Graphic Communications Local 13 (Oakland Press Co.)

National Labor Relations Board - Board Decisions

Dec 7, 1977

233 N.L.R.B. 994 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 13, Detroit Newspaper Printing and Graphic
Communications Union, International Printing and
Graphic Communications Union, AFL-CIO and
The Oakland Press Co., a Subsidiary of Capital
Cities Communications, Inc. Case 7-CB-367 1
December 7, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 11, 1977, Administrative Law Judge Max
Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Administra-
tive Law Judge's Decision. Respondent filed an
answering brief to these exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent did not violate Section 8(b)(3) of the Act by
failing and refusing to supply, pursuant to the
Charging Party's request during contract negotia-
tions, its rules and/or policies governing referrals
and/or mechanisms for referrals by Respondent of
employees for work to be performed in an appropri-
ate unit. We disagree with the Administrative Law
Judge's conclusion for the reasons set forth below.
Respondent and the Charging Party, Oakland
Press (herein referred to as Oakland), have been
parties to collective-bargaining agreements covering
the pressroom employees at Oakland's Pontiac,
Michigan, plant. Section 15 of the agreement
contained a "manning table" provision under which
additional employees were hired to work on a daily
basis when certain types of machinery were in use or
when certain operations were necessitated. Sections
2(b) and 9(b) of the agreement outlined Respon-
dent's obligation to provide substitutes for this
additional work at straight-time rates.
These sections provided:
Section 2(b)
In the event that the Publisher hires new or
additional employees to fill jobs covered by this
agreement, the Publisher agrees to give the Union
at least one (1) week's notice of its intention to do
so and to consider any persons recommended by
the Union for such jobs, along with applicants
from any other source. It is agreed that all persons
recommended by the Union to the Publisher shall
be eligible to work at straight time rates, provided
straight time men are available.
Section 9(b)
Employees shall not be compelled to work on
their off-days or nights if competent substitutes
are available in sufficient number at straight time
rates to meet the needs of the Publisher. The
Union agrees to provide, on a five-day markup
basis, competent straight time substitutes, if
requested by the Publisher, to replace employees
on vacation. No employee shall lay off or take a
personal day without providing a competent
substitute at applicable straight time rates, accept-
able to the foreman, except in cases of illness or
other [bona fide] emergencies considered ade-
quate by the foreman. The foreman may grant
permission to change or trade off-days or nights
upon written request from the employees con-
cerned.
In actual practice, Respondent consistently allowed
the regular pressroom employees the choice of
working the extra hours at overtime rates before it
would refer straight-time personnel.
Respondent and Oakland commenced negotiations
for a new contract in February 1976.1 The issue of
providing straight-time personnel arose during the
discussions regarding the referral provisions in
sections 2(b) and 9(b). Oakland's representatives
proposed modifications of these provisions; to wit,
(1) that the phrase "provided straight time men are
available" be stricken from the end of section 2(b);
and (2) that the first sentence of section 9(b) be
changed to read:
Employees shall not work on their off-days or
nights until the union has made a bona fide effort
to provide competent substitutes in sufficient
numbers at straight time rates to meet the needs
of the Publisher. The Union agrees to provide the
Publisher, upon demand, information verifying
the availability of substitutes in the Union's
jurisdiction for any day requested by the Publish-
er.
Michael Zinser, Oakland's labor counsel, testified
that the reason for these proposed modifications was
that Oakland believed that it was paying too much
t All dates hereinafter refer to 1976 unless otherwise specified.
233 NLRB No. 144
994
LOC. 13, DETROIT NEWSPAPER PRINTING & GRAPHIC COMMUNICATIONS UNION
money in overtime costs. Zinser testified that the
response of Respondent's bargaining agents had
"always been that the Union is unwilling to agree to
the proposed change."
Contract negotiations continued until the summer
months and resumed in September. On September
27, Bruce McIntyre, Oakland's then executive vice
president and editor, wrote a letter to Respondent's
president, Kummer. The letter stated that the press
markup for September 13 and 14 required two men
more than the number of regulars who were
scheduled to work. On both days, Respondent sent in
two regular employees who had days off to work
overtime. Because Respondent had 3 to 4 days'
notice for the additional manpower, McIntyre
indicated that Respondent's responsibility to provide
straight-time personnel under the contract was not
met. Finally, McIntyre requested the status of
Respondent's hiring lists on September 13 and 14 to
ascertain the availability of substitutes on those days.
