations during the past 12 months, the Respondent has derived gross revenues
in excess of $250,000. During the same time period, the Respondent has purchased and
received, at its facilities in the State of Florida, goods valued in excess of $50,000 directly from
points outside the State of Florida. Accordingly, I find, as the Respondent admits, that, at all 35

1 In order to aid review, I have included citations to the record in my findings of fact. The
citations are not necessarily exclusive or exhaustive. In assessing witnesses’ credibility, I have considered
their demeanors, the context of the testimony, the quality of their recollections, testimonial consistency,
the presence or absence of corroboration, the weight of the respective evidence, established or admitted
facts, inherent probabilities, and reasonable inferences that may be drawn from the record as a whole.
See Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001)
(citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed.Appx. 516
(D.C. Cir. 2003). Where needed, I discuss specific credibility resolutions in my findings of fact.
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material times, the Respondent has been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. I also find, and the Respondent admits, that IBEW System
Council U–4 and IBEW Local 641 are labor organizations within the meaning of Section 2(5) of
the Act.
5
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent provides electricity to over 4 million customers in Florida, employing
roughly 15,000 people statewide to do so. Over 400,000 of those customers are in the Naples
management area. Bruce Jamison is the Respondent’s manager for distribution in that area. He 10
is responsible for overseeing the maintenance and restoration of power to existing customers
and providing electric service to new customers. The Respondent further divides its
management areas into service centers. The four service centers involved in this case are Bonita
Springs Workforce (BSW), Fort Myers Operations (FMO), Gladiolus Operations (GDO), and
Golden Gate Operations (GGO). The IBEW represents about 2,900 employees of the 15
Respondent statewide. IBEW Local 641 is the representative for approximately 180 to 185 of
those employees in numerous job classifications. The employees work in the Respondent’s
nuclear, power systems, and power generation divisions. Among the workers the Union
represents are 20 customer service, transmission, and substation employees. The current
collective-bargaining agreement between the Respondent and the Union runs from October 31, 20
2017 to October 31, 2020. The prior agreement’s term was from August 29, 2014 to October 31,
2017. Greg King is a senior line specialist who has been employed by the Respondent for almost
40 years. Since June 2013, King also has served as the president of IBEW Local 641. His duties
as union president include insuring that the collective-bargaining agreement between the
Respondent and the Union is enforced and filing grievances for contract violations. 25
A. The Union’s Information Request
In September 2017, Hurricane Irma struck Florida and caused massive damage
throughout the state.2 The Respondent’s electricity service was severely impacted, requiring30
extensive restoration work. In the Naples area, the Respondent set up four temporary staging
sites in mid-September, from which the work was performed. The Respondent utilized both its
own employees, as well as outside contractors, to complete the work. The contractors included
workers from other utility companies. As had been their typical practice, the Respondent and
the Union agreed that both bargaining unit employees and contractors would be scheduled to 35
work from 6 a.m. to 10 p.m. (Tr. 28–29, 49–50, 53–54.) Any time worked beyond that would be
overtime. Pursuant to provisions in the collective-bargaining agreement, the Respondent had to
offer any overtime work to bargaining unit employees, before giving it to contractors. (GC Exh.
4, p. 9, art. 38(a); GC Exh. 5(b).) The Respondent completed its Irma restoration work and shut
down the staging sites on September 24.40

2 All dates hereinafter are in 2017, unless otherwise noted.
JD–86–18
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While that work was ongoing, employees reported to King that contractors with a
company called Wilco had told them they were working beyond the 6 a.m. to 10 p.m. shift.
King also saw trucks used by a contractor named Northline Utilities in the morning outside the
regular shift. King was concerned that contractors were working overtime hours that had not
been offered to bargaining unit employees. As a result, on October 9, King emailed an 5
information request to representatives of the Respondent, including Jamison. (GC Exh. 7, p. 3.)
The subject of the request was “Utility and contractor timesheets.” The first item King
requested was:
Utility and contractor count by [service center] boundaries to 10
include BSW, FMO, GDO and GGO. This should include foreign
utility, contractors, embedded contractors as well as [Respondent]
crews [that] traveled from other areas.
In layman’s terms, King sought the names of all contractors who performed restoration work 15
out of the four service centers. The list was to include any contractors employed by other
utilities; local (embedded) and non-local contractors; and any Respondent crews/employees
from outside the local area. The second item King requested was timesheets for all of the
contractors covered by the first request, as well as timesheets for the Respondent’s customer
service, transmission, and substation employees. Both requests were for the time period from 20
September 15 to October 8. King stated he needed the information for the “grievance process.”
