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. e du/thir dc ir c uit_1998/245Filed 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 D istrict Judge for the Eastern District of Pennsylvania, sitting by de signation.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 Relat ions Board ("Board"). The Board had subject matter juris diction

under Section 10 of the National Labor Relations Ac t ("NLRA") which authorizes it to prevent unfair labo r practices. See 29 U.S.C. S 160(a). We have jurisdic tion to review a Petition for Enforcement pursuant to Secti on 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 Elec tric Workers is a labor organization that represents emp loyees

2of nuclear facilities. It is also a part of a large r organization

known as System Council U-2 that represents 14 diff erent locals. Although Local 1576 is a separate entity, S ystem Council serves as its spokesperson in negotiations, arbitrations, and grievance procedures. In addition , Local

1576 is affiliated with the International Brotherho od of Electrical Workers, AFL-CIO ("International"), an e ven larger organization that represents its members by assisti ng the locals with negotiations and arbitrations.1

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

In the course of its normal operations, PSE&G under goes "outages" in which a plant will go off-line or shut down for repairs or maintenance. Outages can last several mo nths and either are planned or conducted on an emergency basis. During an outage, additional RPTs are requir ed to monitor the plant. PSE&G traditionally has suppleme nted its RPT staff during outages by contracting with tw o independent contractors, Bartlett Nuclear and NSS

Numanco.

Local 1576, System Council, and PSE&G are parties t o a collective bargaining agreement effective from May 1, 1992, through April 30, 1996. Under the collective bargai ning agreement, PSE&G is permitted to contract with independent contractors such as Bartlett and Numanc o as long the independent contracting arrangement does n ot result in lay-off, curtailment, or downsizing of em ployees that Local 1576 represents. In addition, even thoug h International is not a party to the collective barg aining 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 o f convenience we refer to the structure in place at the time of the events in this case.

3In 1988, International began attempts to organize g roups

of employees of independent contractors such as Bar tlett ("independent RPTs"). Beginning in the late 1980's, however, International began to question whether th e independent RPTs were in fact controlled by the uti lities that they serviced. Suspicions as to the true relat ionship between the independent RPTs and the utilities firs t arose when, during a hearing on an unfair labor practice charge, Bartlett took the position that a certain utility a ctually

made the decisions and exercised control over the independent RPTs. Subsequently, in an unrelated unf air labor practice case, an administrative law judge he ld a utility, and not the independent contracting firm, liable for not hiring independent RPTs. In addition, when International attempted to organize independent RPT s, the independent contracting firms took the position, wi th 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 enga ge 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 r elationship 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 o ver the independent RPTs. The questionnaire was comprehensi ve, consisting of eight pages containing 79 questions. See app. at 136-43. International forwarded this questionnai re along with a sample cover letter directly or indirectly t o each of its locals, including Local 1576, that represented in-h ouse RPTs at utilities that used certain independent con tracting

firms. International asked that the locals in turn forward a request to their utilities to answer the questionna ire.

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

4approximately 1991, the local's business agents had been

complaining that they were having difficulties obta ining information from PSE&G concerning its subcontractin g relationships. System Council asserted that while P SE&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 perf ormed, how many independent RPTs were being hired, how lon g they would be retained, or who would supervise them . See app. at 255. System Council also asserted that whil e outages normally lasted only several months, PSE&G retained many independent RPTs during non-outage periods. In addition, System Council asserted, with out contradiction, that beginning in 1990 and continuin g to the time of the hearing in this case, there had been li ttle or no expansion in the number of union-represented RPTs a t PSE&G. Id. at 256. These factors convinced System C ouncil 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 af fecting union employees at PSE&G adversely. Id.

On January 18, 1990, System Council and Local 1576 jointly filed a grievance alleging that PSE&G viola ted the collective bargaining agreement "by the de facto cr eation and maintenance of a `parallel work force' through multiple subcontracting of bargaining unit work ordinarily performed by . . . bargaining unit employees." In 1 993, this grievance and other similar grievances against vari ous companies were combined for arbitration. Soon after the start of the arbitration hearing, however, the part ies suspended the arbitration process because they bega n engaging in what they described as "mutual gains" bargaining. Though the parties resolved several iss ues through this bargaining process, System Council ass erts, without contradiction, that they did not resolve th e issue concerning independent RPTs performing bargaining u nit

work.

