The New York Post

National Labor Relations Board - Administrative Judge Opinions

Feb 2, 2007

02-CA-037729 (N.L.R.B. Feb. 2, 2007)

JD(ATL)–03–07
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
NYP HOLDINGS, INC., d/b/a
THE NEW YORK POST
and Case No. 2–CA–37729
NEWSPAPER & MAIL DELIVERERS’
UNION OF NEW YORK AND VICINITY1
Ruth Weinreb, Esq., for the General Counsel.
Elliot S. Azoff, Esq., and Todd A. Dawson, Esq.,
for the Respondent.
Lowell Peterson, Esq., for the Charging Party.
DECISION
Statement of the Case
MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in New
York, New York, on December 4, 2006.2 Newspaper & Mail Deliverers Union of New York and
Vicinity (NMDU or “the Union”) filed the charge in this proceeding on June 23 and the complaint
issued on September 29. The complaint alleges that NYP Holdings, Inc., d/b/a The New York
Post, the Respondent, violated Section 8(a)(1) and (5) of the Act by failing and refusing, since
about April 2006, to furnish the Union with information it requested. The specific information at
issue consists of “the galleys showing the locations to which and the number of newspapers
delivered by combined and/or alternate delivery.”
On October 12, the Respondent filed its answer to the complaint denying the unfair labor
practice allegation and raising several affirmative defenses. The Respondent asserted, inter
alia, that its obligation to the Union with regard to the information at issue was governed by a
memorandum of understanding (MOU) executed by the parties, that the Respondent had
complied with its obligations under that agreement, that any dispute as to compliance should be
deferred to the grievance procedure contained in the MOU and that the Union had waived any
statutory right it had to the information by entering into the MOU. The Respondent also asserted
that the information in question was third party confidential and proprietary in nature.

1 The name of the Union was amended at the hearing.
2 All dates are in 2006 unless otherwise indicated.
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At the hearing on December 4, the parties submitted a stipulation regarding the facts,
together with joint exhibits, which the parties agreed would constitute the record in this case. All
parties waived the right to offer testimony from witnesses. On January 8, 2007, the parties filed
briefs. On the entire record, and after considering the briefs filed by the General Counsel, the
Respondent, and the Charging Party, I make the following
Findings of Fact
I. Jurisdiction
The Respondent, a corporation with an office and place of business at 900 East 132nd
Street, Bronx, New York, is engaged in the publication, distribution and sale of a daily
newspaper, i.e. The New York Post. The Respondent annually derives gross revenues in
excess of $200,000, holds membership in and subscribes to interstate news services, publishes
nationally syndicated features and advertises various nationally sold products. The Respondent
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 and that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Facts
The relevant facts, as stipulated by the parties, are as follows:
The Respondent and NMDU have had a collective bargaining relationship for many
years. Their most recent collective bargaining agreement, executed on October 29, 2003, is
effective through September 30, 2010. The NMDU represents a unit of drivers who deliver the
newspapers, as well as utility persons, dispatchers, machine operators and clerks. The
Respondent also has collective bargaining agreements with eight other unions. Ken Chiarella is
the Respondent’s Director of Distribution responsible for overseeing the daily delivery of the
newspaper. He enforces the collective bargaining agreement and handles labor relations with
NMDU. He is the Respondent’s supervisor within the meaning of the Act and its agent acting on
its behalf.
Retail establishments in the metropolitan New York area outside of the five boroughs,
with the exception of Hoboken, New Jersey, receive their New York Post from wholesalers and
independent delivery services whose employees may or may not be members of the Union. All
of the Respondent’s newspapers are delivered to these wholesalers and independent delivery
services from the Respondent’s Bronx production facility by Union-represented employees of
the Respondent.
