Hearst Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1955

113 N.L.R.B. 1067 (N.L.R.B. 1955)

INTERNATIONAL NEWS SERVICE DIVISION 1067
International News Service Division of the Hearst Corporation
and American Newspaper Guild, CIO
International News Photos Division of the Hearst Corporation
and American Newspaper Guild , CIO. Cases Not. 2-CA-3507
and 2-CA-3508. August 26,19-55
DECISION AND ORDER
On October 18, 1954, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled consolidated proceedings,
finding that the Respondent had engaged in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain action, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respondent
has not violated the Act in certain other respects and recommended
dismissal of the complaint insofar as it contains allegations concern-
ing such violations. Thereafter, the Respondent filed exceptions to
the Intermediate 'Report and a supporting brief, and the Union filed
a reply brief.
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 Trial Examiner found that the Respondent violated Section
8 (a) (5) of the Act by refusing to comply with the Union's request
for information showing, among other things, the specific salaries of
the Respondent's employees and the amounts of merit increases the
respective employees had been given. In addition to other arguments,
the Respondent contends that the Union waived whatever right it may
have had to receive this information by negotiating and signing its
1953-55 bargaining agreement with the Respondent. We agree with
,this contention.
For a number of years, the Union has been the collective-bargain-
ing representative of employees in the Respondent's International
News Service and International News Photos Divisions. In this capac-
ity, the Union has negotiated a series of bargaining agreements cover-
ing these employees. These contracts did not provide for the pay-
ment of fixed wages and salaries. Instead, the contracts established
a series of minimum rates, with each contract providing that merit
increases, that is wages and salaries above the required minima, would
be arrived at by negotiation between the Respondent and individual
employees. This was the general scheme of the parties' contract that
was effective from April 1952 to April 21, 1953. That contract in-
cluded a clause, article II, that required the Respondent to furnish
113 NLRB No. 130.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union with a list of the employees covered, together with their
experience ratings and classifications.,
In April 1953, the parties began to negotiate the renewal of their
1952-53 agreement. At the first session, on April 27, the Union pre-
sented a mimeographed document containing specific proposals for
the new contract, including a proposal to continue the schedule of
minimum rates. The Union proposed, however, a change in the prac-
tice with respect to merit increases, proposing that it be given "the
right to bargain on individual merit increases," and that "The Em-
ployer shall inform the Guild of all merit in cases granted in accord-
ance with the provisions of Article IV." By article IV, the Union
proposed that instead of the above-described article II of the 1952-53
contract, the following clause be substituted :
1. Within 15 days after the signing of this contract the Em-
ployer shall supply the Guild with a list containing the following
information for all employees then on the payroll:
(a) Name, address and telephone number.
(b) Date of hiring.
(c) Classification.
(d) Experience rating and experience anniversary.
(e) Salary, including a description of commission or bonus
arrangements.
2. The Employer shall notify the Guild monthly in writing of:
(a) All merit increases granted by name of the employee,
individual amount, and effective date.
(b) Step-up increases paid by name of the employee, indi-
vidual amount, and effective date.
(c) Changes in classification and any salary changes by
reason thereof.
(d) Resignations, retirements, deaths and any other
revisions in the data listed in Section 1.
3. Within one week after the hiring of a new employee the
Employer shall furnish, the Guild in - writing with the • data
specified in Section 1 for each such new employee.
In bargaining conferences that followed the April 27 meeting, the
parties were unable to agree on the terms of a new contract. A Fed-
eral mediator was thereupon called in, and on May 20, in the latter's
presence, the parties discussed the Union's proposed information
clause. On May 22, the Union, acting at the mediator's suggestion,,
i Article II of the 1952-53 contract states : "Within fifteen days after the signing of
this contract, the employer agrees to supply to the Guild a list of employes by bureaus
who are governed by the terms of this contract, with experience rating, classifications and
their designation as permanent or ieplacement employes. Additions to or substractions
from this list will be supplied monthly to the Guild."
INTERNATIONAL NEWS SERVICE DIVISION 1069
-prepared a written list of the contract subjects that the Union con-
sidered of primary importance, and those that it considered to be of
'lesser significance. Listed in the first category of seven subjects, that
is items of greatest weight and priority, were such disputed matters
as "Grievance Procedure," "Minimum Wages," and "Severance Pay."
The subject of "Information" was listed in the second category of 16
subjects, that is items of lesser weight, which included the subjects of
"'Preamble" and "Miscellaneous." Also on May 22, again at the medi-
ator's suggestion, the parties designated a two-man subcommittee,
composed of Thomas R. Breslin for the Respondent and Stephen
Ripley for the Union, to continue the negotiations.
At the second meeting of the subcommittee on June 1, Ripley agreed
to abandon the Union's original proposal with respect to the furnishing
of information, and to include in the new contract the above-described
.article II of the 1952-53 contract with the addition of a requirement
-that the Respondent would furnish the Union with the employees'
addresses and experience anniversary dates. The subcommittee met
again on June 8, but did not discuss the "information" matter. On
June 9, the subcommittee reported to the mediator, and listed the
items as to which agreement had not been achieved. These were
chiefly items that had appeared on the Union's May 22 list of priority
items. The subject of "information" was not reported as an item then
in dispute. On June 12, after approximately 20 meetings, the parties
reached complete agreement on the terms of a new contract.
