News Group Publications, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 430 (N.L.R.B. 1987)

430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The New York Post Corporation , a Wholly Owned
Subsidiary of News Group Publications, Inc.
and Newspaper Guild of New York, Local 3 of
the Newspaper Guild , AFL-CIO. Cases 2-CA-
17905 and 2-CA-17906
31 March 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 18 July 1983 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent, the General Counsel, and the
Charging Party filed exceptions and supporting
briefs, and the Charging Party filed a brief in
answer to the Respondent 's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this 'proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 as modified, and to adopt the recom-
mended Order as modified.
1 In sec. II,B,6 of his decision , the judge erroneously found that the
Union's request for information about the personnel employed by User
Services Systems, Inc. (USSI) pursuant to USSI's contract with the Re-
spondent was not limited to USSI personnel employed on the Respond-
ent's premises, whereas the Union 's request was so limited . This error
does not affect our decision . In addition, in sec. II,B,3 of his decision, the
judge erroneously found that in response to the Union's request for infor-
mation regarding writers and photographers holding independent, con-
tractor , freelance , or stringer status with the Respondent between 1978
and 1981 , the Respondent provided information for only a 2-month
period, whereas the record reflects that the Respondent provided infor-
mation for 1980 and January 1981. We shall modify the judge's recom-
mended Order accordingly.
2 We agree with the judge's conclusion that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by refusing to provide the Union with sta-
tistical and other information relating to the equal employment opportu-
nities of unit employees and promotions from the bargaining unit. We
further agree with the judge that similar statistical information relating to
nonunit and managerial personnel is relevant for purposes of assessing the
Respondent's record of promoting unit personnel to managerial positions.
With respect to this nonunit information , however, we find that the
Union has not established the relevance of the wage and benefit informa-
tion requested. Additionally, while we agree with the judge that copies
of the reports filed by the Respondent ' with the Equal Employment Op-
portunity Commission are presumptively relevant, we find that he erred
in excluding them on the grounds that they "would appear" to be dupli-
cative of other information the Respondent is obligated to furnish. Thus,
we find that to the extent they are not repetitive of other information the
Respondent is obligated to furnish , these reports must be provided to the
Union.
In addition, while we agree with the judge 's conclusion that the Re-
spondent violated Sec . 8(aX5) and (1) of the Act by failing to provide the
Union with information regarding the kind and extent of advertising
work performed by subcontractors after November 1979, we note that at
the hearing counsel for the General Counsel withdrew those portions of
the complaint alleging that the Respondent unlawfully failed to provide
the amounts billed to it and the information regarding employees in the
Respondent's Creative Services Department, who, but for the subcon-
tracting, would have performed the advertising work. Accordingly, we
shall modify the judge's recommended Order to exclude this information
and to require only that the Respondent provide a list of all promotion
jobs assigned to subcontractors since November 1979 and the hours spent
The judge concluded that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by failing and
refusing to provide the Union with information rel-
evant and necessary to the Union's representation
of bargaining unit employees. In addition, the
judge concluded that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by delaying in fur-
nishing information requested by the Union regard-
ing the Respondent's minority personnel and its
contract with USSI. In reaching the latter conclu-
sion, the judge relied on amendments made to the
complaints at the hearing alleging that the Re-
spondent delayed in providing the Union designat-
ed portions of the information requested by it. For
the following reasons, we conclude that the judge
improperly permitted these amendments to the
complaints, and we reject his conclusion that the
Respondent violated the Act by delaying in fur-
nishing information to the Union.
The complaints in the instant cases issued on 24
and 30 April 1981 and alleged that the Respondent
violated Section 8(a)(5) and (1) of the Act by fail-
ing and refusing between December 1980 and Feb-
ruary 1981 to provide certain enumerated items of
information requested by the Union, including
copies of the Respondent's annual reports to the
Equal Employment Opportunity Commission
(EEOC) and information related to the Respond-
ent's relationship with USSI. In May 1981 the Re-
spondent answered the complaints, denying that it
had violated the Act. On 5 June 1981 the Regional
Director issued an order consolidating the cases for
hearing and setting a hearing date of 26 April 1982.
The Regional Director subsequently issued orders
postponing the hearing until 14 September 1982.
The hearing was held on 14, 15, 16, 17, and 24
September 1982. On the final day of hearing, coun-
sel for the General Counsel moved to amend the
complaint to include an allegation that the Re-
spondent unlawfully delayed furnishing information
on each job. In this regard , the Respondent need not identify the individ-
ual subcontractors, as the Union has not established the relevance of this
information.
Although we agree with the judge that the Respondent is obligated to
provide information regarding personnel employed by USSI at the Re-
spondent's premises, we shall limit the Union's request to exclude the
names and addresses of these individuals, work schedules , and employee
manuals. Further, we shall order the Respondent to provide this informa-
tion only to the extent it has access thereto.
Finally, with regard to the Union 's request for information relating to
the Respondent's use of independent contractors, freelancers, and string-
ers, the judge, relying on Press Democrat Publishing Co., 258 NLRB 1355
(1981), determined that the Union was not entitled to information con-
cerning the amounts paid to these individual nonunit writers. In agreeing
with the judge, we note that, unlike Press Democrat, the Union here argu-
ably does claim to represent the independent contractors , freelancers, and
stringers, and this claim provided the impetus for the information request-
ed. We find, however, that the Union has not demonstrated the relevance
of the individual financial information requested . We therefore shall
adopt the judge's recommended Order in this regard
283 NLRB No. 60
NEW YORK POST CORP. 431
to the Union regarding the Respondent's EEOC re-
ports and its relationship to USSI. The judge per-
mitted the amendments over the Respondent's ob-
jections. On the basis of the amended complaints,
the judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by its delay until
June 1982 in furnishing the Union with a listing of
the Respondent's minority ' employees; their job
classifications, and their employment histories and
by its delay until September 1982 in furnishing the
Union with a copy of the Respondent's contract
with USSI.
Under Section 102.17 of the Board's Rules and
Regulations, an amendment to' a complaint may be
granted "upon such terms as may be deemed just."
As indicated above, counsel for the General Coun-
sel first moved to amend the complaints on 24 Sep-
tember 1982, the last day of-hearing. There is no
explanation why counsel for the General Counsel
waited until the last minute to add this allegation to
the complaints. Further, the amendments were pro-
posed by counsel for the General Counsel at the
conclusion of his case-in-chief and were not formal-
ly offered and ruled by the judge until immediately
before the close of the hearing. Although the
record reveals some discussion from which the Re-
spondent may have earlier surmised that amend-
ments to the complaints might, be proposed, we do
not share the judge's confidence in finding that the
Respondent was not prejudiced by the 11th-hour
amendments.3 Under the circumstances, we find
that the judge erroneously allowed counsel for the
General Counsel to amend the complaints to allege
that the Respondent had unlawfully delayed in fur-
nishing information to the Union. Accordingly, we
dismiss these allegations of the complaints.
In addition, the judge found that the Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to supply the Union with information requested
a Thus this situation differs from that presented in Clark Equipment
Co., 278 NLRB 498 (1986), in which we found that the complaint proper-
ly included allegations not specifically set forth in the charge . In Clark
Equipment, the employer, through the complaint , had notice of the alle-
gations brought against it and could therefore meaningfully prepare its
defense. Here, however , the allegations of delay, unlike the allegations of
refusal to provide information, were not specifically known to the Re-
spondent until the final day of the hearing. Thus,-because the Respondent
did furnish some of the requested information prior to the hearing, and
the complaint did not serve as notice to the Respondent of the additional
allegations of delay, the Respondent may have been misled about the
nature of the evidence required for itsdefense. Because the Respondent
objected to the amendment , and had not ', previously litigated the factual
basis for such a violation, this is not a case in which the General Counsel
was merely seeking to , amend the pleadings to conform to the proof.
Hence 'nothing in this decision affects the precedential value of those
cases, in which the Board and courts have found that violations not al-
leged in either the complaint or a formal amendment of the complaint
could properly be found because they had been fully and fairly litigated
by the parties. See, e g., Alexander's Restaurant v. NLRB, 586 F.2d 1300,
1304 (9th Cir. 1978); Multi--llfedtcal Convalescent & Nursing Center, 225
NLRB 429 and fn. 5 (1976). 1
by it regarding the use of sick leave by the Re-
spondent's employees and the names and absentee
records of individuals placed on the Respondent's
absentee control program. in recommending a
remedy for this conduct, the judge made no provi-
sion for the protection of employee privacy, not-
withstanding the Respondent's contention that the
requested information is confidential and the obvi-
ously sensitive nature of these individually identi-
fied records. Johns-Manville Sales Corp., 252 NLRB
368 (1980); Minnesota Mining & Mfg. Co., 261
NLRB 27 (1982), enfd. sub nom. Oil Workers Local
6-418 v. NLRB, 711 F.2d 348, 363 (D.C. Cir.
