Inner City Broadcasting Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1984

270 N.L.R.B. 1230 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inner City Broadcasting Corporation and American
Federation of Television and Radio Artists, New
York Local, AFL-CIO. Case 2-CA-19506
18 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 7 February 1984 Administrative Law Judge
Steven Davis issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Inner City
Broadcasting Corporation, New York, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order, except that
the attached notice is substituted for that of the ad-
ministrative law judge.
In agreeing with the judge's conclusion that the Respondent did not
violate the Act by failing to furnish certain financial information request-
ed by the Union, we find it unnecessary to rely on his finding that the
question concerning late payment of pension and welfare contributions
was not an issue for negotiations. Nor do we rely on his finding that the
payments were up to date at the time of the hearing; there is no record
evidence on the point. Nor do we rely on the judge's finding that the
Union was seeking all financial records of the Respondent; from the
record, it appears that the Union sought only such information that
would support the Respondent's "cash flow" claim.
In agreeing with the judge's conclusion that the requested information
was not reasonably necessary to the Union, we note that when the Re-
spondent explained the payments were late because of cash-fow prob-
lems or considerations, it, in effect, admitted that the payments were late.
Thus, assuming lateness was grievable, the Union had no need of any fur-
ther information in order to decide whether to file a grievance. Cf.
NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967) (Employer must
provide information that "would be of use to the union" in deciding
whether to process a grievance). Nothing in the record indicates that the
Union made its request because of concerns about future contributions.
2 The judge inadvertently failed to conform his notice with his recom-
mended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT delay in complying with the re-
quests of American Federation of Television &
Radio Artists, New York Local, AFL-CIO, for in-
formation necessary for, and relevant to, the
Union's performance of its function as the exclusive
collective-bargaining representative of our employ-
ees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
INNER CITY BROADCASTING CORPO-
RATION
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant
to a charge filed on March 15, 1983,1 and a first amend-
ed charge filed on April 7, by American Federation of
Television and Radio Artists, New York Local, AFL-
CIO (Union), an amended complaint and notice of hear-
ing was issued by Region 2 of the National Labor Rela-
tions Board on August 9, against Inner City Broadcast-
ing Corporation (Respondent).
The complaint alleges essentially that in violation of
Section 8(a)(5) and (1) of the Act, Respondent:
(a) Failed to furnish certain requested financial docu-
ments, (b) delayed in furnishing certain requested infor-
mation concerning bargaining unit work performed by
employees not covered by the collective-bargaining
agreement, and (c) on two separate occasions, condi-
tioned reaching agreement on the terms of a contract on
the Union's withdrawal of its unfair labor practice
charge and its demands for arbitration.
Respondent's answer denied the material allegations of
the complaint and a hearing was held before me in New
York City on September 12.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation having its office
amd place of business in New York City, has been en-
gaged in the ownership and operation of radio stations
WLIB-AM and WBLS-FM. Respondent annually de-
All dates hereafter are in 1983 unless otherwise stated.
270 NLRB No. 184
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INNER CITY BROADCASTING CORP.
rives gross revenues in excess of $100,000 from its busi-
ness operations, and also annually purchases and receives
at its facility products, goods, and materials valued in
excess of $5,000 directly from firms located outside New
York State. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Requests for Information
1. Facts
a. The request of February 25
Respondent and the Union have had a collective-bar-
gaining relationship for many years, with the Union rep-
resenting, in separate units, with separate contracts, cer-
tain employees of radio stations WBLS and WLIB. 2
Both agreements expired on February 15.
In mid-February, the Union's pension and welfare
office received a statement of account from Respondent
with payment for the pension and welfare contributions
due from September, October, November, and Decem-
ber 1982. The payment for such contributions was based
on services performed by the employees in those months.
On February 25, at a bargaining session for a new con-
tract, Randolph Paul, the Union's assistant executive sec-
retary, asked Charles Warfield, Respondent's vice presi-
dent and general manager, certain questions concerning
the salaries of and hours worked by certain employees.
Paul also asked Warfield why the pension and welfare
payment was made so long after the services were per-
formed. Paul added that there were omissions and inac-
curate statements made in the pension and welfare state-
ment of account that Respondent prepared and submit-
ted.
Warfield replied that the payments were late because
of "cash flow problems" experienced by Respondent and
that he would investigate the alleged omissions and inac-
curacies and contact the Union regarding them.
Later in the meeting, Paul advised Warfield that
timely receipt of pension and welfare payments is very
important to the Union and the employees. Paul also told
Warfield that since he (Warfield) claimed that the late
payment was due to a cash-flow problem, Paul was re-
questing "all financial information, documents and data
that the Company had," to support its statement that
cash-flow problems caused its late payment.
Warfield refused the request for financial information,
stating that Respondent was not claiming an "inability to
pay."
