                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-1998

NLRB v. Pub Serv Elec & Gas
Precedential or Non-Precedential:

Docket 97-3593




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Filed October 13, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3593

NATIONAL LABOR RELATIONS BOARD,
       Petitioner

v.

PUBLIC SERVICE ELECTRIC AND GAS COMPANY,
       Respondent

On Petition for Enforcement of an
Order of the National Labor Relations Board
(NLRB No. 4-CA-22519)

Submitted under Third Circuit LAR 34.1(a)
October 5, 1998

Before: GREENBERG and MCKEE, Circuit Judges,
and LUDWIG,* District Judge

(Filed: October 13, 1998)

Margaret Ann Gaines
Supervisor Attorney
Anne Marie Lofaso
Attorney



_________________________________________________________________

*Honorable Edmund V. Ludwig, Senior United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
       Frederick L. Feinstein
       Acting General Counsel
       Linda Sher
       Associate General Counsel
       John D. Burgoyne
       Acting Deputy Associate
       General Counsel
       Aileen A. Armstrong
       National Labor Relations Board
       1099 14th Street, N.W.
       Washington, D.C. 20570

        Attorneys for Petitioner

       Patrick R. Westerkamp
       80 Park Plaza, T5E
       P.O. Box 570
       Newark, N.J. 07101

        Attorney for Respondent

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. JURISDICTION

This matter is before this court on a Petition for
Enforcement of an order of the National Labor Relations
Board ("Board"). The Board had subject matter jurisdiction
under Section 10 of the National Labor Relations Act
("NLRA") which authorizes it to prevent unfair labor
practices. See 29 U.S.C. S 160(a). We have jurisdiction to
review a Petition for Enforcement pursuant to Section 10 of
the NLRA. See 29 U.S.C. S 160(e).

II. FACTUAL AND PROCEDURAL HISTORY

A. FACTUAL HISTORY

Local 1576 of the International Brotherhood of Electric
Workers is a labor organization that represents employees

                                  2
of nuclear facilities. It is also a part of a larger organization
known as System Council U-2 that represents 14 different
locals. Although Local 1576 is a separate entity, System
Council serves as its spokesperson in negotiations,
arbitrations, and grievance procedures. In addition, Local
1576 is affiliated with the International Brotherhood of
Electrical Workers, AFL-CIO ("International"), an even larger
organization that represents its members by assisting the
locals with negotiations and arbitrations.1

Public Service Electric and Gas Company ("PSE&G") is a
utility that, inter alia, operates several nuclear generating
stations on Artificial Island, Salem County, New Jersey.
Local 1576 represents several groups of PSE&G's
employees, including PSE&G's Radiation Protection
Technicians ("RPT") whose function is to ensure safety by
monitoring the radiological environment at various plants.

In the course of its normal operations, PSE&G undergoes
"outages" in which a plant will go off-line or shut down for
repairs or maintenance. Outages can last several months
and either are planned or conducted on an emergency
basis. During an outage, additional RPTs are required to
monitor the plant. PSE&G traditionally has supplemented
its RPT staff during outages by contracting with two
independent contractors, Bartlett Nuclear and NSS
Numanco.

Local 1576, System Council, and PSE&G are parties to a
collective bargaining agreement effective from May 1, 1992,
through April 30, 1996. Under the collective bargaining
agreement, PSE&G is permitted to contract with
independent contractors such as Bartlett and Numanco as
long the independent contracting arrangement does not
result in lay-off, curtailment, or downsizing of employees
that Local 1576 represents. In addition, even though
International is not a party to the collective bargaining
agreement, the agreement provides that PSE&G agrees to
recognize representatives of International as the
representatives of Local 1576.
_________________________________________________________________

1. In its brief the Board explains that there have been changes to the
union hierarchy that we describe, but as a matter of convenience we
refer to the structure in place at the time of the events in this case.

