Detroit Newspaper Agency

National Labor Relations Board - Board Decisions

Jun 30, 1995

317 N.L.R.B. 1071 (N.L.R.B. 1995)

1071
317 NLRB No. 155
DETROIT NEWSPAPER AGENCY
1 The Detroit Newspaper Agency is a partnership that handles sell-
ing, advertising, printing, and distribution of two otherwise inde-
pendent newspapers: The Detroit Free Press (a Knight-Ridder, Inc.
newspaper) and The Detroit News (a Gannett Co., Inc. newspaper).
The Detroit Newspaper Agency and The Detroit Free Press, Inc. are
collectively the Respondent here.
Detroit Newspaper Agency and The Detroit Free
Press, Inc. and Newspaper Guild of Detroit,
Local 22, of the Newspaper Guild, AFL–CIO–
CLC. Case 7–CA–35452
June 30, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On October 26, 1994, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel 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 for the following reasons, and to adopt the
recommended Order.
We agree with the judge that the Respondent1 vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
furnish the Union with a complete copy of Ernest
King’s 1992 environmental audit. The material facts
are undisputed. In 1992, Ernest King, manager of envi-
ronmental affairs for Knight-Ridder, Inc., and Lynn
Straughn, environmental director for Gannett Co., Inc.,
conducted an environmental audit of the Respondent’s
workplaces covering such matters as safety records,
hearing conservation records, bloodborne pathogen
procedures, and emergency response records. The
Union (the Charging Party) requested in writing on
October 11, November 18, and December 30, 1993,
that the Respondent provide it with a copy of the
audit. On January 13, 1994, the Respondent denied the
request, stating, ‘‘Unfortunately, the Ernest King report
is not available. According to the September 27, 1993
Business Monday article, Mr. King would not release
his report.’’ The Respondent did not offer to accom-
modate the Union’s request through other means.
Shortly before the hearing, the Respondent did furnish
the Union with a highly redacted copy of the audit.
I. RELEVANCY
An employer has a statutory obligation to supply in-
formation that is potentially relevant and will be of use
to the union in fulfilling its responsibilities as exclu-
sive bargaining representative. NLRB v. Acme Indus-
trial Co., 385 U.S. 432, 435–436 (1967). The judge
found, and the Respondent does not dispute, that
health and safety matters regarding the unit employees’
workplaces are of vital interest to the employees and
are, thus, generally relevant and necessary for the
Union to carry out its bargaining obligations. We
agree. Indeed, ‘‘[f]ew matters can be of greater legiti-
mate concern.’’ Minnesota Mining & Mfg. Co., 261
NLRB 27, 29 (1982), enfd. sub nom. Oil Workers
Local 6-418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983).
Furthermore, the Respondent has contractually recog-
nized the relevancy of health and safety matters. In a
side letter, included in the printed version of the 1992–
1995 bargaining agreement between the Detroit Free
Press and the Union, the parties agreed:
This letter will confirm the parties’ intent to meet
as often as possible to consider, discuss and at-
tempt to resolve all issues relating to the em-
ployer-employee relationship, including health
and safety issues, between the Publisher and em-
ployees represented for the purpose of bargaining
by the Union. [Emphasis added.]
Accordingly, we conclude that the requested audit is
relevant.
Once it is established that an employer has failed to
timely furnish potentially relevant information re-
quested by a union, the employer will be found in vio-
lation of Section 8(a)(5) and (1) of the Act unless it
establishes a valid reason why it did not timely furnish
the information. In its exceptions, the Respondent at-
tempts to supply several reasons: it contends that the
Union had the information available to it but in a dif-
ferent form, that the assessments, conclusions, and rec-
ommendations redacted from the audit are confidential,
and that its confidentiality interests outweigh the
Union’s need for the information. For the following
reasons, we reject the Respondent’s contentions and
agree with the judge that the Respondent was and is
obligated to furnish the Union with an unredacted copy
of the requested audit.
II. AVAILABILITY IN DIFFERENT FORM
Shortly before the hearing began, the Respondent
did furnish the Union with a redacted copy of the King
audit. The redacted copy, however, omitted all assess-
ments, conclusions, and recommendations. Beyond
identifying areas covered, the redacted audit contained
little information of value to the Union. It is apparent
that the assessments, conclusions, and recommenda-
tions are what gives the audit useful meaning. The re-
dacted audit did not contain raw data from which the
Union could reach its own conclusions. Rather, it is
what was blacked out, i.e., redacted, that contains the
essential information. As one of many possible exam-
ples, at page 18 the audit states, ‘‘The environmental
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 This one word was imperfectly blacked out and on careful exam-
ination reads ‘‘below.’’ This was one of the few instances in which
the blacking-out of the text was ineffective.
