The Grand Rapids Press

National Labor Relations Board - Board Decisions

May 31, 2000

331 N.L.R.B. 296 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296
The Grand Rapids Press, a Division of Booth News-
papers, Inc., a Division of the Herald Company
and Detroit Newspaper Local 13N, Graphic
Communications International Union, AFL–
CIO. Case 7–CA–41951
May 31, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On March 14, 2000, Administrative Law Judge Eric
M. Fine issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Grand Rapids Press, a
Division of Booth Newspapers, Inc., a Division of the
Herald Company, Grand Rapids, Michigan, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

Steven Carlson, and A. Bradley Howell, Esqs., for the General
Counsel.
Bruce H. Berry, Esq., of New York, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Grand Rapids, Michigan, on October 20, 1999. The
charge was filed by the Detroit Newspaper Local 13N, Graphic
Communications International Union, AFL–CIO (the Union).
The complaint alleges that The Grand Rapids Press, a Division
of Booth Newspapers, Inc., a Division of the Herald Company
(the Respondent) violated Section 8(a)(5) and (1) of the Act by
refusing to provide the Union with requested information.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d. Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In adopting the judge’s conclusions that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by failing and refusing to furnish the
Union with the complete personnel files of the 22 bargaining unit em-
ployees and any future memoranda intended for personnel files regard-
ing any bargaining unit member’s work performance or alleged mis-
conduct, we note that the memoranda at issue, which Baker, the Re-
spondent’s operations director, entered and retained on his computer,
were intended to be part of unit employees’ personnel files.
1 All dates are in 1999 unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has published a daily news-
paper at its facility in Grand Rapids, Michigan, where it annu-
ally receives gross revenues in excess of $200,000, and in
which it advertises various nationally sold products. The Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
I find that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act, and that by virtue of Section 9(a)
of the Act, the Union is the exclusive bargaining representative
of the Respondent’s employees in the following unit appropri-
ate for collective bargaining within the meaning of Section 9(b)
of the Act:

All pressroom employees employed under the conditions and
at the scale of wages set forth in the parties’ collective-
bargaining agreement, but excluding foremen, supervisors,
guards, and clerical employees as defined under the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
The Union has been the collective-bargaining representative
of the unit employees since 1967. Jack Howe is a printing
pressman and the president of the Union. The Union is repre-
sented at the Respondent by employees who serve as chapel
chairman and assistant chapel chairman. Earnest Bellechasses
was the chapel chairman at the time of the hearing.
Todd Ramsey was discharged by the Respondent on Decem-
ber 22, 1998, and Robert Dykhuizen was discharged in early
1999. The Union filed grievances over both discharges. Both
individuals were bargaining unit employees and union represen-
tatives at the Respondent at the time of their discharge.2 Howe
investigated the grievances and reviewed the employees’ person-
nel files. The Union found memos that were disciplinary in na-
ture in the personnel files that were unknown to the Union and
the employees. The memos were written by Pete Baker, the
Respondent’s operations director. The Union produced the
memos at the unfair labor practice hearing. There were five
memos produced from Ramsey’s file with dates of November 14,
1997, and June 18, September 9, December 15, and December
22, 1998. In the November 14 memo, Baker states that he met
with the union leadership, and told them that he had information
that the “web was broken on purpose and warned them if we can
ever prove sabotage there will be a dismissal.” The June 18
memo states that there was a meeting with the union leadership
and the pressroom about what was deemed improper pictures of
women in the pressroom. It was stated that the employees were
told that this was the second and last warning and that there were
jobs at stake. The September 9 memo involves an incident where
Baker allegedly witnessed Ramsey leaving the building early.
The memo states that Ramsey was warned concerning this con-
duct which if it occurred again would lead to discipline up to and
including discharge. The December 15 memo documents reports
concerning alleged problems with Ramsey’s performance, and
the December 22 memo documents a series of events and allega-
tions leading to Ramsey’s suspension and discharge. The memos
2 The employees were discharged, at least in part, due to allegations
of sabotage.
331 NLRB No. 43
BOOTH NEWSPAPERS, INC. 297
produced from Dykhuizen’s file were dated January 28, February
1, and February 22, 1999. The January 28 memo documents a
meeting with Baker, Dykhuizen, and Bellechases concerning a
dispute as to whether double time was to be paid for certain Sun-
day work. The memo states that, “After the meeting Bob was so
mad he threw a plate on back-side of press out of anger.” The
February 1 memo concerned a warning to all pressroom employ-
ees about alleged acts of sabotage and possible discharge of an
employee as a result. The February 22 memo contained allega-
tions that Dykhuizen was intentionally slowing down his press.3
By letter to Baker dated March 29, Howe requested the
“complete personal file” for 22 named pressroom bargaining
unit employees. By letter to Howe dated March 31, Respon-
dent’s attorney, Bruce Berry replied to the Union’s information
request stating that:

We are unaware of any grievances concerning any of
those individuals. In addition, it does not appear that the
Bullard-Plawecki statute provides you with right of access
to those files.
Accordingly, we must deny your request pending an
explanation as to why you seek copies of those files.

