Henry F. Budde Publications, Inc.

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 243 (N.L.R.B. 1979)

HENRY . BtDI)I PtBII A(' I IONS. INC.'
Henry F. Budde Publications. Inc. and Office and Pro-
fessional Employees International nion, AFL-
CIO, ocal 3. Case 20 CA 14011
Max 14. 1979
DECISION AND ORDER
BY MI.MBntRS JENKINS, MURPIIY, AN1) TR I SI)AI.I
On February 14, 1979. Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter. Respondent filed excep-
tions and a supporting brief, and General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefk
and has decided to affirm the rulings, findings. and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent. Henry F. Budde
Publications, Inc.. San Francisco. California. its offi-
cers, agents. successors, and assigns. shall take the ac-
tion set forth in the said recommended Order.
DECISION
SIAIEMIMI 1() IlHE (CASI
Rl(HARI) D. TAPI.Ir. Administrative l.aw Jduge: This
case was heard at San Francisco. California. on November
21, 1978. The charge was filed on August 9, 1978. by Office
and Professional Employees International Union. AFL
CIO Local 3. herein called the Union. The complaint is-
sued on September 13, 1978. alleging that tlenry F. Budde
Publications. Inc.. herein called Respondent or the Com-
pany, violated Section 8(al(5) and (I) of the National I.abor
Relations Act, as amended.
Issue
The primary issue is whether Respondent violated Sec-
tion 8(a)(5) and (1) I of the Act bN refusing the Uinion's re-
quest for wage rate information relating to two summer
interns under circumstances where the Ulnion needed that
illnforllmation inl processing a grie.alnce under an outstanding
collectisrc-bargaining agreement.
All parties were given 'full opportunitx to participate. to
introduce relevant evidence, to exalilne anld cross-examine
witnesses. to argue oralls, and to ile hriefs. Briefs, : hich
have been carefulls considered. were filed nll behalf of the
(ieneral ('ounsel and Respondent.
UIpon the entire record ofl the case and fronl nlm: ohbserxa-
tion of the witnesses and their delmleanor. I mlake the flllo -
ilg:
:'INI)INiS ( I'( I
1. Il I t SNI SS ()lI RI SPiNt)I NI
Respondent, a (Califrnia corporation with its place of
business in San Francisco. Caliirnia. is engaged in the
publication of a newspaper. During the calendar year pre-
ceding issuance of complaint. Respondent received gross
resenules in excess of $200.000: and during the same period
it advertised nationalll sold products and subscribed to in-
terstate news sers ices. T'he complaint alleges. the answer
admits, and I find that Respondent is an emplo\er engaged
in commerce within the meaning of Section 2(6) and 7) of
the Act.
I. 111L IABOR ()R(OANI/AII)N iN\()iI 1t)
The union is a labor organization withilln the meaning of
Section 2(5) of( the Act.
111. Ill Al I il(;il 1) NI AIR I ABOR PRA( I S
A. BiaAtcrilnd
Respondent, which is a , holl, owned subsidiar of' lart
Ilanks C(omlmunications, publishes a newspaper known as
the San F:rancisco Progress. or man 3! ears Respondent
has had a contractual bargaining relationship with the
nion.' he current contract is eflective from September I.
1977. through August 30. 1980. Ihe recognition clause of
that contract reads as tfllows:
.Article I
(hi The EmploNer herebh recognizes the Union as
the exclusive bargaining agent for editorial personnel
emplosed at the Employer's newspaper publishing
plant in San F:rancisco. 'California. Editorial personnel
includes those salaried persons who gather, report, re-
search and analze local news: ho write eatures.
captions and headlines: as well as those who edit and
make-up pages. his provision excludes all other em-
I he conmplainl lleges. he answer admills. and I tind that the I mln is
the elusie reprcsenlittle iof Resplindent', ermphee In the lolirh.ing .ap-
propriate hargalnlng unit
All editori.al emiplo c'. dspla, ds.ertising emphloxce,. :awied depart-
ment emplohrees. ;Idx rtlsring les dep.arltment cmplh'.ee, anId general
office cemplhoee, ciplo, ed h! the emplher at Iti S.tia I :rancco lac ilt.
excluding glards aindl supcrixls r s idelnetl 1ii the \cl
242 NLRB No. 44
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, guards and supervising editors as defined in
the Act. Said recognition refers to National Lahor Re-
lations Board Case No. 20-RC- 1 1633. It is agreed that
no additional supervising personnel will be employed
to replace the existing situations.
