National Broadcasting Company, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 5, 2007

02-CA-037396 (N.L.R.B. Mar. 5, 2007)

JD(NY)–14–07
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
NATIONAL BROADCASTING COMPANY, INC.
and Case No. 2-CA-37396
AMERICAN FEDERATION OF TELEVISION
AND RADIO ARTISTS, AFL-CIO
Joane S. Ian Wong, Esq., New York, N.Y.
for the General Counsel.
Andrew Herzig, Esq. and Stuart Goldstein, Esq.,
New York, N.Y. for the Respondent.
Peter Fuster, Esq., New York, N.Y. and
Cohen, Weiss and Simon, LLP on brief, New York, N.Y.
for the Charging Party.
DECISION
Statement of the Case
STEVEN FISH, Administrative Law Judge. Pursuant to charges filed on December 19,
20051 by the American Federation of Television and Radio Artists, AFL-CIO, herein called
AFTRA or the Union, the Director for Region 2 issued a complaint and Notice of Hearing on
April 28, 2006, alleging that National Broadcasting Company herein called Respondent2 or
NBC, violated Section 8(a)(1) and (5) of the Act, by refusing to supply relevant information to the
Union. The trial was held with respect to the allegations in said Complaint on August 17, 2006.
The Complaint and Answers were amended at the trial in various respects. Briefs3 have been
filed by the parties, and have been carefully considered.
On the entire record, including my observation of the demeanor of the witnesses, I make
the following

1 All dates hereinafter referred to are in 2005, unless otherwise indicated.
2 The charge was filed against NBC Universal. The Complaint alleged 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 General Counsel made the motion to correct the transcript. The motion is
unopposed and is granted as follows: 1. Page 40, Line 16, “included” should be “excluded.” 2.
Page 100, Line 8, “Weather Plus” should be “NBC.” 3. Page 103, Line 17, “waived” should be
“raised.”
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
2
Findings of Fact
I. Jurisdiction and Labor Organization
Respondent is a corporation engaged in the business operating a television
broadcasting network. Annually, Respondent sells media space to advertisers that advertise
national products and its business is national in scope. Respondent, annually derives 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 multi-employer agreement known as the AFTRA National Code of Fair Practice for
Network Television Broadcasting (herein called the Code or the contract). Signatories to this
contract include the major television networks, such as NBC, CBS and ABC, as well as
members of the Alliance of Motion Pictures and Television Producers (AMPT), which is a multi-
employer 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; comedians; masters-of-
ceremonies; quiz masters; disc jockeys; singers; dancers; announcers (other
than staff duties of staff announcers); sportscasters; specialty acts; stunt
persons; background actors’ puppeteers; reporters and analysts (with the
exception of government employees and persons who are engaged occasionally
on a single program basis because they are specialists whose regular
employment 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 including but limited to commentators and analysts
and persons who criticize, review and/or comment on the following: 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 inserts
in network television programs. However, management personnel delivering
editorials are excluded from the coverage of this Code.
Although the Code makes no specific reference to weathercasters, the evidence
discloses that Willard Scott, a well known weathercaster was covered by the Code, when he
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
3
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 Paragraph 75.A. who performs in live, film or
recorded news stories 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, Producer may allow each
local station either or both of the following: (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 after such forty-eight
(48) hour period but within seven (7) days after the news story has first been
made available by Producer.
B. Prior Related Cases
1. National Broadcasting Co., 318 NLRB 1166 (1995).
On September 19, 1995, the Board issued its decision in National Broadcasting Co., 318
NLRB 1166 (1995), affirming the decision of ALJ James Morton, that Respondent, 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 free lance 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
Channel), 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, Washington, 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
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
4
is made available for use on a network basis, and that the language of the staff contract
excluded CNBC from coverage. General Counsel contended that a bona fide question existed
as to whether CNBC and NBC News Channel newspersons were employees of “domestic
network 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 ALJ and the Board, that this arbitration award “disposes of that aspect of
the Union’s reasons for seeking data about CNBC.
The ALJ’s decision, affirmed by the Board, without charge or comment on the basis or
rationale of his decision, found that the Union had demonstrated reliance for its request for the
information, concerning single employer status vis á vis General 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 non-staff persons in Respondent’s employ. The ALJ 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
ALJ concluded that the “record before me does not allow for a finding as a matter of law, that
the Union’s request has no relevance to the Union’s responsibilities as bargaining
representative. Rather, the contentions of the Respondent are more properly matters to be
presented to any arbitration proceeding that might ensue.” 318 NLRB at 1169.
2. National Broadcasting Company, Inc.
Case No. 2-UC-561
In 2001, the Union filed a UC petition in Case No. 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 Secaucus, 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 accretion 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 employer, 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
Respondent’s argument in that regard, as 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
Metropolitan Area.
In that regard, the Union introduced some of the same evidence 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 included a 2001 Nielson rating for the

4 MSNBC was formed in July 1996 as a result of joint venture between Microsoft and NBC.
5 This staff newspersons agreement is no longer in effect, inasmuch as the Union has been
decertified as the collective bargaining representative of Respondent’s employees in that unit.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
5
broadcast industry, which defines the New York market in the industry to include Secaucus,
New Jersey, as well as the fact that the parties have applied contracts to employees employed
in Burbank, California, although 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 anchor whose employment contract said his area of
employment was New York/New Jersey. Finally, testimony at the UC hearing by Roman
Escobar a management witness, reflected that he had previously worked at WXTV, an Univision
affiliated television station that is located in Secaucus, New Jersey. In Escobar’s testimony, he
said “it was right here in New York”, that the television station was “right here in New York”, and
he referred to it as Univisions’s “New York affiliate.”
Notwithstanding the above evidence, and the contentions of the parties with respect to
geographical coverage of the contract, the 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 Director dismissed the petition solely on the grounds that the Union did
not establish that MSNBC Cable anchors share the “requisite overwhelming community of
interest”, with the existing NBC unit to support an accretion finding.
The Director in assessing the factors reluctant to an accretion analysis, considered the
issue of geographic proximity. She concluded that the unit was national in scope, and so the
distance of nine miles between NBC’s Rockefeller Center Studios and MSNBC’s Cable’s
Secaucus base would not seem to weigh against a finding of accretion. She added however,
that the broad geographic sweep of the unit, which span’s the entire country, suggests that the
relative proximity of one unit member to another is not of much significance in this industry. In a
footnote to this discussion, the 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 pre-existing
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 negations that began in late August of 1997, and had asked Respondent at that
time for certain information. The Union informed Respondent that depending on what the
information 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
alternative, the Union told Respondent, that if the facts did not establish 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 information request
to facilitate reaching an agreement. The Union never withdrew its claim concerning MSNBC,
and Respondent provided the Union with the information requested regarding MSNBC Cable by
way of a stipulation between the parties in November of 1999. The Union filed its UC petition on
October 17, 2000.

6 Burbank, California, is a city close to, but separate from the city of Los Angeles.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
6
C. Weather Plus and the Union’s Information request
Weather Plus is a 24 hour television weather service that operates 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. These 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. 50% of the time, national weather is reported, with local
weather comprising the remaining 50% 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 of 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 existing 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 country by digital
storm.” The article quoted an NBC executive, as stating that programming costs would be
minimized, since content was being provided by the existing weather staff at NBC News and
weather desks at local stations. Cavallaro also forwarded 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 meteorological 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. Finally an article
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
7
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 stepping up and recognizing that they have valuable
bandwidth to bring the market places at the transition to digital comes.”
In December of 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 of 2005, Carpenter had information that Weather Plus had launched it 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 superiors 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 Collective Bargaining
Agreement to the services performed by the employees on the “Weather Plus stream.” The
grievance demanded that the Agreement be applied to any employees working on the Weather
Plus program, and that all affected employees 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.
Carpenter testified that he believed that by virtue 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 of broadcast weather programming that was networked 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 September 12, 2005, using Google to find public documents
concerning 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, “we created
NBC Weather Plus to tap the tremendous potential of digital over-the-air broadcast technology
and enable our affiliates to better service their local markets.” The press release also notes that
Jay Ireland is the president 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 turn into NBC Weather
Plus, the network’s distinctive ”L Bar” on the perimeter of the screen provides
current temperatures as well as five-day and hour-by-hour forecasts in real time,
24 hours a day, seven days a week, even during commercials, a first for any
network.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
8
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 article from the
Huston 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 benefit 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 employer might be NBC.
On September 12, 2003, DeChiara left a voice mail message for Andrew Herzig,
Respondent’s attorney, that the Union assumed that there were individuals who were employed
nominally 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 request 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
Respondent, 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 Relations Act, and in
preparation the arbitration of the grievance, AFTRA hereby requests the following
relevant information documents.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
9
Definitions:
For purpose of this information request, “NBC” includes (1) NBC
Universal, (2) NBC’s various divisions and subsidiaries, Including NBC’s
television operations, and (3) NBC’s corporate owners, including General
Electric.
“Broadcast” means sent through the airwaves, as opposed to through a
cable.
Requests:
1. A list of all persons, including but not limited to correspondents and meteorologists,
who perform on-air (meaning, in front of the camera) for programming that appears on Weather
Plus, but no 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 services agreement or loan-out
agreement entered into by or on behalf of each person referred to in Request #1 above.
4. A copy of any resume or corporate bio of each person 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 person 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 provided 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, office 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 referred 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.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
10
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 Directors 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 involved in NBC’s network television
operations, with their titles.
26. A copy of any agreements or other legal documents, between NBC and any other
party or parties, that establish or created Weather Plus, including but not limited to a joint
venture agreement or a limited liability company agreement.
27. A copy of any contracts, leases, guarantees, licensing agreements or other
agreements between NBC and Weather Plus.
28. A copy of any contracts, leases, guarantees, licensing 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 memorializing 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 corporate 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.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
11
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 operations.
37. Any documents showing revenues or profits received by NBC attributable to
Weather Plus.
38. Any business plans for or regarding Weather Plus.
39. All correspondence, including email correspondence, 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 directors, assistant directors, stage managers, production assistants,
camera operators, technicians or any other NBC staff or crew who have performed services for
Weather Plus.
42. Any documents memorializing, setting forth or addressing 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 addressing any payments by
Weather Plus for the services 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 contemplating, concerning, addressing
or memorializing any payment by NBC to any other person or entity to have services 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 institutions at which NBC and Weather
Plus both have accounts.
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 services or goods to both NBC and Weather Plus.
48. Any documents concerning or addressing the locations from which Weather Plus
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
12
broadcasts originate (excluding inserts of local weather reports).
49. Any and all documents showing, either geographically 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 documents by October 31, 2005. If you
believe that any information 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 acknowledging receipt of the request,
and stating that “without waiving any argument that it may assert that such requests are
collectively, or individually irrelevant, unduly burdensome, overly broad or otherwise
objectionable, the company is in the process of preparing its response.” On November 21,
2005, Herzig and DeChiara spoke by phone, and Herzig requested an adjournment 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 improperly pre-arbitration 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
requesting 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 promised, 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 information 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 Company, however, believes that this dispute may be resolved without
such information. To that end, the Company proposes a bifurcation of the
arbitration in which the parties first litigate whether Weather Plus is a program
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
13
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 question 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 expeditious 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 convenience.
Sincerely,
Andrew Herzig
The Union did not agree to the proposal made by Respondent 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 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 defenses, 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 requested information, deferral is
appropriate in this case. Nevertheless, the Company will continue to review the
Union’s information request to determine what, if any, information 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 determine whether to produce same to AFTRA, it has not
produced any of the information requested. After General Counsel rested its case, on the date
of the trial, August 17,2006, Counsel for General Counsel requested on the record that
Respondent produce the information responsive to AFTRA’s information request. Respondent,
by its attorney refused the request, stating that the information is not relevant, and that the
arbitrator should be ruling on the issues.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
14
Respondent presented as a witness, Wendy Freedman, Respondent’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 testified 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 Respondent, 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
notwithstanding the fact that the Code referred to employees employed in the City of Los
Angeles. Freedman testified that “there was an understanding that all the business that was
unionized would stay unionized; that nobody would take the position 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 information that is relevant to its
carrying out its statutory duties and responsibilities in representing employees, which includes
information 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
burden of the requested information. Dodger Theatricals Holdings, 347 NLRB No. 94 (2006),
ALJD slip op. at 14; Reiss Viking, 312 NLRB 622, 625 (1993). A Union has satisfied its burden
when it demonstrates a reasonable belief supported by objective evidence for requesting the
information. Dodger Theatricals, supra, at 14; CEC, supra.
In determining relevancy of requested information, the Board uses a broad, discovery
type standard, wherein the Union’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 responsibilities. Certco Distribution Centers, 346 NLRB No. 102 slip
op. at 2 (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 15; Certco Distribution Center at 2; Shoppers
Warehouse at 259.
In determining whether the Union has made a sufficient demonstration of its reasonable
belief of single employer status, it may rely on hearsay or other types of evidence that may not
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
15
be reliable or accurate. Dodger Theatricals, supra at 15 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 indicating 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 T.V. 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, “we created Weather Plus,”
the president of NBC Universal Television Stations was also the Chairman of the Board of
Weather Plus, Weather Plus 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
evidence can be considered in establishing a “reasonable belief” by the Union. Dodger
Theatricals, supra at 15; Contract Flooring Systems, 344 NLRB No. 117, ALJD slip op. at 4
(2005); Connelton Industries, 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. 471 F.2d 547 (2nd Cir. 1973).
Although Respondent as noted did not contest or dispute the fact that the Union
sustained its burden of establishing a reasonable 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 m. 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 contract. 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 record 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,
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
16
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 necessarily 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 involving Respondent, that the work “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 General Counsel and the Union, and conclude that in these
circumstances, the issue of whether the geographic restrictions in the Code preclude coverage
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 interpreted 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
Theatricals, 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 working 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 practice was the result of an oral agreement by the parties to
apply the Code to Respondent’s operations in Burbank, as it had previously done in Los
Angeles, that evidence does not conclusively refute the Union’s reliance on the parties past
practice. It is true as Respondent argues, that the parties did agree to extend 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 operations to
another facility, as opposed to the current case, where Secaucus has been a non-Union
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 “geographical coverage” was litigated, of the Neilsen ratings,
which defines the New York market in the Broadcast industry as including 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 T.V. station was