This contract, effective from April 21, 1953, to April 21, 1955, fol-
lowed the scheme of the earlier agreements, in that it established a se-
ries of minimum rates. It also reflects the Union's abandonment of its
initial proposal on merit increases, for, like its predecessors, the
1953-55 contract provides that. merit increases shall be arrived at by
negotiation between the Respondent and the individual employees.
As executed, the 1953-55 contract contains the "information" clause
agreed upon by the negotiating subcommittee on June 1.2
Explaining the negotiations between himself and Breslin, Ripley
testified that the Union abandoned its original proposal because "we
were entitled.to the information anyway legally." He testified that
the Union conveyed the idea to the Respondent that the Union "could
go to the National Labor Relations Board, or court, or wherever we
had to go to get it." However, he could not recall specifically when,
2 Article III of the 1953-55 contract provides :
Within fifteen clays after the signing of this contract, the employer agreement to
supply to the Guild a list of employes by bureaus who are governed by the terms of
this contract, with address, experience anniversary, experience rating, classifications
and their designation as permanent or replacement employes Additions to or sub-
tractions from this list will be supplied monthly to the Guild Within two weeks
after the hiring of a new employe, the employer shall furnish the Guild with the
foregoing data.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to whom, such a statement was made in the course of the bargaining
,negotiations. Breslin testified that when Ripley agreed to the aban-
donment of the Union's original "information" proposal, Ripley made
it clear that he was so doing because "this information was not essential
or vital to the Guild." Breslin categorically denied that he or, as far
as he knew, any other representative of the Respondent was told during
formal bargaining session that the Union was abandoning its proposal
because it was believed that legal procedure could be invoked to get the
information.
As the Trial Examiner found, the Respondent complied with the
1953-55 contract by supplying the Union with all the information that
was required by the above-described article III of its terms. Never-
theless, on September 9, 1953, the Union requested the Repondent to
furnish the following information :
1. The name of each employe, listed by job title and department.
2. His salary, and the dates ' and amounts of any regular com-
missions and bonuses paid him during the past year.
3. The years of experience credited to him.
4. His length of service with the company.
5. His date of hiring and anniversary date.
6. The dates and amounts of any merit increases paid him dur-
ing the past year.
7. Details of the formulas used in the computation and payment
of commissions, bonuses and merit increases.
The Union wrote that its request was being made "in order to police
the existing contract, bargain intelligently, and evaluate properly our
,own and management's wage proposals." The Respondent refused the
Union's request, pointing out that no grievances had been filed and
that no wage proposals were then pending.
Although the Board has said repeatedly that statutory rights may
be waived by collective bargaining,' it has also said that such a waiver
will not readily be inferred. It is thus required that there be "a clear
and unmistakable showing" that the waiver occurred.4 On the facts
of this case we hold that the Union "clearly and unmistakably" bar-
gained away any right it had to receive the information it requested on
September 9.5 '
What the Union asked for on September 9 was almost precisely. the
portion of its May 27 information proposal that the Respondent had
z See , for example, Shell Oil Company, Incorporated, 77 NLRB 1306 ( right to strike)
Tidewater Associated Oil Company, 85 NLRB 1096, 1098 (right to bargain concerning a
pension plan ) ; Shell Oil Company, 93 NLRB 161, 164 (right to negotiate grievances) ; E.
4V. Scripps Company, 94 NLRB 227, 228 (right to bargain concerning merit increases).
4 Tidewater Association Oil Company, supra . See also E W. Scripps Company, supra;
California Portland Cement Company, 101 NLRB 1436, 1438-1439; Hekman Furniture
'Company, 101 NLRB 631, 632
5 See General Controls- Co, 88 NLRB 1341, 1342, The Hughes Tool Compaiiy,-100 NLRB
208, 209; Avco Manufacturing Corporation , 111 NLRB 729
INTERNATIONAL NEWS SERVICE DIVISION 1071
refused to assent to, and which the Union had, in fact, abandoned, in
the course of the bargaining negotiations for the 1953-55 contract.
Some 20 bargaining sessions had been required before the parties had
reached agreement on the terms of that contract. During several of
those sessions, the parties had addressed themselves to the Union's "in-
formation" proposal, and the Union clearly revealed that it attached
less importance to that proposal than it did to other matters in issue.
It is significant, too, we think that not only did the Union in the course
of the bargaining abandon its original "information" proposal, but it
also abandoned its original proposal that it be accorded the right to
bargain on individual merit increases. For, as the factual recital
above shows, the Union related its proposal that it be given informa-
tion on individual merit increases with its proposal that it be con-
sulted on the granting of such increases. Thus, the Union's abandon-
ment of the latter proposal gives a cogent reason for the relatively less
weight the Union attached to its "information" proposal than to other
subjects, and, indeed, tends to indicate the reason for its ultimate
abandonment.
But on the facts before the Board, what the reason was that mo-
tivated the Union-whether it was because it abandoned its merit in-
crease proposal, or whether it was, as Ripley testified, because the
Union believed that legal sanction could be invoked to procure what
it was seeking, or whether it was for some other reason not shown in
the record-we need not here decide. Nor need we decide whether or
not the Union's September 9 request was relevant or necessary for the
reasons it advanced when it made the request. For the controlling fact
that clearly emerges from the entire course of the parties' bargaining
is that the Union, having proposed an "information" clause for the
1953-55 contract more inclusive than the one in the 1952-53 contract,
consciously yielded in the face of the Respondent's objections, and ac-
cepted something less than it originally proposed. What the parties
ultimately agreed upon, moreover, was the "information" clause of
the 1952-53 contract modified to include a part of the Union's original
proposal. And this agreement was in fact written into the express
terms of the bargaining contract the parties executed.
