Southern California Gas Co.

National Labor Relations Board - Board Decisions

Feb 3, 2005

344 N.L.R.B. 231 (N.L.R.B. 2005)

SOUTHERN CALIFORNIA GAS CO.
344 NLRB No. 8
231
Southern California Gas Company and Utility Work-
ers Union of America, Local 483. Case 31–CA–
26454
February 3, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 26, 2004, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Southern California Gas Company, Los
Angeles, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith by declining to
provide Utility Workers Union of America, Local 483
with information necessary and relevant to administer the
collective-bargaining agreement applicable to the Re-
spondent’s transmission and storage employees repre-
sented by Local 483.

1 We agree with the judge’s finding that the Respondent violated
Sec. 8(a)(5) when it refused to furnish the information requested by
Utility Workers Union of America, Local 483 (the Union) on June 17,
2003, but we modify the judge’s rationale in one respect. The Union
represents a unit of the Respondent’s employees who perform hazard-
ous gas storage and transmission work. Working alongside unit em-
ployees are employees of outside contractors. Pursuant to Federal
regulation, both groups of employees must be “operator qualified.” On
June 17, 2003, the Union asked the Respondent for its most recent list
of contractors maintaining an operator-qualification plan, explaining
that the information was relevant to the Union’s administration of the
collective-bargaining agreement as it related to the safety of unit em-
ployees. In finding that the Union established a factual basis for this
request, the judge relied on (1) evidence that a substantial majority of
the Respondent’s contractors lacked an operator-qualification plan, (2)
evidence that contractor employees were unfamiliar with operator-
qualification requirements, and (3) worksite accidents that occurred in
June 2002 and July 2003. In adopting the judge’s decision, we find that
the Union demonstrated a factual basis for its information request even
without relying on the June 2002 and July 2003 accidents.
2 We shall modify par. 2(a) of the judge’s recommended Order to
delete the phrase referencing a 14-day period in the requirement to
provide the requested information, see Farmer Bros. Co., 342 NLRB
592, 593 fn. 1 (2004), and to correct inadvertent errors. We shall also
substitute a new notice in conformity with the recommended Order as
modified.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide Local 483 with the most recent list of con-
tractors employed by the Respondent who comply with
the United States Department of Transportation’s rule
regarding operator qualification and certification, includ-
ing the date the Respondent prepared that list, as Local
483 requested on June 17, 2003.
(b) Within 14 days after service by the Region, post at
its facilities copies of the attached notice marked “Ap-
pendix.”3 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered 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 involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since July 22, 2003.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

3 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD232
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain in good faith by declin-
ing to provide Utility Workers Union of America, Local
483, with information necessary and relevant to adminis-
ter the collective-bargaining agreement applicable to our
transmission and storage employees represented by Local
483.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL provide Local 483 with the most recent list
of contractors we employ who comply with the United
States Department of Transportation’s rule regarding
operator qualification and certification, including the date
we prepared that list, as requested by the Union on June
17, 2003.
SOUTHERN CALIFORNIA GAS COMPANY
Brian D. Gee, Atty., for the General Counsel.
Larry I. Stein, Atty., of Los Angeles, California, for the Re-
spondent.
Dennis Zukowski, Union President, of Santa Barbara, Califor-
nia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. The issue
here concerns an employer’s refusal to furnish information
about matters outside the bargaining unit to the labor organiza-
tion representing the unit. Based on charges Utility Workers of
America, Local 483 (the Charging Party or Local 483), filed on
September 17, 2003,1 the Regional Director for Region 31 is-
sued a formal complaint on December 16, alleging Southern
California Gas Company (the Company or Respondent) vio-
lated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act).2 It claims that Respondent failed to furnish Lo-
cal 483, the bargaining representative for its transmission and
storage employees, with relevant information requested about
the operator-qualifications of contractor employees. Respon-
dent admits that it refused to furnish the requested information
but denies the relevance and necessity of the requested informa-
tion to Local 483’s statutory function as an employee bargain-
ing representative.
I heard this case at Los Angeles, California, on June 7, 2004.
The parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-

1 All dates are in the 2003, unless otherwise indicated.
2 Sec. 8(a)(5) provides that it is an unfair labor practice for an em-
ployer “to refuse to bargain collectively with the representatives of [its]
employees.” The General Counsel makes no claim that Respondent
independently violated Sec. 8(a)(1).
nesses, and to file posthearing briefs. Having carefully re-
viewed the entire record3 mindful of the impressions gained
from the demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Respondent, I find
Respondent violated the Act, as alleged, based on the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, with offices and facili-
ties at various California locations, including Los Angeles,
generates and distributes natural gas. In the calendar year prior
to the issuance of the complaint, Respondent received gross
revenues in excess of $500,000, and purchased and received
goods at its California facilities valued in excess of $50,000
directly from locations outside that State. I find Respondent is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and that, based on its gross
revenues and direct inflow, it would effectuate the purposes of
the Act for the Board to exercise its statutory jurisdiction to
resolve this labor dispute.
Since 1970, Local 483 has served as the exclusive collective-
bargaining representative of Respondent’s transmission and
storage employees. I find it to be a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Evidence
Respondent recognized the Union as the exclusive collec-
tive-bargaining representative of its storage and transmission
employees in May 1970. This recognition has been embodied
in successive collective-bargaining agreements. The effective
dates of the current agreement run from April 1, 2002, through
December 31, 2004 (CBA). (Jt. Exh. 3: 19.) The unit consists
of approximately 250 employees working on the Company’s
gas transmission and storage operations. Except for 20 to 25
clericals, all unit employees work in the field on the pipelines
and storage facilities. These field employees work in a danger-
ous environment with a volatile product under extreme pres-
sures ranging up to 3000 pounds per square inch.4
The CBA permits the Respondent to utilize outside contrac-
tors to perform unit work under certain conditions. (Jt. Exhs. 3:
4–5.) However, CBA § 2.1(B)(1) bars the Company from com-
pletely contracting out the work of so-called “fenced-in classi-
fications.” The fenced-in classifications include virtually all of
the unit’s field workers. Still, outside contractors performed
77,257 and 55,481 hours of storage and transmission work in
2002 and 2003, respectively. (Jt. Exh. 2.) Although not en-
tirely clear, justification for this quantity of unit work per-
formed by outsiders likely rests with CBA § 2.1(B)(2) that
permits the Company to contract out overflow work or tasks
requiring specialized skills. Typically, contractor employees
work in close proximity to unit employees and, as seen in one
instance below, unit employees often have occasion to use con-
tractor-installed equipment.

3 Certain errors in the transcript are noted and corrected.
4 By contrast, natural gas normally enters a customer’s household
under pressure of about one-third pound per square inch.
SOUTHERN CALIFORNIA GAS CO. 233
Various Federal and State agencies regulate Respondent’s
operations, including the California Public Utilities Commis-
sion (California PUC) and the U.S. Department of Transporta-
tion (DOT). Effective October 26, 1999, DOT adopted an op-
erator-qualification rule. 49 CFR Part 192. This rule required
the Company (the Operator in the regulation) to develop and
maintain a written operator-qualification plan by April 27,
2001, that detailed the means by which employees performing
so-called “covered tasks” would be evaluated and certified as
qualified. After that, the Company had until October 28, 2002,
to evaluate and qualify all employees performing covered tasks,
and to establish a supporting recordkeeping system. (GC Exh.
4: 2.) The Company’s evaluation process determined an indi-
vidual’s ability to perform a covered task either through a writ-
ten or oral examination, or through a review of the employee’s
work performance history. (GC Exh. 2: 1–2.)
The operator-qualification rule applied to the Company’s
contractors as well. To aid in compliance with the rule, the
Company required contractors with 10 or more employees to
adopt an operator-qualification plan that essentially mirrored
the Company’s plan. The Company offered to test, qualify, and
maintain required records on a fee basis for contractors who
employed fewer than 10 employees. Under the rule, company
and contractor employees could only perform those covered
tasks for which they were certified as “operator qualified”
unless directly supervised in person by a task-qualified individ-
ual. (GC Exh. 2: 4.) The Company’s FAQ document stated
that the rule was designed to “reduce the risk of accidents on
pipeline facilities attributable to human error . . . [and] to pro-
vide an additional level of safety.” (GC Exh. 4: 1.)
