Meeker Cooperative Light Power Assn.

National Labor Relations Board - Board Decisions

Apr 27, 2004

341 N.L.R.B. 616 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
Meeker Cooperative Light and Power Association
and International Brotherhood of Electrical
Workers, IBEW Local 160. Case 18–CA–16924
April 27, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On December 17, 2003, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
Charging Party filed an answering brief, and the Respon-
dent filed a reply 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, findings, and conclusions and
to adopt the recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Meeker
Cooperative Light and Power Association, Litchfield,
Minnesota, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Refusing to furnish the Union with information
requested and necessary for the performance of its duties
as exclusive collective-bargaining representative.”
2. Substitute the following for paragraph 2(a).
“(a) Furnish International Brotherhood of Electrical
Workers, IBEW Local 160, with the information it re-
quested in its March 24, 2003 request, as modified on
April 14, 2003, regarding whether certain bargaining unit
work was contracted out for the period beginning Sep-
tember 16, 2000.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

1 We shall modify the judge’s recommended Order to make it clear
that the Respondent is only required to provide the Union with subcon-
tracting information for the period beginning September 16, 2000, as
alleged in the complaint. We shall also modify the judge’s notice to
add a provision for affirmative relief consistent with the judge’s deci-
sion.
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to provide the Union with re-
quested information relevant to the Union's performance
of its collective-bargaining duties as your exclusive col-
lective-bargaining representative.
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 give the Union the information it requested in
its March 24, 2003 request, as modified on April 14,
2003, regarding whether certain bargaining unit work
was contracted out for the period beginning September
16, 2000.

MEEKER COOPERATIVE LIGHT AND POWER
ASSOCIATION
Pamela W. Scott, Esq., for the General Counsel.
George E. Warner, Senior Consultant, of Plymouth, Minnesota,
for the Respondent.
Richard A. Williams Jr., Esq., of Roseville, Minnesota, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. The par-
ties agreed to waive a trial and stipulate the case directly to an
administrative law judge for issuance of a decision.1 A com-
plaint and notice of hearing (the complaint) issued on Septem-
ber 15, 20032 by the Acting Regional Director for Region 18 of
the National Labor Relations Board (the Board). The original
charge was filed by International Brotherhood of Electrical
Workers, IBEW Local 160 (the Charging Party or the Union)
alleging that Meeker Cooperative Light and Power Association
(the Respondent or the Employer) has engaged in certain viola-
tions of Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act). The Respondent filed a timely answer to the
complaint denying that it had committed any violations of the
Act.
1 By Order dated October 9, 2003, the hearing was postponed indefi-
nitely.
2 All dates are in 2003 unless otherwise indicated.
341 NLRB No. 89
MEEKER COOPERATIVE LIGHT & POWER ASSN. 617
Issues
The complaint alleges that Respondent violated Section
8(a)(1) and (5) of the Act by its refusal to furnish the Union
with necessary and relevant information concerning contracting
out bargaining unit work.
On the entire stipulated record, and after considering the
briefs filed by the General Counsel, the Charging Party, and the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a cooperative association engaged in the
operation of an electrical cooperative providing retail electrical
sales to its members from its facility in Litchfield, Minnesota,
where it annually derived gross revenues in excess of $1 mil-
lion and purchased and received products, goods, and services
valued in excess of $50,000 from points outside the State of
Minnesota. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent is engaged in the retail sale of electricity to
its members out of its facility in Litchfield, Minnesota. For
approximately 20 years, the Union has been the exclusive col-
lective-bargaining representative of an appropriate unit of Re-
spondent’s employees including all full-time and regular part-
time journeyman and apprentice lineman, groundmen, and
foreman. The parties are subject to a current collective-
bargaining agreement effective from September 16, 2000, to
September 15, 2005 (Jt. Exh. 1).
In January 2003, the Union made an inquiry to Respondent
about some subcontracting work that it had been doing during
that month.
On February 7, the Union sent two letters to Respondent
concerning whether bargaining unit work had been contracted
out (Jt. Exhs. 2, 3). These letters also constituted grievances
alleging the loss of bargaining unit work. On February 20,
Respondent denied the grievances (Jt. Exh. 4).
On March 24, the Union sent a letter to Respondent request-
ing information about the subcontracting (Jt. Exh. 5). The re-
quest covered the period 1995 to the present. Respondent re-
plied by letter dated March 25, denying the request for the in-
formation (Jt. Exh. 6). On April 14, union counsel wrote the
Respondent and narrowed the information request to corre-
spond to the term of the parties’ collective-bargaining agree-
ment. After the board of directors considered the matter, Re-
spondent in June 2003 notified the Union that the information
requested in March that was later modified in April 2003 would
not be provided.
B. The Position of the Parties
The parties agree that there has been a past practice of sub-
contracting, howeve,r they disagree to its extent. The Respon-
dent argues that it has always had the right to subcontract all
types of work without limitation. The Union counters that
while the Respondent has the right to subcontract certain types
of work, it is not permitted to subcontract work that normally is
performed by bargaining unit employees. Indeed, the Union
asserts that on two occasions, July 2002 and January 29, the
Respondent has subcontracted work to outside contractors that
was within the jurisdiction of the parties’ agreement and should
have been performed by bargaining unit employees.
The Union argues that it cannot resolve the question of
whether bargaining unit work has been subcontracted in viola-
tion of the parties’ agreement and/or past practice, unless it is
provided with the requested information. Thus, the Union
needs the information to decide how or whether to proceed with
the subject grievances or any other grievance.
The Respondent asserts that the grievance procedure requires
that the Union identify a specific provision of the parties’
agreement to have been violated, and that the subject griev-
ances do not meet this requirement. Further, the Respondent
denies that the parties’ agreement has been violated because the
work subcontracted by it on the two occasions, if it occurred,
was not a violation of the parties’ agreement or past practice.
C. Analysis
In Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203
(1964), the Supreme Court upheld the Board’s ruling that an
economically founded decision to subcontract maintenance
work was a mandatory subject of bargaining. Likewise, the
Board has held that a union is entitled to requested information
“if there is a probability that such data is relevant and will be of
use to the union in fulfilling its statutory duties as the employ-
ees’ exclusive bargaining representative.” Southern Nevada
Builders Assn., 274 NLRB 350, 351 (1985). This liberal dis-
covery-type standard nevertheless contains an important limita-
tion: the data must be of use in fulfilling statutory duties. The
“duty to furnish . . . information stems from the underlying
statutory duty imposed on employers and unions to bargain in
good faith with respect to mandatory subjects of bargaining.”
Cowles Communications, Inc., 172 NLRB 1909 (1968). In
Daimler Chrysler Corp., 331 NLRB 1324 (2000), enfd. 288
F.3d 434 (D.C. Cir. 2002), the Board held that the employer’s
duty to bargain includes the obligation to provide information
that a union needs for the processing of grievances and the
investigation of potential grievances.
The arguments advanced by the Respondent in the subject
case are misplaced. In this regard, the Respondent does not
address the necessity or relevancy of the requested information.
Rather, the Respondent’s reasoning for not providing the in-
formation is that the underlying grievances do not have merit.3
While ultimately that may be the case once the grievances are
heard by an arbitrator under the parties’ grievance and arbitra-

