National Broadcasting Co.

National Labor Relations Board - Board Decisions

Feb 14, 2008

352 N.L.R.B. 90 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 15
90
National Broadcasting Company, Inc. and American
Federation of Television and Radio Artists,
AFL–CIO. Case 2–CA–37396
February 14, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On March 5, 2007, Administrative Law Judge Steven
Fish issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
and the Charging Party each filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, National Broadcasting Com-
pany, Inc., New York, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.

1 Member Schaumber views the information request as covered by
the parties’ contractual arbitration clause and would defer the request to
arbitration. See Team Clean, Inc., 348 NLRB 1231 fn. 1 (2006). He
recognizes, however, that Board precedent is to the contrary. See, e.g.,
Shaw’s Supermarkets, 339 NLRB 871, 871 (2003) (stating that “[t]he
Board has a longstanding policy of nondeferral to arbitration in infor-
mation request cases”). Accordingly, for institutional reasons, he con-
curs in finding that the Respondent violated Sec. 8(a)(5) by failing to
furnish the requested information.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
We agree with the judge that the Respondent failed to establish the
defense of confidentiality justifying its blanket refusal to supply the
requested information. In its exceptions, the Respondent contends that,
even if it is found to be obligated to provide the information, legitimate
confidentiality and privacy concerns still exist regarding certain infor-
mation sought by the Union, in particular confidential information
about nonunit employees. In ordering the Respondent to furnish the
requested information, we do not preclude the Respondent, at the com-
pliance stage of this case, from making “a particularized showing” of
legitimate and significant confidentiality concerns related to specific
information requested by the Union that must be balanced against the
Union’s need for that information. Jacksonville Area Assn. for Re-
tarded Citizens, 316 NLRB 338, 341 fn. 14 (1995).
Joane S. Ian Wong, Esq., for the General Counsel.
Andrew Herzig, Esq. and Stuart Goldstein, Esq., of New York,
New York, for the Respondent.
Peter Fuster, Esq., of New York, New York, and (Cohen,
Weiss and Simon, LLP) on brief, of New York, New York,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges filed on December 19, 2005,1 by the American Federa-
tion of Television and Radio Artists, AFL–CIO (AFTRA or the
Union), the Regional Director for Region 2 issued a complaint
and notice of hearing on April 28, 2006, alleging that National
Broadcasting Company (Respondent2 or NBC) violated Section
8(a)(1) and (5) of the Act, by refusing to supply relevant infor-
mation to the Union. The trial was held with respect to the
allegations in the complaint on August 17, 2006. The com-
plaint and answers were amended at the trial in various re-
spects. Briefs3 have been filed by the parties, and have been
carefully considered.
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a corporation engaged in the business operat-
ing a television broadcasting network. Annually, Respondent
sells media space to advertisers that advertise national products
and its business is national in scope. Respondent annually de-
rives gross revenues in excess of $100,000. It is admitted, and I
so find, that Respondent is and has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
It is also admitted, and I so find, that the Union is and has
been a labor organization within the meaning of Section 2(5) of
the Act.
II. FACTS
A. Background
The Union and Respondent are parties to many collective-
bargaining agreements, Including a multiemployer agreement
known as the AFTRA National Code of Fair Practice for Net-
work Television Broadcasting (the Code or the contract). Sig-
natories to this contract include the major television networks,
such as NBC, CBS, and ABC, as well as members of the Alli-
ance of Motion Pictures and Television Producers (AMPT),

1 All dates hereinafter referred to are in 2005, unless otherwise indi-
cated.
2 The charge was filed against NBC Universal. The complaint al-
leged NBC, Inc. as Respondent, since that entity is the signatory to the
collective-bargaining agreement in issue. Respondent has stipulated
that NBC is a subsidiary of NBC Universal, and to the extent that NBC
is found to have an obligation to produce certain documents to the
Union, NBC Universal will assume responsibility for such production.
3 In her brief, the General Counsel made the motion to correct the
transcript. The motion is unopposed and is granted as follows: [Cer-
tain errors in the transcript have been noted and corrected].
NATIONAL BROADCASTING CO. 91
which is a multiemployer organization representing the interest
of motion picture and television producers.
Paragraph 75 of the Code entitled “people covered,” defines
the unit. It reads as follows:
All persons who perform as talent, e.g., actors; come-
dians; masters-of-ceremonies; quiz masters; disc jockeys;
singers; dancers; announcers (other than staff duties of
staff announcers); sportscasters; specialty acts; stunt per-
sons; background actors’ puppeteers; reporters and ana-
lysts (with the exception of government employees and
persons who are engaged occasionally on a single program
basis because they are specialists whose regular employ-
ment or activity is in the field in which they report, such as
college professors and scientists) in the fields of home
economics, fashion, farm and rural subjects, and market
reports; models; moderators; members of panel where
format of program requires such persons to participate
generally in entertainment. Excluded from the provisions
of this agreement are members of panel who take part in
discussion of news, education, or public affairs programs,
or persons who act only as judges of contests; provided
that services of staff newspersons on such panel programs
shall be subject to their respective staff agreements.
This Code also applies to all persons other than staff
newspersons rendering services in the field of news in-
cluding but limited to commentators and analysts and per-
sons who criticize, review and/or comment on the follow-
ing: books, the fine arts, music, sports, the theatre, movies,
dance, radio, television, society, and travel; and including
persons who perform in live, film, or recorded news in-
serts in network television programs. However, manage-
ment personnel delivering editorials are excluded from the
coverage of this Code.
Although the Code makes no specific reference to weather-
casters, the evidence discloses that Willard Scott, a well-known
weathercaster was covered by the Code, when he appeared on
NBC’s Today Show, and when local weathercasters fill in from
time to time on network Programs, such as the “Today Show”
they are also covered by the Code. Section 76 of the Code is
entitled “News Service” and it states as follows:
Any person rendering services on behalf of Producer in the
field of news of the type covered by this Code under Para-
graph 75.A. who performs in live, film or recorded news sto-
ries not exceeding five (5) minutes in length which originate
within the continental limits of the United States and which
are made available by Producer for telecast on a non-
interconnected basis by two (2) or more stations as part of
their local news programs shall be paid by Producer one (1)
single payment of $85.00 for each such news story in which
such person is seen or heard, up to a maximum of $171.00 per
day for all news stories made available by Producer on any
day, provided:
(1) such person is employed by Producer in New York,
Los Angeles, Chicago, San Francisco or Washington,
D.C., and said news story originates from such city or
originates from another city within the continental limits
of the United States when such person is sent to such other
city for the purpose of making such origination; or,
(2) such person’s employment is otherwise covered
under an AFTRA contract with a station if such contract
covers services in the field of news.
For the payment made pursuant to this Paragraph 76, Pro-
ducer may allow each local station either or both of the fol-
lowing: (a) an unlimited number of such telecasts within
forty-eight (48) hours after the news story has first been made
available by Producer hereunder; (b) one (1) such telecast af-
ter such forty-eight (48) hour period but within seven (7) days
after the news story has first been made available by Pro-
ducer.
B. Prior Related Cases
1. National Broadcasting Co., 318 NLRB 1166 (1995)
On September 19, 1995, the Board issued its decision in Na-
tional Broadcasting Co., 318 NLRB 1166 (1995), affirming the
decision of Administrative Law Judge James Morton, that Re-
spondent, NBC had violated Section 8(a)(1) and (5) of the Act,
by refusing to supply relevant information to AFTRA. That
case involved representation by the Union in two units. One
unit involved staff newspersons, which was covered under a
contract referred to the staff newspersons contract or the staff
contract. The other unit which applied to nonstaff or freelance
employees, who were covered under the Code, is the same
contract at issue in this proceeding.
The Union sought information concerning the operations of
various entities including General Electric (the parent company
of Respondent), CNBC (Consumer News and Business Chan-
nel), NBC News Channel, and Nightside. The Union requested
the information because it believed that unit work was eroding
because of changes being implemented by Respondent and that
unit employees may not be receiving compensation called for in
the agreements for their stories when used by CNBC and NBC
News Channel.
The staff contract provides that it is applicable to Staff
newspersons employed by Respondent in New York, Washing-
ton, Chicago, or Los Angeles, or in a domestic news bureau.