                               3
In 1988, International began attempts to organize groups
of employees of independent contractors such as Bartlett
("independent RPTs"). Beginning in the late 1980's,
however, International began to question whether the
independent RPTs were in fact controlled by the utilities
that they serviced. Suspicions as to the true relationship
between the independent RPTs and the utilities first arose
when, during a hearing on an unfair labor practice charge,
Bartlett took the position that a certain utility actually
made the decisions and exercised control over the
independent RPTs. Subsequently, in an unrelated unfair
labor practice case, an administrative law judge held a
utility, and not the independent contracting firm, liable for
not hiring independent RPTs. In addition, when
International attempted to organize independent RPTs, the
independent contracting firms took the position, with which
the Board agreed, that the utilities controlled the terms of
the employment of the independent RPTs and that the
contracting firms therefore would be unable to engage in a
meaningful collective bargaining relationship. As a
consequence of these three incidents, International
abandoned attempts to organize independent RPTs and,
instead, turned its attention to establishing the relationship
among the independent RPTs, their contracting firms, and
the utilities they serviced.

In order to ascertain the relationship among these
entities, International prepared a questionnaire in 1993
directed at determining the financial relationship between
the utilities and the independent contracting firms and the
degree of supervision that the utilities exercise over the
independent RPTs. The questionnaire was comprehensive,
consisting of eight pages containing 79 questions. See app.
at 136-43. International forwarded this questionnaire along
with a sample cover letter directly or indirectly to each of its
locals, including Local 1576, that represented in-house
RPTs at utilities that used certain independent contracting
firms. International asked that the locals in turn forward a
request to their utilities to answer the questionnaire.

During this same time period, System Council and Local
1576 were experiencing problems with PSE&G resulting
from its subcontracting arrangements. For example, since

                               4
approximately 1991, the local's business agents had been
complaining that they were having difficulties obtaining
information from PSE&G concerning its subcontracting
relationships. System Council asserted that while PSE&G
would inform Local 1576 when it was retaining an
independent contracting firm, it would not provide any
information as to the nature of the work to be performed,
how many independent RPTs were being hired, how long
they would be retained, or who would supervise them. See
app. at 255. System Council also asserted that while
outages normally lasted only several months, PSE&G
retained many independent RPTs during non-outage
periods. In addition, System Council asserted, without
contradiction, that beginning in 1990 and continuing to the
time of the hearing in this case, there had been little or no
expansion in the number of union-represented RPTs at
PSE&G. Id. at 256. These factors convinced System Council
that PSE&G was retaining independent RPTs to avoid
promoting or hiring other employees into the ranks of
union-represented RPTs and that this conduct was affecting
union employees at PSE&G adversely. Id.

On January 18, 1990, System Council and Local 1576
jointly filed a grievance alleging that PSE&G violated the
collective bargaining agreement "by the de facto creation
and maintenance of a `parallel work force' through multiple
subcontracting of bargaining unit work ordinarily
performed by . . . bargaining unit employees." In 1993, this
grievance and other similar grievances against various
companies were combined for arbitration. Soon after the
start of the arbitration hearing, however, the parties
suspended the arbitration process because they began
engaging in what they described as "mutual gains"
bargaining. Though the parties resolved several issues
through this bargaining process, System Council asserts,
without contradiction, that they did not resolve the issue
concerning independent RPTs performing bargaining unit
work.

System Council received the International letter and
questionnaire and passed it along to Local 1576, asking
Local 1576 to send the letter to PSE&G. Testimony
indicated that System Council asked Local 1576 to send

                               5
the questionnaire in hopes of obtaining information to
pursue further the "parallel workforce" grievance. See app.
at 262.

One of the in-house RPTs represented by Local 1576
testified that beginning in approximately 1990, he worked
side by side with independent RPTs and observed that they
performed the same work and worked the same hours as
the union-represented RPTs. See app. at 317-23. He
further testified that the supervisors of the union RPT's
supervised the independent RPTs and that these
supervisors played an active role in selecting which
independent RPTs were hired. Moreover, PSE&G's
supervisors assigned the independent RPTs work,
scheduled their work hours, and disciplined them when
necessary. In addition, the union RPT testified that he
personally observed independent RPTs working for PSE&G
during non-outage periods and that he had personal
knowledge that both Bartlett and Numanco employees had
remained with PSE&G for at least two years. He also
testified that from 1990 to 1993, the number of union-
represented RPTs at PSE&G either had decreased or
remained the same. Id.

