S. California Gas Company

National Labor Relations Board - Administrative Judge Opinions

Oct 20, 2005

21-CA-036590 (N.L.R.B. Oct. 20, 2005)

JD(SF)-70-05
Los Angeles, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA

SOUTHERN CALIFORNIA GAS COMPANY

and Case 21–CA–36590

JOHN LEWIS, INTERNATIONAL CHEMICAL
WORKERS UNION COUNCIL/UFCW, LOCAL 47C,
LOCAL 78C, LOCAL 350C, AND LOCAL 995C

and Case 21–CA–36603

JOHN LEWIS INTERNATIONAL CHEMICAL
WORKERS UNION COUNCIL/UFCW, LOCAL 350C
AND LOCAL 995C

Steve L. Hernandez, Esq., of Los Angeles, CA,
for the General Counsel.
Larry I. Stein, Esq., of Los Angeles, CA, for the
Respondent.

DECISION

Statement of the Case

JOSEPH GONTRAM, Administrative Law Judge. This case was tried in Los Angeles,
California, on May 16, 2005. The charge in Case 21–CA–36590 was filed by John Lewis of the
International Chemical Workers Union Council/UFCW, Locals 47C, 78C, 350C, and 995C
(Union or Charging Party)1 on November 3, 2004 and was amended on January 26, 2005. The
charge in Case 21–CA–36603 was filed by the Chemical Workers Union on November 12,
2004.2 The complaint was issued on January 28, 2005. The complaint charges that Southern
California Gas Company (the Respondent) violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act) by failing and refusing to produce information requested by the Union,
information which was allegedly necessary and relevant to the Union’s duties as one of two,
joint, collective-bargaining representatives of the Respondent’s bargaining unit employees. The
second union comprising the joint representative of the bargaining unit employees is the Utility
Workers Union of America, AFL–CIO (Utility Workers Union; both unions together, the Unions).
The questions presented are:

1 The Union is alternately referred to in the complaint as International Chemical Workers
Union Council of the UFCW, AFL–CIO.
2 All dates are in 2004 unless otherwise indicated.

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1. Whether the Respondent is obligated to provide to the Union information relating to
the Respondent’s agreement to fund a training program for prospective bargaining unit
employees, where (a) the agreement was made with only one of the two Unions, and (b) the
agreement was made pursuant to the Respondent’s settlement of its California Public Utility
Commission (CPUC) proceeding.

2. Whether the Respondent is obligated to provide to the Union the personnel file of a
bargaining unit member, Joshua Barnes, where (a) Mr. Barnes is a part-time worker who was
discharged under a provision of the collective-bargaining agreement that does not allow a
protest or grievance, and (b) the Union seeks the file in connection with its protest of Mr.
Barnes’ discharge.

3. Whether the Respondent is obligated to provide to the Union information relating to
the dates on which a bargaining unit member, Jaime Berridy, was on disability, the date he was
cleared for return to work, and the date he was certified as being permanent and stationary,
where (a) Mr. Berridy is a member of the Utility Workers Union and has not consented to the
production of any information, and (b) the Union seeks the information in connection with its
processing of a grievance on behalf of a bargaining unit member, Anita Logan.

On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and the Respondent,4 I make
the following

Findings of Fact

I. Jurisdiction

The Southern California Gas Company, a corporation, is a public utility engaged in the
generation and distribution of natural gas, and maintains a principal place of business located at
555 West Fifth Street, Los Angeles, California. During the 12-month period ending January 26,
2005, a representative period, the Respondent derived gross revenue in excess of $250,000
from its business operations, and purchased and received goods valued in excess of $50,000
directly from points outside the State of California. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The
Respondent admits and I find that the Unions are labor organizations within the meaning of
Section 2(5) of the Act, and that the Unions are the joint, exclusive collective-bargaining
representatives of the employees in the appropriate bargaining unit described in section 2.2(A)
of the collective-bargaining agreement between the Respondent and the Unions which was
effective from April 1, 2002 to December 31, 2004.

3 The Acting General Counsel’s unopposed motion to correct transcript exhibits is granted.
4 The Acting General Counsel’s Motion To Strike Respondent’s Post-Hearing Brief is
denied. The Respondent filed its brief one business day after the deadline. The Respondent
states that it did not read the Acting General Counsel’s brief before filing its own brief, and that
its late filing was due to excusable neglect. Although the question is not free from doubt, I am
exercising my discretion to consider the matters raised by the Respondent in its posthearing
brief.