Finally, King asked the Respondent to provide the information by October 29. The purpose of
King’s request was to determine if a grievance could be filed alleging the Respondent was using
contractors outside the agreed-upon daily shift and not affording unit employees the
opportunity to work overtime.325
B. The Company’s Response to the Union’s Information Request
On October 25, King and Jamison met to discuss the Union’s request for information.
Jamison told King it would be hard for him to collect all the contractor timesheets for the 30
requested time frame. He also asked King for specifics on why he needed the information.
King told Jamison he had seen a Northline Utilities truck on the road early in the morning and
that certain contract employees of Wilco had told bargaining unit employees that they were
working outside the 6 a.m. to 10 p.m. schedule. Jamison asked King if he could refine the scope
of the request for the contractor timesheets. King also told Jamison he did not see any of the 35
Respondent’s bargaining-unit employees working on e-tickets and priority one tickets. Jamison
told King he would look into the issue.

3 King’s October 9 email contained three additional information requests, including one for a list
of all “tickets” assigned to contractors. The Respondent generates “e-tickets” and “priority one” tickets
for repair work to electrical equipment. The tickets are based upon calls from police, fire rescue, or
customers reporting equipment damage. This information request is not included in the General
Counsel’s complaint. However, as will be discussed below, the General Counsel is seeking to establish
that the Company’s response to this request likewise was unlawful.
JD–86–18
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After the meeting, Jamison sent an email to King the same day that documented their
discussion. Jamison stated that gathering the requested information would be “unduly
burdensome” for the Respondent, noting that it covered 25 days and four staging sites. Jamison
asked King if he could submit a “less extensive, yet still relevant” request. Jamison stated the 5
Respondent would investigate whether contractors from Wilco and Northline Utilities worked
outside the 6 a.m. to 10 p.m. time range. Jamison also said he would investigate and provide
the Union with the vendors and hours worked for the e-tickets and priority one tickets. King
responded via email that same day, stating he was unwilling to water down his request and
limit it solely to the two named contractors. He said he wanted the full request fulfilled.10
On October 28, King typed up a grievance form, alleging a violation of the contract
provision requiring unit employees to be offered overtime hours prior to contractors. (GC Exh.
8.) The text of the grievance stated the following as to the remedy being sought by the Union:
15
Requesting OT pay, meals and travel for ALL [bargaining-unit]
employees not given the opportunity to work the same hours as
contractors and other utilities from 9-15-2017 through 10-8-2017.
This should include [transmission, substation, and customer
service.]20
King signed the grievance and gave it to the chief steward, Jordan Cook, for filing. However, to
this point, the Union has not filed the grievance.4
King’s October 29 deadline for receiving the requested information came and went 25
without a response from the Company. Thus, on November 1, King emailed Jamison and
stated “2nd request, please provide by EOB on 11–3–17.” Jamison responded via email the
same day, telling King the Respondent was in the process of gathering the requested
information and expected to have it done by November 27. With respect to the request for
contractor timesheets, Jamison stated a willingness to provide “specific information to address 30
the potential issue you are attempting to review,” but reiterated that the request as submitted
was unduly burdensome and needed to be refined. On November 8, King responded via email
and told Jamison he was not willing to refine the request. He stated he needed to review all of
the timesheets. King referenced an issue with an information request he had submitted to the
Respondent that prior summer. King contended that he had demonstrated the Respondent 35

4 I find the record evidence insufficient to establish the Union actually filed the grievance with
the Respondent. (Tr. 60–62, 80–81, 92–93; GC Exh. 8.) The grievance form entered into evidence is
unsigned. Although he gave a signed grievance to Cook, King was unsure whether Cook had ever filed it
thereafter. Jamison sees every grievance that comes through his area and he denied having ever seen this
one. King easily could have checked with Cook prior to the hearing to determine what happened to the
grievance form King gave him. Nonetheless, whether it has been filed or not, King noted that the parties’
collective-bargaining agreement gives the Union 28 days to file a grievance over an alleged violation of
the contract. (Tr. 55.) He further stated that the Union’s position is that 28 days begins to run once the
Union becomes aware of a violation.
JD–86–18
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initially provided incorrect information to him on that occasion. King closed the email by
saying he expected the requested information on the November 27 date the Respondent said it
would have the information gathered.
On November 27, Jamison emailed King the Respondent’s response to the information 5
request. (GC Exhs. 7 (p. 1), 9, and 10.) As to the first item requested, Jamison provided an
electronic file entitled “Irma Naples.” The file contained information on nearly 140 contractors
and other utility companies that worked on the restoration efforts from September 17 to 24. The
first column of the file, entitled “Travel Team Name,” contained a code name (e.g.