The newspaper is delivered by three methods, as set forth in the collective bargaining
agreement. The first method of delivery, called direct delivery, involves the delivery of
newspapers from the Publisher by unit employees represented by NMDU directly to the retail
dealer who then sells the newspaper to the public. Combined delivery is the delivery of the
newspapers from the Bronx facility by NMDU-represented unit employees to independent
wholesalers who are signatories to a collective bargaining agreement with NMDU. The
wholesaler then delivers the newspapers to retail accounts. Alternate delivery involves the
transportation of the newspapers from the Bronx facility by NMDU-represented unit employees
who deliver them to independent wholesalers who do not have a collective bargaining
agreement with NMDU. Employees of those companies then deliver the newspapers to their
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final destination.
The 2003-2010 collective bargaining agreement, for the first time, contained a
Memorandum of Understanding (MOU I) that provided that up to 24,000 newspapers could be
delivered by combined and alternate delivery to retail establishments in the direct territory of the
Respondent, which encompasses the five boroughs of New York and an H-1 route in Hoboken,
New Jersey, and that this arrangement “may continue unaltered,” subject to certain conditions
or to “change made by mutual agreement of the parties.”
The parties, in MOU I, established a Circulation Growth Committee comprised of three
members appointed by the Respondent and three members appointed by the union to oversee
the implementation of MOU I. MOU I, at paragraph 5, also obligated the Respondent to obtain
“galleys” from the wholesalers and news companies comprising the alternate and combined
delivery of the 24,000 newspapers to retail establishments in the five boroughs and Hoboken,
showing all deliveries made and to provide these galleys to the Circulation Growth Committee.
Shortly after execution of the collective bargaining agreement containing MOU I, the
Respondent obtained the galleys and made them available to members of the Circulation
Growth Committee. Committee members were not permitted to photocopy or take the galleys
out of the Respondent’s building. The Union objected to these restrictions. In March 2004,
representatives of the Respondent told representatives of the Union that these restrictions
would remain in place despite the Union’s protestation because of what the Respondent
asserted was the confidential and proprietary nature of the documents.
In June 2004, the Respondent and the Union began discussing modifications of the
collective bargaining agreement that, inter alia, would increase the permissible alternate and
combined delivery in the five boroughs and Hoboken. Subsequently, agreement was reached
over multiple issues, but the Union refused to execute the new agreement.3 After the parties
reached agreement, but before the Union signed it, the Union’s then-Business Agent, Tom
LoDico, requested the Respondent provide him with copies of the galleys shared with the
Circulation Growth Committee pursuant to MOU I that documented the 24,000 limit contained in
MOU I so that LoDico could show them to the Union’s Executive Committee as part of his efforts
to secure the Executive Committee’s approval of the negotiated modifications to the
agreement.4 The Respondent permitted LoDico to take copies of the galleys to show to the
Union’s Executive committee pursuant to a Confidentiality Agreement signed by LoDico and
Chiarella on August 24, 2004. The Confidentiality Agreement provides, in its entirety:
1. The NMDU Business Representative has requested galleys documenting the
24000 alternate delivery in the five Burroughs (sic), information shared with the
Circulation Growth Committee, to show to the NMDU’s Executive Committee in
order to demonstrate his knowledge as to where the alternate delivery is going.
2. The Post has stressed the proprietary nature of the information, which the
Business Representative has acknowledged.

3 Unfair labor practice charges over this refusal led to a hearing before an administrative law
judge in August 2005. The judge found that the Union had unlawfully refused to execute the
agreement and ordered that it do so. The Board affirmed this decision and order in Newspaper
and Mail Deliverers’ Union of New York and Vicinity, 348 NLRB No. 19 (September 28, 2006).
4 The parties have stipulated, as found by the judge in Newspaper and Mail Deliverers’
Union of New York and Vicinity, supra, that LoDico was an agent of the Union at the time.
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3. The Post is giving the galleys to the Business Representative based on his
representation that no additional copies will be made, that he will show them to the
Executive Committee, will allow no copying and then will collect and return them to a
New York Post representative.