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II. Alleged Unfair Labor Practices

The facts are not disputed. The Unions are jointly certified as the exclusive
representatives of the employees in the bargaining unit. Under the joint certification, the
respondent bargains with a Joint Steering Committee, which consists of approximately 15–20
representatives of the two unions. Although there are several locals and two unions, there is
one collective-bargaining agreement. After 6 months of employment,5 an employee chooses
whether to become a member of the Utility Workers Union or the Chemical Workers Union. With
respect to bidding for open jobs, the successful bidder is chosen based on the contractual
terms, primarily seniority. The successful bidder could be from either union.

The Union’s three, unrelated requests for information will be considered in the order
presented above.

A. Training Program

The Respondent is a public utility. Periodically, the Respondent is required to justify its
cost of service, including rate increases, through a cost-of-service proceeding before the
California Public Utilities Commission (CPUC). Parties who have an interest in the case may
submit a request to participate in the proceeding. The presiding administrative law judge will
decide such requests at a prehearing conference.

In December 2002, the Respondent filed an application with the CPUC for authority to
update its gas revenue requirement and base rates. The Respondent notified the Unions of the
application and of their opportunity to intervene. The Utility Workers Union and one of its Locals
intervened in the proceeding. The Chemical Workers Union did not.

On December 19, 2003, the parties to the rate case proceeding, including the
Respondent and the Utility Workers Union, signed a settlement agreement. (R Exh. 1.) In the
settlement agreement, the Respondent agreed to join the Western States Utility Workers
Industry Apprenticeship and Training Trust Fund, described as a “joint management/union multi-
employer training trust fund. The fund will be utilized to further the training programs associated
with UWUA represented job classifications within the western United States.” Id. pp. 16–17. The
Respondent further agreed to provide funding of $500,000 to assist the Utility Workers Union in
establishing the Western States Utility Workers Industry Apprenticeship and Training Trust. The
Respondent also agreed to hire the first 10 graduates from the training program established by
the trust.

After the Union learned of the settlement agreement, it had internal discussions on the
impact of the settlement agreement on the Union and its organizing efforts, whether the Union
should try to get involved in the training program, or whether they should try to get a similar
training program. On August 20, 2004, Lewis sent a letter to the Respondent requesting a copy
of the agreement and additional information relating to the training program provisions of the
settlement agreement between the Respondent and the Utility Workers Union. The requested
information included:

1. The amount of any funds to be provided by the Respondent for any
apprentice or training program administered by the Utility Workers Union,
or any of its affiliated local unions.
5 This period was recently changed to 30 days.

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2. A copy of any criteria for eligibility standards for participation in any
apprentice or training program, the funding for which, in total or in part, was
provided by the Respondent to the Utility Workers Union, or any of its
affiliated local unions.

3. A copy of the training curriculum to be utilized in any training or
apprentice program the funding for which, in total or in part, will be provided
by the Respondent to the Utility Workers Union, or any of its affiliated local
unions.

4. Who would be eligible to participate in any training set up by the Utility
Workers Union, or any of its affiliated local unions, using funds supplied by
Respondent or Sempra?6

5. Has there been a commitment made by Respondent to employ those
individuals who successfully complete the apprentice or training program
administered by the Utility Workers Union, or any of its affiliated local
unions?

(Jt. Exh. 1; consolidated complaint, par. 8.) At the time this letter was sent, a copy of the
settlement agreement was available on the Respondent’s website. On September 10, the
Respondent replied to Lewis’ letter by refusing to provide any of the information requested, and
by stating that the requested information was not relevant because the CPUC proceeding did
not change the provisions of the parties’ collective-bargaining agreement. However, the
Respondent offered7 to discuss with Lewis “the process of the proceeding and the subsequent
settlement agreement to help clarify any concerns you may have on this issue.” (Jt. Exh. 2.) On
October 15, Lewis replied to the Respondent’s letter by stating that it was willing to meet, but
would need to review the requested information before such a meeting. (Jt. Exh. 3.) The
Respondent has failed and refused to provide any of the information requested by the Union,
although it did advise the Union that the settlement agreement was available on the
Respondent’s website.

B. The grievance of Joshua Barnes

Joshua Barnes was a part-time meter reader with the Respondent. Barnes is a member
of the Union. The Respondent discharged him in late 2003, allegedly in connection with his
absence from work after he reported to his National Guard Unit. After Barnes’ discharge and
after he contacted Sempra Energy Company, Sempra intervened in the matter, with the result
that the Respondent reinstated Barnes with backpay.

6 The Respondent is a subsidiary of Sempra Energy Company.
7 The Respondent states in the letter that “I would offer to have a discussion with you. . .”
Thus, an offer was not actually made. However, an offer was apparently intended, and the
Chemical Workers Union considered that an offer had been made. Accordingly, the findings are
consistent with the parties’ intent and understanding, notwithstanding the conditional language
of the “offer.”

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The Respondent again discharged Barnes in September 2004. This discharge was
made under section 6.3A of the collective-bargaining agreement. Part-time employees, such as
Barnes, have the right to grieve discharges under section 6.3B of the collective-bargaining
agreement (discharges for misconduct), but have no right to grieve discharges under section
6.3A of the agreement (discharges for unsatisfactory job performance).

On September 5, 2004, Lewis filed a protest or grievance8 on behalf of Barnes
concerning the September discharge.9 On September 13, Lewis sent a letter to the Respondent
requesting a copy of Barnes’ personnel file. (Jt. Exh. 7.) Attached to that letter was a
handwritten authorization signed by Barnes authorizing the union to obtain a complete copy of
his personnel file.

On September 23, Leonard Prymus, Employee Disputes Manager for the Respondent,
replied to Lewis’ letters of September 5 and 13. Prymus denied the union’s request for a hearing
on Barnes’ grievance and refused to turn over Barnes’ personnel file on the ground that Barnes
was discharged pursuant to section 6.3A of the collective-bargaining agreement, not section
6.3B, and therefore had no right to union representation. In a letter dated September 25, Lewis
explained to Prymus that the same supervisors who were involved in Barnes’ earlier termination
had harassed Barnes after his reinstatement. Thus, Lewis was seeking Barnes’ personnel file in
an attempt to determine the real reason for the discharge, including whether Barnes’ 2003
discharge and reinstatement had any influence on the 2004 discharge. This determination
would affect whether the Union could properly represent Barnes in the grievance and whether
Barnes was properly discharged.

After receiving Lewis’ letters, Prymus contacted Barnes, told him of the Union’s request
for his personnel file, and advised Barnes that his personnel file would be sent to him upon his
payment of a fee. Prymus subsequently sent the file to Barnes. However, there was no
documentation of or reference to Barnes’ earlier discharge in late 2003 in the file that Prymus
sent to Barnes. In a letter dated October 7, Lewis again explained to Prymus that he was
seeking Barnes’ complete personnel file, including the information relating to Barnes’ 2003
discharge and reinstatement. The Respondent did not provide any further information.

C. The grievance of Anita Logan

Anita Logan is employed by the Respondent at its Alhambra facility and is a member of
the Union. In approximately May 2004, Logan submitted a bid for a job opening in the
Respondent’s Pasadena facility. Her bid was not successful. Jaime Berridy, who had more
seniority than Logan, was awarded the job. Berridy is a member of the Utility Workers Union. On
May 27, the Union filed a grievance on Logan’s behalf.
8 The Respondent’s and the Union’s practice has been to label some claims as grievances
and other claims as protests. Despite the labels, the parties do not contend that protests involve
different procedures than grievances.
9 Lewis credibly testified that he filed a protest on behalf of Barnes. Although the General
Counsel was unable to present the protest or grievance letter, a similar letter was received in
evidence. (Jt. Exh. 6.) That Lewis did file a protest of Barnes’ discharge on September 5 is
corroborated by Prymus’ reply to Lewis’ “letters dated September 5 and 13, 2004,” in which
Prymus also states, “we must deny your request for a protest hearing and copies of the
Personnel File.” The September 13 letter made no explicit reference to the protest; it simply
requested a copy of Barnes’ personnel file. Moreover, the Respondent does not dispute that
Lewis filed a protest of Barnes’ discharge on September 5.

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Logan believed that Berridy was on disability at the time he submitted his bid for the
Pasadena job, and it is the Union’s position that employees on disability are only allowed to bid
on jobs they are able to fill. Accordingly, on October 1, 2004, Lewis sent Prymus a letter in
which he requested (1) the date Berridy was certified for disability; (2) the date the doctor
cleared Berridy for return to work; (3) the date Berridy was certified as being permanent and
stationary;10 and (4) a list of all employees off work and on disability during the past year, and
the dates the employees returned to work. (Jt. Exh. 4.)

Prymus refused to provide any of the information Lewis had requested. Prymus claimed
that the information was private medical information and that the requested information could
not be provided without the consent of all the employees who had been on disability, including
Berridy.

Since 1987, the Respondent has regularly provided the Union with a list, by quarter, of
all employees who are off work and on disability. The list includes the employees’ names, their
addresses, and the dates the employees went off work and on disability. The list does not
include the dates the employees returned to work or the dates the employees became
permanent and stationary.

III. Analysis

“There can be no question of the general obligation of an employer to provide
information that is needed by the bargaining representative for the proper performance of its
duties.” NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967). These duties encompass
the union’s responsibilities as bargaining representative for employees under the Act. The
employer’s obligation extends to information involving labor-management relations during the
term of an existing collective-bargaining agreement and in preparation for negotiations involving
a future contract. The employer’s obligation also extends to information in furtherance of, or
which would allow the union to decide whether to process, a grievance. Id. at 436; Bickerstaff
Clay Products, 266 NLRB 983 (1983).

