Kiro, Inc.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 745 (N.L.R.B. 1993)

745
311 NLRB No. 74
KIRO, INC.
1 On April 15, 1992, the Board denied, without comment, a motion
by the Respondent to have the complaint in this case dismissed in
its entirety. The Board stated that a fully articulated decision would
follow. The Board’s reasons for denying the Respondent’s motion
are fully set forth in this decision.
2 The Union sought the following information from the Respond-
ent: (1) copies of all documentation that exist between KIRO-TV
and/or their respective parent corporations pertaining to this joint
venture, including, but not limited to, any preliminary or tentative
memoranda, letters of intent, and/or letters of understanding; and (2)
a copy of the contract between the two stations, including the terms
and conditions under which this venture will operate.
3 We note that the Respondent’s denial of the allegation that it un-
lawfully implemented the news program without bargaining with the
Union, and its failure to provide a reason in its motion for seeking
the dismissal of that allegation, also raise factual issues requiring a
hearing. We further note that the Respondent’s refusal to furnish the
information to the Union was at the outset based on a claim that the
information was ‘‘confidential and proprietary’’ and not on a lack
of relevancy. It is unclear from the Respondent’s answer and motion
to dismiss whether it continues to assert ‘‘confidentiality’’ as a de-
fense to the refusal-to-provide information allegation. If so, it bears
the burden of proving that claim, AGA Gas, 307 NLRB 1327, 1329
(1992); Remington Arms Co., 298 NLRB 266, 273 (1990); Howard
University, 290 NLRB 1006, 1007 (1988), and a hearing is needed
for the purpose of allowing it to do so.
KIRO, Inc. and American Federation of Television
and Radio Artists, Seattle Local, AFL–CIO.
Case 19–CA–21781
May 28, 1993
DECISION ON MOTION1
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On December 30, 1991, the Regional Director for
Region 19 issued a complaint and notice of hearing in
this case alleging, inter alia, that the Respondent,
KIRO, Inc., violated Section 8(a)(5) and (1) of the Act
by implementing a news program without prior notice
to the Union or affording it an opportunity to bargain
over the implementation and its effect on bargaining
unit employees, and by refusing to provide the Union
with certain requested information relating to the
wages, hours, and other terms and conditions of em-
ployment of bargaining unit employees.2 With respect
to the latter allegation, the complaint alleged that the
information requested by the Union involved manda-
tory subjects of bargaining and was necessary for and
relevant to the Union’s performance of its role as the
unit employees’ exclusive bargaining representative.
The Respondent thereafter filed an answer admitting
some, and denying other, allegations in the complaint.
On January 15, 1992, the Respondent filed with the
Board a Motion for Summary Judgment, with an ac-
companying memorandum, seeking dismissal of the
complaint. As grounds therefor, the Respondent argued
that the information sought by the Union involved fi-
nancial data and that, under current case law, no pre-
sumption of relevance attaches to such information.
Further, the Respondent claimed that the Union had
not demonstrated that the information sought was rel-
evant to the bargaining process, and had failed to ar-
ticulate a reason, cognizable under case law, for need-
ing the information.
The General Counsel opposed the Respondent’s mo-
tion. In his brief to the Board, he argued that the infor-
mation requested by the Union was relevant because it
related to the unit employees’ terms and conditions of
employment and involved mandatory subjects of bar-
gaining. The General Counsel asserted that the Re-
spondent’s denial that the information was relevant
raised triable issues of fact requiring a hearing. The
General Counsel also disputed the Respondent’s asser-
tion that the information sought involved only ‘‘finan-
cial data.’’ He further noted that, although the Re-
spondent was seeking dismissal of the entire com-
plaint, it had proffered no explanation for seeking the
dismissal of the complaint allegation that it unlawfully
implemented the new ‘‘news program’’ without first
notifying, or bargaining with, the Union over that deci-
sion and its effect on unit employees. For these rea-
sons, the General Counsel argued that the Board
should deny the Respondent’s motion.
As noted, on April 15, 1992, the Board denied the
Respondent’s Motion for Summary Judgment.
In our view, the complaint and the denials in the
Respondent’s answer, plus the assertions made by the
Respondent and the General Counsel in their submis-
sions to the Board regarding the motion to dismiss, re-
veal the existence of factual issues requiring an evi-
dentiary hearing before an administrative law judge.
More particularly, the complaint alleges that the infor-
mation sought pertains to unit employees’ terms and
conditions of employment and is relevant to the
Union’s performance of its role as the employees’ bar-
gaining representative. The Respondent, in its answer
and motion to dismiss, has denied the relevancy of the
information. In support of its motion, the Respondent
has set forth its version of the facts. In response, the
General Counsel indicates that he has a different
version of the facts. As the General Counsel states,
there are ‘‘factual issues that must be resolved through
a hearing.’’