The issue of providing straight-time personnel
arose again at the bargaining sessions on October 4
and 19. At those times, Zinser requested, as bargain-
ing information, some data to show the availability
of straight-time help over a period of time.
On October 20, Glenn Nelsey, Oakland's produc-
tion manager, presented Kummer a formal demand
for bargaining information concerning sections 2(b)
and 9(b). Specifically, the letter requested the
following information:
1. Data covering the availability of straight-
time help during the last six (6) calendar months.
If such data is unavailable, please respond in
writing the reasons why.
2. During our collective bargaining session of
10-19-76, you stated that there are in existence
lists which document just who is available for
straight-time work. Please preserve and send to
me, as they become available, six lists for each
day for the next six (6) weeks.
3. Please furnish to us the name of the
individual at your Local who is responsible for
compiling and maintaining said lists and the
administration of furnishing subs and extras.
4. Please furnish in writing an explanation of
how Local 13 handles requests for men.
Respondent at no time during the above contract
negotiations, or any time thereafter, complied with
Oakland's request for the information regarding its
rules and policies governing referrals.
The Administrative Law Judge found that Respon-
dent flatly and in good faith rejected Oakland's
proposed modifications of sections 2(b) and 9(b) to
the point of impasse, and that Respondent did not
plead its inability to assure the provisions of
providing straight-time personnel by refusing to
provide Oakland with the information. The Adminis-
trative Law Judge rejected the General Counsel's
contentions that the information regarding the
availability of straight-time workers was necessary
and relevant to the bargaining process. He found
that Respondent had the legal privilege to refuse to
accede to Oakland's bargaining demand and that
Respondent exercised that privilege in good faith at
the bargaining table. The Administrative Law Judge
therefore concluded that Respondent did not violate
Section 8(bX3) in refusing to provide the informa-
tion.
The General Counsel excepted to (1) the Adminis-
trative Law Judge's finding and conclusion that the
requested information was neither relevant nor
necessary to the bargaining process; and (2) the
failure of the Administrative Law Judge to find that
Respondent violated Section 8(b)(3) by failing and
refusing to provide relevant information to Oakland
once the issue surfaced in negotiations. We find
merit in the General Counsel's exceptions.
The Administrative Law Judge narrowly construed
this case as one involving good-faith bargaining and
credibility of witnesses. However, the issue presented
herein is whether the requested information regard-
ing referrals is relevant and necessary to the
bargaining process. Here, Respondent's credited
testimony that it never took the position during
contract negotiations that it was unable to furnish
straight-time help is clearly irrelevant to the question
of whether the requested information on referrals is
necessary for meaningful contract negotiations.
Similarly, Respondent's legal privilege to refuse to
agree to Oakland's proposed contract modifications
is not at issue here. By characterizing this case as one
involving good-faith bargaining, the Administrative
Law Judge has simply misconceived Respondent's
obligation to provide the relevant information for the
bargaining process.
Oakland has indicated that it needs the informa-
tion regarding referrals to evaluate the present
referral practices under the existing contract, to test
the validity of its proposals, and to formulate future
contract proposals on referrals. The requested
information is clearly relevant and necessary for
these purposes. Furthermore, the information regard-
ing the availability of straight-time help relates
specifically to those provisions of the expired
collective-bargaining agreement regarding hiring and
referrals and substitutes on offdays.
Respondent has had exclusive control over the
referral of employees under these provisions, and the
information regarding its rules and policies govern-
ing such referrals has been available only to
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent. This information on referrals is analo-
gous to information furnished by employers to
unions as to employee job classifications and wage
rates. In Globe Stores, Inc., Morse Shoe Inc., and Zale
Corporation,2 the Board adopted the Administrative
Law Judge's finding that the union was entitled to
information about group managers, whom it did not
represent. The Administrative Law Judge there
found that the information concerning group manag-
ers was relevant in order for the union to police its
current contract in terms of the work being per-
formed by the group managers, and was also
pertinent for the union's preparation for succeeding
contract negotiations. Here, Respondent's referral of
overtime employees vis-a-vis straight-time employees
will have an economic impact on the wage package
that will ultimately be negotiated by the parties.
