Times-Herald, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 922 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Times-Herald, Inc. and San Francisco-Oakland News-
paper Guild, Local 52, The Newspaper Guild, AFL-
CIO. Case 20-CA-12017
August 25, 1978
DECISION AND ORDER
BY CHAIRMAN FANNIN(, ANDI) Mi 1F RS JENKINS
AND TR UESI)AI.F
On June 21, 1977, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
a brief in support thereof, and an addendum to its
brief. The General Counsel filed cross-exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order.
This is one of four cases filed by the charging party
and heard by the same Administrative Law Judge,
concerning respondent newspapers' obligation to
supply the Union, on request, information about the
amount of compensation paid by it to persons not
represented by the Union for performing work simi-
lar to that of Respondent's represented employees.'
The Union, since 1944, has represented, inter alia,
employees in the common editorial department for
Respondent's weekly and daily newspapers. As
found by the Administrative Law Judge, Respondent
also uses copy for five special interest columns sup-
plied by individuals not represented by the Union or
covered by the parties' collective-bargaining agree-
ment. Three of these columns have been published
for 20 years or more, and the other two for at least 5
years. They have always been written by nonunit in-
dividuals.
During negotiations for prior contracts, the Union
had proposed that for each story, photo, or art item
acquired from a "non-unit worker"--to use the Ad-
ministrative Law Judge's expression-the publisher
pay that writer not less than I week's contract wage,
and pay to the Union's retirement and health and
welfare funds the same contributions that would be
paid for a full-time unit employee. These proposals
The other cases are Brown Newspaper Pubhlihing (o, 20 (A 12013.
Press Democrat Publishing Co. 20- CA 12015: and 4rnphleur Printing (i,
237 NLRB 955, issued this day,
were not adopted. A similar request was made in De-
cember 1976.
Earlier, in August 1976, in preparation for contract
negotiations, the union requested that Respondent
furnish it with information for a 3-month period,
concerning the names (published and real) of non-
unit contributors (columnists), each item published,
and the amount paid for it. The Respondent declined
to do so "without acceptable proof of relevance."
The Union subsequently followed this with a more
detailed request, covering a 6-month period. At a
meeting in February 1977, Respondent furnished in-
formation with respect to amounts paid to high
school students covering sports events ($10 per item;
total budget not exceeding $80 per month), but de-
clined to reveal amounts paid to columnists, con-
tending that those amounts were confidential and
not relevant for the Union's bargaining purposes,
and in any event, were substantially below union
scale. Following this meeting, the Union reurged the
relevance of amounts paid, which it asserted that it
needed for the following purposes: (1) For the
Union's proposed rate for nonunit editorial workers,
(2) for administration of its existing contract clause
on work preservation, and (3) for contract proposals
for unit employees. The Union also offered to with-
draw its October unfair labor practice charge if the
Respondent would put in writing the information
furnished at the February meeting and supply the
amount of money paid "the five non-unit colum-
nists."
Thereafter, Respondent supplied, in writing, the
information it had already furnished verbally, as to
the columnists' names, but declined to reveal the
rates paid because of its desire to maintain confiden-
tiality and its inability to determine from the Union's
statements that the rate of pay was relevant to collec-
tive bargaining "in any respect." The Union was not
satisfied with the failure to supply "the rates paid for
the aforementioned columns" and in a letter sent to
Respondent in March, concentrated on two grounds
of relevance: (I) As concerning the Union's bargain-
ing for appropriate pay for its members, and (2) as
being potentially necessary for "possible" bargaining
demands concerning appropriate rates of pay for
freelancers, correspondents, independent contrac-
tors, "or anyone else doing work done by employees
in the bargaining unit." The hearing followed in
April 1977.
The Administrative Law Judge addressed the
problem on the basis of the Union's final position:
Relevance of columnists' compensation to unit wage
proposals: and relevance of the information sought
to a possible minimum contract rate for nonunit
workers doing unit-type work. He concluded that the
237 NLRB No. 135
922
TIMES-HERALD, INC
latter was not a mandatory subject of bargaining. In
so ruling, he noted the lack of evidence that Respon-
dent's use of any of the columnists had resulted in
replacement of any unit worker, or in loss of working
time: hence he concluded that a contract proposal to
cover nonunit workers such as columnists, for the
protection of unit workers, could not be said to "\i-
tally affect" unit employees within the meaning of
A lied Chemical & Alkali W4'orkers of A muerica. Iocal
Union No. 10 v. Pittshurgh Plate G(lass ('ormpanvl.
Chemical Division, 404 U.S. 157, 178-179 (1971) and
Local 24, International Brotherhood of Teaonst'Iers,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO v. Oliver, et al., 358 U.S. 283 (1959). and
was therefore not a mandatory subject of bargaining.
We agree with that analysis and conclusion.'