The CBA also addresses safety. CBA § 2.5(C) provides:
“The Union and the Company agree to cooperate in maintain-
ing safe working conditions. No employee shall be required to
work under conditions or operate equipment which does not
meet the requirements of the lawful orders of the State of Cali-
fornia pertaining to employee safety.” (Jt. Exh. 3: 22.) Re-
spondent disagrees with Local 483’s claim that CBA § 2.5(C)
incorporates the DOT operator-qualification rule.5 Regardless,
the CBA establishes safety committees at various levels
throughout the Company’s operations that meet periodically “to
permit inspection, discussion, and review of local health and
safety conditions and practices.” (Jt. Exh. 3: 22–26.) Safety
matters that cannot be resolved “to the satisfaction of Union
representatives” may be referred to the grievance-arbitration
procedures. (Jt. Exh. 3: 26.)

5 Local 483 bases its argument that CBA § 2.5(C) incorporates the
DOT’s operator-qualification rule on California PUC General Order
No. 112-E. That general order, adopted in 1995 and effective that same
year, governs the design, construction, testing, maintenance and opera-
tion of gas utility gathering, transmission and distribution piping sys-
tems. It specifically incorporates the DOT’s Federal Pipeline Safety
Regulations at 49 CFR Parts 190–193 and 199, including future revi-
sions. GC Exhs. 5: 2, § 104. The Company argues that, as the parties
negotiated CBA § 2.5(C) before General Order No. 112-E and have left
that contractual provision unchanged since, they did not contemplate
the inclusion of the DOT operator-qualification rule within the parame-
ters of CBA § 2.5(C).
A wide-ranging discussion about the operator-qualification
rule, particularly as it applied to the Company’s contractors,
occurred at the Union’s executive board meeting in March
2003. Two central concerns emerged from this discussion.
First, the board members questioned whether a “level playing
field” existed between the unit employees and contractor em-
ployees. Some members reported that unit employees com-
plained about being subjected to the operator-qualification test-
ing and certification related to jobs they performed for years
while some contractor employees seemed unaware of any op-
erator-qualification requirement. And second, Dennis Zu-
kowski, Local 483’s president, had received reports about con-
tractor accidents and incidents that gave rise to safety concerns
and a general belief that the contractors should also be operator
qualified. As he explained:
[W]e work in a dangerous environment and, for example, the
facility that I work at is probably about as big as a football
field. Now I could be on one end of the facility and a contrac-
tor on the other end of the facility. If there is an explosion
caused by his negligence or his not being qualified to do the
job, it’s going to affect me. There’s a chance that I’m going
to be hit by shrapnel or caught in a firestorm or something like
that. So . . . it is a concern. [On occasion] we work in close
proximity. . . . [O]ftentimes we're working shoulder to shoul-
der . . . on various projects. . . . [W]e accept the fact that we
have to be qualified and, actually, we welcome it, because, the
more qualified we are, the better, but we just expect that the
people who are working with us to be as qualified. [Tr. 20:
14–30: 1.]
The General Counsel adduced evidence about two accidents
that purportedly gave rise to employee concern about contractor
competence. The first involved station operations specialists
Michael Bagley and Dan Perez in June 2002. Shortly before
their accident, a contractor crew installed a valve and discharge
pipe on a field line to facilitate depressurization. Later that day
when Bagley and Perez attempted to depressurize that gas line,
the recently installed discharge pipe blew off, catapulting both
workers several feet through the air. Although Bagley suffered
no severe injury, the discharge pipe struck Perez’ arm and in-
flicted enough injury to require light duty assignments for the
next several months.