In the event of a layoff of the following editorial
personnel or their replacements, the Employer agrees
not to use students, free lancers or stringers to perform
their work: Daniel Borsuk, Richard Brill, Carol Kroot.
and Eileen Maloney.
The contract also contains a union-security clause and a
provision requiring Respondent to notify the Union when
new employees covered by the agreement are hired. The
contract states that temporary employees shall enjoy all the
privileges of the agreement on a pro raul basis, that they
shall be required to pay a union permit fee up to 90 days.
and that after 90 days of continuous employment they shall
be considered permanent employees, at which time they are
required to join the Union. There is no provision in the
contract relating directly to interns.
For at least the last 4 years, Respondent has participated
in an internship program. Under that program students
from universities work in a newspaper's editorial depart-
ment. Respondent usually has three or four interns a year.
and each intern normally works for a period of 6 to 8
weeks. It is an opportunity for students pursuing an educa-
tion in journalism to get some practical experience. In some
cases the student receives college credit for the experience.
There is a formal program in which the university takes
part in the internship program and a voluntary internship
where the college has no such program. Respondent does
not offer employment to students upon completion of their
internship programs. Before the summer of 1978. interns
who worked for Respondent did a good deal of filing and
office work before being assigned to a regular reporter on
specific stories. They had little independence and were
closely guided by the reporters. Those interns wrote only a
limited number of stories that were used by the paper. In
May 1978, Marcus Elliott became probationary managing
editor of the newspaper, and in August 1978 the position
became permanent. In the summer of 1978 he began to
make more use of the interns. He sent them out by them-
selves and relied on their judgment and expertise in the way
he would have with an experienced reporter. He did not
assign them to breaking stories because they were not used
to meeting deadlines. Although the interns' stories were of-
ten rewritten, and the interns did not meet all the standards
of regular reporters, the interns were involved with report-
ing in the same manner as were other reporters. The interns
who worked in 1978 turned out much more work than the
previous interns.
Scott Knies and Kim Clark worked at the newspapers as
interns from June through the end of August 1978. Clark
was a voluntary intern, as the university she attended did
not have an internship program. Knies had a substantial
background in journalism, and his exposure was nearly that
of a reporter with I year's experience. He learned quickly,
and one of his last articles could be used with only a minor
amount of editing. During his internship he wrote nine sto-
ries which were edited and then published under his own
byline. Four of those stories had front page news value.
Clark's work took more rewriting. but she wrote four stories
which. alter being edited, were published under her byline.
In the past interns had written only one to three byline
stories during an internship. Knies and Clark did little if
any clerical work, and they had more independence than
past interns. They used company telephones to get informa-
tion for stories and used the company typewriters to write
their stories. Past interns did not have the same privileges.
They did layoutwork which involved placing stories and
photographs in dummy sheets, while past interns had not
done that work.
B. Thle Griealnce and the Request /or Iformnation
On about July II 1978. the Union's assistant shop stew-
ard, Daniel Borsuk. asked Respondent's managing editor.
Marcus Elliott. what status Knies and Clark had within the
editorial department and whether there was compensation.
Elliott answered by saying that they were interns. Borsuk
then went to Union Representative Reeva Olson and told
her that Knies and Clark had been employed and were
doing editorial work. He said that he thought they were
probably interns, but that he was concerned because they
were doing the same kind of work that the editorial employ-
ees did. He also told her that the Union had not been noti-
fied of their hire as required by the contract, and that they
were not union members.
