Entergy Operations, Inc.

JD(SF)-13-25 Francisville & Killona, LA

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UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

SAN FRANCISCO BRANCH OFFICE

ENTERGY OPERATIONS, INC.

and Case 16-CA-328659

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL 2286

Alex Romo, Esq., for the General Counsel. Mr. Michael Murphy, for the Charging Party Union. Gregory Guidry, Esq., for the Respondent Employer.

DECISION

STATEMENT OF THE CASE

BRIAN D. GEE, Administrative Law Judge. Pursuant to a stipulated record, this case presents the question whether Respondent Entergy Operations, Inc., violated Section 8(a)(5) of the National Labor Relations Act (the Act) by failing and refusing to provide information requested by the Charging Party Union International Brotherhood of Electrical Workers Local 2286?

More specifically, during contract bargaining in 2023, the Union requested wage information for nonunit personnel at another, nonunionized facility operated by Respondent. The Union explained that it needed the information to assess the veracity of a statement made by Respondent's negotiator and that the information could affect its decision to accept or reject Respondent's proposal over employee benefits, a key issue in contract talks. Respondent refused to furnish the information. Nonetheless, the parties continued their negotiations and reached a successor collective-bargaining agreement (CBA). After ratification, Respondent asked if the Union was going to withdraw the instant unfair labor practice (ULP) charge since negotiations had concluded. The Union said it would not, saying that the information would "help the relationship."

As explained below, I find that Respondent violated Section 8(a)(5) by refusing to furnish the information at the time it was requested and should be ordered to furnish it now, since Respondent failed to carry its burden to show that the information is no longer needed and the Union articulated a basis how the information would assist it in carrying out its representational duties to the bargaining unit.

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The Union filed the charge in this matter on October 24, 2023, and a copy was served electronically on Respondent on the same date. (Jt. Stip. ¶ 1.) 1 On July 16, 2024, the General Counsel²issued a complaint and notice of hearing, which was served on Respondent on the same day. (Jt. Stip. ¶ 4.) On July 29, 2024, Respondent filed a timely answer.³(Jt. Stip. ¶ 6.) On January 13, 2025, pursuant to Section 102.35(a)(9) of the Board's Rules and 5 Regulations, the General Counsel, Respondent, and the Union filed a joint motion to waive a hearing in this matter and to authorize the assigned Administrative Law Judge (ALJ) to issue a decision based on a stipulated record. In their joint motion, the parties made clear that they had not waived their right to file briefs to the ALJ or exceptions to the Board , or to obtain judicial review of either the decision of the ALJ or of the Board. On January 24, 2025, I granted the 10 parties' joint motion and set a briefing schedule.

Based on my careful review of the entire record, including the stipulated record, joint exhibits, and the parties' briefs, I make the following

FINDINGS OF FACT

I. JURISDICTION 15

At all times material to the complaint, Respondent has been a corporation with offices and places of business at 5485 U.S. 61 St., Francisville, Louisiana 70775 (the River Bend facility) and 17265 River Road, Killona, Louisiana 70057 (the Waterford III facility), and has been engaged in the production of electricity. During the past 12 months, in conducting its business operations, Respondent purchased and received at its River Bend facility goods and 20 materials valued in excess of $50,000 directly from points outside the State of Louisiana. (Jt. Stip. ¶ ¶ 2, 3.) Based on the foregoing, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all times material to the complaint, the Union has been a labor organization within the meaning of Section 2(5) of the Act. (Jt. Stip. ¶¶ 11, 12.) 25

II. FACTS

Respondent operates four nuclear power plants through which it produces electricity. The two plants pertinent to this case are both located in the State of Louisiana: River Bend and Waterford III.⁴Respondent employs approximately 748 employees at River Bend and

1 To aid review, I have included certain citations to the record in my findings of fact. The citations are not necessarily exclusive or exhaustive, as my findings and conclusions are based on my review and consideration of the entire record.