In these circumstances, we believe it would be an abuse of the Board's
mandate to throw the weight of Government sanction behind the
Union's attempt, some 3 months later, to disturb the terms of the bar-
gain the parties themselves achieved. The give-and-take of the bar-
gaining table is undoubtedly a better place than the Board's offices for
resolving disputes as to the type and amount of informational data
parties to collective-bargaining contracts must give to each other.
Where, as here, the parties have themselves decided the issue at the
bargaining table, the issue has been taken away from the Board and
there is no need for it to interfere. To hold otherwise is to encourage
-1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one party to a bargaining agreement to resort to the Board's processes
to upset the terms of a contract which the other party to the agreement
had every good reason to believe had been stabilized for a definite
period.'
Members Murdock and Peterson state in their dissent that, in reach-
ing our decision herein, we have departed from precedent. We have
not. The issue of whether there has been "a clear and unmistakable"
waiver is necessarily a question of fact that can be decided only upon
the specific facts of the particular case. Like our dissenting colleagues
we have read and carefully analyzed and compared the cases cited by
them in their dissent. In our considered judgment, each of those cases
is factually distinguishable from the instant case. No case relied upon
by Members Murdock and Peterson involved a situation, as here, in
which it was shown that the parties not only bargained pro and con
with respect to an information clause, but also, having cone to terms
on the matter, inserted in their contract, not what one party originally
sought, but a measure that compromised their differences. It follows,
therefore, that the cases relied upon by Members Murdock and Peter-
son cannot be controlling here.
Accordingly, as it appears that the Respondent supplied the infor-
mation to which the Union could lay claim under the 1953-55 contract,
and as a majority of the Board so agrees, we shall dismiss the com-
plaints against the Respondent.
[The Board dismissed the complaints.]
MEMBER LEEDOM', concurring :
I concur that the complaints should be dismissed but I do not believe
it is necessary to reach the problem of waiver.
Considering the time of the demand for, the information, with re-
spect to the wage reopening provision of the contract, and the failure
to establish specific need for the data, in the absence of apparent neces-
sity. at the time of the request, I would dismiss. Lacking such a show-'
ing, the Employer's failure to supply information is not failure to
bargain in good faith.
MEMBERS MURDOCIK and PETERSON, dissenting : -
In these cases Chairman Farmer and Member Rodgers, with the
concurrence of Member Leedom, have decided that this Employer did
not violate Section 8 (a) (5) of the Act by refusing to furnish a Union
with wage data concerning the employees it represents. In so deciding'
they have deprived this Union of necessary and relevant information
essential to the intelligent representation of these employees. For the
first time in the history of Board and court decisions in this area of la-
See Chairman Herzog' s concurring opinion in The Jacobs Manufacturing Company,,
94 NLRB 1214, 1227-1228.
INTERNATIONAL NEWS SERVICE DIVISION 1073
bor relations, the assertion is made that to require the employer to fur-
nish more information than the amount specified in a contract would
be "an abuse of the Board's mandate." According to Chairman Far-
mer and Member Rodgers, the "give-and-take of the bargaining table"
is "a better place than the Board's offices" to resolve disputes of this
nature. Indeed, they hold that where the parties have contracted con-
cerning informational data "the issue has been taken away from the
Board and there is no need for it to interfere." These conclusions are
not only novel ; in our opinion, they present a basic misconception of
the Board's function in administering this Act. Is it an abuse of the
Board's mandate to require an employer to furnish a union with infor-
mation which the latter finds essential to effectively exercise its duty of
representing employees under Section 9 (a) of the Act? In other
cases Chairman Farmer 7 and Member Rodgers 8 themselves have sub-
scribed to the Board and court established rule that it is the obligation
of an employer to,furnish such information to a Union to make collec-
tive bargaining effective. Did the Board abuse its mandate in those
cases too? Why were the employers in those cases ordered to furnish
the requested information if the bargaining table was the better place
to resolve those disputes? Why should the Board have interfered
there, but not here? Chairman Farmer and Member Rodgers are say-
ing, in effect, to this Union : "You now have half the tools you need to
carry out your obligations to these employees. You did not success-
fully insist at the bargaining table, a better place than the Board's
offices, that you be given all of them; it is therefore your own fault
and not the Board's if you cannot represent these employees effec-,
tively."
It has been the consistent position of the Board and the courts that
the furnishing of wage information to a union is ' a, prerequisite to effec-
tive collective bargaining. Certainly, it is the business of this Board to
see to it that the union be furnished this data, which is in the employer's
possession and can be supplied without the imposition of an unreason-
able or undue burden. Otherwise the Board will have failed to carry
out the congressional mandate to foster and encourage collective bar-
gaining. In our view, this mandate does not permit the Board to stand
by with arms folded and solemnly declare that there is "no need to in-
terfere" when one of the parties is crippled by the absence of informa-
tion without which it cannot fulfill its role in collective bargaining.