According to Local 1576, it sent PSE&G the letter and
questionnaire prepared by International on May 18, 1993,
based on the above information in order to investigate
whether PSE&G's use of independent RPTs was affecting
union-represented RPTs adversely. See app. at 286-89
(testimony of Local 1576's president); see also app. at 134-
43 (letter and questionnaire). The letter expressed concern
that PSE&G's use of Bartlett and Numanco and their
employees was affecting the RPTs that Local 1576
represented adversely as the "operations erode the
bargaining unit, endanger the financial integrity of
negotiated wages and fringe benefits, and threaten union
member's jobs." Id. at 134. The letter requested that
PSE&G fill out the attached questionnaire requesting
information concerning the financial and/or managerial
relationship between PSE&G and Bartlett.

On June 11, 1993, PSE&G responded to Local 1576's
letter stating that PSE&G does not operate and/or control
either Bartlett or Numanco. See app. at 144-46. PSE&G's

                               6
letter further stated that "unless you can provide us with
objective facts which establish that the information
requested is relevant to the performance of your obligation
as the collective bargaining representative of our employees,
we do not intend to respond." Id. at 145. PSE&G asserted
that because the collective bargaining agreement authorized
its use of Bartlett and Numanco and did not affect the RPTs
represented by Local 1576 adversely, its arrangement with
Bartlett did not violate the collective bargaining agreement.
Id. PSE&G also noted that because the accusations in Local
1576's letter would be encompassed in the pending
"parallel workforce" grievance, the letter was not a good
faith inquiry. Id. PSE&G further accused Local 1576 of
encouraging it to enter into a "hot cargo" agreement, i.e., an
illegal agreement whereby an employer agrees with a union
to cease doing business with companies based on their
non-union status. Id.

A representative of PSE&G testified that after Local 1576
sent its letter he spoke with a representative of Local 1576
who told him that he simply was doing his job in sending
the letter and that "this was an International thing that . . .
[they] wanted him to sign and he signed it." App. at 361.
The Local 1576 representative testified that he remembered
this conversation but denied that he made the particular
statements attributed to him.

By letter dated August 30, 1993, Local 1576 responded
to PSE&G's June 11, 1993 letter. See app. at 147-48. Local
1576 clarified that it was seeking information to investigate
the extent to which PSE&G was using non-union personnel
to perform work covered by the collective bargaining
agreement. Local 1576 explained that this information was
relevant to establish if "so called, contract employees, . . .
may, in fact, be bargaining unit personnel." Id. at 147.
Local 1576 also asserted that this matter was entirely
separate from the pending "parallel workforce" grievance
between the parties. The letter concluded by stating"I trust
this will clarify any further questions you may have had
and that the overdue information will be forthcoming in a
timely manner." Id. at 148.

PSE&G responded to Local 1576's August 30 letter by
letter dated September 19, 1993. See app. at 149. PSE&G

                               7
asserted that more specifics were required for it to
determine whether it should furnish the requested
information. Specifically, PSE&G quoted allegations from
Local 1576's May 18, 1993 letter and stated that"[y]ou now
more simply contend that unnamed persons are performing
unidentified work normally performed by represented
employees." Id. The letter concluded by stating:

       Both the generality of this charge, and your failure to
       specify the information which Local 1576 believes it
       needs to police the collective bargaining agreement,
       prevent us from responding to your request. More
       specifics are required before it can be determined
       whether the Union has requested relevant information
       which [PSE&G] either possesses or has a duty to
       disclose.

Id. This letter was the last correspondence between the
parties prior to this litigation; PSE&G never provided the
requested information and Local 1576 did not send further
requests for the information.