The Administrative Law Judge also found how-
ever, and we agree. that the Union was entitled to the
information concerning columnists' compensation
for assistance in framing its wage proposal covering
the unit employees it represented. He properly identi-
fied the test recognized by the courts as probable
relevance and "use to the union in carrding out its
statutory duties and responsibilities." 3 and, citing
Northwest Publications, Inc., 211 NI.RB 464 (1974).
he found an "obvious relationship" between com-
pensation paid nonunit columnists and that paid unit
employees for unit editorial work. In so doing. he
noted that even though the Union had no(t asked for
such information in previous negotiations. the clear
connection between the information sought and unit
wage proposals illustrated the reasonableness of the
demand. He also quoted from an opinion of the
Court of Appeals for the Sixth Circuit concerning the
"well established" principle that alleged confidential-
ity of relevent economic data needed for informed
bargaining is no defense for refusing to furnish it.4
thus countering the Respondent's defense that the
disputed information was confidential. In its deci-
sion, the court spoke of not allowing employers to
collect wage information "on a pledge of confiden-
tiality to parties [in that case other employers] out-
side the bargaining unit." and then denying the
' The diversion of existing unit work is a mandators subhllect of haralin-
ing. See Fibreboard Paper Products Ce,rp \ .N I. R B. 379 t S 201, 20(9 218
19641. where the Supreme ('Court held that "conlracting ,ul" of the ,ark
previousls performed hb members of ain existing hbargainin unit a, as i man-
dator) subject of bargaining In : 1. R R s Rsl A- i Srltandtir r/dtirlltin
Tranimsivlon mnd 4 tie Diorio,. F rge Diliion. 410 F 2d 953, 957 l( IA .
1969),. where the inion had reasonable grounds Io fear that unit 'sork s.,s
being transferred, the court of appeals obsersed thal "the prcsers.llon (ir
diversion of unit work is a subject of matndatolry harig,,m it under [the t\,i
citing Fibrehoard. supra
See ' L R B . RoiAwell-Slandard, slpra. citing , I R B '. 4 i m lrdi,
trial (Co. 385 .S 432. 437. fn 6 (11967). here the Supreme ( ourt spkei If
a "discoters type standard'' for ascertaining pretrlll Ieformatllilll w.hlch o4
necessity will be more liberal as to relevance
4
General Electrli (Co v. 1 R H 466 F 2d 1177. I 8' I( A4 , 197'2
union its use.' ('onsistent with the court's approach
in (General Elu(tr'im, we think it appropriate that the
compensation paid by Respondent to nonunit col-
umnists be furnished as to specific columns, though
not necessaril' specif'ing amounts paid to designat-
ed individiuals.
Respondent asserts ,hat the facts in the instant
case are sufficiently different from those in Northwe.st
Puhlications, . Ic supra, where the union had long
faced encroachment on unit work. as to make the
Xdministratixe Luaw Judge's reliance on that case in-
appropriate here. In Vorthircst, the Board, with one
member of the panel dissenting. held that the respon-
dent thus was obligated to furnish the union \with
information about the wages of. and the proportion
of bargaining-unit work performed b\. supervissors
who were included in the unit b\ contract. It ;was
stipulated that these supervisors performed a sub-
stantial amount of bargainine-unit work. and there
had been continuing controversy over their unit in-
clusion, with the respondent having twice filed peti-
tions to exclude them by clarification. A careful
reading of the decision. however. discloses that the
fact that the supervisors were included in the unit
was not critical to the Board's holding. Ihus, after
noting the presumptive relevance of information colln-
cerning individuals included in the bargaining unit.
the Board went on to sa\: "AssuminLf that, in the
future, the parties ma' exclude the 29 supertl'isors
from the bargaining unit. the Information will con tin-
ue to be necessary to protect the interest of unit em-
ployees." The Board's concluding finding \\as that.
"were the supervisors outside the unit, the relexance
of information about them has been shown." ' In outr
view a similar relevance obtains In this case. he five
columnists as to w hom information is sought are
writing for the same papers as are the unit emplos-
ees. The product and the creative effort the product
represents are notabl' similar.
Respondent also urges that the relationship be-
tween the supervisors and the unit in Northwest Pub-
licalions was far closer than that between columnists
and editorial unit workers here, where no erosion of,
or threat to. unit work has been shown. On that basis
it urges the Board to rule that "information on rela-
tionships that the Publisher has with non-unit per-
sons who are not employees"--said relationships
Ihe court hoteer. sugige-ed that area emploser surveNs Imight he tak-
el hs i neulrd tlird part -ceptihale t emcploser and unwn. it order to
preseri e th r ctic\ I i i ,li a nip e r's data, and 'place the s l c ser' a and rplae es
In equal foolil .i tile t .lr.ainilng table. lithoult depriving them of releant
~,;:gC inlfortll onll"
I lhe Boardi hii i, ited th,tl altho)ugh bargaining for nonunit emploee'
lt.i nolt hbe m indallor\ . It d e noi t fioli.ow that an Emploser is not required
tA dlsulge inflorialiont xwith respect to nonluni employees where relevant to
the sat.it i-f Uittl Cli xti P O , Citing ( irel It ryi ght ('orporation i1 right A4ro-
iar il D..a./ /l,. X \ I R i 4' 2d I 1 (( A 3 19h65)
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being longstanding and well known and agreed to by
the Union over an extended period of time-- shall
require a clear showing of need, or 'special showing
of pertinence" as in The Prudential Insurance (Compa-
ny of America v. N.L.R.B., 412 F.2d 77, 84 (C.A. 2,
1969). This, Respondent asserts, would also "more
fully comply with the developing policy" of the
Court of Appeals for the Ninth Circuit, as in the
Union-Tribune Publishing, (o. case.7 In our view, the
premise for this argument is only partly accurate. Al-
though Respondent's use of columnists here is long
standing and well known to the Union, the latter has
in effect taken exception to the policy during earlier
contract negotiations, as well as during the 1976 77
negotiations we are here considering. It did so by
proposing the inclusion of minimum wage and bene-
fit provisions in the contract for nonunit workers.