The financial information requested was never re-
ceived by the Union and the Union did not make a writ-
ten request for any documents.3
s The units involved are all staff announcers, newsmen, news announc-
ers, and freelance performers.
3 It should be noted that Warfield testified that he told Paul that cash-
flow "considerations," not "problems" caused the payments to be made
when they were. I need not decide this question in view of my disposi-
There was much evidence concerning whether the
pension and welfare payments were late. According to
the Union, the AFTRA Code of Fair Practice for Net-
work Television Broadcasting states that such payment is
due 15 days after the performance of services by the em-
ployee. The code was incorporated by reference in the
two contracts with Respondent, although the code itself
was not offered at the hearing. No evidence was ad-
duced, therefore, as to what, in fact, the code says re-
garding payment. Warfield testified that it was his prac-
tice to make such payments on an irregular basis, when
called by the pension and welfare fund office. Indeed,
union witness Kim Roberts stated that in the past Re-
spondent made payments which were 2 to 3 months late.
b. The request of March 10
Prior to March 10, union official Roberts received in-
formation that Larry Hardesty and Claude Tait had not
been paid for on-air services pursuant to the collective-
bargaining agreement. Neither employee was a member
of the bargaining unit-Hardesty being an engineer and
Tait being an editor. However, both performed on-air
services as sports reporters which is unit work, and it
was the Union's position that they be paid for such work
pursuant to the contract.
At a March 10 grievance meeting, Roberts demanded
payment, pursuant to the contract, for Hardesty and Tait
for their on-air reporting services. Roberts apparently
told Warfield how much such work Hardesty had per-
formed. Respondent official Warfield replied that Har-
desty and Tait were not covered by the contract, and
that Hardesty had not done the volume of work she
(Roberts) claimed.
Roberts then requested to see the schedules or logs or
any information that the Respondent could provide to
support Warfield's statement that Hardesty had not done
the amount of work alleged. Warfield denied the request
for information.
On June 14 or 15, Roberts was told by Warfield that
the information requested on March 10 regarding Har-
desty was not available and never existed.
The General Counsel alleges as an unfair labor prac-
tice the delay in furnishing the information requested.
2. Analysis
The General Counsel alleges that Respondent's failure
to furnish it with the financial documents and its 3-
month delay in providing information concerning the
performance of bargaining unit work by Hardesty violate
Section 8(a)(5) and (1).
a. The request for the financial documents
The General Counsel argues that the Union is entitled
to such documents because: (a) Respondent brought a fi-
nancial issue into the negotiations by asserting that its
reason for the late pension and welfare payment was
tion of this issue. I also do not deem it to be a critical factor in the deci-
sion of this matter. Cash-flow "problems" or "considerations" essentially
means that Respondent had some concern regarding the availability of
cash to pay its current expenses
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
caused by cash-flow problems,4 and it therefore was re-
quired to support its statement with the financial records
pursuant to NLRB v. Truitt Mfg. Co.,5 and (b) they were
relevant and necessary to the Union's performance of its
duty as collective-bargaining representative in that the
documents would assist it in determining whether to file
a grievance.
I am unable to agree with the General Counsel on
either theory. The principle of Truitt is that good faith in
collective-bargaining negotiations requires that an em-
ployer resisting a demand for higher wages must substan-
tiate its claim of inability to pay such increases. The
reason for the requirement that proof be supplied was
that it is the essence of good faith that honest claims be
made during collective bargaining.
In contrast, the question concerning the late payment
for pension and welfare was raised solely because the
union negotiator became aware of the recent payment
for several past months and not because it was an issue
for negotiations. Warfield, in citing cash-flow problems
as the reason for the alleged overdue payment, did not
claim that Respondent was unable to or would not make
the payment. s He was simply explaining why it was nec-
essary to defer it. In fact, the payments were up to date
at the time of the hearing. This is thus not a situation, as
in Truitt, where an employer refuses to agree to a union
demand because of a claimed inability to pay it and he is
then obligated to justify his position. I do not believe
that Truitt was intended to require an employer to fur-
nish all of its financial documents and data in support of
a claim that it deferred, without union complaint, pen-
sion and welfare contributions because of cash flow
problems.
As to the General Counsel's second theory,
It is well settled that an employer has a duty to
provide upon request such information as may be
relevant and reasonably necessary to the union in
the performance of its duty as collective bargaining
representative. .... The test of the union's need for
such information is simply a show of "probability
that the desired information was relevant, and that
it would be of use to the union in carrying out its
duties and responsibilities."7
Although generally the Union would be entitled to in-
formation including payroll data to determine whether
Respondent was in compliance with the fund contribu-
tions requirements under the contract, s I do not believe
that the materials requested, "all financial information,
documents and data that the Company had," is relevant
or reasonably necessary to the Union in the performance
of its duties. The sole issue was whether the pension and
welfare contributions were timely received by the Union.
