ETHICON, A JOHNSON & JOHNSON CO.

National Labor Relations Board - Board Decisions

May 5, 2014

360 N.L.R.B. 827 (N.L.R.B. 2014)

ETHICON, A JOHNSON & JOHNSON CO. 827
360 NLRB No. 104
Ethicon, A Johnson & Johnson Co. and Local 630,
New York New Jersey Regional Joint Board,
Workers United, SEIU. Case 22–CA–089085
May 5, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On May 28, 2013, Administrative Law Judge William
Nelson Cates issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, the Respondent filed an answering
brief, and the Charging Party filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The complaint is dismissed.
Lisa D. Pollack, Esq., for the Acting General Counsel.1
Francis X. Dee, Esq. and Mark E. Williams, Esq., for the Re-
spondent.2
Serge Ambroise, Esq., for the Charging Party.3
DECISION
STATEMENT OF THE CASE
WILLIAM NELSON CATES, Administrative Law Judge. This
case was tried in Newark, New Jersey, on March 13, 2013.4
The Union filed a charge initiating this matter on September 12,
and the Acting General Counsel issued a complaint and notice
of hearing (the complaint) on January 30, 2013. The Govern-
ment alleges the Company violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act) by failing to furnish

1 In assessing the relevance of requested information a union claims
is necessary to investigate whether an employer has violated a collec-
tive-bargaining agreement, “the Board does not pass on the merits of
the union’s claim . . . thus, the union need not demonstrate that the
contract has been violated in order to obtain the desired information.”
Island Creek Coal Co., 292 NLRB 480, 487 (1989), enfd. mem. 899
F.2d 1222 (6th Cir. 1990). To the extent the judge’s analysis can be
interpreted as placing a heavier burden on the union under such circum-
stances, we do not rely on it.
2 Nothing in our decision today precludes the Union from renewing
its request for information that is relevant and necessary to successor
contract negotiations. See Connecticut Yankee Atomic Power Co., 317
NLRB 1266, 1268 fn. 17 (1995).
1 I shall refer to counsel for the Acting General Counsel as counsel
for the Government and to the National Labor Relations Board (the
Board) as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Com-
pany and I shall refer to the Respondent as the Company.
3 I shall refer to counsel for the Charging Party as counsel for the
Union and I shall refer to the Charging Party as the Union.
4 All dates are 2012, unless otherwise indicated.
information requested by the Union related to subcontracting
and the filling of “open” maintenance jobs at the Company’s
Somerville, New Jersey facility. The Company, in its answer to
the complaint, and at trial, denies having violated the Act in any
manner set forth in the complaint. The Company asserts the
complaint is barred by the terms of the party’s applicable col-
lective-bargaining agreement and that the requested infor-
mation is not presumptively relevant because it does not pertain
to bargaining unit employees nor is it otherwise relevant. Stat-
ed differently the Company asserts information pertaining to
subcontractor employees is not presumptively relevant and that
the Union cannot, and did not, show relevance here.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. I carefully observed the demeanor of
the witnesses as they testified and I rely on those observations
here. I have studied the whole record,5 and based on the de-
tailed findings and analysis below, I conclude and find the
Company did not violate the Act in any manner alleged in the
complaint.
FINDINGS OF FACT
I. JURISDICTION, SUPERVISORY/AGENCY STATUS, LABOR
ORGANIZATION, AND UNIT
The Company is a corporation with an office and place of
business in Somerville, New Jersey, where it is engaged in the
manufacture and nonretail sale of sutures and other innovative
products for wound closure, general surgery, bio-surgery,
women’s health, and aesthetic medicine. Annually, the Com-
pany, in conducting its operations, sales and ships from its
Summerville, New Jersey facility, goods valued in excess of
$50,000 directly to points outside the State of New Jersey. The
parties admit, and I find, the Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
It is admitted Company Human Relations Director Joe
Strauss (HR Director Strauss or Strauss), at all times material,
acted as an agent of the Company within the meaning of Sec-
tion 2(13) of the Act, and, I so find. It is undisputed Gene
Kaniecki (Union Representative Kaniecki or Kaniecki), at all
times material, served as a representative for the Union in its
dealings with the Company. Carlos Gonzalez has, at all times
material, served as the Company’s New Jersey facilities man-
ager (Facilities Manager Gonzalez or Gonzalez) and David
Durham, a 15-year unit employee, is the local union president.
The parties admit, and I find, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
It is admitted “All employees within the unit certified by the
National Labor Relations Board on February 19, 1944 and Oc-
tober 29, 1954 employed by the Employer at its Somerville, NJ
facility” constitutes a unit (the unit) appropriate for the purpos-
es of collective bargaining within the meaning of Section 9(b)

5 I grant the Company’s posttrial motion to supplement the record to
include a new copy of GC Exh. 8. The original GC Exh. 8 contained
no date stamps, page numbers, nor was it in chronological order.
