dissenting:
Over a 19-month period, Local 102 of the Utility Workers Union of America (the “Union”) presented Allegheny Power with 82 separate requests for information regarding 43 distinct issues. During this period, no collective bargaining or arbitration was taking place or was imminent. Nonetheless, Allegheny Pmver responded to every request — -albeit inadequately from the Union’s perspective — and devoted hundreds of employee hours to doing so. Dissatisfied with the responses, the Union filed complaints alleging that Allegheny Power violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act by failing to provide information relevant and necessary to the Union’s role as the employees’ exclusive bargaining representative.
The National Labor Relations Board (“NLRB” or “Board”) found two violations, holding that Allegheny Power failed to make an adequate response to the requested information on 2 of the 43 issues by not providing all the information requested or failing to provide it timely. Accordingly, the Board concluded that Allegheny Power did not act in good faith in discharging its responsibilities under the National Labor Relations Act. From the NLRB’s order; Allegheny Power filed this Petition for Review, and the NLRB filed a Cross-Application for Enforcement of its order.
Because the Board (1) failed to consider the record as a whole; (2) failed to require the Union, as a condition to obtaining information, to demonstrate the legal relevancy and need for the information requested; and (3) failed altogether to address Allegheny Power’s claimed defenses — burdensomeness, non-existence of documents requested, and Union bad faith — any one of which would have provided Allegheny Power with a complete defense, the Board’s order cannot be enforced. Had the Board imposed the legal requirement on the Union of demonstrating the legal relevancy and need for the information or had the Board considered the context of Allegheny Power’s conduct, it would have had to conclude, on the basis of binding precedent, that Allegheny Power did not fail in its “statutory obligation to bargain in good faith.” NLRB v. Truitt Mfg. Co., 351 U.S. 149, 154, 76 S.Ct. 753, 100 L.Ed. 1027 (1956).
For these reasons, I would grant Allegheny Power’s Petition for Review and deny the Board’s Cross-Application for Enforcement of its order.
I.
The National Labor Relations Act provides that employers engage in unfair labor practices when they “interfere with, restrain, or coerce employees in the exer*250cise of the rights” guaranteed by the Act or when they “refuse to bargain collectively with the representatives of [their] employees.” 29 U.S.C. § 158(a)(1), (5). As part of these statutory obligations, employers have a “general obligation ... to provide information that is needed by the bargaining representative for the proper performance of its duties.” NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). Thus, a union’s right to obtain relevant information “is statutory and not contractual.” NLRB v. Am. Nat’l Can Co., 924 F.2d 518, 522 (4th Cir.1991).
Because the duty to provide information is inherent in the requirements imposed by the Act, this duty is highly dependent upon context. The Supreme Court has instructed that “[t]he duty to supply information under § 8(a)(5) turns upon ‘the circumstances of the particular case,’ and much the same may be said for the type of disclosure that will satisfy that duty.” Detroit Edison Co. v. NLRB, 440 U.S. 301, 314-15, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979) (citation omitted). Indeed, an employer is not automatically obligated to produce available information merely because a union demands it, nor to produce information in a manner the union requests. See id. at 314, 99 S.Ct. 1123. Rather, the relevant 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.” Truitt Mfg., 351 U.S. at 153-54, 76 S.Ct. 753; see also Local 13, Detroit Newspaper Printing & Graphic Communications Union v. NLRB, 598 F.2d 267, 270-71 (D.C.Cir.1979) (clarifying that the good-faith requirement applies both to employer and union). We therefore examine the nature of the union’s requests for information, the statutory context in which the requests were made, and the nature of the employer’s response when determining whether an NLRB ruling is appropriate in “the circumstances of the particular case.”
Accordingly, to obtain information under § 8(a)(5), a union must demonstrate, as a condition to obtaining the information, that the information is relevant and necessary to its performance of collective bargaining responsibilities. See NLRB v. A.S. Abell Co., 624 F.2d 506, 510 (4th Cir.1980). While information pertaining to union employees is presumptively relevant, other information is not entitled to such a presumption. Id. Thus, when a union demands information other than information pertaining to union employees, the union bears the burden of establishing its relevancy. See Walter N. Yoder & Sons, Inc. v. NLRB, 754 F.2d 531, 535 (4th Cir.1985); A.S. Abell, 624 F.2d at 510. To demonstrate relevancy, a union must
make a formal request based on a reasonable belief that the information is necessary and show that it is relevant in order to trigger the employer’s obligation to give the information....