Respondent claimed that CNBC is primarily a cable service,
and that only 1 percent of its news is made available for use on
a network basis, and that the language of the staff contract ex-
cluded CNBC from coverage. The General Counsel contended
that a bona fide question existed as to whether CNBC and NBC
News Channel newspersons were employees of “domestic net-
work bureaus.” The Union argued that CNBC may be bound
under its contracts with Respondent as it is located in Fort Lee,
New Jersey, just across the river from New York City, on the
ground that it is thus located in the New York metropolitan
area. The Respondent placed in evidence in that proceeding an
arbitration award in which a similar claim was made by the
Union against the Columbia Broadcasting Company, and that
was rejected. Thus Respondent asserted before the judge and
the Board, that this arbitration award “disposes of that aspect of
the Union’s reasons for seeking data about CNBC.”
The judge’s decision, affirmed by the Board, without charge
or comment on the basis or rationale of his decision, found that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD92
the Union had demonstrated relevance for its request for the
information, concerning single-employer status vis-á-vis Gen-
eral Electric, Respondent and the other entities, and moneys to
employees for their stories used by CNBC and other entities.
He concluded that a prima facie case was established that the
request was relevant to the Union’s responsibilities to represent
staff and nonstaff persons in Respondent’s employ. The judge
then proceeded to consider Respondent’s argument that sought
to rebut that showing by pointing to contract language and an
arbitration award issued in favor of CBS. It argued that NBC
News Channel cannot be found to be a domestic news bureau,
and “that I must find that CNBC, which is located across the
river from the Respondent’s headquarters, is beyond the unit
scope.” The judge concluded that the “record before me does
not allow for a finding as a matter of law, that the Union’s re-
quest has no relevance to the Union’s responsibilities as bar-
gaining representative. Rather, the contentions of the Respon-
dent are more properly matters to be presented to any arbitra-
tion proceeding that might ensue.” 318 NLRB at 1169.
2. National Broadcasting Co., Case 2–UC–561
In 2001, the Union filed a UC petition in Case 2–UC–561
seeking to clarify a unit of NBC newspersons based in New
York, Washington, Chicago, Los Angeles, or in News Bureaus,
to include staff newspersons employed by MSNBC4 in Secau-
cus, New Jersey.5 In that proceeding, the Union contended that
NBC and MSNBC should be deemed a single employer under
the Act, and that MSNBC staff newspersons constitute an ac-
cretion to the existing unit. Respondent asserted therein that
NBC and MSNBC are not a single employer and that even if it
is determined that NBC and MSNBC constitute a single em-
ployer, factors employed by the Board in accretion cases were
not present. Further, the Employer argued that the agreement
itself expressly precludes coverage for the employees at issue,
since Secaucus, New Jersey, was beyond the geographic scope
of the staff Newspersons Agreement. The Union opposed Re-
spondent’s argument in that regard, as it did in the prior Board
trial, and as it does in this proceeding, by contending that the
term “New York” in that agreement meant the New York met-
ropolitan area.
In that regard, the Union introduced some of the same evi-
dence in the UC proceeding that it proffered here, to support its
contention that in the industry and under the contract, New
York means New York metropolitan area. Such evidence in-
cluded a 2001 Nielson rating for the broadcast industry, which
defines the New York market in the industry to include Secau-
cus, New Jersey, as well as the fact that the parties have applied
contracts to employees employed in Burbank, California, al-
though the contracts by their terms refer to Los Angeles.6
Furthermore, an employment contract was put into evidence
in the UC proceeding concerning Lester Holt, a MSNBC an-

4 MSNBC was formed in July 1996 as a result of joint venture be-
tween Microsoft and NBC.
5 This staff newspersons agreement is no longer in effect, inasmuch
as the Union has been decertified as the collective-bargaining represen-
tative of Respondent’s employees in that unit.
6 Burbank, California, is a city close to, but separate from the city of
Los Angeles.
chor whose employment contract said his area of employment
was New York/New Jersey. Finally, testimony at the UC hear-
ing by Roman Escobar a management witness, reflected that he
had previously worked at WXTV, an Univision affiliated tele-
vision station that is located in Secaucus, New Jersey. In
Escobar’s testimony, he said, “[I]t was right here in New
York,” that the television station was “right here in New York,”
and he referred to it as Univisions’ “New York affiliate.”
Notwithstanding the above evidence, and the contentions of
the parties with respect to geographical coverage of the con-
tract, the Regional Director specifically declined to rule on that
issue. Further, she also specifically declined to rule on the
issue of single-employer status vis-á-vis NBC and MSNBC.
The Regional Director dismissed the petition solely on the
grounds that the Union did not establish that MSNBC Cable
anchors share the “requisite overwhelming community of inter-
est,” with the existing NBC unit to support an accretion finding.
The Regional Director in assessing the factors relevant to an
accretion analysis, considered the issue of geographic prox-
imity. She concluded that the unit was national in scope, and
so the distance of nine miles between NBC’s Rockefeller Cen-
ter Studios and MSNBC’s Cable’s Secaucus base would not
seem to weigh against a finding of accretion. She added how-
ever, that the broad geographic sweep of the unit, which spans
the entire country, suggests that the relative proximity of one
unit member to another is not of much significance in this in-
dustry. In a footnote to this discussion, the Regional Director
as noted above, specifically disclaimed any ruling or opinion on
the “distinct contractual issue” as to whether “New York” as
defined in the contract is to be understood as the New York
metropolitan area, which would include parts of New Jersey or
as encompassing only New York City.
Finally, the UC decision also reflected that the Union had
previously taken the position that MSNBC Cable employees
appearing on the air, should be covered under the preexisting
agreement with Respondent covering NBC staff persons, and
that Respondent had disagreed with the Union’s position in that
regard. The decision further reflected that the Union raised the
issue during negotiations that began in late August 1997, and
had asked Respondent at that time for certain information. The
Union informed Respondent that depending on what the infor-
mation that it sought from Respondent ultimately revealed, that
it believed that the MSNBC Cable staff were already covered
under the existing contract by operation of law. In the alterna-
tive, the Union told Respondent, that if the facts did not estab-
lish that the MSNBC staff newspersons were covered under the
contract by operation of law, then the Union would negotiate to
extend the contract to MSNBC Cable staff newspersons. The
Union did not file an accretion petition at that time, because the
information it had received from Respondent up to that point
had been incomplete and, accordingly insufficient to determine
whether MSNBC Cable staff newspersons were covered under
the then existing contract. Negotiations for the 1997 agreement
stalled, and the Union proposed that it would withdraw its in-
formation request to facilitate reaching an agreement. The
Union never withdrew its claim concerning MSNBC, and Re-
spondent provided the Union with the information requested
regarding MSNBC Cable by way of a stipulation between the
NATIONAL BROADCASTING CO. 93
parties in November 1999. The Union filed its UC petition on
October 17, 2000.
C. Weather Plus and the Union’s Information Request
Weather Plus is a 24-hour television weather service that op-
erates out of Secaucus, New Jersey. It was created in 2004 by
NBC and the NBC Affiliate Futures Committee (Affiliate
Committee) which represents over 200 local stations that carry
NBC network programming throughout the U.S. The Affiliate
Committee is comprised of corporations independent of NBC,
such as Gannett Broadcasting, Hearst Argyle Television Inc.,
and Ray Com Media. Approximately 90 of the more than 200
local affiliate stations, 10 of which are owned by and operated
by NBC subscribe to Weather Plus. The service is distributed
by digital cable service providers over the air, although most
customers are only able to view Weather Plus via digital cable.
There are two components to the Weather Plus program, a local
weather component and a national weather component.
Weather Plus viewers will see both local and national weather
stories and related news. Fifty percent of the time, national
weather is reported, with local weather comprising the remain-
ing 50 percent of the time on the station. The national portion
of the Weather Plus service is produced at the MSNBC studios
in Secaucus, New Jersey. The national content is produced by
a team of technical staff and on-and-off air meteorologists, all
of whom report to Jeff Thein, vice president and executive
producer of Weather Plus.
In November 2004, Thomas Carpenter, AFTRA’s general
counsel and director of Legislative Affairs, attended a meeting
of the Federal Communications Commission, wherein an NBC
official discussed that NBC was preparing to launch as a joint
venture with affiliate groups, Weather Plus, as a digital over the
air broadcast that would air on part of the digital spectrum that
NBC’s own stations and their affiliates were granted as part of
the digital transition. The NBC representative stated that exist-
ing NBC weather casters would be used to do local cut-ins for
local weather, but that programming would have a national
component as well, with dedicated meteorologists located in
Secaucus, New Jersey, doing the national forecasting to all of
the affiliates around the country. He added that while Weather
Plus was co-owned by the network and the affiliate groups, it
was going to be managed and overseen by NBC. After this
meeting, Carpenter received e-mails from Mary Cavallaro, a
union staff member, forwarding articles that appeared in trade
publications, discussing NBC’s launching of Weather Plus.
They included an article in Variety, posted November 5, 2004,
entitled “NBC, Affils Plan For Weather.” This article states
that Respondent and its affiliates, launched Weather Plus a
jointly owned weather net saying they want to “catch the coun-
try by digital storm.” The article quoted an NBC executive, as
stating that programming costs would be minimized, since con-
tent was being provided by the existing weather staff at NBC
News and weather desks at local stations. Cavallaro also for-
warded another article from Broadcasting and Cable entitled
“Peacock Plays Weather Vane,” that reported that weather
junkies would get “NBC’s long planned Weather Plus digital
service.” It added that the channel will be broadcast digitally
over WNBC New York, and that “a mix of familiar local mete-
orological talent and anchors from NBC and MSNBC will be
tossed together with quality graphics and forecast data,” and
that “NBC will make the service supported by a dedicated staff
at the NBC news channel here in Charlotte, N.C. available to
affiliates free of charge with both sides then splitting revenues
equally.”
An article in TV Week dated November 16, 2004, entitled
“NBC debuts Digital Weather Channel in New York,” details
that Weather Plus was due to launch in WNBC TV in New
York, as well as in 14 other stations throughout the country.
Another article forwarded to Carpenter from Mediaweek, dated
November 15, 2004, entitled “NBC U Weather Net Blows into
New York,” states that NBC Universal and its affiliates, will
roll out in phases a 24-hour national and local weather network
called Weather Plus, and that Time Warner’s Digital Service in
New York, will be the channel’s first distributor. It added that
NBC Universal hoped to compete with the 22-year-old Weather
Channel which is available in 45 percent of U.S. homes. Fi-
nally, an article dated November 16, 2004 entitled “NBC Uni
Tunes up Weather Plus,” reports that NBC Universal launched
an “all digital broadcast network that will eventually deliver
local weather and community information on network stations
across the country.” It also reported that NBC Universal “had
this project on the boards for 17 months,” and quoted a media
representative as observing that “TV stations are finally step-
ping up and recognizing that they have valuable bandwidth to
bring the market places at the transition to digital comes.”
In December 2004 and January 2005, Carpenter spoke with
Cavallaro and Patricia O’Donnell, an AFTRA representative in
its Washington-Baltimore office about information that these
representatives had obtained from their members about
Weather Plus. Cavallaro was informed that existing union
members working for local stations in Philadelphia would be
performing the network portion of the Weather Plus program
stream, because the Secaucus facility was a little delayed in
getting up and running. O’Donnell told Carpenter that AFTRA
members employed by WRCT, a NBC station in Washington,
D.C., had been approached about doing local cut-ins for the
Weather Plus stream.
By June 2005, Carpenter had information that Weather Plus
had launched in at least two markets, which is required before a
program can be characterized as a network program under the
Code, as well as the information from trade publications and
discussions with staff representatives of the Union, indicating a
relationship between Respondent and Weather Plus. Therefore,
based on the above, Carpenter after consulting with his superi-
ors filed a grievance against Respondent on June 21, 2005. The
grievance asserts that Respondent violated the Code by “failing
to apply the terms and conditions of employment in the Collec-
tive Bargaining Agreement to the services performed by the
employees on the ‘Weather Plus stream.’” The grievance de-
manded that the Agreement be applied to any employees work-
ing on the Weather Plus program, and that all affected employ-
ees be made whole.
Respondent did not reply to this grievance. The Union by its
attorney filed for arbitration, of the grievance dated June 21,
2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD94
Carpenter testified that he believed that by virtue of Section
75 of the Code, which by its terms covers “all persons who
perform as talent,” that people who are doing work on digital
over-the-air broadcast weather programming that was net-
worked should be covered by the contract that covers digital,
over-the-air broadcasts of network programming.
After the Union’s demand for arbitration was filed, Peter
DeChiara, the Union’s counsel did an internet search on Sep-
tember 12, 2005, using Google to find public documents con-
cerning the relationship between NBC and Weather Plus.
Some of the items found by DeChiara included a press release,
dated March 30, 2005, released by NBC Universal, which
quotes Brandon Burgess, an NBC Universal executive vice
president as saying, “[W]e created NBC Weather Plus to tap the
tremendous potential of digital over-the-air broadcast technol-
ogy and enable our affiliates to better service their local mar-
kets.” The press release also notes that Jay Ireland is the presi-
dent of NBC Universal and is chairman of the NBC Weather
Plus board of directors. The release also states as follows:
NBC Weather Plus combines national and local
weather coverage with in-depth, live reports throughout
the day from trusted local meteorologists backed by the
strength of the NBC News network. When viewers tune
into NBC Weather Plus, the network’s distinctive “L Bar”
on the perimeter of the screen provides current tempera-
tures as well as five-day and hour-by-hour forecasts in real
time, 24 hours a day, seven days a week, even during com-
mercials, a first for any network.
DeChiara’s search also revealed a document from an NBC
website, which reflected that Ireland was both president of
NBC Universal and chairman of the Weather Plus board of
directors, and that the address listed for Weather Plus was the
same address as NBC Universal, 30 Rockefeller Plaza.
DeChiara also found a transcript from an MSNBC program
“Hardball” dated August 31, 2005, in which Chris Mathews the
host, introduced a reporter Bill Karins as being with “NBC
Weather Plus.” Later on in the transcript, Karins is referred to
as “Bill Karins, NBC Meteorologist.” DeChiara viewed this
evidence as indicating a single-employer relationship between
NBC and Weather Plus. Finally, DeChiara printed out an arti-
cle from the Houston Chronicle, dated September 1, 2005,
which discussed coverage of Hurricane Katrina by various
networks and cable stations. What caught DeChiara’s eye in
the article was the following quote:
MSNBC and its broadcast counterpart NBC also found bene-
fit in two lesser-known reporters, Bill Karins and Jeff Ranieri,
from its obscure digital cable channel, NBC’s Weather Plus
channel 20 on Time Warner. Ranieri, in particular, was put to
prominent use.
DeChiara testified that the use of the word “its” in the above
quote, suggested to him a possessive relationship between NBC
and Weather Plus. The fact that the article mentioned Ranieri’s
prominent use on NBC’s Today, suggested to DeChiara that
since Ranieri was “put to use” on the Today Show, his em-
ployer might be NBC.
On September 12, 2005, DeChiara left a voice mail message
for Andrew Herzig, Respondent’s attorney, that the Union as-
sumed that there were individuals who were employed nomi-
nally by Weather Plus as on-air talent, and that AFTRA was
going to make an information request to explore whether there
was a single-employer relationship between NBC and Weather
Plus. Later on that day, Herzig and DeChiara spoke on the
phone. Herzig informed DeChiara that he did not know much
about Weather Plus, and would get back to DeChiara after
meeting with the “Weather Plus people.” DeChiara told Herzig
that if on-air employees were employees of Weather Plus, he
would be making a single-employer argument in the grievance.
On September 16, 2005, the parties agreed to select Maurice
Benewitz as the arbitrator for the grievance filed by the Union
and so notified AAA.
On September 26, Herzig and DeChiara spoke again, and
Herzig stated that he would get back to DeChiara with regard to
Respondent’s position on the single-employer issue in a few
days. DeChiara responded that he was going to be sending
Respondent an information request.
On September 29, 2005, DeChiara sent an information re-
quest to Respondent. In preparing this request, DeChiara
looked back in his file from the MSNBC unit clarification case
decided in 2001, and noted that the single-employer issue was
litigated in that case. He also noted that at that time, the Union
had made an information request for similar material from Re-
spondent, and that Respondent provided such information to
AFTRA. The request reads as follows:
Dear Mr. Herzig:
This office represents AFTRA in the above matter.
Pursuant to Section 8 (a)(5) of the National Labor Re-
lations Act, and in preparation the arbitration of the griev-
ance, AFTRA hereby requests the following relevant in-
formation documents.
Definitions:
For purpose of this information request, “NBC” in-
cludes (1) NBC Universal, (2) NBC’s various divisions
and subsidiaries, Including NBC’s television operations,
and (3) NBC’s corporate owners, including General Elec-
tric.
“Broadcast” means sent through the airwaves, as op-
posed to through a cable.