7 West Point Pepperell, supra; Frank N. Smith, supra.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
17
“right here in New York,” and that Secaucus was Univisions’s New York affiliate.
This evidence as Respondent points may be not determinative, since the Code contains
no reference to the use of Neilsen 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 perceptions, does bear upon the appropriate interpretation of
the contract.
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 decide 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 17; Certco Distribution, 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, 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 non-frivolous position that if a single employer relationship is found to exist
between Respondent and Weather Plus, that a violation of the contract can be found. Dodger
Theatricals, supra at 18.
I note that the Charging Party argues that under the doctrine of collateral estoppel,
Respondent should be barred from litigating 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 m. 18 (2000). Charging Party argues that the Board there rejected the very same
geographical defense raised by Respondent here, and that therefore it is precluded from raising
this defense once again in this proceeding. I disagree. While 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
Charging Party is also correct that nothing in the Board’s decision 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 contention either. The Board
simply did not decide that issue. Thus, the doctrine of collateral estoppel is inapplicable, as is
Labor Ready cited by 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 determined by the arbitrator
and not the Board. See also Kellogg’s Snack Co., 344 NLRB #91, ALJD slip op. at 4 (2005)
(ALJ affirmed by the Board, states that, “It is not for me to prejudge the outcome of the
arbitration”).
Accordingly, based upon the above analysis and authorities, I reject Respondent’s
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
18
principal defense, that the Union’s request 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
principles of Collyer Insulated Wire, 192 NLRB 837 (1971). While Respondent recognizes the
Board’s general policy of non-deferral to arbitration in information request cases, Shaw’s
Supermarkets Inc., 339 NLRB 871 (2003); General Dynamics, 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 Co., 335 NLRB 788 (2001), as
well as member Bartlett’s concurrence in Phoenix Coca Cola Bottling, 338 NLRB 498, 498-499
and n. 2 (2002) agreeing with Chairman Hurtgen’s dissent in Ormet, supra. Respondent argues
that the Board’s policy of non-deferral in information cases is rooted in the effort to “avoid the
perceived inefficiency that could result from a two-tiered process involving an initial arbitration
issue and a second arbitration issue on the merits of the underlying contractual issue.” Shaw’s
Supermarkets, supra at 872 (Dissenting opinion of Chairman Battista). Therefore, Respondent
contends that here since the arbitrator 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 members, which do not represent extant Board Law, of
which I am bound. Current law establishes, and I so conclude, that information cases are not
deferred under Collyer, and I therefore reject Respondent’s defense in that regard. Team
Clean Inc., 348 NLRB No. 86 fn. 1 (2006); SBC California, 344 NLRB No. 11 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
majority to reconsider the Board’s non-deferral policy in information cases. (Members
Schaumber and Karsinow state in Team Clean that they would view the request as
encompassed by the parties arbitration clause, and would defer, but in absence 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 overrule current Board, found that the ALJ correctly applied the Board’s
policy of non-deferral in information request cases.)
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 concurrence 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 disputes over interpretation application and compliance with the provisions of the
Agreement, does not contain a provision as to information. Therefore in such circumstances
Chairman Battista views the dispute as not arbitrable, and would not defer. Notably, Members
Karsinow, 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.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
19
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 information cases on the facts herein. I therefore reaffirm my
conclusion to reject Respondent’s deferral request.
Respondent also makes the somewhat related, but analytical different argument, that the
complaint should be dismissed on the grounds that the request for information amounts to
improper pre-trial 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 or 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 discovery. 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, discussed above, current law is
contrary to Chairman’s dissent in Ormet, and to Respondent’s position here. As the majority
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 inappropriate,
since it would, “compel the Union to take its grievance all the way to arbitration without providing
the opportunity 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 of 2004, based upon statements 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 Cods, the
Union filed a grievance on June 21, 2005.” Respondent 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 information 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 meaningfully consider the merits of the grievance, but was attempting 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
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
20
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
investigation, and might have been able to uncover more information on its own is not
significant. The Union has satisfied its burden, and Respondent is obligated to respond in a
timely fashion, to assist the Union in carrying out its representational responsibilities.
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. C.F. WXON-TV Inc., 289 NLRB 615, 617-618 (1988) (Board dismisses information
allegation, since Union filed ULP charge and information request on the same day. Board
concludes 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 arbitration. However the
Union would not and need not agree to such a procedure. While Respondent is correct, that it
is possible that a bifurcation could save time and expenses, if the arbitrator decides that the
contract does not cover Weather Plus employees, that result is uncertain. If the arbitrator
rejects Respondent’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, then the single employer issue would have to be litigated, resulting 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
arbitrator 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
information, 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; ALJD slip op. at 5 (ALJ rejects
Respondent’s defense that information is not necessary because it intends to concede to the
arbitrator the practice complained of by the Union, and let the arbitrator decide if the practice is
violative of the contract. Judge finds that if the information is relevant, disclosure should not
depend on the procedural state of the grievance arbitration process.)8 California Nurse
Association, 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 proceeding. It is that kind of information, which delves into Respondent’s
strategy and preparation in litigating the arbitration, that the Board viewed as being precluded
from disclosure as a substitute for pretrial discovery.
The information requested here does not request that Respondent supply the Union with
names of witnesses it intends to call, evidence it intends to rely, or any other information that

