Union-Tribune Publishing Co.

National Labor Relations Board - Board Decisions

Oct 10, 1975

220 N.L.R.B. 1226 (N.L.R.B. 1975)

1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union-Tribune Publishing Co. and San Diego News-
paper Guild, Local No. 95 of the Newspaper Guild,
AFL-CIO, CLC. Case 21-CA-12734
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
October 10, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
'On May 29, 1975, Administrative Law Judge Da-
vid G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Union filed exceptions and a supporting brief, and
Respondent filed a brief in answer to the exceptions
of the General Counsel and the Union.
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 and to
adopt his 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 complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN , Administrative Law Judge: This
case was heard at San Diego, California, on January 21,
1975, based upon a charge filed I June 3 and complaint
issued October 11, which was amended November 29, al-
leging that Union-Tribune Publishing Co., herein called
Respondent, violated Section 8(axl) and (5) of the Act by
failing and refusing to furnish requested information as-
sertedly necessary and relevant to determinations by San
Diego Newspaper Guild, Local No. 95 of the Newspaper
Guild, AFL-CIO, CLC, herein called the Union, in its ca-
pacity as exclusive collective-bargaining representative of
particular employees.
Upon the entire record in this case, including my obser-
vation of the witnesses, and upon consideration of briefs
filed by each party, I make the following:
i All dates and named months hereafter are in 1974 , unless indicated
otherwise . Where context warrants , 1974 may be shown.
Respondent, a corporation, publishes two newspapers in
San Diego, California, in connection with which it sub-
scribes to several interstate news services , advertises na-
tionally sold products, annually derives gross revenue from
its publishing operations in excess of $200,000, and annual-
ly purchases goods valued in excess of $3,000 which origi-
nate from points located outside the State of California. I
find, as Respondent admits, that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
Since approximately 1937 Respondent has recognized
the Union as exclusive representative for certain of its em-
ployees.2 Respondent and the Union traditionally maintain
contractual relations through successive collective-bargain-
ing agreements . Respondent similarly recognizes, and con-
tracts with, five other labor organizations representing
craft and other employees utilized in publishing operations.
The current collective-bargaining agreement with the
Union, effective from June 4, 1973, to June 6, 1976, con-
tains the following language as article I, section 3, and arti-
cle XXIV, section 1, respectively: 3
The Guild has, and shall retain, jurisdiction over the
kind of work presently performed by employees of the
Publisher in departments and classifications covered
by this contract, except for those positions specifically
excluded under Article IV. It is further agreed that
work being performed by independent contractors, by
employees in other bargaining units and by employees
not included in any bargaining unit shall continue to
be performed by such persons. Nothing in the fore-
going shall be construed to alter the Publisher's pre-
sent practice or method of operation. (BARGAIN-
ING UNIT)
2 The amended pleadings and colloquy of record establish that Respon-
dent extends recognition to the Union for employees of several depart-
ments. The unit as a whole contains 780-800 employees . This case relates
only to one of these included departments ; namely circulation , The bargain-
ing unit is described in G.C. Exh. 2 (art I read in conjunction with art. IV).
Par. 5 of the complaint , as amended, sets forth an integrated statement of
the entire , extensively phrased, contractual bargaining unit (except for the
"departments" of "General Management" and "Industrial Relations" which
are obliquely , and somewhat redundantly, excluded). I find the unit de-
scribed in the amended complaint to be one appropriate for purposes of
collective bargaining within the meaning of Sec. 9 (a) of the Act. For brevity
no formal recitation is made.
7 Current jurisdictional language of art. 1, sec . 3, is identical to that con-
tained in three preceding contracts , the earliest of which covered 1965-67.
Current informational language is enlarged from that of at least four pre-
ceding contracts , the earliest of which covered 1963-65 , and relocated from
prior placement in art. II (Modified Guild Shop). Current art. XXIV, sec. 2,
also sets forth further informational requirements ; however General Coun-
sel has confined the issue (s) of this case to sec. 1.