* * *
... [IJnformation is relevant if it is germane and has any bearing on the subject matter of the case.
The practical burden upon the union then is to show that the information will aid investigation of contract violations where the union has established a reasonable basis to suspect such violations have occurred. Actual violations need not be established in order to show relevancy.
Walter N. Yoder & Sons, 754 F.2d at 535 (internal quotation marks and citations omitted). A union must also provide facts that support its assertion of relevancy and need. See Rice Growers Ass’n of Cal., Inc., 312 N.L.R.B. 837, 838 (1993). “Reasons not brought to the attention of the *251Company at the time but later used to justify positions in administrative hearings should not be used to convict the Company of an unfair labor practice when these reasons were not brought to its attention contemporaneously, they being not apparent from the face of the request.” A.S. Abell, 624 F.2d at 513 n. 5.
When a union has carried its burden of demonstrating relevancy and necessity, the burden of production shifts to the employer. Even so, the employer need not produce information that it does not have, nor need it conduct studies for the purpose of supplying the union with the information requested. See Howe K. Sipes Co., 319 N.L.R.B. 30, 38 (1995) (“[A]n employer can be expected to supply only that information which it actually possesses or it can reasonably acquire. There is no requirement that, in response to a request for information, an employer conduct independent cost studies or analysis”); see also Korn Indus., Inc. v. NLRB, 389 F.2d 117, 123 (4th Cir.1967). The employer also need not honor the union’s request when the employer can demonstrate that the union’s request was made in bad faith. See NLRB v. Wachter Constr., Inc., 23 F.3d 1378, 1385 (8th Cir.1994). Finally, an employer cannot be compelled to provide information if doing so would cause undue burden. See Westinghouse Elec. Corp., 129 N.L.R.B. 850, 864 (1960) (“[T]he obligation of an employer to bargain in good faith does not require him to comply with a Union’s request for information if compliance is ‘unduly burdensome’”); see also Wachter Constr., 23 F.3d at 1388; Safeway Stores, Inc. v. NLRB, 691 F.2d 953, 956 (10th Cir.1982).
With these principles in hand, we review the NLRB rulings for compliance with them. And with respect to findings, we determine whether they are “supported by substantial evidence on the record considered, as a whole.” 29 U.S.C. § 160(f).
II.
The employer iii this case, West Penn Power Co. and The Potomac Edison Co. d/b/a Allegheny Power and Allegheny Energy Supply Co. (“Allegheny Power”), engages in the generation and distribution of electricity and operates power stations in Maryland, Pennsylvania, Virginia, and West Virginia. Allegheny Power maintains collective bargaining agreements with four different unions, including the union in this case, the Utility Workers Union of America (the “Union”), with the earliest agreement reached in the late 1930s. The relevant collective bargaining agreement between Allegheny Power and the Union became effective May 1, 1996, to expire April 30, 1999. But by an agreement reached in October 1997, the collective bargaining agreement was extended through April 30, 2001.
Over the years, Allegheny Power had long provided relevant information requested by the Union so that the Union could perform its duties as the collective bargaining representative. In addition, in 1977, Allegheny Power entered into an agreement (“1977 Agreement”) to provide the Union with copies of “Quarterly Contractor Work Reports” regarding non-union contractors under hire by the Company. Under this arrangement,- Allegheny Power provided the names of contractors that performed ordinary maintenance and repair work for the Company, the specific work performed, and the location of such work. The 1977 Agreement also permitted the Union to submit specific requests for contractor data and required the Company, in response, to “furnish similar information and disclosure within its possession on contractors or subcontractors whenever the Union believe[d], in good faith, it ha[d] *252a specific dispute or grievance on a specific use of contractors.” This agreement, however, contained no requirements regarding the exact format of the contractor reports, and no such requirements were ever added by the parties.
During the mid-1990s, government deregulation and increasing utility competition created significant challenges for, and required commensurate adjustments by, the electric utility industry. In response to the challenges, Allegheny Power changed from an “operating-company” model to a “business-unit” model, which involved the consolidation of three previously separate operating companies into a single entity. Among the changes that resulted from this consolidation was a shift from hiring non-union contractors “on a time and material basis ” to hiring them on a “project basis.” After that change, Allegheny Power provided job specifications to the contractors for each project, and the contractors, in turn, charged a flat rate, allocating such workers and resources as they deemed necessary to complete the project.