By letter to Berry dated April 5, union attorney, Duane Ice
wrote, in pertinent part, the following in continuance of the
Union’s pursuit of the requested information:

You asked for the rationale for Local 13’s request for
information—the complete personnel files of bargaining
unit employees.
The Grand Rapids Press has discharged in the last
couple of years four chapel chairmen or assistant chapel
chairmen (stewards and assistant stewards): Cecola,
Dietrick, Ramsey, and Dykhuizen. Grievances are now
pending concerning Ramsey and Dykhuizen. In addition,
Local 13 filed an unfair labor practice charge alleging that
the Grand Rapids Press has a discriminatory policy and
practice of discharging Local representatives.
In the course of representing the four discharged Local
representatives named above, Local 13 learned that the
personnel files contained within them various memos to
the personnel file. These memoranda recited occurrences
and statements which allegedly occurred. These memo-
randa, the Local believes, were used and will be used to
support the discharges.
Local 13 needs the personnel files for several reasons:

1. Memoranda of the type described above might con-
stitute grievable events all by themselves. They are disci-
plinary in nature and are ultimately used to support disci-
pline or discharge. Why else do they exist? If memoranda
exist which would arguably constitute discipline or argua-
bly constitute support for or a basis of discipline, the Local
is entitled to grieve those memoranda. The Local does not
have to wait until a discharge occurs to learn of the exis-

3 There was also a memo dated November 18, 1997, produced at the
hearing from the personnel file of discharged employee and former
union representative, Tony Cecola. The Union gained access to Ce-
cola’s file while processing his discharge grievance. The memo refer-
enced a meeting between management and union officials, including
Cecola, concerning an allegation of sabotage on a press. Three em-
ployees who worked in the area of the press break were named in the
memo. While the document was maintained in his personnel file, Ce-
cola was not one of the three named employees.
tence of such memoranda, contest their insertion in the
personnel file or contest their content.
2. The Local is entitled to know what is in the files of
bargaining unit members at the present time so that if the
Company, as the Local believes, adds memoranda to the
file after the fact, such memoranda can be challenged on
that basis. The argument would be that the Company, in
future discipline, is entitled to consider the past work re-
cords as it exists, but the Company is not entitled to pad or
manipulate that work record. The Local needs to be able
to demonstrate such padding or manipulation occurs and
needs a “benchmark” file. As I said, this issue is not based
on mere suspicion; it is demonstrable that memoranda
never disclosed to or discussed with Ramsey, Dykhuizen,
Cecola, and Dietrick were included in their personnel files
and turned over to the Local only after they were dis-
charged.
3. The Local desires to investigate further whether the
Company is discriminating against Local representatives.
It needs additional information to do so. The collective
bargaining agreement states, in section 20.2, that “An em-
ployee shall not be discharged for Local activities, except
and unless such activities interfere with the normal and
regular work at the Company.” If there is such discrimina-
tion, the Local intends to grieve under section 20.2 to end
the practice. Such discrimination might be evidenced in
one of two ways: (1) at the point the Company discharged
Local representatives, the Company inserted memoranda
into the personnel files of these individuals, but no similar
memos exist in other personnel files even though the
events might relate to other individuals, or (2) such memo-
randa exist in a number of personnel files, on the same oc-
currences, but the Company selectively discharged Local
representatives. The Local is entitled to grieve any dis-
crimination practice within 10 days of “knowledge” of the
discrimination, even though the discharges occurred at
various times more than 10 days ago. (section 18.2 of the
contract.) Further, a discriminatory practice would be a
continuing violation.
In addition, Local 13 hereby makes the following
standing information request: any future memoranda re-
garding any bargaining unit member’s work performance
or alleged misconduct. We desire the memoranda at the
time of the event or conversation they relate to, so they
can be challenged if necessary. We do not want the Local
or the bargaining unit member to learn of their existence
only at the time of discharge. If we are not provided such
memoranda, we will argue that the Company is barred
from using them as support for later discipline or dis-
charge. The Local wants to be able to challenge such
memoranda contemporaneously with the events, when
memories are fresh and witnesses are available. The Local
makes this request because of the history recited above.
Please let me know whether you will make the person-
nel files available. If not, it will be necessary to file an un-
fair labor practice charge.

Berry responded by letter dated April 8 where he stated, in
pertinent part:

Your letter failed to show that the information re-
quested is relevant to any pending grievance or the ad-
ministration of the collective-bargaining agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298
Therefore, The Press will not produce the requested in-
formation.
With respect to your request for future memoranda re-
garding any bargaining unit member’s work performance
or alleged misconduct, there is no provision in the contract
which entitles the Union to such information. In addition,
it has not been the parties’ practice for the Company to
provide the Union with copies of such memoranda. If the
Union wishes to change this condition of employment, we
suggest raising the issue when the next contract is negoti-
ated.

