Boston Herald-Traveler Corp.

National Labor Relations Board - Board Decisions

Dec 21, 1954

110 N.L.R.B. 2097 (N.L.R.B. 1954)

BOSTON HERALD-TRAVELER CORPORATION 2097
BOSTON HERALD-TRAVELER CORPORATION and NEWSPAPER GUILD OF
BOSTON, LOCAL 32, AMERICAN NEWSPAPER GUILD, CIO. Case No.
1-CA-1669. December 01, 1954
Decision and Order
On July 26, 1954, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent and the Union each
filed exceptions to the Intermediate Report and supporting briefs."
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs,2 and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions.
The sole issue in this case is whether the Respondent breached its
bargaining obligation under the Act by refusing to furnish the Union
data linking the individual employee's name with the salary and com-
mission each received.
The record shows that about December 1953, the Union and the
Respondent started negotiations for a new collective-bargaining
agreement. Immediately before and during the course of the negotia-
tions, which extended over a period of about 6 months, the Union
requested the Respondent to furnish it with the name and the earn-
ings of each employee in the bargaining unit. The Respondent's re-
fusal to furnish information linking earnings with names constitutes
the gravamen of the complaint.
The Board's rule, affirmed by the courts, is that an employer is re-
quired to furnish the union representing its employees with the name
and earnings of each employee in the appropriate unit in order to
make collective bargaining effective.' In making its request for such
information, the union need not show the precise relevancy of the re-
'The Respondent also requested oral argument. As the record, exceptions, and briefs
adequately present the issues and the positions of the parties, the Respondent's request
for oral argument is denied
2 The Respondent filed a supplementary statement requesting the Board to ignore argu-
ments made by the Union in its brief based on statements and exhibits not made part of
the record. To the extent that the Union's biiet includes material not in the record, we
do not consider it in reaching our decision.
3 Whittin Machine Works, 108 NLRB 1537 (and cases these cited), enfd. 217 F. 2d 503
(C. A 4) , The Item. Company, 108 NLRB 1634.
110 NLRB No. 261.
338207-55-vol. 110-l 3 3
2098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quested information to particular bargaining issues under considera-
tion. "It is enough . . . that the information relate to the wages or
fringe benefits of the employees. Such information is obviously re-
lated to the bargaining process, and the union is therefore entitled
to ask and receive it." 4 The Board's rule recognizes that "it is vir-
tually impossible to tell in advance whether the requested data will
be relevant except in those infrequent instances in which the inquiry
is patently outside the bargaining issues." 5
The Respondent states in its brief that it is aware of the Board's
previous decisions but seeks to distinguish them on the ground that
the information requested by the Union-linking the name of each
employee with his earnings-was not relevant or necessary to bar-
gaining in this case and that disclosure of the information would work
a serious hardship on the Respondent. The Trial Examiner found
both contentions without merit. We agree.
The gist of the Respondent's argument is that the contract between
it and the Union as eventually negotiated dealt primarily with mini-
mum wage rates and that the limited information that Respondent
furnished was adequate to meet the Union's needs with respect to that
issue. This argument, however, is based on hindsight. Even if the
Union had failed "initially to show the relevance of the informa-
tion," 6 this does not negate the possibility that full disclosure of pay-
roll information might reveal inequities and other factors in the wage
structure upon which the statutory bargaining representative has a
right and a duty to negotiate. The Respondent's argument draws an
artificial distinction between bargaining over minimum wage increases
and other kinds of wage increases or adjustments.' Thus, the Re-
spondent argues that the data requested was irrelevant to any issue
of merit increases, and that if the Union were to assist an individual
in gaining a merit increase, this grievance would not be handled by
the negotiations committee. But the permissive contract provision re-
lating to individual bargaining did not foreclose union bargaining
on merit increases. The Union cannot bargain with maximum effec-
tiveness if it remains ignorant of the salaries of other employees pos-
sessing comparable skills and experience. Moreover, knowledge of
full payroll information would enable the Union to decide whether
to press a demand respecting changes in classifications or minimum
4 Chairman Farmer concurring in Whitr,u Machine Works, 108 NLRB 1537
sN
N
L R B v. Yawman if Erbe Manufacturing Co, 187 F 2d 947, 948 (C. A
L R B v. Yawinan & Erbe Manufacturing Co , 187 F. 2d at 949 (C. A 2)
2).
