234 F.3d 1295 (D.C. Cir. 2000)
Crowley Marine Services, Inc., Petitionerv.National Labor Relations Board, Respondent
No. 00-1036
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2000Decided December 22, 2000

On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Kenneth W. Anderson argued the cause for petitioner. With him on the briefs was Eugene Scalia.
Richard A. Cohen, Attorney, National Labor Relations  Board, argued the cause for respondent.  With him on the  brief were Leonard R. Page, General Counsel, and Aileen A.  Armstrong, Deputy Associate General Counsel.  Frederick L.  Cornnell, Jr., Attorney, entered an appearance.
Before:  Edwards, Chief Judge, Sentelle and Henderson,  Circuit Judges.
Opinion for the Court filed Per Curiam.


1
Dissenting opinion filed by Circuit Judge Henderson.

Per Curiam:

2
The National Labor Relations Board  ("NLRB" or "Board") found, in agreement with the Administrative Law Judge, that the petitioner, Crowley Marine Services ("Crowley"), violated sections 8(a)(5) and (1) of the  National Labor Relations Act ("NLRA") by refusing to provide the Inland boatmen's Union of the Pacific ("IBU" or  "Union") with a copy of an arbitration award involving Crowley Petroleum Transport, Inc. and the Seafarers International  Union ("SIU").  See Crowley Marine Services, Inc., 329  N.L.R.B. No. 92, at 10 (Nov. 10, 1999).  The Union had  reason to think that the disputed arbitration award addressed  the manning of a tanker that replaced a Union-serviced  barge;  therefore, the award was relevant to the Union's  assessment of how best to protect the interests of their  affected bargaining unit members.  The Board specifically  found that Union representatives believed that the alleged  work-syphoning arrangement might be in violation of articles  1, 2 and 38 of its collective bargaining agreement with the  petitioner.  See id. at 9.  The Board therefore ordered Crowley to furnish the Union with a copy of the arbitration award. Crowley argues that the Board's order is unjustified, because  the arbitration award is irrelevant to the Union's legitimate  interests under the NLRA.  We reject Crowley's claim.


3
There is no doubt that, on the record before us, the Board  was fully justified in finding merit in the Union's request for  the information in connection with a possible grievance claim. Substantial evidence supports the Board's determination that  the Union communicated to Crowley that the arbitration  award was reasonably relevant to pending and possible future  grievance claims.  See, e.g., id. at 5 (finding that the Union  explained the relevance of its request in written correspondence).  As the Board explained, the information was sought  and needed "to enable the Union to make an informed  judgement [sic] about pursuing [contract grievance] remedies."  Id. at 8.  Crowley argues, convincingly, that the  record does not support a findingthat the requested information should be given to the Union to support future contract  negotiations or a possible recognition demand.  This is beside  the point, however, because the information was properly  sought in connection with possible contract grievance claims. Accordingly, the Board did not err in determining that the  information sought should have been provided to the Union.


4
An employer's duty to bargain in good faith with a labor  organization representing its employees has long been acknowledged to include a duty to supply the union with  requested information that will enable the union to perform  properly its duties as a bargaining representative.  This duty  "undoubtedly extends to data requested in order properly to  administer and police a collective bargaining agreement." Oil, Chemical & Atomic Workers Local Union v. NLRB, 711  F.2d 348, 358 (D.C. Cir. 1983).


5
Moreover, the Union was not required to show conclusively  that the information it sought was technically "relevant" or  that its request was based on a meritorious grievance.  Rather,


6
[t]he fact that the information is of probable or potential relevance is sufficient to give rise to an obligation ... to provide it.[ ]  Under this "discovery-type standard," NLRB v. Acme Industrial Co., 385 U.S. at 437, 87 S. Ct. at 568, " 'relevant' is synonymous with 'germane' " and, in the absence of some valid countervailing interest, an employer must disclose information requested by a union as long as that information has a bearing on the bargaining process.  Local 13, Detroit Newspaper Printing & Graphic Communications Union v. NLRB, 598 F.2d 267, 271-72 (D.C. Cir. 1979).