220 NLRB No. 195
UNION-TRIBUNE PUBLISHING CO. 1227
D * * * * date of birth, Social Security number, date on payroll,
The Publisher shall furnish to the Guild in writing,
the name, address, telephone number, sex, date of
birth, Social Security number, date of payroll, contract
classification, experience rating, experience anniver-
sary date, and salary of each new covered employee
within one (1) week after he or she has started to work
and has been placed on the company payroll. (IN-
FORMATION)
Since at least 1965 Respondent has maintained a pro-
gram termed "Operation Survival." Oliver B. Peter,
Respondent's director of industrial relations, defined this
program as one "[B]y which the publisher can and will
publish and distribute the newspaper in the event one or
more of the labor Unions chooses not to have their em-
ployees work." Essentially it has involved readying of per-
sons, through training and orientation, as strike replace-
ments. The program is ordinarily active only during times
when contract renewal negotiations are occurring with at
least one of the recognized labor organizations; otherwise
it is dormant .4 Relative to the outside circulation activities
of the circulation department, persons involved in Opera-
tion Survival are circulation department supervisors (who
extend training) and persons who either already have an
independent contractual relationship with Respondent for
purposes of distributing newspapers to carriers, or who
have no relationship with Respondent other than their par-
ticipation (or repeat participation) in the program. The
outside circulation function consists of 113 districts and 27
"street sales" routes. Presently 83 districts are handled by
persons holding the contractual classification of district
manager or relief (vacation or regular) district manager.
The remaining 30 circulation districts are handled by inde-
pendent contractors. A district is a geographic portion of
the San Diego metropolitan area in which newspapers are
distributed to home delivery carriers. Persons ordinarily
progress to the position of district manager from the relief
classifications although occasionally hiring is done from
the circulation department at large. The tasks of a district
manager (as well as unrepresented independent contrac-
tors) include recruiting carriers, transmitting collections,
and maintaining subscriber records.
Operation Survival was last reinstituted approximately
June 1973 and it had continued uninterruptedly as a readi-
ness phase until at least the time of hearing. In March
1974, the Union became aware that persons were following
district managers, stating they were strike replacements. By
letter dated April 1, John C.Edgington, the Union's Execu-
tive Secretary, wrote to Peter as follows:
It has come to my attention that several individuals
are being trained to perform various duties now being
performed by district managers and relief district
managers in the outside Circulation department.
To date, the San Diego Newspaper Guild has not
received the name, address, telephone number, sex,
4 Operation Survival was activated extraordinarily during 1972 in connec-
tion with technological change affecting members of the International Ty-
pogrgphleal Union.
contract classification , experience rating, experience
anniversary date and salary of these individuals.
Kindly submit this information to us by April 8,
1974.
Thank you.
This request was parried by Peter's written reply dated
April 4. A second written request by Edgington on April 19
and two meetings between the parties that month brough
no change of position. On May 14, Edgington wrote Peter
as follows:
In accordance with Article XX, Section 3 of our
current contract, San Diego Newspaper Guild re-
quests a formal grievance meeting to consider the mat-
ter of individuals being trained to perform the duties
of district manager and relief district manager in the
outside circulation department.
At issue is the proper application of our current
contract to these individuals.
A related issue is the Union-Tribune Publishing
Company's refusal to supply information twice re-
quested. A careful review of this information, had it
been made available to us, might have significantly
altered our point of view and caused us to remove part
or all of the aforementioned grievance.
Please contact me as soon as possible to arrange a
suitable meeting time.
Peter replied by letter dated May 17, stating in part:
In your letter of May 14 you indicated that a careful
review of the information on these individuals might
significantly alter your point of view and remove part
or all of the grievance. This may well be, but we feel it
would be inappropriate for us to provide you this in-
formation. These individuals are not employees of
Union-Tribune Publishing Co., and they are not per-
forming and have not performed work covered by our
current labor agreement. We are not obligated to give
you any information on these individuals under the
terms of our labor agreement.
Our "survival program" is something that we have dis-
cussed openly on numerous occasions with you and
other Guild officials repeatedly explaining it is de-
signed for defensive purposes.
It appears that our respective positions have not
changed since our last meeting. However, since you
have suggested another meeting, we propose 10:30 a.
m. Wednesday, May 22, 1974. Please advise.
Edgington testified that at the "formal meeting" on May
22 the Union explained it desired to contact the individuals
to whom the requested information pertained, if such be-
came necessary after "first talk[ing] to the Company about
the information supplied to us." Edgington particularized
the Union's interest at the time as concerning possible en-
croachment of "Guild jurisdiction" by the individuals and
"proper application of the collective bargaining agree-
ment" respecting "wages, mileage, information sections [of
the agreement], if these individuals [were part of] the col-
lective bargaining unit and . . . possible application of se-
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
niority." (Peter conceded the individuals received a car
mileage allowance for their program activities.)
Respondent's position remained that the Union was not
entitled to the information specifically requested.
By letter dated July 9, Edgington moved the issue of
arbitration in accordance with article XX of the contract .5
Correspondence was exchanged in succeeding months rela-
tive to selection of an arbitrator ; however, on December 17
Edgington wrote Peter to advise of the Union's preference
that such selection be deferred "[P]ending outcome of the
NLRB complaint over the Company's refusal to supply
information necessary to process the grievance." 6
Edgington testified that during the meeting of April 26
he stated to Respondent's representatives that "possible vi-
olations of the contract or possible encroachment in our
jurisdiction" was the basis of requesting information.
When pressed for specificity he gave "recruiting carriers"
as one example . Peter testified that while individuals re-
ceiving readiness training under Operation Survival are
provided duplicate route lists possessed by district manag-
ers, such individuals have never contacted a subscriber or a
carrier , distributed a newspaper to a district, or performed
"[A]ny of the productive work that is now done or has been
done by district managers or their reliefs ." Tangible tasks
of these individuals , refined over the years 1965-74, were
to physically scout a given route area as to newspaper dis-
tribution drops or carrier assembly points, familiarize
themselves with route lists, and comprehend home delivery
circulation forms referred to as "draw sheet," "stop no-
tice," and "serve" I
This case is honeycombed with various contentions
raised by the parties . Generally these fail to address the
3 This article (Grievance Procedure ) provides the mechanism to adjust
"Any dispute arising over the interpretation , application or operation of this
agreement" with a terminal step of referring the "issue" to arbitration.
Edgington 's letter alluded to failure in resolving "[O]ur dispute over the
company's refusal to provide information on individuals being trained to
perform the duties of district manager and relief district manager in the
outside circulation department."
6 Respondent subsequently invoked procedures of the American Arbitra-
tion Association upon purported authority of the collective -bargaining
agreement and applicable rules of that organization . The Union declined to
join in this approach , advising instead of its deferral (to NLRB) preference
while simultaneously extending an assurance of "fullest cooperation."
Respondent's brief states that after the hearing an arbitrator was selected
"to hear the matter on March 19 , 1975."iThis unilateral representation is
noted ; however, absent appropriate postheanng concurrence of all parties,
the apparent fact of arbitral progress must be disregarded for decisional
purposes. Additionally , the point is immaterial under my view of the case
r Peter testified that in 1965 an Operation Survival individual "inadver-
tently" rode with a district manager and that , following reports in 1965 of
district managers being followed, Respondent "[T]ried to discourage that
pretty clearly , as we have each year thereafter." Further , he acknowledged
that Edgmgton had claimed a carrier contact occurred but without "specific
response" at the time (early 1974) was content to have the department ad-
vised of the complaint "to again reassure that that had not been done"
9 One of these is Respondent 's claim that further proceedings be deferred
under the Collyer Insulated Wire doctrine ( 192 NLRB 837 (1971 ) ). Here the
essence of the case relates to the legal (as opposed to contractual ) issue of
whether requested information must be furnished . As such , it is a matter
within the Board's "special competence ," "special province ," or one "ba-
sically a statutory dispute ." Cf. Standard Scientific, a Division of IPCO, 195
NLRB 995, 997 ( 1972); Diversified Industries, a Division of Independent Stove
Company, 208 NLRB 233 (1974); Harley Davidson Motor Co., Inc., AMF,
214 NLRB No. 62 ( 1974), respectively . Deferral under Collyer is inappropri-
ate in such a circumstance, and (by a course of reasoning dealing simulta-
central theme of this litigation . The case , first and fore-
most, is one involving a basic posture assumed by one par-
ty. vis-a-vis the collective-bargaining relationship itself.
That posture , long maintained by Respondent , is to nur-
ture a strike-weathering capability by creation of what
might be termed shadow bargaining units . At the contact
level between the parties , the existence of this strategy
seems irksome, secretive , or even ominous to the Union. At
the managerial level, it is costly , unproductive , and necessi-
tating constant delicacy in fulfillment . Such novelty as
might be found does not alter Operation Survival as a tech-
nique of similar significance to those devised for enhance-
ment of bargaining leverage'
It is in this context that principles of necessity and rele-
vance (supporting the informational request) should be
viewed. The first branch relates to the Union's general role
as collective -bargaining representative for unit employees.
