Wcco Radio, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1987

282 N.L.R.B. 1199 (N.L.R.B. 1987)

WCCO RADIO
WCCO Radio, Inc., a Division of Midwest Commil-
nications, Inc. and American Federation of
Television and, Radio Artists, Twin Cities Local.
Case 18-CA-9549
112 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 15 September 1986 Administrative Law
Judge Michael O. Miller issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has, considered the decision and the
record in light of the exceptions and brief' and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, WCCO
Radio, Inc., a Division of Midwest Communica-
tions, Inc., Minneapolis, Minnesota, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I The Respondent has requested oral argument. The request is denied
as the record, exceptions, and brief adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
3 The Respondent asserts that it has agreed to provide the information
in item 13 of the Union's request, except for the information which has
no relevance to unit employees It acknowledges that certain information
requested in item 13 is applicable to unit members and further acknowl-
edges that it has not provided any information requested in item 13 Ac-
cordingly, we find that the Respondent thereby violated Sec 8(a)(5) of
the Act. We shall leave to the compliance stage of this proceeding the
determination of the precise information in item 13 which the Respond-
ent must furnish the Union.
Larry L. Witherell, Esq., for the General Counsel.
Carol A. Ellingson, Esq. (Oppenheimer, Wolff, Foster, She-
pard and Donnelly), of St. Paul, Minnesota, for the Re-
spondent.
Connie L. Howard, Esq. (Gordon, Miller, & O'Brien), of
Minneapolis, Minnesota , for the Charging Party.
DECISION
1199
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard in Minneapolis, Minnesota, on 28 and 29
April 1986 based on an unfair labor practice charge filed
on 5 February 1986 by American Federation of Televi-
sion and Radio Artists, Twin Cities Local (the Union),
and a complaint and amended complaint issued on 19
March and I i April 1986, respectively, by the Regional
Director for Region 18 of the National Labor Relations
Board. The complaint, as amended, alleges that WCCO
Radio, Inc., a Division of Midwest Communications, Inc,
(the Respondent or the Employer) violated Section
8(a)(5) and (1) of the National Labor Relations Act by
failing and refusing to furnish the Union with informa-
tion necessary and relevant to the performance of its
duties as collective-bargaining representative. Respond-
ent's timely filed answer denies the commission of any
unfair labor practices.
All parties were afforded full opportunity to appear, to
examine and to cross-examine witnesses, and to argue
orally. Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and the Re-
spondent.
Based on the entire record, including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent is a Minnesota corporation with its office
and place of business in Minneapolis, Minnesota, where it
is engaged in the operation of a radio broadcasting sta-
tion. The complaint alleges and Respondent admits that
Respondent purchased and received goods and services
from points directly outside the State, of Minnesota
valued in excess of $50,000 during 1985. I find and con-
clude that Respondent is now and has been at all times
material an employer engaged in' commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and 1 find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background-the collective-bargaining
relationship
The Union has represented Respondent's employees,
and these parties have negotiated a series of collective-
bargaining agreements, since at least 1951. The most
recent 3-year agreement expired on 31 March 1986. The
employees whom it covered comprise the following unit
that the parties have stipulated to be appropriate for the
purposes of collective bargaining:
282 NLRB No. 159
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time Announcers (in-
cluding Staff Announcers, Staff Specialists, Associ-
ate and Free Lance Announcers), Producers (in-
cluding Staff and Free Lance Producers), Staff
Broadcast Journalists, Staff Traffic Reporters, and
Staff Broadcast Meteorologists, excluding all other
employees, guards and supervisors as defined in the
Act.
The collective-bargaining agreements have provided,
among other things, for a complex wage structure based,
at least in part, on a fee system. The contractually
agreed-to fees are set forth in appendices to the collec-
tive-bargaining agreement. The fees, wages, and other
terms and conditions of employment set forth in the
agreement are expressly considered as minimums. The
agreement permits employees to contract with the Em-
ployer for wages and benefits superior to those negotiat-
ed by the Union. Nine of the thirty-five employees in the
collective-bargaining unit have personal service contracts
(PSCs) with the Employer providing for wages or bene-
fits greater than `the Union's negotiated minimum terms
and conditions.
In 1983, at the outset of negotiations for the recently
expired agreement, the Union asked Respondent for
copies of the PSCs. Respondent refused and the Union
filed an unfair labor practice charge. That charge was
withdrawn on Respondent's furnishing of aggregate com-
pensation information, i.e., information concerning the
wages and fees earned by each of the various groups of
employees, such as the four staff announcers. Also fur-
nished to settle that charge was "some of the language
which is found in' one or more of [the] personal service
contracts," particularly language dealing with termina-
tion, covenants not to compete, and the term and termi-
nation of the PSCs. Union's executive secretary, John
Kailin, on receiving that information, repeated the assur-
ances he had made to Respondent at the bargaining table
that he intended "to use these [the aggregate compensa-
tion] figures solely for the purposes of collective bargain-
ing in representing the membership of AFTRA" and
would "not disclose these figures to any third party."'