1983). Accordingly, we shall modify the judge's
recommended Order to delete from the individual
absentee records, which must be supplied to the
Union, information revealing the identity of the
employees concerned.
ORDER -
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, The New York Post
Corporation, a Wholly Owned Subsidiary of News
Group Publications, Inc., New York, New York,
its officers, agents, successors, and assigns; shall
1. Cease and desist from-
(a) Refusing to bargain collectively with News-
paper Guild of New York, Local 3 of the Newspa-
per Guild, AFL-CIO by refusing on request to
supply relevant information needed by the Guild to
perform its duties as collective-bargaining repre-
sentative of the employees in the unit consisting of
all employees in the Editorial, Business, Advertis-
ing, Circulation, Publication, Mechanical and Main-
tenance Departments, excluding exempt employees
and employees already covered by a union contract
other than that between the Respondent and News-
paper Guild of New York, Local 3 of The News-
paper Guild, AFL-CIO.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Furnish, on request and to the extent not al-
ready furnished, to Newspaper Guild of , New
York, ' Local 3 of The Newspaper Guild, AFL-
CIO the following information, updated, if neces-
sary, to the current period:
(1) Information requested by the Guild in a
memorandum dated 23 February 1981 consisting of
a list of minority personnel by name, job classifica-
tion, and history of promotional record relating to
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
both unit and nonunit employees, excluding wage
and benefit information for nonunit employees.
(2) Reports submitted by the Respondent to the
Equal Employment Opportunity Commission since
1978 to the extent such information is not repetitive
of other information the Respondent is required to
provide.
(3) Information requested by the Guild on 23
February 1981 consisting of the total number of
staffers and the number taking sick leave and the
number of days of sick leave taken in the years
1977, 1979, and 1980 and, with respect to those
years, a breakdown showing the number of occur-
rences of illness, the average length of absences,
the number of persons affected by and the number
of days docked under the terms of article XI, sec-
tion 1, paragraph 2, of the collective-bargaining
agreement, and the names of the individuals placed
on the absentee control program and their individ-
ual absentee records. With respect to such individ-
ual absentee records, the Respondent shall provide
such records only after deleting therefrom informa-
tion identifying the employee concerned. The Re-
spondent, in connection with this request, shall
permit photocopying of pertinent records and the
making of statistical abstracts therefrom.
(4) Information requested by the Guild consisting
of the names and contractual status of writers and
photographers holding independent contractor,
freelance, or stringer status with the Respondent in
1978 and 1979, excluding individual financial infor-
mation.
(5) A list of all promotion jobs assigned to adver-
tising agencies since November 1979 and the hours
spent on each job, except that the Respondent need
not identify the advertising agencies.
(6) Information requested by the Guild on 28
November 1980 consisting of the terms and condi-
tions of the contract under which work was being
performed for the Respondent by Stat-Tab and the
volume of work performed by Stat-Tab pursuant to
its contract with "the Respondent.
(7) Information requested by the Guild on 28
November 1980 consisting of the terms and condi-
tions of the Respondent's contract with User Serv-
ice Systems, Inc. (USSI) and to the extent it has
access thereto the following data concerning all
USSI personnel; past or present, who worked on
the Respondent's premises: their classifications or
job titles and job descriptions, a description of
duties performed by them, their current and past
pay rates, and their fringe benefits, excluding
names and addresses , work schedules, and employ-
ee manuals.
(b) Post at its office and place of business where
notices to employees represented by Newspaper
Guild of New York, Local 3 of The Newspaper
Guild, AFL-CIO in the bargaining unit herein-
above described 'are customarily posted by the Re-
spondent copies of the attached notice marked
"Appendix."4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 2, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including, as de-
scribed above, all places where notices to employ-
ees employed in the appropriate bargaining unit 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 mate-
rial.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Newspaper Guild of New York, Local 3 of The
Newspaper Guild, AFL-CIO by refusing to
supply, on request, relevant information needed by
the Guild to represent the employees covered
under its contract with' us.
WE WILL NOT in any like. or related, manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, furnish the Guild with the
following information:
1. Information requested by the Guild in a
memorandum dated 23 February 1981 consisting of
a list of minority personnel by name, job classifica-
tion, and history of promotional record relating to
both unit and nonunit employees, excluding wage
and benefit information for nonunit employees.
2. Reports submitted to the Equal Employment
Opportunity Commission since 1978, if such infor-
NEW YORK POST CORP.
oration is not repetitive of other information we
must provide.
3. Information requested by the Guild on 23
February 1981 consisting of the total number of
staffers and the number taking sick leave and the
number of days of sick leave taken, in the years
1977, 1979, and 1980 and, with respect to those
years, a breakdown showing the number of occur-
rences of illness, the average length of absences,
the number of persons affected by and the number
of days docked under the terms of article XI, sec-
tion 1, paragraph 2, of the collective-bargaining
agreennent, and the names of the individuals placed
on the absentee control program and their individ-
ual absentee records. In connection with this re-
quest, we will permit the photocopying of perti-
nent records and the making of statistical abstracts
therefrom.
4. Information requested, by the Guild consisting
of the names and contractual status of anyone hold-
ing independent contractor, freelance, or stringer
status with us in 1978 and 1979, excluding individ-
ual financial information.
5. A. list of all promotion jobs assigned to any
advertising agencies since November 1979 and the
hours spent on each job as reflected by billing
statements.
6. Information requested by the Guild on 28 No-
vember 1980 consisting of the terms and,conditions
of the contract under which work was being per-
formed for us by Stat-Tab and the volume of work
performed by Stat-Tab pursuant to its contract
with us.
7. Information requested by the Guild on 28 No-
vember 1980 consisting of the terms and conditions
of our contract with User Services Systems, Inc.,
and the following data -concerning all personnel of
User Services Systems, Inc., past or present, who
worked on our premises: their classifications or job
titles and job descriptions, a description of the
duties performed by them, their current and past
pay rates, and their fringe benefits, but excluding
names and addresses, work schedules, and employ-
ee manuals.
THE NEW YORK POST CORPORATION,
A WHOLLY OWNED SUBSIDIARY OF
NEWS GROUP PUBLICATIONS, INC.
Wendell Shepherd and Waldemar Comas, Esqs., for the
General Counsel.
Howard Squadron, Jonathan Sulds, and Ray Beckerman,
Esgs. (Squadron, Ellenoff, Plesent & Lehrer), of New
York, New York, for the Respondent.
Joel Block; Esq., of New York, New York, for the
Charging Party.
DECISION
433
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
These consolidated proceedings were tried before me on
September 14 to 17 and 24, 1982, at New York, New
York. The charges were filed on March 10, 1981, by the
Newspaper Guild of New York, Local 3, The Newspa-
per Guild, AFL-CIO, or "The Guild." The complaints
and notices of hearing in Cases 2-CA-17906 and 2-CA-
17905 were issued on April 24 and 30, 1981, respectively.
The proceedings were consolidated by order dated June
5, 1981.
The complaint alleges that Respondent, publisher of
the New York Post, violated Section 8(a)(5) and (1) of
the National Labor Relations Art by failing and refusing
to furnish certain information requested by the Guild
and, in certain instances, by procrastination in furnishing
information. The Respondent contended that no viola-
tion of the Act had occurred because in the case of
every request either the information was in fact furnished
or was already in the Guild's possession, or was not le-
gally required to be furnished."
The parties were afforded full opportunity to be heard;
to call, examine and cross-examine witnesses; and to in-
troduce relevant evidence. Posthearing briefs have been
filed on behalf of the General Counsel, the Respondent,
and the Charging Party.
On the entire record and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
There is no issue concerning jurisdiction. The Re-
spondent, The New York Post Corporation, a wholly
owned subsidiary of New Group Publications, Inc.,
admits that it is now and at all material times has been an
1 The Respondent was permitted, on motion, to incorporate in its
answer certain allegations which it denominated as affirmative defenses,
so as to conform the answer to such evidence as may have been intro-
duced during the hearing with respect to the following matters: lack of
joint employer status between Respondent and certain companies to
whom work had been subcontracted (so as to excuse Respondent's failure
to produce information from the files of those companies); confidentiality
of information respecting freelancers and employees of certain companies
to whom work had been subcontracted; lack of good faith on the part of
the Guild in making requests for information; lack of relevancy of infor-
mation sought; the burdensome nature of the requested-for information,
misuse of information by the Guild; lack of delay on the part of the Re-
spondent in furnishing information . To the extent that material evidence
was submitted by the Respondent which tended to establish any of these
contentions, such evidence is discussed in connection with the informa-
tional request to which it is pertinent . Except in certain instances noted
below, no substantial evidence was introduced, by Respondent which
would have tended to establish any of these defenses. The contention that
requests were burdensome is disposed of by the suggestion made in
Safeway Stores, 252 NLRB 1323, 1324 (1980), enfd. 691 F.2d 953 (10th
Cir: 1982):
In short, Respondent 's obligation is to provide the information it has
available, to compile it, or to give'the Union access to the records
from which it can reasonably compile the information. And, if the
production of the information ordered involved substantial costs, the
parties may bargain over the allocation of these costs.
