Teleprompter Corp.

National Labor Relations Board - Board Decisions

Jan 6, 1977

227 N.L.R.B. 705 (N.L.R.B. 1977)

TELEPROMPTER CORPORATION 705
Teleprompter Corporation; and Its Subsidiaries, Te-
leprompter of La Crosse, Inc.; Teleprompter of
Great Falls, Inc.; and Teleprompter of Worcester,
Inc. and International Brotherhood of Electrical
Workers, AFL-CIO; Local 135, International
Brotherhood of Electrical Workers, AFL-CIO;
Local 122, International Brotherhood of Electrical
Workers, AFL-CIO; and Local 42, International
Brotherhood of Electrical Workers, AFL-CIO.
Cases 30-CA-3175; 30-CA-3184; 30-CA-3530
(formerly 19-CA-7875); and 30-CA-3531 (form-
erly 1-CA-10763)
January 6, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On June 30, 1976, Administrative Law Judge James
L. Rose issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief; Charging Parties filed cross-
exceptions and supporting briefs; and Respondent
filed a brief in answer to the General Counsel's brief.
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.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Respondent is divided into three divisions: Filma-
tion, which produces cartoons and other television
specials for children; Muzak, which "pipes in" music
to office buildings and runs internal communication
systems within office structures; and the cable
division, which operates cable systems either directly
or through wholly owned subsidiary corporations.'
The cable division is a combination of those
subsidiary corporations through which Respondent
operates most of its cable systems as well as a
combination of those systems directly owned by the
parent company. Respondent recognizes various
locals of the International Brotherhood of Electrical
Workers, AFL-CIO (hereinafter referred to as the
International), at approximately 35 of the 139 cable
television systems it operates in 33 states.2 In early
January 1975, Respondent sent a letter addressed to
all of the employees of Respondent which announced
an immediate moratorium on wage increases, except
those covered under the existing collective-bargaining
agreements. Respondent explained that the moratori-
um was due "in part, to extremely high interest rates
and, in part, to a general economic down-turn." The
International requested financial data which was
submitted to it although not- in the detail requested.
After Respondent, in negotiations with the three local
Unions involved herein, asserted that it could not
agree to wage -increases due to the freeze, the
respective locals requested that Respondent furnish
data concerning the profitability of the respective
facility for which each was negotiating. Respondent
refused, stating that it was not the profitability of the
facility which caused the moratorium but the profit-
ability of the corporation as a whole. Accordingly,
information concerning the profitability of the overall
corporation was furnished to the local Unions in the
same form that it was furnished to the International.
The Administrative Law Judge found that Respon-
dent did not violate Section 8(a)(1) and (5) of the Act
by failing and refusing to provide information regard-
ing the profitability of the three subsidiary systems
involved because he found that Respondent had
bargained in good faith by furnishing sufficient
information concerning its overall financial condition
to substantiate its assertion that it was unable to grant
wage increases due to its overall financial condition.
General Counsel excepts, contending that Respon-
dent violated Section 8(a)(5) of the Act by failing to
supply profitability information concerning the sepa-
rate facilities in support of its "plea of poverty."
General Counsel contends that the individual profit-
ability data was necessary in order that the local
Unions could intelligently conduct negotiations with
Respondent and specifically so they could counter
the argument that no wage increases could be given
due to Respondent's nationwide financial inability.
We find merit in this contention.
The issue is limited: Is Respondent obligated to
furnish specific information concerning profitability
of an individual facility or system, although its "plea
of poverty" was allegedly based on its overall
financial condition, where it, bargains not on a
nationwide basis, but on a single system basis? Under
these circumstances, we find that it is. The Supreme
Court in N.LR.B. v. Truitt Manufacturing Co., 351
U.S. 149 (1956), held that a finding of a failure to
bargain in good faith could be concluded where the
employer claimed inability to pay but did not make
an effort to substantiate the claim. The Court stated
"[g]ood-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims. This is true about an-asserted inability to pay
an increase in wages. If such an argument is impor-
tant enough to present in the give and take of
1 Both Filmation and Muzak are wholly owned subsidiary corporations 2 The instant dispute concerns only the systems at La Crosse, Wisconsin,
which function as internal divisions of the parent company. Great Falls, Montana, and Worcester, Massachusetts.