The second incident involved an injury to Bagley in late July
2003 as he departed from a remote well where he had gone to
verify that a valve was properly sealed. At the time, certain
contractor employees were working at the well and their vehi-
cles were parked across a dirt access road. While walking
around the contractor vehicles as he left the site, Bagley slipped
on a loose rock. When he grabbed for a truck to catch himself,
he snagged and nearly severed his finger. He also strained his
shoulder ligaments. As a result, he could not work for four
months.
The Company appoints a committee to conduct an investiga-
tion of each on-the-job accident. This process, called a “root-
cause analysis,” seeks to identify various factors that contrib-
uted to an accident and to study possible preventive measures.
Perez and Bagley attended the root-cause analysis involving the
accidents detailed above. Perez concluded from what he over-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD234
heard that the June 2002 accident resulted from the contractor’s
installation of an old discharge pipe with heavily rusted threads.
Bagley felt his July 2003 accident resulted, in part, from the
contractor’s failure to leave a clear exit path so that he had been
forced to depart the well site along a sloped route with a con-
siderable amount of loose rock and dirt. Zukowski later learned
from the site manager involved with the July 2003 accident that
the contractor involved was not operator qualified.
The Union’s executive board discussion prompted Zukowski
to commence an investigation of the Company’s policy con-
cerning contractor compliance with the operator-qualification
rule. By late April, Zukowski acquired a document published
on the Respondent’s website listing company contractors with
an approved operator-qualification plan and those without. The
vast majority had no approved plan. (GC Exh. 6.) A short time
later, Zukowski asked Wager, Respondent’s safety director for
transmission and storage operations, whether the list was cur-
rent. Wager confirmed that the list was not at all current.
Between May 4 and August 18, Zukowski, and labor rela-
tions managers Michael Shurley and Sue Bosworth exchanged
a series of letters related to the subject of contractor compliance
with the operator-qualification rule.6 In his May 4 letter to
Shurley, Zukowski claimed to be “investigating a grievance”
about the Company’s failure to adhere to “published require-
ments” requiring contractor employees to possess a card certi-
fying the “covered tasks” they could perform. He asserted,
“contractors at Goleta do not have such a card and claim no
knowledge of the requirement to possess such a card.” Appar-
ently for that reason, Zukowski asked Shurley whether the
Company’s contractors had to carry cards listing their task
qualifications, and if not, “what exactly is the Company pol-
icy.” In addition, Zukowski’s letter asked for the Company’s
position regarding unit employees insisting that contractors
show their qualification cards since supervisors “are not always
present.” The letter concluded with four boilerplate paragraphs
dealing with a time limit for responding, relevancy disputes, the
effect of failing to respond, and a notice about the commence-
ment of the time for filing a grievance.
Shurley sent Zukowski a written reply dated May 19. In it,
Shurley assured Zukowski that management intended to com-
ply with all “applicable laws and requirements.”7 Apart from
that, Shurley asserted that he could not see the relevance of
Zukowski’s May 4 requests “as management is solely responsi-
ble for contractor personnel.” Shurley requested that Local 483
report any instances of noncompliance with the operator-
qualification requirements to the “appropriate management
person right away” and that unit members should contact their
supervisor if they had an issue with contractor personnel.
Zukowski responded to Shurley by a letter dated May 27. In
it, Zukowski asserted that he was attempting to administer the
agreement’s section 2.5(C) safety provision. He told Shurley,
in effect, that Local 483 believed that an unsafe condition ex-

6 Bosworth replaced Shurley as the Company’s labor relations man-
ager around July 1.
7 Shurley sent an interim response to Zukowski’s May 4 letter and
other information requests that merely stated the information would be
furnished when it became available.
isted if contractors could violate company safety procedures.
He also advised Shurley that unit employees would “be happy
to contact their individual supervisor if they believe Company
policy is being violated” but they first needed to know what the
policy was concerning contractor compliance with the operator-
qualification requirements. He concluded by telling Shurley
that unit employees had an issue with the “application and in-
terpretation” of the operator-qualification requirements, and
requested that Shurley “clarify this policy” so he could “intelli-
gently represent the Union’s interests as they relate to this pol-
icy.”