2. The 1986 negotiations-information demands
On 6 January 1986,2 the Union opened negotiations
for new agreement by letter to Respondent 's general
manager, Clayton Kaufman . In that letter, the Union re-
quested information in 10 areas. Respondent complied
with six of the Union 's requests and they are not at issue
here.3 Additionally , the Union requested the following
information:
1 The Union represents bargaining units at nine AM and FM radio and
TV stations It is only at WCCO TV, WCCO AM, and WCCO FM
(now called W-LITE) that some employees have PSCs . The Union has
requested the PSCs at WCCO TV in the last one or two periods of con-
tract negotiation but has never received them The most the Union has
been given is the right to have its certified public accountant examine the
PSCs for compliance with the collective-bargaining agreement
2 All dates hereinafter are in 1986 unless otherwise specified
a The Union requested , and the employer provided , information con-
cerning the identity , classification, hours, and programs performed by,
and base salaries of, certain employees
7. The retainer fees paid all Associate Announc-
ers.
8. The list of all programs and the fee that at-
taches to that program for all Announcers in all cat-
egories.
9. A list of the salary, shifts, programs and fees
attaching to each program for every Producer, Staff
Broadcast specialist and Staff Broadcast Meteorolo-
gist.
10. A copy of personal contracts.
The Union explained in the letter that it deemed each of
the items requested to be "vitally necessary for AFTRA
in order to properly represent its members in negotia-
tions, because only the above information will provide us
with a complete list of all of the terms and conditions of
the bargaining unit members." In his testimony, Union
Executive Secretary Kailin explained further that, with
respect to the entire bargaining unit, the Union wanted
to know as much as the Company does about how much
people were actually being paid so that it could decide
whether to seek new standards. It also sought the infor-
mation in order to determine whether the amounts each
individual was receiving equaled the minimum fees set
forth in the contract.
Specifically, the Union considers the retainer fees paid
the associate announcer, item 7, to be part of the basic
salary information. Kadin wanted to be able to compare
the fees this individual would be entitled to forthe pro-
grams he performed with the lump sum for which he
and the employer had contracted.
Item 8, the list of all programs and the fees paid for
them to all announcers, was sought by the Union so that
it would know the actual fees, which might differ from
the collectively bargained fees by virtue of either indi-
vidual negotiations or past practices. The Union had
learned through an earlier grievance that the fees being
paid were not necessarily the same as those in the con-
tractual fee schedules. Item 9, the salaries, shifts, pro-
grams, and fees attaching to each program for producers,
staff broadcast specialists, and staff broadcast meteorolo-
gists, was sought for the same reason.
The Union sought copies of the personal service con-
tracts (item 10) because they contained information about
both overscale wage arrangements and perquisites. In-
cluded among those "perks," the Union believed, were
compensation for covenants not to compete, wardrobe
allowances, deferred compensation, supplemental pension
and welfare compensation, and, possibly, language con-
cerning discipline, discharge, and termination pay. In re-
sponse to questions concerning how the Union could use
this information if it were furnished, Kailin explained
that knowledge concerning what the Employer was
paying to specific talent could provide the basis for
union demands to raise the minimum salaries and fees set
forth in the collective-bargaining agreement, thus helping
the Union set its overall bargaining strategy. With re-
spect to the perquisites, Kailin testified that examination
of the PSCs might reveal language in such areas as disci-
pline and discharge that failed to conform to the stand-
ards of the basic union contract or noncompetitive cov-
enants that were overly restrictive under state law. This
WCCO RADIO
might impel the Union to bargain for different standard
language regarding the minimum conditions to be set
forth in the collective-bargaining agreement.
On 16 January Kaufman refused the Union's request
for items 7 through 10. With respect to the retainer fee
paid associate announcers (of whom there was only one),
Kaufman wrote that the contract permitted individual
negotiation between associate announcers and the station
so long as the retainer fee paid equaled or exceeded the
contractual minimum. He offered to confirm that a re-
tainer fee was being paid and suggested that the Union
determine the amount of that retainer fee from the asso-
ciate announcer, contending that "it appears to have no
bearing on collective bargaining." With respect to the re-
maining requests , Respondent offered to provide the
Union with a list of a contractual minimum fees and sala-
ries that they were paying and a list of the shifts and
programs for the various categories of unit employees.
Specifically with regard to the, personal service con-
tracts, Kaufman wrote:
With respect to anyone on a personal service con-
tract or being compensated in excess of the mini-
mums required by the collective bargaining agree-
ment, we will make available to AFTRA's certified
public accountant during the normal business hours
and after reasonable notice , copies of personal serv-
ice contracts and records relating to the compensa-
tion being paid : provided that the certified public
accountant agrees in writing that he will not di-
vulge the actual amounts paid but will only confirm
whether or not the amounts paid equal or exceed
the minimums.
It was Respondent's stated, position that the PSCs and
overscale compensation rates were not subjects of collec-
tive bargaining, that the Union had "waived its right to
bargain over those subjects and hence has no legitimate
need for the amounts thereof." Kaufman noted that the
CPA procedure was utilized by the Union at Respond-
ent's sister television station . In the alternative , Kaufman
offered to provide the Union with the base and aggre-
gate talent fees being paid to each group of unit employ-
ees, as it had done in the preceding negotiations.