3 While the Respondent argues that since the parties’ agreement does
not contain an article relating to contracting out work, it has the abso-
lute right to contract out work as long as the action is performed in
good faith, it ignores art. III of the agreement that covers working rules,
hours, wages, and other definite conditions of employment for all em-
ployees covered by the agreement. Thus, the grievances concern a
controversy arising over the interpretation of the parties’ agreement and
involve a mandatory subject of bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
tion procedure, the issue in this case is whether the Union needs
the information so it intelligently can determine whether it
should proceed to arbitration or file additional grievances. In
these circumstances, I find that the information is relevant and
necessary to the Union’s interest in policing the Respondent’s
compliance with the terms of the parties’ collective-bargaining
agreement. Crowley Marine Services, 329 NLRB 1054, 1060
(1999), enfd. 234 F.3d 1295 (D.C. Cir. 2000). Accordingly, the
Respondent has an obligation to supply the requested informa-
tion and its refusal to do so violates Section 8(a)(1) and (5) of
the Act. Reiss Viking, 312 NLRB 622 (1993).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all relevant times, the Union has been the exclusive
collective-bargaining representative of the following employees
of Respondent in an appropriate bargaining unit within the
meaning of Section 9(b) of the Act:

All full-time and regular part-time journeyman and apprentice
lineman, groundmen, and foremen employed by Respondent
at or out of its Litchfield, Minnesota facilities: excluding of-
fice clericals, and guards and supervisors as defined in the
Act, as amended.

4. By failing and refusing to furnish the Union with the in-
formation requested in its March 24, as subsequently modified
on April 14, 2003 information requests, the Respondent has
failed to fulfill its statutory obligations and has thereby engaged
in, and is engaging in, unfair labor practices within the meaning
of Section 8(a)(1) and (5) 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 and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4

4 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 pur-
poses.
ORDER
The Respondent, Meeker Cooperative Light and Power As-
sociation, Litchfield, Minnesota, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with International Broth-
erhood of Electrical Workers, IBEW Local 160, by refusing to
furnish them with the information requested in its March 24
and April 14, 2003 information requests regarding whether
certain bargaining unit work was contracted out.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish International Brotherhood of Electrical Workers,
IBEW Local 160, with the information it requested in its March
24 and April 14, 2003 information requests regarding whether
certain bargaining unit work was contracted out.
(b) Within 14 days after service by the Region, post at its fa-
cility in Litchfield, Minnesota, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. 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 facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 24, 2003.
(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 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.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”