Requests:
1. A list of all persons, including but not limited to cor-
respondents and meteorologists, who perform on-air
(meaning, in front of the camera) for programming that
appears on Weather Plus, but not including employees of
local television stations or persons who give only local
weather reports.
2. A copy of the personnel file of each person referred
to in Request #1 above.
3. A copy of each employment contract, personal ser-
vices agreement or loan-out agreement entered into by or
on behalf of each person referred to in Request #1 above.
NATIONAL BROADCASTING CO. 95
4. A copy of any resume or corporate bio of each per-
son referred to in Request #1 above.
5. A list of any NBC-sponsored health insurance plan,
life insurance plan, savings plan, pension plan, 401(k)
plan, disability plan or any other NBC-sponsored welfare
or benefit plan provided to or made available to each per-
son referred to in Request #1 above.
6. A list of the street addresses of the facilities where
the persons referred to in request #1 above have been pro-
vided with offices or workspaces.
7. Any telephone directory that includes the persons
referred to in Request #1 above.
8. The business email addresses of the persons referred
to in Request #1 above.
9. Copies of all workrules, employment manuals, of-
fice manuals, policy manuals, codes of behavior, codes of
ethics, and/or statements of policy (e.g., sexual harassment
policy, computer use policy) to which the persons referred
to in Request #1 above are required to adhere.
10. Sample copies of pay checks, pay stubs or other
pay records for each of the persons referred to in Request
#1 above.
11. Sample copies of any timesheets or work logs
maintained by or for or submitted by or for persons re-
ferred to in Request # 1 above.
12. Sample copies of any expense reimbursement
forms submitted by persons referred to in Request #1
above.
13. Sample copies (with account numbers redacted) of
any credit cards or expense account cards issued to the
persons referred to in Request #1 above.
14. A copy of the home pages of any internal NBC
intranet websites accessible to the persons referred to in
Request #1 above.
15. Videotape of Weather Plus broadcasts in which
each person referred to in Request #1 above appears.
16. Any charter, bylaws or other governing documents
of Weather Plus.
17. Any documents concerning or addressing which
entities own or control Weather Plus.
18. A list of the members of the Board of Directors of
Weather Plus.
19. The minutes of all meetings of the Board of Direc-
tors of Weather Plus.
20. A list of the officers of Weather Plus.
21. The resume or corporate bio of each member of the
Weather Plus board of Directors and of each officer of
Weather Plus.
22. A list of all managerial personnel of Weather Plus,
including executive producers, with their titles.
23. The resume or corporate bio of each managerial
employee of Weather plus, including Michael Steib, Jeff
Thein and Jordan Hoffner.
24. A list or chart of the officers and directors of NBC.
25. A list or chart of all managerial employees in-
volved in NBC’s network television operations, with their
titles.
26. A copy of any agreements or other legal docu-
ments, between NBC and any other party or parties, that
establish or created Weather Plus, including but not lim-
ited to a joint venture agreement or a limited liability
company agreement.
27. A copy of any contracts, leases, guarantees, licens-
ing agreements or other agreements between NBC and
Weather Plus.
28. A copy of any contracts, leases, guarantees, licens-
ing agreements or other written agreements between NBC
and any other party or parties concerning either Weather
Plus, Weather Plus employees or Weather Plus operations.
29. Any documents describing, concerning or memori-
alizing any transfers of assets or funds between NBC and
Weather Plus, including but not limited to any loans or
payments.
30. Any chart or other document showing the corpo-
rate relationship between NBC and Weather Plus.
31. Any press releases concerning Weather Plus.
32. Copies in your files of any newspaper or magazine
articles, which either appeared in print or electronically,
concerning Weather Plus.
33. Any internal non-privileged memos concerning
Weather Plus.
34. All financial statements (audited, if available) of
Weather Plus, including profit and loss statements, balance
sheets and cash flow statements, with all applicable notes.
35. All NBC financial statements that include mention
of Weather Plus.
36. Any documents showing costs incurred by NBC
that are attributable to Weather Plus or Weather Plus op-
erations.
37. Any documents showing revenues or profits re-
ceived by NBC attributable to Weather Plus.
38. Any business plans for or regarding Weather Plus.
39. All correspondence, including email correspon-
dence, between NBC, its officers or employees, on the one
had, and Weather Plus, its officers or employees, on the
other, concerning the operations or finances of Weather
Plus.
40. A list by name, title and department, of any NBC
in-house counsel, NBC in-house financial or accounting
personnel. NBC in-house human resources personnel or
NBC in-house communications or publicity personnel who
have performed services for Weather Plus.
41. A list of any NBC television executive producers,
producers, associate producers, directors, associate direc-
tors, assistant directors, stage managers, production assis-
tants, camera operators, technicians or any other NBC
staff or crew who have performed services for Weather
Plus.
42. Any documents memorializing, setting forth or ad-
dressing the type or quantity of services rendered to
Weather Plus by any of the persons referred to in Requests
## 40, 41 above.
43. Any documents memorializing, setting forth or ad-
dressing any payments by Weather Plus for the services
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD96
rendered to Weather Plus by any of the persons referred to
in Requests ## 40, 41 above.
44. Copy of any print advertisement promoting
Weather Plus paid for, in whole or in part, by NBC and, in
addition, any record of reimbursement for such payment
made by Weather Plus.
45. A copy of any agreement or other document con-
templating, concerning, addressing or memorializing any
payment by NBC to any other person or entity to have ser-
vices performed for or on behalf of Weather Plus, or to
have goods provided to Weather Plus.
46. A list of any and all banks or other financial insti-
tutions at which NBC and Weather Plus both have ac-
counts.
47. A list of any and all accounting firms, advertising
firms, law firms, public relations firms, actuarial firms,
consultants, banks, financial institutions, and vendors that
have, since the inception of Weather Plus, provided ser-
vices or goods to both NBC and Weather Plus.
48. Any documents concerning or addressing the loca-
tions from which Weather Plus broadcasts originate (ex-
cluding inserts of local weather reports).
49. A list of the television stations over which Weather
Plus programs are broadcast.
50. Any and all documents showing, either geographi-
cally or numerically, the extent to which Weather Plus
broadcasts reach viewing households (for example, the
number or percentage of households reached in a given
area, or the regions or cities reached).
Please provide the requested information and docu-
ments by October 31, 2005. If you believe that any infor-
mation or documents responsive to the foregoing requests
are confidential, AFTRA would be willing to discuss the
terms of an appropriate confidentiality agreement.
Sincerely,
Peter D. DeChiara
On October 27, 2005, Herzig wrote to DeChiara acknowl-
edging receipt of the request, and stating that “without waiving
any argument that it may assert that such requests are collec-
tively, or individually irrelevant, unduly burdensome, overly
broad or otherwise objectionable, the Company is in the proc-
ess of preparing its response.” On November 21, 2005, Herzig
and DeChiara spoke by phone, and Herzig requested an ad-
journment of the arbitration which had been scheduled for
January 20, 2006, because of his negotiation schedule, and told
DeChiara that NBC planned to raise a geographic defense at the
arbitration, i.e., that Secaucus, New Jersey, where Weather Plus
is located, is beyond the geographic scope of the Code. Herzig
also informed DeChiara that he would be starting to provide
DeChiara the documents, pursuant to the Union’s information
request “soon.” At no time during any of their conversations,
did Herzig assert to DeChiara that any of the information
sought was confidential or burdensome, or that it was improp-
erly prearbitration discovery. Indeed, Herzig did not object to
any portion of the request, and in fact indicated to DeChiara
that he was going to get the documents to him soon.
However, Respondent never provided any of the requested
information to the Union. On December 13, 2005, Herzig left a
voice mail message for DeChiara, stating that he was request-
ing that the arbitration be adjourned to April, and he would be
sending a letter to that effect. DeChiara replied by voice mail,
since he hadn’t received the information that he had been prom-
ised, he was going to file a charge with the Board.
On December 19, the Union filed its charge. The next day,
Herzig responded with the following letter:
Re: NBC-AFTRA Weather Plus arbitration
Dear Mr. DeChiara:
Because we have been unable to speak by telephone,
and in light of your filing of an unfair labor practice
charge yesterday in connection with AFTRA’s informa-
tion request, I felt the need to convey to you the specifics
of the proposal I had mentioned in my earlier messages to
you.