I cannot find any way that all financial records of Re-
4 I view this issue in a light most favorable to the Union that Respond-
ent claimed its tardy payments were due to cash flow problems.
A 351 U.S. 149 (1956).
6 Rochester Institute of Technology, 264 NLRB 1020 (1982), enf. denied
724 F.2d 9 (2d Cir. 1983); Milbin Printing. Inc., 218 NLRB 223 (1975),
rev. 358 F.2d 496 (2d Cir. 1976).
' Stecher's Supermarket, 264 NLRB 761, 762 (1982).
s Id.
spondent would be even remotely relevant or reasonably
necessary to the question of the pension and welfare con-
tributions which were in fact made by Respondent. In
this connection I have noted the fact that in the past Re-
spondent has made payments 2 to 3 months late appar-
ently without complaint by the Union, and that it was
uncontradicted that Respondent's practice was to make
such payments on an irregular basis.
I will accordingly recommend dismissal of that part of
the complaint which alleges a failure by Respondent to
furnish the Union with financial information relevant to
Respondent's claim that a cash flow problem caused it to
be delinquent in submitting pension and welfare fund
statements and contributions to the Union.
b. The request for information concerning the
performance of bargaining unit work
The Board has held that information sought concern-
ing the performance of unit work by nonunit employees
"is essential to the union in policing of the collective-bar-
gaining agreement." g The need for such information is
premised on the fact that the performance of such work
would result in the loss of unit work for other employ-
ees.
The Board has consistently held that although infor-
mation with respect to unit employees was presumptive-
ly relevant, the Union "must ordinarily demonstrate rel-
evance to a bargainable issue" in order to obtain infor-
mation concerning nonunit employees. '0
Here there is no question that the Union properly
sought information concerning nonunit employees Har-
desty and Tait. At a grievance meeting, union official
Roberts properly requested schedules and air logs to as-
certain whether the two employees were being properly
compensated, pursuant to the collective-bargaining con-
tract, for the bargaining unit work they were perform-
ing. In requesting such records, the Union was acting in
furtherance of its obligation to ensure that unit work was
compensated at the contractually prescribed rate, and to
consider whether a grievance should be filed concerning
Respondent's alleged failure to pay the wages provided
for in the contract for the unit work performed.
Respondent's unexplained 3-month delay in answering
the request was unreasonably long. It was incumbent on
Respondent to respond as soon as the request for the
schedules and air logs was made. "
I accordingly find and conclude that, by unreasonably
delaying for 3 months the furnishing of the information
requested by the Union, Respondent violated Section
8(a)(5) and (1) of the Act. However, inasmuch as the in-
formation-that the schedules and air logs were not
available and never existed-was transmitted to the
Union, I shall not order that any such material be fur-
nished to the Union.
9 Jaggars-Chiles.Stovall, Inc., 249 NLRB 697, 701 (1980).
'o Leland Stanford Jr. University, 262 NLRB 136, 152-153 (1982).
' Aeolian Corp., 247 NLRB 1231, 1244 (1980); Ellsworth Sheet Metal,
232 NLRB 109 (1977).
1232
INNER CITY BROADCASTING CORP.
B. Conditioning of Agreement on the Withdrawal of
the Charge and the Arbitration Demands
1. Facts
a. The bargaining session of March 22
Pierre Sutton, Respondent's president, began the meet-
ing by noting the family nature of the business and his
relationship with the employees. Union official Paul testi-
fied that Sutton stated that he would like to see the ne-
gotiations end quickly, adding that "any resolution of
these negotiations would have to contain AFTRA with-
drawing the unfair labor practice charges and the arbitra-
tions.'2 Paul later testified that Sutton's statement was
"for a successful resolution of this contract, the union
would have to withdraw the unfair labor practice charge
and the arbitrations."
Union official Roberts testified that Sutton stated that
Respondent "was insisting that as part of the final pack-
age, the unfair labor practices and the arbitrations filed
against the company by AFTRA be withdrawn."
Sutton did not testify. Respondent official Warfield
testified that Sutton stated that Respondent was about to
make a proposal to the Union, and he made "references"
to the outstanding charge and arbitrations "as part of our
agreement to try to resolve all of these issues."
Paul and Roberts did not reply to Sutton's remarks.
b. The bargaining session of June 4
Paul and Warfield met privately at this meeting and
discussed certain items not yet agreed on such as holi-
days, vacations, and salaries. During their meeting, War-
field told Paul that "contingent upon any successful reso-
lution of this contract would have to be the withdrawal
of the unfair labor practice charges and the arbitrations."