Counsel for the Acting General Counsel and union counsel consent to
the relief sought.
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Act and that at all times since February 19, 1944, and
October 29, 1954, based on Section 9(a) of the Act, the Union
has been the exclusive collective-bargaining representative of
the unit.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Brief Background
The parties’ most recent collective-bargaining agreement is
effective by its terms from June 2009 to June 2014, and auto-
matically renews for successive terms of 1 year unless either
party gives 60 days notice prior to the expiration date its inten-
tion to terminate the agreement at the end of the then, current
term. There are approximately 1200 employees who work in
the 3-city block size facility with approximately 50 of those
currently unit members. Union Representative Kaniecki ex-
plained that in addition to unit manufacturing employees there
are unit employees that perform facilities maintenance in elec-
trical, carpenter, pipefitters, plumber, painter, and instrument
crafts.
B. Issues and Related Facts
It is specifically alleged in the complaint that on or about
May 15, the Union requested in writing, information concern-
ing subcontracting and the filling of “open” maintenance jobs at
the Company’s Somerville, New Jersey facility. It is further
alleged the Company, through HR Director Strauss, in writing
on or about June 5, failed and refused to provide the requested
information.
The parties current collective-bargaining agreement contains
provisions addressing or relating to subcontracting. There was
a negotiated June 15, 2009 letter, “Ethicon Subcontracting,”
setting forth “the procedure to be followed when sub-
contracting work” at the Company.
Article XIX of the parties collective-bargaining agreement
“Employer Prerogatives” section A, provides in part, that the
Company, by exercising any one or more of its “Exclusive
Prerogatives,” as defined and limited in section B “shall not at
any time be subject to collective bargaining, or to review in
accordance with the grievance and arbitration procedure pro-
vided in this Agreement.” Section B sets forth a category of
“Exclusive Prerogatives” including, at (6), “the establishment
of new units, the closing or curtailment of old units; the amount
of work to be subcontracted; provided, however, that no such
action shall be taken to discriminate against, or avoid bargain-
ing with the Union.” Additionally, at B(16) of the “Exclusive
Prerogatives” the Company retains the exclusive right to “ap-
propriations and expenditure of funds in whatever amount and
for whatever purpose.”
The negotiated side letter dated June 15, 2009, sets forth, as
noted above, “the procedure to be followed when sub-
contracting work” at the Company and more specifically the
“policy” to be followed “in handling of sub-contracting of
maintenance work.” The policy follows:
It is the objective of the Company to staff Plant Engineering
and Site Management so that we can maintain our plant and
equipment. All new work, general construction and peak
maintenance loads will normally be sub-contracted. It is on
this basis we establish our manpower needs, and once these
needs are established, that workforce is provided with a forty-
hour week and usually with reasonable overtime. It is agreed
that the Company has the inherent right to sub-contract.
The side letter also sets forth a procedure applicable in all
cases “in order to communicate to the Union matters relating to
sub-contracting of maintenance work.” The stated purpose “is
to expedite all such matters in a friendly and practical way.”
The procedures are:
A sub-contracting committee will be appointed. This com-
mittee will consist of the Plant Engineer or his designated rep-
resentative, together with such other supervisors as he may
require, the steward and assistant steward of the Maintenance
Department, and a representative of each craft. The duties of
this committee will be to consult with the Plant Engineer on
all matters pertaining to sub-contracting of maintenance work.
Their advice and recommendations will be carefully consid-
ered.
The Sub-contracting Coordinator will meet with the employee
sub-contracting committee to discuss any problems or con-
cerns relating to sub-contracting. The monthly meeting will
also be used to communicate any issues, tends and develop-
ments relating to sub-contracting.
When the Company intends to subcontract work defined with
prints, renovation or facilities maintenance, the Sub-
contracting Coordinator will review the details of the job with
the involved craft representative. Work defined with prints
and facilities maintenance shall be broken down into hours
required of each involved craft. In the case of facilities reno-
vation, the completion date and a breakdown of the job into
hours for each craft will be communicated if available. In all
cases where agreement is reached, the Sub-contracting Coor-
dinator will proceed with the sub-contracting. In those in-
stances where no agreement can be reached, and if the Union
desires, this decision will be reviewed promptly at a special
Step IV meeting with the Plant Manager, or a designated rep-
resentative, and his decision will be final. If, however, the
Union requests a sub-contracting review meeting, such meet-
ing will be held as soon as possible. The Company’s decision
will be final.