After the Administrative Law Judge’s decision was issued, on November 9, 2005, the
Union and the Respondent entered into an Agreement dated January 10, 2006 which modified
the collective bargaining agreement and resolved a number of open issues between the parties
that were the subject of the unfair labor practice case. As part of this agreement, the parties
entered into a revised Memorandum of Understanding (MOU II) that, inter alia, increased the
number of daily and Sunday newspapers that could be delivered to retail establishments in the
five boroughs and Hoboken by combined and alternate delivery to 50,000 and revised the joint
labor-management committee, i.e. the Circulation Growth Committee, that had been created to
monitor the program. The Union, pursuant to MOU II, appointed a unit employee to serve in the
new role of Circulation Monitor, to review the manifests and galleys on the Union’s behalf to
ensure that the Respondent did not exceed the 50,000 limit. The Respondent, pursuant to MOU
II, pays the Monitor one straight time day’s pay per month to review the galleys.
The January 10, 2006 Agreement specifically provided that MOU I, contained in the
2003 collective bargaining agreement, “shall be of no further force and effect and shall be
replaced by” MOU II. In paragraph 3 of MOU II, the parties agreed that the Circulation Growth
Committee “shall be empowered to monitor (i) combined and alternate delivery to retail dealers
within the direct territory of the Publisher and (ii) the practices delivering to unauthorized
accounts within the direct territory of the Publisher and topping of retail dealers serviced by
direct delivery.” With respect to the galleys in dispute in this case, Paragraph 6 of MOU II
provided as follows:
The publisher will continue obtaining from wholesalers and news companies
comprising the combined and alternate delivery described in paragraph 1, current,
up-to-date galleys showing all deliveries. Such galleys shall be kept current and
shall be provided to the Committee. Within 45 days of engaging a new independent
contractor, the Publisher shall send a letter to that contractor notifying the contractor
of its intent to police the integrity of its direct territory in accordance with this
Memorandum of Understanding and that enforcement may involve termination of
delivery arrangements.
In Paragraph 8, the parties agreed as follows:
Through the Committee, the Publisher and Union will review galleys to monitor that
the 50,000 Limitation is not being exceeded. Additionally, the Committee will
investigate claims and allegations of topping off of accounts and delivering to
unauthorized accounts. Any combined or alternate delivery company found to be
topping off accounts will be warned in writing and requested to take immediate
remedial action to halt the practice, including prohibiting the employees responsible
from handling or delivering the Publisher’s newspapers. Companies that are found
by the Committee to be repeat offenders will be required to provide a written
program of compliance satisfactory to the Committee. Subsequent violations
determined by the Committee to be the responsibility of the company as opposed to
individual employee(s) (who must be prohibited from delivering or handling the
Publisher’s newspapers) will result in remedial action by the Publisher, against the
company up to and including total replacement of the company.
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At paragraph 15, the parties agreed that the Committee is empowered to investigate all issues
relating to this Memorandum and to enforce its terms. MOU II further provides, at paragraph 16,
that “any complaints alleging violations of this Memorandum which cannot be satisfactorily
adjusted through the grievance process, shall at the option of either party, proceed to arbitration
expeditiously under the collective bargaining agreement.” Finally, in paragraph 18, the parties
agreed that MOU II “shall supersede and take precedence over any conflicting term in the
collective bargaining agreement, side letter, or other understanding between the parties.”
In compliance with its commitments detailed in MOU II, the Respondent obtained the
galleys from several third-party wholesalers and independent news companies showing daily
and Sunday stops and deliveries. These galleys list by route the name and address of each stop
(i.e., the retail establishments) receiving newspapers and the draw (i.e., the number of
newspapers delivered at each stop) for each day of the week. There are approximately 2,200
stops. The galleys consist in aggregate of approximately 50 pages. The Respondent provided
these galleys to the Circulation Growth Committee but prohibited photocopying of the
documents or taking the documents out of the Respondent’s building. The Respondent did
permit note-taking and hand-copying and review of the documents in the building at the
convenience of Committee members and the Monitor. The Union has continued to object to
these limitations.
