ETHICON, A JOHNSON & JOHNSON CO.

National Labor Relations Board - Administrative Judge Opinions

May 28, 2013

22-CA-089085 (N.L.R.B. May. 28, 2013)

JD(ATL)–14–13
Somerville, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
ETHICON, A JOHNSON & JOHNSON CO.
and CASE 22–CA–089085
LOCAL 630, NEW YORK NEW JERSEY
REGIONAL JOINT BOARD, WORKERS
UNITED, SEIU
Lisa D. Pollack, Esq.,
for the Acting General Counsel.1
Francis X. Dee, Esq. and Mark E. Williams, Esq.
for the Respondent.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
(complaint) on January 30, 2013. The government alleges the Company violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act) by failing to furnish 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 collective-

1 I shall refer to counsel for the Acting General Counsel as counsel for the government and to the National
Labor Relations Board (Board) as the government.
2 I shall refer to counsel for the Respondent as counsel for the Company 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.
JD(ATL)–14–13
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bargaining agreement and that the requested information is not presumptively relevant because
it does not pertain to bargaining unit employees nor is it otherwise relevant. Stated differently
the Company asserts information pertaining to subcontractor employees is not presumptively
relevant and that the Union cannot, and did not, show relevance here.
5
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, 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 detailed findings and analysis below, I conclude and find the
Company did not violate the Act in any manner alleged in the complaint.10
Findings of Fact
I. Jurisdiction, Supervisory/Agency Status, Labor Organization, and Unit
15
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 Company, in conducting its operations, sales and ships from
its Summerville, New Jersey facility, goods valued in excess of $50,000 directly to points 20
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 herein, acted as an agent of the Company within the meaning of 25
Section 2(13) of the Act, and, I so find. It is undisputed Gene Kaniecki (Union Representative
Kaniecki or Kaniecki), at all times material herein, 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 manager (Facilities Manager Gonzalez or Gonzalez) and
David Durham, a 15-year unit employee, is the local union president.30
The parties admit, and I find, the Union is a labor organization within the meaning of
Section 2(5) of the Act.
It is admitted “All employees within the unit certified by the National Labor Relations 35
Board on February 19, 1944 and October 29, 1954 employed by the Employer at its Somerville,
NJ facility” constitutes a unit (unit) appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) 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.40

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.
JD(ATL)–14–13
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II. Alleged Unfair Labor Practices
A. Brief Background
The parties most recent collective-bargaining agreement is effective by its terms from 5
June 2009 to June 2014, and automatically renews for successive terms of 1 year unless either
party gives 60-days notice prior to the expiration date its intention 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 explained that in addition to unit manufacturing employees there are 10
unit employees that perform facilities maintenance in electrical, carpenter, pipefitters, plumber,
painter, and instrument crafts.
B. Issues and Related Facts
15
It is specifically alleged in the complaint that on or about May 15, the Union requested
in writing, information concerning 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.20
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.25
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 provided in 30
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 bargaining with the Union.” Additionally, at B(16) of the “Exclusive Prerogatives”
the Company retains the exclusive right to “appropriations and expenditure of funds in 35
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:40
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 45
established, that workforce is provided with a forty-hour week and usually with
JD(ATL)–14–13
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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 5
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 committee will consist of
the Plant Engineer or his designated representative, together with such other 10
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 considered.15
The Sub-contracting Coordinator will meet with the employee sub-contracting
committee to discuss any problems or concerns relating to sub-contracting. The
monthly meeting will also be used to communicate any issues, tends and
developments relating to sub-contracting.20
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 25
craft. In the case of facilities renovation, 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 Coordinator will proceed with
the sub-contracting. In those instances where no agreement can be reached, and if
the Union desires, this decision will be reviewed promptly at a special Step IV 30
meeting with the Plant Manager, or a designated representative, and his decision
will be final. If, however, the Union requests a sub-contracting review meeting,
such meeting will be held as soon as possible. The Company’s decision will be
final.
35
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 40
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. 45
Kaniecki explained representatives from the Union and Company meet and the Company
JD(ATL)–14–13
5
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 union
stewards, and elected union representatives, have difficulty obtaining information at the
meetings “because there are so few people working in the bargaining unit that they cannot
attend the meetings.”5
Company Facilities Manager Gonzalez testified that at the beginning of each year the
Company “ask[s] for a representative from each of the craft groups to be a member of that
[subcontracting] committee.” All members have computers and the Company notifies each
committee member, including union officials, of the date and time for the meetings. Gonzalez 10
said many times the local union president did not attend the meetings 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 15
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 employees,
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” 20
employees performing work the 11 terminated unit employees had performed.
The Company, per the agreement, normally subcontracts all new work, general
construction, and peak maintenance work loads. Union Representative Kaniecki defined “peak
maintenance loads” as “after all unit members have been polled for hours, and those hours have 25
been exhausted the Company can then begin subcontracting.” Kaniecki, however,
acknowledged the word “polling” is not mentioned in the subcontracting provisions of the
collective-bargaining agreement. Company Regional Facilities Manager Gonzalez described
peak maintenance 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 30
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 paving a parking lot.35
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 40
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 45
request, filed a grievance (Grievance D-1408), concerning the 11 vacant unit positions and the
JD(ATL)–14–13
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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 representatives 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 5
literally running amuck at the Ethicon 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 10
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.”15
Kaniecki, in a letter of May 15, requested the Company provide certain specific
information to the Union because the Union 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 20
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 25
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 together 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 30
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.
35
Specifically, the Union, in its May 15 letter, requested the following information
concerning six named subcontractors6 performing work at the Company:
1. The exact nature (type) of work being performed.
2. The number of contractors working at the Ethicon campus.40
3. The total hours worked (average per week).
4. Labor rates per employee. This should include all forms of compensation.