“PikePikeGA065”) for each contractor or outside utility. The file also contained the number of 10
workers utilized by the contractor or outside utility, as well as the start and end dates of their
restoration work. The file did not contain the actual name of each entity or indicate whether the
entity was a contractor or outside utility. As to the Union’s second request for contractor
timesheets, Jamison wrote:
15
Please see attached files, titled, “Irma Naples. . .”, for start and
release dates for the vendors. The vendors were on a 6a-10p shift.
Timesheets for Customer Service and Transmission/Substation are
still in the process of being gathered and will be submitted to you
by 12/1/17.20
Jamison also included a file entitled: “Ticket List to Irma,” which contained a list of all tickets
worked on by bargaining-unit employees and contractors. However, it did not identify which
entries were for contractors, nor did it include the hours worked on each ticket. Jamison closed
the email by saying: “Please review the information that is provided and provide feedback as 25
to whether this satisfies your request.” King did not respond in writing to this email.
On or about December 1, Jamison provided King with customer service employee
timesheets for the month of September and transmission employee timesheets for the months of
September and October. Jamison did not provide any timesheets for substation employees. 30
Jamison did not explain why certain timesheets were not provided.
Shortly after receiving the Company’s response, King and Jamison spoke once again.
King asked when the Union could expect the rest of the information, in particular the contractor
timesheets, which the Respondent had not provided. Jamison responded that he did not have 35
access to the contractor timesheets and someone else would have to provide the information.5
The Union then filed it unfair labor practice charge with the Board on December 5.

5 I credit King’s testimony concerning the content of this conversation with Jamison. (Tr. 75–76.)
In response to leading questions, Jamison denied that King ever responded to his November 27 email.
(Tr. 91.) Later, Jamison conceded that he and King had spoken about the response. But Jamison claimed
the discussion only concerned King’s additional request for the Respondent’s contracts with its
contractors. (Tr. 97–98; GC Exh. 7, p. 3.) Given Jamison’s written response, I find it inherently probable
that King would ask him when the Union would receive the contractor timesheets. The purpose of
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At the hearing, King and Jamison testified about the information requests which
remained outstanding at that time. (Tr. 30–32, 76–77, 85–90, 103–106.) First and foremost, the
Respondent never provided contractor timesheets. Jamison testified that the Respondent does
not have access to contractor timesheets for hurricane restoration work and contractors do not 5
provide them to the Respondent. Instead, contractors send the timesheets to a third-party
vendor, who processes them for payment from the Respondent. Jamison did not testify as to
any efforts the Respondent undertook to obtain timesheets from the contractors listed in the
Irma Naples file. Second, King testified the Union never received any timesheets for substation
employees or any information on work performed by Respondent crews from other geographic 10
areas in Florida. Jamison testified that the Respondent did not provide this information,
because no substation employees or outside crews worked on the restoration efforts performed
from the four staging sites. However, the Respondent did not communicate this information to
the Union prior to the hearing. Finally, King testified that the Irma Naples contractor list did
not contain any information for October and the Union never received timesheets for customer 15
service employees for October. Jamison stated that the Respondent did not provide any
information for the time period after September 24, because electricity essentially had been
restored by then and the four staging sites were shut down. But he also acknowledged that the
Respondent used contractors in October after the staging sites were shut down for follow-up
storm work. Jamison did not investigate whether the Respondent had any timesheets for those 20
contractors. Moreover, the Respondent again did not communicate any of this information to
the Union prior to the hearing.
ANALYSIS
25
The General Counsel’s complaint alleges that the Respondent violated Section 8(a)(5) by
refusing to provide the Union with all of the information requested by King on October 9, 2017.
I. LEGAL FRAMEWORK
30
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. Truitt Mfg. Co., 351 U.S. 149, 152 (1956). Where the
information requested concerns non-unit employees, the union bears the burden of establishing 35
relevancy. Public Service Electric & Gas Co., 323 NLRB 1182, 1186 (1997). A union satisfies its
burden to do so, if it demonstrates either “a reasonable belief, supported by objective evidence,

King’s information request was to determine if contractors were working outside the regular shift.
Nothing in Jamison’s November 27 email enabled King to determine this. Jamison only told King that
contractors were scheduled from 6 a.m. to 10 p.m. This was a fact King already knew and one that is
irrelevant to the question of whether contractors worked any overtime. King needed the contractor
timesheets to answer the question. That King would ask Jamison about the contractor timesheets after
receiving the November 27 response is the logical and expected reaction.