Furthermore, the information concerning referrals
will allow Oakland to better predict its projected
overtime costs over the 3-year term of the new
contract. In order for Oakland to formulate mean-
ingful proposals concerning the referrals, it is
essential that it know how Respondent's referral
system operates and the availability of workers who
might be employed at straight-time rates. The Board
has recently assumed arguendo, without deciding,
"that a union's duty to furnish information relevant
to the bargaining process is parallel to that of an
employer." Tool & Die Makers Lodge No. 78 of
District No. 10 of the International Association of
Machinists & Aerospace Workers, AFL-CIO (Square
D Company), 224 NLRB 111 (1976). We have
determined that the information requested by Oak-
land is relevant to the bargaining process with
Respondent. Accordingly, we shall order Respon-
dent to furnish the information requested in Oak-
land's letter of October 20, 1976.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. Oakland is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The unit set forth below is appropriate for
collective bargaining within the meaning of Section
9(b) of the Act:
All pressroom employees of Oakland at its
place of business located at 48 West Huron Street,
Pontiac, Michigan, including employees engaged
in the operation, routine maintenance, cleaning,
and upkeep of Oakland's press equipment, ink
dispensing and mixing equipment, Dyna-Pure
2 227 NLRB 1251 (1977). See also Ohio Power Company, 216 NLRB 987
(1975).
equipment, core stripper, conveyors in the press-
room, and offset press equipment if added by
Oakland, and in the handling of paper at
Oakland's place of business from the loading
ramp or elevator to the storage area, or reels; but
excluding employees engaged in the maintenance
or repair of drive motors and electric or electronic
control panels or in work not connected with the
operation of the press for printing newspapers,
guards, and supervisors as defined in the Act, and
all other employees.
4. At all times material to this proceeding,
Respondent was, and continues to be, the exclusive
representative of the employees in the appropriate
unit for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
5. Respondent has violated Section 8(b)(3) of the
Act by failing and refusing to supply, pursuant to
Oakland's request during contract negotiations,
information relevant and necessary to the bargaining
process.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
It having been found that Respondent has violated
the Act by failing and refusing to supply Oakland
with certain information, Respondent will cease and
desist therefrom and supply Oakland with the
information requested in its letter of October 20,
1976.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local 13, Detroit Newspaper Printing and Graphic
Communications Union, International Printing and
Graphic Communications Union, AFL-CIO, De-
troit, Michigan, its officers, agents, and representa-
tives, shall:
i. Cease and desist from:
(a) Refusing to bargain collectively with The
Oakland Press Co., a Subsidiary of Capital Cities
Communications, Inc., by refusing to furnish Oak-
land with information relevant and necessary to the
bargaining process.
(b) Engaging in any like or related conduct in
derogation of its statutory duty to bargain.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
996
LOC. 13, DETROIT NEWSPAPER PRINTING & GRAPHIC COMMUNICATIONS UNION
(a) Supply Oakland with the following information
requested in its letter of October 20, 1976:
(1) Data covering the availability of straight-time
help during the last 6 calendar months. If such data
is unavailable, Respondent shall explain in writing,
setting forth the reasons why the data is unavailable.
(2) Lists which document those employees avail-
able for straight-time work. Such lists shall be
furnished as they become available, for the next 6
weeks.
(3) The name of the individual responsible for
compiling and maintaining the above-requested lists
and the administration of furnishing subs and extras.
(4) A written explanation as to how the referral
system operates.
(b) Post at Respondent's business offices and
meeting places copies of the attached notice marked
"Appendix." 3 Copies of said notice, on forms
provided by the Regional Director for Region 7, after
being duly signed by Respondent's authorized
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Forward to the above-named Charging Party
for posting at its premises, the Charging Party
willing, copies of such notices duly signed by
Respondent's representative.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
The Oakland Press Co., a Subsidiary of Capital
Cities Communications, Inc., by refusing to
supply information relevant and necessary to the
bargaining process.
