The Daily Olympian

National Labor Relations Board - Board Decisions

Apr 9, 1985

275 N.L.R.B. 46 (N.L.R.B. 1985)

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
]Federated Publications , Inc. d/b/a The Daily Olym-
pian and Northwest Typographical Union No.
99, International Typographical Union, AFL-
CIO. Case 19-CA-16517
9 April 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 September 1984 Administrative Law
Judge Gerald A. Wacknov issued the attached de-
cision . The Union filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
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, i and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The judge found that the Respondent did not violate Sec 8(a)(5) and
(1) by refusing to provide the Union with information concerning its ad-
vertising department employees He noted the General Counsel's conces-
sion that the Union would not be entitled to the information in the ab-
sence of a determination through the grievance and arbitration procedure
that the Union represents the advertising department employees. The
judge also apparently found that the Union allowed the time to lapse
under the contractual grievance procedure for bringing the matter to ar-
bitration , and the Union has excepted to this finding
We find it unnecessary to rely on the judge's apparent finding that the
Union did not act in a timely fashion , and we conclude that the result
would not be altered even if we assume that the Union's grievance was
timely filed and is still viable The General Counsel has not met his
burden of establishing that the information sought was relevant to the
Union 's role as collective -bargaining representative of the unit employees
There has been no determination through the grievance and arbitration
procedure that the Union represents the Respondent 's advertising depart-
ment employees , and the General Counsel has conceded that the Union is
not entitled to the information in the absence of such a determination In
reaching our conclusion , we emphasize that no party contends that the
Board ' should defer to the contractual grievance and arbitration proce-
dure We also emphasize that the complaint alleges only that the Re-
spondent unlawfully refused to furnish information , and not that it has
unlawfully refused to process the Union's grievance.
DECISION
STATEMENT OF THE CASE
GERALD A . WACKNOV , Administrative Law Judge.
Pursuant to notice , a hearing with respect to this matter
was held before me in Seattle , Washington , on July 31,
1984. The charge was filed on February 13, 1984, by
Northwest Typographical Union No. 99, International
Typographical Union , AFL-CIO (the Union).
Thereafter, on March 28 , 1984, the Regional Director
for Region 19 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing al-
leging a violation by Federated Publications , Inc. d/b/a
The Daily Olympian (Respondent) of Section 8(a)(5) and
(1) of the National Labor Relations Act. Respondent's
answer, timely filed, denies the commission of any unfair
labor practices.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, a brief had been received from counsel for Re-
spondent.
On the entire record, and based on my observation of
the witnesses and consideration of the brief submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation with its office and place
of business located in Olympia, Washington, where it is
engaged in the business of publishing a daily newspaper.
In the course and conduct of its business operations, Re-
spondent has annual gross sales in excess of $200,000,
and annually purchases and causes to be transferred and
delivered to its facilities within the State of Washington
goods and materials valued in excess of $5,000 directly
from sources outside the State, or from suppliers within
the State which in turn obtained such goods and materi-
als directly from sources outside the State.
It is admitted and I find that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein , a labor organization within the
meaning of Section 2 (5) of the Act.
in. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
Respondent has violated Section 8(a)(5) and (1) of the
Act by refusing to furnish the Union with requested in-
formation.
B. The Facts
The Union has been the designated exclusive collec-
tive-bargaining representative of Respondent's employees
in an appropriate unit i Such recognition has been em-
bodied in successive collective-bargaining agreements,
the most recent of which is effective by its terms for the
period April 1, 1982, to September 15, 1985.
Section 4 of the current contract between the parties
contains, inter alia, the following language under the
heading "Jurisdiction":
i Although neither the complaint nor the contract contains a specific
unit description, it is clear that the Union's jurisdiction is limited to com-
posing room employees
275 NLRB No. 11
DAILY OLYMPIAN 47
JURISDICTION
Sec 4. It is recognized that this Agreement dif-
fers from previous agreements between the parties
in that it provides for job guarantees and other ad-
ditional considerations in lieu of a number of previ-
ous contract provisions including provisions con-
cerning jurisdiction, reproduction, and the use of
