Radio Station WLOL

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 560 (N.L.R.B. 1970)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BFR Broadcasting Corporation d/b/a Radio Station
WLOL and American Federation of Television &
Radio Artists (AFL-CIO) Twin City Local. Case
18-CA-2755
March 6, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On November 4, 1969, Trial Examiner Bernard J.
Seff issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, together with a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, BFR
Broadcasting Corporation d/b/a Radio Station
WLOL, Minneapolis , Minnesota , its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner ' s Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner: This proceeding,
heard at Minneapolis, Minnesota on September 30, 1969,
pursuant to a charge, first amended charge and second
amended charge filed on March 27, April 16, and June 12,
respectively, and a complaint issued and amended
complaint on June 12 and August 18, 1969, respectively,
presents the question as to whether Respondent, herein
called the Company, violated Section 8(a)(5) and (1) of
the Act by refusing to provide the Charging Party, herein
called AFTRA, with the information concerning the-
precise earnings of the employees in the bargaining unit
covered by a collective-bargaining agreement between the
parties. Upon the entire record, including my observation
of the witnesses, and after due consideration of the briefs
filed by the General Counsel and by the Respondent, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Minnesota corporation engaged in
radio broadcasting in Minneapolis, Minnesota. During the
year ending December 31, 1968, which period is
characteristic of the Respondent's operations, in the
course and conduct of its operations derived a gross
income, in excess of $100,000 a substantial part of which
came from sources located outside the State of
Minnesota. The Company is engaged in interstate
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein , has been
a labor organization within the meaning of Section 2(5) of
the Act
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company and AFTRA have had contractual
relations for more than 20 years The most recent contract
between the parties expired on April 1, 1969.1 Contracts
entered into by AFTRA and the companies with whom
they do business are minimum term contracts by which
wage floors are set forth but not ceilings. It is the
accepted practice in the entertainment industry that
individual artists may negotiate their own salary
arrangements. The only limitation on this freedom of
individual negotiation is that the wage terms ultimately
agreed upon must not be less than the minimum terms set
forth in the collective-bargaining agreement.
B. The facts
The issue raised by the complaint and the answer is
whether the Respondent has, since February 26, failed and
refused to furnish to the Union requested information
concerning precise salaries earned by the members of the
Union who are in the collective bargaining unit. The
Union wrote a letter to the Company on February 26,
which consisted of a submission of Union demands in
preparation for contract negotiations and also requested
that the Company provide the Union with a statement of
earnings for 1968 for all performers employed under the
terms of the collective-bargaining agreement. The
Company and the Union had its first meeting on March
21. The Union was represented by Mr. Hal W Newell
and three of the Union Shop Committee namely Minyard,
Brown, and Ginther. The Company was represented by
Mr. M. L. Bentson , Mr Williams and Mr. McDonald
Newell requested the Company to provide him with the
wage information which had been requested in the letter
'All dates described herein occurred in 1969 unless otherwise stated
181 NLRB No. 77
RADIO STATION WLOL 561
referred to above and in a number of telephone
conversations which Newell had with Mr. McDonald.
Bentson replied he did not have it and would not provide
such information. The Union explained that they required
this information in order to be able to negotiate in an
intelligent manner and further they were faced with a
number of problems which had arisen regarding overtime
hours and work on Saturday, Sunday, and holidays. The
Union's next meeting with Respondent was on April 8 A
request was again made of Bentson to provide the
information regarding precise salaries earned by the
members of the Union and in response to this request
Bentson said he did not have the information and he did
not intend to provide it. The next meeting was on April 15
and once again the Union's request for salary information
was denied. Subsequently, an additional meeting was held
on April 30 at which, in addition to the individuals
described above, a State Conciliator was also present'.
This State Conciliator, Derald Jones, repeated the request
for wage information previously made and reported back
that the Company had no intention of giving the
information Among other things that were discussed at
this meeting the Company contended that they were
presently paying rates of pay equal to if not greater than
other salaries which were comparable to the competition
in Minneapolis. In response to this contention the Union
stated they had to have proof because they wanted to
verify this statement. The Union also needed verification
of overtime pay and pay for holidays and explained that
some of their members had stated that their salaries may
have been above scale but they were based on a 6-day
week.