Kailin and Kaufman continued to discuss their respec-
tive positions in a telephone conversation about 10 Feb-
ruary. Kaufman, it appears, offered to inform the Union
whether Respondent was paying scale or above scale
with respect to any particular program but without dis-
closing the amount being paid. He reiterated the Compa-
ny's offer to provide some or all the information in the
PSCs to the Union's CPA provided that the CPA agree
not to divulge anything in those PSCs to Kailin and to
examine them solely for the purpose of confirming ad-
herence to the collective-bargaining agreement. Kailin
protested that the Company's offer would be of no value
to the Union inasmuch as the Union's CPA was not fa-
miliar, with collective-bargaining agreements, could not
interpret such contracts, and did not know what the fee
minimums were. Moreover, Kailin stated , inasmuch as
the Company's offer would preclude the CPA from shar-
ing either the salary information or the "perks" with the
1201
Union, the Union would not be able to use that informa-
tion as the basis for formulating new bargaining propos-
als. Kaufman explained to Kailin that the Company's po-
sition was based on its view of the PSCs as being, confi-
dential matters between the employer and the employees.
Kailin endeavored to assure him that the Union, with its
long experience in representing talent, was aware of the
employees' desires, in general, to prevent the world at
large from knowing how much they were being paid.
The Union, Kailin said, had always held those salaries to
be confidential and had given Respondent no basis to dis-
trust it on that point. He asserted that the Union had a
statutory right to the information so that it could address
the Company "at the bargaining table as equals, and so
that [it could] administer [the] contract and know that
the minimums were not being evaded." Kailin was un-
successful in his attempts to convince Kaufman to release
the requested information.
At some point in their exchanges, Kaufman offered to
provide the above-described` information to the Union's
attorney rather than its CPA, but on the same terms as it
had been offered to the Union's CPA. His offer did not
satisfy Kailin inasmuch as it still limited the Union to in-
formation with respect to contract compliance and pre-
cluded the Union from having this information to pre-
pare and support new collective-bargaining demands.
On 3 March, Kaufman wrote the Union, repeating ear-
lier' suggestions. Specifically, he again offered to provide
the PSCs to the Union's CPA with the previously stated
limitations or to provide "the aggregate group total data
plus language from our basic personal services contracts
dealing with such things as termination, discharge., cov-
enant not to compete, outside employment, etc." With
respect to the fees being paid, Kaufman reiterated the 10
February offer to provide the following information
about programs on which fees were and were not being
paid:
Programs and features for which scale fees are
paid;
Programs and features for which overscale fees
are,paid;
Programs and features for which a fee is paid al-
though it is not required by the basic agreement;
and
Programs and features for which fees are not
paid.
Kailin and Kaufman met for collective bargaining on
10 March. In the course of this meeting, Kaufman sug-
gested that the fee system was obsolete; Respondent was
considering its elimination, he said, and was thinking of
negotiating a base salary.4 Kailin replied that the Union
could not address a new fee system without knowing
what the employees were earning, that indeed it could
not negotiate a complete new contract without the infor-
mation which it had requested because Respondent and
the Union were not bargaining as equals when they did
not have equal access to relevant information. He stated
4 Kailm's credibly offered testimony indicates that Respondent had,
even earlier , alluded to a desire to eliminate the fee system.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Union was not waiving any rights by bargaining.
The parties agreed to negotiate an interim contract pend-
ing the outcome of this litigation.
During the 10 March meeting, the Union presented
Kaufman with a letter setting forth additional informa-
tion 'requests which it sought "in order . . . to prepare
for current contract negotiations." Requested were the
following, numbered seriatum from the Union's earlier
request:
11. The accounting or payroll records which
contain or set forth the actual compensation re-
ceived by each member of the AFTRA bargaining
unit during the period April 1, 1984-March 31_1985
and April 1, 1985-February 28, 1980.
12. The accounting records which contain or set
forth compensation, trade offs or other value re-
ceived by WCCO Radio in connection with any
type of broadcasts, simulcasts, rebroadcasts or other
live or recorded use or reuse of written, audio or
video material prepared or performed by bargaining
unit members . .. .
13. The current Company personnel manual pro-
visions dealing with or setting forth the following
benefits, programs or conditions of employment:
pension , medical insurance ; dental insurance; long
term disability; employee stock ownership; holidays;
vacation; sick leave; per diem expenses; funeral
leave; jury duty; parental leave; employee indemni-
fication or other benefits offered to non-bargaining
unit personnel.
14. Any and all written documents, manuals or
memoranda setting forth or containing WCCO pro-
cedures, policies or guidelines with respect to disci-
pline or discharge of employees in the bargaining
unit represented by AFTRA.
15. Copies of all payroll or personnel or account-
ing records which set forth the number of hours
(regular and overtime) worked by each employee in
the bargaining unit represented by AFTRA from
April 1, 1983 or the date of the Employee's current
personal service contract, whichever is earlier.
Kailin explained, in the letter setting forth the above
requests, what the Union intended to accomplish in these
negotiations, as follows:
In these negotiations it is our intent to discuss the
interplay between the personal service contracts
and the Basic Minimum Agreement. In this connec-
tion , we are concerned not only with areas in
which there may be conflicts between personal con-
tracts and the Basic Minimum Agreement, but also
with areas or methods by which the Basic Minimum
Agreement and personal service contracts may co-
exist and satisfy the concerns of both WCCO Tele-
vision [sic] and our membership.
Kailin gave the foregoing requests to Kaufman in wnt-
ing and orally explained what it was that the Union was
seeking. With respect to item 11, he explained that the
Union wanted to know the salaries during time periods
which conformed to the collective-bargaining agreement,
noting that the PSCs sometimes run for different periods.
Item 12, Kailin explained, related principally to the mete-
orologists but could impact more broadly. The Union
sought to know whether Respondent received additional
fees from other stations for broadcasts prepared by the
meteorologists and whether the meteorologists per-
formed additional work. If either was the case, the
Union's bargaining position might change and higher fees
or fees for other types of work might be sought. By re-
questing item 13, the company personnel manuals with
respect to benefits, the Union sought to determine
whether the Respondent had improved such benefits for
nonunit employees as a basis for formulating bargaining
demands on such matters. The Union sought item 14,
documents or statements with respect to discipline and
discharge, to determine whether there was any conflict
between the Company's procedures and the collective-
bargaining agreement. By requesting item 15, the Union
sought overtime information to determine what portion
of the employees' earnings were attributable to overtime
with an eye toward possible grievances or negotiations
with respect to base wage.
In this meeting, and in each subsequent collective-bar-
gaining meeting , the Union also repeated its request for
items 7 through 10. Respondent has declined to furnish
those items, although, as will be discussed, some alter-
nate information has been offered,
In response to the Union's requests for information,
Respondent asserted its position that the information was
confidential, that it feared that broadening the circle of
those with access to the information would result in its
disclosure . Kailin again assured Respondent that the
Union was committed to maintaining the confidentiality
of its members' earnings. Some of those members, Kailin
stated, were desirous of keeping their earnings secret and
as Kaiiin 's job was subject to his memberships` approval,
he could not alienate them by breaching that confidence.
He explained to Kaufman how his office would function
to maintain the desired confidentiality.
On 18 March , Kaufman wrote Kailin , reiterating a tel-
ephonic settlement offer that had been made about 14
March.5 With respect to the Union's request number 7,
the Employer agreed to disclose the retainer fees paid to
the associate announcer. With respect to items 8 and 9,
Respondent offered to provide the programs to which
fees for announcers and producers attach and the
amounts of the fees for all persons not under PSCs. It of-
fered to provide the Union's attorney with' the fees being
paid pursuant to PSCs, to review for contract compli-
ance purposes on the condition that the attorney promise
not to reveal dollar amounts to anyone. Similarly, Re-
spondent offered to provide the Union's attorney with
copies of all current PSCs and similar agreements "pro-
vided your Attorney promises in writing he will not
reveal dollar amounts or any other terms contained
therein to anyone, and represents in writing that his sole
purpose is to assure that the agreements noted above
comply with the terms of our basic agreement."
5 This offer of settlement was received in evidence without objection.
WCCO RADIO 1203
With respect to union request number 11, the compen-
sation earned by each employee during the last 2 con-
tract years, the Company offered to provide that infor-
mation for all employees. However, the compensation
earned by employees pursuant to PSCs and similar agree-
ments would be provided only to the Union's attorney
under the conditions described above with respect to re-
quest number 10. The Company denied that there was
much that was applicable to the Union's request number
12, seeking information concerning compensation it re-
ceived from other broadcasting outlets for the broadcasts
prepared by its meteorologists, but offered to make avail-
able whatever information "is pertinent." Respondent of-
fered to provide copies of its manual provisions describ-
ing benefits offered to nonunit personnel (item 13) and
denied that-it had any documents, manuals, or memoran-
da respecting discipline and discharge (item 14) other
than what was set forth in the collective-bargaining
agreement. Finally, with respect to its records of hours
worked by each employee, item 15, Respondent offered
to provide that,information for all employees. However,
information concerning the hours worked by employees
under PSCs would only be disclosed to the Union's at-
torney under conditions identical to those set forth above
in item number 10.
The company did not, at that time, provide the infor-
mation which it indicated it was willing to provide. The
employer's offer did not satisfy the Union or induce it to
withdraw the unfair labor practice charge. On 27 March
the parties reached an interim collective-bargaining
agreement, subject to reopening on resolution of the in-
formation issues.
On 23 April union counsel made another offer to settle
this unfair labor practice charge by letter to union coun-
sels That letter reiterated Respondent's offer to tell the
Union the amount of the retainer fee paid to the associ-
ate announcer (item 7) and advised the Union that it re-
ceived nothing of value for simulcasts and similar pro-
grams (item 12). Further, it stated that no records were
maintained of hours worked by anyone on PSCs, but as-
sured the Union that no one under such a contract was
working on the air for more than 40 hours per week
(item 15). Respondent assured the Union that it would
provide "any policy statements or guidelines applicable
to unit members," a partial response to item 13. This ap-
pears to be less than what was offered on '18 March with
respect to item 13. It does not meet the; Union's request
for such information as was -applicable to nonunit em-
ployees.
With respect to the Union's demands for information
concerning the program fees, Respondent offered to pro-
vide a copy of the program logs for a representative 1-
week period, a list of every program for which a pro-
,gram fee was paid and the specific amount of that fee
even when the fee was greater than that required by the
collective bargaining agreement. However, with respect
to employees paid a "per performance wage pursuant to
a personal service contract," Respondent asserted that
the Union could determine the monthly earnings of such
employees from the monthly pension and welfare re-
ports. If that information was insufficient, Respondent of-
fered again to provide the specific information to the
Union's CPA upon the CPA' s assurances of confidential-
ity "but only to confirm to AFTRA whether or not the
individual is earning in excess of AFTRA's calculation."
Finally, the Respondent offered to provide the Union
with copies of each PSC or other written agreement
with the specific amounts of compensation deleted
(except - for compensation received for covenants not to
compete). In return for that, Respondent insisted that the
Union hold those agreements "in strictest confidence"
making the information available only to the Union's ex-
ecutive secretary.
Respondent asserted that the Union did not need to be
told the specific earnings of employees, under PSCs be-
cause it could determine those amounts from the pension
and welfare reports submitted monthly by the Company.
Those reports show the employer's contribution to the
pension and welfare funds; that contribution is a fixed
percentage of the employees' gross earnings up to a spe-
cific annual earnings limit. The pension and welfare fund
reports do not show contributions after an employee has
reached that limit. Respondent stated:
AFTRA can therefore on a monthly basis calculate
the amount of each employees' gross earnings and,
by extrapolation, calculate that employee's yearly
earnings. When an employee earns less than the P &
W cap the precise amount of gross earnings is ob-
tained by simple multiplication. When, an employee
earns more than the P & W cap mount, each
monthly contribution is still based on his gross
monthly earnings and contributions for the year
simply stop in the month when the cap is reached.
Again, a simple mathematical calculation will reveal
the individual's rate of pay and the gross salary for
the year. Thus, for everyone in the unit, AFTRA is
presently able to calculate the gross earnings within
a very close tolerance.
Respondent offered to furnish the Union with copies of
the monthly P & W fund report at the same time that
they were furnished to the Union's International office in
Chicago.
Respondent's letter concluded:
Just so it is clear, the Company is absolutely
committed to the principal of confidentiality of the
monetary terms set out in the personal service con-
tracts. AFTRA members/employees expect such
confidentiality and, in some cases, have bargained
expressly on that basis. The Company will go to the
wall to uphold that principal and to maintain its
good faith with those who have entered into con-
tracts.
The Union argues that Respondent's most recent offers
were inadequate. Recourse to the offered program logs
would reveal only a list of programs without the dollar
amounts attached thereto. Further, even with the dollar
amounts being given, a log for a single week would not
6 This offer of settlement was received in evidence without objection help the Union gauge the compensation for a whole
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year. Recourse to the pension and welfare reports, Kailin
testified, would not be adequate because the reports do
not show earnings above the annual cap, the periods
shown do not correspond to either the collective-bar-
gaining contract year or the PSC year, and because there
are apparent discrepancies between the figures shown on
the pension and welfare reports and the members' own
reports of their annual earnings.
B. Analysis and Conclusions
The Union seeks, and the General Counsel contends
that the Union is statutorily entitled, to know the specific
details of the compensation of all unit members, includ-
ing those paid pursuant to PSCs. Respondent argues that
the information sought by the Union is neither relevant
nor necessary'inasmuch as the Union has waived its right
to bargain for overscale compensation. It argues further
that the information sought is in the nature of a trade
secret, disclosure ' of which will irreparably damage Re-
spondent, that the employees involved desire confiden-
tiality, and that some of the information is available or
has been offered to the Union in other forms. A long line
of Board and court decisions support the General Coun-
sel's contentions.
In Teleprompter Corp. v. NLRB, 570 F.2d 4 at 8 (1st
Cir. 1977), the court observed:
The "general obligation" described in Acme [NLRB
v. Acme Industrial, 385 U.S. 432 (1967)] extends in
varying degrees of intensity throughout the many
aspects of management-union relations, with accom-
modation being made between the union's urgent
need for some types of information, such as wage
data, and the employer's greater relative interest
preserving the confidentiality of other information,
such as profitability data.
Reiterating that same language in Western Massachusetts
Electric Co. v. NLRB, 573 F.2d 101 (1st Cir. 1978), enfg.
228 NLRB 607 (1977), the court went on to state:
Information pertaining immediately to the mandato-
ry subjects of bargaining-wages, hours, and other
terms and conditions of employment . . . is pre-
sumptively relevant and must be disclosed unless it
"plainly appears irrelevant." NLRB v. Yawman and
Erbe Mfg. Co., 187 F.2d 947, 949 (2nd Cir. 1951).
The burden of establishing that presumptively relevant
wage and benefit information is not relevant falls on the
employer. NLRB v. Borden, Inc., 600 F.2d 313, 317 (1st
Cir. 1979),'enfg. in pertinent part 235 NLRB 982 (1978);
San- Diego Newspaper Guild Local 95 v. NLRB, 548 F.2d
863, 867 (9th Cir. 1977).
In both of the cited cases, the courts stated:
Where the requested information is intrinsic to the
core of the employer-employee relationship, and the
employer refuses to provide requested information,
the employer has the burden to prove either lack of
relevance or to provide adequate reasons why he
cannot, in good faith, supply the information.
As the facts herein demonstrate, Respondent has failed to
sustain that burden of proof.
Respondent cites a subsequent 'Western Massachusetts
Electric case (589 F.2d 42 (1st Cir. 1978)) for the proposi-
tion that information material only to an issue plainly
foreclosed by an existing contract or patently outside any
bargaining issue is not relevant and need not be dis-
closed. That case, however, supports the General Coun-
sel's contentions. There, the union that had never partici-
pated in the employer's routing decisions sought the
guidelines used by the company in altering the routes of
meter readers. The court enforced the Board's Order
(234 NLRB 1181 (1978)) and ordered the respondent to
provide the information it sought. The court found the
information relevant to charting and assessing "apparent
mid-term courses of action possibly open to the Union."