System Council received the International letter an d questionnaire and passed it along to Local 1576, as king Local 1576 to send the letter to PSE&G. Testimony indicated that System Council asked Local 1576 to s end

5the 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 tha t they performed the same work and worked the same hours a s 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 whic h independent RPTs were hired. Moreover, PSE&G's supervisors assigned the independent RPTs work, scheduled their work hours, and disciplined them wh en necessary. In addition, the union RPT testified tha t he personally observed independent RPTs working for PS E&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 uni onrepresented RPTs at PSE&G either had decreased or

remained the same. Id.

According to Local 1576, it sent PSE&G the letter a nd questionnaire prepared by International on May 18, 1993, based on the above information in order to investig ate whether PSE&G's use of independent RPTs was affecti ng union-represented RPTs adversely. See app. at 286-8 9 (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 o f negotiated wages and fringe benefits, and threaten union member's jobs." Id. at 134. The letter requested th at PSE&G fill out the attached questionnaire requestin g information concerning the financial and/or manager ial 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 c ontrol either Bartlett or Numanco. See app. at 144-46. PSE &G's

6letter further stated that "unless you can provide us with

objective facts which establish that the informatio n requested is relevant to the performance of your ob ligation as the collective bargaining representative of our employees, we do not intend to respond." Id. at 145. PSE&G ass erted that because the collective bargaining agreement au thorized

its use of Bartlett and Numanco and did not affect the RPTs represented by Local 1576 adversely, its arrangemen t with Bartlett did not violate the collective bargaining agreement.

Id. PSE&G also noted that because the accusations i n 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" agreemen t, i.e., an illegal agreement whereby an employer agrees with a union to cease doing business with companies based on the ir

non-union status. Id.

A representative of PSE&G testified that after Loca l 1576 sent its letter he spoke with a representative of L ocal 1576 who told him that he simply was doing his job in se nding

the letter and that "this was an International thin g that . . . [they] wanted him to sign and he signed it." App. a t 361. The Local 1576 representative testified that he rem embered this conversation but denied that he made the parti cular

statements attributed to him.

By letter dated August 30, 1993, Local 1576 respond ed to PSE&G's June 11, 1993 letter. See app. at 147-48 . Local 1576 clarified that it was seeking information to i nvestigate the extent to which PSE&G was using non-union perso nnel to perform work covered by the collective bargainin g agreement. Local 1576 explained that this informati on was relevant to establish if "so called, contract emplo yees, . . . may, in fact, be bargaining unit personnel." Id. at 147.

Local 1576 also asserted that this matter was entir ely separate from the pending "parallel workforce" grie vance between the parties. The letter concluded by statin g"I trust this will clarify any further questions you may hav e had

and that the overdue information will be forthcomin g 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. P SE&G

7asserted that more specifics were required for it t o

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 perfor ming 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 bel ieves it needs to police the collective bargaining ag reement, prevent us from responding to your request. More specifics are required before it can be dete rmined whether the Union has requested relevant inf ormation 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 provi ded the requested information and Local 1576 did not send f urther 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 th is 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 inform ation 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 th e ALJ's order with the Board. By Decision and Order dated J uly 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 fashio n the information requested by the Union in its letter an d questionnaire dated May 18, 1993." The Board filed a

8petition 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 Internatio nal's unfair labor practice charge; PSE&G asserts that Internati onal did not file the charge timely and that the charge was not served properly. PSE&G's second point of error take s issue with the ALJ's finding that PSE&G was required to r espond to the questionnaire because the requested informat ion was relevant to aiding Local 1576 in fulfilling its dut ies as the representative of PSE&G's RPTs. PSE&G makes the fin al 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 cas e.

A. Procedural Defects in Filing and Serving the Unf air Practice Charge

As we have indicated, PSE&G's initial assignments o f error relate to alleged procedural defects in Inter national's unfair practices charge. Specifically, PSE&G assert s that this charge was untimely filed and improperly serve d.

1. Assertion that Charge Was Untimely

Section 10(b) of the NLRA provides that "no complai nt shall issue upon any unfair labor practice occurrin g more than six months prior to the filing of the charge w ith the Board . . . ." 29 U.S.C. S 160(b). The Board has he ld 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 rec ognized and applied the clear and unequivocal notice rule. See, e.g., Taylor Warehouse Corp. v. NLRB, 98 F.3d 892, 899 (6 th 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 cou rt aptly

noted:

9The 10(b) period begins when the victim of a n unfair

labor practice receives unequivocal notice o f a final adverse decision. Rumors or suspicions will not do . . . . Moreover, the decision must be final , and not subject to further change; knowledge that an other party might commit an unfair labor practice when the time is right will not start the 10(b) perio d. While the victims of an unfair labor practice should b e encouraged to file a charge with the NLRB as soon as possible, individuals should not be forced t o file anticipatory or premature charges, challengi ng tentative or merely hypothetical decisions, in order to protect their statutory rights. The 10(b) pe riod does not commence until an aggrieved party has knowle dge of the facts necessary to support a present, ri pe, unfair labor practice charge.