To support their finding that the Employer did not violate Section
8 (a) (5) of the Act, Chairman Farmer and Member Rodgers hold that
the Union "bargained away" or "abandoned" its right to this informa-
7 Boston Herald-Traveler Corporation, 110 NLRB 2097, enfd 223 F. 2d 58 (C. A. 2) ;
Whitin MachanehWoiks , 108 NLRB 1537 , enfd. 217 F . 2d 593 ( C. A 4), cert. denied 349
U S 905; The Item Company, 108 NLRB 1634 , enfd 220 F 2d 956 ( C 'A 5).
6 Utica Observer-Dispatch, Inc, 111 NLRB 58; Whitin Machine Works, supra; The
Item Company, supra.
1074. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in the course of negotiating and executing a contract. The ex-
tended discussion of the parties' negotiations for a new contract in 1953,,
which appears in their decision, reveals that the Union originally re-
quested complete informational data, but finally executed a contract in
which the Employer agreed to furnish the Union with some but not all
of such data. Chairman Farmer and Member Rodgers concede that,
there is some evidence in the record that the Union did not insist that
the Employer agree to furnish all the information because it believed
that the Employer was legally obligated to furnish such information,
whether or not the contract so provided. There is, in addition, evi-
dence in the record, contrary to the suggestion of Chairman Farmer
and Member Rodgers, that the Union's position as to this issue was spe-
cifically made known to the Employer. Stephen Ripley, a union nego-
tiator, testified that he had submitted a brief to Federal Mediator
Bernard J. Forman, which set forth the Union's position that it had
a legal right to such information. On cross-examination Respondent's,
negotiator, Thomas J. Breslin, admitted that he had read the Union's
brief at the time it was presented to the mediator and that he "was
therefore aware of the Union's position that it had a right, apart from
any contractual agreement , to be provided with the desired informa-
tion.
The Board and the courts have uniformly recognized that to deny
a union information necessary to its role as bargaining representa-
tive would create a serious impediment to the processes of collective
bargaining.' Such a right has been held to be statutory in nature,10'
deriving from the union's authority under Section 9 (a) of the Act
to represent employees and the employer's corollary duty under Sec-
tion 8 (a) (5) to engage in good-faith collective bargaining. Nu-
merous defenses, including the argument that the Union had "waived"
its right to such information, have been rejected time and again.lr
The Board has held, with judicial approval, that any purported
waiver by a union of so important and necessary a right must be a
"specific" waiver in language "clear and unmistakable" or "clear and
unequivocal." 12 Chairman Farmer and Member Rodgers, however,
find solely on the basis of the execution of a contract containing an
'Utica Observer-Dispatch, Inc., supra , Boston Herald-Traveler Cor poration, supra;
The Item Company, supra ; Whitin Machine Works, supra ; Leland-Gafford Company, 95
NLRB 1306, enfd 200 F. 2d 620 (C A 1) ; Yawman & Erbe hfanufactusing Company, 89,
NLRB 881, enfd. 187 F 2d 947 (C A. 2) ; N. L. R B. v. J. H Allison & Company, 165 F.
2d 766 (C A. 6), cert. denied 335 U S 905
'O N L R B v. The Item Company , supra ; N. L R B. v. Yawman & Erbe Manufactur-
ing Company, supra ; California Poitland Cement Company, 101 NLRB 1433. 1439
" Utica Observes -Dispatch, Inc, supra; Post Publishing Co, 102 NLRB 648, Ilastingo
Sons Publishing Company, 102 NLRB 708 ; Hekman Fu) nature Co , 101 NLRB 631, enfd
207 F 2d 561 (C A 6) ; N L it. B v Leland-Gifford Co., supra
12 N. L R. B. v. The Item Company, supra , California Portland Cement Company, supra :
Tide Water Associated Oil Company, 85 NLRB 1096; E W Scripps Company, 94 NLRB
227; General Controls Co , 88 NLRB 1341.
INTERNATIONAL NEWS SERVICE DIVISION 1075
agreement that the Employer would furnish less information than
was originally requested and that the Union "clearly and unmis-
takably" waived its right to the additional necessary information.
'Obviously they would substitute what at best is an implied waiver
from silence or ambiguous conduct for the judicially approved doc-
trine that nothing less than a "clear and unequivocal" waiver will
suffice. We believe that this decision is on its face wrong.
Our view that there was no clear waiver in this case is supported
by the decisions of numerous circuit courts of appeals. Rejecting
a similar contention, the Sixth Circuit Court of Appeals held in the
Allison decision :
Nor do we see logical justification in the view that in entering into
a collective bargaining agreement for a new year, even though
the contract was silent upon a controverted matter, the union
should be held to have waived any rights secured under the Act,
including its right to have a say-so as to so-called merit increases.
,Such interpretation would seem to be disruptive rather than
fostering in its effect upon collective bargaining, the national
desideratum disclosed in the broad terms of the first section of
the National Labor Relations Act.
In N. L. R. B. v. Otis Elevator Company,13 the Second Circuit Court
of Appeals set forth a contractual provision in which the employer
agreed to furnish specific information relating to time study statistics.
The courtthen held as follows :
Respondent . . . contends that this sets forth his entire obliga-
tion to impart information and constitutes a waiver of any addi-
tional union right. We cannot agree. In the atmosphere of
collective bargaining in labor relations it is reasonable to re-
quire that the parties set forth the terms on which they have
agreed. But the drawing of broad inferences of waiver from
their silence would be disruptive rather than fostering amicable
relations. [Citing N. L. R. B. v. J. H. Allison Company, supra.]
