The Washington Star Co.

WASHINGTON STAR CO 391 The Washington Star Company and Columbia Typo- graphical Union No. 101. Case 5-CA-13812-2 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 21 March 1983 Administrative Law Judge Sidney J. Barban issued the attached decision. Ex- ceptions to the judge's decision were due 29 April 1983. The Respondent's exceptions and supporting brief postmarked 29 April 1983 were received 2 May 1983. The Respondent's exceptions were re- jected by the Board as untimely. On 1 June 1983 by telegraphic order, the Board denied the Re- spondent's "Motion for Reconsideration" and on 7 June 1983 the Board issued an order adopting the judge's rulings, findings, and conclusions. On 24 April 1984 the United States Court of Ap- peals for the District of Columbia Circuit denied enforcement of the Board's order and remanded the case to the Board for consideration of the Re- spondent's exceptions. By an order dated 12 June 1984 the Board rescinded its order of 7 June 1983. The Respondent has filed exceptions to the judge's decision and a supporting brief. The General Coun- sel has filed an answering brief to the Respondent's exceptions and brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has ' decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, the Wash- ington Star, Washington, D.C., its officers, agents, successors, and assigns, shall take the action set forth in the Order. The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings DECISION 'STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative, Law judge. This matter was heard at Washington, DC, on August 23 and October 15, 1982, on a complaint issued on Decem- ber 21, 1981 (all dates are in 1981, unless otherwise noted), pursuant to a charge filed by the above-named Charging Party (the Union) on October 20. The com- plaint alleges that the above-named Respondent' violated Section 8(a)(1) and . (5) of the National Labor Relations Act (the Act) by declining to furnish the Union, as re- quested, with a copy of the contract between Respond- ent and the Washington Post Company (The Post) re- garding the purchase by the Post of certain equipment and Respondent's Washington facility, which informa- tion, it is alleged, is necessary for and relevant to the Union's performance of its function as the exclusive col- lective-bargaming r representative of the employees in the alleged appropriate bargaining unit. 2 The answer denies the unfair labor practices alleged. On the entire record in this case, from observation of the witnesses, and their demeanor, and after due consid- eration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS AND CONCLUSIONS L JURISDICTION For several years prior to August 7, 1981, Respondent published in the District of Columbia an evening news- paper of general circulation (The Evening Star). During the annual period prior to that date, similar to its oper- ations in previous years, Respondent subscribed to inter- state news services, published nationally syndicated fea- tures, and had a gross annual volume of business exceed- ing $200,000. The Evening Star ceased publication on August 7, 1981. However, it was stipulated that Re- spondent at the time of, the hearing continued to be an employer engaged in commerce within the meaning of the National Labor Relations Act, and I so find. The answer to the complaint admits and I find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II SUMMARY OF FACTS AND ISSUES For a number of years, Respondent recognized the Union and several other labor organizations as the bar- gaining representatives of various separate bargaining units of Respondent's employees. As has been noted, Re- spondent's bargaining contract with the Union, by its . 1 Respondent's name as corrected at the hearing 2 The complaint alleges, and I find, that an appropnate unit for the purpose of collective bargaining within the meaning of the Act consists of Respondent's employees performing work in the composing room, as set forth in Sec 7 of the bargaining agreement between Respondent and the Union effective from January 1, 1979, to December 31, 1983, which unit was described by William J Boarman, president of the Union, as "the composing room unit which consists of operators at typesetting ma- chines, makeup persons who would make up and assemble the newspa- per, proofreaders, ad makeup people, and machinists who perform main- tenance [on] the equipment which the [unit] employees operate" 273 NLRB No. 61 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms runs to December 31, 1983. Among the provisions of that contract are clauses (considered in more detail hereinafter) referred to :as "lifetime job guarantee" and "successorship" clauses, which are significant to the issues in this matter. After the owners of Respondent, apparently in July 1981, decided to cease‘ publication of the Evening Star, for reasons not disclosed on this record, the various labor organizations involved, including the Union, were notified, and Respondent met jointly, at first, with all these Unions to answer questions and deal with problems of common interest. Thereafter, Respondent met with these Unions separately. During these separate meetings, the Union advised that it would continue to assert the continued viability of the lifetime job guarantee in its bargaining agreement. On August 7, as has been noted, Respondent ceased publication of the Evening Star. On September 2, The Post, publisher of the morning newspaper in the District of Columbia (The Washington Post) put out a news release to the effect that the owners of The Evening Star had agreed to sell the plant former- ly used by Respondent in the District and most of its equipment to The Post. A lengthy news article to this effect also appeared in The Washington Post. By letter dated September 4, the Union requested that Respondent furnish the Union with a copy of "the purchase and sale agreement" between the Post and Respondent referred to, though stating no specific reason for the request. However, at a meeting with Respondent on September 30, the Union contends that it specifically informed Re- spondent that it needed the sales agreement in order to determine whether there had been a violation of the life- time job guarantee and the successorship clauses of the bargaining contract. Respondent denies this, and claims that the failure of the Union to demonstrate that the in- formation requested was reasonably necessary and rele- vant to the administration of its bargaining contract with the Union and the asserted confidential nature of the document, relieves Respondent of any obligation to pro- vide that information. It is further contended, as dis- cussed, that certain alleged procedural errors at the hear- ing prevented Respondent from fully attacking the credi- bility of union representatives' testimony as to statements assertedly made at the September 30 meeting. During this same period, the Union, which apparently had a bargaining agreement with the Post similar to that with Respondent, was attempting to secure a copy of the sales agreement from the Post. The Union also apparent- ly filed an unfair labor practice charge against the Post when that publisher refused to provide the Unioni with a copy of the sales agreement, but seems to have with- drawn the charge. 3 Respondent contends, quite vigor- 3 During the hearing there was considerable dispute as to whether the filing of such a charge against the Post was relevant It was held that the filing of a charge against the Post was not relevant to this proceeding and I adhere to that view However, for the purpose of this decision I have assumed that such a charge was filed The numbering of this case indicates that a closely related charge was filed The president of the Union testified that thobgh the Union is not currently pursuing anything - against the Post it had done so at one time ously (on the record Respondent stated that this "goes to the essence of the case"), that the Union's real purpose in seeking the sales agreement from Respondent was not to administer its contract with the Respondent, but to at- tempt to have the Post comply with the lifetime job guarantee in the Post's bargaining agreement, and thus the Union's request of Respondent had no relevance to Respondent's bargaining agreement. Respondent further contends that the sales agreement contains "sensitive" and "confidential" material, and that it had an understanding with the Post not to disclose the document. In a somewhat related argument in its brief (p. 14), Respondent asserts that the sales agreement re- lates to Respondent's "business decision to terminate its operations," and, arguing that Respondent would not be required to bargain over its decision to close, "[Respond- ent] does not have the attendant duty to disclose infor- mation, such as the sale agreement, that is relevant only to that decision." • III. THE COLLECTIVE-BARGAINING AGREEMENT The significant clauses in the bargaining contract (G.C. Exh. 3) are contained in the Memorandum of _ Agreement attached to and made a part of the contract. These clauses, in relevant part, are the following (par- ticular provisions have been italicized for emphasis): (1) Job Guarantee (a) Each employee whose name appears on the list of employees to be known as the Job Guarantee Roster will be entitled to the benefits set forth in paragraph (b). (b) The publisher agrees that all of its composing room employees whose names appear on the Job Guarantee Roster wil be guaranteed a regular full- time situation . . . with the publisher in accordance _ with the provisions of the latest Collective-Bargain- ing Agreement for the remainder of their working lives until they vacate same through retirement, res- ignation, death, or discharge for cause; -provided, however, in the event the Publisher permanently ceases publication such guarantee will thereupon cease. . . . (e) In the event the Publisher merges with any other publisher or acquires or consolidates its business in any manner or changes its operation in any manner, such change of circumstances will in no manner ab- rogate or alter this job Guarantee, and any successor employer, publishing company, or enterprise will be fully bound by the terms of this Job Guarantee as if such change or successor enterprise had been an original party thereto. (g) The Job Guarantee will not be subject to • amendment or revision in future collective-bargain- ing negotiations. WASHINGTON STAR CO. 393 IV. THE REQUESTS FOR INFORMATION, A. The Written Request By letter dated September 4, William J. Boarman, president of the Union, wrote John Dawson, then direc- tor of human resources of Respondent, as follows: The recent news stories about the purchase of the Washington Star Building and equipment by the Washington Post has necessitated this letter. This is an official request by this organization for a copy of the purchase and sale agreement entered into by the Washington Star Company or Time Inc. and the Washington Post Company covering the above-referred to transaction Boarman received no written reply to this request. B. The September 30 meeting At a meeting on September 30 with Dawson to discuss other matters, Boarman brought up his request for the sales agreement and reaffirmed it. There is some conflict among the witnesses as to what then occurred, as dis- cussed in some detail below. • Boarman testified that at this meeting "[Dawson] said that if I could tell him what part of the document I was interested in, he could perhaps get that for me. But if I was asking him for the whole document, he thought the answer would be 'no' . . I told John that I didn't know what part of the document I wanted because I didn't know what it contained. And that we would have to have the whole document. . . . I explained to him about the successorship clause in the contract and the lifetime job guarantees which were part of great importance to the Union and its members, and that we needed that pur- chase and sale agreement to properly administer our con- tract and see if there had in fact been a violation of those clauS'es." Boarman asserts that after this explanation, Dawson "just reiterated his position that if we could tell him what portion it was [that we wanted] . . . perhaps he could give it to us. But if it was the whole document, he thought the answer would be 'no,' and that's where we left it." 4 The secretary-treasurer of the Union, Robert Petersen, who also attended this meeting, testified that Boarman asked Dawson for a copy of the sales agreement "to as- certain whether or not [Respondent] had violated at least two provisions of our negotiated agreement, one dealing, of course, with the successorship and one pertaining to the lifetime job guarantee provision of the contract." Pe- tersen recalled that Dawson said that "he didn't think" he could secure a copy of the sales agreement, to which the union representatives replied that "it was absolutely essential that we have a copy of it to ascertain whether 4 At the hearing, Boarman testified that the sales agreement was neces- sary so that the Union could determine whether a grievance should be filed alleging that Respondent had violated the bargaining agreement He also stated that the Union was not interested in the dollar amounts in- volved, and that if the document merely showed a' sale of assets and equipment, the Union would probably do nothing It is not indicated that this was stated at the September 30 meeting however or not a: violation' [of the collective-bargaining] had oc- curred." According to Petersen, Dawson "then said something to the effect that if we could be specific about some provision of the agreement; and we said we thought we were being specific, we had come to ascer- tain 'if a violation had occurred in those provisions we have indicated." Petersen's recollection is that Dawson ended the discussion by saying that he would see what he could do, but that Respondent never provided the Union with the sales agreement. Dawson, on the other hand, denies that "at any time during this Meeting, the Union "ever provide[d] . . . a reason for requesting" the sales agreement, testifying that he does "not recall" Boarman raising the subject of the suCcessorship clause with him during that meeting. Dawson testified that when Boarman, at this meeting, asked about the sales agreement, he (Dawson) told Boar- man that "I thought that turning over the entire docu- ment would be inappropriate, particularly since he had not given me any reasons as to why he wanted the docu- ment I further told him that if he could give me some specific reasons as to why he wanted the document or parts of the document that I would pursue his request:95 Dawson states that Boarman said he wanted the entire document. Though Dawson avers that he indicated to Boarman at this meeting that some parts of the document might be disclosed if the Union were more specific, he admits that he did not indicate what parts he felt could not be dis- closed. Further, in seeming contradiction to his testimo- ny on direct examination, Dawson, on cross-examination stated that he did not tell the Union that if they gave a specific reason for their request, he would seek to obtain the agreement for them, because, he says, at that time the Union was seeking the entire document. Dawson says, "[w]hile I never argued with the fact that there may be specific provisions of that purchase and sale agreement that might have relevance to the Union's interest, I had to know what those were before I could take a request to [Respondent's management] to find out whether we could get it or not." Finally, Zachery Fasman, one of Respondent's attor- neys, who was present at the meeting on September 30, recalls that Boarman asked if Respondent were going to provide the Union with a copy of the sales agreement as he had previously requested; that Dawson asked "why he wanted it"; and that, though Fasman does not recall the specific words used, Boarman replied that he wanted to examine the document "an see if it was relevant to the 5 Dawson testified during the hearing that in the absence of "any spe- cific reason or reference why the Union wanted [the document), I was unable to go back to management [of Respondent] and give them some coherent reason why it was necessary [to honor the Union's request]", also that since parts of the sales agreement were "highly sensitive," It could not be released "unless we had some reason for their request" Later', however, Dawson admitted that he had cause to believe, and did assume, that the Union's request was based on the successorship and life- time job guarantee provisions in the bargaining agreement and, in fact, he had discussed this with Respondent's management in connection with the Union's request for the sales agreement Finally, contrary to the testimony set forth in the text, Dawson also testified that he did not ask Boarman 'at this meeting to specify the rea- sons the Union wanted the sales agreement 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract between the [Union] and the [Respondent]. "but he says Boarman Aid not specify the provision in the bar- gaining agreement to which he had reference.6 From my observatiOn of the witnesses, the nature of their testimony, and the record as a whole, I credit Boat- man and Petersen as to what Boarman told Dawson at the September 30 meeting. It is clear from Dawson's tes- timony that it was fairly obvious that the Union's reason for requesting the sales agreement was rooted in the life- time job guarantee and successorship clauses of the bar- gaining agreement, and it was reasonable to assume that was the case. Indeed, he did so. If Dawson, in fact asked Boarman for the reasons for his request, as both Dawson (at one time) and Fasman testified, it is difficult to be- lieve that Boarman would have failed to give these rea- sons, which were so self-evident that Dawson says he in- ferred them. I do not find persuasive Respondent's argu- ment that Boarman was so preoccupied with securing the document to' assist the' Union in bargaining with the Post that he refused or failed to give reasons for seeking the document from Respondent. I was not favorably impressed with Dawson's testimo- ny, which as I have noted herein, tended to be inconsist- ent, and something less than candid, as when he insisted that he was hindered in discussing with management the Union's request for the sales agreement because he did not know the reasons for the Union's request, though he concedes that he had readily inferred those reasons; and had discussed them with Respondent's management. I have given consideration to 'the fact that at the time he testified Lawson had not been employed by Respondent for nearly a year. Perhaps his memory was not as clear as it might have been. I have also considered Respond- ent's argument that it was hindered in cross-examining Boarman by procedural rulings These are discussed hereinafter: • C. Respondent's Asserted Reasons for Refusing the Union's Request Dawson was the only witness to testify concerning Respondent's reasons for refusing to give the Union the sales agreement. However, it is clear that he did not par- ticipate in that decision, 9 nor was he engaged in the ne- gotiations between Respondent and the Post which led to the sales agreement, which he did not see until after he had left Respondent's employ. Thus, Dawson's testi- mony on this point appears to be what he says Hoyt told him were the reasons for not complying with the Union's request. Originally, Dawson says, Respondent did not give the Union the sales agreement because, when the Union made its request, the sales agreement had not actually 6 However, Fasman also testified that during this meeting the Union never Offered a reason for requesting the document . 7 Though Dawson testified that Boarman never gave any reason for seeking the sales agreement, it would appear from Fasman's testimony that Boarman did say he wanted to enforce the bargaining agreement Fasman, nevertheless, also asserts that Boarman gave no reason for his request 8 Dawson. at one point, testified that the publisher of the Evening Star, George Hoyt, made the decision to refuse the union request, after consultation with Dawson Elsewhere: Dawson asserted that he did not know Who actually made that decision been signed but, as he recalls, the agreement was signed before September 30. 9 He also avers that at the outset it was Respondent's position that the document was not relevant to the Union's interest, since Respondent consid- ered it to be a sale of assets. At another point, Dawson testified that the reasons for Respondent's refusal were that the Union failed to give specific reasons for requesting the document and, "addi- tionally, the contents of that document, or at least parts of that document were highly sensitive." When asked what he meant by the term "sensitive," Dawson ex- plained that (1) the document contained the sale price and "the understandings and agreements" between the parties (not otherwise detailed), and (2) that other negoti- ations were going on simultaneous with Dawson's discus- sions with Boarman concerning' the sale of an editorial computer system and Respondent's fleet of trucks, and "to permit the document ... to go public or where' the people who were negotiating with the [Respondent] at' the point in time would have been damaging to our in- terests."" Dawson added that Respondent also "took Into consideration" the wishes of the Post that the docu- ment be kept confidential. Dawson says that . the Post "felt it was to their disadvantage if the purchase price, the conditions under which the transfer of assets was made public." On cross-examination, when asked what reasons he was given by Hoyt for refusing the Union's request, Dawson testified only that originally he was told that the sales agreement was in draft form and had not been exe- cuted, and later that there was an understanding between the Post and Respondent "with respect to confidential- ity," and that "there was a great deal of information in that document that would be of no interest, value, to the [Union]." . Finally, testifying as to what he told the Union with respect to Respondent's reasons for refusing the Union's request, Dawson stated, "I believe we talked about it generally I told [Boarman] there was some sensitive in- formation in that document that I felt was inappropriate to release . . . and that, as importantly, there was an un- derstanding between [Respondent] and The Post that the document would remain confidential." To summarize, Respondent's asserted reasons for refus- ing the Union's request for the sales agreement are the following: First, the document had not been ,executed. This, of course, was no longer true as of September 30, when Respondent first answered the Union's request. Second, the Union failed to give specific reasons for the request. This also, was no longer true after September 30. Third, the Post did not want the agreement disclosed 9 Respondent's brief (p 5) says that the "formal agreement" was exe- cuted September 25 is I find this reference to asserted ongoing negotiations with Respond- ent vague and confusing At the hearing it was my impression that, at this point, Dawson was referring to negotiations between Respondent and the Post But, by September 30, the sales agreement between the Post and Respondent was complete And, of course, "the people" who Dawson says were negotiating with Respondent would not have been the Post, since their management knew the terms of the sales agreement On the face of it, I am inclined to think that this was a make-weight thrown in by Dawson on the spur of the moment WASHINGTON STAR CO 395 because it contained the sales pfice and the term i and conditions of the transaction. These are terms which Dawson characterized as "highly sensitive." However, Respondent did not, so far as the record shows, indicate any intention to discuss these matters in any constructive detail." Fourth, disclosure would interfere With Re- spondent's interests in certain unspecified negotiations with some unidentified people, and lastly, Respondent did not think that a great deal of the information in the document would be of interest or value to the Union. V THE ASSERTED PROCEDURAL ERRORS Respondent complains that the rejection of Boarman's affidavit, offered by Respondent, deprived Respondent of its "right to impeach the credibility of Mr. Boarman's hearing testimony" that he explained at the September 30 meeting that the Union sought the sales agreement ,!`to assess the applicability of the successorship clause of the collective bargaining agreement" (Br. 21.) Respondent also complains that revocation of its sub- poenas' to the Regional Director for Region 5 and to the Union for information concerning the Union's dealings with The Post, "severely handicap[ped] Respondent's ability to present relevant evidence in 'defense against [the complaint]" (Br. 11), asserting that "the subpoenae were designed to secure information that would enable [Respondent] to prove that the [Union], in fact, was at- tempting to secure the agreement from [Respondent] for use in bargaining with the Post." 1. The subpoenas. From the outset of the hearing, as has been noted, Respondent insisted that the Union, in seeking the sales agreement from, Respondent, desired to use the document in administering its bargaining agree- ment with The Post After much argument, it was ruled that whether or not the sales agreement would assist the Union in administering its contract with the Post was not relevant ,or material to the resolution of the issue in this case, which is whether the document would assist the union in administering its contract with Respondent. Thus, if it is shown that the sales agreement would likely assist the Union in determining whether its contract with Respondent had been violated, it is of no consequence that the information sought might be of use to the Union for other legitimate purposes as well As the Board stated in Associated General Contractors of California, 242 NLRB 891, 894 (1979). [I]t is well established that, where a union's request for information is for a proper and legitimate pur- pose, it cannot make any difference that there may be other reasons for the request or that the data may be but to other uses. Utica Observer-Dispatch, - Inc. v NL.R.B., 229 F 2d 575 (2d Cir. 1956). " It appears that Dawson offered to "pursue" the Union's request if they would tell him what parts of the agreement they wanted Boarman replied that since he did not know what was in the document, he could not tell what parts he wanted and, therefore, insisted on the entire docu- ment As the Supreme Court once observed, Respondent was, in essence, requiring the Union "to play a game of blind man's bluff" See NLRB v Acme Industrial Co, 385 U S 432, 438 fn 8 (1967) See also East Dayton Tool & Die Co., 239 NLRB 141, 142 fn: 6 (1978). On the other hand, of course, if it were shown that the Union's' request was relevant and necessary to the Union's obligation to represent the unit employees, it would also not make any difference whether the Union may have had any other purpose in mind, for in such case no obligation on Respondent's part would arise. For these reasons, and others set forth in the orders issued on the Motions to Revoke Subpoenas, the motions to revoke were granted and both subpoenas were re- voked. 2. The affidavit. Respondent contends that it was pre- vented from placing in evidence Boarman's pretrial affi- davit with attachments, which, it is asserted, contain prior statements inconsistent with his testimony in this proceeding. As was pointed out to 'counsel at the hearing (Tr. 78, 86), the Federal Rules of Evidence (Rule 613(b)) provide that "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the wit- ness is given an opportunity to explain or deny the same and the opposite party is afforded an opportunity to in- terrogate him thereon." See also NLRB v. Tahoe Vangas, 517 F.2d 747 (9th Cir. 1975) So far as I have been able to determine, Respondent does not claim that there are any specific statements in Boarman's affidavit which are inconsistent with his testi- mony. Indeed, Respondent's counsel stated at the hearing that he was "not concerned about the affidavit. What I want to do is examine the witness about documents at- tached [to the affidavit as] exhibits." (Tr. 78, see also Tr. 52.) These exhibits were identified at the hearing as cor- respondence between the Union and The Post. From the record I assume, and assumed in ruling on the offer of the affidavit, that these exhibits would show, in some detail, that Boarman sought to secure from the Post a copy of the sales agreement between The Post and Re- spondent in order to administer the Union's separate bar- gaining agreement with the Post. Boarman testified to this effect at the hearing. In essence, Respondent argues, not that the affidavit contains any statements which are inconsistent with Boarman's testimony, but that the documents attached thereto, if admitted, would show that the Union vigor- ously sought to obtain the sales agreement from the Post "for purposes having to do with the [Post]," which Re- spondent asserts is inconsistent with' Boarman's testimony that he sought, the sales agreement from Respondent for purposes having to do with Respondent. (Tr. 85-86.) On consideration of the above, and the record as a whole, I reaffirm the ruling rejecting Boarman's affidavit and attachments, on the basis that Respondent has not shown a sufficient basis for their admission within Rule 613(b) set forth above, as interpreted in Vangas, supra. Analysis and Conclusions As stated by the Board in Westinghouse Electric Corp., 239 NLRB . 106 at 107 (1978) (footnotes omitted): It is well established that a labor organization, obli- gated to represent employees in a: bargaining unit 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to their terms and conditions of em- ployment, is entitled to such information. from the employer as may be relevant , and reasonably neces- sary to the proper execution of that obligation. The right to such information exists not only for the purpose of negotiating a contract, but also for the purpose of administering a collective-bargaining agreement. The employer's obligation, in either in- stance, is predicated upon the need of the union for such information in order to provide intelligent rep- resentation of the employees. The test of the union's need for such information is simply a showing of probability that the desired information was rele- vant, and that it would be of use to the union in carrying out its statutory duties and responsibilities. The union need not demonstrate that the informa- tion sought is certainly relevant or clearly disposi- tive of the basic negotiating or arbitration issues be- tween the parties. The fact that the information is of probable or potential relevance is sufficient to give rise to an obligation on the part - of the employer to provide it. The appropriate standard in determining the potential relevance of information -sought in aid of the bargaining agent's responsibility is a liberal discovery-type standard. See also Boeing Co., 182 NLRB 421 (1970), and cases cited in both decisions. Respondent does not dispute these principles, but argues that in the circumstances of this case, the Union's request for information was not sufficiently specific to raise an obligation on Respondent's part to provide the information sought. This is based on its contention that the Union failed, or refused, to tell Respondent the pur- pose for which the Union needed the information, that is; that the Union needed the information in order to intelli- gently enforce its bargaining agreement, or specific por- tions of that agreement. It is not necessary here to con- sider whether, in the situation here presented, such speci- ficity was required. The facts show that -Respondent could reasonably conclude from the facts at its disposal that the Union wanted the information sought in order to administer the "life-time job guarantee" and the "succes- sorship" provisions in the current bargaining agreement and, indeed, that Respondent, in fact, did assume that was the Union's purpose The Board has on several occa- sions held that such constructive notice is sufficient, -in these circumstances, to raise an obligation on a 'respond- ent to provide the relevant information sought, see, e.g., Brazos Electric Power Cooperative, 241 NLRB 1016, 1018- 19 (1979); Westwood Import Co., 251 NLRB 1213 (1980), as is the notice of the Union's purposes which Respond- ent received at the hearing. See Brazos, supra.. In any event, as has been found, contrary to Respondent's posi- tion, the Union, in fact, did advise Respondent of its pur- poses in requesting the information sought. Nevertheless, Respondent argues that the sales-pur- chase agreement between Respondent and The Post sought by the Union is not relevant to the Union's en- forcement of the contract clauses set forth. Respondent initially asserts that the sales agreement merely involves liquidation of Respondent's assets pursuant to its decision to terminate Respondent's operations, and has no bearing on the wages, hours, or working conditions of employees in the bargaining unit who -were displaced when Re- spondent , ceased publication. Respondent . argues that since it had no obligation,to bargain with the Union con- cerning the decision to go out of business, it had no obli- gation to furnish the sales agreement which, it argues, "is relevant only to that dectston." 2 A major difficulty with this argument and several like arguments asserted by Re- spondent is that it assumes a fact that may be critical to the proceeding, i.e., whether the sales agreement is solely a sale of assets or may be, in whole or in part, a transac- tion within the successorship provision of the bargaining agreement. The Union says that if the sales agreement in- volves merely a transfer of assets, it probably will not pursue the matter. Respondent has so far refused to dis- close the agreement or any part of it. Thus, in absence of disclosure, the document appears to have a potential rel- evance to the enforcement of the bargaining agreement and is, therefore, relevant to the working conditions of the employees whose rights were established by that agreement. As the Board stated in Westinghouse, supra, it is not necessary to find here that "the information sought is certainly relevant or clearly dispositive of the basic issues between the parties," "Nile fact that the in- .. formation is of probable or potential relevance is suffu- cent.", The Board has on a number of occasions _held that where the union bargaining representative has received information that the employer may be subcontracting unit work or has or may be transferring its business to another, the union is entitled, on appropriate request, to information bearing on that issue, so that the union may properly represent - the unit employees. See, e.g., Westwood, supra; Air Express International Corp., 245 NLRB 478 . (1979). Respondent, however, asserts that those cases involved transfer of "going concerns" (Br. 15-16), which, it is 'argued, distinguishes those cases from the present matter. However, as Respondent has noted, each of these cases must be determined on its Own cir- cumstances (Br. 11). Here, the bargaining agreement pro- vides that in the case Respondent merges with another, or is acquired, "or consolidates its business . . . or changes its operation in any manner," the resulting- pub- lisher shall be bound by the lifetime job guarantee in the bargaining agreement. Two facts- are self-evident, unit employers who were guaranteed lifetime jobs by the bar- gaining agreement have been dismissed from their em- ployment by Respondent and, as part of the circum- stances involved, Respondent has transferred the build- ing in which these employees were employed - and appar- ently a major part 'of its equipment to another publisher by terms of a written document which Respondent re- fuses to disclose. In the circumstances there is not only a probability that the sales agreement would be useful to the Union in deciding whether to file a grievance on behalf of the unit employees or take other action against Respondent for failing to comply with the bargaining 12 Respondent cites C Elton Johnson, 262 NLRB No 9 [rescinded by Order dated June 11, 1982] which I find inapplicable to the situation in this case WASHINGTON STAR CO 397 agreement,, but the,document is probably essential to that purpose." Respondent's reasons for refusing to disclose the agreement, considered at some length hereinabove, seems to boil down to one point, that Respondent and The Post did not want to disclose the sales prices and "the under- standings and agreements" between the parties In other words, Respondent says that the sales agreement was "confidential" and need not be disclosed, citing Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). In that case, the employer refused to disclose to the union directly cer- tain psychological test material used to determine wheth- er union-represented employees should be promoted, but agreed to disclose the material to a certified psychologist chosen by the union there involved. The employer also refused to give the- union test scores of employees who took the tests, unless the employees specifically agreed to waive their right to confidentiality of this material The Board held that in both 'situations the material should be disclosed directly to the union, subject only to a protec- tive order restricting disclosure of the material by the union. The Supreme Court, first of all, found that the reason- ableness of the employer's concern for secrecy was not in question, a point not at all evident here." Because of the procedural posture in which the case was presented, the Supreme Court held, as to the psychological test ma- terial, only that the Board's remedy in ordering the test material be given directly to the union, rather than to a certified psychologist, was in error. In respect to the test scores, the Court stated that the employer's conditional offer to disclose the test scores was warranted and rea- sonable in the circumstances. What is most evident in Detroit Edison, however, is the fact that at no time did the employer there claim the nght to absolutely refuse to provide the information or documents required by the union in the performance of its duty to represent the employees, but in all situations offered the union reasonable means of securing the nec- essary information. See Air Express International Corp, supra. Here Respondent, though admitting that at least parts of the sales document were relevant to the Union's interest, insisted on a unilateral privilege to withhold the entire document. Nor may Respondent's obligation to provide the sales agreement be defeated by a private agreement between Respondent and The Post, as Re- spondent claims. See General Electric Co. v. NLRB, 466 F.2d 1177 (6th Cir. 1972); cf. Detroit Edison, supra, at 348 (indicating that staturory duties cannot be defeated by the standards of a private group). " Respondent also points out that the bargaining agreement provides that its obligation to provide lifetime jobs under the bargaining agreement ceased when Respondent ceased publication However, this is a matter of contract interpretation, in light of all the facts, to be made by the arbitra- tor, if a grievance is filed It is not my function to pass on the merits of the contract dispute 14 One may have some appreciation for Respondent's desire to keep secret the sales prices involved, but there is little to support a finding of need for such secrecy In any event, Respondent did not identify this as a concern to the Union during their discussions At the hearing, the Union made clear that it was not interested in the sales prices Respondent con- tinues to refuse to disclose the material requested On the basis of the above, and the entire record, I find that by failing and refusing to provide the Union with the sales agreement between Respondent and The Post, Respondent violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The unit set forth in footnote 1 above is appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material to this proceeding the Union has been the exclusive representative of the employees in the appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5; Respondent has violated and continues to violate Section 8(a)(5) and (1) of the Act by failing and refusing to grant the Union's demand for a copy of the sales agreement Respondent and The Washington Post Com- pany entered into between September 2 and September 30, 1981, which is relevant and necessary to the Union's obligation to ,administer and enforce its collective-bar- gaining agreement *with R Respondent 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 and continues to violate the Act by failing and refusing to grant the Union's demand for a copy of the sales agree- ment between Respondent and The Washington Post Company entered into in September 1981, it will be rec- ommended that Respondent cease and desist therefrom and supply the Union, on request, with that document, provided, however, that Respondent may first delete therefrom the sales prices contained therein. The Union may see, study, and use the information provided to the extent required to protect the rights of the unit employ- ees under the collective-bargaining agreement with Re- spondent, but shall not otherwise disclose the sales agree- ment to the employees or others. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edi5 ORDER The Respondent, The Washington Star Company, Washington, D.C., its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain collectively with Columbia Ty- pographical Union No. 101 by refusing to furnish the Union with a copy of the sales-purchase agreement be- 15 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 398 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD tween Respondent and The Washington Post Company entered into during September 1981, or other information relevant and reasonably necessary to the Union's duty to administer and enforce the collective-bargaining agree- ment between the Union and Respondent (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the purposes of the Act. (a) Furnish to the Union, on request, a copy of the sales-purchase agreement between Respondent and The Washington Post Company, entered into in September 1981, in accordance with the provisions of the section entitled "The Remedy." (b) Mail to each employee in the 'appropriate unit cov- ered by Respondent's :collective-bargaining agreement with the Union during August 1981,. at the employee's home address, a copy of the attached nOtice Marked "Appendix."" Copies of said notice, on 'forms provided by the Regional Director fcir Region 5, ,after being signed by Respondent's authorized representative, shall be immediately mailed to the employees designated above. Five additional signed copies shall be provided to the Union for posting at its 'offices and meeting places, it desires. „ 16 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 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 Union by refusing to furnish the Union with the sales- purchase agreement. WE \vat_ NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guranteed by Section 7 of the Act. . WE WILL, on request, furnish to Columbia Typo- graphical Union No. 101 a copy of the sales-purchase agreement entered into between The Washington Star Company and The Washington Post Company during September 1981, in order to assist the Union in protect- ing the rights of employees in the composing room co y -ered by the Union's bargaining agrement with The Washington Star Company THE WASHINGTON STAR COMPANY -;