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Guild is
now and at all material times has been a labor organiza-
tion within the meaning of Section 2(5) of the Act. It
was stipulated that News Group , Publications, Inc.,
which owns the New York Post Corporation , is a subsid-
iary of a , corporation known as News America, which
owns publications and other corporations in Texas and
New York and which is itself a subsidiary of News Lim-
ited of Australia, which is a subsidiary of News Corpora-
tion.
II. THE ALLEGED VIOLATIONS OF SECTION 8 (A) (5)
AND (1)
A. Background
The Respondent has had ,-a collective-bargaining rela-
tionship with the Guild since 1935 . The last two collec-
tive-bargaining agreements - were for the periods from
March 31, 1978, through March 30, 1981, and March 31,
1981 , through March 30 , 1984. The bargaining unit is:
All employees in the Editorial , Business, Advertis
ing, Circulation, Publication, Mechanical and Main-
tenance Department , excluding exempt employees
and employees covered by another job contract.
During the period from November 28, 1980, to Febru-
ary 23 , 1981 , Joy Cook, the Guild 's' unit chairperson, ad-
dressed a: series of requests for information ' to Leonard
Arnold, personnel director and industrial relations man-
ager of the Respondent . These are claimed by the Guild
to relate to several broad categories of union activity or
interest . Thus requests for information relating to the Re-
spondent's absentee control program and for copies of
complaints filed with the Equal Employment Opportuni-
ty Commission are claimed to have been made in order
to enable the Union to monitor the performance of the
existing ' contracts. The alleged need 'to ascertain whether
union jurisdiction was being violated is claimed to under-
line a request for data respecting independent contrac-
tors, freelancers , and stringers . The claimed need to as-
certain whether the jobs of the unit were being eroded
and jurisdiction of the Union thereby impaired forms the
basis of requests for information regarding three compa-
nies doing work for Respondent formerly performed by
unit personnel and the nature 'of the work being per-
formed.
- B. Monitoring Functions
1. Request for data relating to equality of
employment opportunities
Article XX, section 1 of the collective-bargaining
agreement prohibits "discriminations in hiring or promo-
tion for reasons of race, creed , color, sex, national origin,
political belief, or membership or activity in the Guild."
It obligates the Respondent to continue to abide by the
principles of nondiscrimination embodied in Federal and
state statutes and to observe "the spirit as well as the
letter', of this provision . . . so that relationships between
the parties may develop constructively."
On February 23, 1981 , the Guild requested information
respecting various Guild-covered employees who are
members of minority groups and copies of some reports
filed by the Respondent with the Equal Employment
Opportunity Commission since 1978, as follows:
Name , Date of Hire, Date of Birth , Sex, Race,
Marital Status , Salary Group , Job Classification,
Rate of Pay, Merit Pay and Experience Level for
all staffers in,Guild jurisdiction , by alphabetical list-
ing. A separate breakdown by wage group showing
the number in each group , age, sex and race or na-
tional origin.
A breakdown of all persons on posted rates in
Groups 1-5B who were hired after June 9, 1978,
their names, date of hire, job classification, salary
rate, experience level, sex, race and age.
The average salary for Post employees.
The number of Post employees in Guild jurisdic-
tion as of February 1, 1981 with a breakdown by
full time, part time, temporary, voucher; by age, sex
and race.
Copies of the Post's EEOC reports filed since
1978.
The Respondent provided a listing of minorities in
Guild jurisdiction by name and job classification and a
history of their promotion records. However, the infor-
mation was not transmitted to the Guild until June 22,
1982 , and was limited to June 1982. None of the other
information requested has been furnished. No data has
been furnished for the previous years . No information
was provided respecting managerial positions.
'The Union contends that the statistical breakdown and
the prior years ' information would have enabled it to as-
certain whether -a pattern of discrimination existed and, if
so, whether conditions in this regard were improving or
deteriorating.
Cook's February 23 memorandum advised the Re-
spondent that the information was requested in order to
facilitate preparations for contract bargaining and arbi-
tration.' Cook testified that she was interested in obtain-
ing the statistical breakdown of the Post's work force be-
cause she had been approached by Guild members who
wished to invoke the grievance machinery for alleged
violations; that their complaints corroborated her person-
al observations ; that she had, perceived a decline in mi-
nority representation in top pay groups in the reporter
category and in the top level responsibilities; that com-
plaints received by her included complaints from black
reporters and from the Chairman of the Human Rights
Committee at the Post ; and that complaints also were re-
ceived relative to, the absence'of minorities and women
in managerial capacities and to their under -representation
in promotions from Guild ranks to managerial positions.
None of these persons filed individual complaints re-
specting their own failure to achieve promotion to man-
agement positions ; their complaints related to their gen-
eral perception of the situation at the Post.
The Respondent has taken the position' that its failure
to comply with the Guild's request - is excused because
the information which it refused to furnish is available to
NEW YORK POST CORP.
the Guild from several other sources, including a roster
of employees previously supplied to it as of February 1,
1981, weekly personnel transaction sheets which have
been sent to the Guild routinely since 1971, weekly
voucher reports (relating to persons hired on a tempo-
rary basis) that the Post has furnished since 1979, and
weekly reports respecting personnel changes at the Post
provided pursuant to the collectivebargaining agree-
ment. Arnold sent Cook a memorandum explaining' in
some detail the means by which the data sought by the
Guild could be extracted from all this material. This
would disclose which personnel had been terminated,
who were full and who were part-time employees, and
whether individuals have received increases due - to
changes in experience levels. However, he, insisted that
the EEOC reports themselves could not be made avail-
able to the Guild because they contain information with
respect to all employees, including those who are not
within the Guild's jurisdiction. It"is well settled that that
fact is an insufficient basis for refusing to furnish the in-
formation requested. The yardstick is not whether the
persons respecting whom information is sought are in the
unit , but whether the information sought is relevant to
the duties of the bargaining representative. This is espe-
cially so when there is suspicion that the bargaining unit
is being eroded.2
After an exchange of memoranda on the subject in
June 1981, the Guild filed a grievance alleging the exist-
ence of an overall pattern of discrimination in the hiring
and promotion of women and employees belonging to
minority groups.
As formulated in the numerous cases which have con-
sidered the problem of the extent and manner in which
disclosure ought to be required, the general principles
are easily stated: A labor organization representing em-
ployees in a bargaining unit is entitled to such informa-
tion from the employer as may be relevant and reason-
ably necessary to the proper performance of its duties,
whether these involve negotiating a collective bargaining
agreement or administering it in an intelligent fashion. It
is sufficient if the desired information is probably or po-
tentially relevant and useful, as judged by a liberal dis-
covery-type standard. The fact that the requested infor-
mation may relate to employers and employees outside
the represented bargaining unit does not, by itself, negate
its relevance. Wage and related information pertaining to
employees in the bargaining unit is presumptively rele-
vant; with respect to other requested data, relevance
must be demonstrated more precisely by reference to the
circumstances of the case. In short , a union is entitled to
discovery-type disclosure, with relevance being pre-
sumed as to unit personnel and required to be demon-
2 Temple-Easte.3;- Inc., 228 NLRB 203 (1977), enf. denied 579 F.2d 932
(5th Cir. 1978) (on due-process grounds unrelated to the point for which
the case is cited), General Electric Co., 199 NLRB 286 (1972) (union had
reason to suspect bargaining unit was being eroded); Curtis-Wright Corp,
145 NLRB 152 (1963), enfd. 347 F.2d 61 (3d Cir. 1965); Hollywood
Brands, 142 NLRB 304 (1963), enfd 324 F.2d 956 (5th Cir. 1963), cert.
denied 377 U.S 923 (1964) (information, sought respecting nonunit em-
ployees at another plant); AGC of California, 242 NLRB 891 (1979), enfd.
as modified 633 F,2d 766 (9th Or. 1980) (full membership roster held not
relevant and order modified to limit disclosure of roster to portions list-
ing relevant membership classifications).
