Sho-Me Power Electric Cooperative

National Labor Relations Board - Board Decisions

Feb 25, 2014

360 N.L.R.B. 349 (N.L.R.B. 2014)

SHO-ME POWER ELECTRIC COOPERATIVE 349
360 NLRB No. 53
Sho-Me Power Electric Cooperative and Internation-
al Brotherhood of Electrical Workers, Local 53,
affiliated with International Brotherhood of
Electrical Workers, AFL–CIO. Case 14–CA–
097071
February 25, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On July 22, 2013, Administrative Law Judge Christine
E. Dibble issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel and the Charging Party each filed an answering
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 conclusions and
to adopt the recommended Order as modified.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that the Respondent’s contentions are without merit.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act by refusing to furnish requested information
to the Union, we find, in agreement with the judge, that the Union
established that the information was relevant to the parties’ pending XG
52 Project grievance arbitration and to the Union’s obligation to deter-
mine whether the Respondent was complying with the contracting
provisions set forth in their collective-bargaining agreements and 2009
settlement agreement. With regard to the latter point, we find that the
circumstances should have made the relevance apparent to the Re-
spondent, as the collective-bargaining agreements and settlement
agreement permitted the Respondent to use contractors to perform unit
work only in specific circumstances and subject to specific limitations.
See, e.g., Allison Corp., 330 NLRB 1363, 1367 fn. 23 (2000). Further,
and without passing on whether it was correctly decided, we find that
Disneyland Park, 350 NLRB 1256 (2007), cited in support by the Re-
spondent, is distinguishable because the information request in that case
(i.e., for all subcontracts arguably within the union’s jurisdiction) was
more general than the Union’s request here.
Member Johnson adopts the judge’s finding that the requested in-
formation is relevant to the pending XG 52 Project grievance arbitra-
tion, but finds it unnecessary to pass on the judge’s finding that it is
relevant to the Union’s obligation to monitor compliance with the par-
ties’ agreements.
Finally, we note that the judge stated that the Union’s business rep-
resentative, Dexter Drerup, testified that bargaining unit members told
him that the Respondent’s contractors were performing bargaining unit
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Sho-Me
Power Electric Cooperative, Marshfield, Missouri, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following paragraph for paragraph
2(a).
“(a) Furnish to the Union in a timely manner the in-
formation requested by the Union on August 7, 2012.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with the
Union, International Brotherhood of Electrical Workers,
Local 53, affiliated with International Brotherhood of
Electrical Workers, AFL–CIO, by failing and refusing to
furnish it with requested information that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of the employees
in the following unit:
All employees of Sho-Me Power Electric Cooperative
within the bargaining unit defined in the certificates of
representative of the National Labor Relations Board in
Cases 17–RC–1033, 17–UA–1877 and 17–RC–5946,
including communication foreman, central office tech-
nician foreman, dispatching foreman, fiber foreman,

work “in violation of the CBA and settlement agreement.” In fact,
Drerup testified only that bargaining unit members told him that they
saw contractors performing bargaining unit work. This mischaracteri-
zation of the testimony does not affect our disposition of this case.
2 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the Board’s standard remedial language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD350
line foreman, meter & relay foreman, substation fore-
man, vehicular maintenance foremen, warehouse fore-
man, aerial bucket operator, lead communication tech-
nician, lead central office technician, lead fiber techni-
cian, lead lineman, lead meter & relay technician, lead
substation mechanic, communication technician, cen-
tral office technician, dispatcher, engineering aid, fiber
optic technician, lineman, maintenance mechanic, me-
ter & relay technician, substation mechanic, storekeep-
er, ground construction & maintenance man, and ap-
prentices, but excluding professional employees,
guards, office clericals, and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on August 7, 2012.
SHO-ME POWER ELECTRIC COOPERATIVE
William F. LeMaster, Esq., for the Acting General Counsel.
Rodric A. Widger, Esq., for the Respondent.
Michael E. Amash, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case
was tried in Overland Park, Kansas, on May 1, 2013. The
Charging Party, International Brotherhood of Electrical Work-
ers, Local 53, affiliated with International Brotherhood of Elec-
trical Workers, AFL–CIO (the Union), filed the charge in Case
14–CA–097071 on January 25, 2013.1 The Regional Director
for Region 14, Subregion 17 of the National Labor Relations
Board (the Board) issued the complaint and notice of hearing
on March 29, 2013. The Respondent filed a timely answer on
April 4, 2013, denying all material allegations in the complaint.