Shurley replied in a letter dated June 6 that enclosed the
Company’s three-page “Operator-qualification Program—
Implementation Policy for Contractors.” The policy statement
provides unequivocally that all “contractors performing cov-
ered tasks are covered under [the Company’s operator-
qualification] plan” (Jt. Exhs. 1: 7 at 1.1), and that the Com-
pany “required [them] to implement an [operator-qualification]
Program (employee evaluation and record keeping).” (Jt. Exhs.
1: 7 at 2.1.) Shurley again asserted, “management is responsi-
ble for compliance” and pointed to specific provisions in the
policy providing for company oversight. In essence, Shurley
told Zukowski that, as management had the responsibility for
administering the operator-qualification policy for contractors,
employees should not request operator-qualification cards from
contractor employees. Instead, he said, unit employees should
direct their “questions and concerns” about contractor safety to
a jobsite manager or supervisor.
In a letter to Shurley dated June 17, Zukowski asked for new
and different information. This time he sought “the most recent
list of qualified contractors that the . . . Company [employs]”
and the date the list provided was formulated. He explained, by
way of justifying his request, that managers had told him the
list he obtained from the Company’s website was outdated. He
also explained that he wanted the list to investigate multiple
safety inquiries he received from unit employees about having
to work with, or in close proximity to, contractor employees
who may or may not be operator qualified. This letter con-
cludes with the same four-paragraph boilerplate language con-
tained in Zukowski’s initial request of May 4.
In a letter dated June 30, Shurley asked Zukowski to explain
the relevance of his June 17 request. Zukowski submitted a
written response to Bosworth on July 14. In it, Zukowski, en-
closed his June 17 request to Shurley and justified the relevance
of his request on the following grounds: (1) to aid in the inves-
tigation of a “system wide safety grievance” over the employ-
ment of contractors who may not be operator qualified; (2) to
aid attempts to administer the “union/company agreement”
concerning the legally required operator-qualification program
for contractors “as discussed across the bargaining table”; and
(3) to confirm his belief that the Company’s withholding of
information violated the 2.5(C) requirement that the parties
“cooperate in maintaining safe working conditions.”
Bosworth responded to Zukowski’s letter on July 22. She
denied any awareness of a “union/company agreement” relating
to operator-qualifications of contractor employees and asserted
“[m]anagement is responsible for administering . . . and . . .
ensuring compliance with the [contractor operator-
SOUTHERN CALIFORNIA GAS CO. 235
qualification] policy.” She stated that she could not see the
relevance of the request since the Company’s operator-
qualification policy for contractors does not cover represented
employees, was not a subject of bargaining, and was within the
Company’s “sole and exclusive right to implement.” She in-
vited Zukowski to refer to prior correspondence on the subject
“if you have a safety concern or question the qualifications of
specific contract personnel” and asserted that the Company’s
implementation of the contractor policy evidenced its intent to
comply with DOT regulations and section 2.5(C) of the
Agreement.8
Zukowski replied on August 8. He claimed that the agree-
ment requiring all represented and contractor personnel to be
operator qualified or subject to the direct supervision of a quali-
fied person had been “verbalized across the bargaining table.”
He reiterated that he was “investigating system wide com-
plaints . . . about Contractors who may not be Operator Quali-
fied and whose actions on the job can affect the safety of Local
483’s members.” He again asserted the Company’s position
that it had the sole and exclusive right to implement policies
such as the operator-qualification program violated the contrac-
tual requirement that the “Union and Company agree to coop-
erate in maintaining safe working conditions.”
Zukowski further argued that job safety “is always a manda-
tory subject of bargaining” and that the Agreement gave the
Union the right to grieve “any dispute.” For these reasons, he
asserted that “we have the right to the requested data because it
will help us to intelligently represent the bargaining unit in this
possible grievance and/or bargaining” where he was attempting
to “resolve this issue” before seeking NLRB intervention. Zu-
kowski then added, “[T]his letter serves notice that we have
satisfied the ‘Peace Principles’ of our Agreement and are free
to make formal complaints to the CPUC and DOT about these
issues.”