When the Company intends to sub-contract design and build
work not defined with prints, and new construction, the Plant
Engineer will inform the Union of the work to be sub-
constructed when known.
The procedure concludes, “It is understood that all matters
relating to this policy are not arbitrable.”
Union Representative Kaniecki acknowledged the parties
have an established procedure for discussing subcontracting.
Kaniecki said, though invited, he had not attended the monthly
subcontracting meetings “for many years” but had actually
attended such meetings in the past. Kaniecki explained repre-
sentatives from the Union and Company meet and the Compa-
ny presents work orders, or vouchers, regarding certain work
needed to be subcontracted, along with a brief description of
the work to be performed. Kaniecki explained that designated
ETHICON, A JOHNSON & JOHNSON CO. 829
union stewards, and elected union representatives, have diffi-
culty obtaining information at the meetings “because there are
so few people working in the bargaining unit that they cannot
attend the meetings.”
Company Facilities Manager Gonzalez testified that at the
beginning of each year the Company “ask[s] for a representa-
tive from each of the craft groups to be a member of that [sub-
contracting] committee.” All members have computers and the
Company notifies each committee member, including union
officials, of the date and time for the meetings. Gonzalez said
many times the local union president did not attend the meet-
ings but the stewards “frequently” attended. Gonzalez said the
purpose of the meetings was to allow the parties to discuss
issues or trends associated with subcontracting and provided
the Company an opportunity to present the Union with the
“jobs that they see are going to be subcontracted.” Company
staff engineer Scott Hinkle testified one such issue discussed
resulted in an analysis demonstrating the Company currently
subcontracts facility maintenance at an equivalent of one full-
time employee (approximately 2000 work hours) per year.
Local Union President Durham, however, explained he had
observed 15 to 20 employees daily that were not unit employ-
ees, but was not always sure which were doing unit work, or
which, if any, were performing “new construction work.”
Durham stated those he observed included subcontractor “stop
gap” employees performing work the 11 terminated unit em-
ployees had performed.
The Company, per the agreement, normally subcontracts all
new work, general construction, and peak maintenance work
loads. Union Representative Kaniecki defined “peak mainte-
nance loads” as “after all unit members have been polled for
hours, and those hours have been exhausted the Company can
then begin subcontracting.” Kaniecki, however, acknowledged
the word “polling” is not mentioned in the subcontracting pro-
visions of the collective-bargaining agreement. Company Re-
gional Facilities Manager Gonzalez described peak mainte-
nance work as arising with little or no advance notice resulting
from, for example, an emergency or unplanned situation or
events or unplanned employee(s) absence(s). Gonzalez stated it
would also include work that could not wait but rather needed
to be taken care of immediately. Gonzalez explained “new
work,” “would be considered capital type work” and gave as an
example “a roof replacement.” Gonzalez described “general
construction” simply as a general description for facility
maintenance and could involve “specialty type skilled work”
not inherently part of unit work such as fencing an area or pav-
ing a parking lot.
Facilities Manager Gonzalez defined “stop gap” employees
as subcontractor employees filling in here for the 11 bargaining
unit employees terminated by the Company for “stealing time”
and “not being productive.” Gonzalez said it took “the entire
year of 2012” for the Company to hire 6 new unit employees to
replace the 11 terminated unit employees. It is undisputed the
Company terminated 11 unit employees in December 2011 for
“stealing time.” What it appears happened was one employee
would clock in multiple employees as though they were at work
when that was not the case.
On March 15, Union Steward Frank Dumbreski, at Union
Representative Kaniecki’s request, filed a grievance (Grievance
D-1408), concerning the 11 vacant unit positions and the
nonposting of the job vacancies. Kaniecki asked Dumbreski to
file the grievance because “at the time we had 11 people which
were terminated for [theft] of service and it was indicated to me
through various conversations with a host of company repre-
sentatives that many of those jobs may not be filled or might
not be filled.” Kaniecki said he also caused the grievance to be
filed because of concerns regarding subcontracting. Kaniecki
added “subcontracting was literally running amuck at the Ethi-
con facility and we were losing, and the bargaining unit was
being eroded as a result.” Grievance D-1408 was denied by
Maintenance Supervisor Ed Tackach and thereafter withdrawn
by the Union. In that regard, Kaniecki first testified on direct
and cross-examination that grievance D-1408 was still pending,
however, after additional cross-examination and after being
shown a memorandum he had sent on July 24, to HR Director
Strauss local union officials and union counsel in which he
wrote he was “withdrawing Grievance D1408,” did he
acknowledge he had withdrawn grievance D-1408. Kaniecki
stated the Union would “pursue our concerns pertaining to job
vacancies and the greater implications of subcontracting of
Ethicon craft maintenance work through the National Labor
Relations Board.”