At this point, two burdens of proof come into play. One
relates to whether Operation Survival participant-trainees
are independent contractors as claimed ; the other relates
to whether a showing is made that requested data is rele-
vant and necessary to the Union 's performance of its statu-
tory responsibility. These burdens are those of Respondent
and General Counsel , respectively . As to the independent
contractor issue , it is clear that individuals utilized in Oper-
ation Survival (doubling independently contracting district
managers and pure readiness personnel ) perform compen-
sated service for Respondent . The axiomatic "right-of-con-
trol" test was not developed nor was any indicia of true
independent contractor status shown for such persons.1°
Thus persons that in fact function at the core of Operation
Survival are Respondent's employees within the meaning
of the Act. As to General Counsel's burden of proof, there
is simply no evidence that Operation Survival, separate
from its aspect as an employer posture, affects the bargaining
unit in a manner contemplated by applicable doctrine.
Edgington offered no personal knowledge of carrier con-
tact ; Peter denied it has occurred ; I I and the only remain-
ing interface is that of vaguely known utterances relative to
strike replacement intentions.
neously with the defense of "waiver") has been specifically declined in a
case dealing with the issue of duty to furnish relevant information. See
Worcester Polytechnic Institute, 213 NLRB 306 (1974).
9 A mutual aid pact between a coalition of major air carriers, intended in
part to provide "balance" of bargaining power, has reportedly stimulated
efforts to secure prohibitory legislation "News and Background I nforma-
tion," 85 LRR 264, 265 . The last United Auto Workers (UAW) convention
reported that labor organization 's strike fund standing at $89 million on
April 30, 1974 . "News", supra, 86 LRR 101, 102. These illustrations reflect
belief of the courts in N.L.R. B. v. Insurance Agents' International Union,
AFL-CIO, 361 U.S. 477, 489 ( 1960), and General Electric Company v
N.L.R.B., 412 F.2d 512, 519 (C.A . 2, 1969), where the opinions stated
"[P]resence of economic weapons in reserve, and their actual exercise on
occasion by the parties, is part and parcel of the system that [the Act has]
recognized" (emphasis supplied) and "(I]i would be nonsense to pretend
... that goal [to increase bargaining strength ] is [not] a normal one for
unions or employers ," respectively.
10 E.g., risk capital, equipment investment, or customary business identity.
Payment for services rendered in a manner disassociated from Respondent's
regular payroll function is without controlling significance.
1 Peter's denial was more realistically a statement of nonprobability.
Without actual evidence that some task customarily performed by district
managers (including reliefs) or arguably within the Union's stated "jurisdic-
tion" (art . 1, sec. 3 ) has been encroached upon by Operation Survival, there
is nothing to deny on this point.
UNION-TRIBUNE PUBLISHING CO. 1229
The composite significance here is merely that a sort of
self-featherbedding has been indulged for reasons going to
the heart of institutional collective bargaining, but without
affecting integrity of the bargaining unit. None of the re-
cognizable (or intrinsically legitimate) interests of an exclu-
sive collective-bargaining representative are affected by
this configuration of "defensive" bargaining unit(s) ex-
isting as a potential counterreactant in the arena of eco-
nomic power.12
The second branch of consideration relates to whether
disclosure is required in terms of the Union's entitlement to
sufficient information for intelligent grievance processing.
This issue is profitably viewed through the teachings of
United-Carr Tennessee, 202 NLRB 729 (1973), where the
Board adopted reasoning 13 based on N.L.R.B. v. Acme In-
dustrial Co., 385 U.S. 432 (1967). The underlying grievance
of this case is found in Edgington's letter dated May 14.
This casts the dispute in terms of a "train[ing]" technique
that in turn creates an " issue" of "proper application of our
current contract to these individuals." The grievance states
a faulty premise which Acme authorizes exposing. This is
that "training," within accepted employment meaning, is
not occurring. Peter was not contradicted concerning his
description of how the district manager classification is
typically reached following ample training in relief work.
Further, the Union's jurisdictional handle in article I, sec-
tion 3, relates to work "presently performed" in listed
departments. It would distort this meaning, and the
underlying purpose of a labor contract's recog-
nitional/jurisdictional language, were the phantom
activities of Operation Survival considered arguably relat-
ed to this unit. Further support to so conclude is found in
the literal agreement that work (generically, by context)
being performed may continue to be performed "by em-
ployees not included in any bargaining unit" and the ex-
press protection of Respondent's "present practice or
method of operation."