Although these efforts have borne no fruit, the at-
tempts in themselves manifest a continuing concern
by the Union over the publisher's use of nonunit
workers as columnists.
As to the "special showing of pertinence" dis-
cussed by the court in Prudential, supra. we note that
the court considered a standard of that sort applica-
ble in terms of "peculiar circumstances," such as in-
formation as to removal of plant machinery, as to
employer profits, and as to a union's independent
timestudy of company operations-instances hardly
analogous here where the information sought con-
cerns differences in compensation paid by an em-
ployer for closely related editorial products. In our
view the Union, in its negotiations for a new con-
tract, is pursuing a legitimate, longfelt concern, the
pertinence of which in wage proposals is obvious.
The contention that the Union in the last negotia-
tions settled for the unit wage scale agreed upon for
editorial writers at metropolitan newspapers in San
Francisco does not impress us as militating against
the probable relevance of the publisher's payment to
columnists for use in bargaining at this time. We
would not deny the Union, in preparation for con-
tract negotiations, the right to expand its approach to
bargaining by requesting certain related cost infor-
mation simply because it had not done so in earlier
bargaining periods. New approaches may solve prob-
lems for both parties to the contract.
As to the argument concerning the affirmance by
the Court of Appeals of our dismissal in Union-Trl-
bune, supra. the issue there was refusal to provide the
San Diego Guild with certain information concern-
ing nonunit employees being trained to replace dis-
trict and relief district managers "in the sole event of
a strike." The court noted the fact that contract ne-
gotiations were not being carried on when the union
sought the information, so that the only relevance of
the information to the union was to determine
whether the company had violated the collective-bar-
gaining agreement. The Board had adopted the Ad-
ministrative Law Judge's finding, at footnote 12, that
the function of the employees being trained was "for-
eign to the purpose of this (or any) bargaining unit
As such the) are conceptually removed from
mundane matters of unit scope, opportunity for rep-
resentational contact, negotiation planning, and gen-
eral contract administration." The court, speaking
solels in terms of the need for initial showing by the
union that the company "had violated the labor con-
tract with its Operation Survival," viewed the union's
claim as based on unfounded suspicion. In our view
that case is inapplicable to the problem at hand: a
simple request for data on the compensation paid for
similar work- made during negotiations for a new con-
tract and fior the purpose of framing a wage proposal.8
For the foregoing reasons, we agree with the Ad-
ministrative Law Judge's conclusion that Respon-
dent violated Section 8(a)(5) and ( I) of the Act by its
failure to supply the Union with information about
the compensation paid to columnists for performing
work similar to that performed by unit employees for
Respondent's newspapers. Accordingly, we shall
adopt the Administrative Law Judge's recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Times-Herald Inc., Val-
lejo, California, its officers, agents, successors, and
assigns, shall take the action set forth in said recom-
mended Order.
San DigA ,'es spiVper luild, I.om l No 95 if( Ithe Ne .spaper Guild, 4 FL
(10, (I.( j niln-lrihbune Pubhlhing (C / v. N.L. R.B. 548 F.2d 863 (C.A.
9. 1977), affg. 220 NL.RB 1226 (1975).
a Respondent requested that the Administrative Ltaw Judge reopen the
healing herein toi receive evidence that the information requested by the
I nlln w.s In ,fact I. lnecessari lfor its formulation of wage proposals cover-
ilg unit eimploees. It ha Ireneved that request to) the Board, as well as
requesting that the Board take niotice of the finding to that effect by the
Adilnistratlive [..os Judge in .Amnphilrt Printing (Co 20 (A-12016). issued
this da) as 237 NLRB 955. Based on our findings above. Respondent's
motion is denied
DECISION
SFATEMENT OF THE CASE
JEIRROL.D H SHAPIRO, Administrative Law Judge: The
hearing in this case held on April 19. 1977, is based on
924
TIMES-HERAL D. IN(C.
charges filed on October 7, 1976, by the San Francisco-
Oakland Newspaper Guild, Local 52. The Newspaper
Guild, AFL-CIO. herein the Union, and a complaint is-
sued December 29. 1976. as amended April 5. 1977. on
behalf of the General Counsel of the National Labor Rela-
tions Board, herein the Board, by the Regional Director of
the Board. Region 20. alleging that Times-Hlerald. Inc..
herein Respondent, has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the Na-
tional Labor Relations Act, herein the Act. Respondent
filed an answer denying the commission of the alleged un-
fair labor practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGs or Fo( T
I THE BL'SINt'SS OF RESPONDI N I
Respondent Times-Herald, Inc., is a California corporai-
tion which publishes newspapers at its plant located in Val-
lejo, California. During the past ysear Respondent. which
received gross revenues in excess of $200.000 from the sales
of its newspapers and advertising therein, subscribed to
interstate news services and published nationally syndicat-
ed features in its newspapers. Respondent admits. and I
find, it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
ii THE LABOR ORGANIZATION INVOI \En
The Union, San Francisco-Oakland Newspaper Guild.