435
strated before disclosure will be directed in other cases.3
The question to be addressed, in every case in which
nonunit personnel are involved, is essentially whether a
sufficient showing of relevance has been made. In practi-
cal terms, this means that the probable need for the in-
formation, in the particular circumstances, will justify the
demand.4
In the present case the unit chairperson has received
complaints from a number of individuals based on their
general perception of what they regarded as violations of
article XX, section 1 of the collective-bargaining agree-
ment and has testified that she is personally aware of cir-
cumstances which she believes may constitute such vio-
lation. The existence of a violation can only be verified if
the Union has the requested information concerning
what minorities are hired, what women are hired, what
pay groups they are in, what types of work they are per-
forming, and how many of them are being promoted to
higher positions. The information respecting unit em-
ployees in these categories is presumptively relevant, and
would be deemed so even in the absence of a nondis-
crimination clause in the contract.5 In any event, con-
trary to Respondent's contention, I find that an excellent
showing has been made that the requested data concern-
ing nonunit employees is needed, for without it the exist-
ence or nonexistence of a pervasive pattern of discrimi-
nation is not likely to be verifiable. Having actually re-
ceived complaints from a number of sources respecting
an overall pattern of discrimination affecting both unit
and nonunit employees, and believing that she has ob-
served it herself, the unit chairperson must have this in-
formation, respecting both unit and nonunit employees,
in order to determine whether a basis exists for filing of
grievances, for the purpose of preparing contract lan-
guage and for the conduct of future negotiations with
the object of terminating such discrimination as may be
found to exist, for the purpose of proceeding with the
correction of violations of the existing agreement, and
for the prosecution of any grievances filed. The list fur-
nished by the Respondent setting forth the names of the
minority employees at the Post is, by itself, ' a singularly
unhelpful document as it provides no basis for compari-
son with prior years. The list is not even dated and was
assumed by the unit chairperson to be a currentllist as of
the time when it was received.
However, insofar' as the actual EEOC reports already
filed are concerned, no apparent need for their disclosure
has been demonstrated.' The statistical data directed to be
3 NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB V. Truitt
Mfg. Co, 351 US 149 (1956), Curtiss-Wright Corp., supra, fn. 2; Westing-
house Electric Corp., 239 NLRB 106 (1978), modified and enfd 648 F.2d
18 (D.C. Or 1980).
4 See, for example, Safeway Stores, 252 NLRB 1323 (1980), enfd. 691
F.2d 953 (10th Or 1982); General Motors Corp., 243 NLRB 186 (1979),
modified and enfd. 648 F.2d 1$ (D.C. Cir. 1980), and Bendix Corp., 242
NLRB 1005 (1979).
s Westinghouse Electric Corp., 239 NLRB 106 (1978), modified and
enfd. sub nom. Electrical Workers IBEW v. NLRB, 648 F.2d 18 (D.C Cir.
1980). (Upheld order for furnishing of compilations of data but modified
so as not to require furmslung of copies of all discrimination complaints
but merely information regarding the alleged bases of complaints filed, in
order to assure confidentiality, In Safeway, fn. 1, supra, production was
directed of copies of complaints or charges with names deleted.)
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made- available would appear to meet the- needs of the
Guild. No necessity for the production of the reports
themselves has been established.6
I am not dissuaded from the conclusion reached herein
by the Respondent's arguments. The fact is that on cross-
examination the Guild's unit chairperson conceded that
she had not received a formal complaint respecting,these
matters in her official capacity as a Guild official. She
had testified convincingly to receipt of numerous infor-
mal complaints regarding discrimination in promotion to
managerial positions, from the unit and the Guild's duty
to - investigate - those circumstances is clearly within its
policing function under the contract. Ina memorandum
to Cook dated ; February 27, 1981, Arnold asserted that
some -of the information requested may be extracted from
information already provided to the Guild. There is no
evidence in the record that the information sought to be
elicited can in fact be extracted from the data previously
furnished and there ;is no evidence to indicate how much
difficulty such extraction will entail. Nevertheless it may
be observed that if the requirement to furnish informa-
tion exists at all, then it must be furnished in comprehen-
sible--and usable form and in such fashion- as commits the
Employer to a representation that such are indeed the
facts of the case. A response to a request for information
which consists -of a lengthy explanation of the manner in
which such information can be extracted from, other
records does not constitute compliance. The Guild is not
required to undertake a burdensome investigation to ex-
tract and distill information from a mass of records when
the same data is readily at hand to the Employer.7 The
Respondent's argument that the Guild may legally obtain
access to the filed EEOC reports is beside the point and
places on the Guild the very burden the law says the
Guild is not, required to assume. The issue is not whether
information is available to the Guild from any particular
source but whether the Post is obligated to furnish it.
The answer is resoundingly in the affirmative to the
extent that the data is in the Post's possession and will
not, by its disclosure, trample on anyone's right of priva-
cy., The instant request did not involve data capable of
easy distillation from the reports already furnished by the
Post in other connections. As for the reports themselves,
Cook testified that recourse to the Equal Employment
Opportunity Commission for copies would have entailed
delay; the Respondent offered no, evidence to the con-
trary.
Accordingly, I find that the Respondent has violated
Section 8(a)(l) and (5) of the Act by its failure to furnish
6 In the Bendix Corp., 242 NLRB 1005 (1979), production of charges
and complaints involving unit employees was directed because it was ex-
pressly found that the union had established the relevance of the charges
and complaints . A similar result was reached in General Motors Corp., 243
NLRB 186 (1979), enfd. 648.17.2d 18 (D.C. Cir 1980)
7 Kroger Co., 226 NLRB 512 (1976) (note comment by Board that
when relevant request for information is received , employer's obligation
is to provide it or set forth adequate reasons why it is unable to do so),
Borden, Inc., 235 NLRB,982, 983 (1978), enfd. in relevant part 600 F.2d
313 (1st Cw, 1979), Bel Air Bowl, 247 NLRB 6, 11 (1980), enfd. mem. 631
F.2d 736 (7th Cir. 1980).
6 New York Times Co., 265 NLRB 353 (1982) (the fact that employees
may have -the information and be willing to divulge it does not relieve
the employer of its responsibilities under the Act).
a list of minorities in its jurisdiction by name, job, classifi-
cation, and history of promotional record until June
1982, approximately , 1 year and . 4 months after it had
been requested; by failing - to furnish the other informa-
tion requested in the memorandum of February 23, 1981,
from Jay Cook to Leonard Arnold ; by failure to furnish
the information for both unit and-,nonunit employees;
with the exception therefrom of^the request for copies of
the Post EEOC - reports filed since 1978 . I find that the
Respondent - did not violate the Act by refusing to fur-
nish copies of the EEOC reports filed since 1978. An al-
legation added to the complaint at the hearing alleging
violation of the Act by reason of the Respondent 's delay
in furnishing the reports accordingly also falls.
2. Information respecting sick leave and the
absentee control program
,On February 23, 1981 , the -Guild requested information
respecting the total number • of staffers and the number
taking sick leave, and the number of days of sick leave
taken in the years 1977, 1979, and 1980; 9 and, with re-
spect to those years , a breakdown showing the number
of occurrences of illness, the average length of absences,
the number of persons affected by and the number of
days docked under the terms of paragraph 2, section 1,
article XI of the collective-bargaining agreement. The
names of the individuals placed on the absentee control
program and their individual absentee records. The Re-
spondent furnished the figures for the number of persons
and the number of days docked because of six or more
occasions of illness during the period from March 29,
1979 , to March 19, 1980 , and from March 20, 1980,- to
February 27, -1981 , together with the names of 10 indi-
viduals who had been placed on the absentee control
program for the year commencing September 1, 1980,
and ending , August 31, 1 0
The pertinent provision of the collective-bargaining
agreement , article XI, section 1 , paragraph 2, ,which was
first negotiated at the New York Daily News and- then
adopted in the New York Post contract of 1978 , entails
an amendment of the sick leave schedule. Employees
who are absent because of illness or accident 'are not re-
quired to make up time lost- but receive their regular
salary in accordance_ with the schedule . Themodificatio n
is as follows: - -
Notwithstanding the foregoing schedule, an em-
ployee ' who in any period of 12 months, beginning
with the first day of any absence due to illness or
accident, is absent on more'than five occasions, and
who has not exhausted his paid sick leave entitle-
ment, shall not be paid for the first two days of the
sixth and any subsequent period of an absence
during such twelve months period unless hospital-
ized during such additional absence. This provision
shall be effective March 20, 1979.
9 No request was made for this information for the year 1978 because
of the existence of an anomalous situation during that year.
10 An additional request by the Guild for information _ respecting the
reasons for the absences was withdrawn.
NEW YORK POST CORP.
In the event of excessive absences during any year an
employee is placed on the absentee control program.
This means that he must present a medical certificate for
each illness or day of absence or alternatively charge the
day to vacation entitlement or to optional holiday. If nei-
ther option is elected he is not paid for the day. The
review period under the absentee control program runs
from September 1 to August 31- of each year. An em-
ployee's name is removed from the list if he reduces the
number of absences during - the following year to no
more than six occasions of illness. It is to be noted that
specific provision is made for the case of recurring ill-
ness : if an employee's physician attests that an illness is
of a recurring nature, the employee need not furnish a
certificate for each day of absence but is obligated to
continue course of treatment and furnish a certificate at-
testing to each visit to his physician.
The Guild claims it sought the information requested
for the purpose of negotiating the elimination or modifi-
cation of the sick leave provisions that had been inserted
in the 1978 contracts. The Guild attempted to delete the
provision during the collective-bargaining negotiations
with the Respondent in 1981. However, bargaining was
concluded without obtaining management agreement to
such deletion because management took the, position that
the overall program, consisting of the sick leave entitle-
ment, the absentee control program, and the 1978 provi-
sions for docking employees after excessive absences,
was effective in curbing chronic abuse, especially on
Friday afternoons and Monday mornings. The Guild rep-
resentative specifically advised- the representatives of
management that the sick leave information requests con-
tinue to be pending notwithstanding the conclusion of
the 1981 negotiations and that the Guild expected to
press the issue again in 1984.
The Guild asserts that it needs the information in
order to establish that the provision does not protect the
Employer from chronic abuse of sick leave and yet actu-
ally penalizes employees who work when they, are ill in
order to complete specific assignments because if they
suffer lapses they are docked under these provisions,
with the result that they are better off if they do not
come into work and have one continuous period of ill-
ness even if important work remains unfinished. The
Guild contends that the figures for the years requested
would provide a comparison which would show the true
impact of the provisions; that the individual absentee
records would show that the employees were being
placed in a position analogous to double jeopardy, being
required to present medical certificate in order to, obtain
sick leave and then being docked thereafter even if they
possess a certificate, and that employees who are not
abusing the program are penalized unfairly because the
data respecting chronic abusers is not excluded from
consideration by the Post in assessing the impact of the
docking provisions. Whether the Guild is right or wrong
in, its contentions, the advancement of these points is
clearly within the scope of its duties and obligations as
the collective-bargaining representative of the ' unit em-
ployees. As its contentions are not frivolous, the Guild is
entitled to the information which would tend to support
(or undermine) its position. The statistical information re-
437
quested is precisely what the Guild needed for the pur-
pose of eliminating discrepancies between Guild and Post
figures for'the' size of the unit and the number of staffers
and for an analysis of the individual absentee records
that it was hoped would support the Guild's contention
that major abuses of sick leave by a few persons should
not be counted in assessing the impact of the sick leave
provisions on the remainder of the unit. To the extent
that information related to members of the unit, it was
presumptively relevant and to the extent that it related to
other employees the relevance was clearly shown.
The information requests, as communicated to Arnold,
were phrased only in terms of unit, members, but the re-
sponse was -not based on any such limitation. The Post
took the position that the requested information was con-
fidential -and notified the Guild that its representatives
could examine the records but would not be permitted to
photocopy them or gather statistical , informatiion from
them.
The Respondent was only willing to provide informa-
tion as to the number of persons affected by the docking
provision, the number who were docked, the total
number of days they were docked during the period
from March 1979 to March 1980 and from then until
March 1981, and a list of individuals who were on the
absentee control program. The Respondent asserted that
this information was provided but Cook denied having
ever received the list of employees on the absentee con-
trol program-
I find it difficult to believe that the Respondent was
acting in good faith in this regard, and I believe the Re-
spondent simply determined not to make the requested
disclosure. The Respondent imposed restrictions 'solely
on the basis of the purported confidentiality of the infor-
mation contained in the sick leave records, yet inconsist-
ently authorized the Guild to send representatives to ex-
amine the records . It persisted in this contradictory
stance even after Cook notified Arnold that she was
seeking only aggregate totals and would be content to
accept copies of the records with the confidential infor-
mation blocked, out. Thereupon the claim of confidential-
ity was extended to the aggregate totals and the break-
down by occurrences, matters whose disclosure could
not possibly have violated anyone's right to confidential
treatment of their records. By refusing permission to
photocopy records, the Respondent denied to the Guild
what has been referred to as "the now nearly universal
use of photocopies in, business affairs."i1 Its refusal to
allow the Guild, representatives to take copies with the
confidential information blocked out demonstrates the in-
sincerity of its position. The Respondent' s insistence on
imposing a hardship on the Guild makes excusable the
Guild's failure to accept the invitation to send people to
the personnel office to sit making extensive notes of the
contents of the records. In situations where confidential-
ity claims have been upheld, the reasonableness of the
concern for secrecy was apparent.12
" Communications Workers Local 1051 (American Telephone) Y. NLRB,
644 F 2d 923, 929 (1st Cir. 1981), enfg. 250 NLRB 47 (1980).
12 See Detroit Edison Co. v NLRB, 440 U.S. 301'(1979)
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The point is significant, for Cook's protestations of ne-
cessity for the data lose some of their effectiveness in
light of her failure to" avail herself of the opportunity
given to her by Arnold to inspect the records; on Febru-
ary 23, 1981, he advised her that the balance of the infor-
mation sought was available for inspection. Because ag-
gregate totals were sought, the photocopying limitation
would not necessarily have created a severe problem.
Even the availability of the records for investigation in
convenient form was not controverted:' an absentee
record is maintained for 'each employee by the personnel
department ' in a three-ring looseleaf binder and the
records are available for inspection by both the employ-
ee and the Guild. Both 'Cook and other officials of the
Guild have availed themselves of these records on other
occasions in the past. Furthermore a copy, of the list -of
employees on the absentee control program is routinely
furnished to, the Guild annually, when the list is made up
in September of each year. Nancy Lambert, one of Re-
spondent's record custodians, testified that anyone with
access to the absentee records for all the employees for
the years 1977 through 1982 could determine the pattern
of absences simply by looking at the absentee sheet for
each employee for each of the 5 years., This does not
help the Respondent, however, in view of the refusal to
permit the gathering of statistical information, and it was
conceded that no copying of the absentee records was
permitted.
In its brief the Respondent asserts that access to the
records having been offered, the burden was on the
Union to show the inadequacy of the offer. I find, that
the Union has done precisely that by testimony, uncon-
troverted, that it was permitted neither to make copies
nor to make statistical abstracts of the information' being
made available. Under such limitations the information
was not really made available. 13
'Accordingly, I find that the Respondent violated Sec-
tion 8(a)(1) and -(5) of the Act by refusing to make the
requested information available under such circumstances
as to allow the Guild to make copies of information or to
collate and codify the results of-the examination. 14 ,
At the hearing, the General Counsel moved to amend
the -complaint to allege violation of the -Act by reason of
the Respondent's delay in furnishing the Guild with the
information requested by it. To the extent that informa-
1a In United Aircraft Corp., 192 NLRB 382, 389 (1971), modified on
other grounds 543 F.2d 422 (2d Cir. 1975), it was held that an employer
fulfilled its obligation by making information available not necessarily in
the exact form or on the exact times requested , at a reasonable time, and
in a reasonable place with an opportunity to make copies if so desired. In
short, there are limitations to the burden which may be placed on the
Employer, but there is no doubt about the Union's right to make copies
and to take down information to codify the results of the exammation of
the records, without which right there is no point in examining them at
all
14 It is apparent from the testimony of both sides and the manner in
which'they approached the question that it was clearly understood that
the Guild wanted the total number of staffers and the number taking sick
leave and the number of days for the years 1979, 1980, and 1981 of unit
members and nonunion members. The Guild memorandum to Arnold,
however, referred only to staffers who are members of the Guild. In her
testimony , however, Cook testified that what was asked for was the total
number of staffers and the number taking sick leave for the year stated,
without limitation to unit members . There is nothing m the record to in-
dicate that Arnold ever understood the request differently
tion has been furnished, but only after a protracted
delay, I find a ,separate violation of the Act.
3. Independent contractors, freelancers, and
stringers
The Guild requested "detailed information regarding
the names, contractual status and fees and all compensa-
tion for anyone holding independent contractor, free-
lance or stringer status with the New York Post in 1978,
1979, 1980 and 1981." In response, the Respondent fur-
nished a list of the names of individuals whose work ap-
peared in the Post during a 2-month period. None of the
other information was provided, though initially the Re-
spondent agreed to provide the requested information for
1980 and for the month of January 1981 exclusive of the
monetary information.
The stated objective of this request by the Guild was
the preparation of the contract bargaining positions and
preparation for pending arbitrations. The issue of Re-
spondent's use of independent contractors, freelancers,
and stringers has been a source of dispute between the
Guild and the Post since 1977. There can be little ques-
tion that the Guild needs the information' requested in
order to determine the nature of the business relationship
between the Respondent and these people or entities. To
support its contention that the Respondent violated the
collective-bargaining agreement by assigning unit work
to nonbargaining unit individuals, the Guild'must be able
to show that they would be deemed includable in the
unit. The Guild is therefore entitled to the information
requested with the exception of the 'amount of the indi-
vidual compensation. _
The Guild ' argues that the determination of which, of
the nonunit individuals it would seek to assert jurisdic-
tion over at an arbitration depends on their contractual
status and the fees and compensation paid to them. It is
contended that these are the guidelines mandated by the
rationale employed in 'the decisions of earlier arbitrations
involving the columnist, Murray Kempton, and the car-
toonists, Shain and Day. However, it has been held spe-
cifically that only information respecting the aggregate
amount paid, to independent contractors, freelancers, and
stringers for editorial products is required to be disclosed
and not the, individual personal financial arrangements
entered into between the publisher and the contributors.