227 NLRB No. 101
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining, it is important enough to require some
sort of proof of its accuracy."
Respondent contends that it did not plead an
inability to pay based on the financial situation of the
operative local facility but based its inability to grant
any wage increase on its overall financial status. Since
it submitted relevant and material information re-
garding its nationwide status, Respondent asserts that
it has, adequately proved the accuracy of its allega-
tions regarding its overall finances. However, under
the above circumstances, we' find that Respondent
unduly limited the information it was willing to
divulge and construed Truitt too strictly. The Board,
in Stanley Building Specialities Co., 166 NLRB 984
(1967), interpreted Truitt "as announcing principles
that are generally applicable to a wide variety of
bargaining situations in which good-faith obligations
under the Act require that a party to bargaining
negotiations be willing to substantiate on request a
position it has taken during the course of the
negotiations."
Accordingly, Truitt has been followed not for its
very narrow holding, but for its finding regarding
good-faith bargaining surrounding an asserted inabil-
ity to pay a wage increase. It is essential that an
employer who has made such a claim present
adequate information enabling "the union to intelli-
gently determine whether the [Employer] was making
its best offer." 3 As stated in Metlox Manufacturing
Company, 153 NLRB 1388, 1394 (1965), "[T]he prime
consideration is not the bare refusal to furnish data,
but whether under the circumstances in a case, the
employer by his conduct is doing violence to the
principles of good-faith bargaining."
By limiting its offer of proof concerning inability to
pay, Respondent was withholding information essen-
tial to the Locals. We do not believe that the goal of
bargaining in good faith is served by such a limited
offer and we do not believe that an employer claiming
inability to pay may arbitrarily limit its obligation to
provide financial data to substantiate its claim by
limiting the claim itself. Likewise we do not believe
that an employer which has generally opted for single
location or system bargaining as opposed to area or
nationwide bargaining should then be allowed to
make a nationwide "plea of poverty" without provid-
ing data as to the single or local systems. Regardless
of what factors the Employer takes into consideration
in determining the wage structure at a particular
facility, clearly it is essential for each local to have
profitability statements regarding the local system
whose employees it represents so it may knowledge-
ably consider Respondent's position.
In The Celotex Corporation, 146 NLRB 48, 54
(1964), the Board found that, although the negotia-
tors for the union were aware of the employer's
declining position, "this awareness was not such that
those negotiators could bargain intelligently upon the
extent to which they should agree to decreases in the
incomes of employees" but "they were entitled to
profit or loss figures in order to intelligently evaluate
the [r]espondent's demands and to determine the
extent to which they should urge the employees to
make concessions." Similarly, herein, the negotiators
for the Locals were aware that overall Respondent
was experiencing financial difficulties as reflected by
its overall profit and loss statement. However, with-
out the information they sought, they were unable to
determine to what extent an individual facility
contributed to the difficulties.
Although the Respondent provided some informa-
tion, as in Truitt, the information was lacking because
it inadequately revealed why the Company was
unable to pay the requested wages. In B. L. Montague
Company, 116 NLRB 554, 557 (1956), we character-
ized the difficulties experienced by a union negotiator
where the employer had inadequately substantiated
its statements, wherein, we said:
The Union in turn could not determine whether
the Respondent's claims were honest claims. It
could not intelligently decide whether to continue
to press for a wage increase or to make an
alternative request. It was forced to negotiate in
the dark without regard to the economic realities.
It was not even able to make an informed report
to its own members as to the merits of their
demands. It was thus handicapped in carrying out
its responsibility to inform and advise the employ-
ees whom it represents.