B. PROCEDURAL HISTORY

On March 4, 1994, International filed a charge with the
Board alleging that PSE&G violated Section 8(a)(5) and (1)
of the NLRA by refusing to provide the requested
information which was purportedly necessary for and
relevant to the representation of certain of PSE&G's
employees. The Board issued a complaint based on this
charge on July 22, 1994, and amended that complaint on
July 31, 1994. An Administrative Law Judge ("ALJ") held a
hearing on the complaint on October 15 and 16, 1996.

The ALJ held that by refusing to provide the information
that Local 1576 requested, PSE&G violated Section 8(a)(5)
and (1) of the NLRA. The ALJ accordingly issued an order
dated January 28, 1997, requiring PSE&G to furnish the
requested information. PSE&G filed exceptions to the ALJ's
order with the Board. By Decision and Order dated July 11,
1997, the Board adopted the ALJ's decision and
recommended order but modified the order to require
PSE&G to "[f]urnish to the Union in a timely fashion the
information requested by the Union in its letter and
questionnaire dated May 18, 1993." The Board filed a

                                8
petition for enforcement of its July 11, 1997 Order with this
court on November 17, 1997.

III. DISCUSSION

PSE&G asserts three points of error in this appeal. The
first relates to procedural defects with International's unfair
labor practice charge; PSE&G asserts that International did
not file the charge timely and that the charge was not
served properly. PSE&G's second point of error takes issue
with the ALJ's finding that PSE&G was required to respond
to the questionnaire because the requested information was
relevant to aiding Local 1576 in fulfilling its duties as the
representative of PSE&G's RPTs. PSE&G makes the final
claim that Connecticut Yankee Atomic Power Co., 317
N.L.R.B. 1266 (1995), mandates a result contrary to that
reached by the ALJ, and thus the Board, in this case.

A. Procedural Defects in Filing and Serving the Unfair
Practice Charge

As we have indicated, PSE&G's initial assignments of
error relate to alleged procedural defects in International's
unfair practices charge. Specifically, PSE&G asserts that
this charge was untimely filed and improperly served.

       1. Assertion that Charge Was Untimely

Section 10(b) of the NLRA provides that "no complaint
shall issue upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the
Board . . . ." 29 U.S.C. S 160(b). The Board has held that
the six-month limitation period begins to run when an
aggrieved party has "clear and unequivocal notice" of a
violation of the NLRA. See A & L Underground, 302 N.L.R.B.
467, 468 (1991). Several courts of appeals have recognized
and applied the clear and unequivocal notice rule. See, e.g.,
Taylor Warehouse Corp. v. NLRB, 98 F.3d 892, 899 (6th Cir.
1996); United States Can Co. v. NLRB, 984 F.2d 864, 867
(7th Cir. 1993); NLRB v. Jerry Durham Drywall, 974 F.2d
1000, 1003 (8th Cir. 1992); NLRB v. Glover Bottled Gas
Corp., 905 F.2d 681, 684 (2d Cir. 1990). As one court aptly
noted:

                               9
       The 10(b) period begins when the victim of an unfair
       labor practice receives unequivocal notice of a final
       adverse decision. Rumors or suspicions will not do
       . . . . Moreover, the decision must be final, and not
       subject to further change; knowledge that another
       party might commit an unfair labor practice when the
       time is right will not start the 10(b) period. While the
       victims of an unfair labor practice should be
       encouraged to file a charge with the NLRB as soon as
       possible, individuals should not be forced to file
       anticipatory or premature charges, challenging
       tentative or merely hypothetical decisions, in order to
       protect their statutory rights. The 10(b) period does not
       commence until an aggrieved party has knowledge of
       the facts necessary to support a present, ripe, unfair
       labor practice charge.

Esmark, Inc. v. NLRB, 887 F.2d 739, 746 (7th Cir. 1989)
(footnotes omitted).