6
The six companies were: P. Lepore and Sons Incorporated; Electrical Installation and Design
Incorporated; PJM Mechanical Contractors; Cyma Builders and Construction Managers LP; United
Technologies Carrier; and, Monsen Engineering Company.
JD(ATL)–14–13
7
5. All contracts and agreements between this firm/company/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 5
subcontractors” 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 concerning
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 10
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
burdensome to collect while other portions were confidential in nature. Strauss addressed the 15
types of information the Union sought for the vendors and what information the Company was,
by attachment,7 providing. The Company’s specific responses follows:
1. The exact nature (type) of work being performed.
20
This information can be found in the attached subcontracting notification
documents that have been attached. Additional information can also be
found in the subcontracting committee meeting minutes that have been
attached.
25
2. The number of contractors working at the Ethicon campus.
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 30
information, the PO is the contract between Ethicon, and the contractor.
The Company does not correlate purchase orders with subcontracting
notices, as this has never been a requirement for subcontracting. Any
attempt to correlate this information would be speculative at best. The
third-party vendors determine the number of contractors for each 35
particular PO required to complete projects. The Company does not track
the number of contractors for each PO as this is determined at the
discretion of the third-party vendor.

7 In the 100 plus pages of attachments the Company provided: actual hours worked by CYMA Builders
and Construction Managers LP and Electrical Installation and Design Incorporated; 41 pp. of
subcontractor committee meeting emails with attachments; 59 pp. of notifications of subcontracting
distributed to the subcontracting committee and 3 pp. of seniority lists of unit employees.
.
JD(ATL)–14–13
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3. The total hours worked (average per week).
The Company issues Purchase Orders (PO) to third-party vendors for 5
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 10
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.15
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 20
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 requirement for
subcontracting as per the collective bargaining agreement. Any attempt to 25
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.
30
5. All contracts and agreements between this firm/company/organization and
Ethicon, Inc.
This information is proprietary and confidential to the Company. In
addition, it is burdensome to collect.35
Based on the unique circumstances posed by the terminations that occurred in
December of 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:40
i) A total subcontracting notification of 3,300 hours was provided 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 45
JD(ATL)–14–13
9
Contractors, and CYMA Builders and Construction 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 notified at the 5
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 nature of that
work, as well as estimated hours, are provided in the attached 10
subcontracting notifications.
Union Representative Kaniecki acknowledged receiving certain 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 15
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 requested by the Union except 20
information related to costs associated 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 25
whether to use bargaining associates verses subcontractor employees. 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 30
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 reasons, 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 35
subcontracting meetings. Gonzalez explained that in the subcontracting 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 subcontractor employees working 40
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 45
between the Company and its vendors and to make such information public would not be
JD(ATL)–14–13
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appropriate. Gonzalez further explained the Company does not have labor rates for the
subcontractors because, “We can’t tell what is the actual labor rate or the fee being paid to the
associate of the contractor.” The work, according 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.”5
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 subcontractor employees. Gonzalez
added that the hourly price the subcontractor provides is “full loaded” in that it includes the 10
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 15
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 conflict with documentary evidence.20
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 25
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 pertinent 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 30
subcontractors’ working at the [Company.]”
Pursuant to Section 8(a)(5) of the Act, an employer is obligated to provide the union,
upon request, relevant information it needs to properly perform its duties as the employees’
bargaining representative. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967) (citing 35
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 40
employer must provide it. Where the requested information is not presumptively 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, at 1258 stated:45
JD(ATL)–14–13
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Information about subcontracting agreements, even those relating to bargaining
unit employees’ terms and conditions of employment, is not presumptively
relevant. Therefore, a union seeking such information must demonstrate its
relevance. (Case citations omitted.)
5
The Board uses a broad, discovery-type standard in determining the relevance of
requested information. Potential or probable relevance is sufficient to give rise to
an employer’s obligation 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 10
should have been apparent to the Respondent under the circumstances. See
Allison 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 provide the requested information15
Here the government concedes information about subcontracting agreements including