JD–86–18
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that the requested information is relevant,” Disneyland 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 responsibilities,’” Kraft
Foods North America, Inc., 355 NLRB 753, 754 (2010) (quoting NLRB v. Acme Industrial Co., 385
U.S. 432, 437 (1967)). Either way, a broad, discovery-type standard applies and the union’s 5
initial showing is not an exceptionally heavy one. Ibid (internal quotation marks and citations
omitted); accord, e.g., A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011); Shoppers Food
Warehouse, 315 NLRB 258, 259 (1994).
I. DID THE RESPONDENT VIOLATE SECTION 8(A)(5) BY FAILING AND REFUSING TO10
PROVIDE THE UNION WITH ALL RELEVANT, REQUESTED INFORMATION?
Applying the Board’s legal framework here, the first issue to be addressed is whether
the Union established the relevance of the information King requested concerning non-unit
employees on October 9. Although the Respondent does not contest relevance, the Union 15
nonetheless must sustain its burden in this regard. No question exists that the Union has done
so. The parties’ contract requires the Respondent to offer any overtime work associated with
tropical storm restoration efforts to unit employees first. During the Irma restoration work, the
Union obtained information suggesting contractors were working overtime hours which had
not been offered to unit employees. King’s subsequent information request for a contractor list 20
and contractor timesheets would permit the Union to determine if any contractors worked
outside of the 6 a.m. to 10 p.m. shift. If so, the Union could file a grievance alleging the
Respondent failed to comply with the contractual overtime provisions. As a result, I find that
the Union has demonstrated the relevance of the requested information. See, e.g, Jack Cooper
Transport Co., 365 NLRB No. 163, slip op. at 3 (2017) (information related to a grievance 25
asserting an employer had diverted bargaining unit work to non-unit personnel was relevant,
where the employer was signatory to contracts limiting such work diversions and prohibiting
subcontracting); Wachter Construction, Inc., 311 NLRB 215, 215–217 (1993) (union established
relevance of payroll records sufficient to show the wages and benefits paid to contractors on
certain construction jobs, where collective-bargaining agreement required employer’s 30
subcontractors to pay wages and benefits at least equal to those called for in the contract and to
terminate any subcontractor agreement if the obligation was unfulfilled), enf. denied on other
grounds 23 F.3d 1378 (8th Cir. 1994); Hawkins Construction Co., 285 NLRB 1313, 1315–1316 (1987)
(union’s request for a list of subcontractors, subcontractor agreements, and wage and benefit
data of subcontractors who worked on certain projects was relevant, where collective-35
bargaining agreement required subcontractor to abide by the terms of that agreement), enf.
denied on other grounds 857 F.2d 1224 (8th Cir. 1988).
When requested information has been demonstrated to be relevant, the burden shifts to
the respondent to establish that the information is not relevant, does not exist, or for some other 40
valid and acceptable reason cannot be furnished to the requesting party. Samaritan Medical
Center, 319 NLRB 392, 398 (1995); Yeshiva University, 315 NLRB 1245, 1248 (1994). Again, the
most significant piece of information the Respondent did not provide was the contractor
timesheets. The Respondent asserts the timesheets are not in its possession and not otherwise
JD–86–18
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available to it, because contractors submitted them to a third-party vendor. I find no merit to
this contention. To establish an unavailability of information defense, the Respondent needed
to present evidence that it actually requested the timesheets from its contractors. See, e.g., The
Earthgrains Co., 349 NLRB 389, 399 (2007) and cases cited therein; García Trucking Service, 342
NLRB 764, 764 fn. 1 (2004). It likewise had to demonstrate the contractors refused to or were 5
unable to provide the timesheets. See, e.g., Pratt & Lambert, 319 NLRB 529, 534 (1995); Public
Service Co. of Colorado, 301 NLRB 238, 246–247 (1991); United Graphics, 281 NLRB 463, 466 (1986).
The Respondent made neither showing. Jamison did not request timesheets from contractors
who performed Irma restoration work out of the four staging sites. Instead, he told King
“someone else” would have to provide the timesheets to the Union. Jamison put King in the 10
position of having to request the information from the Respondent’s contractors. The
Respondent, not the Union, had that obligation. Furthermore, it is not enough, as the
Respondent suggests, that Jamison told King in his November 27 email the contractors were
scheduled from 6 a.m. to 10 p.m. Jamison did not state that contractors only worked the
scheduled shifts. Even if he had, King was not required to take Jamison at his word and was 15
entitled to the timesheets to verify the claim.