The executive secretary of the Union, Hal Newell,
testified that the requested information was necessary for
the following reasons-
(1) the Union did not know how the wage rates varied
as between different members especially as there were new
employees since the last contract.
(2) The Union intended to bargain for a new pension
and welfare plan paid for by the Company and required
the wage information in order to determine contributions,
rates, and benefits
(3) In order to process certain grievances filed by
members who had individual contracts since the
grievances were based on what services were in return for
extra wages provided in the individual contracts and which
were entitled to extra pay pursuant to the
collective-bargaining agreement.
(4) Intelligent bargaining required AFTRA to know
how many members would benefit by an increase in the
minimum rate and how much each person would benefit
The Company refused to provide the wage data for a
number of reasons: (a) releasing confidential information
concerning sensitive artists would create a morale problem
detrimental to the operation of the station; (b) individual
wage data is not relevant to the impending negotiations;
(c) this is so because the Union has historically negotiated
only minimum-terms contracts with WLOL and other
members of the broadcasting industry,' (d) AFTRA was
not making its demand in good faith but was seeking to
secure this information in order to check up on its
members to ascertain if they were paying their proper
dues since dues payments were based on a percentage of
the members' earnings, (e) there are only 15 employees in
the bargaining unit and no showing was made that the
information sought was not readily obtainable directly
from the 15 members; (f) the Union waived its right to
secure the information in question because on previous
occasions in the course of negotiating earlier contracts
demands for such information were made by the Union,
they were denied by the Respondent and were
subsequently relinquished by AFTRA, (g) waiver is
further argued by the Respondent on the ground that
when a contract agreed to by the parties only establishes
minimum rates but creates the right in individual
employees to negotiate individual terms in excess of the
minimum rates the Union has in effect bargained away its
right to represent individual employees and thus waived
the right to request information , as to such individual
rates
Respondent sought to further buttress its waiver
argument by pointing to the fact that AFTRA had made
a similar demand on a competing radio station and when
faced with a refusal to provide such information by the
competitor had also relinquished this demand.
C. Concluded findings
The Respondent's duty to furnish the information
requested by the Union flows from the underlying
statutory duty imposed on employers and unions to
bargain in good faith with respect to mandatory subjects
of bargaining. That wages constitute such a subject needs
no citation of authorities. Where, as here, the wage and
related information is requested in connection with the
negotiation of a new contract, the law is clear that
Respondent may not withhold such data and yet fulfill its
obligation to bargain in good faith with respect to this
mandatory subject of bargaining The obligation to
provide information thus resting on the statute, it becomes
irrelevant whether the parties have agreed in the past that
the information be supplied ' The law is clear and
well-settled that "wage and related information pertaining
to employees in the bargaining unit should, upon request,
be made available to the bargaining agent without regard
to its immediate relationship to the negotiation or
administration of the collective-bargaining agreement "'
As such information concerns the core of the
employer-employee relationship, it is presumptively
relevant and "a union is not required to show the precise
relevance of it, unless effective employer rebuttal comes
forth "5 As the Court stated in Yawman & Erbe,° "it
is virtually impossible to tell in advance whether the
requested data will be relevant except in those infrequent
instances in which the inquiry is patently outside the
bargaining issues."
The Board in the case of Cowles Communications, Inc ,
cited supra, stated, inter alia:
Indeed, the Boston Herald-Traveler case, 110 NLRB
2097, is almost identical in all significant respects to the
instant case. There, the Board, with court approval,
'Paragraph 7(a) of the agreement in force at the time the controversy
arose provides in part : " nothing in this contract shall be deemed to
prevent any artist from negotiating for or obtaining better terms than the
minimum terms provided herein "
'Cowles Communications , Inc, 172 NLRB No 204
' Whitin Machine Works, 108 NLRB 1537, 1541, enfd 217 F 2d 593
(C A 4), Boston Herald-Traveler Corporation v N L R B. 223 F 2d 58,
63 (C A 1), enfg 110 NLRB 2097, Curtiss-Wright Corporation, Wright
Aeronautical Division v N L R B, 347 F 2d 61, 68-69 (C A 3), enfg 145
NLRB 152
'Curtiss-Wright Corporation, Wright Aeronautical Division v N L R B.
supra at 69
IN L R B v. Yawman & Erbe Manufacturing Co, 187 F 2d 947, 948
(C A. 2)
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressly rejected the very contentions relied on by
Respondent and our dissenting colleague, inter alia,
that salary disclosure is not essential to the Union, and
that the requested information , linking salaries to
names, is confidential and should not be required
because the disclosure thereof might offend the
sensitivities of some of its employees . The Board and
Court rejected the first contention for the very sound
reason that full disclosure of payroll information might
reveal inequities and other factors in the wage structure
upon which the statutory bargaining representative has
a right and a duty to negotiate . The Board , with Court
approval , noted further that knowledge of full payroll
information would enable the Union to decide whether
to press a demand respecting changes in classifications
or minimum wage scales . The latter was in response to
the Employer ' s argument , which the Board observed
was based on hindsight , that the contract eventually
negotiated between the parties dealt with minimum
wage rates and that the limited information supplied
was adequate to meet the Union' s needs with respect to
that issue... .
As to the contention with respect to the confidential
nature of the requested information , the Board noted
that in other cases involving newspaper employees it
has held that `the argument that some employees may
prefer financial annonymity rests on but a speculative
basis and, in any event , such individual desires must
yield to the interests of the great majority of workers
represented in the unit.'
Further it should be additionally noted that although
wage and salary information may be obtained by the
Union from the employees themselves , this does not
relieve the Respondent from the duty of furnishing the
relevant information to the employees ' bargaining
representative.7
Individual wage information remains completely
relevant where there is a minimum rate contract involved '
Respondent produced no evidence in support of its
contention that the Union 's request for individual wage
information was made in bad faith for the purpose of
policing or enforcing its own dues requirements which are
based on a percentage of its individual members' earnings.
The statement of earnings cards required of its members
by AFTRA requested a statement of total income from
all employers regardless of whether such information was
obtained from radio , television , transcriptions or film
work without reference to which employers provided the
information . The amount of earnings recorded on these
cards is in the form of a lump sum and is not broken
down as to which employers provided what amount. The
information requested from the Respondent was the
amount paid to each employee for services rendered to the
Respondent alone.
Respondent sought to prove its contention that AFTRA
waived its right to secure individual earnings data. The
Company adduced evidence that early in the 1960's the
Union requested such information . The request was denied
and the Union nevertheless signed a collective bargaining
agreement . There was no showing that the information
was requested for the negotiation of the 1965 contract. In
any event a single request and refusal does not constitute
'N L.R B v Northwestern Publishing Company, 343 F 2d 521, 525
(C A 7) Also see Generac Corporation , TXD-502-69 , not yet passed upon
by the Board
'Utica Observer-Dispatch , Inc, I I 1 NLRB 58, enfd . 229 F 2d 575 (C.A.
2)
a waiver. A waiver of a right created by statute to receive
wage information as part of the collective bargaining
process cannot be relinquished by the Union unless it is in
`clear and unmistakable language." The law is clearly
established that a waiver can be effected only when "From
an evaluation of the prior negotiations that the matter was
fully disclosed or consciously explored and the union'
clearly and unmistakably waived its interest in the
matter "10
Respondent also argued in support of its contention
that the Union waived its right to secure individual
earnings records that there is a custom or practice in the
area among employers engaged in the same business as
the Respondent not to disclose this information. The sole
evidence adduced on this point was that one radio station
during contract negotiations with AFTRA had been
requested and refused to provide such information. The
Union consummated this contract without filing a charge
In four negotiations with radio and television stations in
the past two years wage information had been provided as
requested by the Union and refused only by the
Respondent.
The Company advanced the argument that in minimum
terms contracts where the right to negotiate individual
arrangements as to wages had been reserved to the
individuals the Union ousted itself from such negotiations.
As a corollary to this proposition the Union also excluded
itself from securing information as to the wage rates
secured by individual bargaining. No law was cited by the
Respondent to support this unusual contention In fact the
language of Section 9(a) disposes of this argument-
Representatives designated or selected for the purposes
of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall -
be the exclusive representatives of all the employees in
such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or
other conditions of employment . .[Emphasis
supplied.]
Nothing in the past contracts between the parties or in the
negotiations that have taken place contains a suggestion
that the Union was cancelling itself out as the collective
bargaining agent of the employees in the appropriate unit.
The Cowles Communications case, cited supra, is
almost identical with the matter at bar. The only factual
difference is that Cowles involved a larger bargaining unit
and is a magazine instead of a radio station. Each and
every defense raised by the Respondent in the instant case
raised, considered and rejected by the Board in Cowles. In
my opinion the Cowles case is dispositive of the issues
raised by the Respondent. Therefore, on the basis of what
I consider to be controlling precedent and present Board
doctrine, I conclude and find that, as alleged in the
complaint, the Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to furnish to AFTRA, pursuant to,
its request, the information concerning the earnings of the
individuals represented by it.
'Timken Roller Bearing Co v N L R B, 325 F 2d 746, 751 (C A 6)
"The Press Company, Incorporated, 121 NLRB 976, 978 To the same
effect see General Electric Co, 173 NLRB No 22, Clifton Precision
Products Division , 156 NLRB 555, Smith Cabinet Manufacturing
Company, Inc, 147 NLRB 1506; Proctor Manufacturing Corporation, 131
NLRB 1166, 1169
RADIO STATION WLOL 563
IV. THE EFF.ECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The Respondent ' s refusal to furnish the information
requested by AFTRA as set forth in section III, above,
occurring in connection with the Respondent ' s substantial
relation to trade, traffic, and commerce among the several
States, tends to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
thereof, and be maintained for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material
(c) Notify the Regional Director for Region 18, in
writing, within 20 days from the receipt of this Decision
and Recommended Order, what steps the Respondent has
taken to comply herewith.' 2
V. THE REMEDY
Having found that the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, my Recommended Order will direct the
Respondent to cease and desist therefrom and to take
such affirmative action as will effectuate the purposes of
the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following.
CONCLUSIONS OF LAW
1. BFR Broadcasting Corporation, d/b/a Radio
Station WLOL, is an employer within the meaning of
Section 2(2) of the Act.
2 American Federation of Television and Radio
Artists, (AFL-CIO) Twin City Local is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By refusing to furnish to AFTRA, pursuant to its
request, precise information concerning the earnings for
each employee in the bargaining unit the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, I hereby issue the
following:
RECOMMENDED ORDER
BFR Broadcasting Corporation, d/b/a Radio Station
WLOL , its officers , agents, successors , and assigns shall:
1. Cease and-desist from:
(a) Refusing to bargain collectively with American
Federation of Television and Radio Artists (AFL-CIO)
Twin City Local, by refusing to furnish to the said labor
organization precise wage and salary information of each
employee covered by the past collective bargaining
agreements between the Respondent and the Union.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request furnish to American Federation of
Television and Radio Artists (AFL-CIO) Twin City Local
the precise wage and salary information of each employee
in the appropriate bargaining unit and continue to furnish
this information so long as the said labor organization is
the collective bargaining representative of the employees
in the bargaining unit set forth in the contract between the
Company and the Union.
(b) Post at its premises copies of the attached notice
marked "Appendix."" Copies of said notice , on forms
provided by the Regional Director for Region 18, after
being duly signed by a representative of Respondent, shall
be posted by the Respondent immediately upon receipt
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein,
as provided in Section 102 48 of the Rules and Regulations , be adopted by
the Board and become its findings , conclusions , and order, and all
objections thereto shall be waived for all purposes . In the event that the
Board ' s 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 be changed to read "Posted pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
"If this Recommended Order is adopted by the Board , this provision
shall be modified to read "Notify the Regional Director for Region 18, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, we hereby notify our Employeess that:
WE WILL NOT refuse to bargain collectively with
American Federation of Television and Radio Artists
(AFL-CIO) Twin City Local, by refusing to furnish to
AFTRA the names and precise salaries and/or wages
of all the employees in the bargaining unit represented
by AFTRA.
WE WILL, upon request, furnish to American
Federation of Television and Radio Artists (AFL-CIO)
Twin City Local the names, precise salaries and/or
wages earned by each employee in the bargaining unit
represented by the Union as of the nearest payroll
week-ending date to this date and in the future for as
long as the said Labor Organization is the collective
bargaining representative of the employees in the
bargaining unit of the BFR Broadcasting Corporation,
d/b/a•Radio Station WLOL.
BFR BROADCASTING,
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board 's Office,
316 Federal Building, 110 South Fourth • Street,
Minneapolis, Minnesota 55401, Telephone 612-725-2611.