We also note that the General Counsel, in his oppo-
sition brief, disputes the Respondent’s assertion that
the information sought involves only ‘‘financial data.’’
Based on the above, we believe that a hearing is
needed to resolve these and other disputed issues of
fact.3
We disagree with our dissenting colleague’s sugges-
tion that a question regarding the relevancy of re-
quested information raises a purely legal issue that
must be resolved in the first instance by the Board,
rather than by a trier of fact. Rather, the Board and the
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Indeed, when enacting Sec. 102.24, the Board, noting the con-
trary requirements of Rule 56(e) of the Fed.R.Civ.P., reasoned that
it would be impracticable for the Board to follow Rule 56(e) because
unlike the Federal courts, the Board has never allowed prehearing
discovery as such. See 54 Fed.Reg. 38516 (1989).
5 Contrary to our dissenting colleague, we do not believe that our
ruling is unfair to the Respondent. Assuming, arguendo, that the in-
formation sought by the Union is not presumptively relevant, the
General Counsel must demonstrate relevance as part of his prima
facie case. If the Respondent claims surprise after the General Coun-
sel’s showing, it can seek additional time to prepare its defense.
courts have long held that resolution of relevancy
issues turns on the factual circumstances of each par-
ticular case. In Leland Stanford Junior University, 262
NLRB 136 (1982), for example, cited by our dis-
senting colleague, the Board agreed, inter alia, with an
administrative law judge that the determination of rel-
evance ‘‘depends on the factual circumstances of each
particular case.’’ Id. at 139. See also Press Democrat
Publishing Co. v. NLRB, 629 F.2d 1320, 1324 (9th
Cir. 1980) (‘‘relevance depends . . . on the particular
facts of each case’’); Procter & Gamble Mfg. Co. v.
NLRB, 603 F.2d 1310, 1313 (8th Cir. 1979) (‘‘what is
or is not relevant depends on the particular facts in
each case’’); General Motors Corp. v. NLRB, 700 F.2d
1083, 1088 (6th Cir. 1983) (‘‘the ultimate factual de-
termination of relevance depends upon the cir-
cumstances of each case’’).
We agree with our dissenting colleague that where
the relevant facts are not in dispute, the Board may
rule on the relevancy question without the need for a
hearing. In E. I. du Pont & Co., 268 NLRB 1031
(1984), for example, the relevancy determination ren-
dered by the Board was made pursuant to a stipulation
of agreed-upon facts submitted by the parties to the
proceeding. But where, as here, there is no stipulation
of facts pertinent to the information issue, an evi-
dentiary hearing is required to resolve the factual dis-
putes. Here, the General Counsel contends, and the Re-
spondent disputes, that the information sought by the
Union is necessary and relevant. Thus, regardless of
whether the information requested involved financial
data only, a factual issue clearly exists regarding the
relevancy of such information which must first be re-
solved before a legal determination can be made as to
the legality of the Respondent’s refusal to furnish the
information.
Our dissenting colleague faults the General Counsel
for his purported failure to controvert specifically each
of the factual assertions made by the Respondent in its
motion. While the General Counsel may not have re-
sponded to each and every factual assertion made by
the Respondent in support of its motion, we find noth-
ing in the General Counsel’s opposition to suggest that
he acquiesces in, or agrees with, the Respondent’s
version of the facts. Indeed, the General Counsel’s dis-
agreement with the Respondent’s claim that the infor-
mation sought involved only financial data, and his as-
sertion that there are factual issues raised by the Re-
spondent’s motion that must be resolved at a hearing,
demonstrates clearly that the General Counsel’s
version of the facts differs from that presented by the
Respondent in its supporting brief.
According to our dissenting colleague, our position
leads to the result that ‘‘a party could always get a
hearing on a legally insufficient complaint merely by
claiming there were disputed factual issues when there
really were none.’’ We do not take the position as-
cribed to us by our colleague. If the complaint is in-
deed ‘‘legally insufficient,’’ the motion would admit
all factual allegations of the complaint, and would con-
tend that they do not constitute a violation. In that situ-
ation, there is no need for a hearing; a pure question
of law is presented. But, that is not the case here. In
the instant case, there are factual issues which are con-
tested.
Nor do we believe that it was incumbent on the
General Counsel, during this motion stage of the pro-
ceeding, to set forth the precise facts on which he re-
lies. The Board has no provision comparable to Rule
56(e) of the Federal Rules of Civil Procedure under
which a moving party can set forth its version of the
facts, and the other party must either admit or con-
trovert with specific facts. See Machinists Lodge 64 v.