On July 18. 1978. Borsuk filed a grievance. 2 The griev-
ance alleged that Respondent violated various articles of
the contract and stated:
The publisher has failed to notify the Union that Scott
Knies and Kim Clark were employed to perform work
covered b the collective bargaining agreement. They
are performing editorial functions within the scope of
the bargaining unit without receiving the appropriate
pay.
The action requested in the grievance was:
That Scott Knies and Kim C('lark be paid appropriate
rates called for b the agreement, retroactive to their
date of hire, and that they be required to become union
members and/or pay union fees.
The contract contains a grievance procedure which culmi-
nates in binding arbitration. The grievance clause covers
"questions or disputes arising from the interpretation or ap-
plication of the provisions of this Agreement which are not
adjusted satisfactorily between the parties signatory hereto
On July 28. 1978. representatives of the Union and Re-
spondent met to discuss the grievance. Olson. Chief Stew-
ard Samuels. and Assistant Steward Borsuk represented the
Union. Kevin Lindgren of the Western Newspaper Indus-
trial Bureau and Respondent's business manager Gary Ber-
linger represented Respondent. Olson told the company
representatives that Knies and Clark had been employed by
Respondent to do bargaining-unit work within the editorial
department. that the Company had not notified the Union
2 At a subsequent meeting Respondent complained that the grievance
should have been signed by the chief steward, Jerrf Samuels, rather than by
Borsuk. A substitute grievance uv.as then filed which was signed by Samuels.
244
HENRY F. BUDDE PUBLICATIONS, INC.
of their employment as required by the agreement, and that
they were not being paid according to the appropriate scale
called for in the agreement. She requested that they be paid
according to the appropriate contract scale and that they be
required to join the Union pursuant to the terms of the
union-security clause. There was a general discussion about
the merits of the grievance, with Berlinger taking the posi-
tion that there had been interns in the past and that the
grievance was invalid. Olson and Borsuk spoke about how
past interns had worked under the guidance of bargaining-
unit members while the two interns in question worked in-
dependently. Olson also said that the work Knies and Clark
were doing could deprive reporters of overtime that they
would otherwise be paid. Olson said that the Company
could have up to 1,000 interns if the work was not covered.
On two occasions during the discussion Olson asked how
much Clark and Knies were being paid. On both occasions
Lindgren refused to tell her. Olson said that Knies and
Clark were doing bargaining-unit work, and that the Union
needed the information to process the grievance. At the end
of the meeting Olson said that it appeared that they were
deadlocked, and that they would have to proceed to arbi-
tration.' Respondent has continued in its refusal to supply
the information and has taken the position that it has no
duty to do so.
In late October 1978, Olson spoke to Lindgren about se-
lecting an arbitrator. Olson asked whether Lindgren would
follow his past practice of requiring one arbitration on the
question of arbitrability and a separate arbitration on the
merits. Lindgren said that he would let her know. Later
Lindgren called back and told her that the Company was
going to take the same position, and that there would have
to be two different hearings.
As of the date of the hearing, the arbitration was sched-
uled for December 14, 1978. The parties have not informed
me as to the outcome of the arbitration or whether it took
place.
Before the incident in question the Union had never com-
plained to the Company about the use of interns.
Olson testified that the Union needed the pay informa-
tion requested at the July 28 meeting in order to process the
grievance and to decide how to pursue it. She averred that
if the information disclosed that Knies and Clark were
being paid according to contract scale, the Union would
drop its demand with regard to pay but would continue its
grievance with regard to enforcement of the union-security
clause.
The General Counsel took the position on the record that
the Union needed the information to process the grievance
whether Knies and Clark were in the bargaining unit.