Moreover, it specifically noted that information, such as
wages, which relate "to a mandatory subject of bargain-
ing must usually be made available when sought by the
bargaining representative for a proper purpose" quoting
Teleprompter Corp. v. NLRB, supra. In the instant case,
the Union sought presumptively relevant wage and bene-
fit data for two proper purposes, the preparation of bar-
gaining demands and the administration of its existing
contract. With respect to the former, the Union ex-
plained that it needed the information in order to deter-
mine whether to bargain for higher minimums or greater
benefits and protections in the collective-bargaining
agreement-applicable to all unit employees. Regarding
the latter purpose, the Union sought to assure itself that
the earnings of the employees pursuant to PSCs at least
met the minimum standards of the collective-bargaining
agreement and that the benefits and restrictions set forth
in those PSCs did not contravene either the collective-
bargaining agreement or the provisions of state law.
The precise defenses, including that of ' relevance,
raised hereby Respondent have been raised by other em-
ployers and have been consistently rejected by the Board
and the courts in strikingly similar cases over the last
three decades. In Boston Herald-Traveler Corp., 102
NLRB 627 (1954), enfd. 210 F.2d 134 (1st Cir. 1953), and
Boston Herald-Traveler Corp., 110 NLRB 2097 (1954),
enfd. 223 F.2d 58 (1st Cir. 1955), the union sought the
names and earnings of each unit employee, including
those who were paid over the collective-bargaining
agreement's minimum scale. The employer refused to
link the names with the employees' earnings, arguing as
Respondent did here, that this information was irrelevant
to the negotiations, that the,information might aid com-
petitors in hiring away respondent's employees, and that
some employees might object or be offended by disclo-
sure of their earnings to the union. The Board and the
court rejected the employer's contentions; the Board
stated (110 NLRB 2097, 2098) that its rule requires an
employer "to furnish the union representing its employ-
ees with a name and earnings of each employee in the
appropriate unit in order to make collective-barganing
effective." The union, it stated, did not need to show the
precise relevancy of the requested information to par-
ticular bargaining issues:
WCCO RADIO
It is enough . . . that the information, relate to the
wages or fringe benefits of the employees. Such in-
formation is obviously related [to] the bargaining
process and the Union is therefore entitled to ask
and receive it. The Board's rule recognizes that "it
is virtually impossible to tell in advance whether
the requested data will be relevant except in, those
infrequent instances in which the inquiry is patently
outside the bargaining, issues."
In that case, the Board pointed out, in terms similar to
the Union's contentions here, that the information would
be of use to the union in preparing its bargaining propos-
als even though the collective-bargaining agreement pro-
vided only for minimum scales and' noted that the union
could not bargain "with maximum effectiveness if it re-
mains ignorant of the salaries of other employees possess-
ing comparable skills and experience." In both the first
and second Herald-Traveler cases, the Board rejected em-
ployer, contentions with respect both to the potential em-
barrassment of its employees should their wages be dis-
closed and the possibility that competing newspapers
might entice away their key columnists and reporters.
In KCMO Broadcasting, 145 NLRB 550 (1963), the
Board specifically treated the issue of whether the union
was entitled to copies of unit employees' PSCs complete
with their names and the specifics of their salaries.
There, as here, the employer had contended that the in-
formation was not related to the issues involved in col-
lective bargaining and therefore need not be disclosed.
The employer also contended, as here, that the informa-
tion was confidential and that disclosure would give rise
to jealousy among the unit members. The Board rejected
the employer's defenses and stated that the, union was en-
titled to bargain for all members of the unit. The infor-
mation which it sought, the Board noted, would enable
the union to determine whether it wished to bargain with
respect to such terms, and disclosure of the names would
aid the union in evaluating the information. The Board
held that the employer's jealousy argument was specula-
tive and conjectural and did not present a factor which
should override the union's need for information in order
to act intelligently as the bargaining representative of the
employees.
Similarly, in Radio Station WLOL, 181 NLRB 560
(1970), the employer and the union negotiated a mini-
mum term contract and the station negotiated with cer-
tain artists for wage terms in excess of those miminums.
The Anion requested the precise salaries of the employees
in the unit in order to bargain intelligently, prepare new
proposals, and police the agreement. The employer re-
fused to provide the requested information, arguing rel-
evance, confidentiality (including the possibility of em-
barrassment and morale problems among the employees),
waiver, availability of the information to the' union from
its members,' the alleged absence of good 'faith by the
union in requesting the information, and an industry
practice whereby such information was generally not
furnished to the union. The Board rejected all the em-
ployer's defenses. It noted that wages are a mandatory
subject of bargaining and wage information is presump-
tively relevant, the obligation to furnish such information
1205
is statutory, the interests of the employees who might be
offended by disclosure must yield to the interests of the
majority of unit employees, and the irrelevance of both
the possibility that the union could secure the informa-
tion from the -employees and industry practice.7
Most recently, the Board dealt with this issue in
Evening News Assn., 270 NLRB 380- (1984). In that case,
as here,, the contract provided for minimum terms and
permitted the employer and the employees to negotiate
above scale wages. The union requested wage data on all
employees which the employer refused to furnish. In' its
defense, the employer adduced evidence that one em-
ployee had, for personal privacy reasons, ' asked'it not to'
reveal his earnings. It additionally adduced evidence that
knowledge of the employee's earnings would facilitate its
competitors in hiring them away. The Board found the
employer's refusal to furnish the requested information to
be a violation of its duty to bargain in good faith, noting
the presumptive and actual relevance of the information.