Kaniecki, in a letter of May 15, requested the Company pro-
vide certain specific information to the Union because the Un-
ion had “filed a grievance (D1408) regarding subcontracting
and the filling of ‘open’ maintenance jobs” at the Company.
The request covered records from December 1, 2011, until May
15. The Union explained it needed the information; “In order
to properly represent our members, ensure the Company’s
compliance with its obligations under the Collective Bargaining
Agreement, State and Federal Laws, and to fully investigate the
case.” The Union, in its letter further explained the requested
information concerned “maintenance subcontractors working at
the Ethicon Somerville campus.” At trial Kaniecki testified he
needed the information not only for grievance D-1408, but, to
“glean information regarding subcontracting and filling those
[11] positions” and to see if that work should be in the unit.
Kaniecki explained he also needed the information to “put to-
gether a comprehensive plan for negotiating with the Company
during bargaining.” Kaniecki testified he chose the time period
of December 1, 2011, to May 2012, because “December 1,
2011 was around the time the 11 people were terminated for
theft of service; so I used that as my base for the information as
it was associated . . . directly . . . with the grievance, D-1408.”
Kaniecki further testified he needed the requested information
because “we just lost 11 people out of a very small facility’s
maintenance group that services a very large building, and I
wanted to find out exactly who was doing these jobs . . . and
put together a scenario” for filling those jobs.
Specifically, the Union, in its May 15 letter, requested the
following information concerning six named subcontractors6
performing work at the Company:

6 The six companies were: P. Lepore and Sons Incorporated; Elec-
trical Installation and Design Incorporated; PJM Mechanical Contrac-
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. The exact nature (type) of work being performed.
2. The number of contractors working at the Ethicon campus.
3. The total hours worked (average per week).
4. Labor rates per employee. This should include all forms of
compensation.
5. All contracts and agreements between this firm/com-
pany/organization and Ethicon Inc.
On June 5, HR Director Strauss responded, in writing, to the
Union’s May 15 information request. Strauss acknowledged
the information request concerned “maintenance subcontrac-
tors” pertaining to grievance 1408 and noted the Company had
responded to grievance 1408. Strauss indicated the Company,
without waiving its right to contest the Union’s entitlement to
subcontracting documents, was providing “information con-
cerning subcontracting year-to-date in 2012.” Strauss informed
the Union the Company had concluded some of the requested
information “is not presumptively relevant” because the parties
collective-bargaining agreement clearly and unequivocally
permitted subcontracting. Strauss explained that pursuant to
the parties collective-bargaining agreement subcontracting is
recognized as an “inherent right” and “not arbitrable” under
their current or prior collective-bargaining agreements. Strauss
asserted some of the requested information would be burden-
some to collect while other portions were confidential in nature.
Strauss addressed the types of information the Union sought for
the vendors and what information the Company was, by at-
tachment,7 providing. The Company’s specific responses fol-
lows:
1. The exact nature (type) of work being performed.
This information can be found in the attached subcontracting
notification documents that have been attached. Additional
information can also be found in the subcontracting commit-
tee meeting minutes that have been attached.
2. The number of contractors working at the Ethicon cam-
pus.
The Company issues Purchase Orders (PO) to third-party
vendors for subcontracting to be conducted on the Ethicon,
Somerville campus. As has been communicated previously,
in the 2007 and 2009 requests for information, the PO is the
contract between Ethicon, and the contractor. The Company
does not correlate purchase orders with subcontracting notic-
es, as this has never been a requirement for subcontracting.
Any attempt to correlate this information would be specula-
tive at best. The third-party vendors determine the number of
contractors for each particular PO required to complete pro-
jects. The Company does not track the number of contractors

tors; Cyma Builders and Construction Managers LP; United Technolo-
gies Carrier; and, Monsen Engineering Company.
7 In the 100 plus pages of attachments the Company provided: actu-
al hours worked by CYMA Builders and Construction Managers LP
and Electrical Installation and Design Incorporated; 41 pp. of subcon-
tractor committee meeting emails with attachments; 59 pp. of notifica-
tions of subcontracting distributed to the subcontracting committee and
3 pp. of seniority lists of unit employees.
for each PO as this is determined at the discretion of the third-
party vendor.
3. The total hours worked (average per week).
The Company issues Purchase Orders (PO) to third-party
vendors for subcontracting to be conducted on the Ethicon,
Somerville campus. As has been communicated previously,
in the 2007 and 2009 requests for information, the PO is the
contract between Ethicon, and the contractor. The Company
does not correlate the PO with subcontracting notices, as this
has never been a requirement for subcontracting as per the
collective bargaining agreement. Any attempt to correlate this
information would be speculative at best. The third-party
vendors determine the total hours worked for each particular
PO required to complete projects. The Company does not
tract the total hours worked for each PO as this is determined
at the discretion of the third-party vendor.