WE WILL NOT engage in any like or related
conduct in derogation of our statutory duty to
bargain.
WE WILL furnish The Oakland Press Co., a
Subsidiary of Capital Cities Communications,
Inc., with the following information:
(1) Data covering the availability of
straight-time help during the last 6 calendar
months. If such data is unavailable, we will
set forth in writing the reasons as to why the
data is unavailable.
(2) Lists which document the employees
available for straight-time work. Such lists
shall be furnished as they become available
for the next 6 weeks.
(3) The name of the individual responsi-
ble for compiling and maintaining the
above-requested lists and the administration
of furnishing subs and extras.
(4) Written explanation as to how the
referral system operates.
LOCAL 13, DETROIT
NEWSPAPER PRINTING
AND GRAPHIC
COMMUNICATIONS UNIGN,
INTERNATIONAL PRINTING
AND GRAPHIC
COMMUNICATIONS UNION,
AFL-CIO
DECISION
MAx ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was heard before me in
Detroit, Michigan, on February 16, and March 13 and 22,
1977, pursuant to a complaint filed by the General Counsel
of the National Labor Relations Board and an answer
interposed thereto by Local 13, Detroit Newspaper
Printing and Graphic Communications Union, Interna-
tional Printing and Graphic Communications Union,
AFL-CIO,' herein called Respondent.2 At issue is whether
Respondent violated Section 8(b)(3) of the National Labor
Relations Act, as amended, by refusing to furnish The
Oakland Press Co., a Subsidiary of Capital Cities Commu-
nications, Inc., herein called Oakland, with certain infor-
mation requested by Oakland during the course of
collective-bargaining negotiations. Briefs have been re-
ceived from the General Counsel, the Charging Party, and
Respondent, which have been duly considered.
Upon the entire record made in this proceeding,
including my observation of the witnesses as they testified
on the stand, I hereby make the following:
I The names of Respondent and the Charging Party appear as amended
at the heanng.
2 The complaint, which issued on December 10, 1976, is based upon a
charge filed on November 4, 1976, and served on November 5, 1976.
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE EMPLOYER
During the times material herein, Oakland, a Michigan
corporation, has maintained its principal office and place
of business in the city of Pontiac, State of Michigan, where
it is engaged in the publishing and printing of a daily
newspaper of general circulation. In the calendar year
1975, and in the course and conduct of its publishing
operations, Oakland received gross revenues in excess of
$1,000,000; held membership in, and subscribed to, various
interstate news services, including United Press Interna-
tional and Associated Press; published various nationally
syndicated features, advertised various nationally sold
products, the revenue from each of which annually
exceeded $500,000; and purchased and caused newsprint,
ink, and other goods and materials valued in excess of
$500,000, to be transported to its Pontiac, Michigan, place
of business in interstate commerce directly from States of
the United States other than the State of Michigan. On the
basis of the foregoing, I find that Oakland is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
I find that Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that, since on or about September
27, 1976,3 and continuing to date, Respondent has failed
and refused to supply, pursuant to Oakland's request made
during contract negotiations between the parties for a new
labor compact, its rules and/or policies governing referrals
and/or mechanisms for referrals by Respondent of em-
ployees for work to be performed in an appropriate unit 4 in
conformity with the provisions of the old collective-
bargaining agreement between Oakland and Respondent,
as well as with past practice or custom. By the foregoing
alleged misconduct, the General Counsel maintains that
Respondent offended the provisions of Section 8(b)(3) of
the Act. For its part, Respondent asserts that it has not
engaged in any labor practices proscribed by the statute.
It is undisputed and I find that for some undisclosed
number of years Oakland and Respondent have been
parties to collective-bargaining agreements covering the
pressroom employees at Oakland's Pontiac, Michigan,
plant. The most recent contract was effective from April I,
1973, to March 31. Section 15 of this agreement contained
a so-called manning table, under which Oakland was
required to employ a predetermined number of individuals
under Respondent's jurisdiction when certain types of
machinery were in use or when certain operations were
s All dates herein fall in 1976 unless otherwise indicated.