71n either case individual wage data would be ielevant Note the Supreme Court's
statement in Order of Ranlroad Telegraphers v. Railway Express Agency, 321 U. S. 342,
347, that "effective collective bargaining has been generally conceded to include the right
of the representatives of the unit to be consulted and to bargain about the exceptional as
well as the routine sates , rules, and working conditions "
BOSTON HERALD-TRAVELER CORPORATION 2099
wage scales.' Even where individual wage rates do not bear directly
on the contract issues, the information may well serve as a guide or
suggest some field of compromise or other adjustment; for example,
the Union might decide to withdraw its request for an increase in the
minimum wage scale and propose instead the raising of wages for spe-
cific groups of employees.
The narrow distinctions urged by the Respondent assume a dichot-
omy between the Union's specific contract demands and its more gen-
eral bargaining function. Even if, as the Respondent contends, such
cases as merit increases would normally be handled by a separate union
committee, such fact does not demonstrate that the wage information
requested was not relevant to collective bargaining carried on by the:
Union.' It was to avoid the disturbing effect to collective bargaining
caused by this sort of "endless bickering and jockeying" that prompted
the Board to conclude that it would not consider controlling "the exact
phrasing" of the Union's wage information requests "or the specific
reason" therefor.10 Whether the Union's requests are related to the
specific matters at issue in the negotiations, the fact remains that a.
refusal to disclose the full wage picture leaves the Union completely
in the dark with respect to any proposal that would correct such in-
equities as may exist. We find on this record that the information
sought by the Union was relevant and necessary to the Union in the
performance of its statutory function.
The Respondent also contends that the requested wage data was
confidential information which it was entitled to withhold because
disclosure might offend some of its "prima donna" employees and
would enable competing newspapers to engage in "piracy" of key
columnists and reporters. The Trial Examiner rejected this argu-
ment. Further extended discussion is unnecessary. The Board pre-
viously rejected an identical argument in an earlier case involving
the same Respondent." In other cases involving newspaper em-
ployees we have held that the argument that some employees may pre-
8 This is particularly true in the situation presented here where about 100 , or one-fifth,
of the approximately 500 employees in the unit received merit increases during the con-
tract term This number was given in Union Representative Coit 's testimony The Re-
spondent 's assistant business manager O 'Connell could not estimate the exact number of
merit increases dui mg the last contract period but acknowledged that the number granted
,,may be" 100 or some lesser number
'Union Executive Secretary Cort testified that discussions on merit incieases had
occunod in the past during the course of negotiations as well as in grievance sessions
1O 1Vlaitin llaelirne lVoi is, 108 NLRB 1537
" Boston I3erald -Traveler Corporation, 102 NLRB 627, enfd. 210 F . 2d 134 (C. A. 1).
The court enforced the Board 's Order requiring the disclosure of work classifications and
salaries but declined to interpret the order as requiring the furnishing of individual names
linked with sal .uies Although the court recognized that the Board could have validly
ordeied the Eniploier to furnish the Union with the "linking " information , it felt that
the L'oaid 's Oidei did not clearly so iequiie and concluded that ambiguities in the Order
should be iesolved against the Boaid , which drafted it.
2100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fer financial anonymity rests on but a speculative basis and, in any
event, such individual desires must yield to the interests of the great
majority of workers represented in the unit. Similarly, we have held
that, in the face of the expressed social and economic purposes of the
Act, any possible risk that competitors may hire key employees does
not justify an employer's refusal to divulge pertinent wage
information.12
Accordingly, we find, in agreement with the Trial Examiner, that
the Respondent in withholding the wage information requested has
refused and continues to refuse to bargain with the Union in viola-
tion of Section 8 (a) (5) and (1) of the Act.