3 See also Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) (indi-
vidual psychological aptitude test scores).
assessment indicated that The Detroit Newspaper
Agency toxic chemicals emissions were [a blacked out
word] the reporting requirement of section 313.’’ It is
obvious that essential information, whether the Re-
spondent was above or below toxic emission standards,
was withheld from the Union.2 Furthermore, the Re-
spondent did not even furnish the Union with the re-
dacted copy until some 7 months after its refusal. Once
a union has made a good-faith request for information,
an employer must provide relevant information reason-
ably promptly in useful form. General Electric Co.,
290 NLRB 1138, 1147 (1988). We find that the re-
dacted copy of the audit is both too little and too late
to meet the Respondent’s statutory obligation.
The Respondent also contends that the wide variety
of information about environmental, health, and safety
matters it has shared with the Union over the past few
years satisfies its obligation to furnish the requested
audit. The Respondent, however, has failed to show
that this other information duplicates the information
in the requested audit. From all we can tell, the audit
may well have touched on new matters or may have
contradicted other reports. Even if the information
were cumulative, it would remain relevant. Cumulative
information on such vital matters as health and safety
would serve to identify the most pressing problems, to
demonstrate any continuing problems, and to aid the
Union in formulating a rational response. An employer
is obligated to furnish a union with information that
would help the union make an informed judgment
about the problem the information addresses. General
Motors Corp. v. NLRB, 700 F.2d 1083, 1088 (6th Cir.
1983), enfg. 257 NLRB 1068 (1981). Accordingly,
even assuming that the Respondent has previously pro-
vided the Union with similar information, we find that
the Respondent has failed to show that the other infor-
mation satisfies its obligation to furnish the requested
audit.
The Respondent further contends that the Union is
free to make its own safety inspection using the other
information and the redacted audit as a basis for that
investigation. The Respondent, however, did not offer
this opportunity to the Union when it refused to fur-
nish the requested audit. Furthermore, this is not the
form in which the Union requested the information,
and the requested audit is readily available to the Re-
spondent. An employer’s obligation to furnish relevant
information is not excused merely because a union
may have alternative sources for the information. New
York Times Co., 265 NLRB 353 (1982); Colgate-
Palmolive Co., 261 NLRB 90, 92 fn. 13 (1982), enfd.
sub nom. Oil Workers Local 5-114 v. NLRB, 711 F.2d
348 (D.C. Cir. 1983); and Kroger Co., 226 NLRB 512,
513 (1976) (a ‘‘union is under no obligation to utilize
a burdensome procedure of obtaining desired informa-
tion where the employer may have such information
available in a more convenient form’’). See also
ASARCO, Inc. v. NLRB, 805 F.2d 194, 198 (6th Cir.
1986) (‘‘availability of the requested information from
another source does not alter the employer’s duty to
provide readily available relevant information to the
bargaining representative’’).
III. CONFIDENTIALITY
A. Timeliness
The Respondent asserts that the information re-
quested is confidential. We reject this contention. The
Board has found that substantial claims of confidential-
ity may justify refusals to furnish otherwise relevant
information. See, e.g., Postal Service, 306 NLRB 474
(1992) (names of witnesses to drug transactions); Gen-
eral Dynamics Corp., 268 NLRB 1432 (1984) (study
made in preparing for pending litigation); Minnesota
Mining & Mfg. Co., supra at 27 (trade secrets); and
Johns-Manville Sales Corp., 252 NLRB 368 (1980)
(individual medical records and disorders).3 Blanket
claims of confidentiality, however, will not be upheld.
Pennsylvania Power Co., 301 NLRB 1104, 1105
(1991). Also, confidentiality claims must be timely
raised. Gas Spring Co., 296 NLRB 84, 99 (1989)
(claim belatedly raised and brought up as an after-
thought not upheld). The reason a confidentiality claim
must be timely raised is so that the parties can attempt
to seek an accommodation of the employer’s asserted
confidentiality concerns. Tritac Corp., 286 NLRB 522
(1987) (employer ‘‘cannot simply raise its confidential-
ity concerns, but must also come forward with some
offer to accommodate both its concerns and its bar-
gaining obligation’’); Pennsylvania Power Co., supra
at 1105 (‘‘party refusing to supply information on con-
fidentiality grounds has a duty to seek an accommoda-
tion’’). Here, the Respondent did not raise its confiden-
tiality claim when it initially refused to furnish the re-
quested audit but apparently first made the claim dur-
ing or shortly before the August 30, 1994 hearing. Fur-
thermore, the Respondent failed to timely seek an ac-
commodation with the Union of its confidentiality
claim. Accordingly, we find that the Respondent failed
to timely raise its claim that the requested information
was confidential.
B. Prepared for Litigation
The Respondent contends that the audit is confiden-
tial because it was prepared in anticipation of litiga-
tion. We disagree. The Board has found that informa-
tion gathered in response to specific legal actions is
1073DETROIT NEWSPAPER AGENCY
4 The Union, as well as the Respondent, was contractually obli-
gated to pursue any safety and health matters through negotiations
pursuant to the parties’ side agreement on the negotiability of health
and safety matters, and, even regarding matters that the Union even-
tually brought to the attention of the state health and safety agency,
the Union first attempted to resolve the matters through direct nego-
tiations with the Respondent.
5 The Union has received such reports.
6 Oil Workers, supra at 360.
privileged from disclosure. General Dynamics, supra,
1432. The mere potential for litigation does not con-
stitute a legitimate claim of confidentiality. New Eng-
land Telephone Co., 309 NLRB 196 (1992). Further-
more, as the Board has held, ‘‘The Party asserting the
claim of confidentiality has the burden of proof.’’
Washington Gas Light Co., 273 NLRB 116 (1984).
The Respondent’s sole witness, Ernest King, testi-
fied that the audit was part of the annual audit of safe-
ty matters undertaken in all Knight-Ridder facilities.
Thus, the testimony shows that the audit was prepared
in the ordinary course of the Respondent’s business,
rather than in anticipation of litigation. The Respond-
ent’s suggestion that the Union might pursue matters
arising from the requested audit through litigation or
complaints to Federal or state safety agencies has no
solid foundation. There is evidence that the Union has
brought certain ergonomic matters relating to alleged
repetitive motion stress problems to the attention of the
Michigan health and safety agency. The audit, how-
ever, does not concern such matters. King testified
‘‘no’’ when asked on direct examination whether the
audit related to anything in the area of ergonomics.
Thus, we find that the Respondent has failed to estab-
lish its asserted claim of confidentiality of the re-
quested audit. At best, the claim is based on mere
speculation.4 Accordingly, we reject the Respondent’s
claim that the requested audit should be considered as
a confidential matter in preparation for litigation.
C. Self-Critical Report
The Respondent additionally contends that the audit
is confidential because it is an internal, self-critical re-
port. We disagree. To establish a legitimate confiden-
tiality claim, the Board requires more than what the
Respondent has shown. Confidential information is
limited to a few general categories: that which would
reveal, contrary to promises or reasonable expectations,
highly personal information, such as individual medical
records or psychological test results; that which would
reveal substantial proprietary information, such as trade
secrets; that which could reasonably be expected to
lead to harassment or retaliation, such as the identity
of witnesses; and that which is traditionally privileged,
such as memoranda prepared for pending lawsuits. See
cases cited in sections III,A and B, above. The re-
quested audit falls outside these general categories.
The Respondent draws a distinction between internal
and external reports. It states that it did not claim con-
fidentiality for reports from outsiders, such as insur-
ance companies and environmental consultants.5 The
Respondent argues that findings of outsiders, in con-
trast to the findings of officials from parent companies,
are not likely to be viewed as admissions of error. The
Respondent contends that internal reports are confiden-
tial because they must be able ‘‘to recommend, criti-
cize, warn, threaten or use any other means at their
disposal to cause Respondent’s managers to achieve
the highest possible levels of health and safety for Re-
spondent’s employees.’’
The Respondent’s argument is too sweeping. Much,
if not most, of the relevant information an employer is
required to furnish to a union is internally generated.
Furthermore, the Respondent’s argument is inconsistent
with the whole theory of the Act. Because employee
health and safety are mandatory subjects of bargain-
ing,6 Section 8(a)(5) requires the Respondent to confer
and negotiate with the Union on these matters. Thus,
the Act contemplates that achieving the ‘‘highest pos-
sible levels of health and safety’’ is to be accom-
plished jointly with the Union, not unilaterally by the
Respondent.
In addition, the Respondent’s confidentiality conten-
tions are not supported by the record. Ernest King,
who was involved in preparing the requested audit, did
not testify that the audit criticized, warned, or threat-
ened anyone. Rather, King testified more generally that
he would alter the way he put the reports together if
he were aware they would be given to the Union:
Because I write these reports in the manner that
I try to get action. If I write them in a very strong
manner there are a lot of opinions in these reports
based on my opinion of things and I would have
to drastically alter the way I put these reports to-
gether.
King did not, however, testify that he would alter the
substance, as opposed to the tone, of the audit. To this
extent, we agree with the judge’s finding, with which
the Respondent disagrees, that King ‘‘never explained
how the report would be different if directed to man-
agement alone or directed to management with disclo-
sure to the Union.’’
The Respondent also relies on ASARCO, Inc. v.
NLRB, supra, denying enf. in pertinent part to 276
NLRB 1367 (1985), and argues that the requested
audit is confidential because its disclosure, if antici-
pated, would result in the report’s being watered down
or not written. Although we continue to adhere to the
principles expressed in the Board’s decision in
ASARCO, we also find that the Respondent’s reliance
on the court’s decision in that case is misplaced. The
court found (id. at 199) that ASARCO’s self-critical
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 An employee died after apparently driving his tractor over a 30-
foot dropoff at a mine site.
8 Contrary to our colleague’s partial dissent, we would not give the
Respondent yet another opportunity to bargain over its asserted con-
fidentiality claims. We have found above that, unlike the situation
in Minnesota Mining, the case relied on by the dissent, the Respond-
ent’s confidentiality claims are unsupported by the record and are at
best speculative. In these circumstances, we do not believe that it
would be appropriate to force the Union to go back to the bargaining
table to obtain the information to which it is entitled.
reports, which were prepared after a serious accident,7
‘‘contain speculative material and opinions, criticisms
of persons, events, and equipment, and recommenda-
tions for future practices.’’ In this case, there is no
contention that the requested audit was prepared as the
result of any particular incident. Rather, as previously
found, the audit is part of Knight-Ridder’s annual au-
dits of all its facilities. Furthermore, although the audit
made recommendations, there is no evidence that it
contained speculative material or criticisms of persons
or events. King did not so testify.
Because the Respondent’s contentions are unsup-
ported by the record, we find that the Respondent has
merely made a speculative or blanket confidentiality
claim. Blanket claims of confidentiality will not be
upheld. Pennsylvania Power Co., supra at 1105; Wash-
ington Gas Light Co., supra at 117. Accordingly, we
find that the Respondent has failed to meet its burden
and conclude that the requested audit has not been
shown to contain confidential information.8
D. Balancing Test
The Respondent contends that the judge erroneously
failed to balance the Union’s interest in disclosure of
the requested audit with the Employer’s interest in
confidentiality. We disagree. A union’s interest in ar-
guably relevant information does not always predomi-
nate over other legitimate interests. In determining
whether an employer must comply with a union’s re-
quest for relevant but assertedly confidential informa-
tion, the Board is required to balance a union’s need
for the information against any legitimate and substan-
tial confidentiality interests. Detroit Edison Co. v.
NLRB, supra at 301; Washington Gas Light Co., supra
at 116. To invoke a balancing test, however, an em-
ployer must first prove its confidentiality claim. Re-
sorts International Hotel, 307 NLRB 1437, 1438
(1992). Because the Respondent, as found above, has
failed to establish its confidentiality claim, a balancing
test is neither necessary nor proper.
Even assuming that the Respondent had raised a le-
gitimate confidentiality claim that would require a bal-
ancing test, we would strike the balance in favor of the
Union and order the Respondent to furnish the Union
with an unredacted copy of the requested audit. In sup-
port of its contention that the balance should be struck
in its favor, the Respondent relies on the court’s deci-
sion in ASARCO, supra at 194. We find that ASARCO
is also distinguishable on this issue. The relevant issue
in that case concerned the union’s request for an exten-
sive self-critical report the employer made after a seri-
ous accident and for the purpose of improving safety
and preventing future similar mishaps. The court, in its
final analysis, held (id. at 200) that ‘‘access to
ASARCO’s internal report and self-critical thinking is
not relevant or reasonably necessary to the Union’s
representative duties.’’ Thus, the ultimate holding of
the court goes to whether the information was relevant
and does not depend on making a balancing determina-
tion.
The court additionally found (id. at 199) that the re-
port contains speculative material and opinions, criti-
cisms of persons, events, and equipment, and rec-
ommendations for future practices. The court referred
(id. at 199) to testimony that ‘‘if ASARCO were re-
quired to divulge these reports to the Union, much of
their contents would have been omitted, adversely af-
fecting, if not nullifying, the report’s value.’’ The court
further referred (id. at 199) to testimony that the report
was made in anticipation of litigation that frequently
arises after serious accidents. The court found (id. at
200), ‘‘The practice of uninhibited self-critical analy-
sis, which benefits both the union’s and employer’s
substantial interest in increased worker safety and acci-
dent prevention, would undoubtedly be chilled by dis-
closure.’’ In addition, the court found (id. at 200) that
the union had all the factual information regarding the
accident available to it by the union’s participation in
the investigation of the accident and the court’s requir-
ing the employer to give the union access to the mine
and the photographs relating to the accident.
In contrast, this case involves an annual health and
safety audit routinely made by the parent corporation
in all Knight-Ridder facilities, rather than a report in
response to a specific health and safety problem, let
alone an accident causing an employee’s death. Al-
though the audit’s recommendations were undoubtedly
made to improve safety, there is no evidence that the
audit contained speculative materials or criticisms of
persons, events, and equipment. And there is no testi-
mony, as in ASARCO, that the substance, as opposed
to the tone, of the audit would be changed or that it
was prepared in anticipation of litigation. In addition,
the record here fails to support a finding that the
Union had available to it all the factual information in
the audit. The Union was not invited to, and did not,
participate in the audit or accompany King and
Straughn when they made the audit, and the Respond-
ent has not offered or made available to the Union the
records that King and Straughn reviewed. These dif-
ferences from ASARCO are significant and call for a
result different from ASARCO.
1075DETROIT NEWSPAPER AGENCY
9 Minnesota Mining & Mfg. Co., supra at 29.
1 Service Employees Local 144 (Jamaica Hospital), 297 NLRB
1001 fn. 2 (1990).
As previously stated, we find that the balance be-
tween the interests of the Respondent’s confidentiality
assertions and the Union’s right to relevant information
should be struck in favor of disclosure to the Union.
Although we recognize that a union’s interest in infor-
mation about an accident leading to the death of an
employee is powerful, we also recognize that the
Union’s interest here in the requested audit is substan-
tial.9 Furthermore, disclosure of the audit to the Union
would not undermine the purpose of the audit. King
testified that his purpose is to ‘‘get action’’; local
union access to the information would also serve to
‘‘get action.’’ Although King’s ‘‘strong’’ words might,
if revealed to the Union, embarrass the Respondent’s
management, preventing such embarrassment has little
claim to confidentiality. Clearly it is outweighed by the
Union’s substantial interest in health and safety mat-
ters. Accordingly, we find in all the circumstances that
the balance between the Respondent’s assertion of con-
fidentiality and the Union’s right to potentially relevant
information should be struck in favor of the Union.
Conclusion
For the foregoing reasons, we find that the Respond-
ent should be ordered to furnish the Union with a com-
plete and unredacted copy of the requested audit. Ac-
cordingly, we shall adopt the judge’s recommended
Order to this effect.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Detroit Newspaper Agency
and The Detroit Free Press, Inc., Detroit, Michigan,
their officers, agents, successors, and assigns, shall
take the action set forth in the Order.
MEMBER STEPHENS, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by withholding
the King report in its entirety until after complaint
issued in this case, more than 7 months after the Union
requested it. I further agree, for the reasons stated by
the majority, that the withholding of factual material
concerning workplace conditions is not immunized by
a showing that facts it contains can also be gleaned
from various other sources.1 I would not, however,
order the Respondent to turn over the complete
unredacted report. Rather, I would order the Respond-
ent to turn over to the Union all portions of the report
relating to the conditions of the workplace except for
judgments on the performance of the Respondent’s
managers or other purely judgmental statements and
recommendations; and following the approach of the
Board in Minnesota Mining & Mfg. Co., 261 NLRB
27, 32 (1982), enfd. sub nom. Oil Workers Local 6-
418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983), I would
require the Respondent to bargain with the Union over
a procedure for protecting the confidentiality of any
such matters in the disclosure of the report.
Cynthia L. Beauchamp, Esq., for the General Counsel.
John B. Jaske, Esq., of Arlington, Virginia, and John Taylor,
Esq., of Detroit, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On January
20, 1994, the charge in Case 7–CA–35452 was filed by the
Newspaper Guild of Detroit, Local 22, of the Newspaper
Guild, AFL–CIO–CLC (Union), against the Detroit News-
paper Agency (Respondent DNA), and the Detroit Free
Press, Inc. (Respondent Free Press).
On March 25, 1994, the National Labor Relations Board,
by the Regional Director for Region 7, issued a complaint
which alleges that Respondents violated Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act) when they
failed and refused to comply with an information request
from the Union for a copy of a report of an environmental
audit conducted by Ernest King.
Respondents filed an answer in which they denied violat-
ing the Act in any way.
A hearing was held before me in Detroit, Michigan, on
August 30, 1994.
On the entire record in this case, including posthearing
briefs submitted by the General Counsel and Respondents,
and on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent DNA is organized as a general partnership
under Michigan law. Respondent Free Press and The Detroit
News, Inc. are, and have been at all times material, copart-
ners doing business under the trade name and style of Detroit
Newspaper Agency.
At all material times, Respondent DNA has maintained an
office and place of business at 615 West Lafayette, Detroit,
Michigan, and has been engaged in the publishing operations
of all nonnews and noneditorial departments of Respondent
Free Press and The Detroit News as a unified integrated
business, as agent for, and for the benefit of both newspapers
and is responsible for selling, advertising, printing, and dis-
tribution of the two newspapers.
At all material times Respondent Free Press, a Michigan
corporation with an office and place of business at 321 West
Lafayette, Detroit, Michigan, has been engaged in the oper-
ation of the news and editorial departments of a daily news-
paper.
During 1993, Respondent DNA, in the course and conduct
of its business operations described above, had gross reve-
nues in excess of $500,000, and purchased and received
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
newspaper print valued in excess of $50,000, which was
shipped to its Michigan facilities directly from points located
outside the State of Michigan.
During 1993, Respondent Free Press, in the course and
conduct of its business operations described above, derived
gross revenues in excess of $200,000 and held membership
in/or subscribed to various interstate news services and pub-
lished various nationally syndicated features and advertised
various nationally sold products.
Respondents admit, and I find, that each of the Respond-
ents has been engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondents admit, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Overview
The Detroit News Agency (DNA) was formed under the
Newspaper Preservation Act and handles all noneditorial
functions for two Detroit newspapers, i.e., the Detroit Free
Press and the Detroit News, e.g., business advertising, cir-
culation, etc.
The Union represents certain employees of both the De-
troit Newspaper Agency (DNA) and the Detroit Free Press.
More specifically the Union represents:
1. All full-time and regular part-time janitors em-
ployed by Respondent DNA, including working super-
visors and Respondent DNA employees formerly classi-
fied as machinist helpers, heavy cleaners, and cleaners;
but excluding managerial employees, confidential em-
ployees, guards and supervisors as defined in the Act,
and
2. All full-time and regular part-time employees in
the editorial and business office departments of Re-
spondent Detroit Free Press; but excluding the classi-
fications listed in a document entitled ‘‘Exemptions,’’
as updated February 7, 1994; but excluding guards and
supervisors as defined in the Act.
Since about 1990, and at all material times, the Union has
been the designated exclusive collective-bargaining represent-
ative of the DNA unit and has been recognized as such rep-
resentative by Respondent DNA. This recognition has been
embodied in successive collective-bargaining agreements, the
most recent of which is effective from date of ratification
through April 30, 1995.
Since about 1930, and at all material times, the Union
(Charging Party) has been the designated exclusive collec-
tive-bargaining representative of the Detroit Free Press unit
and has been recognized as such representative by Respond-
ent Free Press. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent of
which is effective from May 1, 1992, to April 30, 1995.
At all times since 1990, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining rep-
resentative of the DNA unit.
At all times since 1930, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining rep-
resentative of the Free Press unit.
It is undisputed that on October 11 and December 30,
1993, the Union requested in writing that the Respondents
provide to it a copy of a report prepared by Ernest King fol-
lowing an environmental audit he conducted in the fall of
1992 at the Detroit Newspaper Agency and the Detroit Free
Press.
Respondents failed and refused to turn over the report in
its entirety, claiming that it is the kind of internal self-critical
report that they should be permitted to keep confidential, cit-
ing the case of ASARCO, Inc. v. NLRB, 805 F.2d 194 (6th
Cir. 1986). At the hearing before me, Respondents intro-
duced into evidence as Respondent’s Exhibit 1 a redacted
version of the King report. The report consists of 26 pages
and a cover sheet. All or part of 19 pages are blacked out
and unreadable. According to Respondents, the blacked out
areas of the report cover the conclusions and recommenda-
tions of Ernest King.
All parties concede that the Union has an interest in health
and safety, but the Union insists, contrary to Respondents,
that it needs to be able to review the King report in its en-
tirety because the contents of the report are necessary and
relevant to the performance of its functions as a collective-
bargaining representative, especially considering that bargain-
ing for new contracts for the employees it represents at both
the Detroit Newspaper Agency (DNA) and the Detroit Free
Press will begin in late 1994 or early 1995 as both contracts
expire on April 30, 1995. A purpose of King’s report was
‘‘to reduce liability overall for accident and injury.’’
The sole issue in the case is whether Respondents violated
Section 8(a)(1) and (5) of the Act when it refused to turn
over King’s report.
B. Discussion and Analysis
Luther Jackson Jr., an official of the Union, testified for
the General Counsel. He was a very impressive witness and
I credit his testimony in its entirety.
His testimony reflects that since at least 1985 the Union
has been very concerned about health and safety issues for
the employees it represents at the DNA and the Detroit Free
Press. Jackson testified, for example, that in 1990 the Union
conducted a survey among the employees it represents and
ascertained that many were suffering from repetitive strain
injuries apparently caused by working in front of video dis-
play terminals (VDTs). The Union also received complaints
about the configuration of the VDTs and the furniture used
by the employees working at the VDTs. The Union was also
concerned about ventilation, and asbestos detection, removal,
and encapsulation, VDT screen radiation, repetitive strain in-
jury hazards for maintenance employees, photographic chem-
ical hazards, and the Union also wanted a nurse assigned
back into the Detroit Free Press building.
The Union also expressed its concern to management
about new furniture and work stations at the Detroit Free
Press, which had undergone some renovation in 1992. A
number of employees complained to the Union about the
lack of easily adjustable furniture at their work stations. The
Union was interested in the field of ergonomics, i.e., the
science of adapting furniture, equipment, and machinery to
people, and the Union let management know this. In an
1077DETROIT NEWSPAPER AGENCY
ergonomic survey conducted by the Union some em-
ployees complained about back problems, wrist prob-
lems, etc., caused by the furniture provided to them at
their work stations.
In September 1993, certain maintenance employees com-
plained to the Union about asbestos exposure on the job. An-
other incident which concerned the Union involved a graph-
ics intern cutting himself on the job with a knife and the
issue and concerns that incident caused.
The Union learned that Liberty Mutual, the workers’ com-
pensation carrier for the Free Press, had visited work stations
and done work station analyses. The Union requested and re-
ceived a copy of the report prepared by Liberty Mutual. On
another occasion the Union requested and received permis-
sion from Respondents to inspect OSHA forms the Respond-
ents maintained pursuant to Federal law. With respect to the
Liberty Mutual report and the OSHA records Respondents
fully cooperated with the Union.
In the fall of 1993, the Union became aware from a news-
paper article in the Detroit Free Press on September 27,
1993, that two environmental audits had been conducted at
the Detroit Newspaper Agency and or Detroit Free Press.
One had been conducted by Donald A. Hensel of the News-
paper Association of America (NAA), a trade organization,
and the other had been conducted by Ernest King.
Ernest King is an employee of Knight-Ridder, Inc., the
parent company of the Detroit Free Press, and apparently its
top health and safety person. Knight-Ridder, Inc. owns ap-
proximately 29 newspapers, one of which is the Detroit Free
Press.
The Union requested a copy of Donald Hensel’s 67-page
report prepared for the NAA, management’s response to
Hensel’s report, and a copy of Ernest King’s environmental
audit. The Union received a copy of Hensel’s report and
management’s response to it, but Respondents would not re-
lease a copy of King’s report to the Union.
As noted above, a redacted copy of King’s report was re-
ceived in evidence as Respondent’s Exhibit 1. The table of
contents of King’s 26-page report reflects that the following
subject areas, inter alia, were covered: hearing conservation
program records, safety program and records, waste manage-
ment program and records, bloodborne pathogens, and emer-
gency response program and records.
According to Luther Jackson, the Union wanted a copy of
Ernest King’s report because it was very interested in getting
as much information as possible regarding the health and
safety of its members, because of the prominence of Ernest
King, and to prepare for negotiations for a new collective-
bargaining agreement. All are extremely valid reasons.
Respondents would not voluntarily turn over all of King’s
report. The Respondents claim that because it is a internal
self-critical report it would have a chilling effect on Re-
spondents’ inclination to do similar internal self-critical re-
ports in the future if forced to disclose the contents of this
report to the Union. Because the Hensel audit done for the
NAA and the report of Liberty Mutual were not internal self-
critical reports, Respondents readily disclosed those reports
to the Union on its request.
Ernest King was, like Jackson, a very impressive witness.
He testified for the Respondents. The only problem I had
with King’s testimony was his assertion that his report to his
superiors would be different if disclosable to the Union. He
struck me as the kind of professional who would tell it like
it is regardless of who the reader of the report might be. In-
terestingly enough he never explained how the report would
be different if directed to management alone or directed to
management with disclosure to the Union on its request.
King stated, by the way, that he did not cover the area of
repetitive strain injuries associated with VDT use in his re-
port.
It is well settled that ‘‘[t]he duty to bargain collectively,
imposed upon an employer by Section 8(a)(5) of the Na-
tional Labor Relations Act, includes a duty to provide rel-
evant information needed by a labor union for the proper
performance of its duties as the employees’ bargaining rep-
resentative.’’ Detroit Edison Co. v. NLRB, 440 U.S. 301, 303
(1979). In evaluating an employer’s obligation to fulfill the
union’s information requests, the Board and courts apply a
‘‘discovery type standard,‘‘ under which the requested infor-
mation need only be relevant and useful to the union in ful-
filling its statutory obligations in order to be subject to dis-
closure. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
Some information in the hands of management is presump-
tively relevant, e.g., health and safety information. As the
Board stated ‘‘Few matters can be of greater legitimate con-
cern to individuals in the workplace, and thus to the bargain-
ing agent representing them, than exposure to conditions po-
tentially threatening their health, well-being, or their very
lives.’’ Minnesota Mining & Mfg. Co., 261 NLRB 27, 29
(1982).
Respondents, as noted above, rely on the Sixth Circuit de-
cision in ASARCO, Inc. v. NLRB, supra, in claiming that its
internal self-critical report should not be required to be
turned over as the Sixth Circuit found that the report in the
ASARCO case need not be turned over. The critical dif-
ference, however, is that in the ASARCO case the court
found that the Union had available to it all relevant factual
information and did not need to see ASARCO’s internal self-
critical investigative report. In the instant case there is no
evidence that the Union has available to it all relevant factual
information contained in the King report. Because this is so
and because health and safety are so critical, I find that dis-
closure of the King report to the Union was necessary to and
relevant for the Union to perform its duty as collective-bar-
gaining representative.
The Sixth Circuit in ASARCO reversed the Board which
had found the employer violated the Act in not turning over
the internal self-critical report in question. What could be
more important to the Union than the health and safety of
its members. Turning the King report over to the Union is
not the functional equivalent of the United States turning
over to the German high command the details of Operation
Overlord prior to June 6, 1944. The fact is that when it
comes to the health and safety of the employees the Re-
spondents and the Union are on the same side.
Accordingly, Respondents violated Section 8(a)(1) and (5)
of the Act when it failed and refused to turn over to the
Union in its entirety the Ernest King report on the environ-
mental audit he conducted at the Detroit News Agency and
the Detroit Free Press in the fall of 1992.
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
2 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
National 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.’’
CONCLUSIONS OF LAW
1. Respondents Detroit Newspaper Agency and the Detroit
Free Press are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing to provide to the Union an
unredacted copy of the report prepared by Ernest King fol-
lowing the environmental audit he conducted in the fall of
1992 Respondents unlawfully refused, and are refusing, to
bargain in violation of Section 8(a)(5) and (1) of the Act.
4. The above-unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found Respondents engaged in an unfair labor
practice, I find it necessary to order them to cease and desist
and to take certain affirmative action designed to effectuate
the policies of the Act.
The order will require Respondents to furnish the Union
with an unredacted copy of the King report.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondents, Detroit Newspaper Agency and the De-
troit Free Press, Inc., their officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith with
the Union by refusing to provide the Union a complete and
unredacted copy of a report prepared by Ernest King follow-
ing an environmental audit he conducted in the fall of 1992.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request of the Union, furnish to it within a reason-
able time the report referred to in paragraph 1(a), above.
(b) Post at its facilities in Detroit, Michigan, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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
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 bargain collectively with the
Union by refusing to supply it with a complete and
unredacted copy of a report prepared by Ernest King follow-
ing an environmental audit he conducted in the fall of 1992.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request of the Union, furnish to it the afore-
mentioned report by Ernest King
DETROIT NEWSPAPER AGENCY AND THE DE-
TROIT FREE PRESS, INC.