Northwest Publications, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northwest Publications, Inc. and San Jose Newspaper Guild Local 98, American Newspaper Guild, AFL-CIO. Case 20-CA-8539 exhibits, the briefs, and the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT June 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed August 23, 1973, by San Jose Newspaper Guild Local 98, American Newspaper Guild, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint dated October 17, 1973, against Respondent, Northwest Publications, Inc. Copies of the charge, complaint, and notice of hearing were served on Respondent. The complaint alleged that Respondent had en- gaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. The complaint alleged in substance that on June 8, 1973, and thereafter, Respondent refused to bargain with the Union in that it refused to furnish to it requested payroll data for 29 individuals covered by the parties' collective-bar- gaining agreement , assertedly because these individu- als were supervisors as defined in the Act. On February 4, 1974, the parties executed a stipulation of facts in the case. On the same date the parties also executed a motion to transfer proceeding to the Board in which they waived a hearing before an Administrative Law Judge and the issuance by him of an Administrative Law Judge's Decision and recommended Order and agreed to submit the case to the Board for findings of fact, conclusions of law, and Order, based on a record consisting of the stipulation of facts and the attached exhibits. On February 11, 1974, the Board granted the parties' motion, approved the stipulation, and ordered the proceeding transferred to the Board. Thereafter all parties filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the basis of the stipulation, including i The collective-bargaining agreement excludes from the unit these specifically named positions: General Manager, Assistant to the Publisher, Executive Editor, Managing Editors, Sunday and Feature Editor, Advertising Director, Advertising Manager, Local Retail Advertising Manager, Public Relations and Promotion Director , National Advertising Manager, I. THE BUSINESS OF THE EMPLOYER Respondent, Northwest Publications, Inc., is a Delaware corporation engaged in the publication of two newspapers in San Jose, California. During the past calendar year, Respondent, in the course and conduct of its business operations, held membership in or subscribed to interstate news services, published nationally syndicated features, advertised nationally sold products, and derived gross revenues from its publishing operations in excess of $200,000. We find that Respondent is, and at all material times has been, an employer within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED San Jose Newspaper Guild Local 98, American Newspaper Guild, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The parties' stipulation shows these facts: The Union is, and has been for many years, the exclusive bargaining representative of a unit of employees at Respondent's place of business. The Union and Respondent, or its predecessor, have been parties to collective-bargaining agreements since 1937. The most recent agreement between the Union and Respondent was effective from November 2, 1970, to December 31, 1973. Since 1966 the unit described in the collective-bargaining agreement has read: "All editorial, business and janitorial depart- ment employees . . . including advertising, business office, inside circulation, telephone operators, [and] clerical employees," excluding a listing of specific executive, management, and confidential positions.) On March 7, 1973, the Union wrote to Respondent requesting "certain payroll information that the Guild will need for the purpose of formulating wage and other proposals." Specifically, the Union re- quested Respondent to furnish to it, by May 1, 1973, the following information for each employee covered by the Guild contract: Classified Advertising Manager, Copy Service Manager, Advertising Plans Manager, Dispatch Department Manager, Business Manager, Controller, Credit Manager, Chief Accountant, Internal Auditor, Circulation Director and Managers, Data Processing Manager, Assistant Data Processing Manager, Confidential Secretaries, limited to six to the Publisher and Executives.... 211 NLRB No. 57 NORTHWEST PUBLICATIONS, INC. 465 1. Name, department, job title. 2. Date of hire. 3. Classification. 4. Experience rating and experi- ence anniversary date. 5. Regular weekly salary (if part-time, average weekly gross), including the precise formula for any commission or bonus arrangements, or other forms of compensation. On June 8, 1973, Respondent refused to supply the requested payroll data for 29 individuals covered by the then current collective-bargaining contract on the ground that these individuals were supervisors within the meaning of the Act. On July 10, 1973, the Union wrote to Respondent requesting additional informa- tion on the 29 individuals who, Respondent had asserted, were supervisors.2 On July 19, 1973, Respondent notified the Union that it would not supply the additional information that the Union had requested. Respondent has supplied the Union with all requested information other than that which pertains to the 29 individuals who are the subject of this proceeding. The parties have agreed that a Board determina- tion as to Respondent's obligation to supply payroll information to the Union with respect to Louis Duino shall govern Respondent's obligation with respect to the other 28 individuals about whom the Union seeks information. They agree to facts which show that Duino, classified as Executive Sports Editor, is a supervisor. He has authority to hire and fire, to make work assignments, and to discipline employees. He performs a substantial amount of bargaining unit work in that he covers various newsworthy events and writes stories about them. The General Counsel in his complaint alleged that Respondent refused to bargain collectively with the Union in violation of Section 8(a)(5) of the Act in that since about June 8, 1973, and thereafter it has refused to furnish to the Union relevant and necessary information regarding certain employees who are covered by the parties' collective-bargaining agreement. The parties have stipulated that Respon- dent refused to supply such payroll data for 29 individuals covered by the then current collective- bargaining agreement on the ground that these individuals assertedly were supervisors within the meaning of the Act. The Employer contends in its brief that, as it is under no duty to bargain with respect to supervisors, it has no duty to furnish 2 The additional information requested pertained to the proportion of bargaining unit and supervisory work performed by these individuals, as well as by those individuals specifically excluded in the current collective- bargaining contract ; the salaries received by both groups, and the proportion thereof attributable to the performance of bargaining unit work as distinguished from purely supervisory or executive work; and the number of overtime hours required for the performance of bargaining unit work by individuals exempt from the hours provision of the contract. information concerning them. It argues that such information would not be relevant to any statutorily required collective-bargaining negotiations. The sole issue is whether Respondent was hinder a duty to furnish the Union with payroll information as to individuals within the bargaining unit, although supervisors, which the Union asserts is needed to formulate wage and other proposals in connection with new contract negotiations. We hold that it was. It is clear from Respondent's letters to the Union that Respondent and Union have been engaged in a continuing controversy over inclusions in the collec- tive-bargaining unit. The dispute over wage data relating to 29 individuals included in the current collective-bargaining agreement arose in early 1973 preliminary to negotiations for a new agreement. In its June 8, 1973, letter to the Union, Respondent stated that these positions should be excluded from the bargaining unit, reminded the Union that it had twice filed petitions with the Board to exclude them, and asserted that it intended to file another at an appropriate time. We note that, in the past, despite the continuing controversy, the parties continued to include these supervisors in the unit.3 The Board has held, with court approval, that wage and related information pertaining to employees in the bargaining unit is presumptively relevant.4 This is because the Union is charged with the statutory duty of representing the employees in the bargaining unit. That duty includes formulating wage and other proposals in connection with contract negotiations and policing the administration of a contract. Information of the type requested is necessary to carry out the union's duty. "Refusal by an employer to supply such necessary information makes impossi- ble the full development of the collective-bargaining negotiations which the Act is intended to achieve. It therefore constitutes a violation of Section 8(a)(5)."5 Respondent argues that, because bargaining with respect to supervisors is not mandatory, it is not required to divulge information with respect to such employees. The words of the Court of Appeals for the Third Circuit, in the Curtiss-Wright case, supra, are pertinent here. The court, enforcing the Board's Order, rejected a like argument with respect to information about administrative employees, a cate- gory excluded from the parties' collective-bargaining contract unit. The court in the Curtiss-Wright case said: 3 Northwest Publications, Inc. d/b/a San Jose Mercury and San Jose News, 197 NLRB 213 and 200 NLRB 105 4 Cowles Communications, Inc, 172 NLRB 1909, Curtiss- Wright Corpora- tion, Wright Aeronautical Division, 145 NLRB 152, 156-157, enfd 347 F.2d 61 (C.A. 3); Boston Herald-Traveler Corporation, 110 NLRB 2097, enfd 223 F 2d 58 (C.A.I). 5 Whiten Machine Works, 108 NLRB 1537, 1538, enfd. 217 F.2d 593, 594 (C.A. 4). 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While it is true, as the Employer contends, that bargaining as to employees classified as adminis- trative is not mandatory, for they are not in the bargaining unit, it does not follow that the Employer is not required to divulge information with respect to such employees. Because such information was shown to be relevant to the determination of the status of employees as unit employees and thus to a mandatory subject of bargaining, the Employer's position is of no merit. [347 F.2d at 70-71.] Recent decisions have reiterated the principles enunciated in the Curtiss-Wright case.6 Apart from the presumptive relevance of informa- tion concerning individuals who have been included in the bargaining unit, the facts demonstrate the relevance of the Union's request. Assuming that, in the future, the parties may exclude the 29 supervisors from the bargaining unit, the information will continue to be necessary to protect the interests of unit employees.7 The Union's immediate and continuing need for information about the supervisors' earnings and method of payment, when examined in the light of the supervisors' work and the Union's duties, is apparent. As stipulated by the parties, supervisors perform a substantial amount of bargaining unit work, as in the case of Executive Sports Editor Duino who covers newsworthy events and writes stories about them. Nonsupervisors perform like work. The Union sought salary information pertain- ing to all in the unit, supervisors and employees alike. The Union, in forthcoming negotiations, is bound to discuss wage and other proposals covering all unit employees. The pay received by supervisors like Duino for performing bargaining unit work and the method of pay-whether commission or bonus, whether based on quality or difficulty, whether allowance is made for expenses or mileage costs -have a direct bearing on the pay of employees and alleged supervisors in all departments represented by the Union. All possible ways in which the information may become important cannot be foreseen in advance of negotiations . A real probability feared by the Union is encroachment on bargaining unit work . The Union expressed this in its letter of July 10, 1973, to Respondent when , in renewing its request, it said that "... each of these employees is presently perform- ing bargaining unit work and that work will continue 6 General Electric Company, 199 NLRB 286; Union Carbide Corporation, 197 NLRB 717, reaffirming as modified 187 NLRB 113 at 117. Respondent argues that the Board has recognized that an employer is under no duty to furnish information regarding supervisors , citing Leland- Gifford Company, 95 NLRB 1306, enfd. and remanded 200 F.2d 620 (C.A. 1). The Board did not have that issue before it in Leland-Gifford It decided to be performed by someone regardless of what you choose to do about filing a petition [to the NLRB] and regardless of what the NLRB decides." We find herein that, because the 29 supervisors are in the unit, the information requested by the Union concerning them is presumptively relevant. We also find that, were the supervisors outside the unit, the relevance of information about them has been shown. Accordingly, we further find that Respon- dent's refusal to supply the information violated Section 8(a)(5) and (1) of the Act. IV. THE REMEDY Having found that by the aforementioned conduct Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist from engaging in such conduct in the future and take certain affirmative action designed to effectuate the policies of the Act. As we have found that Respondent refused to give to the Union relevant information which it requested for purposes of enabling it to prepare itself for future negotiations, we shall order that Respondent furnish the Union with the information requested concerning the disputed individuals and positions. CONCLUSIONS OF LAW 1. Northwest Publications, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. San Jose Newspaper Guild Local 98, American Newspaper Guild, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein the Union has been the exclusive representative of the employees in the following described unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act: All editorial, business and janitorial depart- ment employees employed by Respondent at its San Jose Mercury and San Jose News facility at San Jose, California, including advertising, busi- ness office, inside circulation, telephone opera- tors, clerical employees, but excluding temporary employees and the following positions: General Manager, Assistant to the Publisher, Executive Editor, Managing Editors, Sunday and Feature Editor, Advertising Director, Advertising Manag- er, Local Retail Advertising Manager, Public only that there was a duty to furnish information to all unit employees, none of whom was a supervisor. r See General Electric Company, supra; Union Carbide Corporation, supra; Goodyear Aerospace Corporation, 157 NLRB 4%, 503, enfd. 388 F.2d 673 (C.A. 6, 1968); Curtiss-Wright Corporation, supra. NORTHWEST PUBLICATIONS, INC. Relations and Promotion Director, National Advertising Manager, Classified Advertising Manager, Copy Service Manager, Advertising Plans Manager, Dispatch Department Manager, Business Manager, Controller , Credit Manager, Chief Accountant, Internal Auditor, Circulation Director and Managers, Data Processing Manag- er, Assistant Data Processing Manager, and Confidential Secretaries , limited to six to the Publisher and Executives. 4. By failing and refusing to provide the Union with certain requested payroll information with respect to individuals asserted to be supervisors included in the parties ' current collective-bargaining contract unit, Respondent has refused to bargain collectively with the exclusive bargaining representa tive of its employees in the above -described unit, thereby violating Section 8 (a)(5) and (1) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Northwest Publications, Inc., San Jose, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with San Jose Newspaper Guild Local 98, American Newspaper Guild, AFL-CIO, by refusing to furnish the said labor organization with information it has requested with respect to name, department, job title, date of hire, classification, experience rating and experience anniversary date, regular weekly salary, including commission or bonus payments for asserted supervi- sors who are included in the parties' collective- bargaining contract unit, the proportion of bargain- ing unit and supervisory work performed by these individuals, and the proportion of salary received by them attributable to the performance of bargaining unit work. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- " In the event that 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." 467 tion as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with San Jose Newspaper Guild Local 98, American Newspa- per Guild, AFL-CIO, by furnishing the said labor organization with the information it requested on March 7 and July 10, 1973, concerning supervisors who are included in the parties' collective-bargaining contract unit. (b) Post at its San Jose, California, place of business copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 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 Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN MILLER, dissenting: Parties may, voluntarily, include supervisors in a bargaining unit, even though this Board would not do so.9 But the collective rights of supervisors thus included stem entirely from the agreement of the parties, not from the statute. And there is no statutory duty to bargain about their compensation. Hence, there can be no violation of this Act in failing to perform any duty ancillary to the basic bargaining duty, such as furnishing information as to their pay. Had the Union wanted to impose such a duty, its route was the same route by which it accomplished their contractual coverage-i.e., voluntary agree- ment. I do not know whether any part of the existing agreement can be construed to give rise to an express or implied obligation to provide such information, but that issue is not, and cannot be, before us. This is not the proper forum to decide purely contractual issues. There being no statutory duty or obligation to bargain about, or furnish information as to, the wages of supervisory employees, this complaint 9 Because the parties had so bargained here , we have twice refused to interfere with that voluntary agreement by invoking our unit clarification procedures in such manner as to subvert the parties ' own contractual commitments. Northwest Publications, Inc., 197 NLRB 213 and 200 NLRB 105. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should have been dismissed. For the above reasons, I dissent from the decision of my colleagues. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with San Jose Newspaper Guild Local 98, American Newspaper Guild, AFL-CIO, by fail- ing and refusing to furnish the said labor organization with information it has requested pertaining to supervisors who are included in our 1970-73 collective-bargaining contract unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any and all such activities. WE WILL, upon request, bargain collectively with San Jose Newspaper Guild Local 98, American Newspaper Guild, AFL-CIO, by fur- nishing to the said labororganization the informa- tion requested pertaining to supervisors who are included in our 1970-73 collective-bargaining contract unit. NORTHWEST PUBLICATIONS, INC. (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 compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197.