Patriot-News Co.

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1296 (N.L.R.B. 1992)

1296
308 NLRB No. 187
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent asserts that certain findings made by the judge
demonstrated bias against the Respondent. After a careful examina-
tion of the entire record, we are satisfied that this allegation is with-
out merit.
We find it unnecessary to rely on the judge’s citation of Alle Are-
cibo Corp., 264 NLRB 1267, 1274 (1982), to support the proposition
that claiming confidentiality with regard to compensation of unit em-
ployees is not an excuse for refusing to provide such information.
Nevertheless, we agree with this proposition; see Evening News
Assn., 270 NLRB 380 (1984), enfd. 759 F.2d 959 (D.C. Cir. 1985).
We find it unnecessary to rely on the judge’s comment that it is
ironic that a newspaper publisher that routinely publishes the salaries
of all sorts of persons will not disclose, without condition, the
Christmas bonuses of its unit employees to the Union which rep-
resents them.
The Patriot-News Company and Local No. 16, The
Newspaper Guild, AFL–CIO. Case 4–CA–19611
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 17, 1992, Administrative Law Judge Mar-
tin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party each 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,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Patriot-News Com-
pany, Harrisburg, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Steven B. Goldstein, Esq., for the General Counsel.
Bruce H. Berry, Esq. and Sidney D. Kress, Esq., of New
York, New York, for the Respondent.
James A. Diamond, Esq., of Camp Hill, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On March
4, 1991, Local No. 16, the Newspaper Guild ( the Union),
filed a charge against the Patriot-News Company (the Re-
spondent).
On March 29, 1991, the National Labor Relations Board,
by the Regional Director for Region 4, issued a complaint
alleging that Respondent violated Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act), when it failed
and refused to furnish the Union with the names of unit em-
ployees who received Christmas bonuses in 1990 and the
amount of the bonuses.
Respondent filed an answer in which it denied that it vio-
lated the Act in any way.
A hearing was held before me in Philadelphia, Pennsyl-
vania, on November 4, 1991.
On the entire record, including my observation of the de-
meanor of the two witnesses who testified, and after consid-
eration of the briefs submitted by the General Counsel, Re-
spondent, and Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Patriot-News Company, Respondent, is, and has been
at all times material herein, a Pennsylvania corporation en-
gaged in the publication of newspapers in Harrisburg, Penn-
sylvania.
During the past year, in the course and conduct of its busi-
ness operations described above, Respondent derived gross
revenues in excess of $200,000 and purchased and received
materials and supplies valued in excess of $50,000 directly
from points outside the State of Pennsylvania.
Respondent admits, and I find, that it is, and has been at
all times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Local No. 16, the
Newspaper Guild, is, and has been at all times material here-
in, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. A Unit of Editorial Department Employees is an
Appropriate Unit
Respondent publishes three newspapers, the Patriot, a
Monday to Saturday morning newspaper, the Evening News,
a Monday to Friday afternoon newspaper, and the Sunday
Patriot News, a Sunday only newspaper.
For some years Respondent has recognized and bargained
with the Union, which represents a unit of ‘‘regular or full-
time employees’’ in the editorial department of Respondent,
except such employees as are otherwise specifically exempt-
ed. The employees in the editorial department work on all
three of Respondent’s newspapers. Apparently there was
never a Board certification of a unit.
Three collective-bargaining agreements were introduced
into evidence at the trial before me. The list of specifically
exempted editorial department employees from the unit var-
ied from agreement to agreement. The three collective-bar-
gaining agreements covered the period of July 1, 1979, to
June 30, 1982, July 1, 1982, to June 30, 1987, and July 1,
1987, to June 30, 1990. In May 1990 the parties began nego-
tiations for a collective-bargaining agreement to succeed the
1987 to 1990 agreement. Article XIX in this last contract
provided, in pertinent part, that ‘‘the terms and conditions of
the Agreement shall remain in effect during such negotia-
1297PATRIOT-NEWS CO.
tions if they extend beyond June 30, 1990.’’ As of the date
of the hearing before me, November 4, 1991, the parties
were still negotiating for a new agreement.
One of the issues on the table was whether or not certain
employees should be given new titles and removed from the
unit because Respondent claimed they were supervisors or
managerial personnel. No agreement on this had been
reached. Respondent was urging the exclusion of approxi-
mately 12 employees from the unit. The unit consists of 91
employees. Fifty-six of the employees in the unit are mem-
bers of the Union. In other words, if Respondent got all it
wanted the unit would consist of 79 employees.