THE REMEDY
Having found that the Respondent refused to bargain with the
Union in violation of Section 8 (a) (5) and (1) of the Act by refus-
ing, on request, to furnish the Union information linking with the
name of each employee in the bargaining unit the salary and com-
missions received by that employee, we shall require the Respondent
to supply such information on request.
Because of the limited scope of the Respondent's refusal to bargain,
and also because of the absence of any indication that danger of
other unfair labor practices is to be anticipated from the Respondent's
past conduct, we shall not order that the Respondent cease and desist
from the commission of other unfair labor practices.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Boston Herald-Traveler
Corporation, Boston, Massachusetts, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit by refusing
to furnish to the Union information linking the earnings with the
name of each employee in the appropriate bargaining unit.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request furnish to the Union the name of each employee
in the bargaining unit together with the earnings of each named
employee.
12 The Hearst Corporation , 102 NLRB 637, 645-646; Post Publishing Company, 102
NLRB 648, 653 ; Hastings & Sons Publishing Company, 102 NLRB 708, 715; The Item
Company, 108 NLRB 1637.
BOSTON HERALD-TRAVELER CORPORATION 2101
(b) Post at its plant in Boston, Massachusetts, copies of the notice
attached hereto and marked "Appendix." 13 Copies of said notice to
be furnished by the Regional Director for the First Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER RoDGERS took no part in the consideration of the above
Decision and Order.
11 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, furnish to Newspaper Guild of Boston,
Local 32, American Newspaper Guild, CIO, the name of each
employee in the bargaining unit described herein together with
the earnings of each named employee. The bargaining unit is:
All employees in the editorial, commercial, advertising, and
building maintenance departments of the Mason Street
plant, exclusive of officers of the Corporation ; general man-
ager; two assistants to the publisher; advertising director;
chief accountant; purchasing agent; personnel manager;
head of the national display advertising department; head
of the local display advertising department; head of the
classified advertising department; head of the production
department; head of the circulation department; assistant
head of the circulation department; building superintendent;
editor of the Herald; editor of the Traveler; managing editor
of the Herald ; managing editor of the Traveler ; assistant
2102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
managing editors; one columnist; and all supervisors as de-
fined in Section 2 (11) of the Act.
BOSTON HERALD-TRAVELER CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
The question to be determined here is whether the Respondent, requested to furnish
to the Union the names and earnings information concerning each employee in the
bargaining unit, was guilty of a refusal to bargain and of violation of the National
Labor Relations Act, as amended, 61 Stat. 136, by submitting a list of names and lists
of earnings according to classifications but refusing to break down such lists and link
the data to individual employees.
. The parties faced this issue 2 years ago. A hearing was held before a Trial
Examiner in April 1952, and an Intermediate Report issued in August of that year.
The Board's Decision,' in the General Counsel's words, "tended to overrule the Trial
Examiner" on the issue of breakdown of figures or linking them to individual em-
ployees by name. As will be further pointed out infra, the Circuit Court of Appeals 2
construed the Board's Decision against it and refused to direct the breakdown there
sought. The parties now take opposite positions concerning the Board's and the
court's decisions and intentions.
A hearing was held before me at Boston, Massachusetts, on June 16, 1954. Pur-
suant to leave granted to all parties, briefs were thereafter filed by the General
Counsel and the Respondent.
As will be noted, the Board has since the hearing herein spoken again on the gen-
eral question before us But the earnest arguments of counsel who have dealt with
this problem for over 2 years deserve more than cavalier reference to such other
authority without consideration of the history of these proceedings and the respective
positions of the parties.
Details of the Respondent's business were noted on the record The Board has
previously found, it was here admitted, and I now find that the Respondent is engaged
in commerce within the meaning of the Act. It was also admitted and I find that the
Union is a labor organization within the meaning of the Act.