In her reply dated August 18, Bosworth stated: “Local 483
does not represent contractors, therefore, the information you
have been requesting will not be provided. Safety is a manda-
tory subject of bargaining for our employees and your mem-
bers, not for contractors.” She concluded by again telling Zu-
kowski that unit employees should contact their supervisor if
they have a safety concern about actions by contractors on the
job. This letter effectively ended Local 483’s pursuit of infor-
mation from the Company; instead, it filed an unfair labor prac-
tice charge a month later.
B. Further Findings and Conclusions
In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the Su-
preme Court held that an employer has a general obligation to
provide its employees’ bargaining representative with the in-
formation it needs to properly perform its statutory duties.
Later, in NLRB v. Acme Industrial Co., 385 U.S. 432 (1967),
the Supreme Court held that an employer’s duty to bargain
collectively under the Act includes an obligation to furnish
information that allows a union to decide whether to process a

8 Apparently before receiving or seeing Bosworth’s July 22 letter,
Zukowski dashed off a brief letter dated July 28 requesting that she
furnish the information requested in his June 17 letter within 5 days.
grievance. Hence, a labor organization’s right to information
exists not only for the purpose of negotiating a collective-
bargaining agreement, but also for the proper administration of
an existing contract, including the bargaining required to re-
solve employee grievances. Hobelmann Port Services, 317
NLRB 279 (1995); Westinghouse Electric Corp., 239 NLRB
106, 107 (1978).
Ordinarily, a labor organization is “entitled to . . . informa-
tion . . . to judge for [itself] whether to press [its] claim in the
contractual grievance procedure or before the Board or Courts.”
Maben Energy Corp., 295 NLRB 149 (1989). If the bargaining
representative seeks information about the wages, hours, and
other terms and conditions of employment for unit employees,
the law deems that information presumptively relevant. Jano
Graphics, Inc., 339 NLRB 251, 257, 259–260 (2003). How-
ever, no presumption of relevance attaches to information re-
quested that relates to matters outside the represented unit.
Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). A
bargaining agent seeking information pertaining to matters
outside the unit bears the burden of establishing the specific
relevance of the requested information. NLRB v. George Koch
Sons, Inc., 950 F.2d 1324, 1331 (7th Cir. 1991). This relevance
burden exists “whether or not [the] employer requested an ex-
planation of the relevance of the request.” Schrock Cabinet
Co., 339 NLRB 182 fn. 6 (2003). A party requesting informa-
tion about matters outside the bargaining unit satisfies its bur-
den by showing “there is a logical foundation and a factual
basis for its information request.” Postal Service, 310 NLRB
391 (1993). In these situations, the Board does not pass on
merits of a potential grievance. W-L Molding Co., 272 NLRB
1239, 1240 (1984). As explained in Shoppers Food Ware-
house, the Board applies a broad, discovery-type standard in
determining the relevance of requested information even where
a union must specifically demonstrate relevance. 315 NLRB
259.
Here, Local 483 made two distinct information requests in
the correspondence exchanged with management between May
and August. In the May 4 letter, Local 483 sought information
as to whether contractor employees had to carry cards certify-
ing that they were qualified to perform covered tasks and, if
not, what was the Company’s policy regarding this subject.
The second request, contained in one of Zukowski’s June 17
letters, sought an updated list of contractors who maintained an
operator-qualification plan as required under existing company
policy as well as the preparation date of the list.
The Company essentially complied with the May 4 request
when, on June 6, Shurley sent Zukowski the Company’s opera-
tor-qualification policy applicable to its contractors and reiter-
ated that unit employees should address their concerns about
contractor qualifications to their supervisors rather than interro-
gate contractor employees directly. But the Company stead-
fastly declined to furnish an updated list of contractors with an
operator-qualification plan even though it admittedly maintains
such a list.