The standard for relevancy is a liberal, “discovery-type standard.” NLRB v. Acme
Industrial Co, supra at 437. Accordingly, information that is “potentially relevant and will be of
use to the union in fulfilling its responsibilities as the employees’ exclusive bargaining
representative” must be produced. Pennsylvania Power and Light Co., 301 NLRB 1104, 1104–
1105 (1991). The requested information need not be dispositive of the issue for which it is
sought, but need only have some bearing on it. Id. at 1105. “An employer must furnish
information that is of even probable or potential relevance to the union’s duties.” Conrock Co.,
263 NLRB 1293, 1294 (1982).

Information pertaining to employees within the bargaining unit is presumptively relevant.
Postal Service, 332 NLRB 635 (2000). On the other hand, the union must show the relevance of
information that does not concern employees in the bargaining unit. In keeping with the liberal
standard of relevance, this burden is not a heavy one and only requires the union to
demonstrate more than a mere suspicion of the matter for which the information is sought.
Sheraton Hartford Hotel, 289 NLRB 463 (1988).
10 “Permanent and stationary” was not fully explained at the hearing, but Lewis did explain
that the Union and the Respondent have disputed the bidding rights of employees who have
been placed on “permanent and stationary.” (Tr. 34–35.)

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A. Training program.

The training program not only involved funding of a training trust for the benefit of the
Utility Workers Union, but also involved a program administered by the Utility Workers Union
from which the Respondent agreed to hire graduates. Thus, the program did concern
employees in the bargaining unit, both because it provided funds for their bargaining
representative to train potential members, and because the training program involved the
source and placement of accretions to the unit. Moreover, the Union wanted to address the
possibility of obtaining a training trust and program similar to the one that the Respondent had
partnered with the Utility Workers Union. See Crest Litho, Inc., 308 NLRB 108 (1992) (the
funding of benefit funds, such as training funds, is a mandatory subject of bargaining); Allied
Mechanical Services, 332 NLRB 1600 (2001).

By virtue of the CPUC settlement agreement, the Respondent is providing substantial
assistance to only one of two, joint exclusive bargaining representatives of its employees. The
Union is not seeking to invalidate that settlement agreement or to intervene in the CPUC
proceeding or to obtain information for another CPUC proceeding. It is attempting to learn
relevant aspects of the training program so that it can make a determination whether to seek a
similar or different program, or no program at all.

The Respondent makes no claim that the CPUC proceeding is confidential or that the
requested information is confidential. Rather, the Respondent argues that CPUC proceedings
are not mandatory subjects of bargaining, and failure to provide information concerning those
proceedings is not an unfair labor practice. This argument misses the point. The Union’s
information request concerns the training program, not the CPUC proceeding. The Respondent
agreed to fund and join a training trust and to hire graduates from the trust’s training program.
The mere fact that the Respondent made its agreement pursuant to a settlement of a CPUC
proceeding, rather than in a collective-bargaining agreement, does not insulate that training
program from disclosure to the employees’ bargaining representative.

The Respondent also argues that the Board has never ruled whether sponsorship of an
apprenticeship program is a mandatory subject of bargaining, citing Building Trades Employers’
Educational Assoc. v. McGowan, 311 F.3d 501, 512 (2d Cir. 2002). The Respondent further
contends that the facts in the present case warrant a finding that its sponsorship of the training
program is a permissive subject of bargaining. However, the Respondent’s argument does not
prove enough. The Respondent has done more than sponsor a training program with the Utility
Workers Union. The Respondent has funded the training program, it has joined the trust that
administers the program, and it has agreed to hire graduates from the program. Thus, whether
sponsorship of an apprenticeship program has been determined to be a mandatory subject of
bargaining is inapposite to the present case where the Respondent has done so much more.

The Respondent’s funding of the training program, without more, would render the
program a mandatory subject of bargaining. See, e.g., Crest Litho, Inc., supra; Allied
Mechanical Services, Inc., supra. Besides, apprenticeship and training are mandatory subjects
of collective bargaining. E.g., DFV Electric Corp., 306 NLRB 24, 25 (1992). Moreover, even
where a union is simply preparing for contract negotiations, the Respondent must furnish the
union with sufficient information, on request, to enable it to represent employees adequately in
contract negotiations. Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 68 (3d Cir. 1965); J. I. Case
Co. v. NLRB, 253 F.2d 149, 153–154 (7th Cir. 1958). In the present case, the Union sought the
requested information to determine whether it wanted to negotiate a similar or different training
program as the program the Respondent was providing to and for the Utility Workers Union.

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The Respondent argues that the sole concern expressed by the Union was that
graduates of the training program would be more likely to join the Utility Workers Union rather
than the Chemical Workers Union, which shows that the requested information did not concern
a mandatory subject of bargaining. The Respondent cites no authority for this proposition, and I
reject it. Moreover, whether new, bargaining unit employees will join the Union is a matter that
affects the continuing viability of the Union and the terms and conditions of employment of the
present employees who are members of the Union.

The Respondent also argues that the training program is a “one-shot pilot program,”
which supports a finding that it is a non-mandatory subject of bargaining. Whether the training
program is, in fact, a “one-shot” program is a conclusion that only the Respondent, and perhaps
the Utility Workers Union, knows. By refusing to provide the requested information, the
Respondent assumes facts to which it, but not the Union, is privy. Also, the Respondent again
provides no authority for its contention, and I reject it.

The Respondent argues that the training program is not its exclusive method of
recruitment, that it is committed to hire only ten graduates from that program, and accordingly,
that the training program is a non-mandatory subject of bargaining. Again, the Respondent
provides no support for this contention, and I reject it. The selection of a source from which to
hire employees is a mandatory subject of bargaining. See McClatchy Newspapers, 307 NLRB
773, 775 (1992). The Respondent’s commitment to hire ten applicants from a dedicated source
is not an insignificant number or commitment. The Respondent may hire no graduates from the
program beyond its original commitment, or it may hire many subsequent graduates. In either
event, the commitment is substantial, and the results could be considerably greater.

The Respondent acknowledges that it has ready access to copies of the settlement
agreement. Nevertheless, the Respondent states that it posted the settlement agreement on its
website and it advised the Union of this posting. Citing Cincinnati Steel Castings Co., 86 NLRB
592 (1949), the Respondent contends that it is not required to produce the information in the
form requested by the Union, and its direction that the Union could obtain a copy of the
settlement agreement on the Web satisfied its obligation to produce the information. In
Cincinnati Steel Castings, the company refused to provide the union with a written list of the
employees in the bargaining unit, including their wage rates and classifications, but it did orally
provide the information sought by the union. The Board held that “the employer is [not] obligated
to furnish such information in the exact form requested by the representative. It is sufficient if the
information is made available in a manner not so burdensome or time-consuming as to impede
the process of bargaining.” Id. at 593.

Cincinnati Steel Castings is inapposite because there the company produced the exact
information the union sought, but in a different form. Here, the Respondent has not produced
the exact information the Union seeks. The Union seeks a copy of the settlement agreement.
The agreement is a written document that became an agreement when the parties signed it.
The Respondent does not claim that the document posted on its website contains the
signatures of the parties. The Union sought the settlement agreement, which necessarily means
the agreement containing the signatures of the parties. Thus, the Respondent’s website does
not contain the agreement sought by the Union.

It may be that the document on the Respondent’s website is the exact agreement that
contains the parties’ signatures, but this is merely an assumption. It may also be that the signed
agreement would provide additional assistance to the Union, such as the names of the persons
who actually signed the agreement on behalf of the various parties. But the assumption and

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speculation are beside the point. The Respondent did not produce the agreement requested by
the Union when it referred the Union to a document on the Respondent’s website. Moreover, the
Respondent has failed to produce any of the additional information relating to the training
program that the Union requested in its letter of August 20, 2004.

The Respondent argues that it is not required to produce the information in the exact
form requested by the Union. The General Counsel argues that the Respondent is required to
produce the information even though the Union could obtain the information from another
source. Bel-Air Bowl, Inc., 247 NLRB 6, 11 (1980); see also Kroger Co., 226 NLRB 512, 513
(1976) (“The union is under no obligation to utilize a burdensome procedure of obtaining desired
information where the employer may have such information available in a more convenient
form.”); Illinois-American Water Co., 296 NLRB 715, 724 (1989), enfd. 933 F.2d 1368 (7th Cir.
1991) (even though the requested information is available to the union through other sources,
including its own records, an employer is not relieved of its bargaining obligation to supply the
requested information to the union in a convenient form). Insofar as the settlement agreement is
concerned, the Respondent could have avoided litigating this question by making a copy of the
agreement to which it had ready access. It is likely that the Respondent’s cost of this aspect of
the litigation is substantially in excess of the nominal cost of making a copy of the settlement
agreement and sending it to or handing it to the Union. Where compliance would be so simple
and effortless, the Respondent’s positions are not enhanced by its insistence on litigating the
propriety of its actions in this regard. In any event, I need not resolve the apparent conflict
between the Respondent’s and the General Counsel’s respective positions because, as
explained above, the Respondent’s website does not contain the agreement requested by the
Union or the additional information requested by the Union.

The settlement agreement in which the Respondent’s and the Utility Workers Union’s
training program was established, as well as the details regarding the training program, is
information relevant and necessary for the Union in its role as the collective-bargaining
representative of Respondent’s employees. The Respondent violated Section 8(a)(1) and (5) of
the Act when it refused to provide this information to the Union.

B. The grievance of Joshua Barnes

Information in furtherance of, or which would allow the union to decide whether to
proceed with, a grievance or arbitration must be provided as it falls within the ambit of the
parties’ duty to bargain. NLRB v. Acme Industrial Co., supra. As the Supreme Court explained:

Arbitration can function properly only if the grievance procedures leading to
it can sift out unmeritorious claims. For if all claims originally initiated as
grievances had to be processed through to arbitration, the system would be
woefully overburdened. Yet, that is precisely what the respondent’s
restrictive view would require. It would force the union to take a grievance
all the way through to arbitration without providing the opportunity to
evaluate the merits of the claim. . . . Nothing in federal labor law requires
such a result.

Id. at 438–439. The Union filed a protest or grievance on Barnes’ discharge, and it sought his
complete personnel file from the Respondent in order to evaluate the merits of that grievance
and to determine whether the grievance should be pursued. When the Union made its request
for Barnes’ personnel file, it provided the Respondent with a release signed by Barnes.

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The information requested by the Union concerned a bargaining unit member, and
accordingly, the information is relevant. A-Plus Roofing, Inc., 295 NLRB 967 (1989). Once this
showing of relevance has been made, the employer has the burden to prove a lack of relevance
or to provide adequate reasons why the request for information should be denied. Id. The
Respondent claims that Barnes’ personnel file is not relevant to the Union’s duties as the
collective-bargaining representative, and it presents several bases in support of that position.
First, the Respondent claims that the Union did not have the right to grieve Barnes’ discharge
because part-time employees are terminable at will. This contention ignores the grievance rights
granted to part-time employees by section 6.3(B) of the collective-bargaining agreement, and is
rejected.

Second, the Respondent claims that there are safeguards, in addition to the grievance
procedure, to minimize the chance of an unfair labor practice. In particular, the Respondent
cites its Office of Diversity, which presumably deals with claims of discrimination for reasons
other than antiunion animus. It is sufficient to observe that other procedures to vindicate claims
unrelated to the collective-bargaining agreement have no impact on the Respondent’s statutory
obligation to provide relevant information to the Union. Whether these other safeguards would
minimize the chance of an unfair labor practice, which is questionable at best, does not diminish
the Respondent’s collective-bargaining obligation to provide relevant information.

Third, the Respondent claims that Barnes was discharged pursuant to section 6.3(A) of
the agreement, dealing with discharges for unsatisfactory performance, and that such
discharges of part-time employees are not grievable. The General Counsel replies that Barnes
had been discharged in late 2003, he was then reinstated after the intervention of Sempra
Energy Company, the Respondent’s parent company, but Barnes’ supervisors treated him
poorly after his reinstatement. Thus, the Union contends that Barnes may not have been
discharged for performance, or at least solely for performance, but for a reason associated with
his earlier discharge and reinstatement. The Union advised the Respondent of this contention
when it requested Barnes’ personnel file.

The Respondent’s position unilaterally requires the Union to accept, without question or
supporting information, the Respondent’s bald claim that Barnes was discharged under section
6.3(A) of the collective-bargaining agreement for performance reasons. The Union is entitled to
challenge that bald claim, and its request for Barnes’ personnel file was made pursuant to that
challenge. See Ohio Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). As
the administrative law judge observed in Taylor Hospital, 317 NLRB 991, 994 (1995), “If the
Union were to accept Respondent’s claim without requesting to see available verifying
documentation, it would not be properly representing its members.” In the present case, the
Union is properly representing its members by requesting verifying information on Barnes’
discharge.

Fourth, the Respondent states that Barnes’ personnel file was sent directly to Barnes,
that the Union then had access to the file, and that, in effect, the same result occurred as would
have occurred if it had complied with the Union’s request.11 This “no harm-no foul” contention
ignores the Union’s statutorily protected status as the employee’s collective-bargaining
representative. The Respondent did not fulfill its obligation by submitting the information to the
11 However, it is not at all clear that the Respondent provided Barnes with a complete copy
of his personnel file because there was no reference in the file provided to Barnes regarding his
earlier termination and reinstatement. In any event, whether a complete file was provided is not
decided and is irrelevant to the violation found herein.

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employee rather than directly to the requesting Union with whom it must bargain in good faith.
Assn. of D.C. Liquor Wholesalers, 300 NLRB 224, 229 (1990). Barnes’ personnel file was
relevant and necessary to the Union’s performance of its representative obligations. In refusing
to comply with the Union’s request for information and in dealing directly with the employee, the
Respondent compounded its violation of its duty to bargain with the Union. Moreover, it is no
defense to an unfair labor practice charge to claim that the Respondent committed another
unfair labor practice charge. See Bomat Plumbing & Heating, 131 NLRB 1243, 1246 (1961)
(“One unfair labor practice does not excuse another.”)

The Respondent claims that the Union’s request for information in the possession of its
parent corporation, Sempra, is improper and irrelevant. The employer has a duty to request any
information not in its possession from its parent corporation and to show that its request has
been refused. Arch of West Virginia, 304 NLRB 1089 (1991). Accordingly, the Respondent’s
contention, that the Union’s request for information in the possession of Sempra Energy
Company is improper and irrelevant, is without merit.

It is neither necessary nor proper to address the merits of the parties’ conflicting
contentions of the reason or reasons concerning Barnes’ discharge. The reason for Barnes’
discharge is a matter to be resolved in a grievance, if it is pursued, or arbitration. The requested
information is relevant to the grievance, the Respondent has not met its burden of proving that
the information is not relevant, and it has provided no other reasons why the information should
not be provided to the Union. Accordingly, the Respondent violated Section 8(a)(1) and (5) of
the Act when it refused the Union’s request for a complete copy of Barnes’ personnel file.

C. The Grievance of Anita Logan

Substantial claims of confidentiality may justify conditional or redacted disclosure of
otherwise relevant information. Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979); Detroit
Newspaper Agency, 317 NLRB 1071 (1995). In resolving a claim of confidentiality, the Board
first determines if the employer has established a “substantial and legitimate” confidentiality
interest in the information, and then balances that interest against the union’s need for the
information. Minnesota Mining & Mfg. Co., 261 NLRB 27, 30 (1982), enfd. sub nom. Oil Workers
v. NLRB, 711 F.2d 348 (DC Cir. 1983). The party asserting confidentiality has the burden of
proving it. Pennsylvania Power & Light Co., supra. Moreover, blanket claims of confidentiality
will not be upheld, and the party asserting confidentiality has a duty to seek an accommodation
that addresses both its concerns and its bargaining obligation. Detroit Newspaper Agency,
supra at 1072; Pennsylvania Power and Light Co., supra at 1105.

The Respondent has failed to meet its initial burden of proving a substantial and
legitimate confidentiality interest in the information. The Union requested no medical information
about Berridy or other employees. The Union sought information on Berridy’s disability status,
but no information on his medical condition or why he was on disability status. Moreover, the
Respondent has demonstrated its lack of a confidentiality interest in this information by regularly
providing to the Union since 1987 information on the disability status of its employees. This
nonconfidential information includes the names and addresses of employees who are placed on
disability, and there is no evidence of any conditions on the disclosure of this disability
information nor any evidence that the Respondent or the employees considered the information
to be confidential. The Union seeks herein the date Berridy was placed on disability (which had
already been provided to the Union in the Respondent’s quarterly report, and thus could hardly
be confidential), and additional information relating to his disability status, such as the date he
was cleared to return to work and the date he was certified as being permanent and stationary.
This latter information is not confidential because (1) it is not medical information, (2) it is closely

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related and similar to the nonconfidential, disability information provided to the Union on a
quarterly basis, and (3) the information is open to all employees and management, at least by
inference, because it would be reflected by Berridy’s return to work at his same or a different
job.

The Respondent has also failed to establish a substantial and legitimate confidentiality
interest in the requested information pertaining to other employees. As noted, on a quarterly
basis, the Respondent provides to the Union the names and addresses of employees on
disability. The Union herein seeks the dates those employees returned to work, and this
information has not been shown to be medical information, or confidential, or substantially
different from the nonconfidential information voluntarily provided to the Union.

The Respondent argues that the Union should have the burden of proving the relevance
of the requested information even though the information concerns a member of the bargaining
unit. This argument is based on the Respondent’s claim that the Union is seeking the
information to use in connection with a grievance proceeding, which, if successful, would result
in Logan obtaining the job that the Respondent had awarded to Berridy. Because the
information would not be helpful to Berridy, the Respondent argues it is not relevant. The
Respondent offers no authority for this contention, which is without merit. The Board’s
placement of the burden of proof is a function of the relevance of the information, not on
whether another employee could be adversely affected by the information. The requested
information concerns a bargaining unit member and is sought in connection with a grievance on
behalf of another bargaining unit member. Accordingly, the information is presumptively
relevant, and this relevance is not affected by the chance that another bargaining unit member
might object to its production. See Wayne Memorial Hospital Assn., 322 NLRB 100 (1996);
Pfizer, Inc., 268 NLRB 916 (1984). Moreover, and without regard to a presumption, I find that
the Union has established that the information is relevant.

The Respondent replied to the Union’s request for information by requiring the Union to
obtain a release from Berridy. Of course, Berridy has not provided a release, which is hardly
surprising since the Union was challenging his selection for the position over Logan.
Conditioning the turnover of the requested information on Berridy’s consent and release is
unreasonable. The information is directly relevant to the Union’s determination of whether
Berridy rather than Logan was properly selected for the job they both bid on. In addition, the
information is not confidential, and the Respondent’s failure to produce the information in
response to the Union’s request violated its bargaining duty under Section 8(a)(1) and (5).

Moreover, if the information were deemed to be confidential, “the Board is required to
balance a union’s need for the information against any ‘legitimate and substantial’ confidentiality
interests established by the employer.” Pennsylvania Power & Light Co., supra at 1105. I find
that the relevance of the requested information to the Union’s determination of whether to
pursue the grievance on Logan’s behalf outweighs the limited confidentiality interest in the
information.

The Respondent contends that the information is not relevant because the Union’s
theory in Logan’s grievance has no merit. However, “the Board, in passing on an information
request, is not concerned with the merits of the grievance.” Pfizer, Inc., supra at 918. The
Respondent also contends that the Union’s position in Logan’s grievance violates the
Americans with Disabilities Act, 42 U.S.C. sec. 12101, et seq. Since a worker’s qualification for
disability status with the Respondent is not necessarily coterminous with the definition of a
disabled person under the federal statute, the Respondent’s contention appears to be
misplaced. Nevertheless, the contention may not be considered in this proceeding. Pfizer, Inc.,

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supra.

In conclusion, the Respondent has failed and refused to furnish the Union all of the
information requested by the Union, including (1) information requested in its letter of August 20,
2004 relating to the training program; (2) Joshua Barnes’ complete personnel file requested in
the Union’s letter of September 13, 2004; and (3) information relating to the grievance of Anita
Logan requested in the Union’s letter of October 1, 2004, which is necessary for and relevant to
the Union’s performance of its statutory duties and responsibilities as the employees’ collective-
bargaining representative. By doing so, the Respondent violated Section 8(a)(1) and (5).

Conclusions of Law

1. Respondent, Southern California Gas Company, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Union, Chemical Workers Union Council/UFCW, Local 47C, Local 78C, Local
350C, and Local 995C are labor organizations within the meaning of Section 2(5) of the Act.

3. The Union is the joint, exclusive collective-bargaining representative of the employees
in the appropriate unit described in section 2.2(A) of the collective-bargaining agreement
between the Respondent and the Unions, which was effective from April 1, 2002 to
December 31, 2004.

4. The Respondent violated Section 8(a)(1) and (5) of the Act because the Respondent
failed and refused to bargain in good faith with the Union as the joint, exclusive bargaining
representative of the employees in the above appropriate unit by refusing to provide to the
Union all of the information requested by the Union, including (1) information requested in the
Union’s letter of August 20, 2004 relating to the training program; (2) Joshua Barnes’ complete
personnel file requested in the Union’s letter of September 13, 2004; and (3) information relating
to the grievance of Anita Logan requested in the Union’s letter of October 1, 2004, information
which is necessary for and relevant to the Union’s performance of its statutory duties and
responsibilities as the employees’ collective-bargaining representative.

5. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent will be directed to turn over to the Union the
requested information described in this decision.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12

12 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.

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ORDER

The Respondent, Southern California Gas Company, a corporation, with a principal
place of business located at 555 West Fifth Street, Los Angeles, California, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to bargain in good faith with the Union as the joint, exclusive
bargaining representative of its employees in the appropriate bargaining unit described above
by failing and refusing to furnish the Union with the information described in this decision.

(b) In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Provide and give to the Union all of the information requested by the Union, including
(1) information requested in the Union’s letter of August 20, 2004 relating to the training
program; (2) Joshua Barnes’ complete personnel file requested in the Union’s letter of
September 13, 2004; and (3) information relating to the grievance of Anita Logan requested in
the Union’s letter of October 1, 2004.

(b) Within 14 days after service by the Region, post at its facility in Los Angeles,
California, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 21, 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 are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, 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 20, 2004.

(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.

13 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.

Dated:

____________________
Joseph Gontram
Administrative 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 violated 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 benefit and protection
Choose not to engage in any of these protected activities

In recognition of these rights, we hereby notify employees that:

WE WILL NOT refuse to bargain collectively and in good faith with the Chemical Workers Union
Council/UFCW, Local 47C, Local 78C, Local 350C, and Local 995C (the Union) by refusing to
give the Union information that it needs to represent you.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL provide the Union with the information it requested regarding the training program
agreed to between the Southern California Gas Company and the Utility Workers of America,
AFL–CIO.

WE WILL provide the Union with the information it requested in connection with its processing of
the grievance or protest on behalf of Joshua Barnes.

WE WILL provide the Union with the information requested in connection with its processing of
the grievance on behalf of Anita Logan.

Southern California Gas Company
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 213-894-5229.