Since about 1936 the Union has been and now is the exclusive collective-bargaining
representative of all employees in an appropriate bargaining unit composed of all
employees, with certain exceptions, in the Respondent's editorial, commercial, adver-
tising, and building maintenance departments. (The unit is more fully described in
the conclusions of law, infra.)
In effect by its terms during the calendar year 1953, and extended by the parties to
April 14, 1954, when a new and similarly patterned agreement was entered into, was,
a collective-bargaining agreement between the Union and the Respondent, which pro-
vided for minimum rates with periodic increases, but no maximum rates. Article II,
section 6 of these agreements provides as follows:
Nothing in this contract shall prevent employees from bargaining individually
for pay increases in excess of the weekly minimum established herein.
While the agreements do not so state, it was testified without contradiction that this
right is not exclusively the employees' but that the Union also has the right to bargain
for individual pay increases, and that the Company has recognized such right in the
Union. (Testimony was received concerning several cases in which the Union bar-
gained concerning individual increases.)
i Roston Herald-Traveler Corporation, 102 NLRB 627
vN L R B v. Boston Herald-Traveler Corporation, 210 F 2d 134 (C A 1)
BOSTON HERALD-TRAVELER CORPORATION 2103
Apparently with an eye to negotiation of the 1954 agreement, the Union on October
1, 1953, requested information of the Respondent as follows
So that the Guild negotiating committee may be informed as to the current
situation at the Herald-Traveler, as regards the employees we represent and the
wages being paid, the Guild hereby requests from the Herald-Traveler the fol-
lowing information:
1. Names of all employees in the bargaining unit, and their classifications,
night or dayside.
2. Their dates of employment, age and sex.
3. Their salaries and the total of commissions and/or bonuses received by
each over the past 12 months.
4. Total weekly payroll for employees in Guild jurisdiction.
5. Total weekly night differential.
On October 31, Cort, the Union's executive secretary, notified O'Connell, who is the
Respondent's assistant business manager, of the Union's intention to negotiate a new
contract, and called his attention to the request embodied in the letter of October 1.
Negotiations were commenced on December 2, at which time Cort repeated his re-
quest. (There is no issue of violation based on delay.) When the parties next met,
on December 9, the Company submitted a list of all employees in the unit with their'
classification, date of employment, age, and sex; name and date were linked (as one
might assume except that consistency-not to mention female reluctance-might sug-
gest that age and other information be supplied anonymously within classifications as
was later done in connection with earnings). The total payroll for the week ending
December 2 was also furnished at that meeting.
Thereafter, on January 6, the Respondent submitted a list of all employees in the
unit, showing the number in each classification at various salary levels or in stated
salary ranges. As Cort testified, there was no tie between the names and salaries to
indicate individual earnings. He told O'Connell that he wanted such individual link-
ings, but O'Connell refused to provide them. Cort further testified that he repeated
his request after the aforementioned decision of the circuit court, which he claimed
"was based on the ambiguity of the Board's order"; but O'Connell persisted in his
refusal. This testimony stands uncontradicted, and we need not further consider the
claim made at the hearing on behalf of the Respondent that it was never asked to
furnish information in any form other than as it was supplied, and that the Respond-
ent was not told that the information was not in satisfactory form. It is clear that, as
stated, the Respondent maintains that the information which it furnished is in satis-
factory form and sufficient.
In addition to the information noted supra, the Respondent thereafter furnished
a list of the commissions paid to advertising solicitors, local and national, and classi-
fied solicitors, outside and inside, but again without linking any of the amounts to
specified individuals. The list in each of the four classifications suggests that each
amount is referrable to a given individual; but this is only a surmise since in none
of the four lists is the number of amounts equal to the number of employees else-
where shown to be in the given classification. (Guessing further, it may be that
some employees in these classifications received no commissions.)
Later still, and on May 17, the Respondent submitted an amendment 3 to the
salary data supplied on January 6; names still omitted, those who had previously
been grouped into salary ranges were now shown at their specific wage levels, but
still only the number, not the name, of employees at each level was given. This
was evidently in belated but limited deference to the request first made on October 1
for information concerning remuneration "received by each." [Emphasis supplied.]
As noted, time or promptness is not here in issue, nor is there any question of bad
faith in that connection, the Union admits that with the exception noted it received
all of the information requested, and complains only that individual names were not
linked with salary and commission.
Explaining its request for the information with respect to individually identified
employees, the Union claims that such information is necessary for four purposes:
policing the contract, and bargaining on merit increases, pensions, and commissions.
There are more than 500 employees in the unit, and approximately 100 classifica-
tions, from errand boys and clerks through janitors to reporters and editorial writers.
While the Respondent's position is that each employee can protect his own interest,
the law is well settled that the Union has the right as collective-bargaining represent-
3 Although the covering letter refers to union members only, the cover sheet and the
list appear more properly to include all employees in the unit.
2104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ative to safeguard those interests, and thus may require information necessary for
the policing of the contract However, the original request for information related
only to the needs of the Union's negotiating committee, and the renewals or reminders
never indicated any broader purpose In this connection it becomes material to
note the testimony that the function of the negotiating committee is limited to
negotiating a contract subject to membership approval, grievances and administra-
tion or policing of the contract fall within the scope of the unit executive committee.
Thus the request for information for the negotiating committee is not to be con-
strued as connected with policing of the contract. The complaint as originally
issued alleged the necessity of the information requested "in connection with col-
lective-bargaining negotiations" only; not until the General Counsel moved to amend
the complaint, which motion was granted at the hearing, was it claimed that the
information was sought also "to enable the Union to properly police its contract with
the Respondent." Under the circumstances, testimony received concerning the need
for information to police the contract generally, or specifically as it related to several
part-time employees reporting sports events and a rewrite man will not be relied on
for any finding of violation for the reason and to the extent that such testimony fails
to support the allegations of request for and refusal of information. In the absence
of a request 4 for information needed to police the contract, the Respondent is not
to be charged with a refusal.
With respect to bargaining for merit increases, on the other hand, it appears
that approximately 20 percent of all of the employees in the unit received salaries
above the minimum in their respective classifications. As noted supra, it was testi-
fied without contradiction that the Union bargains for such increases, and that the
Respondent has recognized that the Union has the right so to bargain. (Here again
we distinguish between information for bargaining purposes and that sought for
policing; the latter is excluded from present consideration for the reason stated
above.) Of 7 specific cases cited as handled under the 1953 agreement, it appears
that only 2 involved merit increases, and that as to only 1 was the amount of the
individual's earnings necessary. Pinpointing the information received in this latter
case to its limit, the data which the Respondent supplied shows only that of 11
employees in the classification, 8 were at the minimum level and 3 were at different
higher levels; but it did not identify the 3 or specify what the given individual received.
That few opportunities for bargaining concerning increases may exist does not
alter the fact that the parties have bargained each year concerning such increases,
and does not deprive the Union of its recognized right to information which it requests
and which is necessary for bargaining. Nor can we justify a refusal to furnish infor-
mation by pointing to the paucity of opportunities after such refusal: as recognized
by the authorities 5 which direct the submission of such information, bargaining is
interfered with and hampered by the withholding of the information, and it is to
be expected that the number of cases and the consideration given to them will there-
fore be limited by the very refusal. In this connection, the Respondent not only
maintains the sufficiency of information supplied, but questions the Union's need
for such information and its right thereto. Here it ignores authority to the contrary,
and further despite its earlier reference to standards (even if only of difficulty
overcome), it urges that merit increases do not require comparison with the work
of other employees and the increases given them. This is to say that standards
are not to be used as standards for comparison, and that comparisons are to be
excluded from the bargaining process!