4. Labor rates per employees.
The Company issues Purchase Orders (PO) to third-party
vendors for subcontracting to be conducted on the Ethicon,
Somerville campus. As has been communicated previously,
in the 2007, and 2009 requests for information, the PO is the
contract between Ethicon, and the contractor. The Company
does not correlate purchase orders or contractor labor rates
with subcontracting notices, as this has never been a require-
ment for subcontracting as per the collective bargaining
agreement. Any attempt to correlate this information would
be speculative at best. The third-party vendors determine
their labor rates. The Company does not tract the labor rates
for employees of contractors for each PO as this is determined
at the discretion of the third-party vendor.
5. All contracts and agreements between this firm/com-
pany/organization and Ethicon, Inc.
This information is proprietary and confidential to the Com-
pany. In addition, it is burdensome to collect.
Based on the unique circumstances posed by the terminations
that occurred in December 2011, there was a requirement to
provide additional Crafts support. The Company is prepared to
share the following detailed information for this period of time:
(i) A total subcontracting notification of 3,300 hours was pro-
vided to the union. Of these estimated hours, a total of 2,936
were used. These labor hours were provided through three
contractors: Electrical Installation and Design Incorporated,
PJM Mechanical Contractors, and CYMA Builders and Con-
struction Managers LP. (Please see PDF File of actual hours
provided by CYMA and EID).
(ii) With regard to specialty work (the annual subcontracting
notification of work customarily performed by contractors
due to specialty skills, etc.), a total of 2,228 hours were noti-
fied at the start of the 2012. This notification captures the
work performed by United Technologies Carrier, and Monsen
Engineering Company.
(iii) The balance of the subcontracting notifications, account
for Peak Demand and Capital Incorporated. The details and
ETHICON, A JOHNSON & JOHNSON CO. 831
nature of that work, as well as estimated hours, are provided
in the attached subcontracting notifications.
Union Representative Kaniecki acknowledged receiving cer-
tain information, including a seniority list, from the Company
in response to his request but states the Union has never been
provided information pertaining to the exact nature of the work
being performed by the subcontractors; the exact number of
hours worked by subcontractor employees nor the labor rates
paid subcontractor employees; nor, the actual contracts between
the vendors (subcontractors) and the Company.
Gonzalez testified the Company provided all information re-
quested by the Union except information related to costs asso-
ciated with subcontracting. The Company asserts it did not
provide information related to the costs of subcontracting, such
as specific labor rates and/or contracts and agreements between
the Company and its subcontractors, because, it asserts, such
information is not relevant. Facilities Manager Gonzalez said
costs have never been a factor in determining whether, or not,
to subcontract work, nor, has costs been a factor in deciding
whether to use bargaining associates verses subcontractor em-
ployees. Gonzalez explained costs are not a factor because the
Company has a situation where it “need[s] to do [a] job” or
“accomplish the task at hand” and costs, Gonzalez added, “is
only of concern in the event” “we have multiple bids” where
the Company is afforded the option to “get the most efficient
among the contractors.” Gonzalez testified the Company has
never provided the Union, although previously requested, with
subcontracting costs, wage rates, or the actual contracts with
the vendors. Gonzalez indicated the Company does not provide
the Union with the vendor contracts because, among other rea-
sons, it is unfair to the vendors and takes away the vendors
competitive advantage. Gonzalez contends the Company does
provide the nature of the work to the Union when it provides
the Union with the subcontracting notifications at the monthly
subcontracting meetings. Gonzalez explained that in the sub-
contracting notifications are the type(s) of work the Company
intends to subcontract as well as an estimate of man hours and
crafts needed.
Facilities Manager Gonzalez testified the number of subcon-
tractor employees working on site or utilized by a subcontractor
on a job was not provided because, “in subbing out this type of
work routinely what we do is just get a price to do the task at
hand. So, how the contractor chooses to formulate that price
and how they choose to use labor is strictly up to how they
want to execute that particular task.” Gonzalez explained the
Company did not provide labor rates for “non-stop gap” work
because it treated such information as confidential between the
Company and its vendors and to make such information public
would not be appropriate. Gonzalez further explained the
Company does not have labor rates for the subcontractors be-
cause, “We can’t tell what is the actual labor rate or the fee
being paid to the associate of the contractor.” The work, ac-
cording to Gonzalez, “is based on the task at hand, it’s a full
price and how the contractor chooses to execute that, that’s his
call. It includes materials for the job and doesn’t delineate any
labor hours.”
