Warner Press

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1161 (N.L.R.B. 1991)

1161
301 NLRB No. 146
WARNER PRESS
1 At the beginning of negotiations for a successor collective-bargaining
agreement, the Union proposed that the Respondent participate in the Indiana
Graphic Communications Union’s health and welfare fund, which included,
inter alia, these four benefits. The Respondent rejected this proposal, stating
that it was not interested in the fund and that its cost was too high. The Re-
spondent then submitted its own proposal that did not include these four bene-
fits.
2 The Respondent subsequently proposed group health insurance coverage
through the Sagamore Health Network that provided a 90/10-percent PPO ben-
efit with a $5 prescription card and provided the Union with the cost informa-
tion for this proposal.
3 As a trustee of the fund, Union President Robert Clements could have ob-
tained the cost to the funds of these benefits. In addition, the General Counsel
made no claim that the Union could not have obtained the information directly
from the Respondent’s insurance agent.
4 Although our dissenting colleague correctly points out that under Board
law an employer may not escape its obligation to provide information re-
quested by the union because the union could obtain that information from
other sources, that legal proposition is applicable only where the Board has
determined that the employer in fact has an obligation under Sec. 8(a)(5) to
provide the requested information. In the present case, the General Counsel
failed to establish this threshold requirement.
Warner Press, Inc. and Graphic Communications
Local 17, a/w Graphic Communications Inter-
national Union. Case 25–CA–19781
February 28, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On May 1, 1990, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
Contrary to our dissenting colleague, we agree with
the judge, for the reasons set forth by him, that the Re-
spondent was under no obligation to furnish the Union
with the requested information regarding the cost to
provide a dental plan, a vision plan, a dollar prescrip-
tion card, and ‘‘preferred provider option’’ (PPO) ben-
efits.1 As found by the judge, these benefits were not
being provided by the Respondent to any of its em-
ployees, the Respondent had not included these bene-
fits in its bargaining proposal at the time of the
Union’s request,2 and the Union had not proposed that
the Respondent add these benefits to the Respondent’s
proposal. Under these circumstances, the Respondent
had no obligation under Section 8(a)(5) to provide the
requested information.
Our dissenting colleague would require the Re-
spondent to furnish the requested information because
the information was ‘‘relevant to the Union in formu-
lating its bargaining position’’ and was ‘‘a logical re-
sponse to the Respondent’s rejection of its Health and
Welfare Fund proposal.’’ Had the Respondent fur-
nished the requested information, according to our dis-
senting colleague, the Union may have modified or
abandoned its proposal. Such reasoning obscures the
issue in this case.
Although the information would no doubt help the
Union in formulating its bargaining proposals, we
agree with the judge’s statement that ‘‘[w]hat is of
help to the Union in framing its demands does not de-
fine Respondent’s obligations.’’ As the judge correctly
noted, the Respondent is under no obligation ‘‘to do
[the Union’s] research . . . merely to help the Union
decide whether to seek those benefits.’’ The General
Counsel presented no evidence that the Union at-
tempted to obtain this cost information but was unable
to do so. Indeed, the judge found that the information
was easily ascertainable by the Union.3 Thus, under
these circumstances, the Union is simply attempting to
force the Respondent to do its ‘‘homework,’’ and the
Act does not require the Respondent to do so. We
agree with our dissenting colleague that there is noth-
ing unreasonable in a party’s investigation of the costs
of a proposal before it puts the proposal on the table.
What is unreasonable, however, is to force the other
party to conduct the investigation.4
Our dissenting colleague also faults the judge’s find-
ing that the General Counsel failed to show that the re-
quested information existed and that it was in the Re-
spondent’s possession. He reasons that because such
matters are affirmative defenses for which the Re-
spondent bears the burden of proof and because the
judge dismissed the complaint after the General Coun-
sel’s presentation of its affirmative case, the judge’s
finding is premature. In the circumstances of this case,
we find that the judge’s finding was proper.
As the judge noted, the logical implication of the
Union’s request that the Respondent obtain the cost in-
formation from its insurance agent is that the Respond-
ent did not at that time have the information in its pos-
session, and neither the General Counsel nor the Union
has ever advanced a contrary contention. Thus, without
taking issue with our colleague’s statement of the bur-
den of proof, his rejection of the judge’s finding under
the facts of this case amounts to the elevation of form
over substance. Further, neither the General Counsel
nor the Union has been prejudiced by the judge’s find-
ing. Once the judge found that the Respondent was
under no obligation to furnish the requested informa-
tion, the issue of whether the Respondent possessed
the information was not necessary to the resolution of
the case and thus further evidence was not warranted.
Accordingly, we find that the Respondent’s refusal
to furnish the requested information did not violate the
Act, and we adopt the judge’s dismissal of the com-
plaint.
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The majority relies on the absence of evidence that the Union first at-
tempted to obtain the information from some other source prior to making its
information request. An employer, however, may not escape its obligation to
produce relevant information by asserting that the union could obtain that in-
formation from other sources. Board precedent is directly to the contrary. See,
e.g., New York Times Co., 265 NLRB 353 (1982); and Sonat Marine, 279
NLRB 100, 102 fn. 5 (1986).
2 The duty to provide information includes the duty to make a reasonable
effort to obtain the information or explain why the information is not avail-
able. Minnesota Mining & Mfg. Co., 261 NLRB 27, 33 (1982), enfd. 711 F.2d
348 (D.C. Cir. 1983). See also McDonnell Douglas Corp., 224 NLRB 881,
889–890 (1976), and WCCO Radio, 282 NLRB 1199 (1987), enfd. 844 F.2d
511 (8th Cir. 1988).
3 My colleagues claim that the ‘‘logical implication’’ of the Union’s request
that the Respondent obtain the cost information from its insurance agent is that
the Respondent did not have the information, yet my colleagues characterize
my dissent as elevating ‘‘form over substance’’ in rejecting the judge’s finding
that the Respondent did not have the information. I believe it is inappropriate
to decide issues by ‘‘logical implication’’ where the party who has the burden
on the issue, here the Respondent, has not yet presented its evidence on that
issue.
ORDER
The complaint is dismissed.
MEMBER DEVANEY, dissenting.
The complaint in this case alleges that, during bar-
gaining negotiations, the Respondent violated Section
8(a)(5) and (1) by refusing to supply relevant informa-
tion to the Union. The judge dismissed the complaint
at the close of the General Counsel’s case on the
grounds that the General Counsel had not established
that the requested information was relevant to the ne-
gotiations. The judge also found that the General
Counsel had not established that the information ex-
isted or was in the Respondent’s possession. Unlike
my colleagues, I do not agree that dismissal of the
case at this stage of the proceedings is appropriate.
During negotiations, the Union proposed that the
Respondent contribute to its health and welfare fund.
The fund included a variety of benefits not presently
available to unit employees and would cost the Re-
spondent not less than $267 per month per employee.
The Respondent rejected the Union’s proposal, stating
that the fund offered more benefits than the Respond-
ent was interested in and would cost too much. The
Union responded by requesting information regarding
the costs for the Respondent’s present insurance carrier
to provide four specified benefits (all included in the
health and welfare fund). The Respondent refused to
provide this information.
It is beyond doubt that the duty to bargain ‘‘includes
a duty to provide relevant information needed by a
labor union for the proper performance of its duties as
the employees’ statutory bargaining representative.’’
Detroit Edison Co. v. NLRB, 440 U.S. 301, 303
(1979). A liberal discovery standard, the relevancy test
focuses on whether the information will aid the union
in performing its statutory duties. NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1957); Safeway Stores v.
NLRB, 691 F.2d 953 (10th Cir. 1982). If the informa-
tion would aid the union in performing those duties, it
is relevant and must be provided, absent a legitimate
defense.
Applying this standard, I have little difficulty in
finding that the General Counsel met the burden of es-
tablishing that the requested information was relevant
to the Union in formulating its bargaining position.
When the Union proposed that the Respondent con-
tribute to its health and welfare fund, the Respondent
rejected that proposal because the fund offered more
benefits than the Respondent was interested in and was
too expensive. The Union responded by requesting in-
formation regarding how much it would cost the Re-
spondent’s present insurance carrier to provide four
specified benefits, all of which were included in the re-
jected proposal.
The Union’s request for information was a logical
response to the Respondent’s rejection of its health and
welfare fund proposal. The Union clearly was attempt-
ing to obtain information so as to meet the Respond-
ent’s ‘‘too many benefits’’ and cost objections. The
judge concluded that the information was not relevant
because the Union did not specifically propose that the
Respondent add the four specified benefits to its
present insurance package. The Union was attempting
to determine the economic consequences of such a pro-
posal before formally making the proposal. In the give
and take of bargaining, it is not unreasonable for a
party to first investigate whether a bargaining proposal
is feasible prior to formally proposing it at the bar-
gaining table. If the Respondent had provided the re-
quested information, the Union may have modified its
proposal or determined that a formal bargaining pro-
posal would undercut its attempt to obtain other bene-
fits of more importance to the unit employees.
For these reasons, I would find that the General
Counsel met his burden of showing that the requested
information was relevant to the bargaining negotia-
tions.1
The judge also found that the General Counsel had
failed to show that the requested information existed
and was in the possession of the Respondent. Such
matters are defenses to the alleged unfair labor practice
and the Respondent bears the burden of proof on these
matters.2 Because the judge dismissed the complaint
prior to the presentation of the Respondent’s case and
any rebuttal evidence by the General Counsel, the
record is insufficient to determine whether the Re-
spondent can meet that burden.3 Accordingly, I would
reverse the judge and would remand the case for a fur-
ther hearing.
1163WARNER PRESS
1 All dates refer to the year 1989, unless otherwise stated.
2 In addition, I ruled that the testimony of another member of the committee
would be cumulative, based on counsel for the General Counsel’s representa-
tion that the member’s testimony would support the testimony of the two other
witnesses. Obviously, if exceptions are filed to this Decision and it is reversed,
Respondent would have the right to call witnesses to refute the testimony of
the General Counsel’s witnesses; and I would consider all testimony and not
feel bound by the findings here.
3 Clements did not specify what dental or vision benefits he wanted Re-
spondent to cost out. He said that he had given Respondent copies of various
Fund documents which contained that information, although his testimony was
imprecise as to when that material had been supplied. From certain of the
questions asked by Respondent’s counsel, I glean that Respondent, if permitted
to do so, would have taken issue with Clements’ testimony; but that may be
a mistaken impression. I am assuming in this decision that Respondent was
aware of what benefits Clements was referring to when he made his demand
for cost information.
Mark T. Dabertin, Esq., for the General Counsel.
Jack H. Rogers, Esq. and Clare M. Sproule, Esq. (Barnes &
Thornburg), of Indianapolis, Indiana, for the Respondent.
Robert Clements, of Indianapolis, Indiana, President and
Business Manager of the Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. This
unfair labor practice proceeding involves the refusal of Re-
spondent Warner Press, Inc., to furnish information to Charg-
ing Party Graphic Communications Local 17, a/w Graphic
Communications International Union (the Union), allegedly
in violation of Section 8(a)(5) and (1) of the National Labor
Relations Act, 29 U.S.C. § 151 et seq. The Union filed its
unfair labor practice charge against Respondent on February
17, 1989,1 and the complaint issued on April 28. The hearing
was held in Indianapolis, Indiana, on February 15, 1990.
After the General Counsel presented his case-in-chief, Re-
spondent moved to dismiss the complaint on the ground that
no violation of the Act had been proved. I reserved decision
on the motion and adjourned the hearing. I now conclude
that Respondent has not violated the Act and dismiss the
complaint.
Jurisdiction is conceded. Respondent admits, and I find,
that it is an Indiana corporation engaged in commercial pub-
lishing and printing and has its office and principal place of
business in Anderson, Indiana, and a facility in Alexandria,
Indiana. During the year preceding April 28, Respondent
sold and shipped from its Indiana facilities to points outside
Indiana and purchased and received at its facilities from
points outside Indiana products, goods, and materials valued
in excess of $50,000. I conclude that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
In approximately 1977 the Union was certified as the ex-
clusive bargaining representative of the following unit, origi-
nally solely applicable to the employees at its Anderson fa-
cility and in 1987 extended by agreement to include the Al-
exandria employees:
All production and maintenance employees of the Re-
spondent at its Anderson and Alexandria, Indiana facili-
ties, including regular part-time employees, janitors, and
plant clerical employees, but excluding all office cler-
ical employees, sales employees, professional employ-
ees, guards and supervisors as defined in the Act.
Since 1977 Respondent recognized the Union and bargained
with it, reaching successive agreements, the most recent of
which was effective from January 25, 1986, to January 18,
1989. I conclude that the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
Solely for the purpose of this motion, because I did not
permit Respondent to present its case, I will deem truthful
the testimony of Robert Clements, the Union’s president and
business agent, and one of the members of the Union’s nego-
tiating committee, both of whom testified on behalf of the
General Counsel.2 At negotiations for a new contract to suc-
ceed the one expiring on January 18, one of the Union’s de-
mands was that Respondent participate in the Indiana Graph-
ic Communications Health and Welfare Fund (the Fund), a
jointly administered fund to which employers make monthly
contributions for each of their employees. Specifically, the
Union proposed that Respondent make contributions to the
Fund ‘‘sufficient . . . to guarantee the integrity of the
present benefits and maintain the status quo as to its current
operations,’’ but in no event would Respondent’s contribu-
tions be less than $267.65 per month per employee. Because
the trustees of the Fund had the right to increase the con-
tributions and to add benefits, the contribution rate could in-
crease. Respondent countered on a ‘‘variety’’ of occasions or
‘‘several times’’ that it was not interested in the Fund and
that the cost of the Union’s proposal was too high.
The Union never withdrew its proposal that Respondent
contribute to the Fund. While the Union was holding firm for
its proposal, Respondent was equally firm in proposing to
provide its own health benefits. What gives rise to this pro-
ceeding is Clements’ demand, first made on January 11 and
renewed on January 12, 13, and 30, that Respondent find out
from its insurance carrier the costs of providing to the em-
ployees four benefits which were provided by the Fund: ‘‘a
dental plan’’; a vision plan, which is a separate plan located
in Indiana providing optical benefits; a $1 prescription card,
with which no prescription would cost more than $1; and a
‘‘PPO’’ benefit (‘‘preferred provider option’’), which would
permit employees to be cared for at certain hospitals and by
certain named physicians at reduced cost.3 These four bene-
fits were provided by the Fund, but they were not benefits
which were provided by Respondent to any of its employees
and were not benefits that were proposed by Respondent. Re-
spondent’s counsel, Jack Rogers, replied that Respondent
was not interested in those benefits, that he would give cost
information only about Respondent’s own proposals, and that
he did not have to supply cost information about matters
which were not even proposals.
The premise of Rogers’ last objection was correct. The
Union never proposed that these four benefits be added to
what Respondent proposed or that it would accept Respond-
ent’s benefits proposal if Respondent added these benefits.
Because these proposals had never been made, it follows that
Respondent never rejected them because of their cost. Rath-
er, the posture of the negotiations was that the Union was
proposing that Respondent become a party to the Fund,
which provided, among many benefits, the four at issue here.
Respondent replied that it was not interested and that the cost
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 For example, the General Counsel places principal reliance on WCCO
Radio, 282 NLRB 1199 (1987), enfd. 844 F.2d 511 (8th Cir. 1988), which
involved a demand for the specific compensation of all unit members. Simi-
larly, Washington Hospital Center, 270 NLRB 396 (1984) (job evaluation
data); E. I. du Pont Co., 268 NLRB 1031 (1984) (wages of nonunit employ-
ees); Borden, Inc., 235 NLRB 982 (1978), enfd. in relevant part 600 F.2d 313
(lst Cir. 1979) (cost per employee for benefit plans and number of employees
participating in another plan); Kroger Co., 226 NLRB 512 (1976) (identity of
the employees affected by the employer’s new 24-hour schedule).
5 This is particularly appropriate in this proceeding, where the information
about the cost of the four benefits is easily ascertainable by the Union.
Clements is a trustee of the Fund and has direct access to the cost figures of
these benefits. Brawner Plastering, supra at 1145. Conceivably, if Respondent
supplied these benefits through its own carrier, the cost might be different; but
the cost of the benefits does not become an issue until Respondent makes it
an issue.
was too high, so the Union asked Respondent what those
four benefits would cost. I find that, in light of Respondent’s
lack of interest in these four benefits, their cost was not
needed by the Union ‘‘for the proper performance of its du-
ties as the employees’ bargaining representative,’’ Detroit
Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); ‘‘to enable
[it] to understand and intelligently discuss the issues raised
in bargaining.’’ San Diego Newspaper Guild v. NLRB, 546
F.2d 863, 866 (9th Cir. 1977). However, the General Counsel
theorizes that:
The Union sought to negotiate for a different insurance
plan, which provided the four items for which it now
seeks costs. Knowing that the Respondent had objected
to the ‘‘cost’’ of the Union’s proposed plan, the Union
could reasonably anticipate a similar objection to any
proposal to provide increased coverage under the Re-
spondent’s proposed plan. If, however, the Union were
to be provided the information on the actual cost of
such increased coverage under the Respondent’s plan, it
could formulate an economic proposal to meet the Re-
spondent’s anticipated cost objection (e.g., agreeing to
reduced proposals in some economic areas to com-
pensate for the increased insurance costs, or simply
holding out for increases if the cost was not in fact too
great).
This contention implicitly recognizes that the Union’s de-
mand is not relevant until Respondent makes its anticipated
cost objection. All that the General Counsel’s case shows is
that Respondent objected only to the Fund’s minimum cost
of $267.65 per employee per month, and not to the specific
benefits involved or the cost of each benefit or all of them.
Equally important, Respondent objected to the Union’s pro-
posal that it become a party to the Fund for another reason:
it simply was not interested in the Fund. It did not want to
provide all the benefits that the Fund provided, not nec-
essarily just the four benefits that the Union was thinking
about. I refuse to project or ‘‘anticipate’’ how Respondent
would have reacted to the Union’s counterproposal of the
four benefits, although I note that Respondent proposed pre-
scription and PPO benefits (and supplied cost information)
on January 30. If an employer, such as Respondent, merely
states that it is not interested in providing certain benefits,
their cost has not been placed at issue; and Respondent may
legally refuse to produce the information.
There are two other significant problems with the com-
plaint and the General Counsel’s evidence. There was no
showing that the requested information existed and that Re-
spondent had such material. Rather, the Union was asking
Respondent to consult a third party, its insurance carrier,
who was to compute how much these benefits would cost if
they were added to Respondent’s proposal for benefits. Thus,
the Union was aware that Respondent did not have control
of this type of information, but had to go to another source.
Also implicit in the Union’s request is its understanding that
a computation had to be made by the carrier to determine the
amount to charge for each employee so that the benefits
could be paid and sufficient reserves retained in the event
that the actuarial computations proved inaccurate.
Employers have an obligation to furnish relevant and nec-
essary information to union representatives during contract
negotiations. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
The normal rule, and all the Board decisions relied on by the
General Counsel agree,4 is that an employer must produce
existing information in its control relating to actual, not po-
tential, terms and conditions of employees. However, Board
law does not require a party to negotiations to produce infor-
mation outside of its control. American Commercial Lines,
291 NLRB 1066 (1988); Food & Commercial Workers Local
1439 (Layman’s Market), 268 NLRB 780 (1984); cf. Plas-
terers Local 346 (Brawner Plastering), 273 NLRB 1143
(1984).
Here, the Union was asking Respondent to do its research,
to conduct actuarial studies to determine the prospective use
and resulting cost of the four benefits in the event that Re-
spondent rejected them because of their cost. The General
Counsel cites no authority or rationale for the proposition
that Respondent is responsible to answer every information
request of the Union. Respondent may be required to
produce terms of actually existing benefits and other terms
and conditions of employment, providing that they would be
helpful to the bargaining process, including arbitration. But
the cost of benefits not asked for and not in existence, mere-
ly to help the Union decide whether to seek those benefits,
is assuredly not within the contemplation of the decisions
cited by the General Counsel.
What is of help to the Union in framing its demands does
not define Respondent’s obligations. It may be helpful to the
Union, in pursuing its wage demands, to know about wage
rates and cost-of-living increases in the printing industry dur-
ing the last 10 years; but I am convinced that the General
Counsel would not attempt to force Respondent to research
that issue for the Union. The question here is whether the
Union can sit back and make Respondent do its homework,
or whether the Union, which has the essential information,
must act as a responsible negotiator and prepare its own ar-
guments.5 I find that the Act does not require Respondent to
obtain this material and conclude that there has been no vio-
lation of the Act. I hereby grant Respondent’s motion to dis-
miss the complaint.
1165WARNER PRESS
6 Respondent attached to its brief various documents which it claims should
have been included in the formal papers received in evidence in this pro-
ceeding. Respondent had an adequate opportunity to object to the contents of
the formal papers when they were offered in evidence, but did not do so. I
have not considered these documents and have not received them in evidence,
nor have I considered any of the arguments that Respondent makes in its brief
based on those documents.
7 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 objec-
tions to them shall be deemed waived for all purposes.
On these findings of fact and conclusions of law and the
entire record, and my consideration of the briefs submitted
by the General Counsel and Respondent,6 I issue the fol-
lowing recommended7
ORDER
The complaint is dismissed.