The above cases demonstrate not only why it is
unlawful for an employer to refuse to substantiate its
claim of inability to pay by submitting information
that can be intelligently evaluated by a union but also
demonstrate that a union which does not have
meaningful information is also handicapped in ex-
plaining to its members why they should agree to a
wage freeze. For example, a union member employed
at Respondent's facility at La Crosse may question
why its bargaining representative would acquiesce to
a wage freeze where it seems to him that the local
system is quite successful.4 Accordingly, the Union is
frustrated in that it not only lacks the relevant
information to determine for itself whether it is
feasible to expect an increase in wages, but also lacks
this information to explain to its members why it has
3 Tony's Meats, Inc, 211 NLRB 625 (1974). regarding profitability at the La Crosse facility, but find no reason to assume,
4 We agree with the Administrative Law Judge that there was no evidence as he did, that any of the systems were, in fact, showing a profit.
TELEPROMPTER CORPORATION
taken action in accordance with its unsubstantiated
beliefs .5
Based on the above, it is clear that the information
provided-by Respondent was not adequate to apprise
the local Unions of the relevant facts. Assuming that
the figures submitted by Respondent are accurate,
nevertheless, they may not present a realistic repre-
sentation of the situation as it regards a local facility.
In Metlox Manufacturing Co., supra at 1395, the
Board stated that "[G]ood-faith bargaining, in requir-
ing an employer to substantiate his inability-to-pay
plea, requires the employer to show that the figures of
profit and loss are not only accurate but that they do
or do not constitute fair representations of the
company's financial condition." In the immediate
situation, we find that it is incumbent upon Respon-
dent to provide information regarding the profitabili-
ty of the local facilities. Only with this information
could the Union intelligently evaluate Respondent's
assertions regarding its inability to pay.
Under these circumstances, we find that Respon-
dent violated Section 8(a)(5) of the Act by refusing to
furnish the Union with financial records regarding
the local facilities for examination in order to
substantiate its claim that it was financially unable to
grant wage increases.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 4 and 5 and substitute
the following:
"4. By refusing to furnish the local Unions with
financial information in order to substantiate its
claim that it was financially unable to grant a wage
increase, Respondent refused to bargain collectively
with the Union in violation of Section 8(a)(I) and (5)
of the Act.
"5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act."
REMEDY
As we have found that Respondent's failure to
furnish certain information to the local Unions
constituted an unlawful refusal to bargain, we shall
order- Respondent to cease and desist from further
refusal and order it to take certain affirmative action
which is necessary to effectuate the policies 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 the Respondent,
Teleprompter Corporation and Its Subsidiaries, Te-
707
leprompter of LaCrosse, Inc., Teleprompter of Great
Falls, Inc., and Teleprompter of Worcester, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 135,
International Brotherhood of Electrical Workers,
AFL-CIO; Local 122, International Brotherhood of
Electrical Workers, AFL-CIO, and Local 42, Inter-
national Brotherhood of Electrical Workers, AFL-
CIO, as the exclusive bargaining representatives of all
employees in the appropriate units in violation of
Section 8(a)(1) and (5) of the Act, by refusing to
furnish the local Unions with financial information in
order to substantiate Respondent's claim that it was
financially unable to grant wage increases.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, supply the local Unions with all
books and records containing financial information
which would tend to substantiate Respondent's claim
that it was financially unable to grant wage increases.
(b) Post in conspicuous places at its headquarters in
New York, New York, and at its facilities in La
Crosse, Wisconsin, Great Falls, Montana, and
Worcester, Massachusetts, copies of the attached
notice marked "Appendix." 6 Copies of said notice,
on forms provided by the Regional Director for
Region 30, after being duly signed by an authorized
representative of Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
5 Moreover, since Respondent was not willing to provide profitability
information on less than an overall basis, the local Unions have no way of
knowing whether the employees of the local cable systems are being asked to
forego additional benefits due to possible losses incurred by the Filmation
and Muzak divisions, as opposed to any system in the cable division.
6 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."
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
the local Unions as the exclusive bargaining
representatives of our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL, upon request, furnish the local
Unions with all books and records containing
financial information which would tend to sub-
stantiate our claim that we were financially unable
to grant wage increases.