In the years before 1999, Allegheny Power received “very few requests” for information from Local 102, the Pennsylvania chapter of the Union. But all of that changed in May 1999.
Beginning with a request on May 3,1999 and continuing for some 19 months thereafter, the volume of information requests submitted by Local 102 increased dramatically and expanded well beyond the traditional information requests relating to arbitration or contract negotiations. Indeed, there was no arbitration or contract negotiation ongoing or anticipated in 1999; the 1999 expiration date of the collective bargaining agreement had been extended to 2001 through an October 1997 agreement. Yet the record shows that Local 102 submitted, over the next 19 months, 82 separate requests for information concerning 43 different subjects, ranging over a wide gamut from matters regarding individual Union members, to clothing concerns, underground training, and tool repair. Moreover, these requests were made in addition to ongoing meetings between Company officials and their Union counterparts “to talk about general company issues” and “to talk and resolve issues such as fire resistant clothing, resource sharing ... [and] grievances.” These requests were also in addition to regular telephone conversations between the Company and Local 102. Despite the open avenues for oral communication, however, the number of the Union’s formal information requests continued to swell.
Faced with this significant increase in information requests, Allegheny Power’s response required — as the ALJ found in this case — the effort of “five fulltime employees [devoting] hundred[s] of hours.” The president of Local 102 later agreed that the Union had “asked for voluminous information, and ... got voluminous information, although not always everything [it] wanted.” And the ALJ found that Allegheny Power responded “in some fashion” to all of the requests. A summary of the requests and responses, as contained in the record at J.A. 343-51, follows:
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Apparently dissatisfied with Allegheny Power’s responses, the Union filed complaints with the NLRB, alleging that Allegheny Power failed to provide timely and sufficient information on 6 of the 43 topics requested by Local 102, namely requests with respect to (1) Quarterly Contractor Work Reports, (2) the Electric Load Research Initiative project, (3) foreign electric utilities, (4) meter-related data at the Oakland and Cumberland service centers, (5) Local 102 member Phil Cosner, and (6) 10-hour vacations. On numbers (1) and (2), the NLRB found violations.
With respect to number (1), the Quarterly Contractor Work Reports, Local 102 complained that changes to the format of Allegheny Power’s reports reduced the *255flow of information to the Union and thus constituted an unfair labor practice. Prior to 1998, each service center and power station in the Allegheny Power network compiled numerical totals of the non-union workers contracted to perform specified tasks and then provided these data to the Union. In 1998, following Allegheny Power’s reorganization, the Company centralized its data collection efforts and began to hire outside contractors on a “project basis.” As a result of these changes, the information provided to Local 102 in the Quarterly Contractor Work Reports became more “general” than had previously been the case. Instead of providing numerical data and descriptions of the employees staffing a project, Allegheny Power listed the number to be “as needed” by the contractor because the contractor, not Allegheny, determined the number and kinds of workers to staff the project, billing Allegheny Power only on a project basis, not on a time-and-materials basis. This generalization in reporting, the Union contended, constituted an unfair labor practice.
With respect to number (2), the Electric Load Research Initiative project (the “ELRI” project), Local 102 complained that Allegheny Power provided inadequate information on an untimely basis. In October 1999, Allegheny Power entered into a contract with Itron, Inc., to install hardware and provide data collection services for the ELRI project, a pilot program designed to ascertain whether data from customers’ meters could be transmitted to the utility by telephone, in real time, without the use of meter readers. After a Union worker noticed ELRI-related activity in 1999 at a Frederick, Maryland facility, the Union contacted Allegheny Power in November 1999 and requested a copy of the Company’s contract with Itron, along with a time schedule for installation of the ELRI meters. Allegheny Power provided this information in March 2000. The Union then made two further requests in April 2000 for a significant amount of additional information on numerous topics. For example, the Union sought “whatever documents describe or refer to the Company’s ELRI work and the activities of Itron, including but not limited to advisories and newsletters”; descriptions of training and safety procedures relating to the ELRI project; use of identification by Itron’s workers; and detailed information on “each individual who has been involved with the project.” Despite the magnitude of this request, Allegheny Power responded within one month with a lengthy, point-by-point response. This response was, in turn, met by another broad inquiry the following month, and, after first informing the Union that the breadth of the inquiry was causing delay in the Company’s response, Allegheny Power then provided another lengthy reply. Later, apparently on its own initiative, Allegheny Power provided Local 102 with copies of its ELRI project newsletter along with an accounting of subcontractor hours devoted to the project, broken down by location. . Nevertheless, in its complaint to the NLRB, the Union contended that Allegheny Power’s responses were untimely and inadequate and thus constituted an unfair labor practice.
In finding that Allegheny Power committed unfair labor practices in failing to provide adequate information on a timely basis, the Board found that the parties’ 1977 Agreement on the Quarterly Contractor Work Reports did not limit the Union’s right to make information requests pursuant to § 8(a)(5). It concluded that the Union sought such information “to police its collective-bargaining agreement” and that “the timing of the requests, as related to the upcoming [contract] negotiations, strongly supports the Union’s need for the *256information.” Similarly, the Board found that Allegheny Power violated § 8(a)(5) by failing adequately to provide the union with “staffing-level data” from the ELRI project. The Board also found that a four-month delay by Allegheny Power in responding to one of the Union’s four written requests on the ELRI project also violated § 8(a)(5), as did the Company’s failure to provide resource-sharing information beyond meter technicians. As a remedy for these purported violations, the NLRB entered an order, dated July 11, 2003, requiring Allegheny Power to provide the data sought by the Union.
From the Board’s order, Allegheny Power filed this Petition for Review, and the Board filed a Cross-Application for Enforcement of its order.
III.
In addressing the two issues on which the NLRB found violations, the Board measured only a handful of Allegheny Power’s responses in isolation, without considering the 19-month context in which the Company had responded to the Union’s numerous information requests. In doing so, the Board failed to address the issues on the “record considered as a whole,” as required by statute. 29 U.S.C. § 160(f). For the same reason, it also failed to take into account, again as required by law, “the circumstances of the particular case.” See Truitt Mfg., 351 U.S. at 153, 76 S.Ct. 753 (emphasis added). When the record as a whole is considered, the evidence does not support a finding that Allegheny Power failed in its “statutory obligation to bargain in good faith.” Id. at 154, 76 S.Ct. 753.
The Union submitted 82 requests for information, and the ALJ found as facts that no request by the Union went unanswered and that Allegheny Power committed the resources of five full-time employees to provide responses to these requests. Even on the two issues as to which the Board found violations, the Union had made multiple and various requests, and Allegheny Power was required to make numerous responses, providing the Union with a large volume of material. Taken in this context, Allegheny Power’s responses do not justify the Board’s finding that the Company failed to bargain in good faith.
The Union chose to litigate the responses on 6 subjects, but these 6 inquiries represented only a small portion of the 43 subjects on which the Union demanded information. Also, there were repeated and various inquiries on many subjects, so that the 43 different topics became the subject of 82 separate inquiries presented over the space of 19 months. In addition, the Board failed to consider that the volume of information that the Union requested was far greater than the number of requests that had theretofore been made by Local 102, or, for that matter, by any other union. It also failed to take accurate notice of the extent to which the requests were proximate to other relevant events, such as arbitration cases or contract negotiations. The failure to take these contextual elements into account fatally undermined the NLRB’s findings.
In his findings of fact, the ALJ found:
From May 1999 to December 2000, the Union requested information from [Allegheny Power] regarding 43 subject areas, which was a substantial increase over previous years. The Company responded in some fashion to all 43 requests, taking five fulltime employees hundredfs] of hours to do so.
Moreover, the ALJ acknowledged that in the midst of this deluge, the staffperson employed by Allegheny Power to manage such requests was replaced. Finally, the ALJ noted that “[t]he most recent collec*257tive-bargaining agreement ran from May 1, 1996 to May 1, 1999, but the parties extended it until April 30, 2001,” a fact apparently overlooked by the Board.
