1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"NLRB v. Pub Serv Elec & Gas" (1998). 1998 Decisions. Paper 245.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/245
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 unionrepresented 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, AFLCIO 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 unionrepresented 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 unionrepresented 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 

 16