The complaint alleges that the Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act)
when (1) since on or about August 7, 2012, and subsequent
dates, the Respondent failed and refused to provide the Union
with relevant and necessary information related to the identity,
hours, and type of work performed by the Respondent’s con-
tractors.2 (GC Exhs. 1A–1H.)3
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel (the General Counsel) and the
Respondent, I make the following

1 All dates are in 2012, unless otherwise indicated.
2 This allegation is alleged in pars. 6(c) and 7 of the complaint.
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for General
Counsel’s exhibit; “CP Exh.” for Charging Party’s exhibits; “GC Br.”
for the General Counsel’s brief; “CP Br.” for Charging Party’s brief;
and “R. Br.” for Respondent’s brief.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with its principal office in
Marshfield, Missouri. (GC Exh. 1.) It is engaged in the trans-
mission of electricity, principally at 69 kilovolts from a genera-
tion source to nine electric distribution cooperatives, various
municipalities, and Fort Leonard Wood in south central Mis-
souri. (Tr. 7.) The Respondent admits, and I find, that in con-
ducting its business operations during the 12-month period
ending February 28, 2013, the Respondent derived gross reve-
nues in excess of $250,000. During the 12-month period end-
ing February 28, 2013, the Respondent, in conducting its opera-
tions, purchased and received at its facility goods valued in
excess of $50,000 directly to points outside the State of Mis-
souri. The Respondent admits, and I find, that at all material
times it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Overview of Respondent’s Operation
The Respondent operates a member-owned Missouri electric
cooperative that is engaged in the transmission of electricity.
The Respondent’s headquarters is located in Marshfield, Mis-
souri. It also houses equipment and crews at facilities in Cuba
and Willow Springs, Missouri. (Tr. 58.) In addition, the Re-
spondent has 150 sub-stations and approximately 2000 miles of
electricity lines located on property it owns or on privately
owned property on which the Respondent has an easement.
(Tr. 57.)
At all material times since approximately 1951, the Re-
spondent has recognized the Union as the exclusive collective-
bargaining representative of the following bargaining unit:
All employees of Sho-Me Power electric cooperative within
the bargaining unit defined in the certificates of representative
of the National labor Relations Board in Cases 17–RC–1033,
17–UA–1877, and 17–RC–5946, including communication
foreman, central office technician foreman, dispatching fore-
man, fiber foreman, line foreman, meter & relay foreman,
substation foreman, vehicular maintenance foreman, ware-
house foreman, aerial bucket operator, lead communication
technician, lead central office technician, lead fiber technician,
lead lineman, lead meter & relay technician, lead substation
mechanic, communication technician, central office techni-
cian, dispatcher, engineering aid, fiber optic technician, line-
man, maintenance mechanic, meter & relay technician, sub-
station mechanic, storekeeper, ground construction & mainte-
nance man, and apprentices, but excluding professional em-
ployees, guards, office clericals, and supervisors as defined in
the Act. (GC Exh. 1.)
The Union and the Respondent have entered into successive
collective-bargaining agreements (CBA), including a CBA
effective from July 1, 2009, to June 30, 2012, and the most
recent one which is effective from September 25, 2012, to June
30, 2014. (GC Exh. 1.)
SHO-ME POWER ELECTRIC COOPERATIVE 351
Rebecca Gunn (Gunn) is the Respondent’s manager of hu-
man resources. She has been employed with the Respondent
for 31 years and has held her current position for the past 5
years. (Tr. 55.) In her capacity as manager of human re-
sources, Gunn is responsible for recruiting, hiring, employee
training, and relationship development with bargaining unit
employees. (Tr. 55.) At all material times, Rodric Widger
(Widger) was an attorney for the Respondent and an agent of
the Respondent within the meaning of Section 2(13) of the Act.
(Tr. 7–8.)
CBA Effective July 1, 2009, to June 30, 2012, and
December 2009 Settlement Agreement
The evidence is undisputed that the parties entered into a
CBA effective July 1, 2009 to June 30, 2012, which contained
provisions addressing the Respondent’s ability to utilize con-
tractors. CBA article 2, sections 2(a) and (b) sets forth the
limits on the Respondent’s use of nonbargaining unit employ-
ees performing the work of bargaining unit employees. The
sections read as follows:
a) Non-bargaining unit employees may perform bargaining
unit work in cases of emergency; training of employees; when
failure to perform the work would create a danger of damage
to Employer or customer property or injury to any person; or
would result in interruption of service. However, it is agreed
such work will not be performed in amounts so as to cause a
bargaining unit employee to be laid off, or does not reduce the
employee’s work week to less than forty (40) hours.
b) In addition, the Employer shall have the right to continue
its present practice of contracting for the construction of elec-
tric transmission lines, substations, and related facilities. It
shall not do so for the purpose of laying off its regular em-
ployees. (Tr. 18; GC Exh. 3.)
