Henry F. Budde Publications, Inc.

HENRY . BtDI)I PtBII A(' I IONS. INC.' Henry F. Budde Publications. Inc. and Office and Pro- fessional Employees International nion, AFL- CIO, ocal 3. Case 20 CA 14011 Max 14. 1979 DECISION AND ORDER BY MI.MBntRS JENKINS, MURPIIY, AN1) TR I SI)AI.I On February 14, 1979. Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter. Respondent filed excep- tions and a supporting brief, and General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended. the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefk and has decided to affirm the rulings, findings. and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent. Henry F. Budde Publications, Inc.. San Francisco. California. its offi- cers, agents. successors, and assigns. shall take the ac- tion set forth in the said recommended Order. DECISION SIAIEMIMI 1() IlHE (CASI Rl(HARI) D. TAPI.Ir. Administrative l.aw Jduge: This case was heard at San Francisco. California. on November 21, 1978. The charge was filed on August 9, 1978. by Office and Professional Employees International Union. AFL CIO Local 3. herein called the Union. The complaint is- sued on September 13, 1978. alleging that tlenry F. Budde Publications. Inc.. herein called Respondent or the Com- pany, violated Section 8(al(5) and (I) of the National I.abor Relations Act, as amended. Issue The primary issue is whether Respondent violated Sec- tion 8(a)(5) and (1) I of the Act bN refusing the Uinion's re- quest for wage rate information relating to two summer interns under circumstances where the Ulnion needed that illnforllmation inl processing a grie.alnce under an outstanding collectisrc-bargaining agreement. All parties were given 'full opportunitx to participate. to introduce relevant evidence, to exalilne anld cross-examine witnesses. to argue oralls, and to ile hriefs. Briefs, : hich have been carefulls considered. were filed nll behalf of the (ieneral ('ounsel and Respondent. UIpon the entire record ofl the case and fronl nlm: ohbserxa- tion of the witnesses and their delmleanor. I mlake the flllo - ilg: :'INI)INiS ( I'( I 1. Il I t SNI SS ()lI RI SPiNt)I NI Respondent, a (Califrnia corporation with its place of business in San Francisco. Caliirnia. is engaged in the publication of a newspaper. During the calendar year pre- ceding issuance of complaint. Respondent received gross resenules in excess of $200.000: and during the same period it advertised nationalll sold products and subscribed to in- terstate news sers ices. T'he complaint alleges. the answer admits, and I find that Respondent is an emplo\er engaged in commerce within the meaning of Section 2(6) and 7) of the Act. I. 111L IABOR ()R(OANI/AII)N iN\()iI 1t) The union is a labor organization withilln the meaning of Section 2(5) of( the Act. 111. Ill Al I il(;il 1) NI AIR I ABOR PRA( I S A. BiaAtcrilnd Respondent, which is a , holl, owned subsidiar of' lart Ilanks C(omlmunications, publishes a newspaper known as the San F:rancisco Progress. or man 3! ears Respondent has had a contractual bargaining relationship with the nion.' he current contract is eflective from September I. 1977. through August 30. 1980. Ihe recognition clause of that contract reads as tfllows: .Article I (hi The EmploNer herebh recognizes the Union as the exclusive bargaining agent for editorial personnel emplosed at the Employer's newspaper publishing plant in San F:rancisco. 'California. Editorial personnel includes those salaried persons who gather, report, re- search and analze local news: ho write eatures. captions and headlines: as well as those who edit and make-up pages. his provision excludes all other em- I he conmplainl lleges. he answer admills. and I tind that the I mln is the elusie reprcsenlittle iof Resplindent', ermphee In the lolirh.ing .ap- propriate hargalnlng unit All editori.al emiplo c'. dspla, ds.ertising emphloxce,. :awied depart- ment emplohrees. ;Idx rtlsring les dep.arltment cmplh'.ee, anId general office cemplhoee, ciplo, ed h! the emplher at Iti S.tia I :rancco lac ilt. excluding glards aindl supcrixls r s idelnetl 1ii the \cl 242 NLRB No. 44 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, guards and supervising editors as defined in the Act. Said recognition refers to National Lahor Re- lations Board Case No. 20-RC- 1 1633. It is agreed that no additional supervising personnel will be employed to replace the existing situations. In the event of a layoff of the following editorial personnel or their replacements, the Employer agrees not to use students, free lancers or stringers to perform their work: Daniel Borsuk, Richard Brill, Carol Kroot. and Eileen Maloney. The contract also contains a union-security clause and a provision requiring Respondent to notify the Union when new employees covered by the agreement are hired. The contract states that temporary employees shall enjoy all the privileges of the agreement on a pro raul basis, that they shall be required to pay a union permit fee up to 90 days. and that after 90 days of continuous employment they shall be considered permanent employees, at which time they are required to join the Union. There is no provision in the contract relating directly to interns. For at least the last 4 years, Respondent has participated in an internship program. Under that program students from universities work in a newspaper's editorial depart- ment. Respondent usually has three or four interns a year. and each intern normally works for a period of 6 to 8 weeks. It is an opportunity for students pursuing an educa- tion in journalism to get some practical experience. In some cases the student receives college credit for the experience. There is a formal program in which the university takes part in the internship program and a voluntary internship where the college has no such program. Respondent does not offer employment to students upon completion of their internship programs. Before the summer of 1978. interns who worked for Respondent did a good deal of filing and office work before being assigned to a regular reporter on specific stories. They had little independence and were closely guided by the reporters. Those interns wrote only a limited number of stories that were used by the paper. In May 1978, Marcus Elliott became probationary managing editor of the newspaper, and in August 1978 the position became permanent. In the summer of 1978 he began to make more use of the interns. He sent them out by them- selves and relied on their judgment and expertise in the way he would have with an experienced reporter. He did not assign them to breaking stories because they were not used to meeting deadlines. Although the interns' stories were of- ten rewritten, and the interns did not meet all the standards of regular reporters, the interns were involved with report- ing in the same manner as were other reporters. The interns who worked in 1978 turned out much more work than the previous interns. Scott Knies and Kim Clark worked at the newspapers as interns from June through the end of August 1978. Clark was a voluntary intern, as the university she attended did not have an internship program. Knies had a substantial background in journalism, and his exposure was nearly that of a reporter with I year's experience. He learned quickly, and one of his last articles could be used with only a minor amount of editing. During his internship he wrote nine sto- ries which were edited and then published under his own byline. Four of those stories had front page news value. Clark's work took more rewriting. but she wrote four stories which. alter being edited, were published under her byline. In the past interns had written only one to three byline stories during an internship. Knies and Clark did little if any clerical work, and they had more independence than past interns. They used company telephones to get informa- tion for stories and used the company typewriters to write their stories. Past interns did not have the same privileges. They did layoutwork which involved placing stories and photographs in dummy sheets, while past interns had not done that work. B. Thle Griealnce and the Request /or Iformnation On about July II 1978. the Union's assistant shop stew- ard, Daniel Borsuk. asked Respondent's managing editor. Marcus Elliott. what status Knies and Clark had within the editorial department and whether there was compensation. Elliott answered by saying that they were interns. Borsuk then went to Union Representative Reeva Olson and told her that Knies and Clark had been employed and were doing editorial work. He said that he thought they were probably interns, but that he was concerned because they were doing the same kind of work that the editorial employ- ees did. He also told her that the Union had not been noti- fied of their hire as required by the contract, and that they were not union members. On July 18. 1978. Borsuk filed a grievance. 2 The griev- ance alleged that Respondent violated various articles of the contract and stated: The publisher has failed to notify the Union that Scott Knies and Kim Clark were employed to perform work covered b the collective bargaining agreement. They are performing editorial functions within the scope of the bargaining unit without receiving the appropriate pay. The action requested in the grievance was: That Scott Knies and Kim C('lark be paid appropriate rates called for b the agreement, retroactive to their date of hire, and that they be required to become union members and/or pay union fees. The contract contains a grievance procedure which culmi- nates in binding arbitration. The grievance clause covers "questions or disputes arising from the interpretation or ap- plication of the provisions of this Agreement which are not adjusted satisfactorily between the parties signatory hereto On July 28. 1978. representatives of the Union and Re- spondent met to discuss the grievance. Olson. Chief Stew- ard Samuels. and Assistant Steward Borsuk represented the Union. Kevin Lindgren of the Western Newspaper Indus- trial Bureau and Respondent's business manager Gary Ber- linger represented Respondent. Olson told the company representatives that Knies and Clark had been employed by Respondent to do bargaining-unit work within the editorial department. that the Company had not notified the Union 2 At a subsequent meeting Respondent complained that the grievance should have been signed by the chief steward, Jerrf Samuels, rather than by Borsuk. A substitute grievance uv.as then filed which was signed by Samuels. 244 HENRY F. BUDDE PUBLICATIONS, INC. of their employment as required by the agreement, and that they were not being paid according to the appropriate scale called for in the agreement. She requested that they be paid according to the appropriate contract scale and that they be required to join the Union pursuant to the terms of the union-security clause. There was a general discussion about the merits of the grievance, with Berlinger taking the posi- tion that there had been interns in the past and that the grievance was invalid. Olson and Borsuk spoke about how past interns had worked under the guidance of bargaining- unit members while the two interns in question worked in- dependently. Olson also said that the work Knies and Clark were doing could deprive reporters of overtime that they would otherwise be paid. Olson said that the Company could have up to 1,000 interns if the work was not covered. On two occasions during the discussion Olson asked how much Clark and Knies were being paid. On both occasions Lindgren refused to tell her. Olson said that Knies and Clark were doing bargaining-unit work, and that the Union needed the information to process the grievance. At the end of the meeting Olson said that it appeared that they were deadlocked, and that they would have to proceed to arbi- tration.' Respondent has continued in its refusal to supply the information and has taken the position that it has no duty to do so. In late October 1978, Olson spoke to Lindgren about se- lecting an arbitrator. Olson asked whether Lindgren would follow his past practice of requiring one arbitration on the question of arbitrability and a separate arbitration on the merits. Lindgren said that he would let her know. Later Lindgren called back and told her that the Company was going to take the same position, and that there would have to be two different hearings. As of the date of the hearing, the arbitration was sched- uled for December 14, 1978. The parties have not informed me as to the outcome of the arbitration or whether it took place. Before the incident in question the Union had never com- plained to the Company about the use of interns. Olson testified that the Union needed the pay informa- tion requested at the July 28 meeting in order to process the grievance and to decide how to pursue it. She averred that if the information disclosed that Knies and Clark were being paid according to contract scale, the Union would drop its demand with regard to pay but would continue its grievance with regard to enforcement of the union-security clause. The General Counsel took the position on the record that the Union needed the information to process the grievance whether Knies and Clark were in the bargaining unit. C. Analysis and Conclusions An employer has an obligation to provide information that is needed by a union for the proper performance of its I The above findings are based on a composite of the testimonies of Olson, Borsuk, and Berlinger. All were credible witnesses, and most of their testi- mony was in substantial accord. Berlinger testified that the union represent- ative did not comment on the need for the information except for Olson's remark that the Company could have up to 1,000 interns. I believe that Olson had a more detailed recollection of the discussion. Where there is a discrepancy between the testimonies of Olson and Berlinger, I credit Olson. duties as the bargaining representative of the employers employees. A grievance procedure is part of the continuous collective-bargaining process, and an employer must fur- nish a union with information necessary for the union to police its contract and intelligently process grievances. With regard to the relevancy of the information, a discovery-type standard is used, and the information must be furnished upon the probability that the desired information is rel- evant for the union to carry out its responsibilities. Poten- tial relevancy is sufficient. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967);' Amphletr Printing Company, 237 NLRB 955(1978); Temple-Eastrex, Incorporated, et al., 228 NLRB 203 (1977), enforcement denied 579 F.2d 933 (5th Cir. 1978). Where the information sought covers such mat- ters as the wages of employees within the bargaining unit, the information is presumptively relevant. Curtiss-Wright Corporation, Wright Aeronautical Division v. N.L.R.B., 347 F.2d 61, 69 (3d Cir. 1965). Ohio Power Company, 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). Where the information relates to nonunit employees, the presumption of relevancy is no longer warranted, and the relevancy must be established. Curtiss-Wright Corporation v. N.L.R.B., supra. See also Times-Herald, Inc., 237 NLRB 922(1978). However, the fact that information relates in part to nonunit employees is no defense to an allegation that the information was not supplied where the informa- tion is relevant and necessary for the policing of a contract and the intelligent processing of an outstanding grievance. Temple-Eastex, Inc., supra.' In the instant case, counsel for the General Counsel sug- gests in his brief that even if Knies and Clark were nonunit employees, the information sought would be relevant for the Union to evaluate whether an erosion of bargaining- unit work was taking place. However, the complaint is very narrowly drafted. It alleges that the information requested was relevant and necessary in order to assist the Union in processing grievances. The only grievance in question is the one filed on July 18, 1978, relating to Knies and Clark. As found below, Respondent had an obligation to furnish the requested information because it was relevant and neces- sary in order to allow the Union to police the contract and intelligently process the outstanding grievance. It is there- 4 In discussing the need for information to intelligently process a griev- ance, the United States Supreme Court in the Acme case at pages 438-439 held: Far from intruding upon the preserve of the arbitrator, the Board's action was in aid of the arbitral process. Arbitration can function prop- erly only if the grievance procedures leading to it can sift out unmerito- rious claims. For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overbur- dened. Yet, that is precisely what the respondent's restrictive view would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim.' The expense of arbitration might be placed upon the union only for it to learn that the machines had been relegated to the junk heap. Nothing in federal labor law requires such a result. I See Fafnir Bearing Co. v. N. LR.B., 362 F.2d 716, 721: "By prevent- ing the Union from conducting these studies [for an intelligent appraisal of its right to grievel, the Company was, in essence, requiring it to play a game of blind man's bluff." In denying enforcement of the Board's Order, the court of appeals held that the grievance issue had not been fully litigated at the trial and that, in any event, there was no showing of relevance in the particular circumstances of that case. 245 D[)I('ISI()NS ()1: NA IO()NAI I ABR RA IIONS BOARI) fore unntcessarN to consider mnltters that are not specili- call> alleged in the complaint. (. N. I.R. _. i'tple- I:a.cx, Inc.. 579 F.2d 933, 936 (5th ('ir. 1978). 'I he grievance in question was keNed to the assertion that Knies and ('lark were covered by the contract that the I lnion had a duty to administer, and that they were subject to the wage scales, the union-security clause, and other terms ol that contract. It was not a rivolous grievance. ''he contract does cover temporary emploNees. Respondent can- not exclude employees from contract coverage by merelN calling them interns rather than temporary employees. The nomenclatulre is simply one factor to he considered ihe Union may or ma not he able to convince an arbitrator that Knies and ('lark performed functions that are more equatlable to temporary reporters than to student interns. That is a question for the arbitrator to decide under the grievance procedure. The question of their coverage is not before me. The only issue filr me to decide is whether the Union is entitled to certain information with regard to the processing of that grievance. The Union is entitled to any information necessary for it to evaluate the merits of the grievance and to pursue the grievance. The alilotlit paid to Knies and Clark is relevant i'r that purpose. 'The contract covers salaried persons who perform certain work. I the intfrmation discloses that Knies and ('lark were receiving no compensation, an argument can be made to the arhitra- tor that they are not covered by the contract. Such infornia- tion might lead the Union to decide not to pursue the griev- ance. I the information discloses that Knies and ('lark were being paid according to the contract rate, the Union would be in a position to drop at least that part of' its griev- ance claim. Though not the controlling factor the amount of pay may be one among many items to consider in evailu- ating the job responsibilities of Knies and ('lark. In the Board's proposed l)ecision and Order in Sa/is-1, Store. Ilncorporatedl, D 4574, Houstonl Texas ('ase 23 CA 6451, the Board stated: a Union may properly seek information concerning such excluded categories as supervisors if it is shown to be necessary to determine whether certain individuals belong in the unit and have not been improperly desig- nated and excluded as supervisors. In the instant case, the Union is seeking inl'ormation which has at least potential value in enabling it to evaluate and process its grievance. The grievance ultimately goes to the question of whether certain individuals belong under the scope of the contract and whether they have been improp- erly excluded from contract coverage because Respondent designated them as interns. I find that the Union is entitled to the information sought and that Respondent violated Section 8(a)(5) and (I) of the Act b refusing to furnish it. ^ In that case the Board issued a proposed )ecision and Order because of the death of the first Administrative Law Judge who heard the case prior t issuance of the Administrative Law Judge's D)ecision Exceptions can be iled to the proposed decision, and I hase not considered that proposed decision as binding precedent However. the logic of some of the Board's dtica i ttl case is wortlh considering. See also G(dihe Store%. Inc.. t aL 227 N RB 1251(1977); (Curtis-Wrigh (orporliruion . V i.R.., 347 F- 2d 61 3d (r. 1965) \. I i i-HI I 1- l t NI AIR ABI()R PRA( IS UIPON ( ()IMIIR(I I he activities of Respondent set forth in section III, above. occurring in connection with the operations of Re- spondent described in section I. above, have a close, inti- mate. and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the ree flow of commerce. V. Il RMII)Y lalving found that Respondent has engaged in certain ufltir labor practices, I shall recommend that it he ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of' the Act. CO()NCIIUSIO(NS ()I LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The ftllowing unit is appropriate for the purpose of collective bahrgaining: All editorial emplosees, display advertising employees classified department employees. advertising sales de- partment employees and general office employees em- ploNed bh the EImploer at its San Francisco acility, excluding guards and supervisors as defined in the Act. 4. 'lhe Union is the exclusie bargaining representative of Respotndent's employees in the above-described unit. 5. Respondent refused to bargain in violation of Section 8(a)(5) anid l I) of the Act bh refusing. in the context of the grie tance procectire, to honor the lnion's request for wage inforilation rclating to Scott Knies and Kim Clark. 6. Ihle aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of' Iact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORIDER ? T'he Respondent, HenrN F. Budde Publications, Inc., San Francisco. ('alifornia, its officers, agents, successors, and as- signs, shall: 1. ('ecase and desist from: (a) Reftising t bargain collectively with Office and Pro- fessional [I:mployees Internattional Union, AFL ('10. Local 3, b refusing upon request to supplN relevant information needed by said Union to represent the employees in the folloving bargaining unit: 7 In the eent no exceptions are filed as provided b Sec. 1)2.46 of the Rules and Regulations of the National I.abor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided hy Sec. 102.48 of the Rules and Regulallion,. be adopted by the Board and become its findings. conclusions. and Order, and all objections thereto shall be deemed swaived for all purposes. 240 I1.NRY 1 FI1 D)I) Pt II('A IO()NS. INC( AIll editorial I ploe ces. displa? adLs erlNisng eItIploeCs. classitied departmlent emplo\ees. adsertising sales de- partnCent empllloees and general otlice emplol \ces eil- plosed hb the Flmploser at its San IFranicisco taiilit, excluding guiards and supervisors s defined in tile Ac. (h) In a like or related manner intereriig ith. re- straining. or coercing emsploeces in the exereise ot the rights guaranteed them in Section 7 of the Act. 2. ake the liollo, ing ,afirmnatie action to eflctulate the policies of' the Act: (a) Furnish. upon request. to said Ilnion the inftrrnalion necessary to determine the amount it paid to Scott Knies and Kim Clark hile the, worked at the San F:rancisco Progress during the summer of 1978. (h) Post at its San Francisco. ficilit\ copies of the at- tached notice marked "Appendix."' Copies of( the notice. on ftrms provided by the Regional Director for Region 20, after being duly signed bh Respondent's authorized repre- sentative. shall he posted by it imllediiatel I uponl receipt thereof, and he maintained for 60 consecuLtive da;\ t1here- after. in conspicuous places, including all places where no- tices to emplosees are cuIstomarily posted. Reasonable steps shall be taken hb the (ompan\ to insure that said notices are not altered. defaced. or covered by ans other material. (c) Notify the Regional I)irector for Region 20. in writ- In the evenl thai this Order is enforced by a Judgment of a United States court of appeals. the words in the notice reading "Posled bh Order of the National Labor Relations Board" shall read "Po;ted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ing . within 20 da;s froim the daite of this ()rtder. hat steps it has takell to comply herewith. APPkN I)1 X No(II( 'I o FiP)I )IIS P()SIFI I ()RDI R (1I HIt} NAsII(NAl i.\lRt)R AlIll)S BH)ARI) An Agenc of tile Ilnlte St;ltes (ioerniment Ii N Il I)ol reftuse to hbargin collcctsel' skiil Of'- lice ;Ild Prolessiona l Imployees Interlnatlonal t:niOn. l\1, ('1(). local 3. bh retusinL upon request to suppl rele\anti inorlationI needed b said unillo to represelit the emploees in the tillowing bargainiig unit: ;\Il editoril Cnempoees. ispla\ adiNertlisiln eplo - ees, classitied department employ sees. ad, ertising sales department employees and general office em- plo!ees elmploed bh the Fmlpl)!er aIt its Siln 1-rtn- cisco facilitl, excluding guards and supersisors as defined in the Act. Wl: II I NOI in an\ like or related manner interlere vith, restrain. or coerce emploxees in the exercise of the rights guaranteed theri in Section 7 ol' the Act. WI ,ilt furnish, upon request. to said union the iniorllmationll necessar\ to determine the amount we paid to Scott Kllnes alid Kim ('lark vhile the worked at the San Francisco Progress duiring the summer of 1978 I1 NR I .: Bt )1) P)l B1I( AtIIONS', I( . 247