The amounts paid to individual nonunit writers are re-
quired to be kept confidential out of concern for - the
right to privacy of those persons who are not represent-
ed by the Union.15 Furthermore, the arbitration awards
specifically negate the relevance of the compensation
paid to the individual writers. The compensation figures
were not supplied at all in the Shain-Day arbitration and
were expressly stated to be insignificant, in and of them-
selves, in the Kempton decision, where' they came into
play only to prove another point. Both decisions profess
to be based on criteria used by the National Labor Rela-
tions Board. In the Kempton arbitration decision, it was
stated: -
15 Press Democrat Publishing Co., 258 NLRB 1355 (1981).
NEW YORK POST CORP. 439
The criteria used by the NLRB to determine if an
employment relationship exists are the degree of
control and direction that the Employer has a right
to exercise over the objective of the work, to be
done and over , the means by which that objective is
accomplished.
The Shain and Day arbitration award was based en-
tirely on the degree of direction and control exercised by
the Post over the work of those two cartoonists. They
were both held to be employees : Murray Kempton was
held not to be included in the collective-bargaining unit
on the basis of considerations such as the lack of control
over the contents of his column or the manner in which
they were written, his freedom regarding hours and
work places (he had an office at the Post), and the
uniqueness of the work he contracted to supply . The ar-
bitrator specifically noted that method of payment is not
the basic criterion and that there is not necessarily a rela-
tionship between the form of payment and status. In
Kempton's case the amount of compensation was consid-
ered only to the extent that its size was deemed a meas-
ure of his independence , insofar as it put him in a posi-
tion to negotiate a sale of columns. The transaction was
in the nature of a business deal,,rather than a sale of his
time measured by hours . It was only in respect to the
manner in which the size of his salary reflected the basic
nature of his dealings with the Post that it was consid-
ered. The number of dollars in itself was not considered
meaningful.'6
The arbitration awards and earlier rulings of the Board
thus make it clear that the amount of compensation paid
to the individual contributors is not pertinent. The Post
is correct in its contention that lack of information re-
garding individual compensation does not at all affect the
ability of the Guild to process ' the grievance . The Post
was therefore not required to furnish data respecting in-
dividual compensation . However, all of the other infor-
mation should have been provided . The list of individ-
uals whose work appeared during a 2 -month period was
a patent failure to'comply with'a legitimate request. The
failure to do so violated Section 8(a)(1) and (5) of.=the
Act.
Respondent 's counsel argues in the posthearing brief
that because the request ' involves nonbargaining unit
data, the burden is on the Guild to show the specific uses
to which the information would be put , it being contend-
ed that the Guild had failed to do so by "mere assertion"
that the information was sought to arbitrate certain cases.
However, I find that this is a sufficiently specific reason
and was a proper basis for the informational request.17
16 The arbitrator noted:
The way a man is paid is not the basic criterion . We have already
noted that the NLRB uses control and direction rather than pay or
fringe benefits as its criteria , reflecting a recognition that the form of
payment bears no necessary relationship to the status....
The evidence leaves no doubt that Kempton was selling columns
rather than hours of work and that his columns are so unique and
desirable - that he was compensated far above the ordinary. He has
reached a level where he must be deemed capable of making a busi-
nessdeal to sell his product as a principal rather than his work as an
employee.
IT Boeing Co., 182 NLRB 421 (1970) (information sought in order to
reach decision whether to proceed to arbitration).
In addition, the Guild asserted that the, data would be
used to determine which of , the nonunit individuals the
Guild would seek to assert jurisdiction over at arbitra-
tion : Thus two good reasons have been stated.
4. Lerner-King-associates
The Guild requested a list of all promotion jobs as-
signed to Lerner -King Associates, an advertising firth,
and to any other advertising firms since November 1979;
the hours spent on each job as reflected , by the firm's
billing statements , and the amounts billed to the Post; a
list from January 1, 1977 , to current date of all personnel
in the creative services, department showing their job
classifications , dates of_ hire, and (if applicable) termina-
tion.
The Post made no, response to this demand, and in this
proceeding defends its failure - to do so on the basis of the
alleged failure on the part of the Guild to advise the -Post
of the precise use to which -the information would be
put. However,, it is beyond question that, as the Guild
contends, a jurisdictional dispute had existed since 1980
with respect to the entire matter of subcontracting. The
use to which the information would be put was obvious
from the nature of the information sought . The need' for
it was unmistakable if the Guild was -to make any com-
parison between the work contracted out and the work
performed by the bargaining unit for the purpose-of de-
termining if its jurisdiction was being eroded . An inquiry
into the amount of compensation being diverted from
unit members would be an essential part of such an in-
vestigation , as would be the time data and the other in-
formation requested . Intelligent assessment of the impact
of subcontracting requires knowledge of the number of
manhours of work performed by the outside contractor.
Because a grievance is now pending for possible viola-
tion - of article I, section 4 of the collective -bargaining
agreement and, in addition , the information will be rele-
vant in a forthcoming arbitration, it is plain that the data
is, relevant to the policing of the contract and the ,per-
formance of the Guild's duties under it.
A showing that work is in fact being subcontracted
out and that reasonable
,
basis exists for believing that the
work of the bargaining unit is being thereby reduced
adequately demonstrates a specific purpose in requesting
the information . The Guild's objective in requesting 'sup-
porting data is self-evident18 and the Respondent's con-
tention that the Post was never advised of the intended
use of the information 'requested must be regarded as
specious . The Guild is not obligated to accept `the Re-
spondent's assurances that its jurisdiction has not been in-
vaded, but has the right to determine such matters for
itself and, indeed, would be derelict in the performance
is Subcontracting information must be furnished when it will aid the
Guild either in negotiations or in discharging its responsibilities to the
unit, as in this instance . ACF Industies, 234 NLRB 1063 (1978), enfd. in
relevant part 596 F.2d 1344, 1353 (8th Cir. 1979). As to the current re-
quirement for furnishing of such information when it is not unduly bur-
densome to the Respondent , see the statement of the later view of the
Board in Safeway Stores, supra, fn. I
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of its duties if it failed to do so.19 It is entitled to_ such
information as it needs to ascertain whether there have
been breaches of the contract.20 Thus, an adequate
showing has been made that the data is potentially rele-
vant to the policing of the contract and will help deter-
mine the scope of the work being subcontracted and
compensation due bargaining unit members for work re-
moved from their jurisdiction-all of this in aid of a
grievance proceeding now .pending. It therefore must be
provided. The result' would not be different if no griev-
ance were pending. 21
5. Stat-Tab
The Guild commenced an arbitration proceeding
against the Post for violation of its jurisdiction under ar-
ticle I, section 4 of the collective-bargaining agreement.
The Post had subcontracted keypunch and other data
processing -work to a company known as Stat-Tab. On
November 28, 1980, the Guild requested information
about the terms and conditions of the Post (or News
America) contract with Stat-Tab and the volume of
work performed by Stat-Tab pursuant to it. In addition,
information was requested respecting Stat-Tab's employ-
ees (without limitation to those involved in the Post's
work): name and address, date of hire, date of termina-
tion, classification or job title, duties actually performed,
the names of immediate and other supervisors, and data
relating to pay raises, starting pay, and changes in rates
of pay and fringe benefits, including vacation, holidays,
sick leave, overtime, pension, and severance. The Guild
also inquired about work schedules, employee manuals,
and job classifications and descriptions.
As in the Lerner-King situation and the SSI situation
(discussed below), the Guild asserted that it seeks to' de-
le Cf. Rockwell-Standard Corp., 166 NLRB 124, 131 (1967), enfd. 410
F.2d 953 (6th Cir: 1969):
Certainly , it was not unreasonable for the Union to suspect that
more work may have been transferred ... than the Respondent ad-
mitted, and the Union had the right to know if, and to what extent,
its suspicion might have some foundation." In Doubarn Sheet Metal,
234 NLRB 821, 824 (1979), it was noted that a union "need not
accept Respondent's conclusionary statements " on the issue of
whether a single-employer relationship existed between the employer
and the company to which it was subcontracting work.
20 NLRB v. Desigdcraft Jewel Industries, 254 NLRB 791, 797 (1981),
enfd . 675 F.2d 493 (2d Cir. 1982).
21 Boeing Co, 182 NLRB 421, 426 (1970) Nothing contained in S, & W
Motor Lines v. NLRB, 621 F.2d 598 (4th Or. 1980), or Atlas Metal Parts
Co., 252 NLRB 205 (1980), enfd. as modified 660 F.2d 304 (7th Cir.
1981), relied on by the Respondent , impels a different conclusion under
the circumstances of the present case . S & W Motor Lines is concerned
with a situation in which the court found that the union had asserted no
reason why it needed the information demanded relative to'nonbargam-
ing unit employees and had made no demonstration to the employer of
the need to know , under circumstances involving deep suspicion as to the
true purposes for which the union sought the information requested. The
request was made at a time when a prior collective -bargaining agreement
had 'expired and negotiations for a new one were not proceeding well.
The court found that the union was inquiring about "persons who were
not represented by the union and as to whom, absent special circum-
stances, the union has no business inquiring " In Atlas Metal Parts the
court rejected what it characterized as a Board position that information
was' presumptively relevant and prima facie required to be produced on
the'ground that information concerning subcontracting "is so intrinsic to
the employer and employee core relationship as to make it presumptively
relevant in all cases." The Guild in the present case relies on no presump-
tion but demonstrates the relevance and need for the information
termine whether work previously performed by unit
members has been subcontracted and, if so, whether such
subcontracting is an ongoing jurisdictional violation, and
that the information is needed for arbitration and to de-
termine which job levels have sustained the most injury.
The Post has refused to comply with this request in
any respect. The Post's argument is that it is not obligat-
ed=to make disclosure because the burden of showing the
relevance of the information requested is not met by the
Guild's bare assertion that its jurisdiction has been invad-
ed. Cases which I have already cited effectively disposed
of this argument.
The Post also asserted that the information requested
is already in the possession of the Guild, an argument
which is somewhat difficult to understand in view of the
fact that the contracts are between Stat-Tab and the Post
or News America and the Post disclaims knowledge of
most of the information. The fact that the issue has been
between the' parties is documented in the memoranda
which have passed between them and was testified to by
Cook. Both parties appear to have tried to make a
record.
In a memorandum to Arnold dated November 28,
1980, Cook mentioned that the subcontracting of key-
punch work to Stat-Tab had been discussed on numerous
occasions and in a formal grievance session on February
5, 1980 . In a memorandum to Arnold dated February 8,
1980, Cook mentioned that "we touched on this issue
briefly in the grievance meeting." On December 4, 1980,
Arnold sent Cook a memorandum denying that he had
any record that the matter had ever been discussed at the
grievance meeting of February 5, 1980, or at any prior
meeting.
In Boeing Co., 182 NLRB 121 (1970), it was held that
a union is entitled to information necessary to enable it
intelligently to evaluate the grievances filed; providing
information which advances the process of arbitration by
enabling the Union to evaluate the merits of claims and
prove those which are meritorious prevents overburden-
ing of the arbitral system. It is the Union's responsibility
to administer the collective-bargaining agreement, detect
infractions of its terms, and intelligently counsel the em-
ployees whom it represents. Its right to the information
which it needs to do so does not depend on the existence
of a pending formal grievance. The potential -value of the
information is what is significant. Board policy favors
disclosure of wage and related information even without
apparent direct relationship to negotiation or administra-
tion of the collective-bargaining agreement.22 When
22 Whitin Machine Works, 108 NLRB 1537, 1541 (1954), enfd. 217 F.2d
593.(4th Cir. 1954), cert. denied 349 U . S. 905 (1955). Where an employer
has obligated itself not to subcontract maintenance work when to do so
would have the effect of displacing maintenance employees and the union
has cause to believe that the employer has in fact subcontracted such
work at a time when employees are being displaced from their jobs as
surplus labor , the information sought is clearly relevant and reasonably
necessary. Boeing Co., 182 NLRB 421, 426 (1970). Though Boeing did not
determine the extent to which the Union may be justified in pursuing an
examination of the Respondent's apparent subcontracting activities, be-
cause it was not necessary for the purposes of that case, it reiterated the
general rule that the information which a union may request is subject to
a "discovery-type standard."
NEW YORK POST CORP. 441
there are grounds for belief that Respondent is subcon-
tracting work while employees are being displaced as
surplus labor, the issues are specific enough to justify the
request for information in order to determine whether
the Union should file grievance , and thereafter to permit
it to evaluate intelligently the grievances filed and to at-
tempt to resolve meritorious claims prior to arbitration.
Securing the information will patently facilitate the in-
quiry and therefore it must be supplied.
Respondent's reliance on NLRB v. A. S. Abell Co., 624
F.2d 506 (4th Cir. 1980), is misplaced inasmuch as that
case merely holds that proof that the Union has misused
information previously furnished rebuts a presumption of
relevance of information requested with respect to mem-
bers of the Union , requiring the Union thereafter to es-
tablish the relevance of the information sought to the
performance of its duties as the employees ' bargaining
representative . In the present case there is, on one hand,
no credible evidence that any information furnished to
the Guild at any time has been misused and, on the other
hand, the Guild has clearly established the relevance of
the information requested to its obligations and duties as
collective-bargaining representative . It is thus clearly en-
titled to information respecting the terms and conditions
of the Post or News America contract with Stat-Tab,
and to the other data requested , except information re-
garding "all Stat-Tab personnel ," as to which the Re-
spondent introduced evidence that it does not have the
information . The Guild presented no evidence that the
Post has or should have such information respecting
Stat-Tab's personnel . Unlike the situation of User Serv-
ices Systems, Inc., discussed hereinafter, which had per-
sonnel directly on the premises , there is no evidence that
Stat-Tab personnel worked on the Post premises; on the
contrary it appears that the work was done off the prem-
ises at Stat-Tab. Under the circumstances, therefore, the
information respecting "all Stat-Tab personnel," some of
whom obviously may not be involved at all with New
York Post work, is excessive.23
6. User Services Systems, Inc.
User Services Systems, Inc. (USSI) was an in-house
subcontractor which supplied five computer operators
who performed computer services at the premises of the
Post at 210 South Street, New York City, under the su-
pervision of a USSI operations manager named Barbells.
They worked in space assigned to them by the Post.
Arnold, in a memorandum to Cook dated December 5,
1980, declared,-"Their Function is in relation to comput-
er operations for News America and its subsidiaries
based in New York."
On November 28, 1980, the Guild requested the fol-
lowing information for all USSI personnel who had
worked at the Post up to that date: name and address,
date of hire, date of termination, classification or job
title, duties actually performed, names of immediate and
23 The situation herein is not the same as that involved in Doubarn
Sheet Metal, 243 NLRB 821 (1979), in which the union was held to be
entitled to specific information which would help it to determine whether
there existed a single-employer relationship between the employer and a
company to which work was being subcontracted.
other supervisors, pay rate (current), starting spay rates
and changes in such rates, fringe benefits (including va-
cations, sick leave, holidays, overtime pensions and sev-
erance), work schedules and copies of employee manuals
or job classifications and descriptions. Also requested
were the terms and conditions of the Post or News
America contract with USSI and the duration of such
agreement . The memorandum cited' previous requests for
such information made over the preceding 2 years in-
cluding specific formal requests on March 22 and 24,
1978, January 11 and February 5, 1979, January 16 and
21, 1980, and on November 25, 1980, the last-mentioned
being an oral request by Joy Cook to Leonard Arnold.
In response, Arnold advised Cook that six USSI em-
ployees were working in the Post's premises, five of
whom were computer operators and one of whom was
an operations manager; they were supervised by the
president of USSI and liaison between News America
and USSI was the responsibility of Jeff Leist, an employ-
ee of News America. The Post has not otherwise re-
sponded to the Guild's request for information respecting
the transactions with USSI, except that in September
1982 the Guild was furnished with a document which
the Respondent contends is a copy of the contract be-
tween the Post and USSI. The document is undated and
unsigned and the Guild has questioned its authenticity.
In April 1981 the Guild commenced an arbitration
proceeding against the Post, which is still pending, on
the issue of whether the collective-bargaining agreement
had been violated by transfer to USSI of work previous-
ly performed only by unit members.
The General Counsel has contended that the informa-
tion requested is needed by the Guild for the purposes of
the arbitration. Unquestionably, the information is rele-
vant to the issues therein and would either support the
Guild's position or require that the Guild modify its posi-
tion in the light of the known facts. Whether a violation
of article I, section 4 was committed by the Respondent
by subcontracting work to the Guild can be determined
with information relating to the terms of the subcontract-
ing agreements, the description of the work being per-
formed by USSI personnel, the job classifications of the
personnel performing such work (which would relate to
job classifications of the Post's employees from whom
the work was removed), the wage rates, and the employ-
ees' manuals . This data would enable the Guild to define
the scope of the unit work being performed by nonbar-
gaining unit personnel and would to some extent suggest
the nature of an appropriate remedy.
The Guild's requests for the names of the specific
USSI employees and the dates of their hire and termina-
tion would not, however, seem to contribute to that ob-
jective.