C. Analysis and Conclusions
An employer has an obligation to provide information
that is needed by a union for the proper performance of its
I The above findings are based on a composite of the testimonies of Olson,
Borsuk, and Berlinger. All were credible witnesses, and most of their testi-
mony was in substantial accord. Berlinger testified that the union represent-
ative did not comment on the need for the information except for Olson's
remark that the Company could have up to 1,000 interns. I believe that
Olson had a more detailed recollection of the discussion. Where there is a
discrepancy between the testimonies of Olson and Berlinger, I credit Olson.
duties as the bargaining representative of the employers
employees. A grievance procedure is part of the continuous
collective-bargaining process, and an employer must fur-
nish a union with information necessary for the union to
police its contract and intelligently process grievances. With
regard to the relevancy of the information, a discovery-type
standard is used, and the information must be furnished
upon the probability that the desired information is rel-
evant for the union to carry out its responsibilities. Poten-
tial relevancy is sufficient. N.L.R.B. v. Acme Industrial Co.,
385 U.S. 432 (1967);' Amphletr Printing Company, 237
NLRB 955(1978); Temple-Eastrex, Incorporated, et al., 228
NLRB 203 (1977), enforcement denied 579 F.2d 933 (5th
Cir. 1978). Where the information sought covers such mat-
ters as the wages of employees within the bargaining unit,
the information is presumptively relevant. Curtiss-Wright
Corporation, Wright Aeronautical Division v. N.L.R.B., 347
F.2d 61, 69 (3d Cir. 1965). Ohio Power Company, 216
NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976).
Where the information relates to nonunit employees, the
presumption of relevancy is no longer warranted, and the
relevancy must be established. Curtiss-Wright Corporation
v. N.L.R.B., supra. See also Times-Herald, Inc., 237 NLRB
922(1978). However, the fact that information relates in
part to nonunit employees is no defense to an allegation
that the information was not supplied where the informa-
tion is relevant and necessary for the policing of a contract
and the intelligent processing of an outstanding grievance.
Temple-Eastex, Inc., supra.'
In the instant case, counsel for the General Counsel sug-
gests in his brief that even if Knies and Clark were nonunit
employees, the information sought would be relevant for
the Union to evaluate whether an erosion of bargaining-
unit work was taking place. However, the complaint is very
narrowly drafted. It alleges that the information requested
was relevant and necessary in order to assist the Union in
processing grievances. The only grievance in question is the
one filed on July 18, 1978, relating to Knies and Clark. As
found below, Respondent had an obligation to furnish the
requested information because it was relevant and neces-
sary in order to allow the Union to police the contract and
intelligently process the outstanding grievance. It is there-
4 In discussing the need for information to intelligently process a griev-
ance, the United States Supreme Court in the Acme case at pages 438-439
held:
Far from intruding upon the preserve of the arbitrator, the Board's
action was in aid of the arbitral process. Arbitration can function prop-
erly only if the grievance procedures leading to it can sift out unmerito-
rious claims. For if all claims originally initiated as grievances had to be
processed through to arbitration, the system would be woefully overbur-
dened. Yet, that is precisely what the respondent's restrictive view
would require. It would force the union to take a grievance all the way
through to arbitration without providing the opportunity to evaluate the
merits of the claim.' The expense of arbitration might be placed upon
the union only for it to learn that the machines had been relegated to
the junk heap. Nothing in federal labor law requires such a result.
I See Fafnir Bearing Co. v. N. LR.B., 362 F.2d 716, 721: "By prevent-
ing the Union from conducting these studies [for an intelligent appraisal
of its right to grievel, the Company was, in essence, requiring it to play
a game of blind man's bluff."
In denying enforcement of the Board's Order, the court of appeals held
that the grievance issue had not been fully litigated at the trial and that, in
any event, there was no showing of relevance in the particular circumstances
of that case.
245
D[)I('ISI()NS ()1: NA IO()NAI I ABR RA IIONS BOARI)
fore unntcessarN to consider mnltters that are not specili-
call> alleged in the complaint. (. N. I.R. _. i'tple-
I:a.cx, Inc.. 579 F.2d 933, 936 (5th ('ir. 1978).