The Respondent also argues that no violation occurred, because King did not respond to
Jamison’s November 27 email. However, the credited facts do not support this defense. The
Respondent points to the end of Jamison’s email, where he stated: “Please review the 20
information that is provided and provide feedback as to whether this satisfies your request.”
The Respondent claims, since King never renewed his information request or advised Jamison
that the information he provided was inadequate, Jamison thought his response was
satisfactory. However, based upon my credibility determination described above, I found that
King and Jamison did speak after Jamison’s initial response. During the conversation, King 25
specifically asked Jamison about the contractor timesheets. Jamison told King he did not have
access to them and King would have to get them from someone else. At that point, King
already had made two written requests for the timesheets and also tacitly agreed to an
extension to his requested deadline for the Respondent to provide the information. Having
been denied a third time, King filed an unfair labor practice charge with the Board. Thus, 30
Respondent’s contention that King did not respond is factually inaccurate. Given the sequence
of events and Jamison’s last response, King likewise did not need to continue the dialogue.6
The cases relied upon by the Respondent to support its argument in this regard do not
alter my conclusion. In Day Automotive Group, 348 NLRB 1257 (2006), the Board affirmed a 35
judge’s dismissal of a refusal-to-provide-information allegation. When the employer there
proposed in bargaining to move unit employees to a new health insurance plan, the union
requested the plan documents and a summary plan description. In response, the employer did

6 Even if King had not responded to Jamison’s November 27 email, Jamison could not have
thought the information he provided on contractor timesheets satisfied the Union’s request. As
previously noted, the response did not enable the Union to verify if contractors worked any overtime.
Thus, and contrary to the Respondent’s assertion, the response was plainly inadequate to fulfill the
purpose of the Union’s information request. See Airport Aviation Services, 292 NLRB 823, 823–824 (1989).
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not provide the specific documents requested, but rather a health plan booklet and a grid
showing a summary of the plan benefits. The union reviewed the information provided,
rejected the employer’s health care proposal, and never asked for more information. The judge
concluded that, objectively, the information the employer provided to the union enabled it to
effectively evaluate the health care proposal, even if the employer had not provided the exact 5
documents requested. In contrast here, the information the Respondent provided to the Union
in no way enabled the Union to determine if contractors performing Irma restoration work were
working outside of the 6 a.m. to 10 p.m. hours for which they were scheduled. In International
Game Technology, 366 NLRB No. 170 (2018), the Board’s decision solely addressed the issue of
the relevance of a union’s request for a list of all of the employer’s locations nationwide. 10
Relevance is not in dispute in this case. Furthermore, in finding no violation, the Board noted
the union’s failure to respond to the employer’s specific request for a relevance explanation.
Because the union did not respond to the request, the Board found such silence would
“reasonably signal to the [r]espondent that [the union] was satisfied with the information it had
received and that the list of locations was not relevant or needed.” Here, King did not respond 15
with silence. He and Jamison had a conversation after the Respondent’s initial response and
King reiterated for a third time that he wanted the contractor timesheets. In Whitesell Corp., 352
NLRB 1196 (2008), affd. and incorporated by reference 355 NLRB 635 (2010), the Board found no
violation when an employer responded to a union’s request for information to evaluate a layoff
and recall proposal. After receiving the response, the union did not renew its information 20
request or indicate that it expected more information. In addition, the judge in the case did not
identify any outstanding information requested by the union. In this case, King did respond
and asked again for the timesheets, which likewise have been identified as the key piece of
missing information. In sum, I find these cases inapposite to this one.7
25
Finally, as to the Union’s first request for a count of contractors by service center, the
Respondent asserts that it fully responded to King’s request. However, Jamison’s testimony
establishes the response was not complete. The Union asked for a list of all contractors who
performed Irma restoration work by service center area. In addition to contractors themselves,
the Union asked that the list include other utility companies and other Respondent crews who 30
came from outside the four service centers to perform restoration work. In response, the
Respondent submitted the Irma Naples file, which provided a list of each contractor, the
number of workers employed by each contractor, the staging site (not the service center) from
which the contractors worked8, and their start and release dates. The only contractors/
employers not listed were Respondent crews that came from outside the service centers, 35
because no such crews assisted in the restoration efforts. Nonetheless, one category of

7 The Respondent’s reliance on Springfield Day Nursery a/k/a Square One, 362 NLRB No. 30 (2015),
likewise is unavailing. In that case, the judge concluded an employer did not unreasonably delay in
providing information to a union, because the employer made a reasonable good-faith effort to respond
to the request as promptly as it could. However, the General Counsel did not file exceptions to the
judge’s decision. Id., slip op. at 1. Thus, the issue was not before the Board. Operating Engineers Local 39
(Mark Hopkins Intercontinental Hotel), 357 NLRB 1683, 1683 fn. 1 (2011).