Because the six-month limitations period functions as an
affirmative defense to an unfair practice charge the party,
in this case PSE&G, relying on the defense has the burden
of proof to establish the untimeliness of the charge. See
Jerry Durham, 974 F.2d at 1004; A & L Underground, 302
N.L.R.B. at 469. Moreover, to establish the defense, PSE&G
must prove that the factual conclusions of the ALJ were
erroneous by convincing us that substantial evidence on
the record as a whole does not support the conclusions.
See, e.g., Taylor, 98 F.2d at 900; Glover Bottled Gas, 905 F.
2d at 685; see also NLRB v. Joy Tech., Inc., 990 F.2d 104,
107-08 (3d Cir. 1993) (noting that the substantial evidence
standard of review is applicable to the Board's factual
findings).

PSE&G asserts that Local 1576 had notice that PSE&G
was refusing to provide answers to International's
questionnaire when it received PSE&G's June 11, 1993
letter initially replying to Local 1576's request for
information. Thus, in its view, because International did
not file the unfair practice charge until March 4, 1994, its
filing was untimely. PSE&G supports its position by
pointing to testimony by the president of Local 1576 that he
knew when he received PSE&G's June 11, 1993 letter that

                               10
PSE&G was not going to answer the questionnaire and that
he did not think that his August 30, 1993 letter would
change that status. See appellant's brief at 15-16; app. at
307-08. In addition, PSE&G discounts the import of its
September 19 letter refusing to provide the requested
information by citing to International Union, United Auto,
Aerospace and Agric. Implement Workers of America, AFL-
CIO v. NLRB, 363 F.2d 702, 706 (D.C. Cir. 1966), where the
court held that an "attorney's reaffirmation of the
Company's position arising out of a past action should not
ordinarily of itself be sufficient to constitute a reoccurrence
for the purpose of a limitation provision."

In addressing this issue, the ALJ found the charge timely
filed. Applying the "clear and unequivocal" notice standard,
the ALJ found that the language in PSE&G's June 11 letter
"left open the possibility that [PSE&G] would comply with
the request upon receipt of . . . `objective facts' . . ."
showing how the information sought was relevant to Local
1576's duty as the employees' bargaining representative.
Accordingly, the ALJ found that Local 1576 did not have
clear and unequivocal evidence that PSE&G was engaging
in unlawful conduct by June 11, 1993. In addition, the ALJ
held that even if an unfair labor practice charge could have
been filed as a result of PSE&G's June 11, 1993 letter, that
did not mean that an unfair labor practice charge based on
PSE&G's subsequent refusal in its September 19, 1993
letter to provide the information requested was precluded.
See generally, Rest Haven Corp., 293 N.L.R.B. 617, 618
(1989) (holding that the Board did not err in finding a
continuing violation where there was active conduct by the
parties during the six-month limitations period).

Substantial evidence on the record as a whole supports
the ALJ's finding that PSE&G's June 11, 1993 letter did not
provide Local 1576 with clear and unequivocal notice that
PSE&G was engaging in unlawful conduct. PSE&G's June
11, 1993 letter specifically left open the possibility that
PSE&G would furnish the requested information if Local
1576 provided it with "objective facts which establish that
the information requested is relevant to the performance of
your obligation as the collective bargaining representative of
our employees." See app. at 145. Because the six-month

                               11
limitations period is not meant to punish a party who
delays in filing due to the ambiguous conduct of another
party, International's charge should be considered timely
filed. See A & L Underground, 302 N.L.R.B. at 469. The
testimony relating to Local 1576's representative's
subjective belief as to whether PSE&G ever would furnish
the requested information should not alter this result; this
evidence is not strong enough to overcome the ALJ's
findings which are based solidly on the equivocal language
of PSE&G's June 11, 1993 letter.

2. Assertion that Charge Was Improperly Served

PSE&G also asserts that International's charge was not
served properly. Specifically, PSE&G asserts that because
the record is devoid of proof of when the charge was served,
the union has failed to carry its burden to establish
jurisdiction. The Board counters that PSE&G is barred from
raising this argument because it failed to object to service
before the Board. The Board also asserts that, in any event,
the claim is without merit because its Regional Director
notified PSE&G by letter dated March 7, 1994, that a
charge had been filed against it.