Paul replied that the charge and the arbitrations were
not a part of the negotiations, and a successful agreement
would have to be negotiated with the items on the bar-
gaining table. Paul added that if an agreenent was
reached with Roberts concerning the arbitrations, they
would be therefore settled. Paul also said that, if the par-
ties reached agreement on a contract, the unfair labor
practice charge and the arbitrations could be discussed
and settled.
2. Analysis
The General Counsel alleges that these two incidents
support a finding that Respondent conditioned reaching
a collective-bargaining agreement on the Union's with-
drawal of the unfair labor practice charge and the arbi-
tration demands.
Respondent's proposal that the Union withdraw its
charge and the arbitration demands is a nonmandatory
subject of bargaining.1 s It is well settled that insistence
to impasse on a nonmandatory subject of bargaining is a
violation of Section 8(a)(5) and (1) of the Act.14
" On March 3 and 21, 1983, the Union filed demands for arbitrations
pursuant to the contract.
II NLRB v Carpenters Local 964, 447 F.2d 643, 646 (2d Cir. 1971).
14 NLRB v. Wooster Division of Borg-Warner, 356 U.S. 342, 349 (1958).
Of course, no party may withhold agreement on the
condition that the other withdraw its charge. But such
matters may be raised and discussed if the suggested
withdrawal is not held out as a condition on which
agreement depends.
I am unable to find that the statements of Sutton and
Warfield amounted to a condition that no agreement
would be reached unless the charge and arbitration de-
mands were withdrawn.
Assuming the accuracy of the union witnesses' testi-
mony concerning Sutton's and Warfield's statements, I
find
[I]n contemplation of agreement [respondent]
sought a broader agreement which would resolve
all matters in dispute-a tack not unusual in con-
cluding labor management disputes. l
Moreover, even assuming that Respondent's comments
could be considered that, as a condition precedent to the
reaching of an agreement, the Union withdrew its charge
and arbitration demands, such a proposal is not per se il-
legal. However, Respondent could not insist to impasse
on such a proposal and could not legally insist on its ac-
ceptance "in the face of a clear and expressed refusal by
the Union to bargain about the [nonmandatory sub-
jects.]" l
In this case, the Union did not reply to Sutton's state-
ment made at the March 22 meeting. Paul's statement to
Warfield at the June 4 meeting (that the charge and arbi-
tration demands could be discussed and settled after the
conclusion of an agreement) could be viewed as a condi-
tion subsequent to the reaching of an agreement-in
other words as a counteroffer to Respondent's demand
that the withdrawal be a condition precedent to the
reaching of a contract. In any event, the evidence estab-
lishes that the Union only for the first time on June 4
clearly and unequivocally refused to bargain about the
nonmandatory bargaining subject, and Respondent did
not thereafter demand that the charge and arbitration de-
mands be withdrawn. I accordingly find that Respondent
did not insist to the point of impasse that they be with-
drawn. ' 7
I will accordingly recommend that this allegation be
dismissed.
CONCLUSIONS OF LAW
1. Respondent Inner City Broadcasting Corporation is
and at all times material herein, has been, an employer
engaged in commerce within the meaning of the Act.
2. American Federation of Television and Radio Art-
ists, New York Local, AFL-CIO is a labor organization
within the meaning of the Act.
3. By unduly delaying in providing the Union with in-
formation concerning schedules and air logs which relat-
ed to the performance of bargaining unit work by its em-
's Carlsen Porsche Audi, Inc., 266 NLRB 141, 149-150 (1983).
l' Union Carbide Corp., 165 NLRB 254, 255 (1967), enfd. 405 F.2d
1111 (D.C. Cir. 1968).
17 Laredo Packing Co., 254 NLRB 1, 18-19 (1981).
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, Respondent violated Stection 8(a)(5) and (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent has not violated the Act, as alleged in
the complaint, by (a) failing or refusing to furnish the
Union with financial information relevant to Respond-
ent's claim that a cash flow problem has caused it to be
delinquent in submitting pension and welfare fund state-
ments and contributions to the Union in a timely and ac-
curate fashion or by (b) conditioning the reaching of any
collective bargaining agreement with the Union on the
Union's withdrawal of the unfair labor practice charge
and the arbitration demands.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Inasmuch as the information concerning the schedules
and air logs was furnished to the Union, although as I
found, after an unreasonable delay, I shall not order that
any such material be furnished to the Union.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'l
11 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, Inner City Broadcasting Corpora-
tion, New York, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Delaying in complying with the requests of Ameri-
can Federation of Television and Radio Artists, New
York Local, AFL-CIO for information necessary for,
and relevant to, the Union's performance of its function
as the exclusive collective-bargaining representative of
Respondent's employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its place of business in New York, New
York, copies of the attached notice marked "Appen-
dix."'9 Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ordered that the complaint be dismissed
insofar as it alleges violations not specifically found
herein.
19 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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