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approximately 745 employees at Waterford III, which is located 95 miles south along the Mississippi River. While the Union represents a unit of employees at River Bend, it does not represent any employees at Waterford III. (Jt. Stip. ¶¶ 8, 10-12.) At all material times, the Union has been the exclusive collective-bargaining representative of a bargaining unit at River Bend based on Section 9(a) of the Act and 5 Respondent has recognized the Union as such. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which was executed in January 2024. (Jt. Stip. ¶ 9.) The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

Included: All operation and maintenance employees in the Employer's River Bend 10 facility located in the West Feliciana Parish, Louisiana, including control room operators, production technicians, warehousemen, and maintenance employees. Excluded: Property protection employees, temporary employees, confidential employees, part-time employees, professional employees, and supervisors as defined in the National Labor Relations Act as amended. 15

(Jt. Stip. ¶ 8.)

The parties' penultimate CBA was effective from July 14, 2019, through July 16, 2022. Immediately after the expiration of the CBA, the parties extended it via several Memoranda of Agreement (MOA).

In October 2023,⁵the parties engaged in negotiations for a successor CBA. The key 20 issues were wages and employee health and retirement benefits. (Jt. Stip. ¶ 20.) On October 17, at an in-person bargaining session, Johnny Johnson, the Union's Business Manager and Financial Secretary, presented evidence of wages for employees at Waterford III who held positions identical to unit employees at River Bend. Respondent's Labor Relations Manager Charles MacLeod responded that the Union's evidence and understanding of the 25 Waterford III employees were incorrect. This caused Johnson to orally request that MacLeod present evidence to support his claim. MacLeod refused to do so, asserting that any such information was proprietary and privileged. (Jt. Stip. ¶¶ 14, 15, 21.) Later that day, Johnson emailed a written information request to MacLeod to request a list of the current classifications and rates of pay for employees at Waterford III in positions 30 equivalent to bargaining unit positions at River Bend. Johnson explained that the Union needed that wage data for nonunit personnel to verify the assertion made by MacLeod: "In our last table session, you stated the Waterford III rates of pay the Union provided were inaccurate and in most cases were off by as much as five dollars per hour." Johnson added that the information was needed to "verify the accuracy of this statement." (Jt. Stip. ¶ 22, Jt. Exh. 2.) 35 By email dated October 18, MacLeod denied the information request. He asserted that the Union's proffered reason for the wage information did "not provide a basis for obtaining such

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information." MacLeod also said that Respondent had made no contract proposal based on such wage information, "The Company has not made any proposal based on such information or otherwise cited to or relied on such information as a basis for any bargaining position." (Jt. Stip. ¶ 23, Jt. Exh. 3.)

On October 23, Johnson emailed MacLeod a letter to provide "Further Clarification" of 5 the reasons why the Union needed the information. Johnson represented that during negotiations the company had proposed that the Union forego certain employee benefits (e.g., elimination of the cash balance pension for new hires and a lower tobacco usage surcharge for health insurance) and accept the "Entergy System Benefits," which would purportedly result in reduced benefits for unit employees (e.g., new hires not receiving any cash balance pension and a higher tobacco 10 usage surcharge). Johnson said that the Union was open to accepting the company's proposal, as long as Respondent agreed to pay unit employees higher wages and thereby close the pay disparity between nonunit Waterford III and unit River Bend employees. Johnson asserted that, during bargaining, he had presented evidence that the Waterford employees III earned higher wages than the unit employees at River Bend performing identical roles, but that MacLeod 15 countered that the Union's wage data was inaccurate. At that point, Johnson explained that the Union needed information to assess the veracity of MacLeod's claim:

As stated above, the Union's openness to your benefit proposal is contingent upon equalization of the pay rates between bargaining unit employees and Waterford III employees performing identical roles. Your claim that our information regarding those 20 pay rates is inaccurate must be verified in order for us to evaluate your benefit proposal. Though the information we have requested may not be presumptively relevant, we do have the right to verify claims that are material to our consideration of your benefit proposal. If your claim regarding the wages actually paid to Waterford III employees was important enough to raise in bargaining then it is important enough to require proof of its 25 accuracy.

(Jt. 4.)

On October 24, MacLeod emailed Johnson a letter reiterating Respondent's refusal to provide the requested information. (Jt. Stip. ¶¶ 24, 25, Jt. Exhs. 4, 5.) On October 30, the parties executed a Memorandum of Agreement, extending the expired 30 CBA indefinitely. (Jt. Stip. ¶17, Jt. Exhs. 7, 8.)