TELEPROMPTER
CORPORATION; AND ITS
SUBSIDIARIES, ET AL.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was heard at Milwaukee, Wisconsin, May 3 through 6,
1976, upon the General Counsel's consolidated complaint
which alleges, in general terms, that Teleprompter and its
named subsidiaries refused to bargain in good faith with the
Charging Parties by refusing to furnish them with informa-
tion requested concerning the profitability of the three
subsidiaries. It is alleged that the Respondent thereby
violated Section 8(a)(5) of the National Labor Relations
Act, as amended, 29 U.S.C. Sec. 151, et seq.
Upon the record as a whole, including my observation of
the witnesses, arguments, and briefs of counsel, I make the
following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Teleprompter Corporation, among other things, is en-
gaged in the business of providing cable television service at
various locations throughout the United States, having its
headquarters in New York City. Teleprompter Corporation
operates 139 cable television systems in 33 States including
Teleprompter of LaCrosse, Inc.; Teleprompter of Great
Falls, Inc.; and Teleprompter of Worcester, Inc.
At each of the subsidiary locations involved in this
matter, Teleprompter Corporation derived in excess of
$100,000 in gross revenues during the 12 months preceding
issuance of the complaint.
At all times material herein, Teleprompter Corporation
and its three named subsidiaries have been employers
engaged in commerce and in an industry affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondents stipulated that Local 135, International
Brotherhood of Electrical Workers , AFL-CIO; Local 122,
International Brotherhood of Electrical Workers, AFL-
CIO; and Local 42, International Brotherhood of Electrical
Workers , AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
Based upon the testimony of Arthur Korff, I also find
that International Brotherhood of Electrical Workers,
AFL-CIO (herein IBEW), is an organization in which
employees participate and which exists in part for the
purpose of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
and conditions of work . Accordingly, IBEW is a labor
organization within the meaning of Section 2 (5) of the Act,
notwithstanding that it is not the certified bargaining agent
for any of the employees at the facilities involved in this
matter.
In. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
A number of Teleprompter's subsidiary systems are
represented by labor organizations, approximately 35 of
which are represented by various locals of IBEW. Other
units of employees are represented by other labor organiza-
tions and the employees of some subsidiaries are not
represented at all. This matter, however, is confined to the
systems at LaCrosse, Great Falls, and Worcester.
'While the operative facts with regard to the three cases
are substantially identical, the collective-bargaining rela-
tionship between the employees of three facilities and their
respective employer is somewhat different and should be
noted.
On December 17, 1971, Local 122 was certified as the
collective-bargaining representative for the Respondents'
employees at its Great Falls facility in an appropriate
bargaining unit. Thereafter, a collective-bargaining agree-
ment was executed and was effective through December 31,
1975. Following the expiration of that agreement there were
several negotiation sessions for a successor contract. An
agreement has now been reached retroactive to January 1,
1976, and to be effective through December 31, 1978.
On February 26, 1975, Local 135 was certified as the
collective-bargaining representative of the Respondents'
employees at the LaCrosse facility. Thereafter, negotiations
commenced for an initial contract which has now been
agreed to, effective retroactively to January 1, 1976,
through December 31, 1978.
Similarily, on March 31, 1975, Local 42 was certified as
the collective-bargaining representative for the Respon-
dents' employees at the Worcester facility. There were
negotiation sessions during 1975, but no agreement was
reached until the spring of 1976. Again the contract now
agreed to is effective January 1, 1976, through December
31, 1978.
TELEPROMPTER CORPORATION 709
The' Respondents' principal negotiator was Paul Gillert,
the director of industrial relations for Teleprompter. The
respective unions were represented by their local business
agents and/or officers and a committee of employees.
During negotiations with each local, Gillert reiterated that
the Respondent had effected a companywide wage freeze
involving not only rank-and-file employees but also man-
agement, and because of this the Company would not be
able to grant wage increases. A letter to this effect signed by
the president of Teleprompter had been sent to all employ-
ees on or about January 13, 1975.