NLRB, 949 F.2d 441, 450 (D.C. Cir. 1991). We find
nothing in the language of Section 102.24 of the
Board’s Rules, which sets forth the requirements for
the filing of motions with the Board, to suggest other-
wise.4 Rather, Section 102.24(b) provides, in relevant
part, that a party opposing a motion for summary judg-
ment or dismissal is not required to submit affidavits
or documentary evidence to show that there is a gen-
uine issue for hearing, and that ‘‘[t]he Board in its dis-
cretion may deny the motion where the motion itself
fails to establish the absence of a genuine issue, or
where the opposing party’s pleadings, opposition
and/or response indicate on their face that a genuine
issue may exist.’’ As it is patently clear to us from the
parties’ pleadings, the Respondent’s motion, and the
General Counsel’s opposition brief, that genuine issues
of fact existed, we deem it appropriate, in the exercise
of the discretion afforded us under Section 102.24, to
have the entire matter remanded to an administrative
law judge for resolution of these disputed issues of
fact.
Accordingly, the Board, on April 15, 1992, properly
denied the Respondent’s motion to dismiss and ordered
the matter remanded to the Regional Director for fur-
ther appropriate action.5
MEMBER OVIATT, dissenting.
The majority denies the Respondent’s motion for
summary dismissal of the information request aspect of
the complaint on the ground that it raises factual is-
747KIRO, INC.
1 Unlike Rule 26, Fed.R.Civ.P., which permits extensive discovery
in the Federal courts, discovery in Board unfair labor practice pro-
ceedings is quite limited. This is all the more reason why an unfair
labor practice complaint alleging a violation for the Respondent’s
failure to turn over information that is not presumptively relevant
should allege sufficient facts to permit the Respondent to understand
the General Counsel’s theory of relevance.
sues. Finding no disputed issues of fact, and that the
General Counsel has not made a preliminary showing
that the information request is even arguably relevant
to the Union’s responsibilities as bargaining represent-
ative, I would grant the motion.
The complaint alleges, among other things, that on
learning that the Respondent, Seattle Television Station
KIRO-TV, broadcasting on Channel 7, planned to
produce a half-hour weekly news program for broad-
cast over Seattle television station KTZZ-TV (a sepa-
rate nonunion business entity broadcasting on Channel
22), the Union requested copies of any documents re-
lating to the Respondent’s ‘‘joint venture’’ with
KTZZ-TV, including tentative memoranda, letters of
intent, and letters of understanding, and also requested
copies of the contract between the two stations show-
ing the terms under which the venture would be oper-
ated. According to the complaint, the Respondent re-
fused to provide the Union with the requested informa-
tion. As to the Union’s need for this information, the
complaint states in the most general of ways that the
information ‘‘is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive col-
lective-bargaining representative . . . .’’ Exactly how
it is relevant to, or necessary for, the Union’s perform-
ance of its duties is not revealed.
In its memorandum in support of its Motion for
Summary Judgment, the Respondent explains that for
a number of years its late-evening news broadcast, pro-
duced by its employees in its studios, has aired on
Channel 7 at 11 p.m. According to the Respondent, in
mid-1991 it entered into an agreement with KTZZ,
much like its other commercial agreements to produce
programs for viewing elsewhere, whereby the Re-
spondent produces a news program to be telecast at 10
p.m. on KTZZ. The program is produced by KIRO
employees in KIRO’s studio, at a time when they are
not working on any other matter. The Respondent
states that when the Union’s executive director, An-
thony Hazapis, requested the KIRO–KTZZ material, he
did not claim that the KIRO–KTZZ arrangement was
in violation of the Union’s collective-bargaining agree-
ment with the Respondent, and no grievance has been
filed on the theory that there was a contract breach.
The Respondent also notes that it has made no pro-
posal to cut any wages or benefits for any bargaining
unit member engaged in the production of the KTZZ
news program. Finally, the Respondent observes that
KTZZ employees are not producing any KIRO pro-
grams.
None of the Respondent’s factual assertions in its
motion papers is controverted by the General Counsel.
Instead, in his response, the General Counsel refers to
the Respondent’s answer to the complaint. There, the
Respondent denied that the information requested by
the Union related to wages, hours, and other terms and
conditions of employment of the bargaining unit em-
ployees and also denied that this information was rel-
evant to the Union’s performance of its duty as the ex-
clusive collective-bargaining representative. This de-
nial, argues the General Counsel, ‘‘generates factual
issues that must be resolved through a hearing.’’
Unlike the General Counsel, who apparently sees
‘‘factual issues’’ at every turn, I find none. Stating that
there is a dispute over the relevance of the requested
information, because one side baldly contends that it is
relevant to wages, hours, and other terms and condi-
tions of employment, and the other side argues that it
is not, does not create a factual issue. Questions of rel-
evance are legal ones for the court (or, in this case, the
administrative agency), not factual ones for the trier of
fact. Thus, the Board may decide relevancy questions
on the undisputed underlying facts, and no evidentiary
hearing is necessary. See, e.g., Home Insurance Co. v.
