Graphic Communications Local 13 (Oakland Press Co.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 13, Detroit Newspaper Printing and Graphic Communications Union, International Printing and Graphic Communications Union, AFL-CIO and The Oakland Press Co., a Subsidiary of Capital Cities Communications, Inc. Case 7-CB-367 1 December 7, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 11, 1977, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions to the Administra- tive Law Judge's Decision. Respondent filed an answering brief to these exceptions. 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. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent did not violate Section 8(b)(3) of the Act by failing and refusing to supply, pursuant to the Charging Party's request during contract negotia- tions, its rules and/or policies governing referrals and/or mechanisms for referrals by Respondent of employees for work to be performed in an appropri- ate unit. We disagree with the Administrative Law Judge's conclusion for the reasons set forth below. Respondent and the Charging Party, Oakland Press (herein referred to as Oakland), have been parties to collective-bargaining agreements covering the pressroom employees at Oakland's Pontiac, Michigan, plant. Section 15 of the agreement contained a "manning table" provision under which additional employees were hired to work on a daily basis when certain types of machinery were in use or when certain operations were necessitated. Sections 2(b) and 9(b) of the agreement outlined Respon- dent's obligation to provide substitutes for this additional work at straight-time rates. These sections provided: Section 2(b) In the event that the Publisher hires new or additional employees to fill jobs covered by this agreement, the Publisher agrees to give the Union at least one (1) week's notice of its intention to do so and to consider any persons recommended by the Union for such jobs, along with applicants from any other source. It is agreed that all persons recommended by the Union to the Publisher shall be eligible to work at straight time rates, provided straight time men are available. Section 9(b) Employees shall not be compelled to work on their off-days or nights if competent substitutes are available in sufficient number at straight time rates to meet the needs of the Publisher. The Union agrees to provide, on a five-day markup basis, competent straight time substitutes, if requested by the Publisher, to replace employees on vacation. No employee shall lay off or take a personal day without providing a competent substitute at applicable straight time rates, accept- able to the foreman, except in cases of illness or other [bona fide] emergencies considered ade- quate by the foreman. The foreman may grant permission to change or trade off-days or nights upon written request from the employees con- cerned. In actual practice, Respondent consistently allowed the regular pressroom employees the choice of working the extra hours at overtime rates before it would refer straight-time personnel. Respondent and Oakland commenced negotiations for a new contract in February 1976.1 The issue of providing straight-time personnel arose during the discussions regarding the referral provisions in sections 2(b) and 9(b). Oakland's representatives proposed modifications of these provisions; to wit, (1) that the phrase "provided straight time men are available" be stricken from the end of section 2(b); and (2) that the first sentence of section 9(b) be changed to read: Employees shall not work on their off-days or nights until the union has made a bona fide effort to provide competent substitutes in sufficient numbers at straight time rates to meet the needs of the Publisher. The Union agrees to provide the Publisher, upon demand, information verifying the availability of substitutes in the Union's jurisdiction for any day requested by the Publish- er. Michael Zinser, Oakland's labor counsel, testified that the reason for these proposed modifications was that Oakland believed that it was paying too much t All dates hereinafter refer to 1976 unless otherwise specified. 233 NLRB No. 144 994 LOC. 13, DETROIT NEWSPAPER PRINTING & GRAPHIC COMMUNICATIONS UNION money in overtime costs. Zinser testified that the response of Respondent's bargaining agents had "always been that the Union is unwilling to agree to the proposed change." Contract negotiations continued until the summer months and resumed in September. On September 27, Bruce McIntyre, Oakland's then executive vice president and editor, wrote a letter to Respondent's president, Kummer. The letter stated that the press markup for September 13 and 14 required two men more than the number of regulars who were scheduled to work. On both days, Respondent sent in two regular employees who had days off to work overtime. Because Respondent had 3 to 4 days' notice for the additional manpower, McIntyre indicated that Respondent's responsibility to provide straight-time personnel under the contract was not met. Finally, McIntyre requested the status of Respondent's hiring lists on September 13 and 14 to ascertain the availability of substitutes on those days. The issue of providing straight-time personnel arose again at the bargaining sessions on October 4 and 19. At those times, Zinser requested, as bargain- ing information, some data to show the availability of straight-time help over a period of time. On October 20, Glenn Nelsey, Oakland's produc- tion manager, presented Kummer a formal demand for bargaining information concerning sections 2(b) and 9(b). Specifically, the letter requested the following information: 1. Data covering the availability of straight- time help during the last six (6) calendar months. If such data is unavailable, please respond in writing the reasons why. 2. During our collective bargaining session of 10-19-76, you stated that there are in existence lists which document just who is available for straight-time work. Please preserve and send to me, as they become available, six lists for each day for the next six (6) weeks. 3. Please furnish to us the name of the individual at your Local who is responsible for compiling and maintaining said lists and the administration of furnishing subs and extras. 4. Please furnish in writing an explanation of how Local 13 handles requests for men. Respondent at no time during the above contract negotiations, or any time thereafter, complied with Oakland's request for the information regarding its rules and policies governing referrals. The Administrative Law Judge found that Respon- dent flatly and in good faith rejected Oakland's proposed modifications of sections 2(b) and 9(b) to the point of impasse, and that Respondent did not plead its inability to assure the provisions of providing straight-time personnel by refusing to provide Oakland with the information. The Adminis- trative Law Judge rejected the General Counsel's contentions that the information regarding the availability of straight-time workers was necessary and relevant to the bargaining process. He found that Respondent had the legal privilege to refuse to accede to Oakland's bargaining demand and that Respondent exercised that privilege in good faith at the bargaining table. The Administrative Law Judge therefore concluded that Respondent did not violate Section 8(bX3) in refusing to provide the informa- tion. The General Counsel excepted to (1) the Adminis- trative Law Judge's finding and conclusion that the requested information was neither relevant nor necessary to the bargaining process; and (2) the failure of the Administrative Law Judge to find that Respondent violated Section 8(b)(3) by failing and refusing to provide relevant information to Oakland once the issue surfaced in negotiations. We find merit in the General Counsel's exceptions. The Administrative Law Judge narrowly construed this case as one involving good-faith bargaining and credibility of witnesses. However, the issue presented herein is whether the requested information regard- ing referrals is relevant and necessary to the bargaining process. Here, Respondent's credited testimony that it never took the position during contract negotiations that it was unable to furnish straight-time help is clearly irrelevant to the question of whether the requested information on referrals is necessary for meaningful contract negotiations. Similarly, Respondent's legal privilege to refuse to agree to Oakland's proposed contract modifications is not at issue here. By characterizing this case as one involving good-faith bargaining, the Administrative Law Judge has simply misconceived Respondent's obligation to provide the relevant information for the bargaining process. Oakland has indicated that it needs the informa- tion regarding referrals to evaluate the present referral practices under the existing contract, to test the validity of its proposals, and to formulate future contract proposals on referrals. The requested information is clearly relevant and necessary for these purposes. Furthermore, the information regard- ing the availability of straight-time help relates specifically to those provisions of the expired collective-bargaining agreement regarding hiring and referrals and substitutes on offdays. Respondent has had exclusive control over the referral of employees under these provisions, and the information regarding its rules and policies govern- ing such referrals has been available only to 995 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent. This information on referrals is analo- gous to information furnished by employers to unions as to employee job classifications and wage rates. In Globe Stores, Inc., Morse Shoe Inc., and Zale Corporation,2 the Board adopted the Administrative Law Judge's finding that the union was entitled to information about group managers, whom it did not represent. The Administrative Law Judge there found that the information concerning group manag- ers was relevant in order for the union to police its current contract in terms of the work being per- formed by the group managers, and was also pertinent for the union's preparation for succeeding contract negotiations. Here, Respondent's referral of overtime employees vis-a-vis straight-time employees will have an economic impact on the wage package that will ultimately be negotiated by the parties. Furthermore, the information concerning referrals will allow Oakland to better predict its projected overtime costs over the 3-year term of the new contract. In order for Oakland to formulate mean- ingful proposals concerning the referrals, it is essential that it know how Respondent's referral system operates and the availability of workers who might be employed at straight-time rates. The Board has recently assumed arguendo, without deciding, "that a union's duty to furnish information relevant to the bargaining process is parallel to that of an employer." Tool & Die Makers Lodge No. 78 of District No. 10 of the International Association of Machinists & Aerospace Workers, AFL-CIO (Square D Company), 224 NLRB 111 (1976). We have determined that the information requested by Oak- land is relevant to the bargaining process with Respondent. Accordingly, we shall order Respon- dent to furnish the information requested in Oak- land's letter of October 20, 1976. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. Oakland is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The unit set forth below is appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All pressroom employees of Oakland at its place of business located at 48 West Huron Street, Pontiac, Michigan, including employees engaged in the operation, routine maintenance, cleaning, and upkeep of Oakland's press equipment, ink dispensing and mixing equipment, Dyna-Pure 2 227 NLRB 1251 (1977). See also Ohio Power Company, 216 NLRB 987 (1975). equipment, core stripper, conveyors in the press- room, and offset press equipment if added by Oakland, and in the handling of paper at Oakland's place of business from the loading ramp or elevator to the storage area, or reels; but excluding employees engaged in the maintenance or repair of drive motors and electric or electronic control panels or in work not connected with the operation of the press for printing newspapers, guards, and supervisors as defined in the Act, and all other employees. 4. At all times material to this proceeding, Respondent was, and continues to be, the exclusive representative of the employees in the appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent has violated Section 8(b)(3) of the Act by failing and refusing to supply, pursuant to Oakland's request during contract negotiations, information relevant and necessary to the bargaining process. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has violated the Act by failing and refusing to supply Oakland with certain information, Respondent will cease and desist therefrom and supply Oakland with the information requested in its letter of October 20, 1976. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 13, Detroit Newspaper Printing and Graphic Communications Union, International Printing and Graphic Communications Union, AFL-CIO, De- troit, Michigan, its officers, agents, and representa- tives, shall: i. Cease and desist from: (a) Refusing to bargain collectively with The Oakland Press Co., a Subsidiary of Capital Cities Communications, Inc., by refusing to furnish Oak- land with information relevant and necessary to the bargaining process. (b) Engaging in any like or related conduct in derogation of its statutory duty to bargain. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: 996 LOC. 13, DETROIT NEWSPAPER PRINTING & GRAPHIC COMMUNICATIONS UNION (a) Supply Oakland with the following information requested in its letter of October 20, 1976: (1) Data covering the availability of straight-time help during the last 6 calendar months. If such data is unavailable, Respondent shall explain in writing, setting forth the reasons why the data is unavailable. (2) Lists which document those employees avail- able for straight-time work. Such lists shall be furnished as they become available, for the next 6 weeks. (3) The name of the individual responsible for compiling and maintaining the above-requested lists and the administration of furnishing subs and extras. (4) A written explanation as to how the referral system operates. (b) Post at Respondent's business offices and meeting places copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members 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) Forward to the above-named Charging Party for posting at its premises, the Charging Party willing, copies of such notices duly signed by Respondent's representative. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. s 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." 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 The Oakland Press Co., a Subsidiary of Capital Cities Communications, Inc., by refusing to supply information relevant and necessary to the bargaining process. WE WILL NOT engage in any like or related conduct in derogation of our statutory duty to bargain. WE WILL furnish The Oakland Press Co., a Subsidiary of Capital Cities Communications, Inc., with the following information: (1) Data covering the availability of straight-time help during the last 6 calendar months. If such data is unavailable, we will set forth in writing the reasons as to why the data is unavailable. (2) Lists which document the employees available for straight-time work. Such lists shall be furnished as they become available for the next 6 weeks. (3) The name of the individual responsi- ble for compiling and maintaining the above-requested lists and the administration of furnishing subs and extras. (4) Written explanation as to how the referral system operates. LOCAL 13, DETROIT NEWSPAPER PRINTING AND GRAPHIC COMMUNICATIONS UNIGN, INTERNATIONAL PRINTING AND GRAPHIC COMMUNICATIONS UNION, AFL-CIO DECISION MAx ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in Detroit, Michigan, on February 16, and March 13 and 22, 1977, pursuant to a complaint filed by the General Counsel of the National Labor Relations Board and an answer interposed thereto by Local 13, Detroit Newspaper Printing and Graphic Communications Union, Interna- tional Printing and Graphic Communications Union, AFL-CIO,' herein called Respondent.2 At issue is whether Respondent violated Section 8(b)(3) of the National Labor Relations Act, as amended, by refusing to furnish The Oakland Press Co., a Subsidiary of Capital Cities Commu- nications, Inc., herein called Oakland, with certain infor- mation requested by Oakland during the course of collective-bargaining negotiations. Briefs have been re- ceived from the General Counsel, the Charging Party, and Respondent, which have been duly considered. Upon the entire record made in this proceeding, including my observation of the witnesses as they testified on the stand, I hereby make the following: I The names of Respondent and the Charging Party appear as amended at the heanng. 2 The complaint, which issued on December 10, 1976, is based upon a charge filed on November 4, 1976, and served on November 5, 1976. 997 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYER During the times material herein, Oakland, a Michigan corporation, has maintained its principal office and place of business in the city of Pontiac, State of Michigan, where it is engaged in the publishing and printing of a daily newspaper of general circulation. In the calendar year 1975, and in the course and conduct of its publishing operations, Oakland received gross revenues in excess of $1,000,000; held membership in, and subscribed to, various interstate news services, including United Press Interna- tional and Associated Press; published various nationally syndicated features, advertised various nationally sold products, the revenue from each of which annually exceeded $500,000; and purchased and caused newsprint, ink, and other goods and materials valued in excess of $500,000, to be transported to its Pontiac, Michigan, place of business in interstate commerce directly from States of the United States other than the State of Michigan. On the basis of the foregoing, I find that Oakland is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that, since on or about September 27, 1976,3 and continuing to date, Respondent has failed and refused to supply, pursuant to Oakland's request made during contract negotiations between the parties for a new labor compact, its rules and/or policies governing referrals and/or mechanisms for referrals by Respondent of em- ployees for work to be performed in an appropriate unit 4 in conformity with the provisions of the old collective- bargaining agreement between Oakland and Respondent, as well as with past practice or custom. By the foregoing alleged misconduct, the General Counsel maintains that Respondent offended the provisions of Section 8(b)(3) of the Act. For its part, Respondent asserts that it has not engaged in any labor practices proscribed by the statute. It is undisputed and I find that for some undisclosed number of years Oakland and Respondent have been parties to collective-bargaining agreements covering the pressroom employees at Oakland's Pontiac, Michigan, plant. The most recent contract was effective from April I, 1973, to March 31. Section 15 of this agreement contained a so-called manning table, under which Oakland was required to employ a predetermined number of individuals under Respondent's jurisdiction when certain types of machinery were in use or when certain operations were s All dates herein fall in 1976 unless otherwise indicated. 4 It is conceded and I find that the following unit is appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act: All pressroom employees of Oakland at its place of business located at 48 West Huron Street, Pontiac, Michigan, including employees engaged in the operation, routine maintenance, cleaning, and upkeep of Oakland's press equipment, ink dispensing and mixing equipment, Dyna-Pure equipment, necessitated. In order to comply with the "manning table," Oakland, from time to time, was obligated to employ additional persons to work on a daily basis. The obligation of Respondent to provide employees to work at straight- time wage rates was embodied in sections 2(b) and 9(b) of the 1973-1976 contract. They read: Section 2(b) In the event that the Publisher hires new or additional employees to fill jobs covered by this agreement, the Publisher agrees to give the Union at least one (1) week's notice of its intention to do so and to consider any persons recommended by the Union for such jobs, along with applicants from any other source. It is agreed that all persons recommended by the Union to the Publisher shall be eligible to work at straight time rates, provided straight time men are available. Section 9(b) Employees shall not be compelled to work on their off- days or nights if competent substitutes are available in sufficient numbers at straight time rates to meet the needs of the Publisher. The Union agrees to provide, on a five-day markup basis, competent straight time substitutes, if requested by the Publisher, to replace employees on vacation. No employee shall lay off or take a personal day without providing a competent substitute at applicable straight time rates, acceptable to the foreman, except in cases of illness or other [bona fide] emergencies considered adequate by the foreman. The foreman may grant permission to change or trade off-days or nights upon written request from the employees concerned. In its operation, the referral system was utilized to provide substitutes for regular pressroom employees who were on vacation, who were laid off, or who took a personal day, and to fill the extra manpower needs which arose when Oakland published larger editions of its newspaper. In supplying workers to replace vacationing employees under section 9(b), Respondent agreed to and did provide substitutes at straight time if substitutes were requested for 5-day markups, i.e., 5 consecutive days of employment, or if substitutes were required to fill in for employees on various other types of leaves of absence. With respect to the coverage of extra work on a daily, nonvacation or nonleave basis, Respondent consistently allowed the regular employees of Oakland the choice of working the extra hours at overtime rates before it would refer straight- time personnel to Oakland. Donald Kummer, Respon- dent's president, explained the custom and practice of referrals under sections 2(b) and 9(b) of the contract by stating that "the union has agreed to personal days, to vacation by the week. This has always been the relation- core stripper, conveyors in the pressroom, and offset press equipment if added by Oakland. and in the handling of paper at Oakland's place of business from the loading ramp or elevator to the storage area, or reels, but excluding employees engaged in the maintenance or repair of drive motors and electric or electronic control panels or in work not connected with the operation of the press for printing newspapers, guards, and supervisors as defined in the Act, and all other employees. 998 LOC. 13, DETROIT NEWSPAPER PRINTING & GRAPHIC COMMUNICATIONS UNION ship. And that's when - when that comes, we get straight- time people." Kummer added that "when there's extra shifts. In other words the company has ten men on its payroll and if there are eight of them working that day and they add a couple of jobs, then those guys who are off get first claim" to work at overtime rates. Michael Zinser, Oakland's labor counsel who participated in contractual negotiations with Respondent to fashion a new agreement to replace the 1973-76 contract, confirmed Kummer's explanation. He testified that, "in the old contract and under the conditions under which the company is now operating, there is a manning provision and it requires that specific numbers of men be present when certain types of operations take place on the press. The company has a regular bargaining unit complement of about ten people. But the manning table on certain days requires . . . sometimes up to eighteen or nineteen people be present. And so, to get the men to . . . fill the requirements under this table, these people are referred from the Local union. If the Local union refers someone who does not work at the plant we will pay that person on a straight-time basis as opposed to an overtime basis. If someone from our regular complement is sent to us, on his off-day, of course that's going to be an over forty hour week situation and require the payment of overtime." At the outset of bargaining negotiations over a new agreement which commenced on February 11, Oakland's representatives submitted a variety of written proposals designed to modify the existing contract. With respect to section 2(b), management proposed that the phrase "provided straight time men are available" be stricken from the end of the section. According to Zinser, "The reason for the proposed change in section 2(b) was that the company believed that they were paying too much money out in overtime, and this proposal would guarantee straight time people to perform these functions, and therefore they would save money. It would reduce their payroll cost." Regarding section 9(b), Oakland proposed that the first sentence thereof be changed to read "Employees shall not work on their off days or nights until the union has made a bona fide effort to provide competent substitutes in sufficient numbers at straight time rates to meet the needs of the Publisher. The Union agrees to provide the Publisher, upon demand, information verifying the avail- ability of substitutes in the Union's jurisdiction for any day requested by the Publisher." Zinser testified that the response of Respondent's bargaining agents had "always been that the union is unwilling to agree to the proposed change." Negotiations continued until the summer months and were resumed in September. On September 27, Bruce H. McIntyre, Oakland's then executive vice president and editor, dispatched a letter to Respondent's President Kummer which recited: On Monday and Tuesday, September 13 and 14, our press markup required two men more than the number of regulars who were scheduled to work. The chapel chairman was aware of these requirements on the previous Friday. However, on Monday your union sent in two of our regulars (who had days off) to work overtime. The same thing happened Tuesday. I do not believe either of these days is heavy at the other plants in you local, and it is difficult for me to understand how the local could not have located substitutes on three to four days of notice. We regard the meaning of our agreement with you to be that you will not refer the regulars to work overtime unless you are totally unable to supply substitutes at straight time. We do not think that responsibility was met in this case. I await any explanation you would like to make about this. In addition, however, I feel that it is necessary in order to protect our rights under the contract that we formally request from you at this time the status of your hiring list on September 13 and 14, with sufficient detail that we will be able to ascertain the actual availability of substitutes on those days. Zinser recalled that the subject of Oakland's proposed changes again arose at a bargaining session held on October 4. He testified that, at this meeting, "we [Oak- land's negotiating staff] were trying to get the union to accede to our proposal and include that in a new contract. And we were unable to reach agreement. At that time, the union - and by the union, I mean Mr. Kummer - stated that he was not willing to agree." At this juncture in his testimony, Zinser added that Kummer "said he could not assure to give us straight-time help all the time." Upon hearing this response, Zinser broke in and stated that "if that is the case, you will not agree to our proposal, we would like, as bargaining information, some data that would show us the availability of straight-time help over a period of time. And the union refused that request, stating that at that time - that such information was not available. And further stating that even if it were available they wouldn't give it to us anyway." Zinser further testified that the issue of providing straight-time help arose once more at the next bargaining session on October 19. In Zinser's words, he again "asked Mr. Kummer for the information regarding the availability of straight-time help. And again Mr. Kummer stated that it was not available and that it was an internal union matter." After further prodding, Kummer informed Oakland's bargaining committee that "certain lists are kept on a daily . . . basis ... but the lists are destroyed on a daily basis." Zinser asked Kummer if the latter would preserve the lists for a certain period of time in order for his group to sample the availability of straight-time men. Kummer declined this request. However, Kummer did volunteer that if Zinser gave him "a specific day on which you would like some men . . . I'll let you see something for that day." Zinser rejoined that "that really wouldn't help my problem, because we were talking about our contract proposal for the new contract and that I wanted to sample it for a longer period of time, to get an idea whether it would be burdensome on him to accede to this proposal." Kummer .replied, "You'll have to prove your right to this informa- tion, if you think you have a right to it" and, then, upon 999 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reconsideration, Kummer advised Zinser that "if you want this information document it in writing and give it to me and I will reply." With this, the meeting broke up. At the next meeting on October 20, Kummer was presented with a letter signed by Glenn Nelsey, Respon- dent's production manager, embodying the following: This letter is a formal demand for bargaining informa- tion concerning sections 2(b) and 9(b) of the expired collective bargaining agreement which is now the subject of negotiations. More specifically The Oakland Press requests the following: 1. Data covering the availability of straight-time help during the last six (6) calendar months. If such data is unavailable, please respond in writing the reasons why. 2. During our collective bargaining session of 10- 19-76, you stated that there are in existence lists which document just who is available for straight-time work. Please preserve and send to me, as they become available, six lists for each day for the next six (6) weeks. 3. Please furnish to us the name of the individual at your Local who is responsible for compiling and maintaining said lists and the administration of furnishing subs and extras. 4. Please furnish in writing an explanation of how Local 13 handles requests for men. Please indicate if you intend to furnish the requested information. If you do intend to furnish the informa- tion, please do so on October 27, 1976. Regarding Nelsey's written demand, Zinser testified that Oakland "requested of Mr. Kummer, information, or data, if you will, that would document for the Employer, the availability of straight time pressmen to perform work at The Oakland Press." According to Zinser, the purpose for the production of this information was that "we had made specific contract proposals which would in essence guaran- tee an extra person to work, pursuant to the manning table, or pursuant to absenteeism, or whatever reason, that that person would always be a straight time person. The company felt that they were paying too much money in overtime. And these proposals when discussed - well, we could never make a resolution of these issues. The Union would refuse to agree to these issues and so we requested the information so that we could see if it would be possible for the Union to comply with our request - to comply with our proposal." According to Zinser, another bargaining session was held on October 26 at which he inquired of Kummer as to whether Oakland's negotiating team could have the information requested in Nelsey's letter. Kummer respond- ed that the letter sought this data on October 27, and that Oakland would receive Respondent's reply on that date. However, this information was never thereafter forthcom- ing. Collective negotiations persisted and, on December 29, Zinser mailed a letter to Kummer in which he chronicled that: The most recent collective bargaining session of the parties occurred on Sunday, December 12, 1976. At that time you stated that the Union's position on the remaining unresolved issues had not changed. The following states the respective positions of the parties on the unresolved issues (references are to sections of old contract): Section 2(b) (Hiring & Referral) - The proposed change of The Oakland Press is the deletion of the phrase "provided straight-time men are available." The reason for the proposed change is abuse by the Union during the term of the last contract. Section 2(b) as worded in the old contract places an affirmative burden on the part of the Union to try to find straight-time help first before sending an overtime person. Our experience indicates that this burden is not being met and furthermore, you have stated that you have not tried to find straight-time persons if a regular wanted to work overtime. To pay overtime when straight-time help is available is repulsive to the Company. Our proposed change would insure us straight-time help and return to the Company the control of overtime costs. The position of the Union is that it is unwilling to agree to our proposed change. [Emphasis supplied.] Section 9(b) (Substitutes on off-days) - The only proposed change in this section is the addition of two sentences: The Union agrees to make a bona finde effort to provide competent straight-time substitutes to meet the needs of the Publisher. The Union agrees to provide the Publisher, upon demand, information verifying the availability of substitutes in the Union's jurisdiction for any day requested by the Publisher. The position of the Union is that it is unwilling to make the requested changes. [Emphasis supplied.] On cross-examination by Respondent's counsel, Zinser acknowledged that Respondent, during the entire course of negotiations, consistently declined to agree to Oakland's proposals that would require Respondent to supply only straight-time help to Oakland under sections 2(b) and 9(b) of the old contract. Moreover, Zinser confessed that "It was the union's refusal to agree to our proposal to guarantee a straight-time man all of the time, that prompted my request" for data which would demonstrate the unavailability of straight-time help in all instances where such workers were requested by Oakland. However, at the prompting of Oakland's counsel on redirect examination, Zinser changed tack and proclaimed that Kummer said "that he could not assure straight-time men every day," and that that was the reason why Oakland demanded the production of information relating to the 1000 LOC. 13, DETROIT NEWSPAPER PRINTING & GRAPHIC COMMUNICATIONS UNION availability of men for straight-time work. Finally, Zinser admitted that, in an affidavit which he gave to a Board agent during an investigation of the charges which Oakland filed herein, he made no mention of Kummer's asserted insistence that the latter could not assure the provision of straight-time employees. In his testimony, Kummer steadfastly maintained that, throughout negotiations, he uniformly refused to accept Oakland's proposals regarding the modification of sections 2(b) and 9(b) to ensure the referral of only straight-time employees. In Kummer's words, "The company wanted straight-time coverage, complete straight-time coverage. And the Union said no. And that's - it has been, in every contract, that has been an item of discussion." Kummer went on to state that "The union's explanation was that the people in the shop were entitled to work before a person from the outside got extra shifts.... whatever we had - we would agree to in the contract. That's what we would - and we weren't about to agree to furnish straight-time people just on any basis. We have an agreement that we have had for a number of years, and lived up to, when a person is replaced for a vacation, by the week, we send a man in for a week - or cover - if we can't get somebody for a week, we went to them day-by-day. If a person knocks off . . . we will replace them with straight-time people. If a person has a personal day, we replace them. That's what we've always done. We've never had a shift go dark at Oakland.... That's what I said to the company and ... they certainly knew it." Rounding out Kummer's testimony, he further maintained that Respondent never took the stance during the course of its bargaining with Oakland that it was unable to furnish straight-time help. I credit the testimony of Kummer, which is not in basic disharmony with Zinser's testimonial utterances on cross- examination, and find that, pursuant to sections 2(b) and 9(b) of the expired contract between the parties, as well as established custom and practice, Respondent agreed to and did refer employees to work for Oakland on a straight-time basis when help was needed to man presses when substitutes were requested for 5-day vacation markups, or when substitutes were required to fill in for employees on various types of leaves of absence. With respect to the coverage of extra work on a daily, nonvacation or nonleave basis, Respondent traditionally utilized regular employees I See N.L R.B. v. Wooster Division of Borg- Warner, Corporation, 356 U.S. 342, 349 (1958). to work extra hours at overtime rates and Oakland regularly acquiesced in this procedure. I find that, in the course of negotiations which commenced on February 11, and until December 29, Oakland proposed that sections 2(b) and 9(b) be altered so that all employees referred by Respondent for any tours of duty be paid on a straight- time basis. I further find that Respondent flatly and in good faith rejected these proposals to the point of impasse, and did not plead its inability to assure the provision of straight-time personnel. The General Counsel and Oakland contend that Respon- dent failed to bargain in good faith, in violation of Section 8(b)(3) of the Act, by refusing, upon request, to provide Oakland with information regarding the availability of straight-time workers which was both relevant and neces- sary to enhance the bargaining process. I have heretofore found that at no time during negotiations between the parties did Respondent plead any such inability to assure the provision of straight-time personnel to Oakland when extra help was required. Indeed, from the commencement of negotiations on February 11 until December 29, Oakland proposed the deletion of certain portions of sections 2(b) and 9(b) of the 1973-76 agreement which by language, as well as custom and past practice, authorized Respondent to refer extra employees at overtime rates. After duly considering these proposals, Respondent flatly rejected them. While the obligation of an employer and the representative of its employees to bargain with each other in good faith with respect to wages, hours, and other terms and conditions of employment is statutorily established, the Supreme Court has made it clear that "The duty is limited to those subjects, and within that area neither party is legally obligated to yield." 5 In light of Respondent's legal privilege to refuse to accede to Oakland's bargaining demand, and its good-faith exercise of that privilege at the bargaining table, I am hard-pressed to understand how production of the requested information could either be relevant or necessary to the bargaining process. According- ly, I conclude that Respondent did not violate Section 8(b)(3) of the Act by its conduct herein, and I shall dismiss the complaint in its entirety. [Recommended Order for dismissal omitted from publi- cation.] 1001