The Union has indicated it needs the information it has
sought in support of its position that NBC is the employer
of the on-air talent appearing on Weather Plus. The Com-
pany, however, believes that this dispute may be resolved
without such information. To that end, the Company pro-
poses a bifurcation of the arbitration in which the parties
first litigate whether Weather Plus is a program covered by
the AFTRA Network Code. Then, only if Arbitrator
Benewitz rules in the Union’s favor, would the issue
whether NBC is the employer of the individuals in ques-
tion become relevant. In the meantime, the parties would
retain their respective positions with regard to the Union’s
information request and any other claims and defenses.
Bifurcation in this manner would benefit both parties.
The question whether Weather Plus is a program covered
by the Network Code is independent of and can be fully
resolved without responding to the Union’s information
request or determining whether NBC is the employer of
Weather Plus on-air talent. Moreover, the facts necessary
for the Arbitrator to rule on this question are simple and
straightforward. Thus, bifurcation could save the parties
from lengthy and costly litigation, first of the merits of the
information request and then the question whether NBC is
the employer of Weather Plus on-air talent, and would
serve the interest of attempting to reach the most expedi-
tious resolution of the parties’ dispute.
I would be happy to discuss this proposal with you in
more detail. Please give me a call at your earliest conven-
ience.
Sincerely,
Andrew Herzig
The Union did not agree to the proposal made by Respon-
dent in the above letter to bifurcate the arbitration proceeding
and have the arbitrator decide the contract coverage issue first,
which could obviate the necessity of litigating the single-
employer issue and the information request. However, the
Union requested and Respondent agreed that the arbitration
proceeding be stayed pending resolution of the instant unfair
NATIONAL BROADCASTING CO. 97
labor practice proceeding. Respondent’s letter agreeing to the
Union’s request reads as follows:
Dear Mr. DeChiara:
The Company herby agrees to the Union’s request to
stay the above-referenced arbitration pending resolution of
the Union’s December 19, 2005 unfair labor practice
charge. The Company so agrees with the understanding
that it is the Company’s intention, among its other de-
fenses, to request that the NLRB defer the unfair labor
practice charge to arbitration. The Company continues to
believe that, because the arbitrator can readily dispense
with the instant grievance without reference to the re-
quested information, deferral is appropriate in this case.
Nevertheless, the Company will continue to review the
Union’s information request to determine what, if any, in-
formation sought is relevant and in the possession of the
Company such that producing it to the Union would be
appropriate.
While as noted this letter indicates that Respondent would be
continuing to review the Union’s information request to deter-
mine whether to produce same to AFTRA, it has not produced
any of the information requested. After the General Counsel
rested its case, on the date of the trial, August 17, 2006, counsel
for the General Counsel requested on the record that Respon-
dent produce the information responsive to AFTRA’s informa-
tion request. Respondent, by its attorney refused the request,
stating that the information is not relevant, and that the arbitra-
tor should be ruling on the issues.
Respondent presented as a witness, Wendy Freedman, Re-
spondent’s vice president of labor relations and employment,
who has been employed by Respondent since 1982. She was
involved in negotiating and enforcing the Code as well as the
now defunct Network Staff News Agreement. Freedman testi-
fied that in her view, assuming that NBC and Weather Plus
were a single employer, the Weather Plus employees could not
be covered under the terms of the Code. She contends that
under the Code, weather casters would be characterized as
“news services,” which under section 76 of the Code, explicitly
excludes coverage unless the employee is employed in the
“city” of New York, Los Angeles, Chicago, San Francisco, or
Washington, D.C. Thus since it is undisputed that the national
portion of the Weather Plus content is produced exclusively in
Secaucus, New Jersey, and the Weather Plus employees are
based exclusively in Secaucus, New Jersey, Freedman asserts
that the Weather Plus employees would not be covered by the
Code even if NBC were the employer of these employees.
Freedman also testified that when she first became employed
by Respondent in 1982, she was informed about the history of
the Code’s operations in Burbank, California. According to
Freedman, many years ago, much of the programming of Re-
spondent, as well as that of other networks, such as CBS and
ABC was produced under the Code in Los Angeles. However,
at some point, undisclosed in the record, the networks all
moved their facilities to Burbank, California, which is outside
the city limits of Los Angeles. In conjunction with the move,
Freedman claims that the Union and representatives from all
the networks, including Respondent, reached an oral agreement
that in the California area the Code would stay in effect not-
withstanding the fact that the Code referred to employees em-
ployed in the city of Los Angeles. Freedman testified that
“there was an understanding that all the business that was un-
ionized would stay unionized; that nobody would take the posi-
tion that Johnny Carson, for example, wasn’t covered because it
was in Burbank as opposed to Los Angeles.”
III. ANALYSIS
An employer, on request must provide a Union with infor-
mation that is relevant to its carrying out its statutory duties and
responsibilities in representing employees, which includes in-
formation relevant to contract administration and the processing
of grievances. NLRB v. Acme Building Industrial Co., 385 U.S.
432 (1957); CEC Inc., 337 NLRB 516, 518 (2002). Where as
here, the information concerns a purported single-employer
relationship between the Respondent and a nominally separate
employer, the Union bears the burden of establishing the rele-
vancy of the requested information. Dodger Theatricals Hold-
ings, Inc., 347 NLRB 953, 966 (2006); Reiss Viking, 312
NLRB 622, 625 (1993). A union has satisfied its burden when
it demonstrates a reasonable belief supported by objective evi-
dence for requesting the information. Dodger Theatricals,
supra at 966; CEC, supra.
In determining relevancy of requested information, the
Board uses a broad, discovery type standard, wherein the un-
ion’s burden, not exceptionally heavy, requires only a showing
of probability that the desired information is relevant, and that
it would be of use to the union carrying out its duties and re-
sponsibilities. Certco Distribution Centers, 346 NLRB 1214,
1215 (2006); Shoppers Food Warehouse, 315 NLRB 258, 259
(1994). The Board does not pass on the merits of the union’s
claim that the employer has breached the collective-bargaining
agreement, in determining whether information relating to the
processing of a grievance is relevant. Dodger Theatricals,
supra at 967; Certco Distribution Center, supra at 2; Shoppers
Warehouse, supra at 259.
In determining whether the union has made a sufficient dem-
onstration of its reasonable belief of single-employer status, it
may rely on hearsay or other types of evidence that may not be
reliable or accurate. Dodger Theatricals, supra at 967, and
cases cited therein.
In applying these principles to the instant case, the first issue
to be determined is whether the Union has met its burden of
establishing a reasonable belief based on objective facts indi-
cating a single-employer relationship between Respondent and
Weather Plus. I conclude that the evidence presented is more
than sufficient to meet the Union’s burden in this regard.
Dodger Theatricals, supra. Indeed, Respondent does not even
argue in its brief, to the contrary.
The Union’s belief was based upon information from trade
publications, Respondent’s websites and press releases, and
from transcripts of TV shows. Thus, the Union found out that
NBC announced at an FCC meeting that it was preparing to
launch Weather Plus and intended to oversee and manage it, an
NBC executive was quoted as saying, “[W]e created Weather
Plus,” the president of NBC Universal Television Stations was
also the chairman of the board of Weather Plus; Weather Plus
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD98
has the same street address as NBC and shares a website with
it; NBC approached employees at local NBC stations about
working on Weather Plus; NBC affiliated MSNBC identified a
Weather Plus reporter as an “NBC meteorologist”; and NBC
used Weather Plus reporters on NBC’s Today program.
Although some of the above information relied upon by the
Union was derived from what can be characterized as “hearsay”
sources, Board and court precedent makes clear that such evi-
dence can be considered in establishing a “reasonable belief”
by the Union. Dodger Theatricals, supra at 967; Contract
Flooring Systems, 344 NLRB 925, 927 (2005); Cannelton In-
dustries, 339 NLRB 976, 1005 (2003); Leonard Herbert Jr.,
259 NLRB 881, 885 (1981), enfd. 696 F.2d 1120 (5th Cir.
1983); Heck Elevator Maintenance, 197 NLRB 96, 98 (1982),
enfd. mem. 471 F.2d 647 (2d Cir. 1973).
Although Respondent as noted did not contest or dispute the
fact that the Union sustained its burden of establishing a rea-
sonable belief of single-employer status, vis-á-vis Respondent
and Weather Plus, it vigorously disputes the relevance of the
requested information, notwithstanding this conclusion.
Respondent argues that even assuming that single-employer
status between Respondent and Weather Plus is established,
that the employees of Weather Plus (or Respondent) would not
be covered under the Code. Therefore, Respondent contends
that the information sought by the Union cannot be relevant to
its representational responsibilities, since as a matter of law the
employees working in Secaucus, New Jersey, are not covered
by the contract between Respondent and the Union.