The stated basis of Teleprompter's refusal to grant wage
increases was fundamentally an inability to pay. The
Company had determined in early January 1975 to promul-
gate a companywide wage freeze which would be applicable
to all employees , except those covered under existing
collective-bargaining agreements which called for wage
increases. The reason given for this was that Teleprompter
had been losing money for approximately 2 years, as is
reflected in the quarterly reports. The Company also
wanted a more favorable cash flow position, and this
required getting a $20 million bank loan, which could be
accomplished only by demonstrating that there would be
no wage increases until its financial situation improved. It
should be noted that the Company's financial situation did
change sufficiently by October 1975 and that effective
January 1, 1976, wage increases were agreed to, which
opened the way for settlement of the contracts.
When the Respondent made the determination to freeze
wages it notified IBEW as well as all employees. Thereafter,
IBEW requested financial data which was furnished,
although not in the form or detail asked for. In any event
data was submitted to IBEW on the matter of why
Teleprompter felt compelled to implement the wage freeze.
Paralleling this, in negotiations with the three locals, the
Company said that it would be unable to agree to wage
increases due to the companywide wage freeze. The
respective locals requested that the Company furnish data
concerning the profitability of the facility for which they
were negotiating - LaCrosse , Great Falls, and Worcester.
The Company declined to furnish this information
stating that it was not the profitability of the facility which
caused the moratorium. Rather it was the profitability of
the corporation as a whole . Information concerning the
profitability of Teleprompter was furnished to the locals in
like form as to IBEW.
Gillert testified that he did not know whether any of the
three facilities were making money or not, and the
profitability of the individual system was never a consider-
ation in setting wages.
There is evidence that the LaCrosse facility was in fact
making a profit , in that in April 1974 it had been authorized
a subscriber rate increase from $5 a month to $6.95. And
for purposes of this Decision, it can be assumed that the
systems were in fact showing a profit.
The Unions take the position that whether or not the
corporation generally was profitable should have no
bearing on whether they would be entitled to wage
increases at a particular facility. The Unions argue that,
since bargaining is on a local unit basis , local wages should
depend on the profit situation of the local facility. The
Company, on the other hand, argues that it never takes into
consideration the local profits when determining the wage
package it offers . The Company considers such items as
productivity, wages in the area for comparable industries,
wages of other Teleprompter employees, and the general
financial condition of the corporation.
B. Analysis
Because much of the testimony, and some of the
argument, is directed to matters which are not issues, what
this case is not about should be briefly noted.
The four charges filed by the three locals and their
International alleged, in substance , some or all the follow-
ing violations of Section 8(aX5) by the Employer: (1)
unilaterally promulgating the wage freeze ; (2) bypassing the
collective-bargaining representative in announcing the
wage freeze ; (3) refusing to negotiate concerning wage
increases ; (4) entering negotiations with a preconceived
and fixed intent not to grant wage increases ; (5) refusing to
withdraw the notice announcing the wage freeze; (6)
refusing to provide financial data so that the collective-
bargaining representative could make an independent
evaluation of the employer's alleged inability to grant wage
increases ; and (7) refusing to provide financial data, both
corporate and systemwide essential for the bargaining
representatives to perform their statutory obligations.
Allegations (1), (2), (3), (4), and (5) are not in issue here.
Only the allegations that Teleprompter refused to furnish
profitability data for each of the three individual systems in
question are set forth in the complaint . There is no issue
before me concerning the promulgation of the wage freeze
or the Company's position with regard to negotiation of a
wage increase.
This matter was pleaded and heard on a very narrow
question. As stated by the General Counsel in his brief the
issue is:
Whether the above-named Respondents have violat-
ed Section 8(a)(1) and (5) of the Act by failing and
refusing to provide certain information regarding the
profitability of the Worchester, LaCrosse and Great
Falls Systems commencing on or about January 30,
1975.