At the time of the unfair labor practice hearing, Ramsey and
Dykhuizen’s cases had been to arbitration and the parties were
waiting for the arbitrator’s decisions. The due date for the arbi-
trator’s decision was 30 days from the date that the briefs were
filed with the arbitrator. At the time of the hearing, the briefs
had been filed in the Ramsey arbitration, but they had not been
filed in the Dykhuizen case. Howe testified that he did not
know if there was anything that allowed the Union to reopen
the arbitration record if they obtained new evidence, but that, “I
would assume that we would at least have the right to grieve if
we discover new evidence. Also, the arbitrator was asked to
remain in control of the arbitration for the settlement of (the)
grievance.” Howe conceded that it was the Union, not the Re-
spondent, that entered the above-described memos concerning
Ramsey and Dykhuizen into the record before the arbitrator.
The collective-bargaining agreement in effect at the time of
the unfair labor practice hearing has an April 1, 1998, effective
date. Dietrick and Cecola were discharged before this
collective-bargaining agreement was negotiated. Their cases
settled short of arbitration. The Union requested and received
copies of Dietrick and Cecola’s personnel files in order to in-
vestigate their discharges, and a suspension that Dietrick had
received 2 years prior to his discharge. Along these lines,
Howe conceded that he was aware that there were memos in
personnel files before Ramsey and Dykhuizen were discharged,
but he stated that the memos were isolated. Howe credibly
testified that the Union felt that the memos in Ramsey and Dyk-
huizen’s files were different than prior memos in that they were
less specific and did not necessarily relate to the employee in
whose file they were maintained.4
During negotiations for the most recent collective-bargaining
agreement, the Union did not request that a right to review
personnel files be incorporated in the contract and the collective-
bargaining agreement does not contain a provision directly

4 In crediting this aspect of Howe’s testimony, I would note that dur-
ing counsel for the Respondent’s questioning of Howe concerning his
alleged prior knowledge that employees’ files contained memos similar
to those in dispute, I gave counsel the following admonition:
JUDGE FINE: Well I would suggest, I mean, that if you have
some particular memos that he’s seen before in other files that you
think are comparable to these, that you show them to him because–
otherwise I’m not going to know what to make of any of this.
Yet, the Respondent failed to show Howe or otherwise introduce
memos that it asserts demonstrate that the Union had knowledge, be-
fore the signing of the parties’ current collective-bargaining agreement,
that Baker had a practice of creating the memos in dispute. Accord-
ingly, and based on considerations of demeanor, I credit Howe’s testi-
mony as set forth above. I also credit Howe’s testimony that the num-
ber and nature of the memos contained in Ramsey and Dykhuizen’s
files led Howe to make the Union’s current information request.
dealing with information requests. Article 19.1 of the contract
concerning the adjustment of disputes provides:

Should a dispute arise between the parties, a protest
may be raised by the Union and processed to the first step
of the following three step procedure. Any such dispute
relative to the scale of wages or construction to be placed
upon any clause of this Agreement, or alleged violations
thereof may continue through the second and third step of
the procedure.

The grievance procedure culminates in binding arbitration.
Baker’s testimony revealed that when he meets with union
officials he keeps a record of the meeting by maintaining notes
in his computer. Baker makes similar notes when there are
disciplinary meetings with employees which are attended by
union representatives. The notes are made within 1 or 2 days of
the meeting, but are not printed out at the time that they are
made. The employee is not informed that notes are being
made. The notes are printed when there is a discharge and the
personnel file is requested. Baker also prints out a copy of the
notes if an employee requests a copy of his personnel file.
Baker testified that it was his “understanding that the notes are
a part of the personnel file,” and that he obtained this under-
standing from the Respondent’s attorney.
Baker explained that the notes concerning employees could
relate to incidents where the employee is warned of possible
discipline for a repeat offense or where an employee is actually
disciplined. Baker testified that, “at the time of the termination
any note that I had that was relevant to Mr. Dykhuizen was
included in his personnel file.” Baker testified that discipline
short of termination, including oral and written warnings, can
be grieved under the collective-bargaining agreement and that
warnings and suspensions are arbitrable under the contract. He
testified that written warnings are different from his notes in
that the employee is given a copy of the written warning which
is put in the employee’s personnel file immediately. According
to Baker, the significance of a written warning is that if the
employee repeats the offense they can be discharged. Baker
memorializes, in his notes, oral warnings that he gives to em-
ployees. He explained that an oral warning can be preliminary
to a written warning.
IV. POSITIONS OF THE PARTIES
The General Counsel argues that the information sought is
presumptively relevant in that it relates to bargaining unit em-
ployees. It is argued that information also relates to pending
grievances concerning Ramsey and Dykhuizen and that the
Union is entitled to information even if there were no pending
grievance to allow it to police the contract. That is, the Union
has a right to the information in order to decide whether to file
a grievance. It is asserted that the Respondent’s statutory duty
to furnish the information exists regardless of whether the right
to the information is specified in the parties’ collective-
bargaining agreement.
The Respondent states in its posthearing brief that the parties
were still waiting for the arbitrator’s decision in the Ramsey
case, but that a decision favorable to the Union had issued in
the Dykhuizen arbitration. The Respondent argues at page 10
of its brief that:

[T]he General Counsel has failed to establish the rele-
vancy of its request for present and future personnel files.
There were no pending arbitrations or grievances for
BOOTH NEWSPAPERS, INC. 299
which these files would have been relevant. The Dietrick
and Cecola matters settled. The parties are awaiting a de-
cision on Ramsey which was fully litigated before the ar-
bitrator. A decision has been reached in Dykhuizen. The
Union requested and received copies of the personnel files
of Dietrick, Cecola, Ramsey, and Dykhuizen following
their respective terminations. More importantly, the Com-
pany, if there is a pending grievance or arbitration, has al-
ways made personnel files of disciplined or terminated
employees, available to the Union.
Howe testified that he was aware there were memos in
personnel files prior to the Ramsey and Dykhuizen griev-
ances. This knowledge was well before contract negotia-
tions for the current agreement. Despite this knowledge,
the Union did not bargain for a provision in the agreement
that would allow the Union access to the personnel files
whether or not a grievance was pending.

The Respondent contends that the Union is “fishing” for in-
formation for which it is not entitled. The Respondent argues
at page 16 of its brief that the memos, “are merely a memory
aid to Baker.” It is contended that the Union does not need the
memos to grieve “disciplinary matters, as the Union is fully
aware of when an employee receives an oral or written warn-
ing.” The Respondent argues that Baker’s testimony is undis-
puted that the Union is present for all verbal warnings to press-
room employees. It asserts the Respondent did not rely on the
memos in proving its case at the Ramsey or Dykhuizen arbitra-
tions. Rather, it was the Union that submitted the memos into
evidence at the Ramsey arbitration. The Respondent asserts
that the Union was able to litigate both cases to conclusion
without the information it currently seeks.
The Respondent states at page 18 of its brief that:

Most of the information in the personnel files fur-
nished to the Union and in evidence in this case related to
the Company’s investigations into the discharges. Under
the Bullard-Plawecki Employee Right to Know Act, the
information furnished the Union falls with the definition
of a personnel file.

The Respondent recites the following portion of the referenced
Michigan State statute at page 18 of its brief:

“Personnel records” means a record kept by the employer that
identifies the employee, to the extent that the record is used or
has been used, or may affect or be used relative to that em-
ployees’ qualifications or for employment, promotion, trans-
fer, additional compensation, or disciplinary action. . . . How-
ever, a record concerning an occurrence or fact about an em-
ployee kept pursuant to this subparagraph may be entered in
to a personnel record if entered not more than 6 months after
the date of the occurrence or the date the fact becomes known.
MSA §17.62(1).

It is asserted in the brief that the Respondent furnished the
memos to the Union, leading to the current information request,
on advice of counsel based on this State’s statute.
V. ANALYSIS
A. Legal Principles
In Leland Stanford Junior University, 307 NLRB 75, 80
(1992), the following principles were set forth:

Section 8(a)(5) and (1) of the Act imposes on an em-
ployer the obligation to furnish information requested by a
union which is necessary for, and relevant to, the union’s
performance as the exclusive bargaining representative of
its employees. Detroit Edison Co. v. NLRB, 440 U.S. 301,
303 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432
(1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 151–154
(1956); San Diego Newspaper Guild Local 95 v. NLRB,
548 F.2d 863, 866–867 (9th Cir. 1977).
. . . .

The standard for assessing relevancy is a liberal discovery-
type standard requiring only a probability that the requested
information is relevant and will be of use to the union in car-
rying out its statutory duties and responsibilities as the em-
ployees’ bargaining representative. Consequently, the Board
and the courts have consistently held that information relating
to the terms and conditions of employment of unit employees
is presumptively relevant because it goes to the core of the
employer-employee relationship and no specific showing of
relevance is required. The burden falls upon the employer to
prove a lack of relevance. However, where the information
sought relates to matters outside the unit, the union has the
burden of showing relevancy. NLRB v. Acme Industrial Co.,
supra; Graphic Communications Local 13 v. NLRB, 598 F.2d
267, 271 (D.C. Cir. 1979); San Diego Newspaper Guild Local
95, supra.
Applying these principles, the Board has long held that
Section 8(a)(5) of the Act obligates an employer to furnish
requested information which is potentially relevant to the
processing of grievances. An actual grievance need not be
pending nor must the requested information clearly dis-
pose of the grievance. It is sufficient if the requested in-
formation is potentially relevant to a determination as to
the merits of a grievance or an evaluation as to whether a
grievance should be pursued. United Technologies Corp.,
274 NLRB 504 (1985); TRW, Inc., 202 NLRB 729, 731.

Concerning the type of information in dispute here, the
Board has repeatedly held that requested bargaining unit em-
ployee disciplinary records are “presumptively relevant and
must be furnished on request, unless (the) relevance it rebut-
ted.” See Antioch Rock & Ready Mix, 328 NLRB No. 116, slip
op. at 1 (1999), where “copies of all disciplinary notices, warn-
ings or records of disciplinary personnel actions for the last
year,” were required to be produced. See also, Prime Energy
Limited Partnership, 328 NLRB No. 143, slip op. at 1 (1999)
(not reported in bound volume). In General Dynamics Corp.,
270 NLRB 829 (1984), a respondent was required to provide
computer printouts showing disciplinary runs for five depart-
ments of employees. In Pfizer, Inc., 268 NLRB 916 (1984),
enfd. 763 F.2d 887 (7th Cir. 1985), the Board noted that “Arbi-
trators routinely consider employee work records in deciding
whether employers have applied their disciplinary rules in a
consistent, evenhanded, and nondiscriminatory manner.” See
also Washington Gas Light Co., 273 NLRB 116 (1984). The
Board has also required employers to provide unions with per-
sonnel files of employees. See Saginaw General Hospital, 320
NLRB 748 (1996). This is particularly so, in instances where
discipline of employees is at issue. See Leland Stanford Junior
University, supra.; Bacardi Corp., 296 NLRB 1220 (1989); and
Bloomsburg Craftsmen, 276 NLRB 400 (1985).
In NLRB v. New Jersey Bell Telephone Co., 936 F. 2d 144,
151–153 (3d Cir. 1991), the court enforced the Board major-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300
ity’s order requiring the respondent to provide a union with a
requested security department report and the first page of a
computer record concerning a customer complaint. The court
distinguished the requested materials from witness statements
which the Board had held in prior cases did not have to be pro-
vided. In doing so, the Third Circuit stated:

Most persuasively, businesses have been ordered to
reveal documents similar to those at issue here. In United
Technologies Corp., 277 NLRB 584 (1985), the Board or-
dered the disclosure of all internal security investigative
reports concerning alleged employee negligence. The
Board rejected the corporation’s argument that such re-
ports need not be released simply because they contained
the results of supervisory investigations. See id. at 588–
589.
While there are factual differences between the Secu-
rity Reports involved in United Technologies and the Se-
curity Reports here, United Technologies stands for the
broader proposition that investigative reports, relied upon
by management when disciplining an employee, are gen-
erally discoverable. . . . This rule is compatible with the
underlying purposes of the Act in general, and Section
8(a)(5) in particular. It would be difficult for an em-
ployee’s representative to be effective without access to
the facts underlying management’s disciplinary decision.
Additionally, a rule that prohibits management from
shielding its investigative reports by making a bare asser-
tion that those reports are, or merely contain, witness
statements, is also a permissible construction of the Act.

In affirming the Board’s conclusion that the requested materials
did not constitute a witness statement, the court quoted from the
Board majority as follows:

It is undisputed that the [complaining] customer did
not review the reports, have them read to her . . . or in any
manner adopt them. . . . Further, there is no contention
that the reports are or even approximate a verbatim tran-
script. . . . [T]he reports are in essence the handiwork of
the Respondent’s officials, reflective only of their impres-
sions of what transpired . . . as well as whatever other ma-
terial the officials may have deemed appropriate to include
in the reports.

The Board majority stated in New Jersey Bell Telephone Co.,
300 NLRB 42, 43 (1990), enfd. 936 F.2d 144 (3d Cir. 1991),
that, “Under these circumstances in which the connection be-
tween the complaining customer and the reports prepared by
the Respondent’s officials is so attenuated, we find that the
reports are far more readily characterized as the work product
of the Respondent than as a statement by the complaining cus-
tomer. See Square D Electric Co., 266 NLRB 795, 797 (1983);
United Technologies Corp., 277 NLRB 584, 589 (1985).”
B. Conclusions
I find that, by applying the principles set forth above, the in-
formation sought by the Union is relevant to the performance of
its statutory functions and that the Respondent has failed to
establish a defense justifying its refusal to supply the informa-
tion. The Union is requesting the personnel files of 22 bargain-
ing unit members in order to obtain memos maintained by the
Respondent, as part of those files, relating to the discipline of
bargaining unit employees. The Respondent asserts in its
posthearing brief that the General Counsel has failed to estab-
lish the relevancy of the Union’s request for present and future
personnel files. However, since the requested information re-
lates to discipline of bargaining unit employees it is presump-
tively relevant and the burden is on the Respondent to demon-
strate lack of relevancy. See Leland Stanford Junior University,
307 NLRB 75, 80 (1992); Prime Energy Limited Partnership,
328 NLRB No. 143 (1999) (not reported in bound volume); and
Antioch Rock & Ready Mix, 328 NLRB No. 116 (1999) (not
reported in bound volume).
Even assuming arguendo, as asserted in the Respondent’s
posthearing brief, that an arbitrator has sustained the Dykhuizen
grievance, and considering the status of the Ramsey grievance
at the time of the unfair labor practice hearing, I do not agree
with Respondent’s contention that the Union’s information
request as it relates to those grievances has been rendered moot
or that the complaint should otherwise be dismissed. It was
stated in Mary Thompson Hospital, 296 NLRB 1245, 1250
(1989), enfd. 943 F.2d 741 (7th Cir. 1991), that, “One of the
Respondent’s defenses is that the request for information made
by the Union in this case is moot because the Hospital has
closed its doors and the bargaining unit no longer exists. The
right of the Union to the information requested must be deter-
mined by the situation which existed at the time the request was
made, not at the time the Board or the courts get around to vin-
dicating that right. Otherwise, important rights under the Act
would be lost simply by the passage of time and the course of
litigation. Part of the duty to supply relevant information in-
cludes the duty to do so in a timely fashion.” See also NLRB v.
U.S. Postal Service, 128 F.3d 280, 284 fn. 6 (5th Cir. 1997);
Providence Hospital v. NLRB, 93 F.3d 1012, 1020 (1st Cir.
1996); and Washington Gas Light Co., 273 NLRB 116 (1984),
where the Board issued an affirmative order requiring the
production of certain disciplinary records, although an
arbitrator had already ordered the grievant reinstated.
The above cited case law demonstrates, and I so find, that the
Respondent is obligated to supply the Union with the requested
information, even if the underlying grievances for which it was
requested settled while the Union’s information request was
being litigated before the Board and the courts. In the instant
case, the complaint reads, in pertinent part, that “Since about
March 29, 1999, and continuing to date, Respondent has failed
and refused to provide complete and timely information as
requested by the Charging Union.” Thus, the Respondent was
on notice that its failure to provide the information in a timely
fashion was alleged as unlawful. Accordingly, the Respon-
dent’s refusal to provide the requested information in a timely
manner in and of itself warrants a finding that it violated Sec-
tion 8(a)(5) and (1) of the Act.
Moreover, I do not find that the Union’s information request
concerning the Ramsey and Dykhuizen grievances has been
rendered moot here. First, the Respondent has never provided
the requested information or engaged in alternative action that
would obviate the Union’s need for the information. The Un-
ion was requesting the information in an effort to establish
disparate treatment by the Respondent of union representatives
Ramsey and Dykhuizen. Under the state of the record before
me at the time of this trial, the Ramsey and Dykhuizen griev-
ances remained pending before an arbitrator. Even if an arbi-
trator’s award favorable to the Union has subsequently issued
in one or both of these grievances, there is no evidence or
contention before me that the Respondent has complied with
those awards. In this regard, Howe’s credited testimony is
undisputed that the arbitrator had agreed to maintain control
BOOTH NEWSPAPERS, INC. 301
puted that the arbitrator had agreed to maintain control over the
arbitrations until the settlement of the grievances. Howe also
testified that whether or not the Union had the right to reopen
the record before the arbitrator concerning these grievances,
that he assumed that the Union at least had the right to grieve if
they discovered new evidence. In these circumstances, the
Respondent has failed to establish that the requested informa-
tion would no longer be useful to the Union as it pertained to
the Ramsey and Dykhuizen grievances.
Regardless of whether the requested information continues to
be needed to litigate or help resolve the Ramsey and Dykhuizen
grievances, Ice’s April 5 letter informed the Respondent that
the Union was seeking the information for matters beyond the
pending grievances. It was stated there, that the Respondent
had discharged four union officials in the last couple of years
and the Union was attempting to investigate whether the Re-
spondent was engaging in a practice of discriminating against
Local officials. It was stated that section 20.2 of the collective-
bargaining agreement provides that, “An employee shall not be
discharged for Local activities,” and that if there was such a
practice the Union intended to independently grieve it.5 It was
also pointed out in the letter that if memos exist in other em-
ployees’ files, “which would arguably constitute discipline or
support for discipline, the Local is entitled to grieve those
memoranda.” The Respondent was also informed that the Un-
ion wanted the records to prevent the Respondent from padding
or manipulating employees’ files in cases of future discipline.
Baker’s testimony reveals that oral and written warnings to
employees are memorialized in his notes, which Baker consid-
ers to be part of the employees’ personnel file. The Respondent
uses a progressive disciplinary procedure in that an oral warn-
ing can be preliminary to a written warning which in turn can
be preliminary to an employee’s discharge. Baker testified that
employees were not informed that his notes were being made
part of their file. Baker also testified that discipline, including
oral warnings, is grievable under the collective-bargaining
agreement, and that it was his view that suspensions and warn-
ings are arbitrable under the contract.
The forgoing reveals that the Union has informed the Re-
spondent that it needs the requested information to determine
whether to file additional grievances that are cognizable under
the parties’ contract. As set forth above, this is a legitimate
function of the Union, for the Board has held that an actual
grievance need not be pending for the Union to be entitled to
requested information. Rather, it is sufficient if the requested
information is potentially relevant to an evaluation as to
whether a grievance should be pursued. See Leland Stanford
Junior University, 307 NLRB 75, 80 (1992); United Technolo-
gies Corp., 274 NLRB 504 (1985); and United-Carr Tennessee,
202 NLRB 729, 731.6 Thus, regardless of the status of the

5 Ice was in actuality referring to contract sec. 21.2.
6 The actual arbitrability of these potential grievances does not con-
stitute a defense for the Respondent’s refusal to provide the requested
information. The Board stated in United Technologies Corp., supra,
that a respondent’s assertion that a particular grievance was not arbitra-
ble was not a defense to its refusal to provide a union with requested
information. It was stated that, “The Board consistently has rejected
similar arbitrability arguments.” The Board explained that, “before a
union is put to the effort of arbitrating even the question of arbitrability,
it has a statutory right to potentially relevant information necessary to
allow it to decide if the underlying grievances have merit and whether
they should be pursued at all.” In fact, the Board has held that a union
Ramsey and Dykhuizen grievances, the Union has established a
continuing need for the requested information.
I do not find the Respondent’s contention persuasive that a
union official’s presence when an employee receives an oral
warning obviates the need for the Union to review Baker’s
memorandum concerning that warning before filing a griev-
ance. First, Baker testified that an employee is not advised that
a memo is being placed in their personnel file as a result of
these meetings. While it can perhaps be argued that the Union
is currently aware of Baker’s policy of placing memos in the
employee’s file, the Union is entitled to review the memo be-
fore deciding whether Baker’s conduct warrants the filing of a
grievance. In this regard, Baker’s practice creates at least two
different issues. The first is whether the employee was prop-
erly warned, and the second is whether the warning has been
appropriately memorialized in the employee’s file. In this re-
gard, Howe credibly testified that some of the incidents that
Baker memorialized were raised during the Ramsey and Dyk-
huizen arbitrations and there were disagreements between the
parties as to the facts concerning the underlying incidents.
Moreover, if the Union did concur with the manner in which
Baker memorialized an incident, it may obviate the need for the
Union to file a grievance. I therefore conclude that the Union
was entitled to the actual memos which, per Baker’s admission,
constituted disciplinary records that were made a part of em-
ployees’ personnel files. It is not incumbent upon the Union to
go through the burdensome procedure of polling its members
and Local officials to obtain their second hand opinions as to
how Baker viewed a particularly incident. See Chesapeake &
Potomac Telephone Co., 259 NLRB 225, 231 (1981), enfd. 687
F.2d 633 (2d Cir. 1982). Moreover, I conclude that Baker’s
memos constituted disciplinary reports and work product of the
Respondent which are “generally discoverable” pursuant to a
Union’s request for information. NLRB v. New Jersey Tele-
phone Co., 936 F. 2d 144, 151 (3d Cir. 1991).7

is entitled to requested information in order to process a grievance
through an employer’s internal grievance procedure where no collec-
tive-bargaining agreement was in place. See Westside Community
Mental Health Center, 327 NLRB 661 (1999).
7 Cases cited by the Respondent do not require a different result.
Bohemia, Inc., 272 NLRB 1128 (1984), involved a request for informa-
tion concerning the alleged transfer of bargaining unit work to another
facility. The Union’s information request concerning the operations of
both plants was held not to be presumptively relevant and the Union
failed to establish its relevancy. The Respondent also cites NLRB v.
U.S. Postal Service, 128 F.3d 280 (5th Cir. 1997), where the Court
refused to enforce a Board order concerning the provision to a union of
two requested personnel files. First, it must be said that this case re-
versed a Board ruling, and I am bound by Board law. See Ford Motor
Co., 230 NLRB 716, 718 fn. 12 (1977), enfd. 571 F.2d 993 (7th Cir.
1978), affd. 441 U.S. 488, 493 fn. 6 (1979). Moreover, in the Postal
Service decision, the court concluded that some of the information
contained in the personnel files was relevant to the union’s grievance.
However, the Postal Service had raised privacy concerns in refusing to
turn over the complete files. The court noted that the Postal Service
had in fact turned over some of the information to the union and there-
fore had attempted to accommodate the union’s request. The court
therefore remanded the case to the Board for consideration of whether
the parties should engage in accommodative bargaining about the re-
mainder of the materials to be provided. The Respondent here has not
raised privacy claims as a defense to providing the Union with the
requested information and it has not offered any accommodation with
respect to the Union’s information request. Moreover, the Union is not
engaged in a fishing expedition as the Respondent contends for the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 302
I also reject the Respondent’s contention that the Union should
be denied the requested information because it failed to negoti-
ate a provision in the parties’ collective-bargaining agreement
calling for the general production of personnel files. It is stated
in Wayne Memorial Hospital Assn., 322 NLRB 100, 104
(1996), that:

The Respondent claims that its “written consent” pol-
icy has been in effect for more than 20 years, and that the
Union was fully aware of the practice but has not, prior to
the Quales’ grievance, complained or objected to it. While
conceding that the Union’s failure to object would not,
without more, constitute a waiver, it nevertheless argues
that the Union’s inaction in this regard, when viewed to-
gether with the Union’s purported acknowledgment, ac-
quiescence, and adherence to the policy, clearly estab-
lished “a mutual, longstanding practice” between the par-
ties, and amounted to a clear and unmistakable waiver by
the Union of its right to access personal files without writ-
ten authorization from employees. I disagree.
The law regarding waivers of statutory rights is fairly
well settled. As the Respondent readily acknowledges in
its posthearing brief, such a waiver must be clear and un-
mistakable, Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983); New York Telephone Co., 299 NLRB
351, 352 (1990), and will not be lightly inferred by the
Board. Owens-Corning Fiberglas Corp., 282 NLRB 609
(1987). Further, when relying on a claim of waiver of a
statutory right, the employer bears the burden of proving
that a clear relinquishment of that right has occurred,
NLRB v. Challenge-Cook Brothers of Ohio, 843 F.2d 230,
233 (6th Cir. 1988); and the fact that “the parties contract
is silent on the issue, or that the union may have acqui-
esced in previous unilateral changes does not operate as a
waiver of its right to bargain over such changes for all
time.” See Register-Guard, 301 NLRB 494, 496 (1991),
citing Owens-Corning Fiberglas, 282 NLRB 609 (1987);
H. J. Scheirich Co., 300 NLRB 687, 689 (1990); Peerless
Publications, 231 NLRB 244, 258 (1977). See also St.
Luke’s Hospital, 314 NLRB 434, 440 (1994); E. R. Steub-
ner, Inc., 313 NLRB 459 (1993).

The Board has long held that the Union’s right to information is
a statutory rather than a contractual right. See American Stan-
dard, 203 NLRB 1132 (1973). In the Timken Roller Bearing
Co., 138 NLRB 15, 16 (1962), enfd. 325 F.2d 746 (6th Cir.
1963), cert. denied 376 U.S. 971 (1964), the Board stated that
there was a:

well established rule that the mere existence of a grievance
machinery does not relieve a company of its obligation to fur-
nish a union with information needed to perform its statutory
functions.
Furthermore, we agree with the Trial Examiner that the
Union did not surrender its right to secure any of the wage
data simply because it was unsuccessful in obtaining a
provision in the contract requiring the production of such
data by the Respondent. We can infer no ‘clear and un-
equivocal’ waiver of a statutory right from such failure at
the bargaining table.

Respondent knows specifically that the Union is seeking disciplinary
records which the Respondent admits it maintains in the personnel files.
The Respondent is in essence contending here that the Union
waived its statutory right to make a general request for discipli-
nary memos contained in employees’ files. However, it points
to no contractual language or long standing practice to support
its position. The Respondent’s contention, standing alone, that
Howe had reviewed two personnel files which contained disci-
plinary memorandum prior to the Union’s entering into the
parties’ current contract does not constitute sufficient evidence
to meet the Respondent’s burden of establishing a statutory
waiver of the Union’s right to information under Board law.
Particularly, when the Respondent never produced at the hear-
ing the disciplinary memos that Howe allegedly reviewed prior
to entering the collective-bargaining agreement.
Accordingly, I find that the Respondent has violated Section
8(a)(5) and (1) of the Act by failing to provide the Union the
complete personnel files requested in Howe’s letter of March
29, 1999,8 and the information requested in Ice’s letter of April
5, 1999, where the Union sought, “any future memoranda re-
garding any bargaining unit member’s work performance or
alleged misconduct.” While the latter request pertains to in-
formation that may be generated in the future, Baker testified
that he does not provide the Union or the employee with notice
that he is generating any particular memo which may be incor-
porated in an employee’s personnel file. Therefore, in the cir-
cumstances here, there is no other convenient way for the Un-
ion to request this information.
CONCLUSIONS OF LAW
1. The Respondent, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is the exclusive collective-bargaining repre-
sentative of the Respondent’s employees in the following unit
appropriate for collective bargaining:

All pressroom employees employed under the conditions and
at the scale of wages set forth in the parties collective-
bargaining agreement, but excluding foremen, supervisors,
guards, and clerical employees as defined under the Act.

4. The Respondent has failed and refused to bargain with the
Union in good faith, in violation of Section 8(a)(5) and (1) of
the Act by refusing to furnish the Union with the complete
personnel files of the 22 bargaining unit employees named in
the Union’s letter of March 29, 1999, and its refusal to provide
the Union with any future memoranda regarding any bargaining
unit member’s work performance or alleged misconduct as
requested in the Union’s letter of April 5, 1999.
5. The unfair labor practices described above are affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
8 In reaching this conclusion, I note that the Respondent makes no
confidentiality argument concerning the provision of employee person-
nel files to the Union. In fact, it concedes that it will provide the files
to the Union of disciplined or terminated employees if there is a pend-
ing grievance.
9 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
BOOTH NEWSPAPERS, INC. 303
ORDER
The Respondent, The Grand Rapids Press, a Division of
Booth Newspapers, Inc., a Division of the Herald Company,
Grand Rapids, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Detroit News-
paper Local 13N, Graphic Communications International Un-
ion, AFL–CIO, by refusing to furnish, or to timely furnish, the
Union, on request, with information necessary and relevant to
the performance of its function as the exclusive collective-
bargaining representative of the employees in the following
unit:

All pressroom employees employed under the conditions and
at the scale of wages set forth in the parties collective-
bargaining agreement, but excluding foremen, supervisors,
guards, and clerical employees as defined under the Act.

(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the polices of the Act.
(a) Furnish forthwith to the Union the following information.
(1) The complete personnel files of the 22 bargaining
unit employees named in the Union’s letter of March 29, 1999.
(2) Any future memoranda regarding any bargaining unit
member’s work performance or alleged misconduct as re-
quested in the Union’s letter of April 5, 1999.
(b) Within 14 days after service by the Region, post at its
[facility] in Grand Rapids, Michigan, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to

Board and all objections to them shall be deemed waived for all pur-
poses.
10 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
all current employees and former employees employed by the
Respondent at any time since March 29, 1999.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to bargain collectively with the De-
troit Newspaper Local 13N, Graphic Communications Interna-
tional Union, AFL–CIO, by refusing to furnish, or to timely
furnish, the Union, on request, with information necessary and
relevant to the performance of its function as the exclusive
collective-bargaining representative of the employees in the
following unit:

All pressroom employees employed under the conditions and
at the scale of wages set forth in the parties collective-
bargaining agreement, but excluding foremen, supervisors,
guards, and clerical employees as defined under the Act.

WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL furnish to the Detroit Newspaper Local 13N,
Graphic Communications International Union, AFL–CIO, the
complete personnel files of the 22 bargaining unit employees
named in the Union’s letter of March 29, 1999, and any future
memoranda regarding any bargaining unit member’s work per-
formance or alleged misconduct as requested in the Union’s
letter of April 5, 1999.

THE GRAND RAPIDS PRESS, A DIVISION OF BOOTH
NEWSPAPERS, INC., A DIVISION OF THE HERALD
COMPANY