Ballenger Corp., 74 F.R.D. 93, 101–102 (N.D.Ga.
1977) (court finds that general allegation of relevancy
of certain files does not establish their relevancy, and
discovery not permitted); Lynch v. Richardson-Merrell,
Inc., 646 F.Supp. 856, 864–866 (D.Mass.1986), affd.
830 F.2d 1190 (1st Cir. 1987); Shape of Things To
Come v. Kane, 588 F.Supp. 1192, 1193 (N.D.Ill.1984).
Were it otherwise, the General Counsel could, in every
case where the requested information was not pre-
sumptively relevant, simply plead that the information
was relevant to the Union’s duty as a collective-bar-
gaining representative and get a hearing. The Respond-
ent would thus be left completely in the dark as to just
how the requested information bore on the Union’s
collective-bargaining responsibilities. This is not notice
pleading that fairly permits the Respondent to prepare
a defense.1
My colleagues attempt to infer factual issues war-
ranting a hearing where there are none. They suggest
that the ‘‘Respondent’s assertion that the information
sought involves only financial data’’ somehow raises a
factual issue warranting a hearing. In fact, the Re-
spondent admitted in its answer, and did not contest,
the facts in paragraph 6(b) of the complaint, which de-
tail the information the Union sought. The Respondent
also quoted the substance of the Union’s information
request in its summary judgment memorandum. It
never contended that the Union requested only finan-
cial data, although obviously the material requested
might well include financial data. Thus, the Respond-
ent does not now dispute what material the Union re-
quested, but only whether it is legally required to turn
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In addition to its allegations with respect to the failure to supply
the requested information, the complaint, in pars. 7(b) and 8, alleges
that the Respondent violated Sec. 8(a)(5) by producing the KTZZ
news program without prior notice to the Union or affording the
Union an opportunity to bargain about the program or its effects.
While the Respondent’s Motion for Summary Judgment appears to
seek dismissal of the complaint in its entirety, the Respondent’s
memorandum in support of its motion addresses just the information
request. Because the alleged unilateral act of instituting the KTZZ
program is not argued in the Respondent’s papers, I would not grant
summary judgment with respect to it.
that material over to the Union. No evidentiary hearing
is required on what plainly has been admitted.
My colleagues also rely on the General Counsel’s
bald assertion that there are factual issues that must be
resolved at a hearing. But to say that there are factual
issues, when in fact there are none, does not make it
so. Were it otherwise, a party could always get a hear-
ing on a legally insufficient complaint merely by
claiming there were disputed factual issues when there
really were none.
Finally, while I agree with my colleagues that to get
an evidentiary hearing the General Counsel need not
specifically controvert in his opposition any of the fac-
tual assertions in the Respondent’s motion, the General
Counsel must at the least show that the Respondent
disputes material allegations of fact in the complaint.
I strongly disagree that because there are insufficient
agreed-upon facts pertinent to the relevancy question,
this in and of itself somehow raises ‘‘factual disputes’’
warranting a hearing. No facts are not the legal equiva-
lent of disputed facts, and here the General Counsel
has plainly avoided his responsibilities by alleging ab-
solutely nothing on the relevancy question.
There being no disputed issue of facts, I shall pro-
ceed to consider the Respondent’s Motion for Sum-
mary Judgment on its merits. A union’s request for in-
formation relating to matters outside the bargaining
unit requires a special demonstration of relevance.
E. I. du Pont & Co., 268 NLRB 1031 (1984); Leland
Stanford Junior University, 262 NLRB 136 (1982),
enfd. 715 F.2d 473 (9th Cir. 1983). The facts must es-
tablish more than a mere suspicion of possible rel-
evance for the Union to be entitled to information per-
taining to nonunit matters that do not appear to bear
directly on the wages, hours, and working conditions
of the unit’s employees. Sheraton Hartford Hotel, 289
NLRB 463, 464 (1985). The Board will not speculate
or concoct theories as to why the requested informa-
tion might be relevant; that is for the General Counsel
to show. Southern Nevada Builders Assn., 274 NLRB
350, 351 (1985), and cases cited there.
On its face, the requested information does not per-
tain to the bargaining unit. Thus, the General Counsel
must demonstrate in his pleadings or by affidavit the
relevance of the requested information. We are not,
however, given even an inkling from the General
Counsel’s papers as to how the requested information
could be relevant. On its face the requested informa-
tion appears to be proprietary in nature and may well
also be confidential. It plainly deals with matters af-
fecting the unrepresented employees of another com-
pany, but there is nothing on this record that fairly
suggests that the requested information is relevant to
the Union’s responsibilities as the bargaining rep-
resentative of the Respondent’s employees. Thus, there
is no basis for compelling the requested information’s
disclosure to the Union.
I would grant the Respondent’s Motion for Sum-
mary Judgment and dismiss that aspect of the com-
plaint relating to the information request.2