4 It is conceded and I find that the following unit is appropriate for the
purposes of collective bargaining within the meaning of Sec. 9(b) of the Act:
All pressroom employees of Oakland at its place of business located at 48
West Huron Street, Pontiac, Michigan, including employees engaged in the
operation, routine maintenance, cleaning, and upkeep of Oakland's press
equipment, ink dispensing and mixing equipment, Dyna-Pure equipment,
necessitated. In order to comply with the "manning table,"
Oakland, from time to time, was obligated to employ
additional persons to work on a daily basis. The obligation
of Respondent to provide employees to work at straight-
time wage rates was embodied in sections 2(b) and 9(b) of
the 1973-1976 contract. They read:
Section 2(b)
In the event that the Publisher hires new or additional
employees to fill jobs covered by this agreement, the
Publisher agrees to give the Union at least one (1)
week's notice of its intention to do so and to consider
any persons recommended by the Union for such jobs,
along with applicants from any other source. It is
agreed that all persons recommended by the Union to
the Publisher shall be eligible to work at straight time
rates, provided straight time men are available.
Section 9(b)
Employees shall not be compelled to work on their off-
days or nights if competent substitutes are available in
sufficient numbers at straight time rates to meet the
needs of the Publisher. The Union agrees to provide, on
a five-day markup basis, competent straight time
substitutes, if requested by the Publisher, to replace
employees on vacation. No employee shall lay off or
take a personal day without providing a competent
substitute at applicable straight time rates, acceptable
to the foreman, except in cases of illness or other [bona
fide] emergencies considered adequate by the foreman.
The foreman may grant permission to change or trade
off-days or nights upon written request from the
employees concerned.
In its operation, the referral system was utilized to provide
substitutes for regular pressroom employees who were on
vacation, who were laid off, or who took a personal day,
and to fill the extra manpower needs which arose when
Oakland published larger editions of its newspaper. In
supplying workers to replace vacationing employees under
section 9(b), Respondent agreed to and did provide
substitutes at straight time if substitutes were requested for
5-day markups, i.e., 5 consecutive days of employment, or
if substitutes were required to fill in for employees on
various other types of leaves of absence. With respect to
the coverage of extra work on a daily, nonvacation or
nonleave basis, Respondent consistently allowed the
regular employees of Oakland the choice of working the
extra hours at overtime rates before it would refer straight-
time personnel to Oakland. Donald Kummer, Respon-
dent's president, explained the custom and practice of
referrals under sections 2(b) and 9(b) of the contract by
stating that "the union has agreed to personal days, to
vacation by the week. This has always been the relation-
core stripper, conveyors in the pressroom, and offset press equipment if
added by Oakland. and in the handling of paper at Oakland's place of
business from the loading ramp or elevator to the storage area, or reels, but
excluding employees engaged in the maintenance or repair of drive motors
and electric or electronic control panels or in work not connected with the
operation of the press for printing newspapers, guards, and supervisors as
defined in the Act, and all other employees.
998
LOC. 13, DETROIT NEWSPAPER PRINTING & GRAPHIC COMMUNICATIONS UNION
ship. And that's when - when that comes, we get straight-
time people." Kummer added that "when there's extra
shifts. In other words the company has ten men on its
payroll and if there are eight of them working that day and
they add a couple of jobs, then those guys who are off get
first claim" to work at overtime rates. Michael Zinser,
Oakland's labor counsel who participated in contractual
negotiations with Respondent to fashion a new agreement
to replace the 1973-76 contract, confirmed Kummer's
explanation. He testified that, "in the old contract and
under the conditions under which the company is now
operating, there is a manning provision and it requires that
specific numbers of men be present when certain types of
operations take place on the press. The company has a
regular bargaining unit complement of about ten people.
But the manning table on certain days requires . . .
sometimes up to eighteen or nineteen people be present.
And so, to get the men to . . . fill the requirements under
this table, these people are referred from the Local union.
If the Local union refers someone who does not work at the
plant we will pay that person on a straight-time basis as
opposed to an overtime basis. If someone from our regular
complement is sent to us, on his off-day, of course that's
going to be an over forty hour week situation and require
the payment of overtime."
