The Daily Olympian

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ]Federated Publications, Inc. d/b/a The Daily Olym- pian and Northwest Typographical Union No. 99, International Typographical Union, AFL- CIO. Case 19-CA-16517 9 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 28 September 1984 Administrative Law Judge Gerald A. Wacknov issued the attached de- cision. The Union filed exceptions and a supporting brief, and the Respondent filed an answering brief. 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, i and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i The judge found that the Respondent did not violate Sec 8(a)(5) and (1) by refusing to provide the Union with information concerning its ad- vertising department employees He noted the General Counsel's conces- sion that the Union would not be entitled to the information in the ab- sence of a determination through the grievance and arbitration procedure that the Union represents the advertising department employees. The judge also apparently found that the Union allowed the time to lapse under the contractual grievance procedure for bringing the matter to ar- bitration, and the Union has excepted to this finding We find it unnecessary to rely on the judge's apparent finding that the Union did not act in a timely fashion , and we conclude that the result would not be altered even if we assume that the Union's grievance was timely filed and is still viable The General Counsel has not met his burden of establishing that the information sought was relevant to the Union's role as collective -bargaining representative of the unit employees There has been no determination through the grievance and arbitration procedure that the Union represents the Respondent's advertising depart- ment employees, and the General Counsel has conceded that the Union is not entitled to the information in the absence of such a determination In reaching our conclusion, we emphasize that no party contends that the Board' should defer to the contractual grievance and arbitration proce- dure We also emphasize that the complaint alleges only that the Re- spondent unlawfully refused to furnish information, and not that it has unlawfully refused to process the Union's grievance. DECISION STATEMENT OF THE CASE GERALD A . WACKNOV, Administrative Law Judge. Pursuant to notice , a hearing with respect to this matter was held before me in Seattle , Washington, on July 31, 1984. The charge was filed on February 13, 1984, by Northwest Typographical Union No. 99, International Typographical Union , AFL-CIO (the Union). Thereafter, on March 28, 1984, the Regional Director for Region 19 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing al- leging a violation by Federated Publications , Inc. d/b/a The Daily Olympian (Respondent) of Section 8(a)(5) and (1) of the National Labor Relations Act. Respondent's answer, timely filed, denies the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, a brief had been received from counsel for Re- spondent. On the entire record, and based on my observation of the witnesses and consideration of the brief submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a corporation with its office and place of business located in Olympia, Washington, where it is engaged in the business of publishing a daily newspaper. In the course and conduct of its business operations, Re- spondent has annual gross sales in excess of $200,000, and annually purchases and causes to be transferred and delivered to its facilities within the State of Washington goods and materials valued in excess of $5,000 directly from sources outside the State, or from suppliers within the State which in turn obtained such goods and materi- als directly from sources outside the State. It is admitted and I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. in. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with requested in- formation. B. The Facts The Union has been the designated exclusive collec- tive-bargaining representative of Respondent's employees in an appropriate unit i Such recognition has been em- bodied in successive collective-bargaining agreements, the most recent of which is effective by its terms for the period April 1, 1982, to September 15, 1985. Section 4 of the current contract between the parties contains, inter alia, the following language under the heading "Jurisdiction": i Although neither the complaint nor the contract contains a specific unit description, it is clear that the Union's jurisdiction is limited to com- posing room employees 275 NLRB No. 11 DAILY OLYMPIAN 47 JURISDICTION Sec 4. It is recognized that this Agreement dif- fers from previous agreements between the parties in that it provides for job guarantees and other ad- ditional considerations in lieu of a number of previ- ous contract provisions including provisions con- cerning jurisdiction, reproduction, and the use of outside tape. It is understood and agreed between the parties hereto as follows: The Employer shall have the right to the full uti- lization and unrestricted use of any technology, equipment and processes which are or may be avail- able during the term of this or succeeding agree- ments. The jurisdiction of the Union for the purpose of collective bargaining shall be as defined in this Sec- tion 4 herein. In recognition of this, composing room employees, who shall consist solely of jour- neymen and apprentices, agree to perform such work as shall be assigned by the Employer to said employees. The Employer shall have the right to assign, reassign, or transfer any of the work required by existing or new technology, equipment or processes referred to in Paragraph 2 above to any department of the Employer including departments not covered in this Agreement The Employer shall have the sole right to determine what constitutes such technolo- gy, equipment, processes or methods. The Union agrees to process any copy, tape, input or material of any kind from any source. [Emphasis added.] The Employer agrees to provide individual job security protection for all employees in the compos- ing room as outlined and to the extent provided in the job security section of this agreement. The work being performed in the composing room by such employees shall, at any particular time during the term of this agreement, constitute the jurisdic- tion of the union subject to the rights of the em- ployer to assign, reassign, or transfer work as stated in this section herein. The employer, however, shall not transfer any bargaining unit employees out of the composing room without the mutual consent of the employer and the employee On September 21, 1983, Respondent sent the following letter to the Union: In accordance with the Jurisdiction section of the contract now in effect between The Olympian and Northwest Typographical Union No 99, The Olympian will be assigning the pasteup of display and classified advertising to the advertising depart- ment of The Olympian. The change will be effective January 2, 1983 [sic]. Despite the clear language of the contract, the Union took the position that Respondent did not have the au- thority to assign such work to advertising department employees or, in the alternative, that the Union thereby became the collective-bargaining representative of such employees. In this regard, the Union sent the following request to Respondent on January 16, 1984: In order to properly prepare for our meeting 10:00 a.m., Friday, January 20, 1984, please supply this office with the following information: The names, addresses, date of employment, hourly wage and fringe benefits provided the em- ployees now performing work previously per- formed by Composing Room employees. To the extent any condition differs from that pro- vided by the contract, this letter is intended to grieve those violations on behalf of those affected individuals. Respondent has refused to furnish the requested infor- mation on the basis that the advertising department em- ployees who have been assigned the work in question, pursuant to the foregoing explicit contract language per- mitting Respondent to assign such work outside the unit, are not represented by the Union. Therefore, according to Respondent, the information is not relevant to the Union's status as collective-bargaining representative of composing room employees. The General Counsel takes the position that the Union would not be entitled to the requested information except in the event the contract is interpreted, through the arbitration procedure under the contract, to confer collective-bargaining rights to the Union on behalf of those advertising department employees who have been assigned the work. C. Analysis and Conclusions It is clear and indeed conceded by the General Coun- sel that the Union would not be entitled to the requested information unless it is determined , through the griev- ance and arbitration procedure, that the Union represents the advertising department employees in question. How- ever, it appears that the Union has let the time lapse under the contractual grievance procedure for bringing the underlying matter to arbitration. Further, even if such grievance remains viable, the Union would not be entitled to the information until the grievance is resolved in its favor, a highly unlikely event given the clear lan- guage of the contract, which permits Respondent to assign such work to employees in "departments not cov- ered in this Agreement." As neither the Union nor the General Counsel had demonstrated that the requested in- formation is now relevant to a legitimate union need, I shall dismiss the complaint in its entirety. See Press Dem- ocrat Publishing Co. v. NLRB, 629 F.2d 1320 (9th Cir. 1980); Lumber Mill Employers Assn., 265 NLRB 199 (1982); E. L du Pont de Nemours & Co., 268 NLRB 1031 (1984). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not violated Section 8(a)(5) and (1) of the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The complaint is dismissed in its entirety 2 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