Post Publishing Co.

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD POST PUBLISHING COMPANY and NEWSPAPER GUILD OF BOSTON, LOCAL 32, AMERICAN NEWSPAPER GUILD, C. I. O. Case No. 1-CA-1099. January 27,1953 Decision and Order On September 12,1952, Trial Examiner W. Gerard Ryan issued his Intermediate Report 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 copy of the Intermediate Report attached hereto. Thereafter, the Respondent. filed exceptions to the Intermediate Report and a supporting brief. The request of the Respondent for oral argument is hereby denied, as the record, including the brief and the exceptions, adequately pre- sents the issues and positions of the parties. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.2 Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Post Publishing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with the Union as the exclusive representative of the employees in the follow- ing appropriate unit by refusing to furnish to the Union information as to the names, work classifications, dates of employment, and salaries of all employees in the following unit : All employees in the editorial department in the Washington Street plant, exclusive of the executives and all supervisors as defined in Section 2 (11) of the Act. 2. Take the following affirmative action, which we find will effec- tuate the policies of the Act : (a) Upon request furnish to the Union wage data concerning names,. 3 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Styles and Peterson]. a Contrary to the Trial Examiner , we find that the initial refusal of the Respondent to furnish salary information occurred on January 21, 1952, and not, as found by the Examiner, on December 11, 1951. 102 NLRB No. 77. I POST PUBLISHING COMPANY 649 work classifications, dates of employment, and salaries of all employees in said unit. (b) Post at its plant at Boston, Massachusetts, copies of the notice attached to the Intermediate Report and marked "Appendix A." a Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being signed by the Respondent's repre- sentative, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps Respond- ent has taken to comply herewith. a This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed by Newspaper Guild of Boston, Local 32, American Newspaper Guild, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the First Region (Boston, Massa- chusetts), issued the complaint herein dated March 18, 1952, against Post Publishing Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, herein referred to as the Act. Copies of the complaint, the charge, and a notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent, on and after December 15, 1951, refused to furnish the Union with certain wage information requested by the Union for its use and assistance in connection with collective-bargaining negotiations. In its answer, the Respondent admitted certain allegations of the complaint, denied the com- mission of any unfair labor practices, and, further answering, alleged that the information requested by the Union is superfluous and unnecessary ; that many employees in the unit refuse to permit the Respondent to divulge the information requested by the Union ; that if the information is divulged it will result in creating jealousy among the employees and will tend to have a harmful effect upon the morale of the employees in the unit from which a chaotic condition may occur ; and that the information requested is not only unnecessary for the Union to bargain successfully but is solely designed to annoy and harass the Respondent. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held before me at Boston, Massachusetts, on April 16, 1952. The General Counsel, the Respondent, and the Union participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the hearing, a motion by the General Counsel to conform the pleadings to the proof for the purpose of correcting names, dates, and other matters not involving the issues of the case, was granted without objection. At the conclusion of the evidence, the General Counsel and the Respondent partici- pated in oral argument. Only the Respondent has filed a brief.' Upon the entire record in the case, and from my observation of the witnesses,. I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Post Publishing Company at all times herein mentioned is and has been a corporation organized under and existing by virtue of the laws of the Common- wealth of Massachusetts, maintaining its principal office and place of business at 259 Washington Street, Boston, Massachusetts, hereinafter called the Wash- ington Street plant, where it has been and now is continuously engaged in the printing, publication, sale, and distribution of two newspapers which are dis- tributed primarily throughout the New England States.2 In the course and, conduct of its business, the Respondent caused and continuously has caused large quantities of newsprint, mats, ink, and other items used by it in printing, publication, sale, and delivery of newspapers to be purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts, and causes and continuously has caused at all times herein mentioned, substantial quantities of newspapers to be sold and transported from said plant in interstate commerce to States of the United States other than the Commonwealth of Massachusetts. Its pur- chases of newsprint, ink, mats, and other items approximate in value $500,000, annually. The Respondent concedes and I find that it is engaged in commerce- within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Newspaper Guild of Boston, Local 32, American Newspaper Guild, C. I. 0., is a labor organization admitting to membership employees of the Respondent- 1111. THE UNFAIR LABOR PRACTICES A. The appropriate unit The complaint alleges, the answer admits, and I find that all employees of the editorial department of the Respondent employed at its Washington Street 'Accompanying its brief was a letter, addressed to the Trial Examiner from counsel for the Respondent, stating that a new contract between the Union and the Respondent had been executed on April 17, 1952; and requesting, if it be necessary, that the hearing be reopened to permit the introduction of evidence to this effect . For reasons appearing en/ra, it is unnecessary to reopen the hearing to introduce evidence that the parties have negotiated a new agreement. 2 The Boston Post published daily except Sunday having a daily circulation of approxi- mately 300,000 copies ; and Boston Sunday Post published each Sunday with a circulation of approximately 270,000 copies. The Respondent utilizes the services of the Associated Press and has syndicated columns, comic strips, etc. POST PUBLISHING COMPANY 651 plant, exclusive of the executives and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. B. The majority and representation by the Union of employees in the unit The complaint alleges, the answer admits, and I find that on or about October 16, 1946, a majority of the employees of the Respondent in the unit aforesaid designated or selected the Union as their representative for the purposes of collective bargaining with the Respondent, and that at all times since the Union has been the representative, for the purposes of collective bargaining, of a majority of the employees in said unit and, by virtue of Section 9 (a) of the Act, has been and now is the exclusive representative of all the employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. C. Introduction and background There are approximately 140 employees in the aforesaid unit of which 70 percent are members of the Union. The Respondent does not deduct union dues. There are approximately 30 work classifications in the unit and approxi- mately 80 percent of the employees receive salaries in excess of the minimum provided in the contract. From July 15, 1950, to December 31, 1951, the Respond- ent and the Union had in effect a collective-bargaining agreement wherein it was provided for minimum starting pay for the various classifications with yearly step-rate increases for the first, second, third, fourth, and fifth year. It was further provided in the contract that : Nothing in this agreement shall prevent employees from bargaining indi- vidually or through the Guild for pay increases in excess of the minimum rates established herein. The first bargaining session was held on December 11, 1950. The second meeting was held on January 21, 1952, and thereafter until a new contract for the year 1952 was executed on April 17, 1952' D. The refusal to bargain The complaint alleged that the Respondent by its refusal to furnish informa- tion requested by the Union as to the names, work classifications, dates of employment, and salaries of all employees in the unit for the use and assistance of the Union in connection with collective bargaining negotiations with the Re- spondent in respect to rates of pay, wages, hours of employment, or other condi- tions of employment thereby violated Section 8 (a) (5) and (1) of the Act. The answer admitted that request for payroll data was made as alleged in the complaint but denied that the purpose therefor was to assist the Union in connection with collective-bargaining negotiations. The answer further pleaded that the information requested by the Union is superfluous and un- necessary ; that many employees in the unit refuse to permit the Respondent to divulge the information requested by the Union ; that if the information is divulged it will result in creating jealousy among the employees in the unit and will tend to have a harmful effect upon the morale of the employees in the unit and that a chaotic condition may occur as a result; that since any employee 3 At the hearing on April 16, 1952, it was not disputed that a new contract had been arrived at which was expected to be signed the day following. I have since been advised that the new contract was executed on April 17, 1952. See footnote 1, supra. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the unit is free to negotiate with the Respondent for a merit increase, the information requested by the Union is unnecessary and the request is designed solely to annoy and harass the Respondent. In a letter dated November 23, 1951, the Union enclosed its proposals for a new contract and requested information from the Respondent for use at the bargaining table as to the names, classifications, dates of birth, dates of em- ployment, sex, and weekly salaries of the employees in the unit' The Re- spondent refused to furnish any of the requested information to the Union. John C. Cort, executive secretary of the Union, testified that the first bargain- ing conference for a new contract was held on December 11, 1951, at which time the Union pressed its request for the information sought and the Respondent asked for time to consider the request; that the next bargaining session was held on January 21, 1952, but during the first or second week in January, Chester C. Gray on behalf of the Respondent notified him that the Respondent had decided not to furnish the information. Cort testified that the Union seeks the wage information in order to know the names of those who are in the unit, and how many employees are in each classification. He testified further that the Union requires the dates of employment on questions of seniority and further because the minimum rates in the contract are graded on step-rate increases for the first 5 years of employment. Cort testified such information is necessary in order to argue intelligently on wage rates and for comparison with the rates paid by other newspapers in the area; that based on comparisons of contract provisions the Union claimed that the Respondent was paying less than other Boston papers ; and that the information was needed for bargaining on minimum rates. He continued to testify that the Union needed the information in order to bargain on merit increases ; that the Respondent has furnished no information at any time and that the Respondent has never notified the Union when a new employee is hired, when step-rate increases are given, or how many employees get above the minimum rates, or how much above the minimum rates they re- ceive. On cross-examination he admitted that on the occasions when bargaining for merit increases had occurred, he had no difficulty in finding out from the employee concerned how much salary he was receiving. He testified further that the Union has made no attempt to obtain the requested information from its members in the unit ; that the Union had previously negotiated four collective bargaining agreements with the Respondent, all of which had provided for minimum rates with yearly step-rate increases for the first 5 years which had been negotiated without the information now requested by the Union, although the Union had previously requested it. He further admitted that he has received from members in the unit most of the information concerning names and classi- fications ; and although "pretty well satisfied on the classifications" is not ' The pertinent parts of the letter read : I enclose five copies of the Guild proposals for a new contract. To these we would like to make the following correction : Add following sentence to Section I, Art . VI: "The step-rates shall be revised so that they bear the same relation to the proposed new top minimums as they bear to the top minimums in the present contract , except as provided above and hereinafter. . . . At the instruction of the international union and by unanimous vote of the Post unit membership and local executive committee the Guild is also asking the Post for complete payroll information so that we will know what are our rights under Wage Stabilization and so that we will be able to bargain intelligently on wages and pen- sions. Such information would include names, classifications , date of birth, date of employment, sex and weekly salary. We would appreciate receiving this information at your earliest convenience so that we will be able to use it at the bargaining table... . POST PUBLISHING COMPANY 653 "completely satisfied." He testified further that the new contract then about to be signed provides, in one or more classifications, for higher pay than is being paid by some Boston papers. Cort continued that the Union has no knowledge generally of merit increases given to employees in the unit nor how much above the minimum rates is paid to employees after 5 years' service ; that the Union has no way of knowing, apart from asking individual employees, whether the Respondent is paying the contractual rates. He conceded that the Union at this time does not contend that the Respondent has paid less than the minima. Chester C. Gray testified, on behalf of the Respondent, that since 1946 he has been the chief negotiator for the Respondent and has signed four contracts on behalf of the Respondent with the Union. He testified that the Respondent has never furnished to the Union the information now requested although such requests had been made previously ; that there never has been any difficulty with the Union in negotiating contracts or merit increases ; ` that 80 percent of the employees have been employed over 6 or 7 years ; that 80 percent of the em- ployees are paid above the minimum ; that in the unit are photographers and reporters who are paid substantially in excess of the minimum. On cross- examination he testified that very few employees are hired above the minimum although exceptions have been made in cases of experienced reporters. He admitted that the Respondent has given to the Union no information whatsoever concerning the Respondent's employees and that the position of the Respondent is that it should not give any of the requested information to the Union. Concluding Findings There is no dispute as to the material facts in this case. The reasons and arguments advanced by the Respondent in its answer and brief to justify its refusal to furnish the information are in substance that the information was not sought in order to assist the Union in connection with col- lective-bargaining agreements ; that it is superfluous and unnecessary ; that many employees in the unit have refused to permit the Respondent to divulge the in- formation ; that if it be divulged, jealousy will result among the employees, thereby affecting their morale and chaotic conditions may result ; and that since the information is unnecessary for bargaining on merit increases, the request therefor has been made only to harass and annoy the Respondent. The Re- spondent's brief further argues that the Union has not established that this in- formation would assist it or that its negotiations for contracts have been in any way impeded by the lack of the information ; that since the contracts negotiated provide only for minimum salaries, the amount in excess thereof can be of no concern nor interest to the Union ; that no reason has been given by the Union to "police" the contract and there is no necessity for the Union to be furnished the information to enable it to negotiate for merit increases. The Union requested the information at a time when negotiations were about to be scheduled for a new contract to replace the contract expiring on December 31, 1951. It is well established that salary information concerning employees in the unit is relevant to minimum rates and merit increases ; ° and is certainly i He can recall only one merit increase negotiated by the Union. 6Yawman d Erbe Manufacturing Company, 89 NLRB 881, enfd. 187 F. 2d 94T ( C. A. 2), where the Board held that the going rate is a factor to be considered by a union in deter- mining whether or not to press or eliminate its demand for a general wage increase ; that current salaries are directly related to the demand for a minimum , and without such information there 1s no basis for determining to what extent , if any, the minimum wage would affect any employees in the unit. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary for the negotiation of future contracts! The Union's request for information concerning the names, work classifications, dates of employment, and salaries of all employees in the unit is clearly relevant under Board and court decisions.' The record shows that the Union and the Respondent bargained for individual pay increases above the minima set forth in the contract. The fact, emphasized by the Respondent, that the Union inquired from and was told by the employee concerned the amount of his salary does not show the demand for salary information in merit bargaining was unnecessary. Even with knowledge of the individual's own salary for whom an increase was sought the Union was ,not able to compare it with the actual salaries of other employees whose salary information was withheld. Bargaining for merit increases, in addition to the bargaining during the first 5 years of employment between the automatic step- rate increases, became particularly important for those employees employed more than 5 years, for the contract did not provide minimum rates nor step- rate increases beyond the fifth year and there salary information was especially needed for comparisons. Since the salary information does not plainly appear to be irrelevant, it must be disclosed .9 I find no merit to the Respondent's con- tention that some employees in the unit have refused to permit it to divulge information and that, if it be divulged, jealousy, impaired morale, and chaotic conditions among the employees may result. An employer may not refuse to supply salary information upon the claim that such information is confidential to the employees in the unit." That jealousy, impaired morale, and chaos may result is too speculative to be considered. Nor is there merit to the contention that the Union did not try to obtain all the information from its members (who constituted only 70 percent of those in the unit) because it was the Respondent's responsibility to furnish the information; it cannot urge that the Union seek, or supplement it, from other sources. Similar contentions have been raised and rejected." Neither the execution of previous contracts or the new contract demonstrates that the requested information was unnecessary, nor does it render moot the desired salary information 12 The refusal of the Respondent to furnish the actual wage information de- prived the Union of an opportunity to explore its claim that the Respondent was paying lower salaries than other papers in the area. I find that the names, work classification, dates of employment, and salaries of the employees in the unit were needed by the Union to enable it intelligently to represent the em- ployees. Upon consideration of the entire record, I conclude and find 7 E W Scripps Company, 94 NLRB 227. 8 The Hughes Tool Company, 100 NLRB 208; N. L. R. B. v. Yawman & Erbe Manu- facturing Company, supra ; N. L. R. B. v. Union Manufacturing Company, 179 F. 2d 511 (C A. 5) ; Aluminum Ore Co. v N. L. R. B., 131 F. 2d 485 (C. A. 7) ; Leland-Gifford Company, 95 NLRB 1306; and General Controls Co., 88 NLRB 1341. 9N. L. R. B. v. Yawman & Erbe Manufacturing Company, supra, where the court also said " . Indeed we find it difficult to conceive a case in which current or immediately past wage rates would not be relevant during negotiations for a minimum wage scale or increased wages (cases cited) " 1O See particularly the discussion of the point in The Electric Auto-Late Company, 89 NLRB 1192, 1198-1199; and Aluminum Ore Company v. N. L. R. B., supra. "Aluminum Ore Company, supra; The Electric Auto-Lite Company, supra; and J. if. Allison Company, 70 NLRB 377, enfd. 165 F. 2d 766 (C. A. 6) cert. den 335 U. S 814. 12 See, N. L it. B. v. Yawman & Erbe Manufacturing Company, supra, where the court said at page 949: "Nor is our determination that the information was relevant affected by the subsequent execution of a contract without disclosure. The most that can be in- ferred from the Union 's action is that the advantages of a contract in hand outweigh those which the Union might later obtain when all relevant information would be available to it " Also, E. W. Scripps Company, supra. POST PUBLISHING COMPANY 655 that the Respondent by refusing on and after December 11, 1951, to furnish in- formation requested by the Union concerning names, work classifications, dates of employment, and salaries of all employees in the unit has refused to bargain with the Union as the exclusive representative of its employees in an appropriate unit and has thereby engaged in unfair labor practices within the meaning of Sec- tion 8 ( a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, I shall recommend that the Respondent cease and desist therefrom and take certain affirmative action which I find will effectuate the policies of the Act. Because of the limited scope of the Respondent's refusal to bargain, and because of the amicable relations of the parties since 1946, and also because of the ab- sence of any indication that danger of other unfair labor practices is to be an- ticipated from the Respondent's conduct in the past, I shall not recommend that the Respondent cease and desist from the commission of other unfair labor prac- tices. On the basis of the above findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. All employees of the editorial department of the Respondent employed at its Washington Street plant, exclusive of the executives and all supervisors as de- fined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Since on or about the year 1946, the Union has been and now is the exclusive representative of all the employees in the aforesaid unit for the purposes of col- lective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing at all times since December 11, 1951, to furnish the Union with information as to names, work classifications, dates of employment, and salaries of all employees in the said unit, the Respondent has failed and re- fused to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE To ALL EMPLor s Pursuant to the recommendations 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 employees that : WE WILL, upon request, furnish to the NEWSPAPER GUILD OF BOSTON, LOCAL 32, AMERICAN NEWSPAPER Guu , C. I. 0., wage data concerning the names, work classifications , dates of employment, and salaries of all employees in the appropriate unit. The bargaining unit is : All employees in the editorial department in the Washington Street plant, exclusive of the executives and all supervisors as defined in Section 2 (11) of the Act. POST PUBLISHING COMPANY, Employer. By-------------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. DEPENDABLE WHOLESALE COMPANY, INC., and GENERAL TEAMSTERS, WAREHOUSEMEN & HELPERS UNION, LOCAL No. 483, A. F. L. Case No. 19-CA-613. January 27, 1953 Decision and Order On June 20, 1952, Trial Examiner David F. Doyle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent, Dependable Wholesale Company, Inc., 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 copy of the Intermediate Report attached hereto. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Herzog and Members Murdock and Peterson]. 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 Interme- i Certain documents in the record, apparently in error, refer to the Respondent as "Dependable Wholesale Grocery Company , Inc." The Respondent's name as given in the title hereof is that appearing on all procedural documents in the record. 102 NLRB No. 64.