As noted by the ALJ, the Board sent PSE&G a letter
dated March 7, 1994, notifying PSE&G that a charge had
been filed against it. See supp. app. at 3-4 (March 7, 1994
letter). The letter also stated that a copy of the charge was
being sent to PSE&G with the letter. Id. The return receipt
for this letter reflects that PSE&G's agent received it on
March 8, 1994. Because this evidence is sufficient to
sustain the ALJ's finding that the charge was served
properly, PSE&G's assertion of error on this point lacks
merit.

B. Allegation that Local 1576 Was Requesting Information
Solely for International

The parties agree that PSE&G had a duty to supply the
requested information if it was relevant to aid Local 1576 in
fulfilling its duties as the union representative for its
members. See generally, NLRB v. Acme Indus. Co., 385 U.S.
432, 435-36, 87 S.Ct. 565, 568 (1967) (noting that "[t]here
can be no question of the general obligation of an employer
to provide information that is needed by the bargaining

                               12
representative for the proper performance of its duties.").
PSE&G contends, however, that Local 1576 did not make
its request for information in good faith because it had no
interest in obtaining the information; according to PSE&G,
Local 1576 really was requesting the information solely on
behalf of International so that International could use the
information in its attempts to organize the employees of
independent contracting firms. See brief at 18-25.

The ALJ held that Local 1576 satisfied its burden of
showing that it reasonably believed that the requested
information was relevant to its statutory duties.
Specifically, the ALJ accepted the union RPT's testimony
that PSE&Gs' supervisors were controlling the independent
RPTs, these employees were being retained for up to two
years and during non-outage periods, and these employees
were performing the same type of work as the union-
represented RPTs. On the basis of this evidence, the ALJ
found that Local 1576 reasonably could have believed that
the allegedly independent RPTs were actually bargaining
unit employees that PSE&G was using to circumvent the
collective bargaining agreement. The ALJ also noted that
the information requested would be relevant to help Local
1576 determine whether these employees were performing
bargaining unit work thereby diminishing the work to
which Local 1576's members were entitled. The ALJ further
noted that the information sought was relevant to Local
1576's pending "parallel workforce" grievance against
PSE&G.

The ALJ specifically rejected PSE&G's argument that
Local 1576 requested the information solely for
International's benefit. The ALJ noted that PSE&G offered
no evidence to substantiate its claim that Local 1576 was
without knowledge or did not approve of the filing of the
charge on its behalf. In addition, the ALJ found that
PSE&G was not relieved of its duty to supply information
relevant to Local 1576's role as representative of PSE&G's
employees simply because the information also might have
benefited International. See generally, NLRB v. Associated
Gen. Contractors, 633 F.2d 766, 772 (9th Cir. 1980)
(holding that the potential use of requested information for
organizational purposes does not relieve an employer of its

                               13
duty to supply the information if it is relevant); Central
Manor Home for Adults, 320 N.L.R.B. 1009, 1011 (1996)
(noting that if information is relevant to the union's duties,
it is not germane that the information may be requested for
other reasons). The ALJ also credited the testimony
indicating that International had abandoned efforts to
organize the independent RPTs and reasoned that this
testimony undermines PSE&G's position that the
information was for International's benefit.

The Board asserts that there is substantial evidence to
support the ALJ's finding that the requested information
was relevant in aiding Local 1576 to represent its members.
Specifically, the Board points to the testimony on which the
ALJ relied relating to the type of work and the supervision
of the independent RPTs at PSE&G. In addition, the Board
points to evidence that the number of union-represented
RPTs at PSE&G had remained stagnant since 1990 while
the total number of positions increased. The Board argues
that, in light of this evidence, the requested information
was relevant to determining: (1) whether PSE&G or Bartlett
was the true employer of the independent contracting
employees; (2) whether PSE&G was allowing these
employees to perform union work; (3) whether PSE&G was
in breach of the collective bargaining agreement by failing
to extend certain benefits to these employees; and (4) the
strength of Local 1576's "parallel workforce" grievance
against PSE&G.