Respondent asserts that the Board has frequently exercised
its authority to examine and interpret collective-bargaining
agreements, in connection with evaluating unfair labor practice
allegations. West Point Pepperell, Inc., 200 NLRB 1031, 1037
fn. 4 (1972); Frank N. Smith Associates, 194 NLRB 212, 219,
(1971), and that a similar examination of the Code here, reveals
that Weather Plus on Air Talent are not covered by that con-
tract. Thus, the Union has therefore not established relevancy
to its information request.
In this connection, Respondent relies on section 76(A) of the
Code, which refers to News Service employees, and states that
the Code applies only if the person is employed in and the story
originates in five specific cities, New York, Los Angeles, San
Francisco, Chicago, or Washington, D.C. Thus, since the re-
cord is undisputed that the national portion of the Weather Plus
content is exclusively produced in Secaucus, New Jersey,
Weather Plus content is not produced in, nor are Weather Plus
employees on air employees based in New York, Chicago,
Washington, D.C., Los Angeles, or San Francisco, Respondent
argues that the Code does not cover Secaucus based employees,
even if Respondent were the Employer.
However, the Union argues that article 76 would not neces-
sarily apply to Weather Plus employees, inasmuch as various
issues would need to be determined such as whether reports
shown on Weather Plus around the clock can be deemed
“news,” that such reports do not “exceed five minutes in
length,” and that such reports can be deemed part of “a local
national mix.” The Union contends that this record does not
allow the Board to make findings and determination on the
scope of that article. More significantly, the Union and the
General Counsel argue that the issue what is meant by “city” in
the Code is not clear, particularly in view of past practice and
past positions of the parties. The Union asserts that it intends to
argue at the arbitration, as it did in two prior proceedings in-
volving Respondent, that the word “city” in the Code means
“metropolitan area,” and that Secaucus, New Jersey, is within
the metropolitan area of New York.
I agree with the position of the General Counsel and the Un-
ion, and conclude that in these circumstances, the issue of
whether the geographic restrictions in the Code preclude cover-
age of Weather Plus employees, should be left to the arbitrator
and not be decided by the Board. Dodger Theatricals, supra;
Certco Distribution Centers, supra.
While Respondent is correct that in various circumstances,
such as those in cases that it cited,7 the Board will and has in-
terpreted collective-bargaining agreements, these cases are not
similar to the case at hand, where the Board is being asked to
decide the contract coverage issues vis-á-vis an information
request, assuming a single-employer relationship is established.
That kind of a decision is properly one for the arbitrator to
make, and it is not appropriate to find as a matter of law that the
contract does not cover Weather Plus employees. Dodger The-
atricals, supra; NBC, supra, 318 NLRB at 1169.
I note in this regard that undisputed evidence reveals that the
parties have applied the terms of the Code to employees work-
ing in Burbank, California, although the contract as noted
specifies the city of Los Angeles in order for coverage to be
applied. While Respondent presented testimony that this prac-
tice was the result of an oral agreement by the parties to apply
the Code to Respondent’s operations in Burbank, as it had pre-
viously done in Los Angeles, that evidence does not conclu-
sively refute the Union’s reliance on the parties past practice. It
is true as Respondent argues, that the parties did agree to ex-
tend the Code to Burbank employees, while there was no such
agreement with respect to employees in Secaucus, and the prior
practice involved a union operation, which moved its opera-
tions to another facility, as opposed to the current case, where
Secaucus has been a nonunion operation, since its inception.
However, these arguments and distinctions should be made to
the arbitrator, who will evaluate them, along with the Union’s
contention that the agreement to extend to Code to Burbank
implicitly means that the parties intended the term city in that
contract to refer to “metropolitan area.”
The Union also presented evidence, which it also introduced
in prior proceedings with Respondent where the issue of “geo-
graphical coverage” was litigated, of the Neilsen ratings, which
defines the New York market in the Broadcast industry as in-
cluding Secaucus, New Jersey. Further, a management witness
in the prior UC proceeding, testified that he had previously
worked at WXTV, a Univision affiliated television station that
is located in Secaucus, New Jersey. The witness testified that it
“was right here in New York,” the TV station was “right here in
New York,” and that Secaucus was Univisions’ New York
affiliate.
This evidence as Respondent points out may be not determi-
native, since the Code contains no reference to the use of Neil-

7 West Point Pepperell, supra; Frank N. Smith, supra.
NATIONAL BROADCASTING CO. 99
sen market areas to add meaning to the geographic terms of the
contract, nor any other evidence that the parties intended that
the Neilsen market areas be considered as relevant to any term
in the contract. However, again these are arguments that can
and should be made to the arbitrator, who will consider them as
well as the Union’s argument that industry usage and percep-
tions, does bear upon the appropriate interpretation of the con-
tract.
Respondent has misperceived the role of the ALJ and the
Board in this type of case. It is not for me or the Board to de-
cide whether there is a single-employer relationship between
Respondent and Weather Plus, or whether the contract has been
violated, assuming such a single-employer relationship is
found. These are issues for the arbitrator, since the Board does
not pass on the merits of the Union’s claim that the contract has
been violated. Dodger Theatricals, supra at 969; Certco Dis-
tribution, supra; Shoppers Warehouse, supra.
The Board need only decide whether the information sought
has some “bearing” on these issues, or would be of use to the
Union. Dodger Theatricals, supra; Crowley Marine Services,
329 NLRB 1054, 1060–1062 (1999), enfd. 234 F.3d 1295 (D.C.
Cir. 2000); George Koch Sons, Inc., 295 NLRB 695, 699
(1989), enfd. 950 F.2d 1324 (7th Cir. 1991), Pfizer Inc., 268
NLRB 916, 918–19 (1984).
Therefore, I emphasize that I need not and do not make any
findings on whether or not the contract covers the Weather Plus
employees, assuming that a single-employer relationship is
found between Respondent and Weather Plus. I need only find,
which I do that the Union has established a nonfrivolous posi-
tion that if a single-employer relationship is found to exist be-
tween Respondent and Weather Plus, that a violation of the
contract can be found. Dodger Theatricals, supra at 968.
I note that the Charging Party argues that under the doctrine
of collateral estoppel, Respondent should be barred from litigat-
ing the issue of contract coverages, based on the Board’s prior
decision in National Broadcasting Co., supra, citing Labor
Ready Inc., 332 NLRB 378, 381 fn. 18 (2000). The charging
party argues that the Board there rejected the very same geo-
graphical defense raised by Respondent here, and that therefore
it is precluded from raising this defense once again in this pro-
ceeding. I disagree. While the Charging Party is correct that
Respondent did raise the same geographical defense in that
proceeding, the Board did not reject it or make any finding
concerning the geographic scope of the agreement. While the
Charging Party is also correct that nothing in the Board’s deci-
sion suggested that the Board accepted Respondent’s argument
that CNBC was beyond the scope of the Net Code, there is also
nothing in the decision that suggested that it rejected this con-
tention either. The Board simply did not decide that issue.
Thus, the doctrine of collateral estoppel is inapplicable, as is
Labor Ready cited by the Charging Party.
However, National Broadcasting Co, supra, is relevant as
persuasive authority, and consistent with Dodger Theatricals
and other cases cited above, in holding as here, that the issue of
the geographical scope of the contract, is properly to be deter-
mined by the arbitrator and not the Board. See also Kellogg’s
Snack Co., 344 NLRB 756, 759 (2005) (ALJ affirmed by the
Board, states that “[i]t is not for me to prejudge the outcome of
the arbitration”).
Accordingly, based upon the above analysis and authorities,
I reject Respondent’s principal defense, that the Union’s re-
quest is not relevant, because the Weather Plus employees,
cannot be covered under the contract, even assuming a single-
employer finding vis-á-vis Respondent and Weather Plus.
Respondent also raises several other defenses, some only in
its answer, and others in its brief and answer. It contends that
the Board should defer the instant complaint under the princi-
ples of Collyer Insulated Wire, 192 NLRB 837 (1971). While
Respondent recognizes the Board’s general policy of nondefer-
ral to arbitration in information request cases, Shaw’s Super-
markets, Inc., 339 NLRB 871 (2003); General Dynamics Corp.,
270 NLRB 829, 834–836 (1989), it urges that an exception be
made to these principles here, since the crucial issues here of
contract interpretation, are bound up with the information issue
presented. Respondent cites dissents of Chairman Hurtgen in
Ormet Aluminum Mill Product Corp., 335 NLRB 788 (2001),
as well as Member Bartlett’s concurrence in Phoenix Coca-
Cola Bottling Co., 338 NLRB 498, 498–499 and fn. 2 (2002),
agreeing with Chairman Hurtgen’s dissent in Ormet, supra.
Respondent argues that the Board’s policy of nondeferral in
information cases is rooted in the effort to “avoid the perceived
inefficiency that could result from a two-tiered process involv-
ing an initial arbitration issue and a second arbitration issue on
the merits of the underlying contractual issue.” Shaw’s Super-
markets, supra at 872 (dissenting opinion of Chairman Bat-
tista). Therefore, Respondent contends that here since the arbi-
trator has already been selected, and the contractual coverage
issue is key to resolution of the Union’s claim, that tangling the
issue up in the Board’s process, increases inefficiency and
promotes chances for delay and confusion. Thus, the arbitrator
should be permitted to decide both issues (information and
contract coverage) in one forum, which would prevent waste of
time and resources of the Board, and avoid the necessity of
two-tiered proceedings.
However, it is clear that Respondent has based its arguments
on dissenting or concurring opinions from various Board mem-
bers, which do not represent extant Board law, to which I am
bound. Current law establishes, and I so conclude, that infor-
mation cases are not deferred under Collyer, supra, and I there-
fore reject Respondent’s defense in that regard. Team Clean,
Inc., 348 NLRB 1231 fn. 1 (2006); SBC California, 344 NLRB
243 fn. 3 (2005); Shaw’s Supermarkets, supra.
I would note that a careful examination of the footnotes in
Team Clean, supra, and SBC, supra, reveals that in appropriate
circumstances there could very well be a three-member major-
ity to reconsider the Board’s nondeferral policy in information
cases. (Members Schaumber and Karsanow state in Team
Clean, supra, that they would view the request as encompassed
by the parties arbitration clause, and would defer, but in ab-
sence of a majority to reverse Board precedent, they agreed to
apply current Board precedent. Chairman Battista and
Schaumber in SBC, supra, would have deferred the union’s
request therein, but in the absence of a Board majority to over-
rule current Board, found that the ALJ correctly applied the
Board’s policy of nondeferral in information request cases.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD100
However, I do not believe that the instant case, is one where
the current Board membership would change the Board’s long-
standing precedent in this area. Thus, Chairman Battista’s con-
currence in Team Clean, supra, reveals that in his view, the
fundamental prerequisite for deferral to arbitration is that the
issue be arbitrable. A general arbitration clause covering dis-
putes over interpretation application and compliance with the
provisions of the Agreement, does not contain a provision as to
information. Therefore, in such circumstances Chairman Bat-
tista views the dispute as not arbitrable, and would not defer.
Notably, Members Karsanow, and Schaumber would have
viewed the request in Team Clean to be encompassed by the
arbitration clause and would have deferred. Here, as in Team
Clean, supra, the arbitration clause in the contract does not
contain a contract provision as to information. Contrast that
with SBC, supra, where Chairman Battista would have deferred
to arbitration, since the arbitration clause therein specifically
provided that the arbitration procedures covers information
requests, and that the arbitrator is empowered to rule on such
issues.
Accordingly, it does not appear that a majority of current
Board members exist to reconsider deferral issues of informa-
tion cases on the facts herein. I therefore reaffirm my conclu-
sion to reject Respondent’s deferral request.
Respondent also makes the somewhat related, but analyti-
cally different argument, that the complaint should be dis-
missed on the grounds that the request for information amounts
to improper pretrial discovery prior to arbitration. California
Nurses Assn., 326 NLRB 1362 (1998); Tool & Die Makers
Lodge 78 (Square D. Co.), 224 NLRB 111, 112 (1976); Cook
Paint & Varnish Co., 246 NLRB 646 (1979), enf. denied on
other grounds 648 F.2d 712 (D.C. Cir. 1981). Respondent also
cites the dissenting opinion of Chairman Hurtgen in Ormet
Aluminum, supra; that “Section 8(a)(5) is not to be used as a
device to secure pretrial discovery in arbitration proceedings.”
Chairman Hurtgen emphasized in his dissent that in his view,
the information requests therein was essentially interrogatories,
seeking to draw the Board into what is, in effect, pretrial dis-
covery. The Chairman further argued that allowing pretrial
discovery would unduly clog the process, and that the arbitrator
should be deciding both the information and grievance issues.
However, as in the related issue of Collyer deferral, dis-
cussed above, current law is contrary to Chairman’s dissent in
Ormet, supra, and to Respondent’s position here. As the major-
ity opinion in Ormet states, one of the functions of arbitration
procedures, is to permit the union the opportunity to evaluate
the merits of the grievance, at whatever stage, and perhaps
withdraw it if necessary, once it received the information. Id.
at 789. Thus, the Board majority viewed Chairman Hurtgen’s
dissent, as it would view Respondent’s position here, as inap-
propriate, since it would, “compel the Union to take its griev-
ance all the way to arbitration without providing the opportu-
nity to evaluate the merits of its claims.” Id.
In this regard, Respondent points to the Union’s alleged lack
of diligence in investigating the possible allegation that NBC
was failing to cover Weather Plus employees under the Code.
It contends that although Carpenter testified that he first found
out about Weather Plus in November 2004, based upon state-
ments made by an NBC official at an FCC hearing, and that he
subsequently received reports from staff and from articles in
publications relating to the relationship between NBC and
Weather Plus, he never found out who was providing on-air
services for Weather Plus nor who ultimately provided such on-
air services. Carpenter also conceded that he never learned
whether any staff of NBC provided services for Weather Plus
or whether the employees allegedly approached in Philadelphia
were staff or freelance, and in fact that he had never even
watched the Weather Plus channel. Accordingly, Respondent
argues that despite the “utter lack of diligence over a seven-
month period in investigating a possible allegation that NBC
improperly was failing to cover Weather Plus talent under the
Code, the Union filed a grievance on June 21, 2005.” Respon-
dent further argues that thereafter the Union made no attempt to
conduct any further investigation, or attempts to ask questions
or concerns concerning Weather Plus, but instead served its
arbitration demand on September 1, 2005, and made its infor-
mation request on September 29, less than a month after the
arbitration demand. Thus, Respondent asserts, that the Union
was not attempting to obtain the information, in order to mean-
ingfully consider the merits of the grievance, but was attempt-
ing to engage in prohibited pretrial discovery.
However, I cannot agree with Respondent’s assertion that the
Union’s alleged lack of diligence in investigating the grievance,
transformed the information request into a prohibited example
of pretrial discovery. The Union has, as I have noted above,
more than established a reasonable basis based on objective
facts, for its belief that NBC and Weather Plus are a single
employer, and that such information is relevant to its grievance
that the employees might be covered by the Code. The fact that
the Union might have been more diligent in conducting investi-
gation, and might have been able to uncover more information
on its own is not significant. The Union has satisfied its bur-
den, and Respondent is obligated to respond in a timely fash-
ion, to assist the Union in carrying out its representational re-
sponsibilities.
Furthermore, the Union after filing the grievance, requested
the information and gave Respondent ample opportunity to
furnish the information before filing its unfair labor practice
charge. Cf. WXON-TV, 289 NLRB 615, 617–618 (1988) (the
Board dismisses information allegation, since union filed ULP
charge and information request on the same day. Board con-
cludes that the information request was akin to a discovery
device pursuant to pursuit of unfair labor practice charges
rather than to duties as a collective bargaining representative.).
Respondent although initially indicating that it was in the
process of compiling the information requested, apparently had
a change of heart, and declined to produce the information,
instead deciding to pursue the strategy of bifurcating the arbi-
tration. However, the Union would not and need not agree to
such a procedure. While Respondent is correct, that it is possi-
ble that a bifurcation could save time and expenses, if the arbi-
trator decides that the contract does not cover Weather Plus
employees, that result is uncertain. If the arbitrator rejects Re-
spondent’s geographical defense, and concludes that the
Weather Plus employees working in Secaucus, New Jersey,
would be covered, even if they were employees of Respondent,
NATIONAL BROADCASTING CO. 101
then the single-employer issue would have to be litigated, re-
sulting in a two-tiered arbitration, causing additional delay.
The preferred procedure, which is responsible for the Board’s
refusal to defer information request cases, is for the arbitrator to
decide all issues in one proceeding. Here, that result is not
possible, since the arbitration clause does not provide the arbi-
trator the authority to decide information issues, and the Union
would be prevented from properly representing its constituents,
by forcing it to proceed to the arbitration without the informa-
tion, and not enabling the Union to properly evaluate the merits
of the grievance, before proceeding further into the arbitration.
Ormet Aluminum, supra; NLRB v. Acme Industrial, 385 U.S.
432, 438 (1967). See also Kellogg’s Snacks, supra at 760 (ALJ
rejects respondent’s defense that information is not necessary
because it intends to concede to the arbitrator the practice com-
plained of by the union, and let the arbitrator decide if the prac-
tice is violative of the contract. Judge finds that if the informa-
tion is relevant, disclosure should not depend on the procedural
state of the grievance arbitration process.).8 California Nurses
Assn., supra, cited as authority, for Respondent’s argument that
dismissal is warranted, is clearly distinguishable. That case
provided a limited exception to the Board’s requirement to
supply information, as to names of witnesses it intends to call
and evidence it intends to rely upon at the arbitration proceed-
ing. It is that kind of information, which delves into Respon-
dent’s strategy and preparation in litigating the arbitration, that
the Board viewed as being precluded from disclosure as a sub-
stitute for pretrial discovery.
The information requested here does not request that Re-
spondent supply the Union with names of witnesses it intends
to call, evidence it intends to rely, or any other information that
would delve into Respondent’s litigation strategy at the arbitra-
tion. The information requested by the Union here is “garden
variety” information, relevant to single employer status, which
has been consistently been deemed relevant and ordered to be
turned over to Unions, without being considered “pretrial dis-
covery.” Dodgers Theatrical, supra; NBC, supra; Pulaski Con-
struction Co., 345 931, 936 (2005). Indeed, if this information
request is deemed to be “pretrial discovery,” virtually every
information request could be so characterized. Therefore, the
fact that the Union has actually filed its arbitration request, and
the case has been scheduled for arbitration, does not change the
nature and relevancy of the Union’s information request. Or-
met, supra; Pulaski Construction, supra; Jewish Federation
Council, 306 NLRB 507 fn. 1 (1992) (Union is entitled to in-
formation, even though Union had already decided to process
the grievance to arbitration). See also Kellogg’s Snack, supra.
(ALJ affirmed by Board, required information to be turned
over, even though some of the same information was subpoe-
naed by Union in arbitration proceeding, which subpoena is

8 Also see Schrock Cabinet Co., 339 NLRB 182, 188 (2003) (ALJ,
affirmed by Board, rejects employer’s defense that union is not entitled
to information until arbitration decides whether agreement was
breached, and that assuming arbitration holds against the union, there is
no need to prove damages. ALJ holds that hearings are not bifurcated,
and one hearing is held at which all issues are decided. The union is
entitled to prepare for these hearings.).
enforceable under New Jersey law, where the Employer is lo-
cated.).
Accordingly, I reject Respondent’s defenses and arguments
that the complaint should be dismissed or deferred under Col-
lyer, or that it be dismissed because it is a substitute for pretrial
discovery.
Respondent also argues in its affirmative defense and in its
brief, that the Union’s request is overly broad, confidential, and
proprietary. Respondent points to some of the information
sought, such as personnel files, employment contracts, personal
service agreements, loan out agreements, paychecks, and con-
tracts between Weather Plus and NBC. It argues further that
the information sought is of a sensitive financial nature and
would be of great interest to competitors of Weather Plus. In
this regard, Respondent relies on the alleged concession by
Carpenter that such information could be construed as confi-
dential.
The Board has defined confidential information, which could
in certain circumstances give rise to a valid confidentiality
claim, justifying refusal to turn over information as follows:
Confidential information is limited to a few general catego-
ries: that which would reveal, contrary to promises or reason-
able expectations, highly personal information, such as indi-
vidual medical records or psychological test results; that
which would reveal substantial proprietary information, such
as trade secrets; that which could reasonably be expected to
lead to harassment or retaliation, such as the identity of wit-
nesses; and that which is traditionally privileged, such as
memoranda prepared for pending lawsuits. [Detroit Newspa-
per Agency, 317 NLRB 1071, 1073 (1995).]
Respondent has not adduced sufficient evidence to meet any
of the stringent criteria, established in Detroit Newspaper to
warrant a finding of confidential information. Pulaski Con-
struction, supra at 937.
Respondent’s reliance on Carpenter’s alleged concession that
some of the information sought “could” be considered confi-
dential is hardly sufficient to meet the Board’s definition. More
importantly, Respondent conveniently ignores Carpenter’s
additional response to its attorney’s question about confidenti-
ality, which completely undermines Respondent’s defense in
this regard. Carpenter testified that while it is possible some of
the information could be considered personal or confidential,
“if that objection had been made we would have looked at it
and considered whether we could modify the request or do a
partial request. But we didn’t receive any information relative
to the request. And to my knowledge, no specific knowledge
objection was made about any of these items.” Indeed, in its
information request, the Union specifically asked Respondent
to contact it in order to work out any confidentiality concerns
that Respondent might have about any of the items requested.
It is well settled that confidentiality claims must be timely
raised. The reason a confidentiality claim must be timely raised
is so that the parties can attempt to seek an accommodation of
the employer’s asserted confidentiality concerns.9 Detroit

9 Indeed, the record reflects that in 2001, the Union filed an informa-
tion request with Respondent with respect to similar single-employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD102
Newspaper, supra; Tritac Co., 286 NLRB 522 (1987). An em-
ployer is not relieved of its obligation to turn over relevant
information simply by invoking concerns about confidentiality
but must offer to accommodate both its concern and its bargain-
ing obligations, as is often done by making an offer to release
information conditionally or by placing restrictions on the use
of that information. U.S. Testing, Inc. v. NLRB, 160 F.3d 14,
20 (D.C. Cir. 1998).
Here, Respondent unlike in the prior information request
made by the Union in 2001, made no complaint to the Union
about confidentiality, nor any effort to accommodate its alleged
concerns in these areas. In these circumstances, it is clear that
Respondent failed to timely raise that concern and that defense
must be rejected. Detroit Newspaper, supra; U.S. Testing, su-
pra.
Respondent also alleged in its answer as an affirmative de-
fense that the request was “ambiguous, vague, overbroad and
overly burdensome.” However, Respondent never made such
objections to the Union, and never sought clarification from the
Union in order to narrow the request. In these circumstances,
Respondent’s assertion that the request is burdensome is un-
timely, and must be rejected. Land-O-Sun Dairies, 345 NLRB
1222, 1223 (2005); Pulaski, supra at 936–937; NBC, supra at
1170.
Moreover, Respondent did not introduce any evidence at the
hearing to substantiate its claim that the information request
would be burdensome, i.e., time, resources expenses necessary
to comply with the request. Pulaski, supra; Goodyear Atomic
Corp., 266 NLRB 890, 891 (1983), enfd. 738 F.2d 155 (6th Cir.
1984).
Accordingly, this defense of Respondent must also be re-
jected.
Having rejected all of Respondent’s affirmative defenses, I
conclude, for the reasons detailed above, that Respondent has
violated Section 8(a)(1) and (5) of the Act, by refusing to sup-
ply relevant information to the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. By failing and refusing to provide the Union with informa-
tion in its letter dated, September 29, 2005, Respondent has
violated Section 8(a)(1) and (5) of the Act.

issues vis-á-vis NBC and MSNBC. After Respondent raised some
confidentiality concerns at that time with respect to some of the infor-
mation sought, the parties discussed it and reached a mutually satisfac-
tory accommodation. The information was therefore submitted to the
Union.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, National Broadcasting Company, Inc., New
York, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with American Federa-
tion of Television and Radio Artists, AFL–CIO by refusing to
furnish it with information that it requests which is relevant and
necessary to the Union’s performance of its functions as the
collective-bargaining representative of Respondent’s unit em-
ployees.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Promptly furnish the Union with the information it re-
quested in its letter of September 29, 2005.
(b) Within 14 days after service by the Region, post at its
New York, New York facility, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 29, 2005.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
11 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NATIONAL BROADCASTING CO. 103
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain collectively with American
Federation of Television and Radio Artists, AFL–CIO by refus-
ing to furnish it with information that it requests which is rele-
vant and necessary to the Union’s performance of its functions
as the collective-bargaining representative of our unit employ-
ees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL promptly furnish the Union with the information it
requested in its letter of September 29, 2005.
NATIONAL BROADCASTING COMPANY, INC.