In obtaining the galleys, representatives of the Respondent’s circulation department
gave third party wholesalers and independent news companies verbal assurances that, while
the documents would be shared with members of a union-management committee, the galleys
would not be photocopied or be permitted to be taken out of the Respondent’s facility. These
assurances were never discussed during the negotiations of MOU II. After MOU II was signed,
the Respondent never advised the Union that it needed to give the independent companies
assurances before it could obtain the galleys. At one point, after the dispute involved in this
proceeding arose, Chiarella told the Union that these assurances had been given to the
companies.
On or about April 2006, the Union’s Business Representative in charge of relations with
the Respondent, Tom Bentvena, requested that the Respondent furnish the Union with copies
of the galleys obtained by the Respondent pursuant to MOU II. The Union claims that it needs
the information contained in the galleys to determine whether or not the Respondent is
exceeding the 50,000 limitation set forth in MOU II and in order to perform its duties as
bargaining representative of unit employees. The Union also claims that it needs photocopies of
the galleys because the information is so voluminous that it cannot accurately review the
documents by visual inspection or by hand copying the information. The Union has stated that
its representatives are willing to take photocopies of the galleys, review the documents and then
return the photocopies to the Respondent once they are done properly examining them.
Chiarella refused Bentvena’s request for copies of the galleys, stating that, according to
MOU II, the galleys were to go only to the Circulation Growth Committee and the Circulation
Monitor, and that the information in the Respondent’s possession had been produced to those
entitled to review the information in accordance with the MOU II. Chiarella stated that the
limitations imposed by the Respondent on access to the documents by the Committee and the
Monitor were reasonable given the proprietary and confidential nature of the documents.
Chiarella also referred to the assurances the Respondent had given to the third parties from
whom it obtained the galleys.
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On June 27, Bentvena filed a grievance over the Respondent’s failure to give free and
unfettered access to the galleys. On July 11, Chiarella responded to the grievance and sought
to schedule a Joint Board meeting, which would have been the next step prior to arbitration. The
Union has neither scheduled nor requested a Joint Board meeting on its grievance. However,
during discussions concerning the grievance, the Union has offered to enter into some form of
confidentiality agreement in order to obtain photocopies of the galleys. In that discussion,
Chiarella told Bentvena that the Respondent’s lawyer was working on such a document. In the
context of the Chiarella – Bentvena discussion, the Respondent’s General Foreman, Ed
Francione, an admitted supervisor and agent of the Respondent, told Bentvena that he was
confident that the union would receive copies of the documents. Later that day, Chiarella
advised Bentvena that the Respondent would not give the Union copies of the galleys. In his
July 11 response to the Union’s grievance, Chiarella stated that the Respondent was declining
the Union’s offer to execute a confidentiality agreement because the Respondent believed it had
complied with MOU II and, therefore, such an agreement was not warranted or necessary.5
On July 21, the Respondent advised the Board’s regional office in writing that it was
willing to arbitrate the issues involved in production of the galleys and waive any procedural
deficiencies with respect to the grievance.
B. Should the complaint be deferred to arbitration?
As previously noted, the Respondent raised as an affirmative defense that the complaint
allegations should be deferred to the parties’ contractual arbitration procedures pursuant to the
Board’s Collyer deferral policy.6 Counsel for the General Counsel, at the hearing and in her
brief, also requested that I recommend, as an “alternative remedy” for the alleged unfair labor
practice, that the Board reconsider its policy regarding deferral in information request cases and
defer this matter. The Charging Party opposes deferral.
As the parties concede, the Board has historically declined to defer allegations regarding
a union’s request for information to contractual grievance procedures. Team Clean, Inc., 348
NLRB No. 86, slip op., at fn. 1 (December 7, 2006) and cases cited therein. The Board has
taken this position even where, as here, the contract contains specific provisions regarding a
union’s right to information. United Technologies, Inc., 274 NLRB supra, at 505. The Board’s
rationale has been its unwillingness to institute a “two-tiered arbitration process” whereby a
request for information relevant to a grievance and then the grievance itself would have to be
resolved by an arbitrator. Id. In Team Clean, supra, the Board recently re-affirmed this position
although three Board members suggested that the policy may be ripe for reconsideration.