As to “stop-gap” work, which Gonzalez described as the
Company needing a laborer to help perform day-to-day work,
as opposed to someone on a special project, the Company has
and does provide the Union, the hourly rates for those subcon-
tractor employees. Gonzalez added that the hourly price the
subcontractor provides is “full loaded” in that it includes the
subcontractor’s level of profit, overhead, insurance, and related
items. The information does not specifically indicate what a
subcontractor employee is actually paid.
While the essential facts here are, for the most part, not in
dispute; it is nonetheless helpful to briefly speak to credibility
determinations. I am persuaded Company Facilities Manager
Gonzalez testified truthful. I was impacted by impressions I
formed as I observed him testifying. He exhibited an excellent
recall of facts, and, on exhibits he was questioned about or
references were made to, support the accuracy of his testimony.
I decline to rely on the testimony of Union Representative
Kaniecki that is contradicted by other witness(es) or is in con-
flict with documentary evidence.
III. ANALYSIS, DISCUSSION, AND CONCLUDING FINDINGS
The issue here, is, as alleged in the complaint, whether the
Company violated Section 8(a)(5) and (1) of the Act, by since,
on or about, June 5, failing and refusing to furnish the Union
information, requested on May 15, concerning subcontracting
and the filling of “open” maintenance jobs at the Company’s
Somerville, New Jersey facility. The Union’s May 15 request,
from which the complaint allegations are drawn, states in perti-
nent part, “The Union has filed a grievance (D1408) regarding
subcontracting and the filling of ‘open’ maintenance jobs at the
[Company] . . . . The information requested is concerned with
‘maintenance subcontractors’ working at the [Company].”
Pursuant to Section 8(a)(5) of the Act, an employer is obli-
gated to provide the union, upon request, relevant information it
needs to properly perform its duties as the employees’ bargain-
ing representative. NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967) (citing NLRB v. Truitt Mfg. Co., 351 U.S. 149,
152 (1956)). This includes a decision by the union to file or
process a grievance. Beth Abraham Health Services, 332
NLRB 1234 (2000). The duty to supply information turns upon
the circumstances of the particular case. Detroit Edison v.
NLRB, 440 U.S. 301, 303 (1979). When the union’s requested
information pertains to employees within the bargaining unit,
the information is presumptively relevant and the employer
must provide it. Where the requested information is not pre-
sumptively relevant, it is the union’s burden to demonstrate
relevance. Disneyland Park, 350 NLRB 1256, 1257 (2007). A
union satisfies its burden by demonstrating a reasonable belief,
that is also supported by objective evidence, that the requested
information is relevant. Disneyland Park, supra. The Board in
Disneyland Park, supra at 1258 stated:
Information about subcontracting agreements, even those re-
lating to bargaining unit employees’ terms and conditions of
employment, is not presumptively relevant. Therefore, a un-
ion seeking such information must demonstrate its relevance.
(Case citations omitted.)
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board uses a broad, discovery-type standard in determin-
ing the relevance of requested information. Potential or prob-
able relevance is sufficient to give rise to an employer’s obli-
gation to provide information. Id. To demonstrate relevance,
the General Counsel must present evidence either (1) that the
union demonstrated relevance of the non-unit information or,
(2) that the relevance of the information should have been ap-
parent to the Respondent under the circumstances. See Alli-
son Co., 330 NLRB 1363, 1367 fn. 23 (2000); Brazos Electric
Power Cooperative, Inc., 241 NLRB 1016, 1018–1019
(1979), enfd. in relevant part 615 F.2d 1100 (8th Cir. 1980).
Absent such a showing, the employer is not obligated to pro-
vide the requested information
Here, the Government concedes information about subcon-
tracting agreements including those relating to bargaining unit
employees’ terms and conditions of employment do not consti-
tute presumptively relevant information. Thus, a union seeking
such information must demonstrate its relevance.
Before accessing whether the Union here met its burden it is
helpful to review what information was actually provided to the
Union by the Company in response to the Union’s May 15
information request. The Company provided the Union in ex-
cess of 100 pages of information related to subcontracting at its
facility for pertinent times. Included in the provided infor-
mation were the notices of subcontracting and meeting minutes
related thereto. This information was distributed to all, both
Company and Union, subcontracting committee members.
Spreadsheets from vendors (subcontractors) were provided
where the work being performed was of a “stop-gap” nature.
The Company also provided the unit seniority list asked for by
the Union in its June request for information. Work request
notifications distributed at the subcontracting committee meet-
ings, and provided to the Union pursuant to the Union’s May
15 request, specifically included: the name of the requesting
official; each request “id” number; the requestor’s email ad-
dress, department, and telephone number; the location where
the work was to be performed; the type of work requested; the
craft skill(s) required; the date for the work; the reasons for the
work; and, an indication whether the work was “capital” or
“non-capital;” along with a description of the work to be per-
formed and an estimated number of work hours to accomplish
the task.