7
Oil, Chemical & Atomic Workers, 711 F.2d at 359-60 (footnotes omitted).


8
Under this well-established case law, not much is required  to justify a union's request for information that is related to  its bargaining unit representation functions.  And the judgment of the Board on this score is entitled to "great deference," because "[d]etermining whether a party has violated  its duty to 'confer in good faith' " is "particularly within the  expertise of the Board."  Local 13, Detroit Newspaper Printing & Graphic Communications Union, 598 F.2d at 272. Substantial evidence in the record supports the Board's conclusion that the Union met the required showing that the  requested information was related to possible contract grievance claims.


9
Accordingly, it is hereby ordered that Crowley's petition  for review is denied, and the Board's cross-application for  enforcement is hereby granted in accordance with this opinion.


10
Karen LeCraft Henderson, Circuit Judge, dissenting:

His reasons are as two grains of wheat hid

11
in two bushels of chaff;  you shall seek all day ere you find


12
them, and when you have them, they are not worth the search.

William Shakespeare

13
The Merchant of Venice, Act I, sc. i.


14
The court's per-curiam opinion knocks down the modest,  but real, requirement that a union requesting information  from an employer explain, at the time of its request, the  relevance, or at least potential relevance, of information not  ordinarily pertinent to its role as bargaining representative.  In its place, the court leaves a flattened, if not phantom,  hurdle.  Accordingly, and for the reasons set forth below, I  would grant the petition for review.

I. Background

15
The petitioner, Crowley Marine Services (CMS), is a subsidiary of Crowley Maritime Corporation (CMC), which  through various subsidiaries owns and operates tugs, barges,  tankers and other ocean-going vessels on the east and west  coasts of the United States.  CMS primarily services the west  coast, operating tug and barge service along the Alaskan  coast and in the Puget Sound and San Francisco areas.  Its  San Francisco operations involve the loading and discharge of  oil barges.  It employs locally-based tankermen1 to perform  this work.


16
The Inlandboatmen's Union of the Pacific (IBU or Union)  represents the tankermen pursuant to a collective bargaining  agreement with CMS.  Article 1 of the agreement recognizes  the IBU as the exclusive bargaining representative of CMS  tankermen who work in northern California and provides for  work preservation, prohibiting CMS from reassigning or  transferring work to non-bargaining unit employees.  Article  2 limits the scope and geographical jurisdiction of the agreement to the loading and unloading of CMS "barges operating  in Northern California, south to and including Morro Bay; north to Coos Bay and split discharges involving the Coos  Bay Oregon Ports of Call and Columbia River area."  JA 126. Article 38, entitled "Favored Nations Clause,"2 provides that


17
Crowley Marine Services, Inc. (formerly Harbor Tug and Barge Company) agrees that for the life of this Agreement will not be able [sic] a participant in or contribute any assets, equipment under their control, nor employees to any company, partnership, or joint venture which intends or is tended to compete with or replace the tug, barge and towing services which are presently offered or have been offered in the past by Crowley Marine Services, Inc. ... or which would have the effect of reducing the amount of work available to the Bargaining Unit.


18
JA 150-51.


19
Before June 30, 1997 Tosco Oil Company (Tosco), a petroleum and refining company, time chartered the services of  Barge 450-6 owned by CMS.  Tosco used Barge 450-6 to  transport petroleum products from its Avon facility in San  Francisco to its refinery operations in southern California.  Under the time charter, CMS operated the barge.  It loaded  the barge at the Avon facility using San Francisco-based  tankermen represented by the IBU.  It then towed the barge  to Tosco's facility in southern California, where it was unloaded by tankermen who worked for Crowley Towing and Transportation Company (CT&T), another subsidiary of CMC, and  who were represented by the SIU.  JA 176.