Esmark, Inc. v. NLRB, 887 F.2d 739, 746 (7th Cir. 1 989) (footnotes omitted).

Because the six-month limitations period functions as an affirmative defense to an unfair practice charge th e party, in this case PSE&G, relying on the defense has the burden of proof to establish the untimeliness of the charg e. 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 evidenc e on the record as a whole does not support the conclusi ons. See, e.g., Taylor, 98 F.2d at 900; Glover Bottled G as, 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 fac tual 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, 199 3 letter initially replying to Local 1576's request f or information. Thus, in its view, because Internation al 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 157 6 that he knew when he received PSE&G's June 11, 1993 letter that

10PSE&G was not going to answer the questionnaire and that

he did not think that his August 30, 1993 letter wo uld 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 request ed information by citing to International Union, Unite d Auto, Aerospace and Agric. Implement Workers of America, AFLCIO v. NLRB, 363 F.2d 702, 706 (D.C. Cir. 1966), wh ere the court held that an "attorney's reaffirmation of the Company's position arising out of a past action sho uld 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 compl y with the request upon receipt of . . . `objective facts' . . ." showing how the information sought was relevant to Local 1576's duty as the employees' bargaining representa tive. Accordingly, the ALJ found that Local 1576 did not have clear and unequivocal evidence that PSE&G was engag ing in unlawful conduct by June 11, 1993. In addition, the ALJ held that even if an unfair labor practice charge c ould have been filed as a result of PSE&G's June 11, 1993 let ter, that did not mean that an unfair labor practice charge b ased on PSE&G's subsequent refusal in its September 19, 199 3 letter to provide the information requested was pre cluded. See generally, Rest Haven Corp., 293 N.L.R.B. 617, 618 (1989) (holding that the Board did not err in findi ng 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 suppo rts the ALJ's finding that PSE&G's June 11, 1993 letter did not provide Local 1576 with clear and unequivocal notic e that PSE&G was engaging in unlawful conduct. PSE&G's Jun e 11, 1993 letter specifically left open the possibil ity that PSE&G would furnish the requested information if Lo cal 1576 provided it with "objective facts which establ ish that the information requested is relevant to the perfor mance of your obligation as the collective bargaining repres entative of our employees." See app. at 145. Because the six-mo nth

11limitations period is not meant to punish a party w ho

delays in filing due to the ambiguous conduct of an other 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 fu rnish the requested information should not alter this res ult; this evidence is not strong enough to overcome the ALJ's findings which are based solidly on the equivocal l anguage 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 b ecause the record is devoid of proof of when the charge wa s served, the union has failed to carry its burden to establi sh jurisdiction. The Board counters that PSE&G is barr ed from raising this argument because it failed to object t o service before the Board. The Board also asserts that, in a ny event, the claim is without merit because its Regional Dir ector 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 receive d it on March 8, 1994. Because this evidence is sufficient to sustain the ALJ's finding that the charge was serve d properly, PSE&G's assertion of error on this point lacks

merit.

B. Allegation that Local 1576 Was Requesting Inform ation Solely for International

The parties agree that PSE&G had a duty to supply t he requested information if it was relevant to aid Loc al 1576 in fulfilling its duties as the union representative f or its members. See generally, NLRB v. Acme Indus. Co., 38 5 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 bargai ning

12representative for the proper performance of its du ties.").

PSE&G contends, however, that Local 1576 did not ma ke its request for information in good faith because i t had no interest in obtaining the information; according to PSE&G, Local 1576 really was requesting the information so lely on

behalf of International so that International could use the information in its attempts to organize the employe es of independent contracting firms. See brief at 18-25.