At the outset of bargaining negotiations over a new
agreement which commenced on February 11, Oakland's
representatives submitted a variety of written proposals
designed to modify the existing contract. With respect to
section 2(b), management proposed that the phrase
"provided straight time men are available" be stricken
from the end of the section. According to Zinser, "The
reason for the proposed change in section 2(b) was that the
company believed that they were paying too much money
out in overtime, and this proposal would guarantee straight
time people to perform these functions, and therefore they
would save money. It would reduce their payroll cost."
Regarding section 9(b), Oakland proposed that the first
sentence thereof be changed to read "Employees shall not
work on their off days or nights until the union has made a
bona fide effort to provide competent substitutes in
sufficient numbers at straight time rates to meet the needs
of the Publisher. The Union agrees to provide the
Publisher, upon demand, information verifying the avail-
ability of substitutes in the Union's jurisdiction for any day
requested by the Publisher." Zinser testified that the
response of Respondent's bargaining agents had "always
been that the union is unwilling to agree to the proposed
change."
Negotiations continued until the summer months and
were resumed in September. On September 27, Bruce H.
McIntyre, Oakland's then executive vice president and
editor, dispatched a letter to Respondent's President
Kummer which recited:
On Monday and Tuesday, September 13 and 14, our
press markup required two men more than the number
of regulars who were scheduled to work.
The chapel chairman was aware of these requirements
on the previous Friday. However, on Monday your
union sent in two of our regulars (who had days off) to
work overtime. The same thing happened Tuesday.
I do not believe either of these days is heavy at the
other plants in you local, and it is difficult for me to
understand how the local could not have located
substitutes on three to four days of notice.
We regard the meaning of our agreement with you to
be that you will not refer the regulars to work overtime
unless you are totally unable to supply substitutes at
straight time. We do not think that responsibility was
met in this case.
I await any explanation you would like to make about
this. In addition, however, I feel that it is necessary in
order to protect our rights under the contract that we
formally request from you at this time the status of your
hiring list on September 13 and 14, with sufficient detail
that we will be able to ascertain the actual availability
of substitutes on those days.
Zinser recalled that the subject of Oakland's proposed
changes again arose at a bargaining session held on
October 4. He testified that, at this meeting, "we [Oak-
land's negotiating staff] were trying to get the union to
accede to our proposal and include that in a new contract.
And we were unable to reach agreement. At that time, the
union - and by the union, I mean Mr. Kummer - stated
that he was not willing to agree." At this juncture in his
testimony, Zinser added that Kummer "said he could not
assure to give us straight-time help all the time." Upon
hearing this response, Zinser broke in and stated that "if
that is the case, you will not agree to our proposal, we
would like, as bargaining information, some data that
would show us the availability of straight-time help over a
period of time. And the union refused that request, stating
that at that time - that such information was not
available. And further stating that even if it were available
they wouldn't give it to us anyway."
Zinser further testified that the issue of providing
straight-time help arose once more at the next bargaining
session on October 19. In Zinser's words, he again "asked
Mr. Kummer for the information regarding the availability
of straight-time help. And again Mr. Kummer stated that it
was not available and that it was an internal union matter."
After further prodding, Kummer informed Oakland's
bargaining committee that "certain lists are kept on a daily
. . . basis ... but the lists are destroyed on a daily basis."
Zinser asked Kummer if the latter would preserve the lists
for a certain period of time in order for his group to sample
the availability of straight-time men. Kummer declined this
request. However, Kummer did volunteer that if Zinser
gave him "a specific day on which you would like some
men . . . I'll let you see something for that day." Zinser
rejoined that "that really wouldn't help my problem,
because we were talking about our contract proposal for
the new contract and that I wanted to sample it for a longer
period of time, to get an idea whether it would be
burdensome on him to accede to this proposal." Kummer
.replied, "You'll have to prove your right to this informa-
tion, if you think you have a right to it" and, then, upon
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reconsideration, Kummer advised Zinser that "if you want
this information document it in writing and give it to me
and I will reply." With this, the meeting broke up.
At the next meeting on October 20, Kummer was
presented with a letter signed by Glenn Nelsey, Respon-
dent's production manager, embodying the following:
This letter is a formal demand for bargaining informa-
tion concerning sections 2(b) and 9(b) of the expired
collective bargaining agreement which is now the
subject of negotiations.