With respect to the employer's arguments concerning
competitive advantage, the Board noted that the employ-
er could have negotiated restrictive convenatits with the
employees, prohibiting them from' accepting employment
with its competitors. And, with respect to the employee's
request for, confidentiality, the Board quoted language
from NLRB v. Jaagars-Chiles-Stovall, 639 F.2d 1344, 1347
(5th Cir. 1981), enfg. 249 NLRB 697 (1980), and Vaca v.
Sipes, 386 U.S. 171 (1967), which stated that "the collec-
tive-bargaining system as encouraged by Congress and
administered by the NLRB of necessity subordinates the
interests of an individual employee to the collective in-
terrests of all employees in the bargaining unit."
On brief, Respondent sought to distinguish' Evening
News from the instant case on the grounds,that (1) , that
employer had previously furnished such information to
the union and was withholding it at this time only at the
request of one employee; (2) this Respondent has proven
prior union indiscretions with respect to confidential in-
formation; and (3) it has similarly proven that the infor-
mation requested is of a "trade , secret" nature. These al-
leged distinctions are either irrelevant or without factual
support. If, as I find, the Union is entitled to this wage
data, it matters not, whether the information has previ-
ously been given and is now being withheld or has
always been withheld. Moreover, there is no record evi-
dence to support Respondent's contention that the Union
has previously been indiscrete in the disclosure of confi-
dential information. Threatening to "go public" and
going public with information concerning an ongoing
dispute between management and labor over the alleged
unilateral reduction in fees, seriously curtailing the earn-
ings of certain employees, as the Union earlier did, may
have resulted in embarrassment to the employer but' it
was an entirely legitimate exercise of statutory rights. In
no way can this be called an indiscretion. Similarly, al-
7 Here, Respondent has failed to establish that there is an industry
practice whereby information of the sort sought by the Union is never
disclosed to the collective-bargaining representative The Union has of-
fered credible testimony that stations in a number of cities furnish their
employees' representatives with copies of the employees' PSCs complete
in every detail
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though Respondent may have suspected that Kailin dis-
closed the ' details of personal service contract negotia-
tions between WCCO-TV and one of its employees,
Kailin credibly denied having done so and there was no
probative evidence to contradict him.
Finally, in this regard, I must reject Respondent's con-
tention that the financial aspects of the PSCs are in the
nature of a "trade secret" entitled to some special meas-
ure of protection by the invocation of that term. Even
under Minnesota law as cited by Respondent (Minn.
Stat., Sec. 325 01.01, Subd. 5), this information cannot
be deemed a "trade secret." That statute. defines a "trade
secret" as something which may not be "readily ascer-
tainable by proper means by other persons who can
obtain economic value from its disclosure or use and .. .
the subject of reasonable efforts to maintain its secrecy."
Here, competitors may obtain this information merely by
asking the employees whom they are soliciting to hire
away. Those employees are under no proscription which
would prohibit them from disclosing that information if
they so desired. Logic precludes one from labeling as a
"trade secret" any information which may be so freely
disclosed at the whim of any employee possessing it.
Throughout these negotiations, the Union has recog-
nized that the Employer, for business reasons, and some
of the employees, for personal reasons, would prefer that
the details of the PSCs not become common knowledge.
Kailin has repeatedly assured Respondent that it under-
stood and appreciated these desires and would accommo-
date them by appropriate security, measures within the
Union. There is no reason to doubt the sincerity of the
Union's promise to be circumspect in handling this infor-
mation or to doubt its ability to do so. As the Board
stated in Cowles Communications, 172 NLRB 1909, 1910
(1968), "we foresee no less responsible handling of sensi-
tive data by union officials than by Respondent." See
also Globe-Union, 233 NLRB 1458 (1977).
Respondent also argues that the material the Union has
available to it or which it has offered to furnish the
Union would satisfy the Union's need for this informa-
tion. Specifically, Respondent contends. that its obliga-
tions have been satisfied by the availability of the pen-
sion and welfare reports, 'its offers to furnish a represent-
ative sampling of program logs and its offers to give
copies of the PSCs to the Union's CPA or attorney. The
Union correctly points out`, that the pension and welfare
records are incomplete and not necessarily accurate, that
use of the program logs would be, a cumbersome way, at
best, of determining what the employees should be earn-
ing and would not be for an entire year, and that Re-
spondent's offer to furnish the PSCs to its CPA or attor-
ney would limit the use of those PSCs to contract ad-
ministration and would preclude it from using the infor-
mation contained therein to formulate new bargaining
proposals. The Union's objections are well taken and
comport with longstanding Board and court precedent.
A union is not required to be satisfied with partial infor-
mation or to go through cumbersome procedures in
order to collect the necessary information when that in-
formation is available in a more convenient and accurate
form directly from the employer. See for example Wash-
ington Hospital Center, 270 NLRB 396 (1984); Kroger Co.,
226 NLRB 512 (1976); NLRB v. Borden, Inc., 600 F.2d
313 (1st Cir. 1979), enfg. in pertinent part 235 NLRB 982
(1978).