Local 52, The Newspaper Guild, AFL CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE QUESTION PRESENTEID
Whether Section 8(a)(5) of the Act obligates Respondent
to supply to the Union, upon request, information about
the amount of compensation Respondent pays persons not
represented by the Union to perform work similar to the
work performed by employees represented by the Union.
IV THE ALLEGED LiUN AIR LABOR PRA('TI( FS
A. The Facts
The Union is. and has been since 1944. the collective-
bargaining representative of the editorial department em-
ployees employed by Respondent's two newspapers. the
Vallejo Times-Herald and the Vallejo News-Chronicle.
The employees in the newspapers' common editorial de-
partment supply the papers with the material, other than
advertising, which they publish. The parties' most recent
collective-bargaining contract was effective from Januars
1, 1974 to December 31, 1976.'
The Union represents. and the parties' succcssile .collecllsc-harglmllilng
contracts cover. the newspapers' adserinsing departnlcnl cnlplwees ai v, ell
as the editorial department emplohsee. ltosc er. the esidenr..c inirttlzled
Respondent for a long period of time has employed per-
sons other than employees represented by the Union and
covered bx the parties' collective-bargaining contract to
furnish its newspapers with editorial material. During the
time material to this case. Respondent published five spe-
cial interest columns. each written bh a different columnist
who WIas not represented bh the ULnion and covered hb the
parties' collective-bargaining contract.: 'Three of the col-
umns have been published for 20 or more sears and two of
them for at least 5 vears. The) have alwa)s been written bN
nonunit persons.' ihe fixe columns are ver) similar in con-
tent to other special interest columns published in Respon-
dent's newxspapers which are written by employees who are
represented hb the L nion and covered by the parties' col-
lecti, c-bargalr ing contract
'There is no contention that Respondent's employment
of the five nonunit columnists to write the aforesaid col-
umns was in derogation of the parties' contracts. Nor is
there cidence that the t'nion has challenged the Respon-
dent's right under the successive contracts to employ these
columnists. e'en though the) perform work similar to that
performed bh the editorial employees represented bv the
tUnion. The l nion has not stood b . however. and accept-
ed the Respondent's use of nonunit editorial workers in
silence. DurinE contract negotiations which took place in
1971 the ULnion proposed. without success. that Respon-
dent accept a broad jurisdictional clause A hich the LInion
thought would prohibit Respondent from continuing to
employ nonunit workers to perform editorial work. Then.
in 1973. during the negotiations for the recently terminated
contract, the Union proposed that Respondent pay persons
who perform bargaining unit editorial work. who were not
represented bN the U!nion, the minimum wage rate provid-
ed in the contract and contribute on their behalf into the
contract's health and retirement funds. The purpose of this
proposal was to discourage Respondent from continuing to
employ the five nonunit columnists or any other nonunit
editorial workers whom it might employ. Respondent re-
jected this proposal stating it would make it too expensive
to employ nonunit persons.
The parties' most recent collective-bargaining contract
terminated December 31. 1976. The negotiations for a suc-
cessor contract began earl) in December 1976. at which
time the Union made initial contract proposals which,
among other things. included the above-described mini-
mum contract t wage rate proposal for nonunit editorial per-
sons, which reads:
For each published stors. photo or art item concern-
ing subject maltter in Northern California and ac-
quired from a non-emploree. the Employer shall pal
hs Ihc (Cirlil.il ( unlel 1uhl 1 peririams 1o the advertising depa.rtment Cm-
pi cc i, t , Ih ln . i hct/ill the t nlri.n' ilufrnl.lltioin request. Ite nl.ttle
shith 1I It1 dispute in this c;iS. is limited to Inlorratiorln pertaining ti the
emplosees in the editorlal depa;rtment.
I hle onl 'tolhe lli.itc. l i roluullll pcron. furnished Io Respondent
f. r pulbhli.cat duri 1n Ihc thItiln I.leCrial herein ias neus dat.a upplied h\
high clie, hl telient, .ncrning high schoo.l athletic esenls Respondenl
onl\ hud1iele ;l .i llltl.IIlnlU If 580 ;I mon th for such diiIrl
1 SiCltc h flC .lilill l. iI qIsIlcti are blined. and in i leu of the lengith
.of tIl c ilics hur.lc been puhlih I find h he I nidn in ll fixe ca: c
kneu hi l I tIII lllllls I CerI heilll prdineced ns illunisrt[ wu..rkcrs shrlil
ifter tlher Iniriil rtlhlI.lhOn
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the non-employee not less than one week's Schedule
"A" top minimum, and shall pay to the Retirement
Fund and the Health & Welfare Fund the same con-
tributions that would be paid that week for a full-time
employee. Employer shall report weekly to the Guild
giving the name and address of each non-employee
whose product is published, the byline or credit line
used, if any, and any), compensation paid.
On August 5, 1976, the Union wrote Respondent it was
preparing for the negotiations for the new collective-bar-
gaining contract and needed certain data to assist it in the
negotiations. The Union requested Respondent to supply
it, by August 30, 1976, with the following information per-
taining to nonbargaining unit editorial workers:
A list of all persons, whether employees or not, out-
side the bargaining unit whose editorial products were
published in your newspaper during the three months
May through July, 1976, excluding only persons
whose copy was supplied to you by wire services or
syndicated services.