As the General Counsel’s brief correctly notes, the question
presented is whether Local 483’s June 17 information request
was necessary and relevant to the performance of its duties as
the employees’ collective-bargaining representative. The Gen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD236
eral Counsel contends that Local 483 needed the information to
decide whether it should file a grievance alleging that unquali-
fied contractors posed a safety threat to unit employees. In the
General Counsel’s view, “[t]he health and safety of unit em-
ployees is impacted by the qualifications—or lack thereof—of
contractors, since the unit employees work alongside contrac-
tors and on equipment serviced by contractors.” The argument
formulated in the General Counsel’s brief appears to assume
that Local 483’s June 17 information request was not presump-
tively relevant. Thus, the brief asserts that the June 17 request
“had a logical foundation and a factual basis because the Un-
ion needed the information to decide whether it should file a
grievance alleging that unqualified contractors posed a safety
threat to unit employees.” (GC Br. at 9.) (Emphasis added.)
Respondent foresees many serious disputes about contractor
compliance with the operator-qualification rule that could cause
disruptions to its entire transmission or storage operations.
From Respondent’s viewpoint, Local 483’s information request
discloses an intent to use CBA § 2.5(C) to monitor the Com-
pany’s compliance with the operator-qualification rule, which
DOT and the California PUC already oversee. But aside from
this potential impact, Respondent argues that Local 483 failed
to meet its burden of establishing the relevance of the requested
data. Citing dicta in San Diego Newspaper Guild v. NLRB, 548
F.2d 863 (9th Cir. 1977), that the required relevance showing
“must be more than a mere concoction of some general theory,”
Respondent contends Local 483 has done little more than
“[shout] safety without a showing of substance.” Respondent
points out that Local 483’s request lacks the support of any
empirical data showing the incidence of contractor accidents
exceeded those of the unit employees. In addition, Respondent
claims that DOT’s operator-qualification rule has nothing to do
with employee safety; instead, it asserts that this program fo-
cuses on the safety of the public. Respondent also contends
that the operator-qualification program cannot be construed as a
safety matter encompassed within agreement section 2.5(C)
because that provision pertains only to compliance with state
law instead of Federal law.9
Applying the applicable legal principles to the facts detailed
above, I conclude, contrary to Respondent’s claim, that Local
483 established the relevance of the information requested on
June 17. Throughout his exchange of correspondence with
Respondent’s managers, Zukowski explained that he needed
the information in order to make a determination about filing a
grievance under CBA § 2.5(C). In the June 17 letter itself,
Zukowski asserted that he needed the information to investigate
multiple safety inquiries he received from unit employees about
having to work with, or in close proximity to, contractor em-
ployees who may or may not be operator qualified. In his July
14 and August 8 letters to Bosworth, Zukowski stated specifi-
cally that he needed the requested information to investigate a

9 Respondent makes no claim that the June 17 request lies outside
the scope of the substantive complaint allegation that “[s]ince about
May 19, 2003, [it] has failed and refused to furnish the Union with the
information requested by it.” Even if such a claim had been made, I
would find that the issue concerning the June 17 request has been fully
litigated.
potential “system wide safety grievance” over the use of con-
tractors without an operator-qualification plan.
Ample objective evidence existed for Zukowski and Local
483 to consider filing a safety grievance over the contractor
qualification issue. The Bagley and Perez injuries provide
potential links between the quality of contractor work and the
safety of unit employees. Zukowski’s discovery of the contrac-
tor qualification list on Respondent’s website disclosed that a
substantial majority of Respondent’s contractors lacked an
operator-qualification plan despite the Company’s claim that its
policy required compliance with the DOT rule. Furthermore,
Zukowski’s own personal discussions with a limited number of
contractor employees at his work site demonstrated that they
lacked familiarity with the operator-qualification requirements.
Respondent’s charge that Local 483, in effect, disguised its
contractor information request under the rubric of safety in
order to conceal its concerns over the outsourcing of unit work
enhances rather than diminishes the relevance of this informa-
tion request. Indeed, Zukowski did admit tacitly that Local 483
was concerned about unit employees competing with contrac-
tors on an uneven playing field. Given the outsourcing latitude
available under CBA § 2.1(B)(2) and the proximity in terms of
the duties and space shared by both sets of employees, safety
and work preservation issues could easily overlap. So even
assuming for argument’s sake that Local 483’s primary concern
centered on the volume unit work performed by outside con-
tractors, arguably nothing would prevent it from utilizing the
contractual safety provisions to maintain a “level playing field”
for the employees it represented, or from attempting to limit
outsourcing to operator-qualified contractors during the next
round of negotiations. The information sought here would be
highly pertinent in either instance.