Until such time as the Board decides to revise or abandon its current policy regarding
deferral of information requests, I am bound to follow the current policy. Although the instant
case contains a contractual provision regarding the information in dispute and a grievance-
arbitration provision broad enough to cover the dispute, I shall leave it to the Board to decide if
this is the case certain members had in mind where deferral would be appropriate. Accordingly,
I shall reject the Respondent’s affirmative defense, and decline the General Counsel’s
alternative request, that the complaint be deferred to the parties’ grievance-arbitration
procedures.

5 The parties have stipulated that MOU II is the only document between the parties currently
in effect that relates to the production of galleys.
6 Collyer Insulated Wire, 192 NLRB 837 (1971); See also United Technologies Corp., 274
NLRB 504 (1985).
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C. The Merits
It is well-established that an employer has an obligation to supply requested information
which is reasonably necessary to the exclusive collective-bargaining representatives’
performance of its duty to represent employees. Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). This includes information that is
necessary to processing grievances and administering a collective bargaining agreement.
United Technologies Co., supra. The Board has held that an actual grievance need not be
pending and that the information at issue need not be of the type that would clearly dispose of
any grievance. Ohio Power Co, 216 NLRB 987, 991 (1975). Information that relates directly to
unit employees’ terms and conditions of employment has been deemed presumptively relevant
and must be furnished upon request. Although a union must demonstrate the relevance of other
information, such as that related to third parties, the Board has applied a liberal discovery-type
standard of relevance to such information requests. U.S. Postal Service, 337 NLRB 820, 822
(2002); Brazos Electric Power Co-Op., Inc., 241 NLRB 1016, 1018 (1979).
As the parties’ stipulation makes clear, there is no dispute regarding the relevant facts.
The Union, which has been the employees’ Section 9(a) representative for years, made a
request, in April, for copies of the galleys obtained by the Respondent from third party
newspaper distributors that would show the locations to which and the number of newspapers
delivered by combined and/or alternate delivery. There is no question that this information
directly relates to the 50,000 paper limitation for such deliveries in the parties’ MOU II and that
such information would be of use to the Union in determining whether the Respondent has
exceeded the limits or otherwise violated the commitments made in that agreement. The
Respondent, while denying the Union’s request for copies of the galleys, has not refused all
access to this information. On the contrary, in its response to the Union, the Respondent has
cited the MOU II, pursuant to which it has consistently furnished these galleys to a joint labor-
management committee and a union-appointed monitor who are charged with overseeing the
MOU II.7 There is no dispute that the Respondent has placed restrictions on access to the
galleys by the committee members and the monitor, asserting confidentiality. The issue
presented here is whether Respondent’s compliance with its obligations under the MOU II has
satisfied its statutory obligations to the Union or whether the Union is entitled to receive copies
of the galleys outside the parameters of the MOU II.
In the absence of the MOU II, I would find that a refusal by the Respondent to furnish
documents related to its use of outside delivery companies to perform work customarily
performed by bargaining unit members violated the Act. The Board has consistently held that a
union is entitled, upon request, to information relevant to issues such as subcontracting that
have a tendency to erode unit work. See Garcia Trucking Service, Inc., 342 NLRB 764 (2004)
and cases cited therein. The Board has also held that, where information requested by a union
is in the possession of third parties with whom an employer has a business relationship, such as
a subcontractor, the employer is obligated to make a good-faith, reasonable effort to obtain the
information from such parties. International Brotherhood of Fireman & Oilers, 302 NLRB 1008
(1991); United Graphics, 281 NLRB 463, 466 (1986). See also Pittston Coal Group, Inc., 334
NLRB 690, 693 (2001) (Board, while reaffirming this principle, found that employer need not
threaten to terminate a contractual relationship with its subcontractor in order to obtain
information requested by a union). Where, as here, an employer asserts that information

7 There is no contention in this case that the Respondent has not fulfilled its obligation,
under the MOU II, to provide the galleys to the committee or the monitor.