With this list of non-bargaining unit persons, the
following data:
a. If a pen name was published, give both the pub-
lished name and the real name.
* * * * *
c. Identification of each item from such person pub-
lished during the three-month period, giving enough
detail to enable one to locate it in the newspaper.
d. Amount(s) paid to the person for, or in connection
with her/his production of, each item.
The relevance of the request for this information was ex-
plained to the Respondent by the Union in the letter in
these terms:
This non-bargaining unit data is needed so that the
[Union] may evaluate present contract provisions de-
signed to protect bargaining unit work and be in a
position to negotiate as to further provisions to protect
bargaining unit work and negotiate as to minimum
terms for non-employee work.
In reply, Respondent by letter dated September 22, 1976,
informed the Union that "we do not see the relevance of
the data requested and decline to furnish such data without
acceptable proof of relevance."
On October 7, 1976, the Union filed the instant unfair
labor practice charges against Respondent.
On December 17, 1976, the Union wrote Respondent
stating "[i]n addition to the material requested in our Au-
gust 5, 1976, letter, we request the following with respect to
non-bargaining unit persons";
I. A list of all incidents or occasions within the six-
month period May through October. 1976, when raw
news data or news information was supplied to the
newspaper by a non-bargaining unit person (excluding
syndicated or wire service), the name of the person
who supplied it, and what the person was paid for
each incident or occasion or other basis of pay.
2. A list of any individuals who fit into the categort
of "stringers" or "correspondents" or other persons
(excluding syndicated or wire service) who are paid a
"retainer" or other regular weekly or monthly or other
periodic sum, to provide editorial matter, including
raw news facts; and an indication of the fields or in-
terests or geographic areas covered by each such indi-
vidual; and for each individual, an indication whether
he or she supplied specific news items, articles or raw
data; and the amounts paid to each individual, either
for specific periods or for specific items.
On February 24, 1977, representatives of the Union and
Respondent met to resolve the dispute over the informa-
tion sought by the Union.4 Anderson, Respondent's labor
relations consultant, told the union representatives that
Respondent employed two categories of nonunit editorial
workers: high school students and five columnists who
wrote columns on specific subjects. Regarding the high
school students, Anderson explained that they phoned the
newspaper the raw information about high school athletic
events which was converted into news by members of the
bargaining unit and that the students were paid $10 per
item submitted and that Respondent's budget for this in-
formation never exceeded $80 in any month. Regarding the
five columnists, Anderson explained the nature of their
work in detail but refused to furnish the Union with the
amounts of their compensation, stating that they), were paid
substantially below the "Union scale" but that it was Re-
spondent's position that the amount of their compensation
was confidential and, in any case, the information was not
relevant to the Union for collective-bargaining purposes.
Leff, the Union's attorney, replied in substance that the
information about the compensation paid to the five non-
unit columnists for performing work similar to the unit
employees' was relevant to the Union's intelligent consid-
eration of its proposal that the nonunit editorial workers be
paid the minimum contract wage for performing unit work
and that it was also relevant to the administration of article
IlIlh) of the contract, 5 as well as to the Union's contract
proposals covering bargaining unit employees. The meet-
ing concluded with Leff stating that, if Respondent re-
duced into writing the information supplied during the
meeting and supplied the Union with the amount of money
it paid the five nonunit columnists, the Union would with-
draw the unfair labor practice charges it had filed in this
case.
On February 28. 1977, by letter, Respondent supplied
the Union with the information it had verbally given the
Union during the meeting of February 24 but informed the
Union it was unwilling to supply the rates paid for the
columns which were produced by the five columnists who
4The description of what took place at this meeting is based upon a
synthesis of the uncontradicted testimony of the L nion's representalives
who attended the mreeing. Cuthbertson and Left. hhoese testlmons is not
inconsistent.
,.rt Ill(h) of the toniract which deals ,ith the contract's "coverage"
reads
a.1ll ,ork dtels pilcscitl) or normally performed by employees
ci ercd h, ths lontraicl shall continue to he performed b) emplosees
cinered h, this conlact. ats shall ans additlional ork requiring similar
skills and serxing a similar purpose for ihich emplosees covered b)
this conlracl nolrn.altl arr employed bs the Puhhlisher.
926
TIMES-HERALD. INC.
were not represented by the Union. In this regard the letter
states:
The Company once again reconfirms its desire to
maintain the confidentiality of the rate of pay which is
accrued to the columnists who have been a regular
weekly feature in the newspaper for many years. Fur-
thermore, the Company was unable to determine from
the statements made by [the Union] at our meeting on
February 24th that the rate of pay to the aforemen-
tioned columnists was relevant for the purpose of col-
lective bargaining in any respect whatsoever.
On March 2, 1977, the Union, by letter, replied:
Your failure to supply the rates paid for the aforemen-
tioned columns does not satisfy the [Union's] request.
The data concerning the amounts paid is directly rele-
vant to and necessary for the [Union's] bargaining on
appropriate rates of pay for its members, and this data
is, in addition, potentially necessary for possible bar-
gaining demands concerning appropriate rates paid to
freelancers correspondents, independent contractors
or anyone else doing the work done by employees in
the bargaining unit.