The standard for relevance is cases such as this is not
demanding; it has been characterized as a "discovery-type"
standard. Acme, 385 U.S. at 437 n.6, 87 S.Ct. at 568 n.6;
NLRB v. New Jersey Bell Tel. Co., 936 F.2d 144, 150 (3d
Cir. 1991). In addition, our standard of review is
deferential; the ALJ's factual determinations are entitled to
a substantial degree of deference. See generally, NLRB v.
George Koch Sons, Inc., 950 F.2d 1324, 1330-32 (7th Cir.
1991) (upholding Board's decision in similar refusal to
provide information case and noting that the issue is
predominately factual and subject to a significant degree of
deference). Under these standards, the record evidence
identified by the ALJ and by the Board in its brief on appeal
substantially support the ALJ's findings that the

                               14
information that Local 1576 requested was relevant to its
duties and that Local 1576 adopted the International
questionnaire for purposes of obtaining this information. In
addition, as noted by the ALJ, it is irrelevant that the
information also may have benefited International. See, e.g.,
Associated Gen. Contractors, 633 F.2d at 772; Central
Manor Home for Adults, 320 N.L.R.B. at 1011.
Consequently, PSE&G's assignment of error on this point
lacks merit.

C. Application of Connecticut Yankee

PSE&G further asserts that the Board's decision in
Connecticut Yankee Atomic Power Co., 317 N.L.R.B. 1226
(1995), is indistinguishable from this case and mandates a
reversal of the ALJ's decision. In Connecticut Yankee, a
union brought an unfair labor practice act against a utility
for refusing to answer International's questionnaire. After
International sent the company its questionnaire, the
company initially responded by denying any financial
relationship with Bartlett and refusing to answer the
majority of questions on the questionnaire. International
responded by asserting that the information was relevant to
determine whether the utility and Bartlett were joint
employers which would subject Bartlett to the collective
bargaining agreement between the parties.

The Board held that the utility did not violate the NLRA
by refusing to respond to the questionnaire because
International had failed to carry its burden of proving that
the requested information was relevant. The Board initially
noted that under the collective bargaining agreement
between the parties, a joint employer relationship would not
subject Bartlett to the terms of the collective bargaining
agreement unless the parties consented. Because there was
no record of the required consent by the parties, the Board
reasoned that the information requested by the
questionnaire was not relevant to enforcement of the
collective bargaining agreement.

The Board further held that the evidence was insufficient
to support a finding that the utility's use of Bartlett's
employees affected the union-represented RPTs.
Specifically, the Board noted that the record revealed that

                               15
the number of bargaining unit positions at the utility had
increased substantially during the time period in question.
The Board further noted that there was no allegation that
union-represented RPTs had lost continuous employment
or permanent promotional opportunities. The Board also
noted that the union never had filed a grievance concerning
the utility's use of Bartlett personnel.

We agree with the ALJ that Connecticut Yankee is
distinguishable from this case. First, the theory of relevance
for the requested information in Connecticut Yankee was
very different from the theory advanced in this case.
Because the relevance inquiry is fact specific, the Board's
relevancy analysis in Connecticut Yankee based on a joint
employer theory is largely inapposite. In addition, testimony
was offered that PSE&G's use of the independent RPTs was
affecting union-represented RPTs adversely; independent
RPTs were being retained for long periods of time and
performing the same work and the number of union-
represented RPTs was remaining stagnant. In addition,
Local 1576 had filed a parallel work force grievance to
which the requested information would be relevant. For
these reasons, the ALJ properly held that the Board's
holding in Connecticut Yankee does not control this case.

IV. CONCLUSION

For the foregoing reasons we reject all of PSE&G's
contentions and will enter a judgment enforcing the order
of July 11, 1997.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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