'I he grievance in question was keNed to the assertion that
Knies and ('lark were covered by the contract that the
I lnion had a duty to administer, and that they were subject
to the wage scales, the union-security clause, and other
terms ol that contract. It was not a rivolous grievance. ''he
contract does cover temporary emploNees. Respondent can-
not exclude employees from contract coverage by merelN
calling them interns rather than temporary employees. The
nomenclatulre is simply one factor to he considered ihe
Union may or ma not he able to convince an arbitrator
that Knies and ('lark performed functions that are more
equatlable to temporary reporters than to student interns.
That is a question for the arbitrator to decide under the
grievance procedure. The question of their coverage is not
before me. The only issue filr me to decide is whether the
Union is entitled to certain information with regard to the
processing of that grievance. The Union is entitled to any
information necessary for it to evaluate the merits of the
grievance and to pursue the grievance. The alilotlit paid to
Knies and Clark is relevant i'r that purpose. 'The contract
covers salaried persons who perform certain work. I the
intfrmation discloses that Knies and ('lark were receiving
no compensation, an argument can be made to the arhitra-
tor that they are not covered by the contract. Such infornia-
tion might lead the Union to decide not to pursue the griev-
ance. I the information discloses that Knies and ('lark
were being paid according to the contract rate, the Union
would be in a position to drop at least that part of' its griev-
ance claim. Though not the controlling factor the amount
of pay may be one among many items to consider in evailu-
ating the job responsibilities of Knies and ('lark.
In the Board's proposed l)ecision and Order in Sa/is-1,
Store. Ilncorporatedl, D 4574, Houstonl Texas ('ase 23
CA 6451, the Board stated:
a Union may properly seek information concerning
such excluded categories as supervisors if it is shown to
be necessary to determine whether certain individuals
belong in the unit and have not been improperly desig-
nated and excluded as supervisors.
In the instant case, the Union is seeking inl'ormation which
has at least potential value in enabling it to evaluate and
process its grievance. The grievance ultimately goes to the
question of whether certain individuals belong under the
scope of the contract and whether they have been improp-
erly excluded from contract coverage because Respondent
designated them as interns. I find that the Union is entitled
to the information sought and that Respondent violated
Section 8(a)(5) and (I) of the Act b refusing to furnish it.
^ In that case the Board issued a proposed )ecision and Order because of
the death of the first Administrative Law Judge who heard the case prior t
issuance of the Administrative Law Judge's D)ecision Exceptions can be iled
to the proposed decision, and I hase not considered that proposed decision
as binding precedent However. the logic of some of the Board's dtica i ttl
case is wortlh considering. See also G(dihe Store%. Inc.. t aL 227 N RB
1251(1977); (Curtis-Wrigh (orporliruion . V i.R.., 347 F- 2d 61 3d (r.
1965)
\. I i i-HI I 1- l t NI AIR ABI()R PRA( IS UIPON
( ()IMIIR(I
I he activities of Respondent set forth in section III,
above. occurring in connection with the operations of Re-
spondent described in section I. above, have a close, inti-
mate. and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the ree
flow of commerce.
V. Il RMII)Y
lalving found that Respondent has engaged in certain
ufltir labor practices, I shall recommend that it he ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of' the Act.
CO()NCIIUSIO(NS ()I LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The ftllowing unit is appropriate for the purpose of
collective bahrgaining:
All editorial emplosees, display advertising employees
classified department employees. advertising sales de-
partment employees and general office employees em-
ploNed bh the EImploer at its San Francisco acility,
excluding guards and supervisors as defined in the Act.
4. 'lhe Union is the exclusie bargaining representative
of Respotndent's employees in the above-described unit.
5. Respondent refused to bargain in violation of Section
8(a)(5) anid l I) of the Act bh refusing. in the context of the
grie tance procectire, to honor the lnion's request for wage
inforilation rclating to Scott Knies and Kim Clark.