On an unspecified date in 2009, the Union filed a grievance
concerning the use of contractors. As a result of the grievance,
on December 9, 2009, the Union and Respondent entered into a
settlement agreement. (GC Exh. 4.) The terms of the settle-
ment agreement provided for limiting the amount of work the
contractor, Fidelity, or any other contractor can perform to: 200
hours each year for trouble calls and emergencies or the equiva-
lent; allows the contractor to continue to perform construction
and new “turn-ups”; and all planned maintenance in the Cuba,
Missouri service area must be performed by bargaining unit
communication technicians. (Tr. 21–23; GC Exh. 4.) The
settlement agreement is effective from December 9, 2009
through the present.4
CBA Effective September 25, 2012, to June 30, 2014
The evidence is undisputed that the parties negotiated the
current CBA (effective September 25, 2012 to June 30, 2014),
which also contains provisions addressing the Respondent’s
ability to utilize contractors. CBA article 2, sections 2(a) and
(b) sets forth the limits on the Respondent’s use of non-

4 There is no objective evidence that the terms of the settlement
agreement were invalidated with the expiration of the CBA that was
effective from July 1, 2009, to June 30, 2012.
bargaining unit employees performing the work of bargaining
unit employees. The sections read as follows:
a) The employer pledges its good faith effort to cause the unit
work to be done by unit personnel. Notwithstanding this
commitment, non-bargaining unit employees and contractors
may from time to time perform bargaining unit work to pro-
mote efficient operations of the cooperative. Such work will
not be performed in such amount, frequency or duration so
as to cause a bargaining unit employee to be laid off, or to re-
duce the employee’s work week to less than forty (40) hours.
(GC Exh. 2.)
Article 2, section 2(a) of the 2012 CBA was changed from
the 2009 CBA to include the Respondent’s commitment to
make a good-faith effort to provide unit work to bargaining unit
members. The remainder of article 2, section 2(a) remains
essentially unchanged from the 2009 CBA, as does article 2,
section 2(b). (Tr. 18–19.)
The Union Files a Grievance Involving the XG 52 Project
A dispute arose between the parties regarding work per-
formed by one of the Respondent’s contractors, Fidelity, on a
job identified as the XG 52 Project. The Union filed a griev-
ance because it felt the work Fidelity was performing on the
project was bargaining unit maintenance work. (Tr. 28–31; GC
Exh. 6.) The Union argued that pursuant to the 2009 settlement
agreement and the CBA, Fidelity was limited to performing
200 hours of work on the project. (GC Exhs. 3, 4, and 6.) The
grievance proceeded to step 4 of the grievance process, at
which point Respondent denied it. (R. Exh. 2.) Consequently,
by letter dated May 29, 2012, Drerup notified Gunn that the
Union wanted the grievance submitted to arbitration. (R. Exh.
3.) By letter dated July 2, 2012, Mark Berger was notified that
the parties agreed to select him to serve as the arbitrator. (R.
Exh. 4.) The grievance concerning the XG 52 Project is cur-
rently pending arbitration. (Tr. 46–47.)
The Union’s Request for Information on August 7, 2012
Dexter Drerup (Drerup) has been the business representative
for the Union for 11 years. The Union represents about 77 or
78 of the Respondent’s employees. In a bimonthly unit meet-
ing on an unspecified date after May 2012, bargaining unit
members complained to Drerup that some of Respondent’s
contractors were performing work that had historically been
done by bargaining unit members. (Tr. 26, 40–41.) During this
same timeframe, the Union was also in the middle of negotiat-
ing a new CBA with the Respondent. (Tr. 26.) Subsequently,
Drerup submitted a written request for information to Gunn
dated August 7, 2012. The request for information read:
I sent you a letter on June 4, 2012, requesting information for
our upcoming arbitration, specifically a schematic of the XG
52 Project. So far you haven’t complied with my request.
Since then I have also asked you over the phone for a list of
contractors’ [sic] that are presently working on SHO ME’s
property (name, hours, and type of work) for which I am
entitle to by law. I once again am asking for this information
as outlined in this letter. This letter will also serve as my
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD352
last correspondence on the matter and from this day for-
ward, our law firm will handle these items. [GC Exh. 5.]
Gunn did not respond to the request for information, but ra-
ther forwarded it to the Respondent’s attorney to address. By
letter dated August 28, 2012, Widger responded to Drerup with
the following:
Your letter dated August 7 was received by Rebecca [Gunn]
after you and I spoke about the same topic on August 6. My
understanding in regard to the request for contractor infor-
mation was that you would have your attorney give me a call
so we could discuss the relevance of the request. We have
previously provided the project schematic and Rebecca
[Gunn] will send it to you again. [GC Exh. 7; Tr. 34.]