With respect to pensions, the Union requested detailed individual information,
but the Respondent's reply was that it would furnish such information to its own
actuary, and then submit a pension plan to the Union. The Respondent's own
study is no substitute for submission of data to the Union. It is true that with a
pension based entirely on earnings, the Union could advise an employee what he
should receive. But this refers to policing of a pension rather than to bargaining
concerning its adoption. The bargaining process includes consideration of alterna-
tive proposals, as the Union stated, and for that the Union needed and properly
requested information concerning the individual employees. There is no evidence
that the Union was satisfied with or accepted the Respondent's procedure as adequate.
In fact, the request having been made and turned down, the filing of the charge was
The allegation in the amended complaint is not to be regarded as such a request. Cf.
the Board's similai ruling in the earlier case with respect to a recital in the charge
5The Haighes Tool Company, 100 NLRB 208, E 1V Scripps Company, 94 NLRB 227;
Yawman & Eibe Manufacturing Co, 89 NLRB 881: The Electric Auto-Ltte Company, 89
NLRB 1192.
BOSTON HERALD-TRAVELER CORPORATION 2105
the next proper step and indicates that there was no acceptance (if the negative must
be shown). Execution of a contract subsequent to the events which form the basis
of this proceeding does not prove the "adequacy" of the information submitted.6
That the contract "was entirely silent on commissions" may reflect on the adequacy
of the information submitted, 7 certainly commissions are a proper subject for bar-
gaining even if to date they have been incentives or rewards
As for commissions , the Respondent indicated that these depended on individual
factors; a statement that there were different bases is not an explanation or descrip-
tion of such bases. The Respondent explained to the Union that commissions were
in fact incentives determined in advance, and depended not so much on the extent
of the result obtained as on the difficulties overcome The Union countered that
with respect to the 60 or 70 employees to whom commissions are paid, the informa-
tion which it sought would enable it to make comparisons so that it could bargain
concerning the bases for payments and methods of computation.
The Union claims that because of the need as indicated it is entitled to the
information which it requested, and that the Respondent has violated the Act by
its refusal to submit the breakdown sought. The Respondent denies both the need
and the allegation of violation. The issue as recognized by the Respondent is thus
not whether the Union is entitled to information, but the extent or form of such
information, the difference as to form being important as it relates to the ability
to identify employees and their respective earnings
In the prior proceeding the Board, in turn sustained by the court, upheld the
finding that salary information is necessary for bargaining regarding merit increases.
Nor, on that and other authorities, could the Respondent properly refuse informa-
tion on the ground that it is confidential. I have every sympathy with the desire
for privacy and the Respondent's arguments against disclosure of individual earn-
ings, considering both its own competitive situation and the wishes of and the rela-
tions among its employees. But on this score the Respondent argues too much:
the undesirable effects vis-a-vis its competitors and its employees, which it claims
would result from disclosure of details, were alleged to arise (to the extent that
the Union by inquiry could effect a breakdown) even where the information was
submitted without breakdown as to individuals. The Respondent's position, if valid,
would therefore warrant refusal of data even without a breakdown' Consistently,
if mistakenly, O'Connell pointed out that the Board's order in the prior proceeding
is "disruptive" and presumably therefore erroneous as the identity of individuals
could be determined from the data which it directed. As for the Respondent's
position that the information sought is available to the Union upon inquiry of the
various employees, the answer is that even if it were so available, the Respondent
is required to furnish it as part of the bargaining process.
