Northwest Publications, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 464 (N.L.R.B. 1974)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northwest Publications, Inc. and San Jose Newspaper
Guild Local 98, American Newspaper Guild,
AFL-CIO. Case 20-CA-8539
exhibits, the briefs, and the entire record in this
proceeding, the Board makes the following:
FINDINGS OF FACT
June 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed August 23, 1973, by San Jose
Newspaper Guild Local 98, American Newspaper
Guild, AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 20,
issued a complaint dated October 17, 1973, against
Respondent, Northwest Publications, Inc. Copies of
the charge, complaint, and notice of hearing were
served on Respondent.
The complaint alleged that Respondent had en-
gaged in and was engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. The complaint alleged in substance
that on June 8, 1973, and thereafter, Respondent
refused to bargain with the Union in that it refused
to furnish to it requested payroll data for 29
individuals covered by the parties' collective-bar-
gaining agreement , assertedly because these individu-
als were supervisors as defined in the Act.
On February 4, 1974, the parties executed a
stipulation of facts in the case. On the same date the
parties also executed a motion to transfer proceeding
to the Board in which they waived a hearing before
an Administrative Law Judge and the issuance by
him of an Administrative Law Judge's Decision and
recommended Order and agreed to submit the case
to the Board for findings of fact, conclusions of law,
and Order, based on a record consisting of the
stipulation of facts and the attached exhibits. On
February 11, 1974, the Board granted the parties'
motion, approved the stipulation, and ordered the
proceeding transferred to the Board. Thereafter all
parties filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the basis of the stipulation, including
i The collective-bargaining agreement excludes from the unit these
specifically named positions:
General Manager , Assistant to the Publisher, Executive Editor,
Managing Editors , Sunday and Feature Editor , Advertising Director,
Advertising Manager, Local Retail Advertising Manager, Public
Relations and Promotion Director , National Advertising Manager,
I. THE BUSINESS OF THE EMPLOYER
Respondent, Northwest Publications, Inc., is a
Delaware corporation engaged in the publication of
two newspapers in San Jose, California. During the
past calendar year, Respondent, in the course and
conduct of its business operations, held membership
in or subscribed to interstate news services, published
nationally syndicated features, advertised nationally
sold products, and derived gross revenues from its
publishing operations in excess of $200,000. We find
that Respondent is, and at all material times has
been, an employer within the meaning of Section 2(6)
and (7) of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
San Jose Newspaper Guild Local 98, American
Newspaper Guild, AFL-CIO, is, and at all times
material herein has been , a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The parties' stipulation shows these facts:
The Union is, and has been for many years, the
exclusive bargaining representative of a unit of
employees at Respondent's place of business. The
Union and Respondent, or its predecessor, have been
parties to collective-bargaining agreements since
1937. The most recent agreement between the Union
and Respondent was effective from November 2,
1970, to December 31, 1973. Since 1966 the unit
described in the collective-bargaining agreement has
read: "All editorial, business and janitorial depart-
ment employees . . . including advertising, business
office, inside circulation, telephone operators, [and]
clerical employees," excluding a listing of specific
executive, management, and confidential positions.)
On March 7, 1973, the Union wrote to Respondent
requesting "certain payroll information that the
Guild will need for the purpose of formulating wage
and other proposals." Specifically, the Union re-
quested Respondent to furnish to it, by May 1, 1973,
the following information for each employee covered
by the Guild contract:
Classified Advertising Manager , Copy Service Manager , Advertising
Plans Manager, Dispatch Department Manager, Business Manager,
Controller, Credit Manager , Chief Accountant , Internal Auditor,
Circulation Director and Managers , Data Processing Manager,
Assistant Data Processing Manager , Confidential Secretaries , limited
to six to the Publisher and Executives....
211 NLRB No. 57
NORTHWEST PUBLICATIONS, INC. 465
1. Name, department, job title. 2. Date of hire.
3. Classification. 4. Experience rating and experi-
ence anniversary date. 5. Regular weekly salary (if
part-time, average weekly gross), including the
precise formula for any commission or bonus
arrangements , or other forms of compensation.
On June 8, 1973, Respondent refused to supply the
requested payroll data for 29 individuals covered by
the then current collective-bargaining contract on the
ground that these individuals were supervisors within
the meaning of the Act. On July 10, 1973, the Union
wrote to Respondent requesting additional informa-
tion on the 29 individuals who, Respondent had
asserted, were supervisors.2 On July 19, 1973,
Respondent notified the Union that it would not
supply the additional information that the Union
had requested.
Respondent has supplied the Union with all
requested information other than that which pertains
to the 29 individuals who are the subject of this
proceeding.
The parties have agreed that a Board determina-
tion as to Respondent's obligation to supply payroll
information to the Union with respect to Louis
Duino shall govern Respondent's obligation with
respect to the other 28 individuals about whom the
Union seeks information. They agree to facts which
show that Duino, classified as Executive Sports
Editor, is a supervisor. He has authority to hire and
fire, to make work assignments, and to discipline
employees. He performs a substantial amount of
bargaining unit work in that he covers various
newsworthy events and writes stories about them.
The General Counsel in his complaint alleged that
Respondent refused to bargain collectively with the
Union in violation of Section 8(a)(5) of the Act in
that since about June 8, 1973, and thereafter it has
refused to furnish to the Union relevant and
necessary information regarding certain employees
who are covered by the parties' collective-bargaining
agreement . The parties have stipulated that Respon-
dent refused to supply such payroll data for 29
individuals covered by the then current collective-
bargaining agreement on the ground that these
individuals assertedly were supervisors within the
meaning of the Act. The Employer contends in its
brief that, as it is under no duty to bargain with
respect to supervisors, it has no duty to furnish
2 The additional information requested pertained to the proportion of
bargaining unit and supervisory work performed by these individuals, as
well as by those individuals specifically excluded in the current collective-
bargaining contract ; the salaries received by both groups, and the
proportion thereof attributable to the performance of bargaining unit work
as distinguished from purely supervisory or executive work; and the number
of overtime hours required for the performance of bargaining unit work by
individuals exempt from the hours provision of the contract.
information concerning them. It argues that such
information would not be relevant to any statutorily
required collective-bargaining negotiations.
The sole issue is whether Respondent was hinder a
duty to furnish the Union with payroll information
as to individuals within the bargaining unit, although
supervisors, which the Union asserts is needed to
formulate wage and other proposals in connection
with new contract negotiations. We hold that it was.
It is clear from Respondent's letters to the Union
that Respondent and Union have been engaged in a
continuing controversy over inclusions in the collec-
tive-bargaining unit. The dispute over wage data
relating to 29 individuals included in the current
collective-bargaining agreement arose in early 1973
preliminary to negotiations for a new agreement. In
its June 8, 1973, letter to the Union, Respondent
stated that these positions should be excluded from
the bargaining unit, reminded the Union that it had
twice filed petitions with the Board to exclude them,
and asserted that it intended to file another at an
appropriate time. We note that, in the past, despite
the continuing controversy, the parties continued to
include these supervisors in the unit.3
The Board has held, with court approval, that wage
and related information pertaining to employees in
the bargaining unit is presumptively relevant.4 This is
because the Union is charged with the statutory duty
of representing the employees in the bargaining unit.
That duty includes formulating wage and other
proposals in connection with contract negotiations
and policing the administration of a contract.
Information of the type requested is necessary to
carry out the union's duty. "Refusal by an employer
to supply such necessary information makes impossi-
ble the full development of the collective-bargaining
negotiations which the Act is intended to achieve. It
therefore constitutes a violation of Section 8(a)(5)."5
Respondent argues that, because bargaining with
respect to supervisors is not mandatory, it is not
required to divulge information with respect to such
employees. The words of the Court of Appeals for
the Third Circuit, in the Curtiss-Wright case, supra,
are pertinent here. The court, enforcing the Board's
Order, rejected a like argument with respect to
information about administrative employees, a cate-
gory excluded from the parties' collective-bargaining
contract unit. The court in the Curtiss-Wright case
said:
3 Northwest Publications, Inc. d/b/a San Jose Mercury and San Jose News,
197 NLRB 213 and 200 NLRB 105
4 Cowles Communications, Inc, 172 NLRB 1909, Curtiss- Wright Corpora-
tion, Wright Aeronautical Division, 145 NLRB 152, 156-157, enfd 347 F.2d
61 (C.A. 3); Boston Herald-Traveler Corporation, 110 NLRB 2097, enfd 223
F 2d 58 (C.A.I).
5 Whiten Machine Works, 108 NLRB 1537 , 1538, enfd . 217 F.2d 593, 594
(C.A. 4).
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it is true, as the Employer contends, that
bargaining as to employees classified as adminis-
trative is not mandatory, for they are not in the
bargaining unit , it does not follow that the
Employer is not required to divulge information
with respect to such employees. Because such
information was shown to be relevant to the
determination of the status of employees as unit
employees and thus to a mandatory subject of
bargaining, the Employer' s position is of no merit.
[347 F.2d at 70-71.]
Recent decisions have reiterated the principles
enunciated in the Curtiss-Wright case .6
Apart from the presumptive relevance of informa-
tion concerning individuals who have been included
in the bargaining unit , the facts demonstrate the
relevance of the Union's request. Assuming that, in
the future, the parties may exclude the 29 supervisors
from the bargaining unit, the information will
continue to be necessary to protect the interests of
unit employees.7
The Union's immediate and continuing need for
information about the supervisors' earnings and
method of payment, when examined in the light of
the supervisors ' work and the Union 's duties, is
apparent. As stipulated by the parties, supervisors
perform a substantial amount of bargaining unit
work, as in the case of Executive Sports Editor
Duino who covers newsworthy events and writes
stories about them . Nonsupervisors perform like
work. The Union sought salary information pertain-
ing to all in the unit , supervisors and employees alike.
The Union, in forthcoming negotiations , is bound to
discuss wage and other proposals covering all unit
employees . The pay received by supervisors like
Duino for performing bargaining unit work and the
method of pay-whether commission or bonus,
whether based on quality or difficulty, whether
allowance is made for expenses or mileage costs
-have a direct bearing on the pay of employees and
alleged supervisors in all departments represented by
the Union.
All possible ways in which the information may
become important cannot be foreseen in advance of
negotiations . A real probability feared by the Union
is encroachment on bargaining unit work . The Union
expressed this in its letter of July 10, 1973, to
Respondent when , in renewing its request , it said that
"... each of these employees is presently perform-
ing bargaining unit work and that work will continue
6 General Electric Company, 199 NLRB 286; Union Carbide Corporation,
197 NLRB 717, reaffirming as modified 187 NLRB 113 at 117.
Respondent argues that the Board has recognized that an employer is
under no duty to furnish information regarding supervisors , citing Leland-
Gifford Company, 95 NLRB 1306, enfd . and remanded 200 F.2d 620 (C.A.
1). The Board did not have that issue before it in Leland-Gifford It decided
to be performed by someone regardless of what you
choose to do about filing a petition [to the NLRB]
and regardless of what the NLRB decides."
We find herein that, because the 29 supervisors are
in the unit, the information requested by the Union
concerning them is presumptively relevant . We also
find that, were the supervisors outside the unit, the
relevance of information about them has been
shown. Accordingly, we further find that Respon-
dent's refusal to supply the information violated
Section 8(a)(5) and (1) of the Act.
IV. THE REMEDY
Having found that by the aforementioned conduct
Respondent has violated Section 8(a)(5) and (1) of
the Act , we shall order it to cease and desist from
engaging in such conduct in the future and take
certain affirmative action designed to effectuate the
policies of the Act.
As we have found that Respondent refused to give
to the Union relevant information which it requested
for purposes of enabling it to prepare itself for future
negotiations , we shall order that Respondent furnish
the Union with the information requested concerning
the disputed individuals and positions.
CONCLUSIONS OF LAW
1. Northwest Publications, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. San Jose Newspaper Guild Local 98, American
Newspaper Guild, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. At all times material herein the Union has been
the exclusive representative of the employees in the
following described unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of
the Act:
All editorial, business and janitorial depart-
ment employees employed by Respondent at its
San Jose Mercury and San Jose News facility at
San Jose, California, including advertising, busi-
ness office, inside circulation, telephone opera-
tors, clerical employees, but excluding temporary
employees and the following positions: General
Manager, Assistant to the Publisher, Executive
Editor, Managing Editors, Sunday and Feature
Editor, Advertising Director, Advertising Manag-
er, Local Retail Advertising Manager, Public
only that there was a duty to furnish information to all unit employees, none
of whom was a supervisor.
r See General Electric Company, supra; Union Carbide Corporation, supra;
Goodyear Aerospace Corporation, 157 NLRB 4%, 503, enfd . 388 F.2d 673
(C.A. 6, 1968); Curtiss-Wright Corporation, supra.
NORTHWEST PUBLICATIONS, INC.
Relations and Promotion Director , National
Advertising Manager , Classified Advertising
Manager , Copy Service Manager, Advertising
Plans Manager , Dispatch Department Manager,
Business Manager, Controller , Credit Manager,
Chief Accountant , Internal Auditor, Circulation
Director and Managers , Data Processing Manag-
er, Assistant Data Processing Manager, and
Confidential Secretaries , limited to six to the
Publisher and Executives.
4. By failing and refusing to provide the Union
with certain requested payroll information with
respect to individuals asserted to be supervisors
included in the parties ' current collective-bargaining
contract unit , Respondent has refused to bargain
collectively with the exclusive bargaining representa
tive of its employees in the above -described unit,
thereby violating Section 8 (a)(5) and (1) of the Act.
5. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Northwest Publications, Inc., San Jose, California, its
officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with San Jose
Newspaper Guild Local 98, American Newspaper
Guild, AFL-CIO, by refusing to furnish the said
labor organization with information it has requested
with respect to name , department, job title, date of
hire, classification, experience rating and experience
anniversary date, regular weekly salary, including
commission or bonus payments for asserted supervi-
sors who are included in the parties' collective-
bargaining contract unit, the proportion of bargain-
ing unit and supervisory work performed by these
individuals, and the proportion of salary received by
them attributable to the performance of bargaining
unit work.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
" In the event that 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 National 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."
467
tion as guaranteed by Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with San
Jose Newspaper Guild Local 98, American Newspa-
per Guild, AFL-CIO, by furnishing the said labor
organization with the information it requested on
March 7 and July 10, 1973, concerning supervisors
who are included in the parties' collective-bargaining
contract unit.
(b) Post at its San Jose, California, place of
business copies of the attached notice marked
"Appendix." 8 Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
CHAIRMAN MILLER, dissenting:
Parties may, voluntarily, include supervisors in a
bargaining unit, even though this Board would not
do so.9 But the collective rights of supervisors thus
included stem entirely from the agreement of the
parties, not from the statute. And there is no
statutory duty to bargain about their compensation.
Hence, there can be no violation of this Act in failing
to perform any duty ancillary to the basic bargaining
duty, such as furnishing information as to their pay.
Had the Union wanted to impose such a duty, its
route was the same route by which it accomplished
their contractual coverage-i.e., voluntary agree-
ment.
I do not know whether any part of the existing
agreement can be construed to give rise to an express
or implied obligation to provide such information,
but that issue is not, and cannot be, before us. This is
not the proper forum to decide purely contractual
issues.
There being no statutory duty or obligation to
bargain about, or furnish information as to, the
wages of supervisory employees, this complaint
9 Because the parties had so bargained here , we have twice refused to
interfere with that voluntary agreement by invoking our unit clarification
procedures in such manner as to subvert the parties ' own contractual
commitments . Northwest Publications, Inc., 197 NLRB 213 and 200 NLRB
105.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should have been dismissed. For the above reasons, I
dissent from the decision of my colleagues.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with San Jose Newspaper Guild Local 98,
American Newspaper Guild, AFL-CIO, by fail-
ing and refusing to furnish the said labor
organization with information it has requested
pertaining to supervisors who are included in our
1970-73 collective-bargaining contract unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, or to refrain
from any and all such activities.
WE WILL, upon request , bargain collectively
with San Jose Newspaper Guild Local 98,
American Newspaper Guild, AFL-CIO, by fur-
nishing to the said labororganization the informa-
tion requested pertaining to supervisors who are
included in our 1970-73 collective-bargaining
contract unit.
NORTHWEST
PUBLICATIONS, INC.
(Employer)
Dated By
(Representative) (Title)
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 compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.