The language quoted from the contract carries the implication
of a general intent to keep the operator informed as to the de-
velopment of time studies affecting him. In the absence of an
express provision this should not be read as limiting requests on
behalf of the employees for information, but rather as in gen-
eral supporting them. We think, therefore, that the general
principle-of free access to information relevant to bargainable
-issues must apply. [Emphasis supplied.]
In the Leland-Gifford case 14 the union, as in the instant cases, had
requested complete data for bargaining purposes and was supplied
za 208 F. 2d 176 (C. A. 2).
14 Leland-Gsford Company , supra.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the company with something less in contract form. In that case
the parties had even included a clause in the contract to the effect that
the agreement represented the entire agreement between the parties,
as indicated below. Nevertheless, the Board held:
The Respondent's contention that the Union bargained away
the right to request the individual wage data is apparently based
on the fact that the 1948 contract contained provisions requiring
the disclosure by the Respondent of certain information (not in-
cluding that in issue here), and a further clause which stated,
"This agreement contains the entire agreement between the parties
and no matters shall be considered which are covered by the
written provisions stated herein." We need not decide, as the
Trial Examiner did, whether this clause was operative during
the period in 1950 covered by,the complaint herein, for we are
satisfied that, in any event, the clause in question was not in-
tended, and cannot be construed, as a waiver by the Union of its
right to obtain data necessary to the effective administration of a
contract. [Emphasis supplied except on phrase "right to obtain
data."]
The First Circuit Court of Appeals,15 finding that the respondent'&
duty to furnish information under the circumstances of that case
did not "require extended consideration," enforced this portion of
the Board's order, citing numerous precedents. Again in N. L. R. B_
v. Yawman d Erbe Manufacturing Company 16 the Second Circuit
Court of Appeals held that the union had a right to such information
even though a contract had been executed without its disclosure :
Nor is our determination that the information was relevant.
affected by the subsequent execution of a contract without dis-
closure. The most that can be inferred from the Union's action
is that the advantages of a contract in hand outweigh those which
the Union might later obtain when all relevant information would
be available to it.
In the 20 years since the Board was first established 'and entrusted
with the function of administering this Act, no Board or court decision
has found a waiver of the union's right to such information on the
ground that the union was able to secure some, but not all, of the neces-
sary information through voluntary agreement of the employer;
rather such a doctrine has been specifically rejected by courts of appeal.
Information of this nature is the essential means by which a union may
become sufficiently informed to bargain about substantive matters in
discharging its duties under Section 9 (a) of the Act as the bargaining
representative of these employees. We do not believe that the Board
15 N L. R B. v. Leland-Gifford Company, supra.
11 Supra
INTERNATIONAL NEWS SERVICE DIVISION 1077
should deprive a union of so vital an instrument to effectuate this.
statutory purpose. We would not do so unless the union in clear and
unequivocal language had agreed, as it has not in these cases, to waive
its right under the statute. We believe it too late in the day to ignore
or overrule all judicial authority on this doctrine.
In his concurring opinion Member Leedom takes the position that he
would dismiss the complaint without considering whether or not
the Union had waived its right to the information requested. He
cites neither Board nor court decisions in support of his conclusion,
that "the employer's failure to supply information is not failure to,
bargain in good faith." That conclusion is, we believe, contrary to,
long established law in this area of labor relations, including the most
recent decisions of the First, Second, Fourth, and Fifth Circuit Courts
of Appeals.
It appears to be Member Leedom's position that the Employer was
not required to supply the data requested on the grounds (1) the
Union's request for information 'was not timely with respect to the
wage reopening clause; and (2) the Union failed to establish a "specific
need" for the data. A third phrase, "the absence of apparent necessity
at the time of the request," would seem to be included in the two
grounds already stated.
As set forth in the Intermediate Report, the information requested
by the Union related to the names, salaries, and merit increases of the
employees it represented. We do not understand Member Leedom's
decision as challenging the relevancy of this information to bargain-
able issues; nor does he dispute the settled precedents cited above,
holding that a union has a statutory right to such information. He
exonerates the Employer from failure to cooperate in collective bar-
gaining because, it appears, the Union did not ask' for. the information
at a time when it needed it for bargaining purposes. The record shows
that the 1953-55 contract contained a provision permitting either party
to reopen the, contract on the issue of. wages on or before February 21,
1954. ' It is apparently this reopening clause to which Member Leedom
refers when he finds that the Union's request for wage information on
September 9, 1953, some 5 months before the contract could be re-
opened, was "not timely." We have, we believe, reviewed every Board
and-court case involving the issue of an employer's duty under Section
8 (a) (5) of the Act to furnish information data to a union repre-
senting its employees. As indicated above, numerous and varied
defenses have been raised by employers to support their refusal to
supply such information. In only one of those cases, however, has
the defense been specifically raised that a union's request for informa-
tion was not timely because it was made some months before actual
contract negotiations were to begin. That case is Hastings d Sons
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Publishing Company.17 There the contracts in issue were to terminate
on April 6, 1952. The union originally requested information on
July 13, 1951, and the employer refused the request on August 17, 1951.