8 How staging site areas related to service center areas is not clear from the record. (Tr. 87.)
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outstanding information remains. The Irma Naples file did not list any contractors who worked
after September 24 to October 8, despite the Union’s inclusion of that time period in the request.
At the hearing, Jamison first explained that the Respondent shut down the staging sites as of
September 24, so no contractors could have been working thereafter. But he later added that the
Respondent utilized additional contractors in October for follow-up work, after the staging site 5
shutdown. Jamison admitted the Respondent provided no information to the Union on those
contractors. He claimed it was unnecessary to do so, because the Union’s request was limited to
work out of the four staging sites. However, neither the Union’s written request nor any of
King’s statements to Jamison after submitting the request limited the information sought to the
four staging sites. Thus, the Respondent did not fully respond to the Union’s request.910
For all these reasons, I find that the Respondent violated Section 8(a)(5) by failing and
refusing to furnish the Union with all of the relevant information King requested on October 9.
The Respondent did not provide contractor timesheets for Irma restoration work from
September 15 to October 8; a list of contractors who performed that work from September 25 to 15
October 8; and timesheets for customer service employees from October 1 to 8.
II. DID THE RESPONDENT VIOLATE SECTION 8(A)(5) BY FAILING TO CONTEMPORANEOUSLY
INFORM THE UNION THAT CERTAIN RESPONSIVE DOCUMENTS DID NOT EXIST?
20
In his brief, the General Counsel also claims the Respondent independently violated
Section 8(a)(5) by failing to timely disclose to the Union that no responsive information existed
to certain of King’s requests. This alleged violation is not contained in the General Counsel’s
complaint. Thus, the preliminary question is whether it is appropriate for me to consider the
allegation and reach the merits of the issue.25
The Board may find and remedy a violation of the Act even in the absence of a specific
complaint allegation, if the issue is closely connected to the subject matter of the complaint and
has been fully litigated by the parties. Pergament United Sales, Inc., 296 NLRB 333 (1989), enfd.
920 F.2d 130 (2d Cir. 1990). An employer’s failure to timely disclose to a union that requested 30
information did not exist is a fact “closely connected” to a complaint allegation that the

9 In his emails to King concerning the information request, Jamison twice stated that producing
the contractor timesheets was unduly burdensome. However, the Respondent did not plead this as an
affirmative defense in its answer, nor raise this defense in its brief. Even if it had, the Respondent has not
established that producing the contractor timesheets would be overly burdensome. At the time, Jamison
only told King it would be “unduly burdensome” or “hard” to collect that information. (Tr. 56–59; GC
Exh. 7, pp. 2–3.) Jamison did not explain why. At the hearing and in response to leading questions,
Jamison said only that gathering the data was unduly burdensome, because the Hurricane Irma
restoration effort was the largest mobilization of an electrical workforce in the history of the United
States. (Tr. 84.) The Respondent made no factual showing as to the cost or effort involved in producing
the contractor timesheets. It also made no request to the Union to bargain over the costs of obtaining the
information. Therefore, the record evidence is insufficient to demonstrate that producing the timesheets
was overly burdensome. See, e.g., Martin Marietta Energy Systems, Inc., 316 NLRB 868, 868 (1995); Yeshiva
University, 315 NLRB at 1248–1249.
JD–86–18
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employer failed to furnish the union with relevant information it had requested. General
Drivers, Warehousemen & Helpers Local Union No. 89, 365 NLRB No. 115, slip op. at 1–2 (2017);
Grayhawk PA, Inc., 364 NLRB No. 37, slip op. at 7 (2016). The determination of whether a matter
has been fully litigated “rests in part on ‘whether the respondent would have altered the
conduct of its case at the hearing, had the specific allegation been made.’” Piggly Wiggly 5
Midwest, LLC, 357 NLRB at 2345 (quoting Pergament, supra at 335).
In General Drivers Local 89, supra, the General Counsel’s complaint alleged the
respondent union failed to furnish relevant, requested information to an employer in violation
of Section 8(b)(3). The judge found that violation, as well as an unalleged violation because the 10
union failed to timely notify the employer that information responsive to the employer’s
request did not exist. In affirming the latter conclusion, the Board found the two allegations
were closely related, because they involved the same evidentiary facts: the employer’s requests
for information and the union’s response to those requests. The Board likewise stated the
allegations presented the same ultimate issue: whether the union’s response satisfied its 15
obligation to bargain collectively and in good faith with the employer. Second, the Board found
the issues were fully litigated. The union did not object to testimony from or question a witness
concerning when the union ultimately revealed certain documents did not exist. The union
later elicited testimony to explain the delay. In these circumstances, the Board held the
Respondent’s due process rights were not violated by finding the unalleged violation.10 See 20
also Graymont PA., Inc., supra, slip op. at 7 (finding unalleged violation for employer’s failure to
inform union no information responsive to its request existed, where complaint alleged the
employer failed to timely furnish the union with relevant requested information).
In this case, I conclude it is proper to consider the unalleged claim that the Respondent 25
violated Section 8(a)(5) by failing to timely disclose to the Union that certain responsive
information did not exist. The General Counsel’s complaint contains an allegation that the
Respondent failed and refused to furnish information requested by the Union. As noted above,
the Board already has held that a failure-to-timely-disclose information allegation is closely
related to a refusal-to-provide-information allegation. As to whether the issue was fully 30
litigated, the Respondent elicited testimony from Jamison at the hearing that no outside crews
of the company came to Naples to perform restoration work, because they were working
elsewhere in the State of Florida at the time. (Tr. 87–88.) When asked by counsel for the
General Counsel whether the Respondent had provided the timesheets for those crews, Jamison
again responded that they had not performed restoration work out of the four staging sites. (Tr. 35
32.) In addition, Jamison testified that he did not provide timesheets for substation employees,
because those employees likewise were not working out of the Respondent’s four staging sites.
(Tr. 90.) The Respondent was not precluded from presenting any further evidence it wished to

10 Although General Drivers Local 89 involved an 8(b)(3) violation, the holding in the case applies
with equal force to the 8(a)(5) refusal-to-provide-information allegation in this case. The only difference
between the two is whether the charged party is a union or an employer.
JD–86–18
-13-
on these issues. As a result, it cannot be said the Respondent would have altered its conduct at
the hearing, if the General Counsel had included this specific allegation in the complaint.11
Turning to the merits, I find that the record evidence establishes the violation. As part of
its request, the Union sought a list of Respondent crews who traveled from other areas to work 5
on the Irma restoration. In his November 27 response, Jamison supplied the Irma Naples file
with a list of contractors, but did not advise King that the list did not contain outside crews
because none worked on the restoration. Thereafter, Jamison never informed King of that fact,
until the hearing. The Union also requested timesheets for outside crews and substation
employees. In his November 27 response, Jamison stated that the Respondent still was 10
gathering timesheets for substation employees. He said nothing regarding timesheets for
employees of outside crews. Thereafter, Jamison did not provide either item. Until the hearing,
he also did not inform King that, because those employees did not work on the restoration
efforts, the information did not exist. The duty to furnish information includes the duty to
“timely disclose that requested information does not exist.” Endo Painting Service, Inc., 360 15
NLRB 485, 486 (2014). The Respondent violated Section 8(a)(5) by waiting 13 months before
disclosing to the Union that no outside crew or substation employees worked on the Irma
restoration and thus no responsive information existed for those employees. Dover Hospitality
Services, 359 NLRB 1103, 1107–1108 (2013) (respondent unlawfully waited 13 months to provide
the union with certain requested information and to tell the union that the remainder of the 20
requested information did not exist), affd. and incorporated by reference 361 NLRB 906 (2014),
enfd. 636 Fed.Appx. 826 (2d Cir. 2016); Tennessee Steel Processors, 287 NLRB 1132, 1132–1133
(1988) (respondent unlawfully waited 6 months to inform the union that certain requested
information did not exist).12
25

11 Of course, the allegation was not included in the complaint, because neither the General
Counsel nor the Union was aware prior to the hearing that the Respondent was claiming some of the
requested information did not exist.
12 In his brief, the General Counsel also argues the Respondent violated Sec. 8(a)(5) by failing to
provide the Union with information concerning e-ticket and priority one work. This allegation likewise is
not contained in the complaint. I decline to find this claimed violation, because the issue was not fully
litigated by the parties. At the hearing, the Respondent was resolute in objecting to the presentation of
any evidence regarding the other items in King’s October 9 information request. In particular, the
Respondent objected to the introduction of the “Ticket List for Irma” file, because King’s request for a
ticket list was not in the complaint. In response, counsel for the General Counsel confirmed that only the
two listed items in the complaint were being litigated. He then elicited testimony from King, in which
King stated the file was relevant to showing the Respondent’s response to the two requests listed in the
complaint was insufficient. (Tr. 69–70.) As a result, I allowed the file into evidence for that purpose.