6. Ihle aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of' Iact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORIDER ?
T'he Respondent, HenrN F. Budde Publications, Inc., San
Francisco. ('alifornia, its officers, agents, successors, and as-
signs, shall:
1. ('ecase and desist from:
(a) Reftising t bargain collectively with Office and Pro-
fessional [I:mployees Internattional Union, AFL ('10. Local
3, b refusing upon request to supplN relevant information
needed by said Union to represent the employees in the
folloving bargaining unit:
7 In the eent no exceptions are filed as provided b Sec. 1)2.46 of the
Rules and Regulations of the National I.abor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided hy Sec.
102.48 of the Rules and Regulallion,. be adopted by the Board and become
its findings. conclusions. and Order, and all objections thereto shall be
deemed swaived for all purposes.
240
I1.NRY 1 FI1 D)I) Pt II('A IO()NS. INC(
AIll editorial I ploe ces. displa? adLs erlNisng eItIploeCs.
classitied departmlent emplo\ees. adsertising sales de-
partnCent empllloees and general otlice emplol \ces eil-
plosed hb the Flmploser at its San IFranicisco taiilit,
excluding guiards and supervisors s defined in tile Ac.
(h) In a like or related manner intereriig ith. re-
straining. or coercing emsploeces in the exereise ot the rights
guaranteed them in Section 7 of the Act.
2. ake the liollo, ing ,afirmnatie action to eflctulate the
policies of' the Act:
(a) Furnish. upon request. to said Ilnion the inftrrnalion
necessary to determine the amount it paid to Scott Knies
and Kim Clark hile the, worked at the San F:rancisco
Progress during the summer of 1978.
(h) Post at its San Francisco. ficilit\ copies of the at-
tached notice marked "Appendix."' Copies of( the notice. on
ftrms provided by the Regional Director for Region 20,
after being duly signed bh Respondent's authorized repre-
sentative. shall he posted by it imllediiatel I uponl receipt
thereof, and he maintained for 60 consecuLtive da;\ t1here-
after. in conspicuous places, including all places where no-
tices to emplosees are cuIstomarily posted. Reasonable steps
shall be taken hb the (ompan\ to insure that said notices
are not altered. defaced. or covered by ans other material.
(c) Notify the Regional I)irector for Region 20. in writ-
In the evenl thai this Order is enforced by a Judgment of a United States
court of appeals. the words in the notice reading "Posled bh Order of the
National Labor Relations Board" shall read "Po;ted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
ing . within 20 da;s froim the daite of this ()rtder. hat steps
it has takell to comply herewith.
APPkN I)1 X
No(II( 'I o FiP)I )IIS
P()SIFI I ()RDI R (1I HIt}
NAsII(NAl i.\lRt)R AlIll)S BH)ARI)
An Agenc of tile Ilnlte St;ltes (ioerniment
Ii N Il I)ol reftuse to hbargin collcctsel' skiil Of'-
lice ;Ild Prolessiona l Imployees Interlnatlonal t:niOn.
l\1, ('1(). local 3. bh retusinL upon request to suppl
rele\anti inorlationI needed b said unillo to represelit
the emploees in the tillowing bargainiig unit:
;\Il editoril Cnempoees. ispla\ adiNertlisiln eplo -
ees, classitied department employ sees. ad, ertising
sales department employees and general office em-
plo!ees elmploed bh the Fmlpl)!er aIt its Siln 1-rtn-
cisco facilitl, excluding guards and supersisors as
defined in the Act.
Wl: II I NOI in an\ like or related manner interlere
vith, restrain. or coerce emploxees in the exercise of
the rights guaranteed theri in Section 7 ol' the Act.
WI ,ilt furnish, upon request. to said union the
iniorllmationll necessar\ to determine the amount we
paid to Scott Kllnes alid Kim ('lark vhile the worked
at the San Francisco Progress duiring the summer of
1978
I1 NR I .: Bt )1) P)l B1I( AtIIONS', I( .
247