After receipt of the August 28 response from Widger, all
subsequent correspondence regarding the information request
was handled by the Union’s attorney, Dick Waers (Waers),5
and Widger. (Tr. 35.) By letter dated November 29, Waers
wrote in part to Widger:
In order to prepare for the arbitration, there is certain infor-
mation that the Union needs to evaluate the grievance. On
August 7, 2012, Dexter Drerup wrote to Rebecca Gunn re-
questing information concerning work by contractors. You
replied to Dexter that you thought counsel would be involved
in this matter. This information has not been provided. En-
closed is a copy of this letter for your review. We again re-
quest that you provide us with this information so that we
can move this matter forward. [GC Exh. 8a.]
From December 5 through 20, Drerup and Widger ex-
changed a series of emails arguing their clients’ different per-
spectives regarding the relevance of the requested information.
By email dated December 6, 18, and 20, Waers informed
Widger that the information was relevant to assist the Union in
evaluating the pending grievance concerning the XG 52 Pro-
ject; and to assist the Union in determining if the Respondent
violated the contracting provisions of the CBA. (GC Exhs. 8a,
8.) In a series of emails dated December 5, 12, 13, and 18,
Widger responded that the Respondent refuses to provide the
Union with requested information because it is not relevant to
the current grievance, and the Union does not have a contractu-
al right to the information. (GC Exhs. 8a, 8.) As of the date of
the hearing in this matter, the Respondent has not provided the
requested information.
III. DISCUSSION AND ANALYSIS
Legal Standards
1. Legal standard for deferral to arbitration
Prior to addressing the merits of the allegation at issue, I
must first rule on the Respondent’s motion for dismissal and
deferral of the instant case to arbitration.6

5 The parties entered into a stipulation that at all material times
Waers served as attorney for the Union and was an agent for the Union
within the meaning of Sec. 2(13) of the Act. I accepted the stipulation
into the record. (Tr. 8.)
6 See Sec. 102.35(a)(9) of the Board’s Rules.
In Collyer Insulated Wire, 192 NLRB 837 (1971), the Board
set forth the standard for determining the appropriateness of the
referral of an unfair labor practice charge to the arbitration
process. The Respondent argues that Collyer is applicable in
this case. The General Counsel and Charging Party argue,
correctly, that Collyer is not generally relevant to an infor-
mation request charge. In cases concerning the failure to pro-
vide information, the Board does not traditionally defer the
charge to arbitration. Hospital San Cristobal, 356 NLRB 699,
699 at fn. 3 (2011). See also Rochester Gas & Electric Corp.,
355 NLRB 507 (2010) (“deferral is not appropriate as the
[c]omplaint alleges violations of Section 8(a)(5) of the Act for
failing and refusing to provide information”). Clearly, the only
allegation in the matter at issue is the Respondent’s refusal to
provide information requested by the Union. Therefore, the
charge is not appropriate for dismissal and deferral to the arbi-
tration process absent a legally recognized exception. Postal
Service, 302 NLRB 918 (1991); Postal Service, 280 NLRB 685
fn. 2 (1986); Medco Health Solutions of Spokane, XXX 352
NLRB 640, 641 (2008); Daimler Chrysler Corp., 331 NLRB
1324, 1324 fn. 3 (2000). The Respondent has failed to set forth
such an exception. Consequently, I find that deferring this case
to arbitration would be inappropriate, thus the Respondent’s
motion for dismissal and deferral to arbitration is denied.7
2. Legal standard for violations of 8(a)(5)
request for information
Section 8(a)(5) of the Act mandates that an employer pro-
vides a union with relevant information that is necessary for the
proper performance of its duties as the exclusive bargaining
representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153
(1956); Detroit Edison v. NLRB, 440 U.S. 301, 303 (1979).
“[T]he duty to bargain unquestionably extends beyond the peri-
od of contract negotiations and applies to labor-management
relations during the term of an agreement.” NLRB v. Acme
Industrial Co., 385 U.S. 432, 436 (1967). Information requests
regarding bargaining unit employees’ terms and conditions of
employment are “presumptively relevant” and must be provid-
ed. Whitesell Corp., 352 NLRB 1196, 1197 (2008), adopted by
a three-member Board, 355 NLRB 635 (2010), enfd. 638 F.3d
883 (8th Cir. 2011); Southern California Gas Co., 344 NLRB
231, 235 (2005).
If the requested information is not directly related to the bar-
gaining unit, the information is not presumptively relevant, and
the requesting party has the burden of establishing the rele-
vance of the requested material. Disneyland Park, 350 NLRB
1256, 1257 (2007); Earthgrains Co., 349 NLRB 389 (2007).
The relevance standard for nonunit employees is described as:
When [a] union asks for information which is not presump-
tively relevant, the showing by the union must be more than a
mere concoction of some general theory which explains how
the information would be useful to the union in determining if

7 By motion dated May 8, 2013, the Respondent filed a Motion for
Dismissal and Deferral to Arbitrator. The General Counsel and Charg-
ing Party filed timely responses opposing the Respondent’s motion. In
their posthearing briefs, all parties reiterated their respective positions
regarding deferral of the charge to arbitration.
SHO-ME POWER ELECTRIC COOPERATIVE 353
the employer has committed some unknown contract viola-
tion. . . . Conversely, however, to require an initial, burden-
some showing by the union before it can gain access to in-
formation which is necessary for it to determine if a violation
has occurred defeats the very purpose of the “liberal dis-
covery standard” of relevance which is to be used. Balancing
these two conflicting propositions, the solution is to require
some initial, but not overwhelming, demonstration by the un-
ion that some violation is or has been taking place. Newspa-
per Guild, Local 95 v. NLRB, 548 F.2d 863, 868 (9th Cir.
1977).
The General Counsel in establishing relevance must show ei-
ther, “(1) that the union demonstrated relevance of the non-unit
information, or (2) that the relevance of the information should
have been apparent to the Respondent under the circumstanc-
es.” Id. at 1258; Richmond Health Care, 332 NLRB 1304,
1305 fn. 1 (2000). The evidence must show that the Union’s
information request has a “probable” or “potential” relevance to
its statutory duties as the bargaining representative. NLRB v.
Acme Industrial Co., above at 438.
The standard for establishing relevancy is the liberal, “dis-
covery-type standard.” Alcan Rolled Products, 358 NLRB 37,
40 (2012), citing and quoting applicable authorities. In Leland
Stanford Junior University, 307 NLRB 75, 80 (1992), the
Board summarized its application of these principles as fol-
lows:
[T]he Board has long held that Section 8(a)(5) of the Act ob-
ligates an employer to furnish requested information which is
potentially relevant to the processing of grievances. An actual
grievance need not be pending nor must the requested infor-
mation clearly dispose of the grievance. It is sufficient if the
requested information is potentially relevant to a determina-
tion as to the merits of a grievance or an evaluation as to
whether a grievance should be pursued. United Technologies
Corp., 274 NLRB 504 (1985); TRW, Inc., 202 NLRB 729,
731.
The requested information does not have to be dispositive of
the issue for which it is sought, but only has to have some rela-
tion to it. Pennsylvania Power & Light Co., 301 NLRB 1104,
1104–1105 (1991). The Board has also held that a union may
make a request for information in writing or orally. Further, if
an employer fails to respond timely to a request for infor-
mation, the union does not need to repeat the request. Bundy
Corp., 292 NLRB 671, 672 (1989).
Respondent’s Refusal to Agree to the Union’s
Request for Information
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) and (5) of the Act when on or about August 7,
2012, and additional dates the Respondent failed in its obliga-
tion to provide information requested by the Union which was
relevant and necessary tin the performance of its duties as the
exclusive bargaining representative. The Respondent argues
that it is not obligated to provide the information because it is
not relevant under contract provisions and is unduly broad,
vague, and ambiguous.
I find that the information sought by the Union is relevant to
the performance of its statutory obligations and that the Re-
spondent has failed to establish a defense justifying its refusal
to furnish the requested information.
1. Relevancy of information
Since the requested information relates to employees outside
of the bargaining unit, it is not presumptively relevant and
therefore the burden is on the Union “to demonstrate the rele-
vance of [the requested] information.” US Testing Co., 160
F.3d 14, 19 (D.C. Cir. 1998), citing Tritac Corp., 286 NLRB
522 (1987).
The Union asked for a list of contractors presently working
on the Respondent’s property, including their names, number of
hours the contractors have worked, and the type of work they
have been contracted to perform. (GC Exh. 5.) Drerup gave
undisputed testimony that he requested the information because
bargaining members told him there were contractors perform-
ing bargaining unit work in violation of the CBA and 2009
settlement agreement. (Tr. 26.) He asserted that he needed the
information to confirm that the contractors were not performing
work in violation of both the CBA and settlement agreement.
He pointed to the subcontracting clause in the CBA which lim-
ited the type and amount of work a subcontractor could per-
form. (Tr. 26–27.) Drerup also testified that the information
would assist him in defending the grievance in the pending
arbitration involving the XG 52 Project. (Tr. 33, 35.) Further,
Waers emphasized to the Respondent’s attorney, Widger, in a
series of emails that the information was relevant and necessary
for use in the grievance and pending arbitration involving the
XG 52 Project and to ensure that the Respondent was not vio-
lating the limitations on contracting imposed by the CBA and
2009 settlement agreement. (GC Exhs. 8a, 8.)
The Respondent argues the requested information is not rel-
evant because it is based on mere speculation voiced by unit
members at a bimonthly unit meeting. (Tr. 26; R. Br. 12, 24.)
According to the Respondent, “the Union here has no specific
harm in mind, no specific Company actions to be investigated
and no articulable present belief that a contract provision has
been breached.” (R. Br. 13.) Accordingly, the Respondent
argues that the standard for relevance “must be judged in the
context of a contract provision and a fact based dispute tied to
that provision.” (R. Br. 15.) The Respondent points to
Drerup’s testimony that he made the request for information
after unit employees complained to him that they believed con-
tractors were performing more work than allowed by the CBA
and settlement agreement. According to the Respondent the
information request was not based on an actual contractual
violation and therefore it is not relevant. The Respondent con-
tends that the speculative nature of the Union’s concern makes
its request irrelevant.
I find that the Respondent’s argument on this point fails.
The Board has held that the union is allowed to reasonably rely
on the observations of bargaining unit employees in suspecting
violations of the CBA and thus asking for information from the
employer. Walter N. Yoder& Sons, Inc., 270 NLRB 652, 655
fn. 6, enfd. in relevant part 754 F.2d 531, 534 (4th Cir. 1985).
The Board has also held that specific violations of the CBA are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD354
not required, nor must information that triggered the infor-
mation request be “accurate, nonhearsay, or even ultimately
reliable.” W-L Molding Co., 272 NLRB 1239, 1240 (1984);
Public Service Electric & Gas Co., 323 NLRB 1182, 1186,
1188 (1997). The Union is only required to show that it had a
reasonable basis for suspecting possible discriminatory conduct
by the Respondent. Meeker Cooperative Light & Power, 341
NLRB 616 (2004). Based on Drerup’s credible and uncontra-
dicted testimony about the complaints he received from unit
members during a bimonthly unit meeting about their belief
that contractors were performing work in violation of the CBA
and settlement agreement, I find that the Union had a right to
the information in order to investigate the complaints to deter-
mine the validity of the complaints and whether a grievance
should be filed. New Presbyterian Hospital; 354 NLRB No. 5
(2009); Beth Abraham Health Services, 332 NLRB 1234
(2000); Acme, 385 at 437.
Moreover, as the exclusive bargaining representative for the
unit members, the Union had a statutory duty to investigate its
members’ claims that the Respondent was violating the terms
of the CBA and 2009 settlement agreement. The Union’s abil-
ity to review a list of contractors performing work on the Re-
spondent’s property and the amount and type of work they were
performing would demonstrate the Respondent’s compliance
(or noncompliance) with the terms of both the CBA and 2009
settlement agreement. Drerup credibly testified that the Union
needed the information to verify that the Respondent was not
giving contractors more than the 200 hours of work a year as
agreed to in the CBA and settlement agreement, nor giving
them the type of work that was proscribed by both. Its access
to the contractors’ information enables the Union to track the
number of hours a contractor has performed on a job in compli-
ance with the CBA and settlement agreement. In addition, the
Union will have information necessary in assessing whether the
nature of the jobs given to the contractors is subject to the limi-
tations in the CBA and settlement agreement. The information
requested in this matter is also relevant and necessary because
it enables the Union to make a determination on whether to file
a grievance on behalf of the unit employees whose work hours
might have been negatively affected by Fidelity’s and any other
listed contractor’s work. Drerup emphasized this point noting
the information was necessary and relevant because “if [Re-
spondent is] setting a pattern of awarding work to subcontrac-
tors that traditionally belongs to the bargaining unit employees,
then I believe that [the requested information] will strengthen
my case in front of an arbitrator on a particular grievance.” (Tr.
35.) The most effective and accurate manner for the Union to
discern if its members’ hours have been negatively impacted
and a grievance is warranted is for it to review the requested
information. Consequently, I find that the requested infor-
mation is necessary for the Union to effectively monitor and
enforce the terms of the CBA. United Technologies Corp., 274
NLRB 504 (1985); TRW, Inc., 202 NLRB 729, 731(1973).
The Respondent also argues that because the Union did not
file a grievance after receiving complaints from the unit mem-
bers about Fidelity’s possible contract violations, the infor-
mation request is premature. This argument fails. The Board
has consistently held that the union is not required to wait until
a grievance is pending to make a request to the employer for
relevant and needed information. The law dictates that the
Union is entitled to the information at issue to determine if it is
appropriate to file a grievance. Ohio Power, 216 NLRB 987
(1975); Leland Stanford Junior University, supra.
The Union articulated a second relevant reason for request-
ing the information, the pending XG 52 grievance. As previ-
ously noted, in a series of email exchanges the Union’s attor-
ney, Waer, notified the Respondent that the requested infor-
mation was relevant to the pending XG 52 grievance because,
“When weighing the propriety of subcontracting, arbitrators
frequently look to the frequency of subcontracting by the em-
ployer.” (GC Exhs. 8A, 8.) The Respondent contends, howev-
er, that the Union cannot use the pending grievance on the XG
52 Project as a basis for establishing relevancy because, “The
status of contractors’ activity on August 7, 2012, when the
parties were out of contract, was legally and factually remote
form the arbitration of a grievance arising from March or April
work. It was too tardy to support a grievance under the expired
contract . . . and it was premature to support a grievance under
the new contract.” (R. Br. 22.) I, however, must agree with the
General Counsel’s and Charging Party’s counter argument that
the expiration of the CBA is immaterial, in this case, to the
Respondent’s obligation to provide the Union with the relevant
requested information. The XG 52 Project grievance was filed
approximately 2 months prior to the expiration of the 2009
CBA. Regardless, Board case law has consistently established
that “an employer has an obligation to provide information after
the expiration of a contract that relates to a pre-expiration
grievance.” Nolde Bros. v. Baker Workers Local 358, 430 U.S.
243, 251 (1977). Further, the parties were in the midst of nego-
tiations of a successor agreement that had not reached an im-
passe. As such the Respondent was required to maintain the
status quo and refrain from taking unilateral action regarding
wages, hours, and other terms and conditions of employment.
See Washoe Medical Center, Inc., 337 NLRB 202 (2001). (GC
Br. 25.)
Next, the Respondent implies that the Union’s failure to
submit a “contractor list disclosure” proposal during contract
negotiations constituted a waiver of its right to the requested
information. Nonetheless, I agree with the General Counsel’s
argument and find that the Union’s failure to submit a “contrac-
tor list disclosure” proposal during contract negotiations did not
constitute a waiver of the Union’s statutory rights. The Board
requires a waiver of a union’s statutory rights to be clear and
unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S. 693
(1983); Timken Roller Bearing Co., 138 NLRB 15, 16 (1962).
“A clear and unmistakable waiver may be found in the express
language and structure of the collective-bargaining agreement
or by the course of conduct of the parties. The burden is on the
party asserting waiver to establish that such a waiver was in-
tended.” Leland Stanford Junior University, supra. See also
NLRB v. New York Telephone Co., 930 F.2d 1009 (2d Cir.
1991), enfg. 299 NLRB 44 (1990); United Technologies Corp.,
supra. Given the lack of a clear and express waiver in the CBA
or elsewhere, I find that the evidence shows the Respondent has
failed to sustain its burden on this point.
SHO-ME POWER ELECTRIC COOPERATIVE 355
The Respondent argues that it is unable to provide the Union
with the requested information because it is unavailable. In
addition, the Respondent notes that approximately 3 months
prior to the Union’s August 7 request for information, it had
provided the Union with 6 years of contractor information for
its use in preparation for contract negotiations. (R. Br. 13; Tr.
50.) The Respondent’s argument fails on both points. Gunn
admitted that she did not contact any of the Respondent’s con-
tractors or any subcontractors to obtain the information. Like-
wise, there is no evidence that any other agent of the Respond-
ent tried to get the requested information from the contractors
or subcontractors. (Tr. 62–63.) The Board has held that if the
requested information is not in the respondent’s possession then
it has a duty to inform the union and make a “good-faith” at-
tempt to get information, or if unavailable, explain or document
the reasons why it is unavailable. Public Service Co. of Colo-
rado, 301 NLRB 238 (1991). See Earthgrains Co., 349 NLRB
389 (2007), enfd. in part and denied in part sub nom. Sara Lee
Bakery Group, Inc. v. NLRB, 514 F.3d 422, 430 (5th Cir. 2008)
(although the employer did not retain the records, the employer
“utterly failed to conduct a good-faith inquiry” to determine if
the information was available from other sources).
Second, the information provided to the Union for its use in
preparation for contract negotiations was not in response to the
August 7 information request at issue. The information provid-
ed by the Respondent to the Union was in response to a request
made on June 4 by the Union for a schematic of the XG 52
Project. (GC Exh. 5.)