The unit is described in article I of the 1987 to 1990
agreement, which is still in effect, as follows:
1. All conditions and benefits contained in this
Agreement shall apply to all regular or full-time em-
ployees who are now or hereafter may be employed in
the Editorial Department of The Patriot-News Co., ex-
cept such employees as are otherwise specifically ex-
empted.
2. The following employees are excluded from the
application of this Agreement: Editor (Editor-in-Chief),
Managing Editors, Editorial Assistant to the Publisher,
Executive Editor, one confidential secretary to each
such executive, two Associate Editors, Editorial Page
Editors, two news Editors, State Editor, City Editors,
Chief Assistant City Editor/The Patriot, Chief Assistant
City Editor/The Evening News, Chief Assistant City
Editor/Metro, Chief Assistant City Editor/Lebanon,
Lifestyle Editors, Sports Editor and Sunday Editor.
Respondent claims that the General Counsel has failed to
prove that an appropriate unit for collective-bargaining pur-
poses exists and, therefore, the finding of a violation of Sec-
tion 8(a)(5) of the Act, i.e., a failure to bargain in good faith,
cannot be made.
I disagree that the General Counsel has failed to prove that
an appropriate unit for collective bargaining exists. Respond-
ent concedes by seeking in negotiations for a new agreement
which excludes 12 persons from the unit as managers or su-
pervisors that a unit of 79 editorial department employees ex-
ists. But be that as it may, the party seeking to exclude per-
sons from a unit agreed to in a contract still in effect by
agreement of the parties has the burden of proving exclusions
from the unit. No such proof was presented at the hearing.
Nor has a unit clarification petition been filed. Lastly, a unit
of editorial employees has long been held to be an appro-
priate unit for collective bargaining. See, e.g., Detroit News,
270 NLRB 380 (1984); Peoria Journal Star, 117 NLRB 708
(1957). The unit agreed to in the 1987–1990 agreement
which has been extended by agreement of the parties, is not
an inherently inappropriate unit, hence, the agreement of the
parties as to what is the appropriate unit is given greater
weight than would be the case if the unit was inherently in-
appropriate. See NLRB v. Cardox, 699 F.2d 148 (3d Cir.
1983).
B. Respondent’s Failure to Unconditionally Turn Over
1990 Christmas Bonus Data for Unit Employees
Violated Section 8(a)(1) and (5) of the Act
Compensation for employees in the editorial department is
a total of the following: minimum salary and merit pay cov-
ered in article III of the contract, individually bargained pay
covered in article XIII, and a Christmas bonus, which some
employees in the unit receive and some do not, but which
has been historically given but is not mentioned at all in the
collective-bargaining agreement.
Article IV of the contract provides, in pertinent part, as
follows:
The Publisher shall supply the Guild, on request, but
not more than once a year, with a list containing the
following information for all employees covered by this
Agreement:
(a) Names, address, sex, social security number and
date of birth.
(b) Date of hiring.
(c) Classification.
(d) Experience rating and experience anniversary
date.
(e) Salary
It is clear that the Union, by contract, is entitled to receive
names and salary information of employees in the unit.
On December 18, 1990, the Union requested that it be fur-
nished with the names of unit employees who received
Christmas bonuses in 1990 and the amounts of the bonuses.
Respondent said it would furnish the information.
At the next meeting on February 28, 1991, the Union re-
newed its request. Respondent admits that at this meeting it
had in its possession the names of the 10 to 15 unit employ-
ees who received Christmas bonuses in 1990 and the amount
they received but would turn the information over to the
Union only if the Union gave a pledge of confidentiality that
the information would be made known only to the members
of the union negotiating committee, which consisted of 5
people, i.e., 1 representative of the International and 4 Local
16 officials.
The Union filed an unfair labor practice charge on March
4, 1991, over this matter and the complaint issued on March
29, 1991. At a subsequent negotiating session in May 1991
Respondent told the Union that the pledge of confidentiality
could be expanded to include the Union’s lawyer, and at the
hearing before me Respondent suggested it might turn over
the information with the names deleted but a notation as to
whether or not the individual recipient of a Christmas bonus
in 1990 was or was not a member of the Union.
Respondent’s conditioning its release of information re-
garding which unit employees received a 1990 Christmas
bonus and how much, was an unfair labor practice in viola-
tion of Section 8(a)(1) and (5) of the Act.
A Union is entitled upon request to information which is
necessary for and relevant to its collective-bargaining obliga-
tions. See NLRB v. Acme Industrial Co., 385 U.S. 432
(1967). Information regarding wages or compensation is pre-
sumptively relevant and must be provided to a union upon
1298 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.
request. Sandpiper Convalescent Center, 279 NLRB 1129
(1986); Michigan Rent-To-Own, 286 NLRB 1415 (1987).