On December 14, the parties reached a tentative agreement for a new CBA. On January 5, 2024, the Union's membership ratified the successor CBA.

On January 8, 2024, Respondent Labor Relations Director Cesar Reyes asked Johnson whether, in light of ratification, the Union intended to withdraw its ULP charge. Johnson said, 35

"No, sir. Our membership wants to proceed with it." He added, "It will help the relationship if we receive the data and it shows what the company claimed in negotiations turns out to be true."

(Jt. Stip. ¶¶ 15, 19, Jt. Exh. 6.)

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Respondent has not provided the Union with any of the requested information. (Jt. Stip. ¶ 26.)

III. ANALYSIS

An employer's duty under Section 8(a)(5) of the Act to bargain collectively and in good faith with their employees' representative includes providing requested information which is 5 relevant and necessary to the union's performance of its representational duties. NLRB v. Acme Industrial Co., 385 U.S. 431 (1967). Among the various types of information which are to be produced is "information needed by the bargaining representative to assess claims made by the employer relevant to contract negotiations." Caldwell Mfg. Co., 346 NLRB 1159, 1159 (2006). While information pertaining to unit employees is presumptively relevant, information relating 10 to nonunit personnel is not. For the employer to be required to furnish it, the union must establish its relevance. However, such a showing is "not exceptionally heavy" and the Board uses a broad discovery standard when deciding that question. Management & Training Corp., 366 NLRB No. 134, slip op. at 2 (2018).

In the instant case, when it requested information pertaining to non-unit personnel at 15 Waterford III, the Union explained the relevance. During the October 17 bargaining session, Johnson presented evidence about the earnings of employees at Waterford III who held positions identical to unit employees at River Bend. MacLeod countered that the Union's information was inaccurate. This caused Johnson to request that wage data. MacLeod refused to provide it, asserting that the information was "proprietary and privileged."⁶In his October 17 letter, 20 Johnson explained that he requested the information because MacLeod said the Union's data was incorrect. Additionally, in his October 23 "further clarification," Johnson elaborated that the information was needed for the Union to properly consider Respondent's proposal for benefits— that MacLeod's claim "that our information regarding those pay rates is inaccurate must be verified in order for us to evaluate your benefit proposal." Based on these communications, I 25 conclude that the Union showed that the information was relevant and necessary to its evaluation of Respondent's benefits proposal.

Additionally, the Board has recognized that—in situations like this one where the union needs information about nonunit personnel to assess the veracity of claims made during bargaining by the employer's representatives—the nonunit information has been rendered 30 relevant. In short, the information was made "contextually relevant." The Board's decision in Management & Training Corp., 366 NLRB No. 134 (2018), explained this principle. In that case, the union heard rumors that nonunit security guards had received a raise and some managers may have received bonuses. It then confronted the employer with these rumors to counter the employer's refusal during bargaining to grant unit employees either raises or 35 bonuses. The employer denied that managers had received bonuses, asserted that nonunit employees now had a different pay scale, and stated that some nonunit positions had been given raises to comply with Department of Labor requirements. This caused the union to request that the employer furnish it with information related to pay and benefits for certain nonunit positions,

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as well as limited financial information. The employer refused to do so. The Board deemed the information to be "contextually relevant" because the union needed it to assess the truthfulness of the employer's claims and to formulate its own bargaining proposals. Therefore, the Board held that the employer violated Section 8(a)(5) by not providing the information. Slip op. at 2-3. Similarly in Brazos Electric Power Cooperative, Inc., 241 NLRB 1016, 1018 (1979), the Board 5 found that the union's request for wage rates and increases for nonunit employees was relevant to the union's preparation of bargaining proposals in the upcoming negotiations. See also KLB Industries, Inc. dba National Extrusion & Mfg. Co., 357 NLRB 127, 128 (2011) ("an employer's duty to bargain includes a duty to provide information that would enable the bargaining representative to assess the validity of the claims the employer has made in contract 10 negotiations."); Caldwell Mfg. Co., 346 NLRB 1159, 1159 (2006) ("an employer's duty to bargain includes a general duty to provide information needed by the bargaining representative to assess claims made by the employer relevant to contract negotiations."). Because the information was shown to be relevant, Respondent was required to furnish it, absent a valid defense—which it failed to establish. I find no merit to either of the two defenses 15 raised by Respondent in its brief. Respondent first argues that the Union's request was not relevant at the time it was made because the information was not needed to police a CBA violation, was not needed to process a grievance, and Respondent did not "put any non- bargaining unit wage information at issue."⁷Contrary to this argument, Respondent clearly put the wage rates of the Waterford III employees at issue when MacLeod claimed that Johnson's 20 data was incorrect. Respondent's second argument is that the Union's request is now moot since the parties signed a successor CBA. But this point confuses mootness (which affects the remedy) with relevance (which affects whether there was a violation). The Board has made clear that,