Additionally, the information sought here relates to a specific
situation, to wit, utilizing contractors not in compliance with
the operator-qualification rule in close proximity to unit em-
ployees. Respondent’s claim that this amounts only to an ab-
stract or intangible safety concern lacks merit. The contempo-
raneous Bagley and Perez incidents remove contractor safety
qualifications from the theoretical realm. Although Respondent
repeatedly asserted in its correspondence with Zukowski that it
would take care of enforcing contractor compliance with the
operator-qualification rule, he was not obliged to rely solely on
the Company’s good intentions regarding its enforcement as to
contractors. Oil Workers Local 6-418, 711 F.2d 348, 361 (D.C.
Cir. 1983). I find it axiomatic that the safety interests of the
unit employees provides ample justification for their represen-
tative to seek access to detailed information as to whether Re-
spondent requires contractor adherence to industry operator-
qualification standards particularly where, as here, Local 483
independently acquired information arguably showing the
Company’s lax enforcement of any such requirement.
Moreover, I find Respondent’s reliance on the San Diego
Newspaper Guild case misplaced, as that case is factually dis-
tinguishable. There, the union requested information from the
San Diego Union (SD Union), the employer, about individuals
shadowing certain unit employees on the ground that it was
investigating the shadows encroachment on unit work. For
years, the SD Union had employed this technique in order to
SOUTHERN CALIFORNIA GAS CO. 237
have replacements available whenever threatened with a Guild
strike. The court denied Guild’s petition to review of the
Board’s order dismissing the complaint against the SD Union
for refusing to furnish the information. It found the Guild
failed to show the relevance because it admitted knowing about
all newly hired unit employees as contractually required, failed
to show any unit work performed by the shadows, failed to
show the SD Union deviated from its normal employee training
program, failed to contradict the SD Union’s evidence that it
used the shadow technique only as a strike replacement device
and took steps to insure that it would not impact unit work, and
failed to show that it did anything other than ask for informa-
tion from the SD Union to establish that the shadows en-
croached on unit work. Accordingly, the court felt the Guild’s
request for information was grounded merely on suspicion of a
contract violation. 548 F.2d at 869. As shown above, that is
far from the case here.
Finally, I find the situation here distinguishable from the re-
cent decision in Southern California Gas Co., 342 NLRB 613
(2004), that issued after the parties filed their briefs in this mat-
ter. In that case, the panel majority concluded that Respon-
dent’s refusal to comply with Local 483’s information request
was justified as it “was in furtherance of its pursuit of a safety
complaint before a third party, the [California] PUC.” 342
NLRB 613, 616. Here, Local 483 has no pending matter before
any regulatory agency related to its June 17 information request
and has repeatedly asserted that it wants the information for
purposes of administering the CBA.
For these reasons, I conclude that Respondent violated Sec-
tion 8(a)(1) and (5) by refusing to provide Local 483 with the
information Zukowski requested on June 17. Oil Workers Lo-
cal 6-418, supra.
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. Local 483 is a labor organization within the meaning of
Section 2(5) of the Act.
3. The information requested by the Local 483 on June 17,
2003, concerning operator-qualification and certification plans
applicable to nonrepresented contractor employees is necessary
and relevant for it to perform its statutory duties as the collec-
tive-bargaining agent for Respondent’s employees.
4. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act by refusing to
furnish the Local 483 with the information described in para-
graph 3, above.
5. Respondent’s unfair labor practices 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 and to take certain affirmative actions designed to effec-
tuate the policies of the Act.
My recommended Order requires Respondent to furnish Lo-
cal 483 with the information it requested in its June 17, 2003
letter.
[Recommended Order omitted from publication.]