those relating to bargaining unit employees’ terms and conditions of employment do not
constitute presumptively relevant information. Thus, a union seeking such information must
demonstrate its relevance.20
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 excess of 100 pages of
information related to subcontracting at its facility for pertinent times. Included in the provided 25
information 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 30
the subcontracting committee meetings, 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 address, 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 35
“non-capital;” along with a description of the work to be performed and an estimated number
of work hours to accomplish the task.
Union Representative Kaniecki, specifically identified information he concluded the
Company had not provided in response to his May 15 request. Those items are: 1) the exact 40
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 obligated to provide the 45
information the Union contends was not provided. The relevance of the nonunit information
JD(ATL)–14–13
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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 parties collective-bargaining agreement. The Company had the 5
“exclusive” and “inherent right” to “subcontract” work; to establish 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
provided in this Agreement.” The Union agreed that “new work,” “general construction,” and 10
“peak maintenance loads” will “normally be sub-contracted” and there is no showing the
Company violated the parties agreement by sub-contracting any work.
The Union contends the exact nature of the work to be performed was not set forth in
the subcontract notifications provided to the Union; however, the evidence establishes 15
otherwise. 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
administration cage located in the old cafeteria basement. Other contract 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 20
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 parking, yellow cross hatching and directional arrows; and, numerous 25
emergency repair subcontractor notifications that specifically 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 subcontractor 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 30
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 subcontractors.
Information regarding the exact number of subcontractor employees on site and the 35
exact rates they are paid are inextricably intertwined and I address together the obligation to
provide such information. The Company does not consider or track the number of employees a
subcontractor utilizes to complete a task or project, but rather, pays a price for the completion
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 40
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
subcontractors per week because hours worked is left to the subcontractors discretion because
the Company’s interest is in a completed task, job, or project. The Company does keep, and
provided the Union, hours worked when the subcontractors performed “stop-gap” work where 45
worker(s) simply filled in for absent regular employee(s). With respect to labor rates, again the
JD(ATL)–14–13
13
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 subcontractors pay its employees. These requests all center around costs and the 5
evidence establishes costs was not one of the factors the Company considered in deciding
whether to subcontract work. Sub-contracting 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.
10
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 Company. The only time 15
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.20
I now address other specifically raised contentions of the government and 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 Company had a contractually negotiated right to subcontract work. The 25
collective-bargaining agreement, in pertinent part, states the Company shall determine as one of
several “exclusive prerogatives,” “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 collective bargaining agreement, or to review in accordance 30
with the grievance and arbitration procedure provided in this Agreement.” 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
Company violated the parties collective-bargaining agreement by subcontracting work, or that 35
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 presented 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 40
parties collective-bargaining agreement or not. There was no showing that any “non-peak”
work was wrongfully subcontracted nor was there any showing, under the circumstances here,
to explain the relevance of the requested subcontractor information. No showing has been
established that subcontracting 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 45
discharged for stealing time. The Company utilized “stop gap” contractor employees to fill in
JD(ATL)–14–13
14
for the employee shortage caused by the termination 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 5
to the 11 terminated employees or the number hired to replace them. It would appear 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.
10
The Union’s contention it needed the nonprovided subcontractor cost-related
information (discussed earlier above) including the actual vendor contracts to, as Union
Representative Kaniecki stated, “put together a comprehensive plan for negotiating 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 15
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 20
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 deciding whether to subcontract work
at the facility. Third, at best this information could be utilized for contract negotiations; 25
however, negotiations were not scheduled to take place for at least 2 years. Stated differently,
the government failed to establish 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 provided to the Union.
30
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.
Conclusions of Law35
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 40
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.
45
JD(ATL)–14–13
15
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8
ORDER
5
The complaint is dismissed.
Dated, Washington, DC, May 28, 2013.
10
_________________________________
William Nelson Cates
Administrative Law Judge15

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