Union Representative Kaniecki, specifically identified in-
formation he concluded the Company had not provided in re-
sponse to his May 15 request. Those items are: (1) the exact
nature of the work being performed by the subcontractors; (2)
the exact number of hours worked by or the labor rates paid to
subcontractor employees; and, (3) the actual contracts between
the vendors (subcontractors) and the Company.
I find, as explained hereinafter, the Company was not obli-
gated to provide the information the Union contends was not
provided. The relevance of the nonunit information was not
established and the information’s relevance was not apparent to
the Company from the surrounding circumstances.
I am persuaded no credible evidence was presented that the
Company’s actions related to subcontracting violated the par-
ties collective-bargaining agreement. The Company had the
“exclusive” and “inherent right” to “subcontract” work; to es-
tablish the “amount of work to be subcontracted;” and to the
“expenditure of funds in whatever amount and for whatever
purpose” it deemed appropriate and that subcontracting “shall
not at any time be subject to collective bargaining, or review in
accordance with the grievance and arbitration procedure pro-
vided in this Agreement.” The Union agreed that “new work,”
“general construction,” and “peak maintenance loads” will
“normally be sub-contracted” and there is no showing the
Company violated the parties agreement by subcontracting any
work.
The Union contends the exact nature of the work to be per-
formed was not set forth in the subcontract notifications pro-
vided to the Union; however, the evidence establishes other-
wise. For example, the contractor notification of December 7
describes the work as moving furniture and then elaborates the
work entails providing a desk or table in the contract admin-
istration cage located in the old cafeteria basement. Other con-
tract notifications describe various work assignments to be
performed by subcontractors as: installing a window in a door
in a specifically identified office; constructing a wall with glass
inserts dividing a specifically described room into two rooms;
striping wall paper and painting a specific area of the facility; a
pipefitter was needed to repair a burner on a hot water heater;
repairing a specific leaking water line in a specific location;
making the rear door on the acid dock functional and removing
old fencing on the outer door platform; performing parking lot
line striping for parking stalls, handicap parking, visitor park-
ing, yellow cross hatching and directional arrows; and, numer-
ous emergency repair subcontractor notifications that specifi-
cally described items or equipment to be repaired as well as
annual subcontracting of facility repairs described specifically
and in detail in the subcontractor notifications. The fact Union
Representative Kaniecki may not have fully reviewed the sub-
contractor notifications provided the Union, or, the fact the
Union did not always send or provide a representative at the
subcontractor meetings does not require a different conclusion
here. The information that was provided set forth, in detail the
type work to be performed. Simply stated the Union has been
provided the exact nature of the work to be performed by sub-
contractors.
Information regarding the exact number of subcontractor
employees on site and the exact rates they are paid are inextri-
cably intertwined and I address together the obligation to pro-
vide such information. The Company does not consider or
track the number of employees a subcontractor utilizes to com-
plete a task or project, but rather, pays a price for the comple-
tion of a task or job and leaves to the subcontractor’s discretion
the number of employees it will utilize to accomplish the task.
The Company does not track or keep records of the number of
subcontractor employees on its facility. The same is true for
total hours worked by subcontractors per week. The Company
does not determine or keep the total hours worked by subcon-
tractors per week because hours worked is left to the subcon-
tractors discretion because the Company’s interest is in a com-
pleted task, job, or project. The Company does keep, and pro-
vided the Union, hours worked when the subcontractors per-
formed “stop-gap” work where worker(s) simply filled in for
ETHICON, A JOHNSON & JOHNSON CO. 833
absent regular employee(s). With respect to labor rates, again
the credited evidence establishes the Company does not keep,
track, or have labor rates the subcontractor employees are paid
because the contracts or purchase orders with subcontractors
are for specific jobs, projects or tasks to be accomplished for a
price, and that price includes materials, insurance, profit, and
related items, and, the Company does not break out the labor
rates the sub-contractors pay its employees. These requests all
center around costs and the evidence establishes costs was not
one of the factors the Company considered in deciding whether
to subcontract work. Subcontracting costs would be relevant,
and such information required to be provided, if, the Union had
shown or demonstrated the Company somehow justified its
subcontracting on costs. Here no such showing was made.
The evidence demonstrates the actual contracts between the
Company and its subcontractors or vendors has never been
provided to the Union. Gonzalez credibly testified costs have
never been a factor in determining whether to subcontract work
nor has the cost of using bargaining unit employees versus
using subcontractor employees been a consideration in deciding
whether to subcontract any jobs, tasks, or projects at the Com-
pany. The only time cost is a factor is when the Company has
more than one subcontractor seeking a particular job, task, or
project; or, when the subcontractor is asked to start a project
immediately rather than being given lead time such as a week
or more to start a project. Again as cost was never a factor in
subcontracting work here; the Company was not obligated to
furnish cost type information to the Union.
I now address other specifically raised contentions of the
Government and the Union. The Government asserts the Union
needed the information to protect bargaining unit work in light
of the Company’s ever increasing reliance on subcontracting
and the ever shrinking bargaining unit work. First, the Compa-
ny had a contractually negotiated right to subcontract work.
The collective-bargaining agreement, in pertinent part, states
the Company shall determine as one of several “exclusive pre-
rogatives,” “the amount of work to be subcontracted; provided,
however, that no such action shall be taken to discriminate
against, or avoid bargaining with the union.” The parties
agreement also states that “exclusive prerogatives,” such as
subcontracting, “shall not at any time be subject to the collec-
tive bargaining agreement, or to review in accordance with the
grievance and arbitration procedure provided in this Agree-
ment.” Further, the parties agreement states, “It is agreed that
the Company has the inherent right to sub-contract” work and
specifically that all “new work,” “general construction,” and
“peak maintenance” work will “normally be sub-contracted.”
Second, the Government presented no valid evidence the Com-
pany violated the parties collective-bargaining agreement by
subcontracting work, or that it had improperly subcontracted
new work, general construction, and/or peak maintenance
work, or that its contracting those types of work had caused an
erosion of bargaining unit work. The Government only pre-
sented evidence the Union had observed a continued presence
of subcontractor employees at the facility; however, the Union
was unable to identify whether the subcontractor employees it
observed were performing work specifically permitted by the
parties collective-bargaining agreement or not. There was no
showing that any “non-peak” work was wrongfully subcon-
tracted nor was there any showing, under the circumstances
here, to explain the relevance of the requested subcontractor
information. No showing has been established that subcon-
tracting caused a reduction in unit work, especially as it relates
to the 11 unit employees discharged in December 2011. It is
undisputed those 11 unit employees were discharged for steal-
ing time. The Company utilized “stop gap” contractor employ-
ees to fill in for the employee shortage caused by the termina-
tion of the 11 unit employees until full-time permanent unit
employees could be hired and trained. The Company made a
determination after utilizing the equivalent of 6 subcontractor
employees that it only would and did hire 6 permanent full-time
unit employees to replace the 11 terminated for stealing time.
This does not establish a showing that subcontracting caused a
reduction or erosion of unit work related to the 11 terminated
employees or the number hired to replace them. It would ap-
pear that if one or more of the 11 terminated employees
“swiped” employee cards of others as being at work, when in
fact, they were not, would tend to indicate, as the Company
concluded, it did not need to replace all 11 of the terminated
unit employees in order to get the work accomplished.
The Union’s contention it needed the nonprovided subcon-
tractor cost-related information (discussed earlier above) in-
cluding the actual vendor contracts to, as Union Representative
Kaniecki stated, “[P]ut together a comprehensive plan for nego-
tiating with the Company during bargaining” does not establish
its relevance here. At the time of the information request in
May/June there were no ongoing contract negotiations and the
parties collective-bargaining agreement would not expire for an
additional 2 years or until June 2014. There was no showing
that contract negotiations were even likely to occur anytime in
the near future. Thus, contract negotiations were too far in the
future to trigger a production of the information at the time
requested here. Union Representative Kaniecki contended he
“need[ed] to be able to explain to the Company why it’s more
cost effective to have bargaining unit members performing this
work rather than outside contractors” does not trigger, in the
circumstances here, an obligation on the Company to furnish
the information. First, the Company could subcontract work.
Second, the Company established the cost of subcontracting
was never raised with the Union as a factor it utilized in decid-
ing whether to subcontract work at the facility. Third, at best
this information could be utilized for contract negotiations;
however, negotiations were not scheduled to take place for at
least 2 years. Stated differently, the Government failed to es-
tablish the Union raised concerns related to timely contract
negotiations that would trigger an obligation on the part of the
Company to supply the requested information not already pro-
vided to the Union.
For this reasons discussed above, I conclude and find that the
allegations the Company violated Section 8(a)(5) and (1) of the
Act by, since on or about June 5, failing and refusing to provide
the Union with certain information it requested on May 15
should be dismissed.
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Company, Ethicon, a Johnson & Johnson Co., is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2 The Union, Local 630, New York New Jersey Regional
Joint Board, Workers United, SEIU, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The evidence does not establish the Company committed
the violations alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed.

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.