The Board affirmed the Trial Examiner's rejection of the respondent's
contention that requests for information would be timely only if made
during the 60-day period prior to the termination of the contract :
Nor do I find merit, to the Respondent 's contention that the re-
quests for information were inappropriate and proper only during
the 60 days prior to the termination of the contract, since such
information at reasonable times during the contract year would
enable the Union as the statutory bargaining representative to
determine whether the contract is being fairly and impartially
administered . The policing of an agreement is an essential func-
tion of the Union.18
The rarity of defenses of this nature becomes understandable upon
examination of the leading decisions dealing with this issue. On June
6, 1955, the First Circuit Court of Appeals handed down its decision in
Boston-Herald Traveler Corporation v. N. L. R. B.19 The court in
that case quoted as the rule "consonant with and best calculated to
effectuate the purpose of the Act" that set forth in the concurring
opinion of Chairman Farmer in the Whitin 20 case, in which he held:
... I would, therefore , hold that, short of evidence that union
requests for wage data are used as an harassing tactic and not in
a good faith effort to secure pertinent bargaining information,
the employer has a continuing obligation to submit such data
upon request to the bargaining agent of his employees. . . . I am
convinced , after careful consideration of the import of the prob-
lem on the collective bargaining process, that this broad rule is
necessary to avoid the endless bickering and jockeying which has
heretofore been characteristic of union demands and employer
reaction to *requests by unions for wage and related information.
The unusually large number of cases coming before the Board in-
volving this issue demonstrates the disturbing effect upon collec-
tive bargaining of the disagreements which arise as to whether
particular wage information sought by the bargaining agent is
sufficiently relevant to particular bargaining issues. I conceive
the proper rule to be that wage and related information pertain--
ing to employees in the bargaining unit should, upon request, be
made available to the bargaining • agent without regard to its
immediate relationship to the negotiation or administration of
the collective bargaining agreement. •' [Emphasis supplied.]
17 Supra
11Ibid, at 715.
10223F 2d 58 (C.A.1).
20 Supra, at 1541
INTERNATIONAL NEWS SERVICE DIVISION 1079
In N. L. R. B. v. New Britain Machine Company 21 the Second Circuit
Court of Appeals affirmed the Board's finding that the employer had
violated Section 8 (a) (5) of the Act by refusing to furnish data to a
union. 'In that case the Board affirmed the Trial Examiner's holding : 22
Unless the information is "plainly irrelevant" [Citing Yawinan
cC Erbe M 1g. Co., supra] it must be submitted. The information
has been held essential and relevant not only in the negotiation
of wage questions, but also to protect the Union's "proper interest
in the manner in which an employer administers an existing con-
tract," and for "policing" it. [Citing Leland Gifford Co., supra;
California Portland Cement, supra.]
In the Whitin 23 case the Fourth Circuit Court of Appeals cited with
approval the Board's decision. The quoted portion included the Board
majority's agreement with the concurring opinion of Chairman
Farmer :
... In this respect, we agree with the statement of our concurring
colleague, that in these cases it is sufficient that the information
sought by the union is related to the issues involved in collec-
tive bargaining, and that no specific need as to a particular issue
must be shown. [Emphasis supplied.]
Again, on April 6, 1955, the Fifth Circuit Court of Appeals held in
N. L. R. B. v. The Item Company 24 as follows:
We agree with the Fourth Circuit in the Whitin case , supra, that
wage data appropriate for disclosure to a statutory bargaining
representative in such instances "should not necessarily be limited
to that which would be pertinent to a particular existing con-
- troversy" ..., but includes all information, such as that here
sought, which appears reasonably necessary for "the policing of
the administration of any contract." [Citing N. L. R. B. v. Le-
land-Gifford Co., supra.]
The above cases are illustrative of the well-settled rule, appearing in
,numerous cases throughout the history of the Board, that a union may
request and an employer is obliged to furnish necessary information
data before, during, or after actual contract negotiations so long as the
information is relevant to bargainable issues or policing the contract.
In its letter of September 9 the Union stated that the information was
requested in order "to police the existing contract, bargain intel-
ligently, and evaluate properly our own and management's wage pro-
posals." We believe that the Union's need for the information at the
'210F.2d61 (C.A.2).
za New Bratatin Machike Company, 105 NLRB 646, 650.
`Supra.
24 Supra.
979288-56-vol. 113-69
1 080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time it was requested is apparent on both grounds although, as the
cases indicate , , it is sufficient that the information was required to
police the existing contract . The Respondent was asked to furnish
the information by October 15, 1953. Certainly , 4 months is not tbo;
long a period to study the facts , hold membership meetings, and
marshall arguments in support of ultimate bargaining positions.
We are convinced , for the reasons set forth above, that there was
neither a waiver by the Union of its right to the information requested,
as Chairman Farmer and Member Rodgers find , nor was the request
untimely, as Member Leedom finds . We therefore dissent.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by the American Newspaper Guild, CIO, herein called the
Union, the General Counsel by the Regional Director for the Second Region (New
York City), of the National Labor Relations Board , herein called the Board , issued
his complaint dated March 16, 1'954, against the International News Service Division-
and International News Photos,Division of the Hearst Corporation , herein called the
Respondent, alleging that the Respondent had engaged in and was engaging in un-
fair labor practice. within the meaning of Section 8 (a) (1) and (5) and Section 2
(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat . 136, herein
called the Act. Copies of the complaint and the charges together with notice of hear-
ing and an order consolidating the cases were duly served upon the parties.