"the issue of whether there is a violation is to be determined by the facts as they existed at the time of the union's request." Borgess Medical Center, 342 NLRB 1105, 1107 (2004). When the 25 Union requested this information in 2023, the parties were engaged in bargaining, and so the information was relevant and necessary. To the extent that Respondent argues that it should not be required to furnish the information now that contract negotiations have concluded, that is a remedial issue and is thus discussed in the Remedy section below.

Based on the foregoing, I find that Respondent violated Section 8(a)(5) by failing and 30 refusing to furnish the Union with the requested information related to non-unit personnel at Waterford III, as alleged in complaint paragraph 9.

CONCLUSIONS OF LAW

1. Respondent Entergy Operations, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 35

2. International Brotherhood of Electrical Workers, Local 2286, is a labor organization within the meaning of Section 2(5) of the Act.

3. By failing and refusing to furnish the Union with requested information that was necessary and relevant to the performance of its duties as the bargaining

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representative of the bargaining unit, Respondent violated Section 8(a)(5) and (1) of the Act.

4. The unfair labor practices committed by Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act.

REMEDY 5

Having found that Respondent engaged in certain unfair labor practices, I recommend that the Board order it to cease and desist and to take certain affirmative actions designed to effectuate the policies of the Act. In addition to this finding that Respondent unlawfully failed and refused to furnish requested information, I must consider whether it would be appropriate for the Board to order it to provide the information now, more than a year after the parties reached a 10 successor CBA. Boeing Co., 364 NLRB 158, 161 (2016); Borgess Medical Center, 342 NLRB 1105, 1106-1107 (2004).

In Boeing, the Board established the framework for litigating the remedial issue whether the requesting union still needs the information and whether the employer must furnish it, despite 15 the occurrence of events potentially mooting the request, such as the reaching of a CBA. The Board held that, if the remedial question is being litigated alongside the ULP merits and the employer argues that the union no longer needs the information, it must introduce the relevant evidence and argue the issue. The General Counsel and the union may then contest the employer's claim and/or "state an ongoing need for the requested information and to introduce 20 evidence accordingly." The Board expressly stated that the "employer bears the burden of proof establishing that the union has no need for the requested information" and that "execution of a collective-bargaining agreement does not necessarily eliminate the need for relevant information that was requested by the union during bargaining." Id. at 161, fn. 10.

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Respondent argues that the Union no longer needs the information since the parties reached a new CBA and that the Union's basis for its continued need—that "it will help the relationship if we receive the data and it shows what the company claimed in negotiations turns out to be true"—is an insufficient basis for requiring production. Respondent therefore contends that it should not be required to produce the information. (R. Br., p. 2.) In response, the General 30 Counsel asserts that the Union's continued need for the information is "so it can formulate strategies for future matters or issues between the parties." (GC Br. 12.) In its brief, the Union stated no basis why it has a continuing need for the information. The only reason proffered by the Union was what it stated in 2023: it will "help the relationship."

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Having carefully considered this issue, I conclude that it would be appropriate to order Respondent to produce the information. First and foremost, Respondent failed to carry its burden to show that the Union has no need for the information. The Board has placed this initial burden on the employer. Boeing, supra, at p. 161. See also Borgess Medical Center, 342 NLRB 1105, 110 (2004). Second, the Union's reason for still needing the information—it will help the 40 relationship if the data verifies Respondent's claims in bargaining—relates directly to its representational duties as the employees' representative and points to the possibility to smoother negotiations going forward. The Union thus proffered a valid basis for still needing the information. While no evidence supports the General Counsel's argument—to formulate strategies for the future—the Board has recognized that as a basis for needing the information. 45

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