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requested by a union is confidential, the Board has held that the employer must demonstrate
the confidential nature of the information and seek an accommodation with the Union before its
refusal to furnish the information will be found lawful. Exxon Co. USA, 321 NLRB 896, 898
(1996) and cases cited therein. Under well-established precedent, a blanket refusal by the
Respondent to furnish the Union with copies of the galleys it had obtained from its combined
and alternate delivery contractors would clearly be an unfair labor practice.
The facts stipulated by the parties demonstrate, however, that the Respondent did not
simply refuse to provide the galleys requested by the Union. Rather, Chiarella cited the MOU II
and the procedures contained therein in response to Bentvena’s information request, asserting
that these procedures satisfied whatever obligation the Respondent had to provide this
information to the Union. Since there is no claim that the Respondent has not consistently
provided the galleys to the joint labor-management committee and the Union’s designated
monitor under the terms of the MOU II, nor any evidence that the procedures outlined in the
MOU II were not working as intended, the real question here is whether the Union has waived
any statutory right it had to the information by agreeing to the MOU II. American Broadcasting
Co., 290 NLRB 86 (1988). See also The Budd Co., 348 NLRB No. 85 (December 6, 2006).
The Board and courts have held that a union may contractually relinquish a statutory
bargaining right if the relinquishment is expressed in clear and unmistakable terms. Metropolitan
Edison Co. v. NLRB, 460 U.S. 693 (1983); American Broadcasting Co., supra; United
Technologies Corp., 274 NLRB Supra, at 507. Under Board law, a waiver “can occur in one of
three ways: by express provision in the collective bargaining agreement, by the conduct of the
parties (including past practices, bargaining history, and action or inaction), or by a combination
of the two. The language of a collective bargaining agreement will effectuate a waiver only if it is
‘clear and unmistakable’ in waiving the statutory right.” Chesapeake & Potomac Telephone Co.
v. NLRB, 687 F.2d 633, 636 (2d Cir. 1982), cited many times by the Board. See, e.g., American
Broadcasting Co., 290 NLRB Supra, at 88. In this case, the Respondent contends that the
Union waived its right to the galleys by negotiation of the MOU II and establishment of the
Circulation Growth Committee and the Circulation Monitor as the mechanism for enforcement of
the contractual limitation on combined and alternate deliveries.
The parties’ stipulation establishes that, in 2003, the Respondent and the Union agreed
for the first time that the Respondent could deliver a limited number of papers using the
combined and alternate method of delivery. In order to police this agreement, the parties
created a joint labor-management committee with the power “to investigate all issues relating to
[the MOU] and to enforce its terms.” In order to facilitate the committee’s tasks, the Respondent
agreed to obtain from its contractors, and provide to the committee on a regular basis, “current,
up-to-date galleys showing all deliveries.” The parties further agreed that any complaints
alleging violations of the MOU that could not be resolved by the committee would be subject to
the contractual arbitration provision. Finally, it was agreed that the MOU superseded and would
take precedence over “any conflicting term in the collective bargaining agreement, side letter, or
other understanding between the parties.” In 2006, the parties negotiated a new MOU which
increased the number of papers that could be delivered by combined and alternate delivery,
made changes to the composition of the committee and created a new position, Circulation
Monitor, to be appointed solely by the Union. The Committee continued to be tasked with
monitoring compliance with the MOU and enforcing its terms. The Union now had its own
representative, the Monitor, as further assurance that the Respondent would comply. The new
MOU also established a mechanism for sanctioning violations of the MOU by the outside
delivery companies. As with the initial MOU, the Respondent obligated itself to obtain the
galleys necessary to determine compliance and agreed to make those available to the
committee and the Monitor. MOU II retained the provisions designating the committee as the
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entity charged with resolving disputes under the MOU and providing for arbitration of any
disputes the parties are unable to resolve in the committee. The parties also agreed, as in MOU
I, that MOU II would supersede the collective bargaining agreement and all other agreements
between the parties.
I find that the express language of the MOU clearly demonstrates the parties’ intent that
the committee and the Union’s designated monitor would be the exclusive forum for
investigating complaints regarding violations of the MOU and enforcing its terms, subject only to
arbitration of any unresolved disputes. Although the MOU II does not specifically provide that
the galleys would only be furnished to the committee and the monitors, the parties’ practice
under MOU I and II supports such an interpretation. Thus, although there is no dispute that the
Union objected when the Respondent asserted that the galleys were confidential, and limited
access to them to the committee, it did not seek any changes in the MOU when it was
renegotiated in 2006.8 Moreover, on the one occasion where the Respondent provided copies of
the galleys to the Union’s business representative, he signed an agreement expressly
acknowledging the proprietary nature of this information and agreeing to restrictions on copying
and use of the documents. Accordingly, I find that by agreeing to MOU II, the Union has
relinquished whatever right it had under the Act to obtain the galleys outside the parameters of
the MOU II.
In its brief, the Charging Party argues that the limitations imposed on the committee and
the monitor with respect to use of the galleys makes it difficult, if not impossible, for the Union to
police the agreement and enforce its terms. Even assuming that were the case, it would not
persuade me to change my decision because the Union, in agreeing to the MOU II, made this
bargain. If it is unhappy with the result of the negotiations, it cannot expand its rights under the
MOU II by filing unfair labor practice charges. Moreover, I do not agree that limiting access to
the galleys to the committee and the monitor prevents the Union from effectively representing
the employees. There is nothing in the MOU II, or the parties’ stipulation, that suggests the
monitor and the union members of the committee would not be given whatever time they
needed to review the galleys at the Respondent’s facility. Although MOU II provides for one paid
day a month for the monitor to perform his duties and one meeting a month for the committee,
nothing in the agreement suggests that this is the only time the monitor and committee
members would be permitted to review the galleys. Thus, if the Union believed the monitor
needed more time, they are free to arrange for the monitor to review the documents without
compensation from the Respondent. Moreover, under the terms of the MOU II, if the monitor,
through even a cursory review of the galleys, believed there was a potential violation of the
MOU II’s limitations on combined and alternate delivery, he or she could invoke the mechanism
under the MOU II to investigate further by bringing a complaint before the committee. There is
no evidence in the record that, in the face of an actual complaint of non-compliance, or a
request for arbitration of an unresolved complaint, that the Respondent would deny the Union’s
monitor and representatives on the committee access to the galleys needed to investigate such
a complaint.9

8 As the Respondent points out in its brief, the negotiations over the MOU would appear to
satisfy whatever obligation the Respondent had to seek an accommodation with the Union
regarding production of information that the Respondent claimed was confidential. See Exxon
Co. USA, supra.
9 I also note, as pointed out by the Respondent, that the Union’s business representative is
an ex officio member of the committee with the right to attend meetings, thereby gaining access
to the galleys.
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Based on the above, I find that the Union has waived its right to obtain copies of the
galleys outside the parameters of the MOU II that was negotiated by the parties and executed in
January 2006. Accordingly, the Respondent did not violate Section 8(a)(1) and (5) of the Act
when it refused Business Representative Bentvena’s April 2006 requests for copies of the
galleys that Respondent had furnished to the joint Circulation Growth Committee and the
Circulation Monitor pursuant to the MOU II. By complying with the terms of the MOU II for
production of these records, the Respondent met its obligations to the Union.
Conclusions of Law
By refusing to furnish the Union’s business representative, in response to his April 2006
request, with copies of the galleys showing the locations to which and the number of
newspapers delivered by combined and/or alternate delivery, the Respondent has not engaged
in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5), and
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 recommended10
ORDER
The complaint is dismissed.
Dated, Washington, D.C., February 2, 2007.
____________________
Michael A. Marcionese
Administrative Law Judge

10 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 purposes.