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.)
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
21
would delve into Respondent’s litigation strategy at the arbitration. 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 discovery.” Dodgers Theatrical, supra; NBC, supra; Pulaski Construction
Co., 345 #66 ALJD slip op. at 7 (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.
Ormet, supra; Pulaski Construction, supra; Jewish Federation Council, 306 NLRB 307 fn.1
(1992) (Union is entitled to information, 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 subpoenaed by
Union in arbitration proceeding, which subpoena is enforceable under New Jersey law, where
the Employer is located.)
Accordingly, I reject Respondent’s defenses and arguments that the complaint should be
dismissed or deferred under Collyer, 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, pay checks, and contracts 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 confidential.
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 categories that which would
reveal, contrary to promises or reasonable expectations, highly personal
information, such as individual medical records or psychological test results; that
which would reveal substantial proprietary information, such as trade secrets;
that which reasonable be expected to lead to harassment or retaliation, such as
the identity of witnesses; and that which is privileged, such as memoranda
prepared for pending lawsuits. Detroit Newspaper 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
Construction, supra, ALJD slip op. at 8.
Respondent’s reliance on Carpenter’s alleged concession that some of the information
sought “could” be considered confidential is hardly sufficient to meet the Board’s definition.
More importantly, Respondent conveniently ignores Carpenter’s additional response to its
attorney’s question about confidentiality, 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
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
22
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 Newspaper,
supra; Tritac Co., 286 NLRB 522 (1987). An employer 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 bargaining 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, supra.
Respondent also alleged in its answer as an affirmative defense 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
untimely, and must be rejected. Land-O-Sun Dairies, 345 NLRB #101 ALJD slip op. p. 2 (2005);
Pulaski, supra slip op. at 7-8; 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. (1989).
Accordingly, this defense of Respondent must also be rejected.
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
supply 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 information in its letter dated,
September 29, 2005, Respondent has violated Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of Section

9 Indeed, the record reflects that in 2001, the Union filed an information request with
Respondent with respect to similar single employer issues vis á vis NBC and MSNBC. After
Respondent raised some confidentiality concerns at that time with respect to some of the
information sought, the parties discussed it and reached a mutually satisfactory
accommodation. The information was therefore submitted to the Union.
JD(NY)–14–07
5
10
15
20
25
30
35
40
45
50
23
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, NY, its officers,
agents, successors and assigns and representatives, shall
1. Cease and desist from
(a) Refusing to bargain collectively with American Federation 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 employees.
(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 effectuate the policies of the Act.
(a) Promptly furnish the Union with the information it requested 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.” 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
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees 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.
Dated, Washington, D.C., March 5, 2007.
_____________________
Steven Fish
Administrative Law Judge

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(NY)–14–07
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain collectively with American Federation 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 our unit employees.
WE WILL NOT in any like or related manner interfere with, restrain, 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.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614, New York, NY 10278-0104
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (212) 264-0346.