Claiming confidentiality with regard to compensation of unit
employees is not an excuse for refusing to provide such in-
formation. Alle Arecibo Corp., 264 NLRB 1267, 1274
(1982). In fact, the Board has specifically rejected an em-
ployer’s argument of confidentiality where the employer was
in the newspaper business as is the Respondent in the instant
case. See Detroit News, 270 NLRB 380 (1984), enfd. 759
F.2d 959 (D.C. Cir. 1985).
Respondent’s reliance on Detroit Edison Co. v. NLRB, 440
U.S. 301 (1979), for authority to condition the release of
wage data is misplaced. The data in the Detroit Edison Co.
case concerned psychological tests given to its employees by
psychologists in order to screen applications for certain posi-
tions, and the tests had been given with the express proviso
that the results would be kept strictly confidential and the re-
sults were not even made available to the management of the
Detroit Edison Company. The data sought by the Union in
the Detroit Edison Co. case was inherently sensitive and
vastly different from the data sought in the instant case.
The Union wanted data on which unit employees received
Christmas bonuses in 1990 and how much they received for
a variety of reasons. The Union was in negotiations for a
new contract which would include salary proposals and
knowledge as to the amount of money available for Christ-
mas bonuses might persuade the Union to try for a higher
percentage increase across the board than the 1.7 percent
proposed by Respondent. In addition, depending on the num-
ber of persons receiving Christmas bonuses, possibly the
issue of Christmas bonuses should be specifically addressed
in the contract.
Article XIII, section 5, of the contract provides, as fol-
lows:
No employee shall be discriminated against in regard to
hire, dismissal or otherwise because of his membership,
or activities in the Guild, or because of age, sex, race,
creed, color, national origin, marital or parental status.
[Emphasis added.]
It is clear that without knowledge of exactly who received
Christmas bonuses and how much, it will be difficult indeed
to police this section of the contract.
In short, it is obvious that the data requested was relevant
to and necessary for the Union to carry out its collective-bar-
gaining responsibilities.
Respondent refused to turn over the 1990 Christmas bonus
data unconditionally on the grounds that in the past the
Union posted on a union bulletin board the merit pay re-
ceived by unit employees and a number of employees were
annoyed that data on their merit pay was posted on the union
bulletin board at the newspaper where newspaper employees
and visitors to the newsroom could see it. The Union, in the
instant case, told Respondent it had no plans to post the 1990
Christmas bonus data on the bulletin board. In addition, the
Union in the past received data on the emission of potentially
dangerous electromagnetic rays from video display terminals
(VDT) and to the annoyance and surprise of Respondent the
Union released this information to a publication called VDT
News, which is a VDT health and safety report publication.
The fact is the data sought in this case is not sensitive in
nature and clearly is needed by the Union and the Union
should not be put in a straitjacket regarding its use of the
data.
It is, of course, somewhat ironic that a publisher of news-
papers which routinely publishes the salaries of all sorts of
persons in public and private life will not disclose, without
condition, the Christmas bonuses of its unit employees to the
Union which represents them.
CONCLUSIONS OF LAW
1. The Patriot-News Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Local 16, the Newspaper Guild, is a labor organization
within the meaning of Section 2(5) the Act.
3. By refusing to bargain collectively with the Union by
refusing to furnish without condition to the Union the names
of unit employees who received Christmas bonuses in 1990
and the amounts of the bonuses, the Respondent has violated
Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, The Patriot-News Company, Harrisburg,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to furnish the Union with the
names of unit employees who received Christmas bonuses in
1990 and the amounts of the bonuses.
(b) Failing and refusing to bargain collectively within the
Union as the exclusive representative of the employees in the
bargaining unit in the editorial department.
(c) 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) Furnish to the Union without condition the requested
information concerning the names of unit employees who re-
ceived Christmas bonuses in 1990 and the amounts of the
bonuses.
1299PATRIOT-NEWS CO.
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.’’
(b) Post at its facility in Harrisburg, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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, defaced, 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.
WE WILL NOT fail or refuse to furnish without condition
to the Union the names of unit employees who received
Christmas bonuses in 1990 and he amounts of the bonuses.
WE WILL NOT fail or refuse to bargain collectively with
the Union as the exclusive representative of the employees
in the bargaining unit in the editorial department.
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 furnish to the Union without condition the re-
quested information concerning the names of unit employees
who received Christmas bonuses in 1990 and the amounts of
the bonuses.
THE PATRIOT-NEWS COMPANY