Modifying the Trial Examiner's findings and recommendations in the earlier case,
the Board there stated that the finding that the Respondent refused to furnish the
names of employees was inconsistent with an earlier finding in that case that the
Respondent had complied with such a request for names "to the Union's satis-
faction." 8 It concluded by declaring, "In view of the Union's acceptance of the
data furnished as adequate for its purpose, we do not find that the Respondent
refused to furnish names of employees," and it thereupon deleted from the order
any direction that the Respondent furnish "names "
The Respondent relies on this holding, and points to the fact that in the instant
situation it likewise submitted the names of all of the employees and thus needed
only to furnish the earnings information as it refers to them, without full identifica-
tion. The Union on the other hand maintains that the Board never intended such
a limitation as the Respondent suggests
In the instant case, there is no question of acceptance of the names as such Not
only has the procedure here not met with the Union's "satisfaction" nor with its
"acceptance as adequate." but it constitutes the basis for the charge and is the issue
in this case We are not concerned with a list of names standing alone, but with
a correlation between the respective names and the other data sought. The indi-
vidual employees having been identified, the Union wants further identification of
each as to salary and commission. That the Board deems such identification and
breakdown of earnings to be necessary is to be seen in its decisions in The Hearst
Corporation, Post Publishing Company, and Hastings cG Sons Publishing Company
6 N L. R B v. Yawniau & Erbe Manufacturing Co., 187 F 2d 947, 949 (C. A 2).
7 See footnote 5, supra
8 Boston Hei ald-Traveler Corpoi ation, 102 NLRB 627, 628
2106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases,9 issued simultaneously with the decision in the earlier Boston Herald-Traveler
case. In each of the three other cases cited, the order directed in haec verba or in
effect that the company "furnish to the Union wage data concerning names, work
classifications, dates of employment, and salaries of all employees in [the] unit."
In this search for the Board's intention as well as the proper remedy, I recognize
that submission of names would constitute duplication where they had already
been submitted. This was evidently the basis for the Board's limitation in the prior
pi oceeding between the parties. It does not appear to have been argued there
prior to the issuance of the Board's decision or to have been considered that omission
of the names precluded breakdown by name of the other information which the
Respondent was directed to furnish. The court, when the issue was raised, pointed
to the limitation imposed by the Board, and found that the Respondent had complied.
The court's remarks quoted infra were prompted by the following argument pre-
sented to it in the Board's brief on its petition for enforcement, which we may note
even if we do not rely on it as determinative of the issue before us:
Respondent misconceives the Board's reason for its modification of the pro-
posed order. As the Board specifically indicated, it struck "names" from
the list of items to be disclosed to the Guild solely because it found that the
Guild by its own admission had in fact been furnished sufficient information
to compile a complete roster of employees in the unit, and not, as the respond-
ent contends, because it thereby intended to absolve respondent from tying-in
the wage data with the names respondent had already furnished. Moreover,
even as modified, the phraseology of the Board order does not support respond-
ent's interpretation, as the order still requires respondent to disclose "classifica-
tions and salaries of all employees" in the unit [emphasis supplied]. Lastly,
that the Board never intended to absolve respondent from its duty to furnish
individual salaries is indicated by its adoption, without modification, of that
part of the Trial Examiner's Intermediate Report which discussed in consider-
able detail the need and relevancy of individual wage data and the lack of
merit in respondent's reasons for withholding the same. The Board thus
having found that individual wage data was wrongfully withheld, it follows
that its remedy against respondent's unfair labor practice was meant to compel
disclosure of this data as much as other types of data relevant and helpful
to collective bargaining between respondent and the Guild.
The court considered this contention by the Board's counsel, but was persuaded
by the Respondent's counter argument that the Board did not inadvertently omit
"names" from the list of matters to be disclosed, "but [that] on the contrary it must
be assumed that the omission was deliberate and for the express purpose of not
requiring disclosure of names linked with salaries for the reason that this is not
an appropriate case for such a disclosure." 10
After declaring that "The Respondent does not, nor can it question the Board's
power in appropriate cases to require disclosure of individual data concerning the
employees in the unit represented by the Union," the court concluded, "Further-
more, we think that if the Board had meant to invade privacy by requiring disclosure
of individual names joined with actual salaries, it would have said so in unmistaka-
ble terms. Also, since the Board had free choice of the language in which to express
itself, perhaps ambiguities in the terms of an order issued by the Board should be re-
solved against it, particularly in cases in which the Board can very easily say pre-
cisely what it means. We, therefore, interpret the Board's order not as requiring
disclosure of names of the employees in the unit linked with their salaries, but only
as requiring disclosure of the salaries paid in each job classification, and the number
of employees receiving such salary, such as was made in the tabulation submitted to
the Union by the Respondent after the Board entered its order." In short, the court
there interpreted the Board's order as itself not requiring the linking of individual
employees with their salaries.