And, as to this issue, there is very little dispute concerning
the facts. During the 1975 negotiations with the three locals
for their respective bargaining units , the Company stated
an intention not to agree to wage increases because of the
companywide wage freeze policy, which had resulted from
financial losses . The local unions, individually and through
their International, requested data supporting this conten-
tion, including the profitability data for the individual
systems in question. The Company did furnish information
concerning its overall financial condition but refused to
give the unions specific information concerning the profit-
ability of the three systems.
It is this refusal to furnish the specific profitability data
concerning the individual systems which is alleged by the
General Counsel to be violative of the Company's bargain-
ing obligations.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the General Counsel does not contend, although
the Charging Party may, that the data furnished by
Teleprompter after implementation of the wage freeze was
inadequate to demonstrate the Company's overall financial
inability to grant wage increases during 1975.
The General Counsel's theory appears to be twofold: (a)
the Company claimed a financial inability to grant wages
increases, hence it was required to furnish the profitability
data; and/or (b) in any event the data was necessary and
relevant to the locals for bargaining, hence the Company
was required to furnish it.
The General Counsel places principal reliance on
N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149 (1956).
In that matter, the union had asked for 10 cents an hour
wage increase with the company countering that it could
give no more than 2-1/2 cents, lest it would go out of
business . The union requested information from the com-
pany in support of this claim which the company refused to
furnish, on grounds it was not required to do so.
Given these facts, the Supreme Court held:
Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims. This is true about an asserted inability to pay an
increase in wages. If such an argument is important
enough to present in the give and take of bargaining, it
is important enough to require some sort of proof of its
accuracy. [Id at 152.]
The Court held that where, as in the case before it, the
employer raises the argument of financial inability but then
refuses to bring forth evidence to support its claim, the trier
of fact could therefrom conclude that the employer's claim
was not made in good faith. Hence, it was not bargaining in
good faith as it is required to do. The Court went on:
We do not hold, however, that in every case in which
economic inability is raised as an argument against
increased wages it automatically follows that the
employees are entitled to substantiating evidence. Each
case must turn upon its particular facts. [Citations
omitted.] The inquiry must always be whether or not
under the circumstances of the particular case the
statutory obligation to bargain in good faith has been
met. [Ibid ]
A literal reading of Truitt suggests the holding to involve
a matter of evidence, not a ruleof substantiative law. Under
Truitt, the question here is whether all the facts and
circumstances, including the refusal to furnish the informa-
tion requested, show that Teleprompter did not bargain in
good faith.
I conclude that the evidence is insufficient to support a
finding of bad-faith bargaining. Other than the fact that
Teleprompter refused to furnish profitability data for the
specific facility involved, there is no evidence of bad faith.
In fact, Teleprompter has numerous collective-bargaining
agreements with several labor organizations, including 35
agreements in bargaining units represented by locals of
IBEW. There is no evidence that during the course of the
negotiations in question, or any others,. Teleprompter did
not abide by its bargaining obligations. Early in negotia-
tions, for instance, Gillert offered a wage reopener in 6
months. Finally, agreements were reached soon after
Teleprompter determined to lift the wage freeze.
Additionally, I am impressed with the Respondents'
argument that its refusal to grant wage increases through-
out 1975 was part of an attempt by the corporation to
reverse its financial losses over the past few years. The wage
freeze, among devices, was implemented as a result of a
substantial earnings downturn and in part to insure the
successful negotiation of a multimillion dollar revolving
loan. The quarterly and annual reports go into great detail
concerning Teleprompter's total financial and management
situation, which is not necessary to summarize here. Suffice
it that I conclude from all the evidence of record, and there
is no real argument to the contary, that in fact Telepromp-
ter as a nationwide concern was losing money. Data
furnished the Unions amply demonstrated this fact.
There is testimony from an economist for IBEW that
from his analysis of the data he could not tell whether the
losses of the Company were attributable to labor costs or
not. Presumptively, therefore, if labor costs was not a
contributing factor then wages could be increased without
further harm. Whether this is an economically sound
argument need not to be determined.
The question is whether the Company's position of
inability to grant a wage increase was taken in good faith.