20
Around March, 1997 Tosco bought Union Oil Company of  California (Unocal), including its Rodeo refinery in the San  Francisco area and three tankers.  Tosco sold two of the  tankers, the Coast Range and the Blue Ridge, to Crowley  Petroleum Transport, Inc. (CPTI), a newly created subsidiary  of CT&T.  Tosco then entered into a time charter with CPTI.  Under the time charter, CPTI provided the vessel (the Coast  Range) and crew to transport Tosco oil and refinery products  from the Rodeo and Avon facilities to southern California. The twelve unlicensed crew members of the Coast Range  were represented by the Seafarers International Union (SIU)  and the eight licensed officers aboard the Coast Range were  represented by the American Maritime Officers.  Although  the record does not establish why Tosco chose to time charter  the Coast Range in lieu of renewing its time charter of Barge  450-6, one witness for CMS (Norman George, CPTI's manager of tanker operations) testified before the ALJ that the  Coast Range had more than twice the carrying capacity of  Barge 450-6 as well as a faster steaming time.  Additionally,  the tanker was fitted with a vapor recovery system and an  inert gas system, both required for use at the Rodeo facility.3 See JA 110-11.


21
As a result of Tosco's decision not to renew its time charter  of Barge 450-6, CMS tankermen based in San Francisco ceased work at Tosco's Avon facility.  CMS laid off one  tankerman, Eugene S. Tracy, and reassigned Barge 450-6 to  Alaska. On July 15, 1997 Tracy filed a grievance claiming that  CMS laid him off "due to Crowley shifting the work that  [Tracy] was formerly doing on the 450-6 to one of the new...  tankers that Crowley purchased from Tosco."  JA 166.  His  grievance asserted that CMS's actions violated articles 1 and  38(B) of the collective bargaining agreement and he sought  reinstatement and back pay.  On August 7, 1997 the IBU  filed a generic grievance to cover all of its members. Its  grievance asserted that the "Company [designated therein as  CMS] violated the agreement when [it] refused to bargain the  effects of this change and when [it] hired non-IBU crews to  perform our work, displacing the tug and barge and towing  services with tankers."  JA 167.


22
By letter dated August 21, 1997, the petitioner denied  Tracy's grievance. The letter explained that "CMS did not  shift the work that was formerly performed by Barge 450-6  to one of the new oil tankers that a separate company,  Crowley Petroleum Transport, Inc. (CPTI) purchased from  TOSCO....  It is our understanding that TOSCO, in light of  its new needs, decided that Barge 450-6 was not suitable." JA 168.  CMS also noted in the letter that it had transferred  Barge 102 to the west coast and thus had not reduced its  barge operations.  By separate letter also dated August 21,  1997, CMS denied the IBU's grievance on two grounds. First, it explained that the grievance was untimely. Second,  CMS found the grievance without merit because it was not  CMS that shifted the work formerly performed by Barge  450-6 to the tanker operated by CPTI.  The letter explained  that "CPTI is a separate company and in a substantially  different type of business than the barge transportation engaged [sic] by CMS."  JA 170.


23
On November 21, 1997 the IBU sent CMS a letter requesting that the parties take the "IBU grievance to arbitration to  decide if the Company violated the Tankermen Agreement  when [it] replaced the tug and barge service on the TOSCO  run with [its] tankers."  JA 171.  The letter explained:


24
Your position has been that the grievance was untimely. As I have pointed out to you, the Company has not been forth coming with information on this issue.  In fact, the Company did not come to us and inform us they would be doing this.  I have tried to get more information from you on occasion and you have indicated 'you do not know'. How can the Union be expected 'to know' information regarding the purchase of the tankers and what the Company intended to do with the tankers when you, Manager of Labor Relations, don't even know. JA 171. The penultimate paragraph contained the critical  request for information:  "Please provide me with a copy of  the arbitration with the SIU that deals with the crewing of  these ships [the tankers] at your earliest convenience."  JA  171.