With respect to unfair labor practices , the complaint alleges in substance that the
• Respondent beginning on or about October 21, 1953, refused to bargain collectively
with the Union. The Respondent's answer denies the commission of any unfair
labor practices.
Pursuant to notice , a hearing was held on May 24, 25, 26, and 27, 1954, at New
York City before the duly designated Trial Examiner. The General Counsel, the
Union , and the Respondent were represented by counsel . Full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce evidence bearing
upon the issues was afforded the parties . The General Counsel presented oral argu-
ment at the close of the testimony , and the Union and the Respondent each filed a
brief with the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation , with its principal office and place of busi-
ness in New York City , through its International News Service Division and Inter-
national News Photos Division , is engaged in the business of gathering , selling, trans-
mitting, and distributing news and news photos in all parts of the world by mail, tele-
phone, telegraph , and radio . Customers of the Respondent , consisting principally of
newspapers and radio stations , are located in many States of the United States, the
District of Columbia , and foreign countries including Argentina, England , France, and'
Italy. During the year 1953 , each of the 2 divisions received in excess of $300,000
for services rendered to such customers in furnishing news and news photos for pub-
lication and distribution . Among such customers are the New York Journal -Ameri-
can and the New York Daily Mirror, each of which received a gross income during
the same period exceeding $500,000. The Respondent concedes and the Trial Ex-
aminer finds that it is engaged in commerce within the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
The American Newspaper Guild, CIO, is a labor organization admitting to mem-
bership employees of the Respondent.
1 These findings are based in part upon a stipulation between the General Counsel and
the Respondent dated October 7, 1954.
INTERNATIONAL NEWS SERVICE DIVISION 1081
III. THE UNFAIR LABOR PRACTICES
The Refusal to Bargain
1. The appropriate unit and the majority
The parties agree and the Trial Examiner finds that all the employees of the Re-
spondent 's International News Service Division , excluding all bureau managers in
bureaus having in addition to the bureau manager at least three or more full-time
employees exclusive of telegraph operator , the editor-in-chief, the managing editor
in New York , associate managing editor, foreign director in New York , superintendent
of bureaus , traffic manager, sports editor, promotion manager, sales manager , Hearst
wire chiefs, day and night editors in New York and Chicago, regional director, em-
ployees under personal contracts , and resident employees outside the United States
and its Territories , constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
The parties agree and the Trial Examiner finds that all employees of the Respon-
dent 's International News Photos Division , excluding the general manager, the
assistant general manager, executive editor , the managing editor, the sales manager,
the assistant sales manager, tipsters , foreign sales manager, and resident employees
outside the United States and its Territories, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act.
The parties agree and the Trial Examiner finds that since the year 1942, the
Union has been the representative for the purposes of collective bargaining of a
majority of the employees in each of the units described above, and, by virtue of
Section 9 (a) of the Act, has been and now is the exclusive representative of all
the employees in each of the above-described units for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment, or other condi-
tions of employment.
2. The request and refusal to bargain
The complaint alleges that on or about September 9, 1953, the Union requested
the Respondent to bargain collectively by seeking to have the Respondent furnish,,
and that the Respondent refused to bargain on or about October 21, 1953, by de-
clining to furnish the Union , the names , titles, departments , and salaries of each
of the employees in the above-described appropriate units; the amount of each
merit increase , the name of the recipient of the merit increase , the date the increase
was granted during the preceding year, and the factors used in determining and
awarding the merit increases ; and the date and amounts of commissions and
bonuses.
The Union and the Respondent have had contractual relations for the past several
years. The current coptracts relating to each of the units are for the period from
April 21, 1953, to April 21, 1955, and provide for an opportunity to open the con-
tract for negotiations regarding certain wages and salary levels upon 60 days'
notice prior to April 21, 1954.
By letter dated September 9, 1953, among other matters, the Union requested
the above-described information stating that the information was sought to ad-
minister the contract and to evaluate properly its own and the Respondent's wage
proposals. The Respondent replied by letter dated October 21, declining to furnish
this information and declaring that these matters were not pertinent , pointing out
that no wage proposal had been submitted, that there were no grievances alleging
a violation of contract, and that if there were any grievances they would be subject
to arbitration.
In the contract for each of the units appears the following provision:
List of Employees
Within fifteen days after the signing of this contract, the employer agrees to
supply to the Guild a list of employees by bureaus who are governed'by the terms
of this contract , with address, experience anniversary , experience rating, classi-
fications and their designation as permanent or replacement employees. Addi-
tions to or substractions from this list will be supplied monthly to the Guild.
Within two weeks after the hiring of a new employee the employer shall furnish
the Guild with the foregoing data.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contracts contain no provision under which the parties expressly agree that
no other information would be requested or given. Each of the contracts provides
for individual bargaining for merit increases above the pay minima set forth in
the various classifications.
According to the Respondent's testimony, it appears that. in the- conduct of its
business, the Respondent does not grant bonuses and that as a result of a certain
grievance filed by the Union regarding commissions some arrangement was made
by the parties for furnishing the Union data as to commissions. There is no
question here that the Respondent has been furnishing the information provided
for in the contract.