B. Discussion and '7timate Findings
It is well settled that an employer has a statutory duty to
provide relevant information needed by a union for the
proper performance of its duties and that the employer's
failure to meet this duty constitutes a refusal to bargain, in
violation of Section 8(a)(5) and (1) of the Act. N.L.R.B. v.
Acme Industrial Co., 385 U.S. 432, 435-436 (1967). The sole
criterion for determining whether information must be pro-
duced is its relevance or reasonable necessity for the
Union's proper performance of its representative role. This
is true whatever the nature of the material sought, though
the manner in which relevance is to be ascertained varies.
Information directly related to wages, hours, or other terms
and conditions of unit employees is presumptively relevant
to the union's representative duties, while information con-
cerning employees outside the unit must be shown to be
"relevant to bargainable issues." N.L.R.B. v. Rockwell-
Standard Corporation, Transmission and Axle Division, et al.,
410 F.2d 953, 957 (C.A. 6, 1969). In other words, "lw]hen a
union requests information which is not ordinarily relevant
to its performance as bargaining representative, but which
is alleged to have become so because of peculiar circum-
stances, the Courts have quite properly required a special
showing of pertinence before obliging the employer to dis-
close." The Prudential Insurance Compan' of America v.
N.L.R.B., 412 F.2d 77, 84 (C.A. 2, 1969), and cases cited
therein. The burden of proof is thus different, but "the
ultimate standard of relevancy is the same in all cases."
The Prudential Insurance Company of A merica *. N. L. R. B.,
supra, at 84. See Curtiss- Wright Corporation, Wright Aero-
nautical Division v. N.L.R.B., 347 F.2d 61, 69 (C.A. 3,
1965). It is only necessary for the union to demonstrate the
"probability that the desired information [is] relevant, and
that it [will] be of use to the union in carrying out its statu-
tory duties and responsibilities." N'.L.R.B. v. Rockwell-
Standard, supra at 957. quoting from N.L.R.B. v. Acme In-
dustrial Co., supra at 437. This is, as the Supreme Court
expressly recognized, a discover-type standard, not a trial-
type standard, and thus allows the union access to a broad
scope of potentially useful information for the purpose of
bargaining intelligently. N.L.R.B. v. Acme Industrial Co.,
supra, at 437 and fn. 6; N.L.R.B. v. Rockwell-Standard
Corp., supra at 957; Torrington Company v. N.L.RB., 545
F.2d 840, 842 (C.A. 2, 1976).
Respondent, as described supra, refuses to supply to the
Union the amounts of money it pays five columnists for
performing "bargaining unit work." It is for the refusal to
furnish this information that the General Counsel and the
Union charge Respondent, in this proceeding, with violat-
ing the Act. The ultimate question presented is whether
Respondent's statutory duty to bargain with the Union
obligates it, under the circumstances of this case, to furnish
the Union with information about the compensation it
pays to the five columnists for performing the kind of work
covered by the parties' collective-bargaining contract, even
though they are not represented by the Union. First, it is
necessary, however, to decide whether the Union's request
for this information is supported by a showing of "proba-
ble" or "potential" relevance.
Cuthbertson, the union representative who made the ini-
tial written request for the disputed information, testified
that the Union sought information about the compensation
the five nonunit columnists received for performing edito-
rial work, for two separate reasons: 6 ( I) The information is
relevant to the Union's contract proposal seeking the mini-
mum contract wage rate for unit work performed by un-
represented persons; and (2) the information is also rele-
vant to the Union's wage proposal covering the unit
employees. I shall determine whether, in connection with
one or both of the purposes for which the information is
being sought,7 a proper showing of relevance has been
made for the Union's use of the disputed information.
Insofar as the Union's request for information pertains
to its contract proposal that Respondent pay the colum-
nists who are not represented by the Union the contract's
minimum rate of pay and contribute into the contract's
health and retirement funds on their behalf, the threshold
question is whether the proposal is a mandatory subject of
bargaining. The statutory obligation to bargain, though
normally concerned primarily with the working conditions
of the employees in a particular bargaining unit, also en-
compasses matters involving individuals outside the unit
which affect employees within the unit. Local 24, Interna-
tional Brotherhood of Teamsters. Chauffeurs, Warehousemen
and Hielpers of America, AFL CIO v. Oliver, 358 U.S. 283
These two reasons were the same ones gi.en In the I nlon's cltter to
Respondent. described vupra, dated March 2. 1977
Where. as here, the i nion at Ihe hearing, through Its represent.il\c.
specified the reasons it needs the disputed infolrmall'n. I will norl speiulale
aboul ain oither possihle 'as, in which the information would he useful to
the t nion in i, role ;is the unit enmpluees bargaining representative
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1959). Olivers holding that the terms of employment of
those outside the bargaining unit can be mandatory sub-
jects of bargaining has been limited to situations in which
those terms "vitally affect" the unit employees. Allied
Chemical & Alkali Workers of America, Local Union No. 1
v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S.