outside tape. It is understood and agreed between
the parties hereto as follows:
The Employer shall have the right to the full uti-
lization and unrestricted use of any technology,
equipment and processes which are or may be avail-
able during the term of this or succeeding agree-
ments.
The jurisdiction of the Union for the purpose of
collective bargaining shall be as defined in this Sec-
tion 4 herein. In recognition of this, composing
room employees, who shall consist solely of jour-
neymen and apprentices, agree to perform such
work as shall be assigned by the Employer to said
employees. The Employer shall have the right to
assign, reassign, or transfer any of the work required
by existing or new technology, equipment or processes
referred to in Paragraph 2 above to any department of
the Employer including departments not covered in
this Agreement The Employer shall have the sole
right to determine what constitutes such technolo-
gy, equipment, processes or methods. The Union
agrees to process any copy, tape, input or material
of any kind from any source. [Emphasis added.]
The Employer agrees to provide individual job
security protection for all employees in the compos-
ing room as outlined and to the extent provided in
the job security section of this agreement. The
work being performed in the composing room by
such employees shall, at any particular time during
the term of this agreement, constitute the jurisdic-
tion of the union subject to the rights of the em-
ployer to assign, reassign, or transfer work as stated
in this section herein. The employer, however, shall
not transfer any bargaining unit employees out of
the composing room without the mutual consent of
the employer and the employee
On September 21, 1983, Respondent sent the following
letter to the Union:
In accordance with the Jurisdiction section of the
contract now in effect between The Olympian and
Northwest Typographical Union No 99, The
Olympian will be assigning the pasteup of display
and classified advertising to the advertising depart-
ment of The Olympian.
The change will be effective January 2, 1983
[sic].
Despite the clear language of the contract, the Union
took the position that Respondent did not have the au-
thority to assign such work to advertising department
employees or, in the alternative, that the Union thereby
became the collective-bargaining representative of such
employees. In this regard, the Union sent the following
request to Respondent on January 16, 1984:
In order to properly prepare for our meeting 10:00
a.m., Friday, January 20, 1984, please supply this
office with the following information:
The names, addresses, date of employment,
hourly wage and fringe benefits provided the em-
ployees now performing work previously per-
formed by Composing Room employees.
To the extent any condition differs from that pro-
vided by the contract , this letter is intended to
grieve those violations on behalf of those affected
individuals.
Respondent has refused to furnish the requested infor-
mation on the basis that the advertising department em-
ployees who have been assigned the work in question,
pursuant to the foregoing explicit contract language per-
mitting Respondent to assign such work outside the unit,
are not represented by the Union. Therefore, according
to Respondent , the information is not relevant to the
Union 's status as collective -bargaining representative of
composing room employees.
The General Counsel takes the position that the Union
would not be entitled to the requested information
except in the event the contract is interpreted, through
the arbitration procedure under the contract, to confer
collective-bargaining rights to the Union on behalf of
those advertising department employees who have been
assigned the work.
C. Analysis and Conclusions
It is clear and indeed conceded by the General Coun-
sel that the Union would not be entitled to the requested
information unless it is determined , through the griev-
ance and arbitration procedure, that the Union represents
the advertising department employees in question. How-
ever , it appears that the Union has let the time lapse
under the contractual grievance procedure for bringing
the underlying matter to arbitration. Further, even if
such grievance remains viable, the Union would not be
entitled to the information until the grievance is resolved
in its favor , a highly unlikely event given the clear lan-
guage of the contract, which permits Respondent to
assign such work to employees in "departments not cov-
ered in this Agreement." As neither the Union nor the
General Counsel had demonstrated that the requested in-
formation is now relevant to a legitimate union need, I
shall dismiss the complaint in its entirety. See Press Dem-
ocrat Publishing Co. v. NLRB, 629 F.2d 1320 (9th Cir.
1980); Lumber Mill Employers Assn., 265 NLRB 199
(1982); E. L du Pont de Nemours & Co., 268 NLRB 1031
(1984).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not violated Section 8(a)(5) and (1)
of the Act as alleged.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The complaint is dismissed in its entirety
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses