WLVI-TV, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 2001

333 N.L.R.B. 1079 (N.L.R.B. 2001)

WLVI-TV, INC. 1079
WLVI-TV, Inc. and International Brotherhood of Electrical
Workers, Local 1228, AFL–CIO. Case 1–CA–37457
April 20, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND WALSH
On July 12, 2000, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Union filed
an answering brief, and the General Counsel filed a brief
in support of the judge’s decision.
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 decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, WLVI-
TV, Inc., Boston, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Furnish to the Union in a timely manner the fol-
lowing information requested by the Union: the names
of the bargaining unit employees who have received
safety training for ENG/SNG vehicles; the dates when
such training took place; the names and qualification, if
any, of the people who did the training; and any written
or other materials used by the trainers for such training
and/or any materials handed out to the employees.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize

1 We have modified the judge’s recommended Order to require the
Respondent to provide the Union with the information that it has re-
quested, without the necessity of making a new request. See I & F
Corp., 322 NLRB 1037 fn. 1 (1997).
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to furnish to the International
Brotherhood of Electrical Workers, Local 1228, AFL–
CIO, information relating to our safety training for the
operation of ENG/SNG vehicles.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the rights guaranteed you
by Section 7 of the Act.
WE WILL furnish to the Union in a timely manner the
following information requested by the Union: the names
of the bargaining unit employees who have received
safety training for ENG/SNG vehicles; the dates when
such training took place; the names and qualification, if
any, of the people who did the training; and any written
or other materials used by the trainers for such training
and/or any materials handed out to the employees.
WLVI-TV, INC.

Thomas Morrison, Esq., for the General Counsel.
James Kulas, Esq., for the Respondent.
Susan F. Horwitz, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in Boston, Massachusetts, on May 2,
2000. The charge was filed on July 27, 1999, and the complaint
was issued on October 12, 1999. In substance, the complaint
alleges that WLVI-TV, Inc. (Respondent) has failed and re-
fused to provide certain information relating to safety concerns
that was requested by International Brotherhood of Electrical
Workers, Local 1228, AFL–CIO (the Union).
On the entire record in this case, including my observation of
the demeanor of the witnesses and after reviewing the briefs
filed, I hereby make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. It is also agreed and I find that the
Union is a labor organization as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
WLVI-TV is one of 23 television stations owned by the Chi-
cago Tribune Company. This particular station operates in
Boston, Massachusetts.
The Company and the Union are signatories to a collective-
bargaining agreement which runs from January 1, 1999,
through December 31, 2001. This contract covers a group of
333 NLRB No. 131
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
about 60 technicians employed by the Respondent. At article
XVIII the agreement provides that “the company agrees to
maintain a safe and healthful work environment in conformity
to all applicable federal and state laws.” The contract also con-
tains a typical grievance and arbitration procedure for resolving
contract disputes.1 Additionally, at article XX, section 3, the
contract contains a provision whereby union and management
are to meet at least twice a year for the purpose of discussing
training issues.
Some of the employees in the bargaining unit are assigned to
operate vehicles which have retractable microwave antennas
used to transmit video signals back to the station. (They are
referred to as ENG or SNG vehicles.) These vehicles may be
dispatched to cover news stories at anytime and during good or
bad weather. Because the extendable antenna is quite high, the
operator of the van has to make sure that it does not come into
contact with an overhead power line. For if it does, this can
and has resulted in fatal injuries.
Ken Flanagan, the Union’s business manager, attended a
safety seminar in February 1999. During this course a fellow
union member named Mark Bell gave a presentation regarding
the dangers to technicians from overhead power lines, wind,
and lightning. Bell also published a booklet dealing with this
subject called “Look Up and Live.”
On March 5, 1999, Flanagan sent a letter to the Respondent
addressed to Franco LaPietra, the chief engineer. Asserting that
microwave antenna masts can come into contact with overhead
power lines and that such equipment seems to fall within the
Code of Federal Regulations (CFR) requiring safety training
and certification, the Union requested certain information
which can be summarized as follows:2 (a) The names and dates
when unit members have been trained or certified, (b) The
identities and qualification of the persons who did the training,
including the identities of the trainers’ trainers, (c) Whether the
training included the danger of operating microwave vehicles,
the actions to be taken if the mast contacts an overhead power
line, and what to do about injuries, (d) A demand for copies of
all policies regarding the operation of masts in the vicinity of
power lines including operator manuals, (e) A description of
what if any actions the station has taken to prevent unattended
raising and lowering of such masts and what if any actions the
station has taken to make sure that employees read and comply
with its operating manuals, and (f) A demand that the company
provide any relevant information or documentation that ad-
dresses the company’s compliance with its alleged obligations
under 29 CFR 1910.268 or State regulation.
By letter dated March 15 LaPietra responded by stating that
he had forwarded the Union’s request to Jim Kulas.

1 The Union also represents similar categories of people employed
by other companies.
2 It is arguable whether the cited regulation 29 CFR Sec. 1910.268
would apply to this type of operation as the regulation deals with the
telecommunications’ industry which is not the industry in which the
Respondent is engaged. Nevertheless, a microwave transmission of the
type involved in the present case is a form of radio wave communica-
tion. In my opinion it is not necessary for me to decide whether this
regulation is applicable to the operation of the Respondent’s equipment.
By letter dated April 2, 1999, Jim Kulas, Respondent’s sen-
ior labor counsel stated in pertinent part:

I am sorry I didn’t answer your letter sooner, I unfor-
tunately have spent most of March on the road. To put
this answer as succinctly as possible, WLVI is in compli-
ance with all OSAHA laws and regulations. With respect
to the three SNG/ENG vehicles, all are manufactured by
Wolf Coach with safe operation a primary concern of their
design engineers.
All have powerful lights that illuminate the mast and
the area above it for safe operation. The controls are de-
signed to be used outside so it can be directly observed by
the operator when being raised and lowered. There are
safety interlocks, warning devices and placards in various
locations to prevent unsafe operation. Operators have re-
ceived training from experienced staff of WLVI and we
are beginning formal training presented by Tribune Com-
pany Safety professionals and industrial hygienists that
will give in depth safe operation training to all of our op-
erators. This will be periodically repeated to refresh em-
ployee knowledge and promote safety awareness.
We too are concerned with the safety of our employ-
ees. If you wish to further discuss this topic at any time
please call me directly.

Sometime in April 1999 the Respondent had some kind of
safety training program which it gave to the bargaining unit
employees. Among other things, it distributed a copy of a four-
page memorandum prepared in February 1999 which dealt with
safety issues involving ENG/SNG vehicles. (R. Exh. 4.)
On May 19, 1999, Flanagan wrote another letter and stated
that he had received information that the company had devel-
oped and distributed a safety manual that might relate in part to
ENG microwave vans. (Presumably this would refer to the
above-described exhibit). He stated that he would like the
company to provide the Union with a copy of such safety man-
ual and/or copies of “any other safety documents, policies,
directives, and/or the like issued to any WLVI-TV Technici-
ians) and/or otherwise directed at any WLVI-TV Technicians.”
On or about June 3, 1999, the company’s director of human
resources, Susanne Council, sent a package of information to
the Union. Although containing a number of documents relat-
ing to various company policies, including its injury and illness
prevention program, the package did not contain any informa-
tion relating to ENG/SNG safety matters. Specifically it did
not provide the document prepared in February 1999 which
specifically dealt with these matters.
On June 18, 1999, Flanagan wrote to Council expressing his
dissatisfaction with the information so far provided and made a
3-1/2-page request for information, some of it old and some
new. Without listing all of the items the letter can be general-
ized as being a request for any documents (including video-
tapes) of any training that bargaining unit employees had al-
ready received, the names of the persons trained, the times and
places of such training, the materials used for the training, and
the identity and qualifications of the persons who did the train-
ing.
WLVI-TV 1081
On June 25 the Union received another package which con-
tained what appeared to be overhead projection sheets contain-
ing very little information and none of the information that had
been requested by the Union.
On June 28 Flanagan prepared another letter to Kulas, again
requesting information about ENG/SNG safety procedures and
training activities done by the company.
In the meantime Flanagan shared his correspondence from
the company with Bell who published Kulas’ April 2 letter in a
newsletter of his own. (Called the “Broadcast Professional.”)
The problem as the company saw it was not simply that Bell
published the company’s correspondence with the Union, but
that Bell used it as a vehicle for making insulting and ridiculing
statements about WLVI-TV’s management including its labor
counsel. Thus, the company points to the May 19, 1999 edition
of the “Broadcast Professional” and points specifically to the
following excerpts which it deems offensive.

“Far fetched? The so-titled Chief Engineer at WLVI,
for example, is an ex non-heralded news photographer,
admittedly not an engineer, named to the post by virtue of
some sort of corporate eyesight. What’s amazing is that
this person without engineering expertise would actually
engage in debates with real engineers about what had to be
done. One rumor suggested that he gets a bonus or extra
pay for coming in under budget, providing motivation for
items to stay in disrepair, or not be maintained. That’ s the
tip of the iceberg about a company that doesn’t value its
industry or its professionals.”
Engineers? When a “Chief” is not one, for instance,
like at WLVI, nobody need to be one. All that Tribune
has done with such titling is bring down a standard, just
like those of integrity and honesty.”
Tribune was given notice of my discontent.
Letter to Tribune President and CEO, John W. Madi-
son:
I recently left WLVI-TV in Boston (voluntarily) due to
the working conditions and lack of ethics of the operation.
It is appropriate at this point to inform you that I’ve
reviewed a letter from Senior Counsel Kulas to IBEW
1228 in Boston stating that WLVI is in compliance with
all OSHA laws and regulations.
“Attorney Kulas’ written word regarding compliance
with “all” OSHA laws and regulations displays ignorance,
and such a statement is an outright fabrication. In short,
Tribune is operating in violation of federal law and your
Senior Counsel is on written notorious record as being ei-
ther ignorant and/or lying about it.”
My employment for Tribune was insulting, demean-
ing, and of no career value.
What you have done by over-promoting this man
[LaPietra] is cruel, as he will most likely never be quali-
fied for his title in comparison to other Chief Engineers
and must assume a level of subservience unrelated to the
typical tasks of the position in order to keep it. It is also
cruel that those who need to have continual patience with
his unqualified authority, lack of safety and engineering
knowledge, and the associated risks and waste.
I should be questioning the qualifications of Attorney
Kulas as well.
“Tribune, through the information from Atty. Kulas’s
letter, along with advice given to Atty. Sinnot, which was
apparently ignored, again shows a disregard perhaps even
willful negligence toward working-class employees.”

Although the contents of the “Broadcast Professional” are
determined by Bell, the involvement by the Union’s business
manager, Flanagan, was quite extensive. For one thing,
Flanagan admitted that he turned over to Bell the company’s
correspondence to him on the ENG/SNG safety issue.
Flanagan also received and made comments to Bell regarding
the letter that Bell sent to Madigan and which Bell published in
his newsletter. It therefore is clear that the rantings of Bell as
expressed in his May 1999 newsletter were participated in and,
at the least, condoned by Flanagan.3 The question is whether
this somehow excused the company from furnishing the re-
quested information to the Union.
By letter dated June 29, 1999, Kulas informed the Union that
the company had given it all that they were entitled to under
law and that it was refusing to turn over any more information
because the Union had misused company communications and
given them to a third party who used them for the “dissemina-
tion of false, libelous, slanderous, and disparaging information
about Respondent and its agents.”
III. ANALYSIS
The General Counsel contends that certain information, re-
lating to the health and safety of bargaining unit employees, is
relevant to the Union’s performance of its duties as the
collective-bargaining representative. The company’s principle
contention is that by making its letters to the Union available to
a third party who then used these as the basis for making inap-
propriate and defamatory statements about company manage-
ment in a newsletter published in the hope of making a profit,
the Union forfeited its right to any more information.
The particular information involved here would relate to any
actual training conducted by the company with bargaining unit
employees regarding the safe handling of ENG/SNG vehicles
and would include the names of those persons who received the
training; the dates on which they received training; any written
materials or videotapes used by the trainers and/or given to the
employees in the course of such training; and the identity and
qualifications of the trainers. Among the documents which are
in existence but not turned over to the Union, was the four-page
memorandum prepared in February 1999 and, which was des-
ignated at the hearing as Respondent’s Exhibit 4. This docu-
ment apparently was used by some company personnel in con-
ducting a safety training session in April 1999 regarding the use
of the ENG/SNG vehicles.
First, I want to set out what I am not deciding. I make no
finding that the operation of SNG/ENG vehicles are subject to
the provisions of 29 CFR Section 1910.268 of the Code of Fed-

3 The close relationship between Flanagan and Bell is further dem-
onstrated by the fact that Bell has been used, from time to time, by the
Union as a paid consultant and that Flanagan in turn, has contributed
several articles to Bell’s newsletter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
eral Regulations which is applicable to telecommunications. I
make no finding that the company is required to conduct safety
training and I make no finding as to the adequacy of the safety
training efforts which the company did make with respect to
these vehicles. In this regard, I have no opinion about and
make no conclusions as to whether the company’s safety efforts
regarding these vehicles was either required by or conformed to
Federal or State laws. Finally, I make no conclusions as to
whether Bell’s comments in his newsletter would constitute
defamation under the standards probably applicable to state-
ments made in a labor relations context. See Linn v. United
Plant Guard Workers Local 114, 383 U.S. 53 (1966).
Both sides to a collective-bargaining relationship have a duty
to supply to the other requested information which is relevant
either to the bargaining process itself or to the administration of
any contract that the parties have agreed on. Further, there may
be situations during the life of an existing agreement where
new issues arise or where the parties may want to alter, modify,
or change existing practices or procedures. In those situations
too, information in the hands of either party may be relevant to
the process and the party holding the information may be
forced to disclose it to the other. The basic case law underlying
these principles are set out in NLRB v. Acme Industrial Co., 385
U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956); and Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979).4
Information relevant to the health and safety of employees
who are within the collective-bargaining unit is, in my opinion,
presumptively relevant to the Union’s representational function
both during contract negotiations and during the lifetime of any
existing agreement. New Surfside Nursing Home, 322 NLRB
531, 534 (1996); Detroit Newspaper Agency, 317 NLRB 1071
(1995). Moreover, once relevancy has been established, it is no
defense for the employer to assert that a union may have alter-
native sources to obtain the information. Detroit Newspaper,
supra. Also, a claim that information sought is confidential,
requires the Respondent to affirmatively establish that the in-
formation is indeed confidential. Moreover, even if confidenti-
ality is established the Board will then balance the Union’s
need for the information versus the employer’s confidentiality
interest. Detroit Newspaper, supra.
That said, a request for information must be made in good
faith which means that the information must be sought in fur-
therance of a legitimate representational function. If the only
reason that a union makes a demand for information is to harass
the company, then the request may legally be denied. Hawkins
Construction Co., 285 NLRB 1313 (1987), enf. denied on other
grounds 857 F.2d 1224 (8th Cir. 1998). However, a union’s
good faith can be established where any of its reasons for seek-
ing the information can be justified. Island Creek Coal Co.,
292 NLRB 480, 489 (1989), enfd. mem. 899 F.2d 1222 (6th
Cir. 1990).

4 In Detroit Edison, the court upheld an employer’s refusal to supply
psychological aptitude test questions, answers, and individual scores,
finding that the Union’s interest in obtaining information relevant to
contract administration was outweighed by the employer’s interest in
maintaining test security and employee confidence in the testing pro-
gram.
In my opinion, information regarding the safety training
which was undertaken by the Respondent in relation to the
operation ENG/SNG vehicles is information about which the
Union has a legitimate interest in obtaining in furtherance of its
role as the employees’ bargaining representative.
The company contends that by giving its correspondence to
Bell, who then used it to publish for profit, opprobrious com-
ments about the company’s management, the Union forfeited
any further right to the information in question. I don’t agree.
I do agree with the Respondent that Bell’s published com-
ments regarding the company’s correspondence was intemper-
ate and insulting. For example, I do not see any objective basis
or justification for Bell’s remarks that the company’s senior
labor counsel was either ignorant or a liar when he wrote that in
his opinion, the company was in compliance with OSHA. That
these assertions by Bell ticked off Kulas is completely under-
standable. Moreover, it was reasonable for Kulas to conclude
that Bell was acting as an agent or with the approval of the
Union inasmuch as Bell admittedly was a union consultant and
Flanagan disclosed the contents of the company’s correspon-
dence to him.
Nevertheless, whatever the motivation of Flanagan in
providing the correspondence and whatever Bell’s motivation
in publishing, with insulting commentary, the correspondence,
this does not detract from the fact that the Union did, in fact,
have an otherwise legitimate interest in obtaining information
which was relevant to the health and safety of its bargaining
unit employees. For better or worse, collective bargaining re-
quires that both sides thicken their skins and sometimes put up
with rudeness that might not be acceptable in other contexts.
See for example, Felix Industries, 331 NLRB (2000).
In my opinion, the Respondent’s reliance on Pony Express
Courier Corp., 297 NLRB 171 (1989), is not controlling. In
that case, the Respondent defended its refusal to bargain and
furnish information to newly certified unions on the ground that
they should be disqualified from representing its employees
because of a conflict of interest by a union official. The Board,
concluded that the union official was the owner of a business
enterprise which provided consulting services for companies
that were competitors of the Respondent. Relying on Harlem
River Consumers Cooperative, 191 NLRB 314, 319 (1971), the
Board held that this person’s extra-union business enterprise
presented a conflict of interest and therefore the Union was not
in a position to fairly represent the Respondent’s employees.
However one might characterize Bell’s enterprise, it does not
compete in any way with the Respondent and does not remotely
present the same type of conflict of interest situations that were
present in Pony Express or Harlem River. Further, despite
Flanagan’s occasional participation in Bell’s enterprise, there
was no showing that the Union, through Flanagan or Bell, was
engaged in a business enterprise in competition or in conflict
with the Respondent.5
5 As a union, the Charging Party obviously acts, at times, in conflict
with WLVI-TV and all other employers with whom it deals. But this
type of conflict of interest is inherent in and protected by the labor
laws.
WLVI-TV 1083
In my opinion, what the Respondent’s defense boils down to
is an understandable fit of pique at finding its correspondence
appear in a third party publication accompanied by insulting
comments. This, in my opinion, is not legally sufficient for it
to refuse to provide to the Union otherwise relevant information
relating to employee health and safety issues.
CONCLUSIONS OF LAW
1. By refusing to furnish to the Union certain information
regarding safety training of bargaining unit employees, the
Respondent has violated Section 8(a) (1) and (5) of the Act.
2. The aforesaid violation affects commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, WLVI-TV Inc., Boston, Massachusetts, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to furnish to the Union information regarding
the safety training that it engaged in with respect to the opera-
tion of ENG/SNG vehicles.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed them by Section
7 of the Act.

6 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, furnish to the Union the following informa-
tion. The names of the bargaining unit employees who have
received safety training for ENG/SNG vehicles; the dates when
such training took place; the names and qualification, if any, of
the people who did the training; and any written or other mate-
rials used by the trainers for such training and/or any materials
handed out to the employees.
(b) Within 14 days after service by the Region, post at its fa-
cility in Boston, Massachusetts, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60 con-
secutive days 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 altered, defaced, or covered by any other material. In the
event that during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondents at
any time since March 5, 1999.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”