157, 178--179 (1971). In the instant case, the Union cannot
require Respondent to bargain over the compensation of
the five columnists, absent evidence that their wages "vital-
ly affect" the terms of employment of the editorial workers
that the Union represents. See Sperry Systems Management
Division, Sperry Rand Corporation v. N.L.R.B., 492 F.2d 63,
69-70 (C.A. 2. 1974). There is no such evidence. The record
does not show that the use of any one of the five colum-
nists has resulted in either the replacement of an .editorial
worker represented by the Union or in a loss of earnings or
working time by editorial workers represented by the
Union. In fact, the number of unit editorial workers since
1969 has increased by four. Moreover, each one of the non-
unit columnists, about whom the Union is seeking the dis-
puted wage information, is permanently assigned to writing
a particular special interest column which, with the
Union's acquiescence, for periods ranging from 5 to 25
years, has been produced by columnists who have not been
represented by the Union. Viewed realistically, this is sim-
ply not a case where unit editorial workers are in danger of
being replaced by nonunit workers or of having their wage
standards undermined by nonunit workers. Under the cir-
cumstances, I conclude that the Union's minimum contract
wage rate proposal, as it relates to the five columnists
whom the Union does not represent, is not a mandatory
subject of bargaining, hence, insofar as the Union's request
for wage information is based upon the Union's need to
intelligently consider its minimum wage rate proposal cov-
ering these columnists, the Respondent is not obligated to
supply the information.
11
The conclusion that the Union is not entitled to the dis-
puted information for the purpose of intelligently consider-
ing its minimum contract wage rate proposal for nonunit
workers does not warrant a dismissal of the complaint. I
am persuaded that the Union is entitled to the disputed
information so as to assist it in framing its wage proposal
covering unit employees.
The test in determining whether Respondent is obligated
under the statute to supply the disputed information is
whether the record demonstrates a "probability that the
desired information [is] relevant, and that it [will] be of use
Ihe sole evidence of, unit editorril workers having suffered economic
layolfs wals Ihe tetimnionl of :ninon Representativse Cuthertson that one or
Iwo reporters were laid tiff. lemporaiil . 5 or 6 )cars prior to the events
malterial it this cai.e Ithere Is n1 contentlion that these layoffs were related
to Ihe eliplomsnenl of any one of the nonunit columnists assigned to write
the columns insolsed in this case. In this regard. I note that since each one
of the nonunio t colulinisls write specific special-interest columns. they do
noll work in competition with the unit editorial workers. thus. it is a fair
iiferencte that their employment had absolutely no affect on the employ-
ment of thie aid-off employees.
to the union in carrying out its statutory duties and respon-
sibilities." N.L.R.B. v. Rockwell-Standard .supra at 957.
quoting from N.L.R.B. v. A cme Industrial Co.. supra at 437.
Here the record, as described supra, establishes that five
columnists perform editorial work which is similar to the
work performed by the employees covered by the parties'
contract who are represented by the Union. Thus. there is
an obvious connection between the information sought
the compensation paid to the five columnists and the
Union's wage proposal covering unit editorial employees
who perform the same type of work as the nonunit colum-
nists. As Union Representative Cuthbertson testified.
"[W]e want to know what they're paid in order to evaluate
what the company is paying our people." Under the cir-
cumstances, I find that it is highly probable that the
amount of money paid to the five nonunit columnists for
performing the same kind of editorial work performed b3
the editorial employees in the unit represented by the
Union, is relevant and will be of use to the Union in car-
rying out its statutory duty and responsibility of intelligent-
ly considering a wage proposal for the editorial employees
it represents. In Northwest Publications, Inc., 211 NLRB
464, 466 (1974), the Board addressed this subject in these
terms:
The Union's immediate and continuing need for in-
formation about (nonunit workers'] earnings and
method of payment, when examined in the light of the
[nonunit workers'] work and the Union's duties. is ap-
parent. As stipulated by the parties, [nonunit workers]
perform a substantial amount of bargaining unit work.
as in the case of Executive Sports Editor Duino who
covers newsworthy events and writes stories about
them. [Nonunit workers] perform like work .... The
Union, in forthcoming negotiations, is bound to dis-
cuss wage and other proposals covering all unit em-
ployees. The pay received by [nonunit workersl like
Duino for performing bargaining unit work and the
method of pay . . . have a direct bearing on the pay of
employees . . . represented by the Union.
See also Goodyear Aerospace Corporation, 157 NLRB 496,
503 (1966) ("Data as to salaries and fringe benefits in com-
parable jobs would be relevant to the Union in framing
contract proposals covering employees within the unit").'
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
9I have considered thalt the I nion has r nt In preslious negotai o, s asked
for this type of informatirn. Nonetheless, In ile u of the clear clineCtill,
between the information sought and the Utnion's wage proposals ci)rering
unit employees. I am satisfied this is not a situation in which ii llion hits
concocted a reason to justify access Ito data which it rordinarilv oiuldl nlst he
entitled
I I rlect Resporndent's iontention. advanced in its February 28. 1977.
letter toi the IlUlion. that it is privileged to refuse to disclose the disputed
informalion because it is conifidential It is settled that the "alleged confi-
dentialit ofI relevant economic data needed for informed bargaining is nio
defense" (,(;certl El/crtir (', v. NA RB. 466 F.2d 1177. 1185 (CA. 6.