To appreciate these statistical data in the record, the Board would have had to have recognized that beginning on May 3, 1999, and continuing through December 7, 2000, the Union issued on average one request every seven days, and that additional requests were submitted even before responses had been received from Allegheny Power on earlier requests. Yet Allegheny Power responded to every request. Of the 82 submitted, it responded to 32 (or 40%) within a 30-day period; 54 (or 67%) within 60 days; and 65 (or 80%) within 90 days. Moreover, the 43 various topics of inquiry were not submitted chronologically or in discrete time periods. To the contrary, the Union submitted information requests in a haphazard fashion. For example, on September 22, 1999, the Union submitted its first request regarding the Quarterly Contractor Work Reports. While Allegheny Power was preparing its response to that request, the Union submitted nine additional requests for information concerning seven other topics. Nonetheless, the Company responded to all of these other inquiries, taking an average of 24 days per inquiry to submit its responses. This example demonstrates how a narrow view of the record — examining only the response to the one request on Quarterly Contractor Work Reports— produces a distortion of the facts. Yet this was the approach followed by the Board.
In addition, the Union’s information requests were complex in nature and required aggregations of many different types of data. The record before us on appeal contains only a limited snapshot of the total information requests, but even this small portion of the picture is dramatic. For example, the Union wrote on April 13, 2000, to request information about the ELRI project, and it asked for nine different categories of information, ranging from details about Allegheny Power’s contract with Itron, to information on each person involved in the ELRI project, to descriptions of the skills related to the ELRI project, to training programs implemented by Allegheny Power to develop such skills. To answer these inquiries required Allegheny Power to devote significant amounts of time and human resources, particularly considering that the limited number of the Company’s personnel was also'forced to respond simultaneously to other topical requests made by the Union.
The inclusion of these contextual elements, which the Board failed to consider, provides a totally different picture from that presented by the Board and by the majority. Had the record been taken as a whole, the Board could not have reasonably concluded that Allegheny Power failed to meet its “statutory obligation to bargain in good faith.” See Truitt Mfg., 351 U.S. at 154, 76 S.Ct. 753.
IV.
In considering out of context the two topics on which the Board found violations — the Quarterly Contractor Work Reports and the ELRI project — the Board also failed to enforce upon the Union its established legal duty to demonstrate factually, as a condition to receiving information, that the information is relevant and necessary. The Board accepted implicitly the Union’s highly generalized statement, made without any factual support, that the information was needed “in order for the union to protect the interests of [its] members.” In challenging the adequacy of this explanation as a justification for the information, Allegheny Power contends that, because the information did not relate to Union members, the Union was required *258to demonstrate the relevance of the information and the Union’s need for it, particularly when no arbitration or collective bargaining negotiations were ongoing or pending. Allegheny Power’s position is indisputably supported by applicable law.
When information requested does not pertain to union employees — as is the case for the two issues before us — it is not presumptively relevant. See Wachter Constr., 23 F.3d at 1384; A.S. Abell Co., 624 F.2d at 512; United Furniture Workers v. NLRB, 388 F.2d 880, 882 (4th Cir.1967) (finding that cost, profit, and other financial information are not presumptively relevant). In order to obtain information that is not presumptively relevant, the Union must
make a formal request based on a reasonable belief that the information is necessary and show that it is relevant in order to trigger the employer’s obligation to give the information....
* * *
The practical burden upon the union then is to show that the information will aid investigation of contract violations where the union has established a reasonable basis to suspect such violations have occurred.
Walter N. Yoder & Sons, 754 F.2d at 535 (emphasis added) (internal quotation marks and citations omitted).
In addition, for financial data, the Union had to show a “specific need in each particular case” or had to establish that the Company, by way of justification for subcontracting work, claimed a present financial inability to meet the Union’s demands. United Furniture Workers, 388 F.2d at 882; see also Equitable Gas Co. v. NLRB, 637 F.2d 980, 993 (3d Cir.1981) (“[D]ata regarding subcontracting costs where bargaining is not required, is relevant only when lower costs are urged by the employer as a motivating factor behind the subcontracting decision”).
Finally, regardless of the subject matter of a request, the Union in every case is obligated to establish its claim to the information, see Rice Growers Ass’n, 312 N.L.R.B. at 838, and the justification must be presented to the employer “contemporaneously,” not merely as a later rationalization made during administrative hearings, A.S. Abell Co., 624 F.2d at 513 n. 5.