More specifically The Oakland Press requests the
following:
1. Data covering the availability of straight-time
help during the last six (6) calendar months. If such
data is unavailable, please respond in writing the
reasons why.
2. During our collective bargaining session of 10-
19-76, you stated that there are in existence lists which
document just who is available for straight-time work.
Please preserve and send to me, as they become
available, six lists for each day for the next six (6)
weeks.
3. Please furnish to us the name of the individual at
your Local who is responsible for compiling and
maintaining said lists and the administration of
furnishing subs and extras.
4. Please furnish in writing an explanation of how
Local 13 handles requests for men.
Please indicate if you intend to furnish the requested
information. If you do intend to furnish the informa-
tion, please do so on October 27, 1976.
Regarding Nelsey's written demand, Zinser testified that
Oakland "requested of Mr. Kummer, information, or data,
if you will, that would document for the Employer, the
availability of straight time pressmen to perform work at
The Oakland Press." According to Zinser, the purpose for
the production of this information was that "we had made
specific contract proposals which would in essence guaran-
tee an extra person to work, pursuant to the manning table,
or pursuant to absenteeism, or whatever reason, that that
person would always be a straight time person. The
company felt that they were paying too much money in
overtime. And these proposals when discussed - well, we
could never make a resolution of these issues. The Union
would refuse to agree to these issues and so we requested
the information so that we could see if it would be possible
for the Union to comply with our request - to comply
with our proposal."
According to Zinser, another bargaining session was held
on October 26 at which he inquired of Kummer as to
whether Oakland's negotiating team could have the
information requested in Nelsey's letter. Kummer respond-
ed that the letter sought this data on October 27, and that
Oakland would receive Respondent's reply on that date.
However, this information was never thereafter forthcom-
ing.
Collective negotiations persisted and, on December 29,
Zinser mailed a letter to Kummer in which he chronicled
that:
The most recent collective bargaining session of the
parties occurred on Sunday, December 12, 1976. At
that time you stated that the Union's position on the
remaining unresolved issues had not changed.
The following states the respective positions of the
parties on the unresolved issues (references are to
sections of old contract):
Section 2(b) (Hiring & Referral) - The proposed
change of The Oakland Press is the deletion of the
phrase "provided straight-time men are available." The
reason for the proposed change is abuse by the Union
during the term of the last contract. Section 2(b) as
worded in the old contract places an affirmative burden
on the part of the Union to try to find straight-time
help first before sending an overtime person. Our
experience indicates that this burden is not being met
and furthermore, you have stated that you have not
tried to find straight-time persons if a regular wanted to
work overtime. To pay overtime when straight-time
help is available is repulsive to the Company. Our
proposed change would insure us straight-time help
and return to the Company the control of overtime
costs. The position of the Union is that it is unwilling to
agree to our proposed change. [Emphasis supplied.]
Section 9(b) (Substitutes on off-days) - The only
proposed change in this section is the addition of two
sentences:
The Union agrees to make a bona finde effort to
provide competent straight-time substitutes to meet the
needs of the Publisher. The Union agrees to provide the
Publisher, upon demand, information verifying the
availability of substitutes in the Union's jurisdiction for
any day requested by the Publisher.
The position of the Union is that it is unwilling to make
the requested changes. [Emphasis supplied.]
On cross-examination by Respondent's counsel, Zinser
acknowledged that Respondent, during the entire course of
negotiations, consistently declined to agree to Oakland's
proposals that would require Respondent to supply only
straight-time help to Oakland under sections 2(b) and 9(b)
of the old contract. Moreover, Zinser confessed that "It
was the union's refusal to agree to our proposal to
guarantee a straight-time man all of the time, that
prompted my request" for data which would demonstrate
the unavailability of straight-time help in all instances
where such workers were requested by Oakland. However,
at the prompting of Oakland's counsel on redirect
examination, Zinser changed tack and proclaimed that
Kummer said "that he could not assure straight-time men
every day," and that that was the reason why Oakland
demanded the production of information relating to the
1000
LOC. 13, DETROIT NEWSPAPER PRINTING & GRAPHIC COMMUNICATIONS UNION
availability of men for straight-time work. Finally, Zinser
admitted that, in an affidavit which he gave to a Board
agent during an investigation of the charges which Oakland
filed herein, he made no mention of Kummer's asserted
insistence that the latter could not assure the provision of
straight-time employees.