Therefore, I find that the Respondent failed to conduct a
search for the requested information consistent with its obliga-
tion under the Act or properly document the reasons for the
asserted unavailability.
Last, the Respondent advances the position that it is not re-
quired to produce the requested information because it is overly
broad, ambiguous, and vague. (R. Br. 19.) Specifically, since
the request for information does not define, with specificity, the
words “contractors” and “property,” the Respondent argues that
these ambiguities render the information request irrelevant
because it does not refer to “unit work.” (R. Br. 19–20; Tr. 57–
58.) I find the argument lacks a legal basis.
In this case, the Union’s role is to assess whether the list of
contractors, the type of work they performed, and the number
of hours they worked meets its definition of unit work that is
proscribed by the CBA and settlement agreement. For me to
accept the Respondent’s argument that the Union’s failure to
set out with more specificity the information it seeks (identities
of contractors, name of property, and hours worked) would be
to allow the Respondent alone to determine what constitutes
unit work and consequently determine what information it feels
is relevant to produce. The Union is not required to accept the
Respondent’s contention that to produce the information related
to all “contractors” on the Respondent’s “property” will not
yield relevant information. The Board has held that the union
is entitled to the actual information to verify the employer’s
assertions. Wallace Metal Products, 244 NLRB 41 fn. 2 (1979)
(the union requested to review the subcontracts of unit work
that the Respondent had subcontracted as a result of a strike and
the board held it was entitled to the actual contracts to “facili-
tate verification”). Further, there is no evidence that the Re-
spondent asked the Union for clarification regarding its request.
Superior Protection Inc., 341 NLRB 267, 269 (2004), enfd. 401
F.3d 282 (5th Cir. 2005) (an employer must seek clarification
of a request it believes is ambiguous or overbroad or comply
with the request to the extent it includes relevant information.)
There is, however, ample evidence that the Respondent consist-
ently denied the Union’s repeated requests based on relevancy
grounds. (GC Exhs. 8a, 8.)
Based on the foregoing and the overall record, I find the Re-
spondent’s refusal to provide the requested information violates
Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Sho-Me Power Electric Cooperative, is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The International Brotherhood of Electrical Workers Lo-
cal 53, International Brotherhood of Electrical Workers, AFL–
CIO is a labor organization within the meaning of Section 2(5)
of the Act.
3. By failing and refusing to fully provide relevant infor-
mation requested by the Union in its written request dated Au-
gust 7, 2012, and subsequent dates, the Respondent, Sho-Me
Power Electric Cooperative, has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
4. The above violation is an unfair labor practice that affects
commerce within the meaning of Section 2(6) and (7) of the
Act.
5. The Respondent has not violated the Act except as set
forth above.
REMEDY
Having found that the Respondent has engaged in a certain
unfair labor practice, I shall order it to cease and desist there-
from and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent will be ordered to produce the requested and
relevant information, and post and communicate by electronic
post to employees the attached appendix and notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Sho-Me Power Electric Cooperative, in
Marshfield, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to provide the International Brotherhood of
Electrical Workers Local 53, International Brotherhood of
Electrical Workers, AFL–CIO with information requested that

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD356
is necessary and relevant to its role as the exclusive representa-
tive of the employees in following unit:
All employees of Sho-Me Power electric cooperative within
the bargaining unit defined in the certificates of representative
of the National Labor Relations Board in Cases 17–RC–1033,
17–UA–1877, and 17–RC–5946, including communication
foreman, central office technician foreman, dispatching fore-
man, fiber foreman, line foreman, meter & relay foreman,
substation foreman, vehicular maintenance foreman, ware-
house foreman, aerial bucket operator, lead communication
technician, lead central office technician, lead fiber technician,
lead lineman, lead meter & relay technician, lead substation
mechanic, communication technician, central office techni-
cian, dispatcher, engineering aid, fiber optic technician, line-
man, maintenance mechanic, meter & relay technician, sub-
station mechanic, storekeeper, ground construction & mainte-
nance man, and apprentices, but excluding professional em-
ployees, guards, office clericals, and supervisors as defined in
the Act.
(b) In any like or related manner, interfering with, restrain-
ing, or coercing its employees in the exercise of the rights guar-
anteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the purposes and policies of the Act.
(a) Within 14 days from the date of the Board’s Order, fur-
nish the Union with all information it requested in writing on
August 7, 2012, and subsequent dates.
(b) Within 14 days after service by the Region, post at its fa-
cilities in Marshfield, Cuba, and Willow Springs, Missouri,
copies of the attached notice marked “Appendix.”9 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 14 Subregion 17, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees and members
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since August 7, 2012.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”