25
By letter dated December 10, 1997, CMS reiterated its  position that the IBU grievance was untimely.  With respect  to the IBU's request for the SIU arbitration award, CMS  stated that it was "at a loss to understand the relevance of  such a request."  JA 172.  It explained that "[t]he crewing of  such blue water vessels should not be any particular concern  to a union representing barge tankerman."  JA 172.  The  letter asked the IBU "to explain... why an arbitration  decision on the crewing of a vessel on which the IBU has no  recognition or other claim could possibly be relevant to the  IBU."  JA 172.


26
Instead of explaining, the IBU, on February 9, 1998, filed  an unfair labor practice charge, alleging that "the... employer [designated therein as CMS]... refused to provide information requests by the union relevant to a labor dispute." JA 3.  Four days later the IBU sent a letter to CMS formally  demanding, inter alia, the SIU arbitration award. The letter  explained:


27
It has come to our attention that the Company was claiming the work was given to the SIU as a result of an arbitration.  I would like to know what contract the grievance that led to arbitration was filed under, whether it was the tug and barge operation or the ship operation  that claims were made under.  It is important to determine whether the Company provided information to another Union that should have been provided to us.  If so, under what circumstances was this information provided that led the Union to believe a contract violation occurred.  As you know, we were not given information in advance of the transfer of equipment, and the Company is claiming that the tug and barge operation was not replaced by the tanker operation.


28
JA 173.  The petitioner responded by letter dated March 10,  1998.  Thomas P. Baldwin, CMS's manager of labor relations,  wrote:  "I am unclear, and you still have not explained to me,  why an arbitration decision on crewing of a vessel on which  the IBU has no recognition or any other claim, could be  relevant to the IBU.  The oil tanker operation, Crowley  Petroleum Transport, Inc. (CPTI) is a deep-sea company and  is a completely separate company from Crowley Marine  Services, Inc. (CMS).  The IBU-San Francisco Region represents shore-based tankermen in San Francisco."  JA 175. The Union did not respond to the letter.


29
The National Labor Relations Board (NLRB or Board)  issued a Complaint and Notice of Hearing on April 30, 1998,  alleging that CMS violated section 8(a)(1) and (5) of the  National Labor Relations Act by refusing, beginning about  December 10, 1997, to provide the IBU with a copy of the  arbitration award between the petitioner4 and the SIU.  JA  8.  After a hearing, the ALJ found that the Union "met its  burden of establishing the potential relevance of the [SIU  Arbitration Award] under the liberal discovery standard applied in these cases."  Crowley Marine Servs., Inc., 329  N.L.R.B. No. 92, at 8 (Nov. 10, 1999).  The ALJ held that  CMS's "own comments led the Union to reasonably believe  the SIU arbitration award contained information that would  indicate if it should pursue its belief that articles 1, 2, and 38  of the collective-bargaining agreement had been violated by [CMS] when it terminated the barge operation5 and handled  the business with the tanker staffed by SIU members."  Id. The ALJ ordered CMS to furnish the Union a copy of the  SIU arbitration award and "all information requested by the  Union on and after November 21, 1997, concerning the SIU  arbitration award."  Id. at 10.  On November 10, 1999 the  NLRB issued an order affirming the ALJ's rulings, findings  and conclusions.  CMS petitioned for review by this court and  the NLRB cross-petitioned for enforcement.

II. Analysis

30
Review of a Board order is deferential.  The court applies  the substantial evidence test to the Board's findings of fact  and application of law to the facts, see NLRB v. United Ins.  Co., 390 U.S. 254, 260 (1968);  Universal Camera Corp. v.  NLRB, 340 U.S. 474, 488 (1951), and accords due deference to  the reasonable inferences that the Board draws from the  evidence, see Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42  (D.C. Cir. 1980), regardless whether the court might have  reached a different conclusion de novo.  See Universal Camera Corp., 340 U.S. at 488.