Accordingly, I conclude that the Post has violated
Section 8(a)(5) by failing to furnish to the Guild, with re-
spect to all USSI personnel who worked at the Post, past
or present, their classifications or job titles, a description
of the duties actually performed by them, their current
and past pay rates, the information requested concerning
fringe benefits, their work schedules, the contents of the
manuals or the job classifications and descriptions, and
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the terms and conditions (including duration) of the Post
or News America contract with USSI. The Respondent
has not committed a violation by its failure,to furnish the
names and addresses of such personnel and their dates of
hire and termination because the request for such data
related to all employees of USSI and was not limited, as
it should have been, to those employed at the premises of
the New York Post. Only that portion of the data would
have been relevant to the needs of the Guild.
At the hearing, the General Counsel moved to amend
the complaint to allege violation of the Act by reason of
Respondent's failure, since December 5, 1980, to furnish
the Union with the information requested and by reason,
of the fact that with respect to such information as it did
furnish Respondent "has delayed in furnishing such in-
formation." The motion granted and I find a separate
violation by reason of the fact that, even to the minimal
extent that information was furnished, and a questionable
copy of the contract between the Post and USSI provid-'
ed, as described above, the delay in furnishing the same
since 1978 was unwarranted and constituted a refusal to
bargain in violation of the Act.
Some of the Respondent's counterarguments merit dis-
cussion.
Notwithstanding the Respondent's assertion that the
information sought by the Guild is not in its possession, I
find that it is' iii fact available to the Respondent. The sit-
uation herein is not comparable to the request by the
Guild for information about the Stat-Tab employees. The
information about USSI which was requested, and is
herein directed to be furnished, relates to functions being
performed right on the Post's own premises. The Post
obviously is able to finish the work schedules of these
USSI' personnel who are walking in and out of the Post
premises every day utilizing building passes issued by the
Post. The contract provisions by themselves contain
much of the information sought and the availability of
the rest of it is easily ascertainable by a simple request
from the Post to USSI for that information. The burden
of proving the Post's ability to get the information is ^ not
on the General Counsel; rather, the burden is on the Post
to establish that this data, which would appear to be
readily available to it, is not in fact available. The Re-
spondent made no serious effort to prove this.
The defense that the Guild did not meet the burden of
showing its specific need for information relating to non-
unit- employees simply does not comport with the evi-
deuce adduced at the hearing. An arbitration is pending
and pursuant to the Guild's duty of policing the: contract
it attempted to obtain above-described information which
I have held to be relevant.
The contention that the information is sought for a
purpose wholly outside the scope of the Guild' s bargain-
ing relationship with the Post, to wit, for use in an orga-
nizational drive, has merit only to - the extent that it is
contended that the intended use is altogether outside the
scope of the Guild's functions as representative of the
unit employees. I have, however, found that argument
devoid of merit. Consequently, there is left only the
question of whether the fact that the, information may
have additional uses besides the uses to which the Guild
would put it as representative of the unit employee in
any_ way affects the situation. Cool conceded that the
Guild was seeking to contact USSI, personnel for pur-
poses of a contemplated organizational drive. On Febru-
ary 3, 1981, she had sent a letter to USSI addressed to it
at the premises of the Post, notifying it that a committee
had been formed to organize its employees working at
the Post. Nevertheless, the evidence does not support the
Respondent's contention that the organization of USSI
personnel was the Guild's sole objective in requesting
the information. I have found as a matter of fact that the
information was needed by the Guild for purposes rele-
vant to its obligations as representative of employees at
the Post. The happenstance that it might be- additionally
useful in organizing USSI employees generally would
not destroy that relevance. Moreover, if the' objective
were to bring into the Guild the USSI employees per-
forming unit work, then the relevance would be beyond
question. The possibility of dual use of information does
not extinguish the Guild's right to it for an existing rele-
vant purpose.
It should be noted that the Post did not contend that
the Guild, if given the information to which it was law-
fully entitled, would abuse any confidence and misuse
the information, nor did it contend that any information
lawfully obtained by the Guild because it was entitled to
it would be used unlawfully' if. used in an organizational
campaign. Unquestionably, such use would be lawful,
even if not approved by the Respondent. Accordingly,
to the extent that any of the information which the Post
is required to turn over to the Union might have been
used for an organizational, campaign among USSI per-
sonnel, that factor would not militate against, or affect
the obligation to turn over such information. The fact
that the requested information may relate to the employ-
ers and employees outside the representative bargaining
unit, does not, by itself, negate its relevance.24
The issue is the relevance of the information to the
Guild's performance of its, duties, as bargaining represent-
ative, even to the exclusion of consideration of its pur-
pose in requesting the information.2 s
CONCLUSIONS OF LAW
1. The- New York Post Corporation , the Respondent,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
24 NLRB v. Leonard B. Hebert, Jr. & Co., 259 NLRB 881 (1981), enfd.
696 F.2d 1120 (5th Cir. 1983); AGC of California, 242 NLRB 891 (1979),
modified on other grounds 633 F.2d 766 (9th Cir. 1980), and cases previ-
ously cited.
Respondent cites NLRB v. A. S. Abell Co., 624 F.2d 506 (4th Cir.
1980), in support of its position. See the discussion of this case in connec-
tion with Stat-Tab, supra. In that case the court found that the union had
not established the relevance of information sought and that it wanted the
information solely for an illegal purpose (harassment of employees). In
the present case there is no fear of 'harassment, no proven history 'of
misuse of information by the Guild, and-no demonstration that the fur-
nishing of the information that I have directed to be furnished would
permit any abuse by the Guild.
as White Farm Equipment Co., 242 NLRB 1373 (1979), enfd. sub nom.
Electrical Workers IUE v. NLRB, 650 F.2d 334 (D.C. Cir. 1980); Utica
Observer-Dispatch, 111 NLRB 58 (1955), enfd. 229 F.2d 575 (2d Cir.
1956); AGC of California, supra.
NEW YORK POST CORP.
2. Newspaper Guild of New York, Local 3 of the
Newspaper Guild, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees in the Editorial, Business , Advertis-
ing, Circulation, -Publication, Mechanical and Mainte-
nance Departments, excluding exempt employees and
employees already covered by a union contract other
than that between the Respondent and the Guild, consti-
tute a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. The Guild is the exclusive representative of all the
employees in the aforesaid unit for the purposes of col-
lective bargaining within the meaning of Section 9(a) of
the Act.
5. The Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act by delaying the delivery to the
Guild for a period of approximately 1 year and 4 months
a list of minority personnel by name, job classification,
and history of promotional record as requested in a
memorandum to the Respondent from the Guild dated
February 23, 1981, and by failing and refusing on request
to supply the following relevant information required by
the Guild in order -to perform its duties as bargaining
representative of the employees in the above described
unit:
(a)' Information requested by the Guild in a memoran-
dum dated February 23, 1981, consisting of a list of mi-
nority personnel by name, job classification, and -history
of promotional record relating to nonunit employees (the
list that was furnished tardily having related only to unit
employees).
(b) Information requested by the Guild on February
23, 1981, consisting of the total number of staffers and
the number taking sick leave, and the number of days of
sick leave taken in the years 1977, 1979, and 1980 and,
with respect to those years, a breakdown showing the
number of occurrences of illness, the' average length of
absences, the number of persons affected by and the
number of days docked under the 'terms of article XI,
section 1, paragraph 2 of the collective-bargaining agree-
ment, the names of the individuals placed on the absentee
control program and their individual absentee records.
The Respondent also violated the Act in connection with
443
this request by its refusal to permit photocopying of per-
tinent records ' and the making of statistical abstracts
therefrom.
- (c) Information requested by the Guild consisting of
the names and contractual status of anyone holding inde-
pendent contractor, freelance, or stringer status with the
New York Post in 1978, 1979, 1980, and 1981.
(d) A list of all promotion jobs assigned to Lerner-
King or any other advertising agency since November
1979; the hours spent on each job as reflected by billing
statements and the amounts billed to the Post; a list from
January 1, 1977, to the date of the request of all person-
nel in the creative services department, showing their job
classifications, dates of hire, and, if applicable, dates of
termination.
(e) Information requested by the Guild on November
28, 1980, consisting of the terms and conditions of the
contract under which work was being performed for the
Post by Stat-Tab, and the volume of work performed by
Stat-Tab pursuant to the contract.
(f) Information requested by the Guild on November
28, 1980, consisting of the terms and conditions of its
contract with, and the following data concerning all per-
sonnel of, User Services Systems, Inc., past or present
who worked on the premises, of the New York Post:
their classifications or job titles, a description of the
duties performed by them, their current and past pay
rates and fringe benefits, work schedules, and contents of
manuals or job classifications or descriptions.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning; of Sec-
tion 2(6) and (7) of the Act.
7. The Respondent did not violate the Act by failing
or refusing to furnish any of the other information re-
quested by the Guild as hereinabove set forth.
THE REMEDY
Having found that the Respondent has engaged in and
is engaging in certain unfair labor, practices affecting
commerce , I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the purposes of the Act.
[Recommended Order omitted from publication.]