In his testimony, Kummer steadfastly maintained that,
throughout negotiations, he uniformly refused to accept
Oakland's proposals regarding the modification of sections
2(b) and 9(b) to ensure the referral of only straight-time
employees. In Kummer's words, "The company wanted
straight-time coverage, complete straight-time coverage.
And the Union said no. And that's - it has been, in every
contract, that has been an item of discussion." Kummer
went on to state that "The union's explanation was that the
people in the shop were entitled to work before a person
from the outside got extra shifts.... whatever we had -
we would agree to in the contract. That's what we would -
and we weren't about to agree to furnish straight-time
people just on any basis. We have an agreement that we
have had for a number of years, and lived up to, when a
person is replaced for a vacation, by the week, we send a
man in for a week - or cover - if we can't get somebody
for a week, we went to them day-by-day. If a person
knocks off . . . we will replace them with straight-time
people. If a person has a personal day, we replace them.
That's what we've always done. We've never had a shift go
dark at Oakland.... That's what I said to the company
and ... they certainly knew it." Rounding out Kummer's
testimony, he further maintained that Respondent never
took the stance during the course of its bargaining with
Oakland that it was unable to furnish straight-time help.
I credit the testimony of Kummer, which is not in basic
disharmony with Zinser's testimonial utterances on cross-
examination, and find that, pursuant to sections 2(b) and
9(b) of the expired contract between the parties, as well as
established custom and practice, Respondent agreed to and
did refer employees to work for Oakland on a straight-time
basis when help was needed to man presses when
substitutes were requested for 5-day vacation markups, or
when substitutes were required to fill in for employees on
various types of leaves of absence. With respect to the
coverage of extra work on a daily, nonvacation or nonleave
basis, Respondent traditionally utilized regular employees
I See N.L R.B. v. Wooster Division of Borg- Warner, Corporation, 356 U.S.
342, 349 (1958).
to work extra hours at overtime rates and Oakland
regularly acquiesced in this procedure. I find that, in the
course of negotiations which commenced on February 11,
and until December 29, Oakland proposed that sections
2(b) and 9(b) be altered so that all employees referred by
Respondent for any tours of duty be paid on a straight-
time basis. I further find that Respondent flatly and in
good faith rejected these proposals to the point of impasse,
and did not plead its inability to assure the provision of
straight-time personnel.
The General Counsel and Oakland contend that Respon-
dent failed to bargain in good faith, in violation of Section
8(b)(3) of the Act, by refusing, upon request, to provide
Oakland with information regarding the availability of
straight-time workers which was both relevant and neces-
sary to enhance the bargaining process. I have heretofore
found that at no time during negotiations between the
parties did Respondent plead any such inability to assure
the provision of straight-time personnel to Oakland when
extra help was required. Indeed, from the commencement
of negotiations on February 11 until December 29,
Oakland proposed the deletion of certain portions of
sections 2(b) and 9(b) of the 1973-76 agreement which by
language, as well as custom and past practice, authorized
Respondent to refer extra employees at overtime rates.
After duly considering these proposals, Respondent flatly
rejected them. While the obligation of an employer and the
representative of its employees to bargain with each other
in good faith with respect to wages, hours, and other terms
and conditions of employment is statutorily established,
the Supreme Court has made it clear that "The duty is
limited to those subjects, and within that area neither party
is legally obligated to yield." 5 In light of Respondent's
legal privilege to refuse to accede to Oakland's bargaining
demand, and its good-faith exercise of that privilege at the
bargaining table, I am hard-pressed to understand how
production of the requested information could either be
relevant or necessary to the bargaining process. According-
ly, I conclude that Respondent did not violate Section
8(b)(3) of the Act by its conduct herein, and I shall dismiss
the complaint in its entirety.
[Recommended Order for dismissal omitted from publi-
cation.]
1001