In the instant case, the necessity of the information sought and the Respondent's
obligation to furnish it linked to individual employees are clear on the basis of the
Board's and the courts' decisions. I find that the Respondent's refusal to supply the
information as requested was in violation of the Act. In this connection the picture
would not be complete if it were not noted that aside from the question herein con-
sidered, relations between the Respondent and the Union have been excellent, and
that there is no evidence of unlawful intent or act beyond what is inherent in the vio-
lation found.
e 102 NLRB 637, 648, and 708 respectively.
'ON L R B v Boston Herald-Traveler Corporation, 210 F 2d 134, 137 (C. A, 1).
BOSTON HERALD-TRAVELER CORPORATION 2107
The evil of directing the Respondent to do what it has already done, i. e., submit
the names qua names, can be avoided by directing it only to submit the information
according to or linked with individuals . ( Of course , the names will thus be listed;
but there will be no such suggestion , as troubled the Board in the prior proceeding,
that the Respondent refused to furnish the names. ) Not only will this conform
with Board practice , but minus the overriding considerations in the earlier case, it
would appear to be in harmony with the court 's decision in that case.
Having said all of this, one can conclude that there is nothing in the instant case
or in its background to take it outside the rule reiterated recently by the Board in
the Whitin Machine Works case 11 that "it is necessary that a union have in its pos-
session the names of employees together with their individual wage rates to bargain
effectively on their behalf.12 ( Because of the extent to which the issue has been
pressed in the instant case, I would avoid possible further claim of ambiguity in the
phrase "individual wage rates" since such rates might be submitted without identify-
ing the individual by name in each case . I have therefore employed the phrase
"linked with" individuals or each employee; the expression is employed by both the
General Counsel and the Respondent , and the intent should be clear to all
concerned.)
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Newspaper Guild of Boston , Local 32, American Newspaper Guild, C. I. 0.,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. All employees of the Respondent Boston Herald-Traveler Corporation em-
ployed in the editorial, commercial, advertising, and building maintenance depart-
ments at its plant at 80 Mason Street , Boston , Massachusetts , exclusive of officers of
the Corporation; general manager; two assistants to the publisher; advertising direc-
tor; chief accountant ; purchasing agent ; personnel manager ; head of the national
display advertising department; head of the local display advertising department;
head of the classified advertising department; head of the production department;
head of the circulation department; assistant head of the circulation department;
building superintendent ; editor of the Herald ; editor of the Traveler ; managing edi-
tor of the Herald; managing editor of the Traveler; assistant managing editors; one
columnist; and all supervisors as defined in Section 2 (11) of the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
3. Newspaper Guild of Boston, Local 32, American Newspaper Guild, C. I. 0.,
has been at all times since 1936 the exclusive representative within the meaning of
Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of
collective bargaining.
4. By failing and refusing at all times since January 6, 1954, to furnish to the
Union information linking with each employee in the unit his salary and commis-
sions received, the Respondent has refused to bargain collectively with the Union
as the exclusive bargaining representative of the employees in the aforesaid unit, and
has thereby engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By such refusal to bargain, thereby interfering with , restraining , and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
11108 NLRB 1537 In his concurring opinion, and as the majority agreed, Chairman
Farmer disposed as follows of the argument that the General Counsel must show that
negotiations were impaired :
I conceive the proper rule to be that wage and related information pertaining to em-
ployees in the bargaining unit should , upon request , be made available to the bargain-
ing agent without regard to its immediate relationship to the negotiation or adminis-
tration of the collective-bargaining agreement.
See also The Item Oemp ang, 108 NLRB 1634