The ALJ held that Local 1576 satisfied its burden o f showing that it reasonably believed that the reques ted information was relevant to its statutory duties. Specifically, the ALJ accepted the union RPT's test imony that PSE&Gs' supervisors were controlling the indep endent RPTs, these employees were being retained for up to two years and during non-outage periods, and these empl oyeeswere performing the same type of work as the unionrepresented RPTs. On the basis of this evidence, th e ALJ found that Local 1576 reasonably could have believe d that the allegedly independent RPTs were actually bargai ning unit employees that PSE&G was using to circumvent t he collective bargaining agreement. The ALJ also noted that the information requested would be relevant to help Local 1576 determine whether these employees were perform ing bargaining unit work thereby diminishing the work t o which Local 1576's members were entitled. The ALJ f urther noted that the information sought was relevant to L ocal 1576's pending "parallel workforce" grievance again st

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 o ffered

no evidence to substantiate its claim that Local 15 76 was without knowledge or did not approve of the filing of the charge on its behalf. In addition, the ALJ found th at PSE&G was not relieved of its duty to supply inform ation 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. Ass ociated Gen. Contractors, 633 F.2d 766, 772 (9th Cir. 1980) (holding that the potential use of requested inform ation for organizational purposes does not relieve an employe r of its

13duty to supply the information if it is relevant); Central

Manor Home for Adults, 320 N.L.R.B. 1009, 1011 (199 6) (noting that if information is relevant to the unio n's duties, it is not germane that the information may be reque sted for other reasons). The ALJ also credited the testimony indicating that International had abandoned efforts to organize the independent RPTs and reasoned that thi s testimony undermines PSE&G's position that the

information was for International's benefit.

The Board asserts that there is substantial evidenc e to support the ALJ's finding that the requested inform ation 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 sup ervision of the independent RPTs at PSE&G. In addition, the Board points to evidence that the number of union-represe nted RPTs at PSE&G had remained stagnant since 1990 whil e the total number of positions increased. The Board argues that, in light of this evidence, the requested info rmation was relevant to determining: (1) whether PSE&G or B artlett was the true employer of the independent contractin g 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" griev ance against PSE&G.

The standard for relevance is cases such as this is not demanding; it has been characterized as a "discover y-type" standard. Acme, 385 U.S. at 437 n.6, 87 S.Ct. at 56 8 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 e ntitled to a substantial degree of deference. See generally, N LRB v. George Koch Sons, Inc., 950 F.2d 1324, 1330-32 (7th Cir. 1991) (upholding Board's decision in similar refusa l 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 evide nce identified by the ALJ and by the Board in its brief on appeal substantially support the ALJ's findings that the

14information that Local 1576 requested was relevant to its

duties and that Local 1576 adopted the Internationa l questionnaire for purposes of obtaining this inform ation. In addition, as noted by the ALJ, it is irrelevant tha t the information also may have benefited International. See, e.g., Associated Gen. Contractors, 633 F.2d at 772; Centr al Manor Home for Adults, 320 N.L.R.B. at 1011. Consequently, PSE&G's assignment of error on this p oint

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. 1 226 (1995), is indistinguishable from this case and man dates a

reversal of the ALJ's decision. In Connecticut Yank ee, a union brought an unfair labor practice act against a utility for refusing to answer International's questionnair e. After International sent the company its questionnaire, t he company initially responded by denying any financia l relationship with Bartlett and refusing to answer t he majority of questions on the questionnaire. Interna tional responded by asserting that the information was rel evant to determine whether the utility and Bartlett were joi nt employers which would subject Bartlett to the colle ctive 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 pro ving that the requested information was relevant. The Board i nitially noted that under the collective bargaining agreemen t between the parties, a joint employer relationship would not subject Bartlett to the terms of the collective bar gaining agreement unless the parties consented. Because the re was no record of the required consent by the parties, t he Board reasoned that the information requested by the questionnaire was not relevant to enforcement of th e collective bargaining agreement.

The Board further held that the evidence was insuff icient to support a finding that the utility's use of Bart lett's employees affected the union-represented RPTs. Specifically, the Board noted that the record revea led that

15the number of bargaining unit positions at the util ity had

increased substantially during the time period in q uestion. The Board further noted that there was no allegatio n that union-represented RPTs had lost continuous employme nt or permanent promotional opportunities. The Board a lso noted that the union never had filed a grievance co ncerning the utility's use of Bartlett personnel.

We agree with the ALJ that Connecticut Yankee is distinguishable from this case. First, the theory o f relevance for the requested information in Connecticut Yankee was very different from the theory advanced in this cas e. 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 RPT s was affecting union-represented RPTs adversely; indepen dent RPTs were being retained for long periods of time a ndperforming the same work and the number of unionrepresented RPTs was remaining stagnant. In additio n, Local 1576 had filed a parallel work force grievanc e 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

16