31
The duty to bargain collectively, imposed upon an employer  by section 8(a)(5) of the National Labor Relations Act, includes a duty to supply the union with " 'requested information that will enable [the union] to negotiate effectively and to  perform properly its other duties as bargaining representative.' " Oil, Chem. & Atomic Workers Local Union v. NLRB,  711 F.2d 348, 358 (D.C. Cir. 1983) (quoting Local 13, Detroit  Newspaper Printing and Graphic Communications Union v.  NLRB, 598 F.2d 267, 271 (D.C. Cir. 1979));  see Detroit  Edison Co. v. NLRB, 440 U.S. 301, 303 (1979);  NLRB v.  Acme Indus. Co., 385 U.S. 432, 437 (1967).  The obligation to  furnish relevant information is " 'rooted in recognition that  union access to such information can often prevent conflicts  which hamper collective bargaining,' and it undoubtedly extends to data requested in order properly to administer and  police a collective bargaining agreement as well as to requests  advanced to facilitate the negotiation of such contracts."  Oil,  Chem. & Atomic Workers Local Union, 711 F.2d at 358  (quoting Florida Steel Corp. v. NLRB, 601 F.2d 125, 129 (4th  Cir. 1979)).  "That is not to say, however, that the Act  requires an employer to lay open its books at any or every  union request;  certain requirements must be met." General  Elec. Co. v. NLRB, 916 F.2d 1163, 1167-68 (7th Cir. 1990). "Each case must turn upon its particular facts." NLRB v.  Truitt Mfg. Co., 351 U.S. 149, 153-54 (1956) ("The inquiry  must always be whether or not under the circumstances of  the particular case the statutory obligation to bargain in good  faith has been met.").


32
The first question is always one of relevance. See Emeryville Research Ctr., Shell Dev. Co. v. NLRB, 441 F.2d 880, 883  (9th Cir. 1971).  The relevance threshold is low so as to  permit broad disclosure of information. See General Elec. Co.,  916 F.2d at 1168. Broad disclosure, however, is not unlimited  disclosure.  See id.  "A union's bare assertion that it needs  information ... does not automatically oblige the employer to  supply all the information in the manner requested."  Detroit  Edison Co., 440 U.S. at 314.  In fact, "information that may  be 'relevant' in the broadest sense can nonetheless be withheld without violating the duty to bargain in good faith." General Elec. Co., 916 F.2d at 1168. The employer's duty  depends on the " 'probability that the desired information [is]  relevant, and that it [will] be of use to the union in carrying  out its statutory duties and responsibilities.' "  Oil, Chem. &  Atomic Workers Local Union, 711 F.2d at 359 (quoting  NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967)).


33
"Certain types of information are 'so intrinsic to the core of  the employer-employee relationship' that they are presumptively relevant. 'Conversely, when the requested information  is not ordinarily pertinent to a union's role as bargaining  representative, but is alleged to have become pertinent under  particular circumstances, the union has the burden of proving  relevance before the employer must comply.' " NLRB v.  George Koch Sons, Inc., 950 F.2d 1324, 1331 (7th Cir. 1991) (citations omitted). Information about non-unit employees is  not ordinarily pertinent to a union's role as a bargaining  representative.  See Oil, Chem. & Atomic Workers Local  Union, 711 F.2d at 359 (" '[W]hen information not ordinarily  pertinent to collective bargaining, such as information concerning nonunit employees, is requested by a union, relevance  is not assumed.' ") (quoting Press Democrat Publishing Co. v.  NLRB, 629 F.2d 1320, 1324 (9th Cir. 1980));  George Koch  Sons, Inc., 950 F.2d at 1331 ("[O]ther courts of appeals have  held that a union's request for information about employees  with whom a union does not have a bargaining relationship is  not presumptively relevant.") (emphasis original). Likewise,  information pertaining to the operations of employers with  whom the union has no bargaining relationship is not ordinarily relevant.  See George Koch Sons, Inc., 950 F.2d at  1331.


34
Because the information the IBU requested involved non unit employees represented by the SIU and employed by  CPTI,6 the IBU had a duty to " 'affirmatively demonstrate  relevance to bargainable issues,' " Oil, Chemical & Atomic  Workers Local Union, 711 F.2d at 359 (quoting Press Democrat Publishing Co. v. NLRB, 629 F.2d 1320, 1324 (9th Cir.  1980)), although it need not demonstrate that the SIU arbitration award was " 'certainly relevant or clearly dispositive  of the basic... issues between the parties.' "  Id. (quoting  Westinghouse Elec. Corp., 29 N.L.R.B. 106, 107 (1978));  see  also United States Testing Co. v. NLRB, 160 F.3d 14, 19  (D.C. Cir. 1998), reh'g and suggestion for reh'g en banc  denied (Jan. 20, 1999).  Under the "discovery-type standard," Acme Indus. Co., 385 U.S. at 437, " 'relevant' is synonymous  with 'germane' and, in the absence of some valid countervailing interest," the company had a duty to disclose the information so long as it had a bearing on the bargaining process. Oil, Chem. & Atomic Workers Local Union, 711 F.2d at 360  (citations omitted).


35
The Board ruled that the Union affirmatively explained the  relevance of the SIU arbitration award. It first noted that an  unnamed CMS official informed the Union's national president that the SIU award was a product of arbitration.  See  Crowley Marine Services, Inc., 329 N.L.R.B. No. 92, at 8  (Nov. 10, 1999).  Next, the Board found that CMS failed to  inform the Union of the pending change in operation of Barge  450-6 and that the SIU arbitration award demonstrated that  it had provided information to another union.  See id.  Third,  the Board opined that any information about the contract  under which the SIU pursued its grievance against, presumably, CT&T7 would help the Union negotiate changes in its  collective bargaining agreement with CMS.  See id. at 8-9. Next, the Boardhypothesized that since the Union had a duty  to police its collective bargaining agreement with CMS, the  fact that CPTI was CMS's "affiliate" alerted the Union as to  whether it had a claim under the work preservation clause of  its own agreement.  See id.  Finally, the Board thought that  the SIU arbitration award would assist the Union in deciding  "whether to make a claim for the work."  Id. at 9 (explaining  that "the information may be later used for subsequent work  demands").


36
Although we give "great weight" to the Board's determination on the relevance of requested information, Oil, Chemical  & Atomic Workers Local Union, 711 F.2d at 360, our review  is not " 'a mere rubber stamp substituting judicial abdication  for judicial review.  It is imperative that the reviewing court  examine all of the evidence in context to ensure that the  Board's findings fairly and accurately represent the picture  painted by the record.' "  General Elec. Co., 916 F.2d at 1168  (quoting NLRB v. Harvstone Mfg. Co., 785 F.2d 570, 574-75  (7th Cir. 1986));  see Universal Camera Corp. v. NLRB, 340  U.S. 474, 488 (1951);  Time Warner Cable v. NLRB, 160 F.3d  1, 3 (D.C. Cir. 1998).  More important, we must examine the  reasons the Union proffered at the time of the demand for the  information. See George Koch Sons, Inc., 950 F.2d at 1330; General Elec. Co., 916 F.2d at 1169;  NLRB v. A.S. Abell Co.,  624 F.2d 506, 513 n. 5 (4th Cir. 1980) ("[W]e deal with the fact  situation presented to the Company at the time it acted."). " '[O]nly after an employer has had an opportunity to consider the basis for a union's information or bargaining demand  can the employer violate the NLRA by rejecting the demand.' "  Hertz Corp. v. NLRB, 105 F.3d 868, 873 (3d Cir.  1997) (quoting NLRB v. United States Postal Svc., 18 F.3d  1089, 1102 n.7 (3d Cir. 1994)).  The court must look at the  record as a whole as it existed when the Union made its  demand.  See United States Testing Co., 160 F.3d at 19  ("[C]ontext is everything.");  General Elec. Co., 916 F.2d at  1170.


37
Viewing the record at the time of the IBU's demand, I fail  to find any evidence to support the Board's conclusion that  the Union affirmatively and timely explained the relevance of  its request.  Not one of the facts and theories of relevance  posited by the Board was made known to CMS, much less  communicated by the Union at the time of its demand. Before filing the unfair labor practice charge, the Union had  made only one request for the SIU arbitration award, in the  November 21, 1997 letter8 to CMS, and the letter constitutes  the Union's sole attempt to obtain the information before  filing an unfair labor practice charge.9  The letter gave no  reason for the IBU's request.  See supra at ___.  The Board,  however, cannot supply reasons nunc pro tunc and post litem motam to conclude that the Union met its burden to affirmatively demonstrate the relevance of the SIU arbitration award  at the time it requested the information.  Even the February  13, 1998 "formal demand," made after the unfair labor practice charge was filed, did not give the reasons supplied years  later by the Board.10


38
The per curiam opinion states that the Union "had reason  to think" that the SIU arbitration award was relevant and  that the Union "believed" it had been wronged.  Maj. Op. at  2.  The Union's thoughts and beliefs, however, are irrelevant  to whether the Union explained to CMS the relevance of the  arbitration award at the time of its request.  While I agree  that "not much is required" to establish relevancy, see Oil,  Chem. & Atomic Workers, 711 F.2d at 359, here there is  simply no record support for the Board's conclusion that the  IBU timely explained relevance as it was required to do.


39
The Board pointed to the IBU's February 13, 1998 letter as  adequately alerting CMS to the relevance of the SIU arbitration award because the letter stated that the award would provide information about the contract under which the arbitration arose.  Relying solely on the Board's spare discussion  of that letter,11 the per curiam opinion concludes that "[s]ubstantial evidence supports the Board's determination that the  Union communicated to Crowley that the arbitration award  was reasonably relevant to pending and possible future grievance claims."  The opinion glosses over the issue of timeliness;  it ignores the fact that the February 13, 1998 letter was  written almost three months after the Union made its request  and four days after it filed an unfair labor practice charge. Even the Union's February explanation, however, failed to  alert CMS to its "grievance," that is it was considering a  claim under the work preservation clause.12  Likewise, while  the Union heard of the SIU arbitration award from someone  at CMS, I fail to see how this fact made the substance of the  award relevant.  Finally, the Union's assertion that it had no  notice of Tosco's decision not to renew the Barge 450-6 time  charter is irrelevant to whether the Union disclosed its reasons establishing relevance.  Thus, I fail to find anything  approaching substantial evidence in the record showing that  the Union met its burden to timely and affirmatively explain  the relevance of its request.


40
Accordingly, I dissent.



Notes:


1
 The term "tankermen" is somewhat of a misnomer.  Tankermen  work on barges, not tankers.  They are land-based and do not  travel with or aboard the barge as it travels between loading and  unloading locations.  By contrast, the licensed (and unlicensed)  individuals who work on tankers, which are deep water vessels,  travel aboard the tanker and work at both the loading and unloading destinations.  See JA 31-33.


2
 According to the record, the Favored Nations Clause represented a compromise designed to accommodate two competing interests. CMS wanted assurances that the Union would "not undercut [the]  labor agreement with ... any competing companies."  JA 41 (testimony of Marina Secchitano, IBU Regional Director).  Part A of the  Favored Nations Clause requires the Union "to equalize the total  IBU labor operating costs" if the Union enters into an agreement  with another company. JA 150.  In return for this "bitter pill to  swallow," CMS would not "put [the Union] out of work by bringing  someone in to do th[e] work."  JA 40-41.


3
 While the ALJ acknowledged George's testimony detailed the  Coast Range's advantages over Barge 450-6, she concluded that  there was no affirmative evidence that Barge 450-6 lacked the  same.  Despite the absence of evidence to the contrary, she rejected George's statement that Barge 450-6 did not have an inert gas  or a vapor recovery system because "there were no predicates  presented for this surmise."  Crowley Marine Servs., Inc., 329  N.L.R.B. No. 92, at 6 (Nov. 10, 1999).  She then concluded that  George's "surmise works to impede his credibility."  Id.


4
 The Board incorrectly stated that the arbitration award was  between CMS and the SIU.  Instead it involved CPTI and the SIU. See infra at 12 & n.10.


5
 The ALJ incorrectly stated that CMS terminated the barge  operation.  In fact Tosco, CMS's customer, terminated the barge  operation by not renewing its time charter of Barge 450-6.


6
 And there can be no doubt that the IBU knew at the time of its  request that the information it sought involved non-unit employees  represented by the SIU.  See JA 171.  The IBU also knew that the  non-unit employees represented by the SIU were employed by  CPTI, not CMS.  See JA 170.


7
 Although the record does not reflect the target of SIU's grievance, its collective bargaining agreement was with CT&T.


8
 The Board found, however, that "[t]he Union's November 21  letter indicates it tried to get the information from [CMS] on  previous occasions without success."  Crowley Marine Services,  Inc., 329 N.L.R.B. No. 92, at 9 (Nov. 10, 1999).  Nothing in the  letter or elsewhere in the record indicates that the Union had  previously requested the arbitration award.


9
 Marina Secchitano, the IBU's regional director, confirmed at the  hearing that "any discussion with Crowley" about the SIU arbitration award request was contained in the correspondence and that  she had no "actual discussion with anyone from Crowley about the  arbitration award."  JA 45.


10
 Moreover, the Board's, the ALJ's and the Union's repeated  references to Crowley subsidiaries other than CMS interchangeably  with CMS, with no record evidence that CMS and other CMC  subsidiaries operated other than independently of each other, fatally  skewed its view of the record as a whole.  For example, the IBU's  February 13, 1998 letter formally requesting the SIU arbitration  award explained that "[i]t is important to determine whether the  Company provided information to another Union that should have  been provided to us."  JA 173.  But the "company" that was in a  position to provide the SIU with information about the Tosco time  charter of the Coast Range was CT&T or CPTI, not CMS.  Neither  CT&T nor CPTI is a party to this action.  See also supra note 4. Likewise, the IBU's November 21, 1997 to CMS letter asked "what  the Company intended to do with the tankers" even though the IBU  had previously been informed that CMS did not operate or own any  tankers.  JA 170-71.  And at oral argument the Board counsel  questioned whether CPTI had the wherewithal to purchase Tosco's  tankers, suggesting that the parent CMC was orchestrating some  scheme to replace CMS barges with CPTI tankers at Tosco's Avon  facility.  This assertion lacks any record support.


11
 The per curiam opinion grants the Board's cross-petition only  to the extent that the Union's purported "grievance" rendered its  information request relevant.  It does not affirm the other Board  theories of relevance.


12
 Furthermore, I do not think the letter adequately set forth the  work preservation theory.  The February 13 letter states:  "I would  like to know what contract the grievance that led to arbitration was  filed under, whether it was the tug and barge operation or the ship  operation that claims were made under.  It is important to determine whether the Company provided information to another Union  that should have been provided to us.  If so, under what circumstances was this information provided that led the Union to believe  a contract violation occurred."  JA 173.  The Union did not explain  why it wanted to know under what contract the SIU claims were  made other than its suspicion that "the Company," see supra note  10, provided information to the SIU that it should have provided to  the Union. In fact, the Union never explained that it wanted the  information because it might pursue a work preservation claim. And even if there were similarities between the SIU contract and  the IBU collective bargaining agreement with CMS (which the  Union did not allege), I believe any similarity would support a work  claim theory of relevance, not a work preservation theory because  the IBU's collective bargaining agreement limits its representation  to tankermen who work on barges, not the unlicensed individuals  who work on tankers like the Coast Range.  The Union did not and  does not now base its request on a work claim theory.