1972) ), and nil reason appears why this principle should not be applied
here. Iikewise. I reject Resprondent's contention that its statutory obhligation
Itward the Unlion s:as satisfied by telling the Union the bare fact that it
paiid the nunLunit columnists suhstantiallys below "Union scale."
928
TIMES-HERALD. INC.
CO()NC. :SIONS OFi LAW
1. Times-Herald, Inc., the Respondent. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. San Francisco-Oakland Newspaper Guild. Local 52,
I'he Newspaper Guild. AFI, ('10. the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All advertising department employees and all editori-
al department emplosees employed by Respondent at the
Vallejo fimes-Herald and the Vallejo News Chronicle, ex-
cluding all other employees. managing editors, executive
editors, business managers. commercial printing depart-
ment managers, circulation department managers, direc-
tors of advertising. display advertising managers. national
advertising managers, classified advertising managers, glo-
bal ranger managers. business department managers. circu-
lation department employees, commercial printing depart-
ment employees. janitors. guards and supervisors as
defined in the Act, constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of Sec-
tion 9(bh) of the Act.
4. The Union is the exclusive representative of all the
employees in the aforesaid unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
5. By failing and refusing to supply the Union with the
amount of the compensation paid to the columnists for
producing the columns entitled "Where It's At." "Navy
Notes." "Pages From the Past." "Tlravis Scene." and
"American Canyon," which were published in the Vallejo
Times-Herald and/or the Vallejo News-Chronicle from
May 1976 through July 1976. Respondent has engaged in
and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and ( I ) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
1I'm RFMDFrY[
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices affecting com-
merce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effec-
tuate the purposes of the Act.
Upon the foregoing findings of fact. conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER Ii
The Respondent. Times-Herald. Inc.. ValleJo, Califor-
nia, its officers, agents, successors, and assigns. shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with San Francisco-
Oakland Newspaper Guild, Local 52, The Newspaper
Guild, AFL-CIO, by refusing upon request to supply rele-
vant information needed by said Union to represent the
employees in the unit hereinabove.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Furnish. upon request, to San Francisco-Oakland
Newspaper Guild. l.ocal 52, The New spaper G(uild. AFI.
CIO, the amount of compensation paid to each one of the
columnists for producing the columns entitled "Whre It's
At," "Naves Notes." "Pages From the Past." " Iralis
Scene," and "American CanNon." which were published in
the Vallejo Times-Herald and or the Vallejo News-('hron-
icle from Mas 1976 through July 1976.
(b) Post at its office and place of business where notices
to employees represented b\ the aforesaid U nion in the
bargaining unit hereinabove are customaril' posted by Re-
spondent. copies of the attached notice marked "'Appen-
dix.'" 2 Copies of said notice, on forms provided bh the
Regional Director for Region 20. after being duls signed
by Respondent's representative. shall be posted b' Re-
spondent immediately upon receipt thereof. and be main-
tained by it for 60 consecutive days thereafter. in conspicu-
ous places, including. as described above. all places where
notices to employees employed in the appropriate hargain-
ing unit are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered b' an's other material
(c) Notif' the Regional Director for Region 20. in writ-
ing. swithin 20 dais from the date of this Order, what steps
the Respondent has taken to comply herewith.
iin teil erenll no exception, are filed a' pr Mided b' Sec 102) 46h of the
Rules allnl RegC laiiionIi s of the Nationll I abor ReltIOIIos B alrd the flllilng,.
con,11Jlll,, .,id, re..lnilend (Order herein 'hall. as prolded in Sec 102 48
of the Rules and Reguilation. bhe adopled b the Bhcarr and hbecomne it
fltldimci tlll..t lsTI&I ls .ndl (Order. and all Ob[ 1etllmlx thereto hall be deemed
iti.ll .d f ` 11 ll p1-LITr s¢C
In thei ex ent th it Sit, (O)rde. i , enf, rced b a judgment of a Itniled
Sllte ( oulii ,f \plpeal the rs,,rd, i Ihe nollce reading "Po,,led hb Order
of the '.1mill l habor Relllmn, Board" Shaill read .T"oed PUlrsualn Io a1
Jidlllenl l IhO t IL nlled Sitaie (',urt of Appecal, Finforcmng an Order of Ihe
Nal.nr. l labor Rcl.lR onl Blall,-l
APPENDIX
Noii(c To EiPI OY ES
POSifD BNI ORI):R 01 IHl
Nlil()NAi LBO()R RFIA1iONS BO^RD
An Agency of the United States Government
Wi wili N.oi refuse to bargain collectively with the
aforesaid Union by refusing, upon request, to supply
relevant information needed by said Union to repre-
sent the advertising department and editorial depart-
ment employees it represents employed by us at the
Vallejo Times-Herald and the Vallejo News-Chron-
icle.
Wi wii Not in any like or related manner interfere
with. restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, furnish San Francisco-Oak-
land Newspaper Guild, Local 52, The Newspaper
Guild, AFL CIO, the amount of compensation paid
to each one of the columnists for producing the co-
lumns entitled "Where It's At," "Navy Notes," "Pages
From the Past," "Travis Scene," and "American Can-
yon," which were published in the Vallejo Times-Her-
ald and/or the Vallejo News-Chronicle from May
1976 through July 1976.
TIMiS-HFIRALDt INC.
930