The Union’s justifications for the information in this case met none of the criteria established by law. Rather, the Union simply relied on the conclusory, boilerplate-type statement that the Union needed the information “to protect the interests of its members.” The requests allege no contract violations, negotiations, or arbi-trations, and they contain no facts supporting the Union’s claim that the information was necessary “to protect the interests” of Union members. Subsequent requests repeated and expanded the Union’s demands but continued to lack explanations. Such “boilerplate” justifications do not meet the requirements of law. Wachter Constr., 23 F.3d at 1385 (internal quotation marks omitted). Moreover, approving the use of “boilerplate” rationales would “wreak havoc on a negotiating process.” Id. at 1386. Further, with respect to the Union’s demands for financial data, the Union never contended that Allegheny Power asserted that lower costs had been a motivating factor in its subcontracting decisions.
In its findings, the ALJ acknowledged that the Union “used no magic words to state specifically why it wanted more and better subcontracting information.” But the ALJ stated that he “believe[d] that the Union’s motives in 1999 for obtaining this data were crystal clear,” and he wrote that “data on subcontracting will no doubt be *259useful to the Union in negotiating the successor agreement in 2001.”
Although it is true that the law does not require a union to provide “magic words,” it does require a union to provide a reason for its request and, if necessary, to support its' reason with facts. See A.S. Abell Co., 624 F.2d at 512, 513 n. 5; Rice Growers Ass’n, 312 N.L.R.B. at 838. By stating that the reason that the Union required the data was “crystal clear,” the ALJ evidently felt that the rationalé was apparent from the face of the requests. See A.S. Abell Co., 624 F.2d at 513 n. 5 (suggesting that a rationale can be accepted if it is “apparent from the face of the request”). This, however, is not supported by the record. The first two requests made by the Union (September 22, 1999, and November 1, 1999) are so threadbare that Allegheny Power would have been forced to guess at their rationale. Indeed, quite logically, the Company regarded the information requested in 1999 to be governed • by the 1977 Agreement, and that agreement required the Union to tie its demands to “a specific dispute or grievance on a specific use'of contractors.” Recognizing that these contractual obligations were not met, the Board relied only on the statutory duty, which allows other justifications of relevancy. Because the record supported no other justifications, the Board relied on two post-hoc rationalizations, which were not even made by the Union until 21 months after its initial inquiry.
According to the Board, the Union’s requests were justified because the information requested enabled the Union “to police its contract,” since its collective bargaining agreement permitted Allegheny Power to subcontract work “only to the extent that the [Company] maintained a workforce sufficient to perform the regular expected work of the [Company].” The Board also asserted that the data enabled the Union to enforce a “Resource Sharing” provision in the collective bargaining agreement that allowed Allegheny Power to send Union employees to different job sites within the Company’s network. As plausible as these two rationales might be, they were stated by the Union after the fact, and then only to win their case. We have clearly stated that a supporting rationale must be articulated “contemporaneously” with the information request and must not be provided later to bolster a case for administrative review. See A.S. Abell Co., 624 F.2d at 513 n. 5. Certainly the Board cannot rely on post-hoc rationalizations , to determine that the Company acted in bad faith, when it was given no legally sufficient reason at the time the requests were made.
In addition, the Board noted that the “parties were beginning to prepare for collective-bargaining negotiations for a new contract” and that “the timing of the [Union’s] requests, as related to the upcoming negotiations, strongly supports the Union’s need for the information.” This conclusion, however, is based on a misconception of the record. While the collective bargaining agreement between Allegheny Power and the Union did run from May 1, 1996, to May 1, 1999, the Board failed to recognize that in October 1997 the parties had extended the contract to April 30, 2001. Just as importantly, the Union itself did not rely on “upcoming negotiations” to justify its requests until January 2001, at which point it was looking to the looming April 30, 2001 expiration date. The record simply does not support the NLRB’s rationalization that the Union’s information requests, which began in 1999, “related to ... upcoming negotiations.”
In the absence of an impending arbitration, collective bargaining, or some other suspected contract violation, the Board *260erred in finding violations of §§ 8(a)(1) and 8(a)(5). The Board simply failed to recognize that the Union, along with the Company, was obliged to fulfill certain legal duties in its information requests.
V.
Finally, the Board failed to address three affirmative defenses advanced by Allegheny Power, any of which could have precluded the finding of a violation by the Board. Allegheny Power contended (1) that it was not obligated to generate information — i.e., information that it did not have — nor was its failure to provide information in the format requested by the Union a basis for finding a violation; (2) that the information requests were unduly burdensome; and (3) that the Union’s conduct in making so many burdensome and irrelevant requests over a short period of time, in the particular factual context, evidenced bad faith on the part of the Union. I address these in turn.
A.
One of the Union’s most persistent assertions relates to Allegheny Power’s failure to provide specificity with respect to Quarterly Contractor Work Reports. In finding a violation on this claim, the Board failed to respond adequately to the Company’s defense that after 1998, when Allegheny Power changed its method of doing business in engaging contractors, it did not itself have the information requested. Before 1998, Allegheny Power was able to give the specific number of persons working on each project because it paid contractors on a time-and-material basis. But in 1998, Allegheny Power altered its method of doing business by electing to hire contractors for a flat fee on a “project basis,” as part of a general restructuring effort in the wake of utility deregulation. Under the “project” approach, contractors, not Allegheny Power, determined the number and type of laborers used to accomplish a given project, and the number of workers was not part of the contractors’ billings. Consequently, Allegheny Power did not collect such data from contractors in the course of its business. Moreover, no one has suggested that Allegheny Power retained, in the regular course of business, the number and type of laborers used to accomplish the tasks subcontracted out on a flat-fee basis to independent contractors, when the contractors themselves made the determination.
It is well-established that Allegheny Power is not obligated to provide the Union with information that it does not have, nor to provide information in the format desired by the Union. See Korn Indus., Inc. v. NLRB, 389 F.2d 117, 123 (4th Cir.1967) (holding that an employer need not produce information that is not available to it for the purpose of supplying the union with information requested); Food Employer Council, Inc., 197 N.L.R.B. 651, 651 (1972) (holding that an employer need not furnish information in the exact form in which the union requested it). The finding that Allegheny Power violated the Act by failing to supply this information is thus erroneous by reason of the established principles of Korn Industries and Food Employer Council.
B.
The Board also failed to take into account the burdensomeness of the Union’s demand, particularly in light of the number, repetitiveness, and overlapping nature of the requests, as well as the Company’s explanations for the absence of more elaborate responses. Under the NLRB’s ruling, Allegheny Power would be forced to implement new procedures and direct new or existing resources to gather, compile, and disseminate contractor data that oth*261erwise would be of no value to the Company. After 1998, such data simply were no longer relevant to Allegheny Power because of its shift to project-based contracting. Forcing the Company to create a process whose sole purpose would be to gather data to satisfy the Union’s demands would work an undue burden on the Company. The NLRB failed to give due attention to this defense, considering that the Company is not obligated to produce information that it does not have and would have to generate with additional resources. Cf. Wachter Constr., 23 F.3d at 1388; Safeway Stores, Inc. v. NLRB, 691 F.2d 953, 956 (10th Cir.1982).
C.
Finally, Allegheny Power has alleged that the Union’s requests were made for ulterior motives and in bad faith. The Board never addressed this issue, which would provide Allegheny Power with a complete defense. See Wachter Constr., 23 F.3d at 1380 (holding that a company did hot have to honor an information request because “the union’s predominant purpose in making its request was to harass the employers and force them to cease a practice permitted under the collective bargaining agreement”).
In this case, Allegheny Power contends that the flood of information requests submitted by the Union began shortly after Allegheny Power indicated that it would not pay Union officers for attendance at certain meetings. After Allegheny Power made its position known to the Union, the Union made six requests within a six-week period, and the requests continued thereafter. The Company contended that the “Union’s campaign of flooding Allegheny Power with information requests, shortly after this dispute, with no contract negotiations scheduled or pending, and in a dramatic departure from its past behavior, ... demonstrates the bad faith motive for these requests.”
In further support of its claim, the Company contended that on two occasions when Allegheny Power asserted that it had provided all the information requested, “the Union suddenly changed its demand from seeking information regarding contractors from 1999 and 2000 to seeking detailed cost information from as far back as 1994” and, with respect to the 10-hour vacation issue, changing its demand to seek all information since 1996.
VI.
At bottom, it is apparent that the National Labor Relations Board so narrowed its focus in this case, that it (1) failed to view the record as a whole and to consider Allegheny Power’s conduct in that context; (2) failed to apply to the Union its legal duty to satisfy certain conditions before receiving information; and (3) failed to address the three affirmative defenses raised by Allegheny Power. Had the Board followed the law and addressed all of the issues before it, it could not have found on this record that Allegheny Power violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5).
Accordingly, I would grant Allegheny Power’s Petition for Review and deny the Board its Cross-Application for Enforcement.