Contrary to Respondent's contentions, the Union's
action in filing and pressing its unfair labor practice
claim was not so premature as to raise questions about its
good faith in these negotiations. This information issue
has been raised in several prior negotiations between
these parties over the last 6 years as well as in the instant
negotiations. The Union has tried in the past to make do
with less, information than it sought and has apparently
found compliance with 'Respondent's limitations to be
unsatisfactory. To file this unfair labor practice charge
prior to the actual opening of negotiations, in` the hope
that it would precipitate the complete disclosure to
which the Union was statutorily entitled before the par-
ties sat down at the bargaining table, can hardly be
deemed premature. Moreover, Respondent's own claim
of a good-faith concern for confidentiality must be sub-
ject to close scrutiny. Washington Hospital Center, supra;
Johns-Manville Sales Corp., 252 NLRB 368 (1980). If, as
the employer claims, the Union could determine the em-
ployees' actual earnings from the pension and welfare re-
ports, then the Employer's confidentiality based justifica-
tion for refusing to give the Union that same information
in the more concise and precise format which it pos-
sessed must fall.
Finally, Respondent argues from Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979), that the Union's need for
the information must be balanced against legitimate em-
ployer concerns for confidentiality and that, since Detroit
Edison,- Board cases suggesting that the union is always
entitled to know the earnings of unit employees are of
questionable validity. I am, of course, obligated to follow
Board precedent and the Board has not seen fit to
change its approach to these cases since Detroit Edison.
See for example Evening News, supra, a 1984 case. More-
over, Detroit Edison presents an entirely distinguishable
set of facts. In that case, the union sought information
concerning employee aptitude tests, including the actual
test questions, employee answer sheets, and the scores on
those tests linked with the employees' names. The tests
had been administered with promises of confidentiality
and the actual test scores were not even disclosed to the
management representatives. Disclosure of the test mate-
rials, the court noted, would harm the future validity of
the tests in which the company had a considerable in-
vestment and the court recognized the public policy sup-
porting confidentiality of those tests. The court also
noted the sensitivity of the individuals involved to publi-
cation of the test results and the relative ease by which
the union could secure the employees' consent to release
of that information; the union was, in that case, pressing
grievances for those very employees. Moreover, the in-
formation sought by the union in Detroit Edison was not
for contract negotiations covering the unit as a whole
and was, as the Board noted in Jaggars-Chiles-Stovall, 249
NLRB 697, 701 (1980), another post-Detroit Edison case,
far more sensitive than wage data.
In sum, I find that Respondent has failed and refused
to bargain in good faith with the Union by failing to
WCCO RADIO 1207
timely furnish the Union,with the information requested,
in items 7, 8, 9, 10, 11, 13,-and 15 of its, 6 January and 10
March information requests.8
CONCLUSIONS OF LAW
1. By failing and refusing to timely furnish to the
Union the records and information it requested, which
are relevant and necessary to the performance of the
Union's duties as statutory bargaining representative of
Respondent 's employees in an appropriate collective-bar-
gaining unit, Respondent has violated Section 8(a)(5) and
(1) of the Act.
2. The unfair labor practice set forth in paragraph 1
above affects commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) as set forth above, I recommend that it be re-
quired to cease and desist from such conduct or related
conduct. Affirmatively, in order to effectuate the policies
of the Act, I recommend that Respondent be required to
furnish the Union with the information it requested in
items 8, 9, 10, 11, 13, and 15, of its 6 January 1986 and 10
March 1986 letters to Respondent. I also recommend
that Respondent be required to post an appropriate
notice to employees.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, WCCO Radio, Inc., a Division' of
Midwest Communications, Inc., Minneapolis, Minnesota,
its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to timely furnish, American
Federation of Television and Radio Artists, Twin Cities
Local with requested information which is relevant and
necessary to the performance-by the Union of its obliga-
tions as bargaining representative of Respondent's em-
ployees.
(b) In any like or related manner interfering, with the
efforts of the Union to bargain collectively with it on
behalf of the employees in the appropriate unit.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
8 The Umon was given information concerning the retainer fee (item
7) paid to the one associate announcer, but not until the day of hearing
Respondent had agreed to furnish only some of the information requested
in item 13. Items 12, 14, and 15 (as it applies to employees under PSCs)
apparently do not exist and the Union has been so informed
S If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall[ be deemed waived for all pur-
poses
(a)Furnish, American Federation of Television and
Radio Artists, Twin Cities Local as exclusive representa-
tive of all employees in the appropriate unit the follow-
ing information heretofore requested by the Union: The
items requested in numbers 8, 9, and 10 of the Union's 6
January 1986 letter and items 11, 13, and l5 as set forth
in the Union's 10 March 1986 letter.
(b) Post at its radio station in Minneapolis , Minnesota,
copies of the attached notice marked "Appendix.'°
Copies of the notice, on forms duly signed by a repre-
sentative of Respondent, shall be posted by the Respond-
ent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any ether material.
(c) Notify the Regional` Director in writing within 20
days from the date of this Order what steps Respondent
has taken, to comply.
1s If this Order is enforced by a-judgment of a United States court of
appeals, the words in the notice reading "Posted by Order_ of the Nation-
al Labor Relations Board" Shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Boad has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
American Federation of Television and Radio Artists,
Twin Cities Local as the exclusive representatives of our
employees in the appropriate unit by failing and refusing
on request to timely furnish it with information relevant
and necessary to the performance of its obligations as
collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with the efforts of the Union to bargain collectively on
behalf of the employees in the appropriate unit.
WE WILL furnish American Federation of Television
and Radio Artists, Twin Cities Local, as exclusive repre-
sentative of all employees in the appropriate unit, the in-
formation which it requested in preparation for collec-
tive bargaining in its letters of 6 January 1986 and 10
March 1986, to the extent that we have not already done
SO.
WCCO RADIO, INC., A DIVISION OF MID-
WEST COMMUNICATIONS, INC.