From the totality of the evidence I conclude it was. I further
conclude that the profitability of a particular facility did
not play an important role with regard to the companywide
wage freeze. The Company argues persuasively that had it
granted a wage increase to any of the locals involved in this
matter, then wage increases would have to have been
granted to employees in other units. Thus the overall
determination to keep wages static would have been
frustrated.
The point here is not ' whether the Company was totally
accurate with regard to its analysis of its financial condition
and what should be done about it. The question is whether
or not the Company negotiated with these three unions in
good faith. Specifically, the question is whetherthe Compa-
ny's position with regard to the wage freeze was an honest
claim. Finally, as -a matter of evidence, the question is
whether the Company gave sufficient proof of the adequacy
of its claim. I find that the evidence supporting the
Company's position with regard to the wage freeze through-
out 1975 shows it to have been an honest claim. The
Company did submit sufficient proof of necessity for the
wage freeze so as to satisfy its bargaining obligations under
the Truitt doctrine.
Although, Truitt, from a literal reading, appears to be a
doctrine of evidence, the requirement to furnish financial
data under certain circumstances has been broadened into
a more substantiative requirement. Thus the Supreme
Court cited Truitt when it stated, "There can be no question
of the general obligation of an employer to provide
information that is needed by the bargaining representative
for the proper performance of its duties." NLRB. v. Acme
Industrial Co., 385 U.S. 432,435 (1967).
In adopting the decision of the Administrative Law Judge
in Tony's Meats, Inc., 211 NLRB 625 (1974) the Board has
TELEPROMPTER CORPORATION
also indicated that Truitt stands for a substantive require-
ment: -
It is well recognized that the duty to bargain in good
faith includes the duty to substantiate claims, including
claims of inability to pay increased wages as well as
economic benefits requested by a union during collec-
tive-bargaining negotiations [citing Truitt and Stanley
Building Specialities Co., 166 NLRB 9841, and that an
employer must, upon request, provide the union with
evidence to support its alleged inability claims. [Id. at
626.]
Failure therefore to furnish the requested financial
information to support its inability to meet the union's
demands constituted a refusal to bargain on the part of the
company in violation of Section 8(a)(5).
And the Board, in Boulevard Storage & Moving Co. Inc., et
al., 152 NLRB 539 (1965), stated:
We agree with the Trial Examiner that the Act
requires an employer engaged in collective bargaining
to produce substantiating data, at the request of a
union, where the employer pleads financial inability to
pay a proposed wage increase [citing Truitt] or takes a
position that it is compelled to cut wages [The Celotex
Corporation, 146 NLRB 48], and that an employer's
claim that it could not grant an increase and remain
competitive so as to avoid losses is equivalent to a plea
of inability to pay. [Citations omitted. Id at 541.]
The Administrative Law Judge's Decision, adopted by
the majority of the Board panel in Unoco Apparel, Inc., 208
NLRB 601 (1974), is to like effect.
Relying on these cases, the General Counsel argues that
the individual profitability data was necessary so that the
local unions could intelligently conduct negotiations with
Teleprompter and specifically so that they could counter
the argument that no wage increase could be given because
of the Company's nationwide financial inability.
As indicated above, this corporation operates a 139 cable
television facilities in 33 States. It promulgated the compa-
nywide wage freeze for what appear to be good and
sufficient economic reasons. How could information con-
cerning the profitability, or perhaps lack of it, of an
individual system help analyze this broader issue? The mere
fact, for instance, that the corporation at its LaCrosse
facility was making money could not conceivably refute the
fact that overall the corporation was in a losing posture and
that it had to promulgate the wage freeze, among other
things, in order to extricate itself from that position.
The Charging Party argues that, since bargaining was on
a individual system basis, employees of a particular system
should not be penalized because other systems were losing
money or because of general corporate mismanagement. As
a matter of equity this may be valid; however, it does not
seem to have any particular bearing on whether the
profitability data requested was necessary in order for the
Unions to counter the Company's argument that it was
losing money on a nationwide basis.
From the record it is clear that the Company's position
was not so much that it was financially incapable, as to any
711
of the local systems in question, of paying a wage increase.
Rather, the Company's position was that as a matter of
corporate policy, in order to insure a -turnaround of its
financial fortunes, a wage freeze for all the corporate
officers and employees had to be instituted. The argument
therefore which each Union faced in negotiations was not
an inability to pay as to the local systems, but the uniform
wage freeze. Implicitly the Company concedes that the
facilities in question were profitable. The Company argues
only that for reasons other than individual profitability,
including successfully obtaining a bank loan, it had to
institute a wage freeze which would be applicable to the
three systems in question as well as the rest of the
corporation.
The argument which the Unions had to overcome, in
order to negotiate a wage increase in 1975, was the
companywide wage freeze. The Unions argue that the wage
freeze should not have applied to systems showing a'profit.
The Company argues that the wage freeze, to be effective
and achieve the desired results, had to apply across the
board-to all company officers and employees. This was
the issue. The Company in fact furnished substantial
information in support of its position-sufficient in my
judgment both to show that its position was taken in good
faith and so that the Unions could intelligently argue
concerning it.
On this issue the actual profitability of a specific system
made no difference. It can be assumed that each of the
three systems was profitable. Still the Company meant not
to negotiate any wage increases in 1975. In short, the
Unions had all the information necessary and relevant for
intelligent bargaining on this critical point-whether there
would be any wage increases in 1975.
The General Counsel appears to make the additional
argument that, apart from the Company's duty to furnish
the data in order to substantiate its bargaining position, the
Unions had a right to the data as necessary and relevant to
bargaining. With this argument the General Counsel leaves
Truitt, whether it is interpreted as defining a rule of
evidence or substantive law, and goes into a related area-
namely, a collective-bargaining representative is entitled to
such information in the Company's possession as is
necessary and relevant for the conduct of its collective-
bargaining obligations. N.L.R.B. v. Acme Industrial Co.,
supra.
The Board has consistently held that information rele-
vant and necessary to collective bargaining must be
furnished-e.g., employees names, addresses, job classifica-
tions, wages, hours and other current benefits. Dynamic
Machine Co., 221 NLRB 1140 (1975).
While "wages and related information pertaining to
employees in the bargaining unit is presumptively rele-
vant," Northwest Publications, Inc., 211 NLRB 464, 465
(1974), research has disclosed no case holding financial
data in that category. All cases requiring the production of
financial data have been in the context of an assertion of
inability to meet an economic demand. Nevertheless, I can
foresee a situation in which financial data could be
considered necessary and relevant even absent a "plea of
poverty." For instance, could not a bargaining agent make
a more rational wage demand in the first instance if it knew
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company's financial condition and could it not more
accurately calculate whether and to what extent to take
economic action to achieve a particular wage demand?
Whether disclosure of financial data absent a "plea of
poverty" may be required , under same circumstances,
however, need not be decided. Here, even with the
profitability data requested, the locals would have been in
no better position to formulate bargaining tactics. Given
the posture of the parties here, the profitability data for the
individual facilities was just not necessary for the locals to
bargain effectively.
CONCLUSIONS OF LAW
1. Respondent and each of its subsidiary companies
herein captioned are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers,
AFL-CIO, and its locals 135, 122, and 42 are labor
organizations within the meaning of Section 2(5) of the Act.
3. The local unions are respectively the certified repre-
sentative for purposes of collective bargaining in appropri-
ate units of the Respondents' employees at Teleprompter of
LaCrosse, Inc.,, Teleprompter of Great Falls, Inc., and
Teleprompter of Worchester, Inc.
4. The Respondents did not fail or refuse to bargain in
good faith with the bargaining representative representing
its employees at LaCrosse, Great Falls, or Worchester
during the 1975-76 negotiations.
5. The- General Counsel has not proved a preponder-
ance of the evidence that Respondent violated Section
8(a)(5) or (1) of the Act as alleged in the complaint.
[Recommended Order for dismissal -omitted from publi-
cation.]