UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CROWLEY MARINE SVC

v.

NLRB


00-1036a

D.C. Cir. 2000


*	*	*


Opinion for the Court filed Per Curiam.


Dissenting opinion filed by Circuit Judge Henderson.


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


There is no doubt that, on the record before us, the Board  was fully
justified in finding merit in the Union's request for  the information
in connection with a possible grievance claim.  Substantial evidence
supports the Board's determination that  the Union communicated to
Crowley that the arbitration  award was reasonably relevant to pending
and possible future  grievance claims. See, e.g., id. at 5 (finding
that the Union  explained the relevance of its request in written
correspon- dence). As the Board explained, the information was sought 
and needed "to enable the Union to make an informed  judgement [sic]
about pursuing [contract grievance] reme-


dies." Id. at 8. Crowley argues, convincingly, that the  record does
not support a finding that the requested informa- tion should be given
to the Union to support future contract  negotiations or a possible
recognition demand. This is beside  the point, however, because the
information was properly  sought in connection with possible contract
grievance claims.  Accordingly, the Board did not err in determining
that the  information sought should have been provided to the Union.


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


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


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


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


Under this well-established case law, not much is required  to justify
a union's request for information that is related to  its bargaining
unit representation functions. And the judg-


ment of the Board on this score is entitled to "great defer- ence,"
because "[d]etermining whether a party has violated  its duty to
'confer in good faith' " is "particularly within the  expertise of the
Board." Local 13, Detroit Newspaper Print- ing & Graphic
Communications Union, 598 F.2d at 272.  Substantial evidence in the
record supports the Board's con- clusion that the Union met the
required showing that the  requested information was related to
possible contract griev- ance claims.


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


Karen LeCraft Henderson, Circuit Judge, dissenting:


His reasons are as two grains of wheat hid  in two bushels of chaff;
you shall seek all day  ere you find  them, and when you have them,
they are not  worth the search. 


William Shakespeare


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


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


I. Background


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


The Inlandboatmen's Union of the Pacific (IBU or Union)  represents the
tankermen pursuant to a collective bargaining 




__________

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


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


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


JA 150-51.


Before June 30, 1997 Tosco Oil Company (Tosco), a petrole- um and
refining company, time chartered the services of  Barge 450-6 owned by
CMS. Tosco used Barge 450-6 to  transport petroleum products from its
Avon facility in San  Francisco to its refinery operations in southern
California.  Under the time charter, CMS operated the barge. It loaded




__________

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


the barge at the Avon facility using San Francisco-based  tankermen
represented by the IBU. It then towed the barge  to Tosco's facility
in southern California, where it was unload- ed by tankermen who
worked for Crowley Towing and Trans- portation Company (CT&T), another
subsidiary of CMC, and  who were represented by the SIU. JA 176.


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


As a result of Tosco's decision not to renew its time charter  of Barge
450-6, CMS tankermen based in San Francisco 




__________

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


ceased work at Tosco's Avon facility. CMS laid off one  tankerman,
Eugene S. Tracy, and reassigned Barge 450-6 to  Alaska. On July 15,
1997 Tracy filed a grievance claiming that  CMS laid him off "due to
Crowley shifting the work that  [Tracy] was formerly doing on the
450-6 to one of the new...  tankers that Crowley purchased from
Tosco." JA 166. His  grievance asserted that CMS's actions violated
articles 1 and  38(B) of the collective bargaining agreement and he
sought  reinstatement and back pay. On August 7, 1997 the IBU  filed a
generic grievance to cover all of its members. Its  grievance asserted
that the "Company [designated therein as  CMS] violated the agreement
when [it] refused to bargain the  effects of this change and when [it]
hired non-IBU crews to  perform our work, displacing the tug and barge
and towing  services with tankers." JA 167.


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


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


Your position has been that the grievance was untimely.  As I have
pointed out to you, the Company has not been  forth coming with
information on this issue. In fact, the  Company did not come to us
and inform us they would be  doing this. I have tried to get more
information from  you on occasion and you have indicated 'you do not 
know'. How can the Union be expected 'to know' infor- mation regarding
the purchase of the tankers and what  the Company intended to do with
the tankers when you,  Manager of Labor Relations, don't even know.


JA 171. The penultimate paragraph contained the critical  request for
information: "Please provide me with a copy of  the arbitration with
the SIU that deals with the crewing of  these ships [the tankers] at
your earliest convenience." JA  171.


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


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


It has come to our attention that the Company was  claiming the work
was given to the SIU as a result of an  arbitration. I would like to
know what contract the  grievance that led to arbitration was filed
under, whether  it was the tug and barge operation or the ship


that claims were made under. It is important to deter- mine whether the
Company provided information to an- other Union that should have been
provided to us. If so,  under what circumstances was this information
provided  that led the Union to believe a contract violation oc-
curred. As you know, we were not given information in  advance of the
transfer of equipment, and the Company  is claiming that the tug and
barge operation was not  replaced by the tanker operation.


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


The National Labor Relations Board (NLRB or Board)  issued a Complaint
and Notice of Hearing on April 30, 1998,  alleging that CMS violated
section 8(a)(1) and (5) of the  National Labor Relations Act by
refusing, beginning about  December 10, 1997, to provide the IBU with
a copy of the  arbitration award between the petitioner 4 and the SIU.
JA  8. After a hearing, the ALJ found that the Union "met its  burden
of establishing the potential relevance of the [SIU  Arbitration
Award] under the liberal discovery standard ap- plied in these cases."
Crowley Marine Servs., Inc., 329  N.L.R.B. No. 92, at 8 (Nov. 10,
1999). The ALJ held that  CMS's "own comments led the Union to
reasonably believe  the SIU arbitration award contained information
that would  indicate if it should pursue its belief that articles 1,
2, and 38  of the collective-bargaining agreement had been violated by




__________

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


[CMS] when it terminated the barge operation5 and handled  the business
with the tanker staffed by SIU members." Id.  The ALJ ordered CMS to
furnish the Union a copy of the  SIU arbitration award and "all
information requested by the  Union on and after November 21, 1997,
concerning the SIU  arbitration award." Id. at 10. On November 10,
1999 the  NLRB issued an order affirming the ALJ's rulings, findings 
and conclusions. CMS petitioned for review by this court and  the NLRB
cross-petitioned for enforcement.


II. Analysis


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


The duty to bargain collectively, imposed upon an employer  by section
8(a)(5) of the National Labor Relations Act, in- cludes a duty to
supply the union with " 'requested informa- tion that will enable [the
union] to negotiate effectively and to  perform properly its other
duties as bargaining representa- tive.' " Oil, Chem. & Atomic Workers
Local Union v. NLRB,  711 F.2d 348, 358 (D.C. Cir. 1983) (quoting
Local 13, Detroit  Newspaper Printing and Graphic Communications Union
v.  NLRB, 598 F.2d 267, 271 (D.C. Cir. 1979)); see Detroit  Edison Co.
v. NLRB, 440 U.S. 301, 303 (1979); NLRB v.  Acme Indus. Co., 385 U.S.
432, 437 (1967). The obligation to  furnish relevant information is "
'rooted in recognition that  union access to such information can
often prevent conflicts  which hamper collective bargaining,' and it
undoubtedly ex-




__________

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


tends to data requested in order properly to administer and  police a
collective bargaining agreement as well as to requests  advanced to
facilitate the negotiation of such contracts." Oil,  Chem. & Atomic
Workers Local Union, 711 F.2d at 358  (quoting Florida Steel Corp. v.
NLRB, 601 F.2d 125, 129 (4th  Cir. 1979)). "That is not to say,
however, that the Act  requires an employer to lay open its books at
any or every  union request; certain requirements must be met."
General  Elec. Co. v. NLRB, 916 F.2d 1163, 1167-68 (7th Cir. 1990). 
"Each case must turn upon its particular facts." NLRB v.  Truitt Mfg.
Co., 351 U.S. 149, 153-54 (1956) ("The inquiry  must always be whether
or not under the circumstances of  the particular case the statutory
obligation to bargain in good  faith has been met.").


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


"Certain types of information are 'so intrinsic to the core of  the
employer-employee relationship' that they are presump- tively
relevant. 'Conversely, when the requested information  is not
ordinarily pertinent to a union's role as bargaining  representative,
but is alleged to have become pertinent under  particular
circumstances, the union has the burden of proving  relevance before
the employer must comply.' " NLRB v.  George Koch Sons, Inc., 950 F.2d


(citations omitted). Information about non-unit employees is  not
ordinarily pertinent to a union's role as a bargaining 
representative. See Oil, Chem. & Atomic Workers Local  Union, 711 F.2d
at 359 (" '[W]hen information not ordinarily  pertinent to collective
bargaining, such as information con- cerning nonunit employees, is
requested by a union, relevance  is not assumed.' ") (quoting Press
Democrat Publishing Co. v.  NLRB, 629 F.2d 1320, 1324 (9th Cir.
1980)); George Koch  Sons, Inc., 950 F.2d at 1331 ("[O]ther courts of
appeals have  held that a union's request for information about
employees  with whom a union does not have a bargaining relationship
is  not presumptively relevant.") (emphasis original). Likewise, 
information pertaining to the operations of employers with  whom the
union has no bargaining relationship is not ordi- narily relevant. See
George Koch Sons, Inc., 950 F.2d at  1331.


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




__________

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


Oil, Chem. & Atomic Workers Local Union, 711 F.2d at 360  (citations
omitted).


The Board ruled that the Union affirmatively explained the  relevance
of the SIU arbitration award. It first noted that an  unnamed CMS
official informed the Union's national presi- dent that the SIU award
was a product of arbitration. See  Crowley Marine Services, Inc., 329
N.L.R.B. No. 92, at 8  (Nov. 10, 1999). Next, the Board found that CMS
failed to  inform the Union of the pending change in operation of
Barge  450-6 and that the SIU arbitration award demonstrated that  it
had provided information to another union. See id. Third,  the Board
opined that any information about the contract  under which the SIU
pursued its grievance against, presum- ably, CT&T 7 would help the
Union negotiate changes in its  collective bargaining agreement with
CMS. See id. at 8-9.  Next, the Board hypothesized that since the
Union had a duty  to police its collective bargaining agreement with
CMS, the  fact that CPTI was CMS's "affiliate" alerted the Union as to
 whether it had a claim under the work preservation clause of  its own
agreement. See id. Finally, the Board thought that  the SIU
arbitration award would assist the Union in deciding  "whether to make
a claim for the work." Id. at 9 (explaining  that "the information may
be later used for subsequent work  demands").


Although we give "great weight" to the Board's determina- tion on the
relevance of requested information, Oil, Chemical  & Atomic Workers
Local Union, 711 F.2d at 360, our review  is not " 'a mere rubber
stamp substituting judicial abdication  for judicial review. It is
imperative that the reviewing court  examine all of the evidence in
context to ensure that the  Board's findings fairly and accurately
represent the picture  painted by the record.' " General Elec. Co.,
916 F.2d at 1168  (quoting NLRB v. Harvstone Mfg. Co., 785 F.2d 570,
574-75  (7th Cir. 1986)); see Universal Camera Corp. v. NLRB, 340 
U.S. 474, 488 (1951); Time Warner Cable v. NLRB, 160 F.3d  1, 3 (D.C.
Cir. 1998). More important, we must examine the 




__________

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


reasons the Union proffered at the time of the demand for the 
information. See George Koch Sons, Inc., 950 F.2d at 1330;  General
Elec. Co., 916 F.2d at 1169; NLRB v. A.S. Abell Co.,  624 F.2d 506,
513 n. 5 (4th Cir. 1980) ("[W]e deal with the fact  situation
presented to the Company at the time it acted.").  " '[O]nly after an
employer has had an opportunity to consid- er the basis for a union's
information or bargaining demand  can the employer violate the NLRA by
rejecting the de- mand.' " Hertz Corp. v. NLRB, 105 F.3d 868, 873 (3d
Cir.  1997) (quoting NLRB v. United States Postal Svc., 18 F.3d  1089,
1102 n.7 (3d Cir. 1994)). The court must look at the  record as a
whole as it existed when the Union made its  demand. See United States
Testing Co., 160 F.3d at 19  ("[C]ontext is everything."); General
Elec. Co., 916 F.2d at  1170.


Viewing the record at the time of the IBU's demand, I fail  to find any
evidence to support the Board's conclusion that  the Union
affirmatively and timely explained the relevance of  its request. Not
one of the facts and theories of relevance  posited by the Board was
made known to CMS, much less  communicated by the Union at the time of
its demand.  Before filing the unfair labor practice charge, the Union
had  made only one request for the SIU arbitration award, in the 
November 21, 1997 letter 8 to CMS, and the letter constitutes  the
Union's sole attempt to obtain the information before  filing an
unfair labor practice charge.9 The letter gave no  reason for the
IBU's request. See supra at 5. The Board,  however, cannot supply
reasons nunc pro tunc and post litem 




__________

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


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


motam to conclude that the Union met its burden to affirma- tively
demonstrate the relevance of the SIU arbitration award  at the time it
requested the information. Even the February  13, 1998 "formal
demand," made after the unfair labor prac- tice charge was filed, did
not give the reasons supplied years  later by the Board.10


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


The Board pointed to the IBU's February 13, 1998 letter as  adequately
alerting CMS to the relevance of the SIU arbitra- tion award because
the letter stated that the award would 




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


provide information about the contract under which the arbi- tration
arose. Relying solely on the Board's spare discussion  of that
letter,11 the per curiam opinion concludes that "[s]ub- stantial
evidence supports the Board's determination that the  Union
communicated to Crowley that the arbitration award  was reasonably
relevant to pending and possible future griev- ance claims." The
opinion glosses over the issue of timeli- ness; it ignores the fact
that the February 13, 1998 letter was  written almost three months
after the Union made its request  and four days after it filed an
unfair labor practice charge.  Even the Union's February explanation,
however, failed to  alert CMS to its "grievance," that is it was
considering a  claim under the work preservation clause.12 Likewise,
while  the Union heard of the SIU arbitration award from someone 




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


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


at CMS, I fail to see how this fact made the substance of the  award
relevant. Finally, the Union's assertion that it had no  notice of
Tosco's decision not to renew the Barge 450-6 time  charter is
irrelevant to whether the Union disclosed its rea- sons establishing
relevance. Thus, I fail to find anything  approaching substantial
evidence in the record showing that  the Union met its burden to
timely and affirmatively explain  the relevance of its request.


Accordingly, I dissent.