United States Court of Appeals


Argued November 15, 2000 Decided December 22, 2000 

No. 00-1036

Crowley Marine Services, Inc., 


National Labor Relations Board, 

On Petition for Review and Cross-Application 
for Enforcement of an Order of the 
National Labor Relations Board

Kenneth W. Anderson argued the cause for petitioner. 
With him on the briefs was Eugene Scalia.

Richard A. Cohen, Attorney, National Labor Relations 
Board, argued the cause for respondent. With him on the 
brief were Leonard R. Page, General Counsel, and Aileen A. 
Armstrong, Deputy Associate General Counsel. Frederick L. 
Cornnell, Jr., Attorney, entered an appearance.

Before: Edwards, Chief Judge, Sentelle and Henderson, 
Circuit Judges.

Opinion for the Court filed Per Curiam.

Dissenting opinion filed by Circuit Judge Henderson.

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

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

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

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

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

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

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

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

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

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

Karen LeCraft Henderson, Circuit Judge, dissenting:

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

William Shakespeare

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

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

I. Background

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

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

1 The term "tankermen" is somewhat of a misnomer. Tankermen 
work on barges, not tankers. They are land-based and do not 
travel with or aboard the barge as it travels between loading and 
unloading locations. By contrast, the licensed (and unlicensed) 
individuals who work on tankers, which are deep water vessels, 
travel aboard the tanker and work at both the loading and unload-
ing destinations. See JA 31-33.

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

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

JA 150-51.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Analysis

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

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

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

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

The first question is always one of relevance. See Emery-
ville Research Ctr., Shell Dev. Co. v. NLRB, 441 F.2d 880, 883 
(9th Cir. 1971). The relevance threshold is low so as to 
permit broad disclosure of information. See General Elec. Co., 
916 F.2d at 1168. Broad disclosure, however, is not unlimited 
disclosure. See id. "A union's bare assertion that it needs 
information ... does not automatically oblige the employer to 
supply all the information in the manner requested." Detroit 
Edison Co., 440 U.S. at 314. In fact, "information that may 
be 'relevant' in the broadest sense can nonetheless be with-
held without violating the duty to bargain in good faith." 
General Elec. Co., 916 F.2d at 1168. The employer's duty 
depends on the " 'probability that the desired information [is] 
relevant, and that it [will] be of use to the union in carrying 
out its statutory duties and responsibilities.' " Oil, Chem. & 
Atomic Workers Local Union, 711 F.2d at 359 (quoting 
NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967)).

"Certain types of information are 'so intrinsic to the core of 
the employer-employee relationship' that they are presump-
tively relevant. 'Conversely, when the requested information 
is not ordinarily pertinent to a union's role as bargaining 
representative, but is alleged to have become pertinent under 
particular circumstances, the union has the burden of proving 
relevance before the employer must comply.' " NLRB v. 
George Koch Sons, Inc., 950 F.2d 1324, 1331 (7th Cir. 1991) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, I dissent.