%
The Respondent argues that it has no obligation under the Act to furnish the
information requested by the Union for several reasons. Contending that the Union
waived its right to the information involved the Respondent points out that the
Union sought an information provision covering these matters during the negotia-
tion of the current contracts as it had in past negotiations and that the Union's
proposal had been bargained away resulting as in past contracts in the more limited
information provision agreed upon which is quoted above. A waiver by the Union
as to the other information it has a right to under the Act will not, however, be
implied from this provision and it is found that no clear and unmistakable showing
of waiver was established?
The Respondent argues further that since the matter of merit increases was
expressly reserved in the contract for individual bargaining, it would, follow that
there could be no reason for the Union to have information on this subject. For
the reasons stated by the Board in General Controls, supra, the Trial Examiner
finds no merit in this contention.
Other contentions made by the Respondent are that although the information was
requested and refused by the Respondent, the Union appears to have adequately
represented the employees in negotiating and administering contracts; that the
Respondent considers its employees' salaries to be confidential; that the request for
information was merely the result of the Union's policy of seeking information; that
the Union has access to the employees through such means as its publications,
questionnaires, bulletin boards, and the Union's chairmen, and could obtain the
information from the employees themselves, and accordingly no necessity for the
Respondent to furnish the Union the information was shown. These contentions
are also found to be without merit .3
It is accordingly found that beginning October 21, 1953, by refusing to furnish
the Union the following data: (1) A list showing the names and the respective
salaries of each of the employees in the above-described units; and (2) a list show-
ing the names of the employees in these units who were granted a merit increase or
merit increases beginning 6 months prior to December 16, 1953, showing in addi-
tion as to each such employee the amount of each merit increase, the date thereof
and the factors used in determining and awarding the merit increase or increases,
the Respondent has violated Section 8 (a) (5) and 8 (a) (L) of the Act.
Since under the contracts the Respondent has been furnishing a list of the em-
ployees in the units to the Union showing the respective bureaus and classifications
of the employees, the Trial Examiner recommends the dismissal of the complaint
as to the identification of the employees by titles and departments as alleged. In
view of the testimony that the Respondent does not grant bonuses and that the
Respondent and the Union have worked out an arrangement under which the
Respondent furnishes the Union information regarding commissions, it will be
also recommended that the complaint be dismissed in these respects. The Trial
Examiner has also, under Section 10 (b) of the Act, not found any violation to
have occurred prior to the 6-month period preceding December 16, 1953, the date
of the filing of the charge, as distinguished from the 1-year period alleged in the
complaint. ' It is accordingly recommended that the complaint be dismissed in this
regard as well.
2 New Britain Machine Co., 105 NLRB 646. Pnfd. 210 F. 2d 61 (C. A. 2) ; Leland-Gifford
Co , 95 NLRB 1300, 1310, enfd. 200 F. 2d 260 (C. A. 1) ; General Controls Co., 88 NLRB
1341, 1343.
s Whitin Machine Works, 108 NLRB 1537: Yaw man cE Erhe Manufacturing Co., 89
NLRB 881, enfd. 187 F 2d 947 (C. A. 2) ; J H. Allison cE Co., 70 NLRB 377, enfd. 165 F.
2d 766 (C A. 6) ; The Hearst Corporation, 102 NLRB 637; The Electric Auto-Lite Co,. 89
NLRB 1192.
INTERNATIONAL NEWS SERVICE DIVISION 1083
IV. THE ` EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, . intimate , and substantial relation to trade , traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that. the Respondent refused to bargain in violation of the Act by
refusing to furnish the Union with the data described above, it will be recommended
that the Respondent be ordered to cease from engaging in this conduct and upon
request supply the Union with that information.
Because of the limited scope of the Respondent's refusal to bargain, and because
of the absence of any indication of danger of the commission of any other unfair
labor practices is to be anticipated from the Respondent's past conduct, it will not
be recommended that the Respondent cease and desist from the commission of any
other unfair labor practices. It will be, however, recommended that the Respondent
be ordered not to engage in any like or related conduct.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The American Newspaper Guild, CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. All the employees of the Respondent's International News Service Division,
excluding all bureau managers in bureaus having in addition to the bureau manager
at least three or more full-time employees exclusive of telegraph operator, the
editor-in-chief, the managing editor in New York, associate managing editor, foreign
director in New York, superintendent of bureaus, traffic manager, sports editor, pro-
motion manager, sales manager, Hearst wire chiefs, day and night editors in New
York and Chicago, regional director, employees under personal contracts, and resi-
dent employees outside the United States and its Territories, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
3. All employees of the Respondent's International News Photos Division, exclud-
ing the general manager , the assistant general manager , executive editor, the man-
aging editor, the sales manager , the assistant sales manager , tipsters , foreign sales
manager, and resident employees outside the United States and its Territories, con-
stitute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
4. The Union has at all times material been and now is the representative of all
the employees in the above-described appropriate units for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. By failing and refusing to furnish the Union with the following data: (1) a list
showing the names and the respective salaries of each of the employees in the above-
described units; and (2) a list showing the names of the employees in these units who
were granted a merit increase or merit increases beginning 6 months prior to De-
cember 16, 1953, showing in addition as to each such employee the amount of each
merit increase, the date thereof, and the factors used in determining and awarding
the merit increase or increases , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By the aforementioned conduct , the Respondent has interfered with , restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has not violated the Act as alleged in the complaint as to the
furnishing of data as to titles , departments , bonuses, commissions , and merit increases
awarded prior to the 6-month period preceding December 16, 1953.
[Recommendations omitted from publication.]