From that discussion, the Respondent could not have concluded that the General Counsel then would
claim an additional violation related to King’s request for a ticket list. Indeed, the Respondent makes no
mention of the ticket list in its brief. I conclude that, had it known the General Counsel would seek to
add this specific violation to the complaint allegations, the Respondent would have altered its conduct at
the hearing.
JD–86–18
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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. International Brotherhood of Electrical Workers (IBEW) System Council U–4 and 5
IBEW Local 641 are labor organizations within the meaning of Section 2(5) of the Act.
3. The Union is, and at all material times has been, the exclusive collective-bargaining
representative of the following appropriate unit:
10
All employees of the Company working in the classifications
of employees in the Company's nuclear division, power
systems division—distribution, power systems division—
delivery, and power generation division that are listed in
Exhibit "A" of the collective-bargaining agreement between 15
Respondent and the Union which is effective by its terms from
October 31, 2017 to October 31, 2020.
4. By refusing to provide relevant information in response to the Union’s October 9,
2017 request for information, the Respondent violated Section 8(a)(5) and (1) of the 20
Act.
5. By failing to disclose in a timely manner that it had no information responsive to
certain requests in the Union’s October 9, 2017 request for information, the
Respondent violated Section 8(a)(5) and (1) of the Act. 25
6. The above unfair labor practices affect commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
REMEDY30
Having found that the Respondent engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent is hereby ordered to bargain with the Union
as the exclusive collective-bargaining representative of the bargaining unit described above, by 35
furnishing to the Union in a timely manner the information it requested on October 9, 2017, to
the extent the Respondent has not already done so: (1) Utility and contractor count by service
center boundaries to include BSW, FMO, GDO, and GGO from September 15 to October 8, 2017;
and (2) timesheets for all contractors included in request 1 and timesheets for customer service,
transmission, and substation employees, for the period from September 15 to October 8, 2017. 40
JD–86–18
-15-
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
ORDER
5
The Respondent, Florida Power & Light Company, Juno Beach, Florida, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
10
(a) Refusing to bargain collectively with the Union by failing, upon request, to
provide information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining representative of the
Respondent’s unit employees.
15
(b) Failing to disclose in a timely manner that it has no information responsive to
any Union request for information that is relevant and necessary to the
Union’s performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
20
(c) In any like or related manner interfering with, restraining, 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.25
(a) Furnish to the Union in a timely manner the information requested by the
Union on October 9, 2017, insofar as such information has not already been
furnished.
30
(b) Within 14 days after service by the Region, post at its facility in Juno Beach,
Florida, as well as at its Bonita Springs Workforce, Fort Myers Operations,
Gladiolus Operations, and Golden Gate Operations service centers, copies of
the attached notice marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 12, after being signed by the 35
Respondent's authorized representative, shall be posted by the Respondent

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
14 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–86–18
-16-
and maintained for 60 days in conspicuous places including all places were
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 customarily communicates with its employees by such 5
means. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, 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 10
to all current employees and former employees employed by the Respondent
at any time since October 9, 2017.
(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 15
Regional Director attesting to the steps the Respondent has taken to comply.
Dated, Washington, D.C., December 27, 2018

Charles J. Muhl
Administrative Law Judge
ce-4,40
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
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to bargain collectively with International Brotherhood of
Electrical Workers, AFL–CIO, System Council U-4 and Local 641 (the Union), by refusing to
furnish the Union with requested information that is relevant and necessary to its role as the
exclusive collective-bargaining representative of employees in the following bargaining unit:
All employees of the Company working in the classifications of
employees in the Company's nuclear division, power systems
division—distribution, power systems division—delivery, and
power generation division that are listed in Exhibit "A" of the
collective-bargaining agreement between Respondent and the
Union which is effective by its terms from October 31, 2017 to
October 31, 2020.
WE WILL NOT fail to disclose in a timely manner that we have no information responsive to
any Union request for information that is relevant and necessary to the Union’s performance of
its functions as the collective-bargaining representative of our unit employees described above.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union in a timely manner the information it requested on October 9,
2017, to the extent we have not already provided the information.
FLORIDA POWER & LIGHT COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
South Trust Plaza, 201 East Kennedy Boulevard, Ste 530, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/12-CA-211064 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (813) 228-2345.