12 Notwithstanding that Operation Survival personnel are employees of
Respondent (since not proven to be independent contractors) their function
is foreign to the purposes of this (or any) bargaining unit; namely, to group-
represented employees sharing common interests and exchanging produc-
tive services for bargained wages and other conditions of employment. As
such they are conceptually removed from mundane matters of unit scope
opportunity for representational contact, negotiation planning, and general
contract administration . Cases in which unit-related information is validly
secured by a union are therefore inapplicable. See Viewlex, Inc., formerly
Globe Albums, Inc, 204 NLRB 1080 (1973); Magma Copper Company, San
Manuel Div., 208 NLRB 329 (1974); Northwest Publications, Inc., 211 NLRB
464 (1974); W. A. Sheaffer Pen Company, 214 NLRB No. 7 (1974). To the
extent that the Board has held data concerning strike replacements is ob-
tainable upon request of a union , the rationale goes to the encompassing
obligation to represent this group. See Westinghouse Learning Corporation,
211 NLRB 19 (1974). But cf. Glazers Wholesale Drug Company, Inc., 211
NLRB 1063 (1974), a holding affected by mootness of the issue
13 This opinion also viewed Collyer in a manner harmonious with In. 8
above and rejected the frequently associated "waiver" defense.
General Counsel correctly argues that "potential" rele-
vance in this doctrinal area is sufficient; however, citation
to Acme and Vertol Division, Boeing Company, 182 NLRB
421 (1970), fails to justify finding a violation in this fact
situation. Both these cases involved specific requests for
operational data relating to subcontracting decisions that
had directly affected bargaining unit members.14 Such cir-
cumstances are in strong contrast to the matter of releasing
personal identifying details about Operation Survival par-
ticipants; information having no rational bearing on the
challenge posed by this grievance. In truth the Union itself,
given expectable communication from its members, is in an
equally strategic position to know any specifics of actual
encroachment on tasks of represented outside circulation
employees, as these are a major link in the highly visible
chain of newspaper distribution from plant to porch.15
Accordingly,16 I issue the following recommended:
ORDER'?
The complaint is dismissed in its entirety.
14 General Counsel's brief also alludes to Worcester, supra, and Trustees of
Boston University, 210 NLRB 330 (1974), as supportive of a course of rea-
soning needed to establish the violation alleged Neither case has such char-
actenstics, as each relates to business documentation of an educational in-
stitution that would directly associate to employee layoffs Furthermore, no
presumption of relevance is available concerning the question of whether
Operation Survival personnel are to be deemed within the unit or encroach-
ing on work of the unit. See Curtiss-Wright Corporation, 145 NLRB 152, 157
(1963). Cf Ohio Power Company, 216 NLRB No. 177 (1975).
15 The Union's brief cites General Electric Co, 199 NLRB 286 (1972),
relative to Respondent's claimed duty to disclose; however, this opinion
expressly notes that "relevance" of requested job classifications and em-
ployment information originated "[O]n the basis of complaints from its
members and observations on the job [from which] the Union came -to
believe that the Respondent was eroding the unit by transferring , lob func-
tions from bargaining unit employees to employees in classifications the
Respondent contends are outside the scope of the unit." Further, the Union
argues that Peter's written response on May 17, in which the phrase "[this]
may well be" appears, constitutes an "admission" of relevance. Contrarily, I
believe this phrase is mere connective vernacular usage, as once identically
articulated by the Board itself in Western Electric, Inc, 199 NLRB 344, 352
(1972).
16 In view of the disposition made, Respondent's "waiver" defense is
moot. It further argues that any obligation to furnish requested information
is coextensive with mandatory bargaining on the subject matter This asser-
tion is clearly debatable under Chemical Workers v Pittsburgh Plate Glass
Co, 404 U.S. 157 (1971) International Union of Operating Engineers, Local
No 12, (AGC of Americ 187 NLRB 430 (1970), cited by Respondent in
support of this argument, )does however highlight the distinction I find con-
trolling about "regulation of the employer-employee relation" and, on the
other hand, attempted "regution of the Employers' economic strength and
relative bargaining position."
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes