News Group Publications, Inc.

430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The New York Post Corporation , a Wholly Owned Subsidiary of News Group Publications, Inc. and Newspaper Guild of New York, Local 3 of the Newspaper Guild, AFL-CIO. Cases 2-CA- 17905 and 2-CA-17906 31 March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 18 July 1983 Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs, and the Charging Party filed a brief in answer to the Respondent's exceptions. 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 conclusions2 as modified, and to adopt the recom- mended Order as modified. 1 In sec. II,B,6 of his decision, the judge erroneously found that the Union's request for information about the personnel employed by User Services Systems, Inc. (USSI) pursuant to USSI's contract with the Re- spondent was not limited to USSI personnel employed on the Respond- ent's premises, whereas the Union's request was so limited . This error does not affect our decision . In addition, in sec. II,B,3 of his decision, the judge erroneously found that in response to the Union's request for infor- mation regarding writers and photographers holding independent, con- tractor, freelance, or stringer status with the Respondent between 1978 and 1981, the Respondent provided information for only a 2-month period, whereas the record reflects that the Respondent provided infor- mation for 1980 and January 1981. We shall modify the judge's recom- mended Order accordingly. 2 We agree with the judge's conclusion that the Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to provide the Union with sta- tistical and other information relating to the equal employment opportu- nities of unit employees and promotions from the bargaining unit. We further agree with the judge that similar statistical information relating to nonunit and managerial personnel is relevant for purposes of assessing the Respondent's record of promoting unit personnel to managerial positions. With respect to this nonunit information, however, we find that the Union has not established the relevance of the wage and benefit informa- tion requested. Additionally, while we agree with the judge that copies of the reports filed by the Respondent ' with the Equal Employment Op- portunity Commission are presumptively relevant, we find that he erred in excluding them on the grounds that they "would appear" to be dupli- cative of other information the Respondent is obligated to furnish. Thus, we find that to the extent they are not repetitive of other information the Respondent is obligated to furnish , these reports must be provided to the Union. In addition, while we agree with the judge's conclusion that the Re- spondent violated Sec. 8(aX5) and (1) of the Act by failing to provide the Union with information regarding the kind and extent of advertising work performed by subcontractors after November 1979, we note that at the hearing counsel for the General Counsel withdrew those portions of the complaint alleging that the Respondent unlawfully failed to provide the amounts billed to it and the information regarding employees in the Respondent's Creative Services Department, who, but for the subcon- tracting, would have performed the advertising work. Accordingly, we shall modify the judge's recommended Order to exclude this information and to require only that the Respondent provide a list of all promotion jobs assigned to subcontractors since November 1979 and the hours spent The judge concluded that the Respondent violat- ed Section 8(a)(5) and (1) of the Act by failing and refusing to provide the Union with information rel- evant and necessary to the Union's representation of bargaining unit employees. In addition, the judge concluded that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by delaying in fur- nishing information requested by the Union regard- ing the Respondent's minority personnel and its contract with USSI. In reaching the latter conclu- sion, the judge relied on amendments made to the complaints at the hearing alleging that the Re- spondent delayed in providing the Union designat- ed portions of the information requested by it. For the following reasons, we conclude that the judge improperly permitted these amendments to the complaints, and we reject his conclusion that the Respondent violated the Act by delaying in fur- nishing information to the Union. The complaints in the instant cases issued on 24 and 30 April 1981 and alleged that the Respondent violated Section 8(a)(5) and (1) of the Act by fail- ing and refusing between December 1980 and Feb- ruary 1981 to provide certain enumerated items of information requested by the Union, including copies of the Respondent's annual reports to the Equal Employment Opportunity Commission (EEOC) and information related to the Respond- ent's relationship with USSI. In May 1981 the Re- spondent answered the complaints, denying that it had violated the Act. On 5 June 1981 the Regional Director issued an order consolidating the cases for hearing and setting a hearing date of 26 April 1982. The Regional Director subsequently issued orders postponing the hearing until 14 September 1982. The hearing was held on 14, 15, 16, 17, and 24 September 1982. On the final day of hearing, coun- sel for the General Counsel moved to amend the complaint to include an allegation that the Re- spondent unlawfully delayed furnishing information on each job. In this regard, the Respondent need not identify the individ- ual subcontractors, as the Union has not established the relevance of this information. Although we agree with the judge that the Respondent is obligated to provide information regarding personnel employed by USSI at the Re- spondent's premises, we shall limit the Union's request to exclude the names and addresses of these individuals, work schedules, and employee manuals. Further, we shall order the Respondent to provide this informa- tion only to the extent it has access thereto. Finally, with regard to the Union's request for information relating to the Respondent's use of independent contractors, freelancers, and string- ers, the judge, relying on Press Democrat Publishing Co., 258 NLRB 1355 (1981), determined that the Union was not entitled to information con- cerning the amounts paid to these individual nonunit writers. In agreeing with the judge, we note that, unlike Press Democrat, the Union here argu- ably does claim to represent the independent contractors , freelancers, and stringers, and this claim provided the impetus for the information request- ed. We find, however, that the Union has not demonstrated the relevance of the individual financial information requested. We therefore shall adopt the judge's recommended Order in this regard 283 NLRB No. 60 NEW YORK POST CORP. 431 to the Union regarding the Respondent's EEOC re- ports and its relationship to USSI. The judge per- mitted the amendments over the Respondent's ob- jections. On the basis of the amended complaints, the judge found that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by its delay until June 1982 in furnishing the Union with a listing of the Respondent's minority ' employees; their job classifications, and their employment histories and by its delay until September 1982 in furnishing the Union with a copy of the Respondent's contract with USSI. Under Section 102.17 of the Board's Rules and Regulations, an amendment to' a complaint may be granted "upon such terms as may be deemed just." As indicated above, counsel for the General Coun- sel first moved to amend the complaints on 24 Sep- tember 1982, the last day of-hearing. There is no explanation why counsel for the General Counsel waited until the last minute to add this allegation to the complaints. Further, the amendments were pro- posed by counsel for the General Counsel at the conclusion of his case-in-chief and were not formal- ly offered and ruled by the judge until immediately before the close of the hearing. Although the record reveals some discussion from which the Re- spondent may have earlier surmised that amend- ments to the complaints might, be proposed, we do not share the judge's confidence in finding that the Respondent was not prejudiced by the 11th-hour amendments.3 Under the circumstances, we find that the judge erroneously allowed counsel for the General Counsel to amend the complaints to allege that the Respondent had unlawfully delayed in fur- nishing information to the Union. Accordingly, we dismiss these allegations of the complaints. In addition, the judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by refus- ing to supply the Union with information requested a Thus this situation differs from that presented in Clark Equipment Co., 278 NLRB 498 (1986), in which we found that the complaint proper- ly included allegations not specifically set forth in the charge . In Clark Equipment, the employer, through the complaint, had notice of the alle- gations brought against it and could therefore meaningfully prepare its defense. Here, however, the allegations of delay, unlike the allegations of refusal to provide information, were not specifically known to the Re- spondent until the final day of the hearing. Thus,-because the Respondent did furnish some of the requested information prior to the hearing, and the complaint did not serve as notice to the Respondent of the additional allegations of delay, the Respondent may have been misled about the nature of the evidence required for itsdefense. Because the Respondent objected to the amendment , and had not ', previously litigated the factual basis for such a violation, this is not a case in which the General Counsel was merely seeking to , amend the pleadings to conform to the proof. Hence 'nothing in this decision affects the precedential value of those cases, in which the Board and courts have found that violations not al- leged in either the complaint or a formal amendment of the complaint could properly be found because they had been fully and fairly litigated by the parties. See, e g., Alexander's Restaurant v. NLRB, 586 F.2d 1300, 1304 (9th Cir. 1978); Multi--llfedtcal Convalescent & Nursing Center, 225 NLRB 429 and fn. 5 (1976). 1 by it regarding the use of sick leave by the Re- spondent's employees and the names and absentee records of individuals placed on the Respondent's absentee control program. in recommending a remedy for this conduct, the judge made no provi- sion for the protection of employee privacy, not- withstanding the Respondent's contention that the requested information is confidential and the obvi- ously sensitive nature of these individually identi- fied records. Johns-Manville Sales Corp., 252 NLRB 368 (1980); Minnesota Mining & Mfg. Co., 261 NLRB 27 (1982), enfd. sub nom. Oil Workers Local 6-418 v. NLRB, 711 F.2d 348, 363 (D.C. Cir. 1983). Accordingly, we shall modify the judge's recommended Order to delete from the individual absentee records, which must be supplied to the Union, information revealing the identity of the employees concerned. ORDER - The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, The New York Post Corporation, a Wholly Owned Subsidiary of News Group Publications, Inc., New York, New York, its officers, agents, successors, and assigns; shall 1. Cease and desist from- (a) Refusing to bargain collectively with News- paper Guild of New York, Local 3 of the Newspa- per Guild, AFL-CIO by refusing on request to supply relevant information needed by the Guild to perform its duties as collective-bargaining repre- sentative of the employees in the unit consisting of all employees in the Editorial, Business, Advertis- ing, Circulation, Publication, Mechanical and Main- tenance Departments, excluding exempt employees and employees already covered by a union contract other than that between the Respondent and News- paper Guild of New York, Local 3 of The News- paper Guild, AFL-CIO. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Furnish, on request and to the extent not al- ready furnished, to Newspaper Guild of , New York, ' Local 3 of The Newspaper Guild, AFL- CIO the following information, updated, if neces- sary, to the current period: (1) Information requested by the Guild in a memorandum dated 23 February 1981 consisting of a list of minority personnel by name, job classifica- tion, and history of promotional record relating to 432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD both unit and nonunit employees, excluding wage and benefit information for nonunit employees. (2) Reports submitted by the Respondent to the Equal Employment Opportunity Commission since 1978 to the extent such information is not repetitive of other information the Respondent is required to provide. (3) Information requested by the Guild on 23 February 1981 consisting of the total number of staffers and the number taking sick leave and the number of days of sick leave taken in the years 1977, 1979, and 1980 and, with respect to those years, a breakdown showing the number of occur- rences of illness, the average length of absences, the number of persons affected by and the number of days docked under the terms of article XI, sec- tion 1, paragraph 2, of the collective-bargaining agreement, and the names of the individuals placed on the absentee control program and their individ- ual absentee records. With respect to such individ- ual absentee records, the Respondent shall provide such records only after deleting therefrom informa- tion identifying the employee concerned. The Re- spondent, in connection with this request, shall permit photocopying of pertinent records and the making of statistical abstracts therefrom. (4) Information requested by the Guild consisting of the names and contractual status of writers and photographers holding independent contractor, freelance, or stringer status with the Respondent in 1978 and 1979, excluding individual financial infor- mation. (5) A list of all promotion jobs assigned to adver- tising agencies since November 1979 and the hours spent on each job, except that the Respondent need not identify the advertising agencies. (6) Information requested by the Guild on 28 November 1980 consisting of the terms and condi- tions of the contract under which work was being performed for the Respondent by Stat-Tab and the volume of work performed by Stat-Tab pursuant to its contract with "the Respondent. (7) Information requested by the Guild on 28 November 1980 consisting of the terms and condi- tions of the Respondent's contract with User Serv- ice Systems, Inc. (USSI) and to the extent it has access thereto the following data concerning all USSI personnel; past or present, who worked on the Respondent's premises: their classifications or job titles and job descriptions, a description of duties performed by them, their current and past pay rates, and their fringe benefits, excluding names and addresses, work schedules, and employ- ee manuals. (b) Post at its office and place of business where notices to employees represented by Newspaper Guild of New York, Local 3 of The Newspaper Guild, AFL-CIO in the bargaining unit herein- above described 'are customarily posted by the Re- spondent copies of the attached notice marked "Appendix."4 Copies of the notice, on forms pro- vided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including, as de- scribed above, all places where notices to employ- ees employed in the appropriate bargaining unit are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with Newspaper Guild of New York, Local 3 of The Newspaper Guild, AFL-CIO by refusing to supply, on request, relevant information needed by the Guild to represent the employees covered under its contract with' us. WE WILL NOT in any like. or related, manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, furnish the Guild with the following information: 1. Information requested by the Guild in a memorandum dated 23 February 1981 consisting of a list of minority personnel by name, job classifica- tion, and history of promotional record relating to both unit and nonunit employees, excluding wage and benefit information for nonunit employees. 2. Reports submitted to the Equal Employment Opportunity Commission since 1978, if such infor- NEW YORK POST CORP. oration is not repetitive of other information we must provide. 3. Information requested by the Guild on 23 February 1981 consisting of the total number of staffers and the number taking sick leave and the number of days of sick leave taken, in the years 1977, 1979, and 1980 and, with respect to those years, a breakdown showing the number of occur- rences of illness, the average length of absences, the number of persons affected by and the number of days docked under the terms of article XI, sec- tion 1, paragraph 2, of the collective-bargaining agreennent, and the names of the individuals placed on the absentee control program and their individ- ual absentee records. In connection with this re- quest, we will permit the photocopying of perti- nent records and the making of statistical abstracts therefrom. 4. Information requested, by the Guild consisting of the names and contractual status of anyone hold- ing independent contractor, freelance, or stringer status with us in 1978 and 1979, excluding individ- ual financial information. 5. A. list of all promotion jobs assigned to any advertising agencies since November 1979 and the hours spent on each job as reflected by billing statements. 6. Information requested by the Guild on 28 No- vember 1980 consisting of the terms and,conditions of the contract under which work was being per- formed for us by Stat-Tab and the volume of work performed by Stat-Tab pursuant to its contract with us. 7. Information requested by the Guild on 28 No- vember 1980 consisting of the terms and conditions of our contract with User Services Systems, Inc., and the following data -concerning all personnel of User Services Systems, Inc., past or present, who worked on our premises: their classifications or job titles and job descriptions, a description of the duties performed by them, their current and past pay rates, and their fringe benefits, but excluding names and addresses, work schedules, and employ- ee manuals. THE NEW YORK POST CORPORATION, A WHOLLY OWNED SUBSIDIARY OF NEWS GROUP PUBLICATIONS, INC. Wendell Shepherd and Waldemar Comas, Esqs., for the General Counsel. Howard Squadron, Jonathan Sulds, and Ray Beckerman, Esgs. (Squadron, Ellenoff, Plesent & Lehrer), of New York, New York, for the Respondent. Joel Block; Esq., of New York, New York, for the Charging Party. DECISION 433 STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. These consolidated proceedings were tried before me on September 14 to 17 and 24, 1982, at New York, New York. The charges were filed on March 10, 1981, by the Newspaper Guild of New York, Local 3, The Newspa- per Guild, AFL-CIO, or "The Guild." The complaints and notices of hearing in Cases 2-CA-17906 and 2-CA- 17905 were issued on April 24 and 30, 1981, respectively. The proceedings were consolidated by order dated June 5, 1981. The complaint alleges that Respondent, publisher of the New York Post, violated Section 8(a)(5) and (1) of the National Labor Relations Art by failing and refusing to furnish certain information requested by the Guild and, in certain instances, by procrastination in furnishing information. The Respondent contended that no viola- tion of the Act had occurred because in the case of every request either the information was in fact furnished or was already in the Guild's possession, or was not le- gally required to be furnished." The parties were afforded full opportunity to be heard; to call, examine and cross-examine witnesses; and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel, the Respondent, and the Charging Party. On the entire record and based on my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION There is no issue concerning jurisdiction. The Re- spondent, The New York Post Corporation, a wholly owned subsidiary of New Group Publications, Inc., admits that it is now and at all material times has been an 1 The Respondent was permitted, on motion, to incorporate in its answer certain allegations which it denominated as affirmative defenses, so as to conform the answer to such evidence as may have been intro- duced during the hearing with respect to the following matters: lack of joint employer status between Respondent and certain companies to whom work had been subcontracted (so as to excuse Respondent's failure to produce information from the files of those companies); confidentiality of information respecting freelancers and employees of certain companies to whom work had been subcontracted; lack of good faith on the part of the Guild in making requests for information; lack of relevancy of infor- mation sought; the burdensome nature of the requested-for information, misuse of information by the Guild; lack of delay on the part of the Re- spondent in furnishing information . To the extent that material evidence was submitted by the Respondent which tended to establish any of these contentions, such evidence is discussed in connection with the informa- tional request to which it is pertinent . Except in certain instances noted below, no substantial evidence was introduced, by Respondent which would have tended to establish any of these defenses. The contention that requests were burdensome is disposed of by the suggestion made in Safeway Stores, 252 NLRB 1323, 1324 (1980), enfd. 691 F.2d 953 (10th Cir: 1982): In short, Respondent's obligation is to provide the information it has available, to compile it, or to give'the Union access to the records from which it can reasonably compile the information. And, if the production of the information ordered involved substantial costs, the parties may bargain over the allocation of these costs. 434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Guild is now and at all material times has been a labor organiza- tion within the meaning of Section 2(5) of the Act. It was stipulated that News Group , Publications, Inc., which owns the New York Post Corporation , is a subsid- iary of a ,corporation known as News America, which owns publications and other corporations in Texas and New York and which is itself a subsidiary of News Lim- ited of Australia, which is a subsidiary of News Corpora- tion. II. THE ALLEGED VIOLATIONS OF SECTION 8 (A) (5) AND (1) A. Background The Respondent has had ,-a collective-bargaining rela- tionship with the Guild since 1935 . The last two collec- tive-bargaining agreements - were for the periods from March 31, 1978, through March 30, 1981, and March 31, 1981, through March 30, 1984. The bargaining unit is: All employees in the Editorial , Business, Advertis ing, Circulation, Publication, Mechanical and Main- tenance Department, excluding exempt employees and employees covered by another job contract. During the period from November 28, 1980, to Febru- ary 23, 1981 , Joy Cook, the Guild's' unit chairperson, ad- dressed a: series of requests for information 'to Leonard Arnold, personnel director and industrial relations man- ager of the Respondent. These are claimed by the Guild to relate to several broad categories of union activity or interest. Thus requests for information relating to the Re- spondent's absentee control program and for copies of complaints filed with the Equal Employment Opportuni- ty Commission are claimed to have been made in order to enable the Union to monitor the performance of the existing ' contracts. The alleged need 'to ascertain whether union jurisdiction was being violated is claimed to under- line a request for data respecting independent contrac- tors, freelancers, and stringers. The claimed need to as- certain whether the jobs of the unit were being eroded and jurisdiction of the Union thereby impaired forms the basis of requests for information regarding three compa- nies doing work for Respondent formerly performed by unit personnel and the nature 'of the work being per- formed. - B. Monitoring Functions 1. Request for data relating to equality of employment opportunities Article XX, section 1 of the collective-bargaining agreement prohibits "discriminations in hiring or promo- tion for reasons of race, creed, color, sex, national origin, political belief, or membership or activity in the Guild." It obligates the Respondent to continue to abide by the principles of nondiscrimination embodied in Federal and state statutes and to observe "the spirit as well as the letter', of this provision . . . so that relationships between the parties may develop constructively." On February 23, 1981 , the Guild requested information respecting various Guild-covered employees who are members of minority groups and copies of some reports filed by the Respondent with the Equal Employment Opportunity Commission since 1978, as follows: Name, Date of Hire, Date of Birth, Sex, Race, Marital Status, Salary Group, Job Classification, Rate of Pay, Merit Pay and Experience Level for all staffers in,Guild jurisdiction , by alphabetical list- ing. A separate breakdown by wage group showing the number in each group, age, sex and race or na- tional origin. A breakdown of all persons on posted rates in Groups 1-5B who were hired after June 9, 1978, their names, date of hire, job classification, salary rate, experience level, sex, race and age. The average salary for Post employees. The number of Post employees in Guild jurisdic- tion as of February 1, 1981 with a breakdown by full time, part time, temporary, voucher; by age, sex and race. Copies of the Post's EEOC reports filed since 1978. The Respondent provided a listing of minorities in Guild jurisdiction by name and job classification and a history of their promotion records. However, the infor- mation was not transmitted to the Guild until June 22, 1982, and was limited to June 1982. None of the other information requested has been furnished. No data has been furnished for the previous years . No information was provided respecting managerial positions. 'The Union contends that the statistical breakdown and the prior years' information would have enabled it to as- certain whether -a pattern of discrimination existed and, if so, whether conditions in this regard were improving or deteriorating. Cook's February 23 memorandum advised the Re- spondent that the information was requested in order to facilitate preparations for contract bargaining and arbi- tration.' Cook testified that she was interested in obtain- ing the statistical breakdown of the Post's work force be- cause she had been approached by Guild members who wished to invoke the grievance machinery for alleged violations; that their complaints corroborated her person- al observations; that she had, perceived a decline in mi- nority representation in top pay groups in the reporter category and in the top level responsibilities; that com- plaints received by her included complaints from black reporters and from the Chairman of the Human Rights Committee at the Post; and that complaints also were re- ceived relative to, the absence'of minorities and women in managerial capacities and to their under-representation in promotions from Guild ranks to managerial positions. None of these persons filed individual complaints re- specting their own failure to achieve promotion to man- agement positions; their complaints related to their gen- eral perception of the situation at the Post. The Respondent has taken the position' that its failure to comply with the Guild's request - is excused because the information which it refused to furnish is available to NEW YORK POST CORP. the Guild from several other sources, including a roster of employees previously supplied to it as of February 1, 1981, weekly personnel transaction sheets which have been sent to the Guild routinely since 1971, weekly voucher reports (relating to persons hired on a tempo- rary basis) that the Post has furnished since 1979, and weekly reports respecting personnel changes at the Post provided pursuant to the collectivebargaining agree- ment. Arnold sent Cook a memorandum explaining' in some detail the means by which the data sought by the Guild could be extracted from all this material. This would disclose which personnel had been terminated, who were full and who were part-time employees, and whether individuals have received increases due - to changes in experience levels. However, he, insisted that the EEOC reports themselves could not be made avail- able to the Guild because they contain information with respect to all employees, including those who are not within the Guild's jurisdiction. It"is well settled that that fact is an insufficient basis for refusing to furnish the in- formation requested. The yardstick is not whether the persons respecting whom information is sought are in the unit, but whether the information sought is relevant to the duties of the bargaining representative. This is espe- cially so when there is suspicion that the bargaining unit is being eroded.2 After an exchange of memoranda on the subject in June 1981, the Guild filed a grievance alleging the exist- ence of an overall pattern of discrimination in the hiring and promotion of women and employees belonging to minority groups. As formulated in the numerous cases which have con- sidered the problem of the extent and manner in which disclosure ought to be required, the general principles are easily stated: A labor organization representing em- ployees in a bargaining unit is entitled to such informa- tion from the employer as may be relevant and reason- ably necessary to the proper performance of its duties, whether these involve negotiating a collective bargaining agreement or administering it in an intelligent fashion. It is sufficient if the desired information is probably or po- tentially relevant and useful, as judged by a liberal dis- covery-type standard. The fact that the requested infor- mation may relate to employers and employees outside the represented bargaining unit does not, by itself, negate its relevance. Wage and related information pertaining to employees in the bargaining unit is presumptively rele- vant; with respect to other requested data, relevance must be demonstrated more precisely by reference to the circumstances of the case. In short , a union is entitled to discovery-type disclosure, with relevance being pre- sumed as to unit personnel and required to be demon- 2 Temple-Easte.3;- Inc., 228 NLRB 203 (1977), enf. denied 579 F.2d 932 (5th Cir. 1978) (on due-process grounds unrelated to the point for which the case is cited), General Electric Co., 199 NLRB 286 (1972) (union had reason to suspect bargaining unit was being eroded); Curtis-Wright Corp, 145 NLRB 152 (1963), enfd. 347 F.2d 61 (3d Cir. 1965); Hollywood Brands, 142 NLRB 304 (1963), enfd 324 F.2d 956 (5th Cir. 1963), cert. denied 377 U.S 923 (1964) (information, sought respecting nonunit em- ployees at another plant); AGC of California, 242 NLRB 891 (1979), enfd. as modified 633 F,2d 766 (9th Or. 1980) (full membership roster held not relevant and order modified to limit disclosure of roster to portions list- ing relevant membership classifications). 435 strated before disclosure will be directed in other cases.3 The question to be addressed, in every case in which nonunit personnel are involved, is essentially whether a sufficient showing of relevance has been made. In practi- cal terms, this means that the probable need for the in- formation, in the particular circumstances, will justify the demand.4 In the present case the unit chairperson has received complaints from a number of individuals based on their general perception of what they regarded as violations of article XX, section 1 of the collective-bargaining agree- ment and has testified that she is personally aware of cir- cumstances which she believes may constitute such vio- lation. The existence of a violation can only be verified if the Union has the requested information concerning what minorities are hired, what women are hired, what pay groups they are in, what types of work they are per- forming, and how many of them are being promoted to higher positions. The information respecting unit em- ployees in these categories is presumptively relevant, and would be deemed so even in the absence of a nondis- crimination clause in the contract.5 In any event, con- trary to Respondent's contention, I find that an excellent showing has been made that the requested data concern- ing nonunit employees is needed, for without it the exist- ence or nonexistence of a pervasive pattern of discrimi- nation is not likely to be verifiable. Having actually re- ceived complaints from a number of sources respecting an overall pattern of discrimination affecting both unit and nonunit employees, and believing that she has ob- served it herself, the unit chairperson must have this in- formation, respecting both unit and nonunit employees, in order to determine whether a basis exists for filing of grievances, for the purpose of preparing contract lan- guage and for the conduct of future negotiations with the object of terminating such discrimination as may be found to exist, for the purpose of proceeding with the correction of violations of the existing agreement, and for the prosecution of any grievances filed. The list fur- nished by the Respondent setting forth the names of the minority employees at the Post is, by itself, ' a singularly unhelpful document as it provides no basis for compari- son with prior years. The list is not even dated and was assumed by the unit chairperson to be a currentllist as of the time when it was received. However, insofar' as the actual EEOC reports already filed are concerned, no apparent need for their disclosure has been demonstrated.' The statistical data directed to be 3 NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB V. Truitt Mfg. Co, 351 US 149 (1956), Curtiss-Wright Corp., supra, fn. 2; Westing- house Electric Corp., 239 NLRB 106 (1978), modified and enfd 648 F.2d 18 (D.C. Or 1980). 4 See, for example, Safeway Stores, 252 NLRB 1323 (1980), enfd. 691 F.2d 953 (10th Or 1982); General Motors Corp., 243 NLRB 186 (1979), modified and enfd. 648 F.2d 1$ (D.C. Cir. 1980), and Bendix Corp., 242 NLRB 1005 (1979). s Westinghouse Electric Corp., 239 NLRB 106 (1978), modified and enfd. sub nom. Electrical Workers IBEW v. NLRB, 648 F.2d 18 (D.C Cir. 1980). (Upheld order for furnishing of compilations of data but modified so as not to require furmslung of copies of all discrimination complaints but merely information regarding the alleged bases of complaints filed, in order to assure confidentiality, In Safeway, fn. 1, supra, production was directed of copies of complaints or charges with names deleted.) 436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made- available would appear to meet the- needs of the Guild. No necessity for the production of the reports themselves has been established.6 I am not dissuaded from the conclusion reached herein by the Respondent's arguments. The fact is that on cross- examination the Guild's unit chairperson conceded that she had not received a formal complaint respecting,these matters in her official capacity as a Guild official. She had testified convincingly to receipt of numerous infor- mal complaints regarding discrimination in promotion to managerial positions, from the unit and the Guild's duty to - investigate - those circumstances is clearly within its policing function under the contract. Ina memorandum to Cook dated ; February 27, 1981, Arnold asserted that some -of the information requested may be extracted from information already provided to the Guild. There is no evidence in the record that the information sought to be elicited can in fact be extracted from the data previously furnished and there ;is no evidence to indicate how much difficulty such extraction will entail. Nevertheless it may be observed that if the requirement to furnish informa- tion exists at all, then it must be furnished in comprehen- sible--and usable form and in such fashion- as commits the Employer to a representation that such are indeed the facts of the case. A response to a request for information which consists -of a lengthy explanation of the manner in which such information can be extracted from, other records does not constitute compliance. The Guild is not required to undertake a burdensome investigation to ex- tract and distill information from a mass of records when the same data is readily at hand to the Employer.7 The Respondent's argument that the Guild may legally obtain access to the filed EEOC reports is beside the point and places on the Guild the very burden the law says the Guild is not, required to assume. The issue is not whether information is available to the Guild from any particular source but whether the Post is obligated to furnish it. The answer is resoundingly in the affirmative to the extent that the data is in the Post's possession and will not, by its disclosure, trample on anyone's right of priva- cy., The instant request did not involve data capable of easy distillation from the reports already furnished by the Post in other connections. As for the reports themselves, Cook testified that recourse to the Equal Employment Opportunity Commission for copies would have entailed delay; the Respondent offered no, evidence to the con- trary. Accordingly, I find that the Respondent has violated Section 8(a)(l) and (5) of the Act by its failure to furnish 6 In the Bendix Corp., 242 NLRB 1005 (1979), production of charges and complaints involving unit employees was directed because it was ex- pressly found that the union had established the relevance of the charges and complaints. A similar result was reached in General Motors Corp., 243 NLRB 186 (1979), enfd. 648.17.2d 18 (D.C. Cir 1980) 7 Kroger Co., 226 NLRB 512 (1976) (note comment by Board that when relevant request for information is received , employer's obligation is to provide it or set forth adequate reasons why it is unable to do so), Borden, Inc., 235 NLRB,982, 983 (1978), enfd. in relevant part 600 F.2d 313 (1st Cw, 1979), Bel Air Bowl, 247 NLRB 6, 11 (1980), enfd. mem. 631 F.2d 736 (7th Cir. 1980). 6 New York Times Co., 265 NLRB 353 (1982) (the fact that employees may have -the information and be willing to divulge it does not relieve the employer of its responsibilities under the Act). a list of minorities in its jurisdiction by name, job, classifi- cation, and history of promotional record until June 1982, approximately , 1 year and . 4 months after it had been requested; by failing- to furnish the other informa- tion requested in the memorandum of February 23, 1981, from Jay Cook to Leonard Arnold; by failure to furnish the information for both unit and-,nonunit employees; with the exception therefrom of^the request for copies of the Post EEOC-reports filed since 1978 . I find that the Respondent - did not violate the Act by refusing to fur- nish copies of the EEOC reports filed since 1978. An al- legation added to the complaint at the hearing alleging violation of the Act by reason of the Respondent 's delay in furnishing the reports accordingly also falls. 2. Information respecting sick leave and the absentee control program ,On February 23, 1981 , the -Guild requested information respecting the total number • of staffers and the number taking sick leave, and the number of days of sick leave taken in the years 1977, 1979, and 1980;9 and, with re- spect to those years, a breakdown showing the number of occurrences of illness, the average length of absences, the number of persons affected by and the number of days docked under the terms of paragraph 2, section 1, article XI of the collective-bargaining agreement. The names of the individuals placed on the absentee control program and their individual absentee records. The Re- spondent furnished the figures for the number of persons and the number of days docked because of six or more occasions of illness during the period from March 29, 1979, to March 19, 1980, and from March 20, 1980,- to February 27, -1981, together with the names of 10 indi- viduals who had been placed on the absentee control program for the year commencing September 1, 1980, and ending , August 31, 1 0 The pertinent provision of the collective-bargaining agreement, article XI, section 1, paragraph 2, ,which was first negotiated at the New York Daily News and- then adopted in the New York Post contract of 1978, entails an amendment of the sick leave schedule. Employees who are absent because of illness or accident 'are not re- quired to make up time lost- but receive their regular salary in accordance_ with the schedule. Themodificatio n is as follows: - - Notwithstanding the foregoing schedule, an em- ployee ' who in any period of 12 months, beginning with the first day of any absence due to illness or accident, is absent on more'than five occasions, and who has not exhausted his paid sick leave entitle- ment, shall not be paid for the first two days of the sixth and any subsequent period of an absence during such twelve months period unless hospital- ized during such additional absence. This provision shall be effective March 20, 1979. 9 No request was made for this information for the year 1978 because of the existence of an anomalous situation during that year. 10 An additional request by the Guild for information _ respecting the reasons for the absences was withdrawn. NEW YORK POST CORP. In the event of excessive absences during any year an employee is placed on the absentee control program. This means that he must present a medical certificate for each illness or day of absence or alternatively charge the day to vacation entitlement or to optional holiday. If nei- ther option is elected he is not paid for the day. The review period under the absentee control program runs from September 1 to August 31- of each year. An em- ployee's name is removed from the list if he reduces the number of absences during - the following year to no more than six occasions of illness. It is to be noted that specific provision is made for the case of recurring ill- ness: if an employee's physician attests that an illness is of a recurring nature, the employee need not furnish a certificate for each day of absence but is obligated to continue course of treatment and furnish a certificate at- testing to each visit to his physician. The Guild claims it sought the information requested for the purpose of negotiating the elimination or modifi- cation of the sick leave provisions that had been inserted in the 1978 contracts. The Guild attempted to delete the provision during the collective-bargaining negotiations with the Respondent in 1981. However, bargaining was concluded without obtaining management agreement to such deletion because management took the, position that the overall program, consisting of the sick leave entitle- ment, the absentee control program, and the 1978 provi- sions for docking employees after excessive absences, was effective in curbing chronic abuse, especially on Friday afternoons and Monday mornings. The Guild rep- resentative specifically advised- the representatives of management that the sick leave information requests con- tinue to be pending notwithstanding the conclusion of the 1981 negotiations and that the Guild expected to press the issue again in 1984. The Guild asserts that it needs the information in order to establish that the provision does not protect the Employer from chronic abuse of sick leave and yet actu- ally penalizes employees who work when they, are ill in order to complete specific assignments because if they suffer lapses they are docked under these provisions, with the result that they are better off if they do not come into work and have one continuous period of ill- ness even if important work remains unfinished. The Guild contends that the figures for the years requested would provide a comparison which would show the true impact of the provisions; that the individual absentee records would show that the employees were being placed in a position analogous to double jeopardy, being required to present medical certificate in order to, obtain sick leave and then being docked thereafter even if they possess a certificate, and that employees who are not abusing the program are penalized unfairly because the data respecting chronic abusers is not excluded from consideration by the Post in assessing the impact of the docking provisions. Whether the Guild is right or wrong in, its contentions, the advancement of these points is clearly within the scope of its duties and obligations as the collective-bargaining representative of the ' unit em- ployees. As its contentions are not frivolous, the Guild is entitled to the information which would tend to support (or undermine) its position. The statistical information re- 437 quested is precisely what the Guild needed for the pur- pose of eliminating discrepancies between Guild and Post figures for'the' size of the unit and the number of staffers and for an analysis of the individual absentee records that it was hoped would support the Guild's contention that major abuses of sick leave by a few persons should not be counted in assessing the impact of the sick leave provisions on the remainder of the unit. To the extent that information related to members of the unit, it was presumptively relevant and to the extent that it related to other employees the relevance was clearly shown. The information requests, as communicated to Arnold, were phrased only in terms of unit, members, but the re- sponse was -not based on any such limitation. The Post took the position that the requested information was con- fidential -and notified the Guild that its representatives could examine the records but would not be permitted to photocopy them or gather statistical , informatiion from them. The Respondent was only willing to provide informa- tion as to the number of persons affected by the docking provision, the number who were docked, the total number of days they were docked during the period from March 1979 to March 1980 and from then until March 1981, and a list of individuals who were on the absentee control program. The Respondent asserted that this information was provided but Cook denied having ever received the list of employees on the absentee con- trol program- I find it difficult to believe that the Respondent was acting in good faith in this regard, and I believe the Re- spondent simply determined not to make the requested disclosure. The Respondent imposed restrictions 'solely on the basis of the purported confidentiality of the infor- mation contained in the sick leave records, yet inconsist- ently authorized the Guild to send representatives to ex- amine the records. It persisted in this contradictory stance even after Cook notified Arnold that she was seeking only aggregate totals and would be content to accept copies of the records with the confidential infor- mation blocked, out. Thereupon the claim of confidential- ity was extended to the aggregate totals and the break- down by occurrences, matters whose disclosure could not possibly have violated anyone's right to confidential treatment of their records. By refusing permission to photocopy records, the Respondent denied to the Guild what has been referred to as "the now nearly universal use of photocopies in, business affairs."i1 Its refusal to allow the Guild, representatives to take copies with the confidential information blocked out demonstrates the in- sincerity of its position. The Respondent's insistence on imposing a hardship on the Guild makes excusable the Guild's failure to accept the invitation to send people to the personnel office to sit making extensive notes of the contents of the records. In situations where confidential- ity claims have been upheld, the reasonableness of the concern for secrecy was apparent.12 " Communications Workers Local 1051 (American Telephone) Y. NLRB, 644 F 2d 923, 929 (1st Cir. 1981), enfg. 250 NLRB 47 (1980). 12 See Detroit Edison Co. v NLRB, 440 U.S. 301'(1979) 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The point is significant, for Cook's protestations of ne- cessity for the data lose some of their effectiveness in light of her failure to" avail herself of the opportunity given to her by Arnold to inspect the records; on Febru- ary 23, 1981, he advised her that the balance of the infor- mation sought was available for inspection. Because ag- gregate totals were sought, the photocopying limitation would not necessarily have created a severe problem. Even the availability of the records for investigation in convenient form was not controverted:' an absentee record is maintained for 'each employee by the personnel department ' in a three-ring looseleaf binder and the records are available for inspection by both the employ- ee and the Guild. Both 'Cook and other officials of the Guild have availed themselves of these records on other occasions in the past. Furthermore a copy, of the list -of employees on the absentee control program is routinely furnished to, the Guild annually, when the list is made up in September of each year. Nancy Lambert, one of Re- spondent's record custodians, testified that anyone with access to the absentee records for all the employees for the years 1977 through 1982 could determine the pattern of absences simply by looking at the absentee sheet for each employee for each of the 5 years., This does not help the Respondent, however, in view of the refusal to permit the gathering of statistical information, and it was conceded that no copying of the absentee records was permitted. In its brief the Respondent asserts that access to the records having been offered, the burden was on the Union to show the inadequacy of the offer. I find, that the Union has done precisely that by testimony, uncon- troverted, that it was permitted neither to make copies nor to make statistical abstracts of the information' being made available. Under such limitations the information was not really made available. 13 'Accordingly, I find that the Respondent violated Sec- tion 8(a)(1) and -(5) of the Act by refusing to make the requested information available under such circumstances as to allow the Guild to make copies of information or to collate and codify the results of-the examination. 14 , At the hearing, the General Counsel moved to amend the -complaint to allege violation of the -Act by reason of the Respondent's delay in furnishing the Guild with the information requested by it. To the extent that informa- 1a In United Aircraft Corp., 192 NLRB 382, 389 (1971), modified on other grounds 543 F.2d 422 (2d Cir. 1975), it was held that an employer fulfilled its obligation by making information available not necessarily in the exact form or on the exact times requested, at a reasonable time, and in a reasonable place with an opportunity to make copies if so desired. In short, there are limitations to the burden which may be placed on the Employer, but there is no doubt about the Union's right to make copies and to take down information to codify the results of the exammation of the records, without which right there is no point in examining them at all 14 It is apparent from the testimony of both sides and the manner in which'they approached the question that it was clearly understood that the Guild wanted the total number of staffers and the number taking sick leave and the number of days for the years 1979, 1980, and 1981 of unit members and nonunion members. The Guild memorandum to Arnold, however, referred only to staffers who are members of the Guild. In her testimony, however, Cook testified that what was asked for was the total number of staffers and the number taking sick leave for the year stated, without limitation to unit members. There is nothing m the record to in- dicate that Arnold ever understood the request differently tion has been furnished, but only after a protracted delay, I find a ,separate violation of the Act. 3. Independent contractors, freelancers, and stringers The Guild requested "detailed information regarding the names, contractual status and fees and all compensa- tion for anyone holding independent contractor, free- lance or stringer status with the New York Post in 1978, 1979, 1980 and 1981." In response, the Respondent fur- nished a list of the names of individuals whose work ap- peared in the Post during a 2-month period. None of the other information was provided, though initially the Re- spondent agreed to provide the requested information for 1980 and for the month of January 1981 exclusive of the monetary information. The stated objective of this request by the Guild was the preparation of the contract bargaining positions and preparation for pending arbitrations. The issue of Re- spondent's use of independent contractors, freelancers, and stringers has been a source of dispute between the Guild and the Post since 1977. There can be little ques- tion that the Guild needs the information' requested in order to determine the nature of the business relationship between the Respondent and these people or entities. To support its contention that the Respondent violated the collective-bargaining agreement by assigning unit work to nonbargaining unit individuals, the Guild'must be able to show that they would be deemed includable in the unit. The Guild is therefore entitled to the information requested with the exception of the 'amount of the indi- vidual compensation. _ The Guild ' argues that the determination of which, of the nonunit individuals it would seek to assert jurisdic- tion over at an arbitration depends on their contractual status and the fees and compensation paid to them. It is contended that these are the guidelines mandated by the rationale employed in 'the decisions of earlier arbitrations involving the columnist, Murray Kempton, and the car- toonists, Shain and Day. However, it has been held spe- cifically that only information respecting the aggregate amount paid, to independent contractors, freelancers, and stringers for editorial products is required to be disclosed and not the, individual personal financial arrangements entered into between the publisher and the contributors. The amounts paid to individual nonunit writers are re- quired to be kept confidential out of concern for - the right to privacy of those persons who are not represent- ed by the Union.15 Furthermore, the arbitration awards specifically negate the relevance of the compensation paid to the individual writers. The compensation figures were not supplied at all in the Shain-Day arbitration and were expressly stated to be insignificant, in and of them- selves, in the Kempton decision, where' they came into play only to prove another point. Both decisions profess to be based on criteria used by the National Labor Rela- tions Board. In the Kempton arbitration decision, it was stated: - 15 Press Democrat Publishing Co., 258 NLRB 1355 (1981). NEW YORK POST CORP. 439 The criteria used by the NLRB to determine if an employment relationship exists are the degree of control and direction that the Employer has a right to exercise over the objective of the work, to be done and over , the means by which that objective is accomplished. The Shain and Day arbitration award was based en- tirely on the degree of direction and control exercised by the Post over the work of those two cartoonists. They were both held to be employees: Murray Kempton was held not to be included in the collective-bargaining unit on the basis of considerations such as the lack of control over the contents of his column or the manner in which they were written, his freedom regarding hours and work places (he had an office at the Post), and the uniqueness of the work he contracted to supply . The ar- bitrator specifically noted that method of payment is not the basic criterion and that there is not necessarily a rela- tionship between the form of payment and status. In Kempton's case the amount of compensation was consid- ered only to the extent that its size was deemed a meas- ure of his independence , insofar as it put him in a posi- tion to negotiate a sale of columns. The transaction was in the nature of a business deal,,rather than a sale of his time measured by hours. It was only in respect to the manner in which the size of his salary reflected the basic nature of his dealings with the Post that it was consid- ered. The number of dollars in itself was not considered meaningful.'6 The arbitration awards and earlier rulings of the Board thus make it clear that the amount of compensation paid to the individual contributors is not pertinent. The Post is correct in its contention that lack of information re- garding individual compensation does not at all affect the ability of the Guild to process ' the grievance. The Post was therefore not required to furnish data respecting in- dividual compensation. However, all of the other infor- mation should have been provided. The list of individ- uals whose work appeared during a 2-month period was a patent failure to'comply with'a legitimate request. The failure to do so violated Section 8(a)(1) and (5) of.=the Act. Respondent's counsel argues in the posthearing brief that because the request ' involves nonbargaining unit data, the burden is on the Guild to show the specific uses to which the information would be put , it being contend- ed that the Guild had failed to do so by "mere assertion" that the information was sought to arbitrate certain cases. However, I find that this is a sufficiently specific reason and was a proper basis for the informational request.17 16 The arbitrator noted: The way a man is paid is not the basic criterion . We have already noted that the NLRB uses control and direction rather than pay or fringe benefits as its criteria, reflecting a recognition that the form of payment bears no necessary relationship to the status.... The evidence leaves no doubt that Kempton was selling columns rather than hours of work and that his columns are so unique and desirable- that he was compensated far above the ordinary. He has reached a level where he must be deemed capable of making a busi- nessdeal to sell his product as a principal rather than his work as an employee. IT Boeing Co., 182 NLRB 421 (1970) (information sought in order to reach decision whether to proceed to arbitration). In addition, the Guild asserted that the, data would be used to determine which of, the nonunit individuals the Guild would seek to assert jurisdiction over at arbitra- tion: Thus two good reasons have been stated. 4. Lerner-King-associates The Guild requested a list of all promotion jobs as- signed to Lerner-King Associates, an advertising firth, and to any other advertising firms since November 1979; the hours spent on each job as reflected , by the firm's billing statements, and the amounts billed to the Post; a list from January 1, 1977, to current date of all personnel in the creative services, department showing their job classifications, dates of_ hire, and (if applicable) termina- tion. The Post made no, response to this demand, and in this proceeding defends its failure- to do so on the basis of the alleged failure on the part of the Guild to advise the -Post of the precise use to which -the information would be put. However,,it is beyond question that, as the Guild contends, a jurisdictional dispute had existed since 1980 with respect to the entire matter of subcontracting. The use to which the information would be put was obvious from the nature of the information sought . The need' for it was unmistakable if the Guild was -to make any com- parison between the work contracted out and the work performed by the bargaining unit for the purpose-of de- termining if its jurisdiction was being eroded . An inquiry into the amount of compensation being diverted from unit members would be an essential part of such an in- vestigation, as would be the time data and the other in- formation requested . Intelligent assessment of the impact of subcontracting requires knowledge of the number of manhours of work performed by the outside contractor. Because a grievance is now pending for possible viola- tion - of article I, section 4 of the collective-bargaining agreement and, in addition, the information will be rele- vant in a forthcoming arbitration, it is plain that the data is, relevant to the policing of the contract and the ,per- formance of the Guild's duties under it. A showing that work is in fact being subcontracted out and that reasonable ,basis exists for believing that the work of the bargaining unit is being thereby reduced adequately demonstrates a specific purpose in requesting the information. The Guild's objective in requesting 'sup- porting data is self-evident18 and the Respondent's con- tention that the Post was never advised of the intended use of the information 'requested must be regarded as specious. The Guild is not obligated to accept `the Re- spondent's assurances that its jurisdiction has not been in- vaded, but has the right to determine such matters for itself and, indeed, would be derelict in the performance is Subcontracting information must be furnished when it will aid the Guild either in negotiations or in discharging its responsibilities to the unit, as in this instance . ACF Industies, 234 NLRB 1063 (1978), enfd. in relevant part 596 F.2d 1344, 1353 (8th Cir. 1979). As to the current re- quirement for furnishing of such information when it is not unduly bur- densome to the Respondent, see the statement of the later view of the Board in Safeway Stores, supra, fn. I 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of its duties if it failed to do so.19 It is entitled to_ such information as it needs to ascertain whether there have been breaches of the contract.20 Thus, an adequate showing has been made that the data is potentially rele- vant to the policing of the contract and will help deter- mine the scope of the work being subcontracted and compensation due bargaining unit members for work re- moved from their jurisdiction-all of this in aid of a grievance proceeding now .pending. It therefore must be provided. The result' would not be different if no griev- ance were pending. 21 5. Stat-Tab The Guild commenced an arbitration proceeding against the Post for violation of its jurisdiction under ar- ticle I, section 4 of the collective-bargaining agreement. The Post had subcontracted keypunch and other data processing -work to a company known as Stat-Tab. On November 28, 1980, the Guild requested information about the terms and conditions of the Post (or News America) contract with Stat-Tab and the volume of work performed by Stat-Tab pursuant to it. In addition, information was requested respecting Stat-Tab's employ- ees (without limitation to those involved in the Post's work): name and address, date of hire, date of termina- tion, classification or job title, duties actually performed, the names of immediate and other supervisors, and data relating to pay raises, starting pay, and changes in rates of pay and fringe benefits, including vacation, holidays, sick leave, overtime, pension, and severance. The Guild also inquired about work schedules, employee manuals, and job classifications and descriptions. As in the Lerner-King situation and the SSI situation (discussed below), the Guild asserted that it seeks to' de- le Cf. Rockwell-Standard Corp., 166 NLRB 124, 131 (1967), enfd. 410 F.2d 953 (6th Cir: 1969): Certainly, it was not unreasonable for the Union to suspect that more work may have been transferred ... than the Respondent ad- mitted, and the Union had the right to know if, and to what extent, its suspicion might have some foundation." In Doubarn Sheet Metal, 234 NLRB 821, 824 (1979), it was noted that a union "need not accept Respondent's conclusionary statements" on the issue of whether a single-employer relationship existed between the employer and the company to which it was subcontracting work. 20 NLRB v. Desigdcraft Jewel Industries, 254 NLRB 791, 797 (1981), enfd. 675 F.2d 493 (2d Cir. 1982). 21 Boeing Co, 182 NLRB 421, 426 (1970) Nothing contained in S, & W Motor Lines v. NLRB, 621 F.2d 598 (4th Or. 1980), or Atlas Metal Parts Co., 252 NLRB 205 (1980), enfd. as modified 660 F.2d 304 (7th Cir. 1981), relied on by the Respondent, impels a different conclusion under the circumstances of the present case . S & W Motor Lines is concerned with a situation in which the court found that the union had asserted no reason why it needed the information demanded relative to'nonbargam- ing unit employees and had made no demonstration to the employer of the need to know, under circumstances involving deep suspicion as to the true purposes for which the union sought the information requested. The request was made at a time when a prior collective -bargaining agreement had 'expired and negotiations for a new one were not proceeding well. The court found that the union was inquiring about "persons who were not represented by the union and as to whom, absent special circum- stances, the union has no business inquiring " In Atlas Metal Parts the court rejected what it characterized as a Board position that information was' presumptively relevant and prima facie required to be produced on the'ground that information concerning subcontracting "is so intrinsic to the employer and employee core relationship as to make it presumptively relevant in all cases." The Guild in the present case relies on no presump- tion but demonstrates the relevance and need for the information termine whether work previously performed by unit members has been subcontracted and, if so, whether such subcontracting is an ongoing jurisdictional violation, and that the information is needed for arbitration and to de- termine which job levels have sustained the most injury. The Post has refused to comply with this request in any respect. The Post's argument is that it is not obligat- ed=to make disclosure because the burden of showing the relevance of the information requested is not met by the Guild's bare assertion that its jurisdiction has been invad- ed. Cases which I have already cited effectively disposed of this argument. The Post also asserted that the information requested is already in the possession of the Guild, an argument which is somewhat difficult to understand in view of the fact that the contracts are between Stat-Tab and the Post or News America and the Post disclaims knowledge of most of the information. The fact that the issue has been between the' parties is documented in the memoranda which have passed between them and was testified to by Cook. Both parties appear to have tried to make a record. In a memorandum to Arnold dated November 28, 1980, Cook mentioned that the subcontracting of key- punch work to Stat-Tab had been discussed on numerous occasions and in a formal grievance session on February 5, 1980. In a memorandum to Arnold dated February 8, 1980, Cook mentioned that "we touched on this issue briefly in the grievance meeting." On December 4, 1980, Arnold sent Cook a memorandum denying that he had any record that the matter had ever been discussed at the grievance meeting of February 5, 1980, or at any prior meeting. In Boeing Co., 182 NLRB 121 (1970), it was held that a union is entitled to information necessary to enable it intelligently to evaluate the grievances filed; providing information which advances the process of arbitration by enabling the Union to evaluate the merits of claims and prove those which are meritorious prevents overburden- ing of the arbitral system. It is the Union's responsibility to administer the collective-bargaining agreement, detect infractions of its terms, and intelligently counsel the em- ployees whom it represents. Its right to the information which it needs to do so does not depend on the existence of a pending formal grievance. The potential -value of the information is what is significant. Board policy favors disclosure of wage and related information even without apparent direct relationship to negotiation or administra- tion of the collective-bargaining agreement.22 When 22 Whitin Machine Works, 108 NLRB 1537, 1541 (1954), enfd. 217 F.2d 593.(4th Cir. 1954), cert. denied 349 U.S. 905 (1955). Where an employer has obligated itself not to subcontract maintenance work when to do so would have the effect of displacing maintenance employees and the union has cause to believe that the employer has in fact subcontracted such work at a time when employees are being displaced from their jobs as surplus labor, the information sought is clearly relevant and reasonably necessary. Boeing Co., 182 NLRB 421, 426 (1970). Though Boeing did not determine the extent to which the Union may be justified in pursuing an examination of the Respondent's apparent subcontracting activities, be- cause it was not necessary for the purposes of that case, it reiterated the general rule that the information which a union may request is subject to a "discovery-type standard." NEW YORK POST CORP. 441 there are grounds for belief that Respondent is subcon- tracting work while employees are being displaced as surplus labor, the issues are specific enough to justify the request for information in order to determine whether the Union should file grievance, and thereafter to permit it to evaluate intelligently the grievances filed and to at- tempt to resolve meritorious claims prior to arbitration. Securing the information will patently facilitate the in- quiry and therefore it must be supplied. Respondent's reliance on NLRB v. A. S. Abell Co., 624 F.2d 506 (4th Cir. 1980), is misplaced inasmuch as that case merely holds that proof that the Union has misused information previously furnished rebuts a presumption of relevance of information requested with respect to mem- bers of the Union, requiring the Union thereafter to es- tablish the relevance of the information sought to the performance of its duties as the employees ' bargaining representative. In the present case there is, on one hand, no credible evidence that any information furnished to the Guild at any time has been misused and, on the other hand, the Guild has clearly established the relevance of the information requested to its obligations and duties as collective-bargaining representative. It is thus clearly en- titled to information respecting the terms and conditions of the Post or News America contract with Stat-Tab, and to the other data requested, except information re- garding "all Stat-Tab personnel," as to which the Re- spondent introduced evidence that it does not have the information. The Guild presented no evidence that the Post has or should have such information respecting Stat-Tab's personnel . Unlike the situation of User Serv- ices Systems, Inc., discussed hereinafter, which had per- sonnel directly on the premises, there is no evidence that Stat-Tab personnel worked on the Post premises; on the contrary it appears that the work was done off the prem- ises at Stat-Tab. Under the circumstances, therefore, the information respecting "all Stat-Tab personnel," some of whom obviously may not be involved at all with New York Post work, is excessive.23 6. User Services Systems, Inc. User Services Systems, Inc. (USSI) was an in-house subcontractor which supplied five computer operators who performed computer services at the premises of the Post at 210 South Street, New York City, under the su- pervision of a USSI operations manager named Barbells. They worked in space assigned to them by the Post. Arnold, in a memorandum to Cook dated December 5, 1980, declared,-"Their Function is in relation to comput- er operations for News America and its subsidiaries based in New York." On November 28, 1980, the Guild requested the fol- lowing information for all USSI personnel who had worked at the Post up to that date: name and address, date of hire, date of termination, classification or job title, duties actually performed, names of immediate and 23 The situation herein is not the same as that involved in Doubarn Sheet Metal, 243 NLRB 821 (1979), in which the union was held to be entitled to specific information which would help it to determine whether there existed a single-employer relationship between the employer and a company to which work was being subcontracted. other supervisors, pay rate (current), starting spay rates and changes in such rates, fringe benefits (including va- cations, sick leave, holidays, overtime pensions and sev- erance), work schedules and copies of employee manuals or job classifications and descriptions. Also requested were the terms and conditions of the Post or News America contract with USSI and the duration of such agreement. The memorandum cited' previous requests for such information made over the preceding 2 years in- cluding specific formal requests on March 22 and 24, 1978, January 11 and February 5, 1979, January 16 and 21, 1980, and on November 25, 1980, the last-mentioned being an oral request by Joy Cook to Leonard Arnold. In response, Arnold advised Cook that six USSI em- ployees were working in the Post's premises, five of whom were computer operators and one of whom was an operations manager; they were supervised by the president of USSI and liaison between News America and USSI was the responsibility of Jeff Leist, an employ- ee of News America. The Post has not otherwise re- sponded to the Guild's request for information respecting the transactions with USSI, except that in September 1982 the Guild was furnished with a document which the Respondent contends is a copy of the contract be- tween the Post and USSI. The document is undated and unsigned and the Guild has questioned its authenticity. In April 1981 the Guild commenced an arbitration proceeding against the Post, which is still pending, on the issue of whether the collective-bargaining agreement had been violated by transfer to USSI of work previous- ly performed only by unit members. The General Counsel has contended that the informa- tion requested is needed by the Guild for the purposes of the arbitration. Unquestionably, the information is rele- vant to the issues therein and would either support the Guild's position or require that the Guild modify its posi- tion in the light of the known facts. Whether a violation of article I, section 4 was committed by the Respondent by subcontracting work to the Guild can be determined with information relating to the terms of the subcontract- ing agreements, the description of the work being per- formed by USSI personnel, the job classifications of the personnel performing such work (which would relate to job classifications of the Post's employees from whom the work was removed), the wage rates, and the employ- ees' manuals. This data would enable the Guild to define the scope of the unit work being performed by nonbar- gaining unit personnel and would to some extent suggest the nature of an appropriate remedy. The Guild's requests for the names of the specific USSI employees and the dates of their hire and termina- tion would not, however, seem to contribute to that ob- jective. Accordingly, I conclude that the Post has violated Section 8(a)(5) by failing to furnish to the Guild, with re- spect to all USSI personnel who worked at the Post, past or present, their classifications or job titles, a description of the duties actually performed by them, their current and past pay rates, the information requested concerning fringe benefits, their work schedules, the contents of the manuals or the job classifications and descriptions, and 442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the terms and conditions (including duration) of the Post or News America contract with USSI. The Respondent has not committed a violation by its failure,to furnish the names and addresses of such personnel and their dates of hire and termination because the request for such data related to all employees of USSI and was not limited, as it should have been, to those employed at the premises of the New York Post. Only that portion of the data would have been relevant to the needs of the Guild. At the hearing, the General Counsel moved to amend the complaint to allege violation of the Act by reason of Respondent's failure, since December 5, 1980, to furnish the Union with the information requested and by reason, of the fact that with respect to such information as it did furnish Respondent "has delayed in furnishing such in- formation." The motion granted and I find a separate violation by reason of the fact that, even to the minimal extent that information was furnished, and a questionable copy of the contract between the Post and USSI provid-' ed, as described above, the delay in furnishing the same since 1978 was unwarranted and constituted a refusal to bargain in violation of the Act. Some of the Respondent's counterarguments merit dis- cussion. Notwithstanding the Respondent's assertion that the information sought by the Guild is not in its possession, I find that it is' iii fact available to the Respondent. The sit- uation herein is not comparable to the request by the Guild for information about the Stat-Tab employees. The information about USSI which was requested, and is herein directed to be furnished, relates to functions being performed right on the Post's own premises. The Post obviously is able to finish the work schedules of these USSI' personnel who are walking in and out of the Post premises every day utilizing building passes issued by the Post. The contract provisions by themselves contain much of the information sought and the availability of the rest of it is easily ascertainable by a simple request from the Post to USSI for that information. The burden of proving the Post's ability to get the information is ^ not on the General Counsel; rather, the burden is on the Post to establish that this data, which would appear to be readily available to it, is not in fact available. The Re- spondent made no serious effort to prove this. The defense that the Guild did not meet the burden of showing its specific need for information relating to non- unit- employees simply does not comport with the evi- deuce adduced at the hearing. An arbitration is pending and pursuant to the Guild's duty of policing the: contract it attempted to obtain above-described information which I have held to be relevant. The contention that the information is sought for a purpose wholly outside the scope of the Guild's bargain- ing relationship with the Post, to wit, for use in an orga- nizational drive, has merit only to - the extent that it is contended that the intended use is altogether outside the scope of the Guild's functions as representative of the unit employees. I have, however, found that argument devoid of merit. Consequently, there is left only the question of whether the fact that the, information may have additional uses besides the uses to which the Guild would put it as representative of the unit employee in any_ way affects the situation. Cool conceded that the Guild was seeking to contact USSI, personnel for pur- poses of a contemplated organizational drive. On Febru- ary 3, 1981, she had sent a letter to USSI addressed to it at the premises of the Post, notifying it that a committee had been formed to organize its employees working at the Post. Nevertheless, the evidence does not support the Respondent's contention that the organization of USSI personnel was the Guild's sole objective in requesting the information. I have found as a matter of fact that the information was needed by the Guild for purposes rele- vant to its obligations as representative of employees at the Post. The happenstance that it might be- additionally useful in organizing USSI employees generally would not destroy that relevance. Moreover, if the' objective were to bring into the Guild the USSI employees per- forming unit work, then the relevance would be beyond question. The possibility of dual use of information does not extinguish the Guild's right to it for an existing rele- vant purpose. It should be noted that the Post did not contend that the Guild, if given the information to which it was law- fully entitled, would abuse any confidence and misuse the information, nor did it contend that any information lawfully obtained by the Guild because it was entitled to it would be used unlawfully' if. used in an organizational campaign. Unquestionably, such use would be lawful, even if not approved by the Respondent. Accordingly, to the extent that any of the information which the Post is required to turn over to the Union might have been used for an organizational, campaign among USSI per- sonnel, that factor would not militate against, or affect the obligation to turn over such information. The fact that the requested information may relate to the employ- ers and employees outside the representative bargaining unit, does not, by itself, negate its relevance.24 The issue is the relevance of the information to the Guild's performance of its, duties, as bargaining represent- ative, even to the exclusion of consideration of its pur- pose in requesting the information.2 s CONCLUSIONS OF LAW 1. The- New York Post Corporation, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 24 NLRB v. Leonard B. Hebert, Jr. & Co., 259 NLRB 881 (1981), enfd. 696 F.2d 1120 (5th Cir. 1983); AGC of California, 242 NLRB 891 (1979), modified on other grounds 633 F.2d 766 (9th Cir. 1980), and cases previ- ously cited. Respondent cites NLRB v. A. S. Abell Co., 624 F.2d 506 (4th Cir. 1980), in support of its position. See the discussion of this case in connec- tion with Stat-Tab, supra. In that case the court found that the union had not established the relevance of information sought and that it wanted the information solely for an illegal purpose (harassment of employees). In the present case there is no fear of 'harassment, no proven history 'of misuse of information by the Guild, and-no demonstration that the fur- nishing of the information that I have directed to be furnished would permit any abuse by the Guild. as White Farm Equipment Co., 242 NLRB 1373 (1979), enfd. sub nom. Electrical Workers IUE v. NLRB, 650 F.2d 334 (D.C. Cir. 1980); Utica Observer-Dispatch, 111 NLRB 58 (1955), enfd. 229 F.2d 575 (2d Cir. 1956); AGC of California, supra. NEW YORK POST CORP. 2. Newspaper Guild of New York, Local 3 of the Newspaper Guild, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees in the Editorial, Business, Advertis- ing, Circulation, -Publication, Mechanical and Mainte- nance Departments, excluding exempt employees and employees already covered by a union contract other than that between the Respondent and the Guild, consti- tute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. The Guild is the exclusive representative of all the employees in the aforesaid unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by delaying the delivery to the Guild for a period of approximately 1 year and 4 months a list of minority personnel by name, job classification, and history of promotional record as requested in a memorandum to the Respondent from the Guild dated February 23, 1981, and by failing and refusing on request to supply the following relevant information required by the Guild in order -to perform its duties as bargaining representative of the employees in the above described unit: (a)' Information requested by the Guild in a memoran- dum dated February 23, 1981, consisting of a list of mi- nority personnel by name, job classification, and -history of promotional record relating to nonunit employees (the list that was furnished tardily having related only to unit employees). (b) Information requested by the Guild on February 23, 1981, consisting of the total number of staffers and the number taking sick leave, and the number of days of sick leave taken in the years 1977, 1979, and 1980 and, with respect to those years, a breakdown showing the number of occurrences of illness, the' average length of absences, the number of persons affected by and the number of days docked under the 'terms of article XI, section 1, paragraph 2 of the collective-bargaining agree- ment, the names of the individuals placed on the absentee control program and their individual absentee records. The Respondent also violated the Act in connection with 443 this request by its refusal to permit photocopying of per- tinent records ' and the making of statistical abstracts therefrom. - (c) Information requested by the Guild consisting of the names and contractual status of anyone holding inde- pendent contractor, freelance, or stringer status with the New York Post in 1978, 1979, 1980, and 1981. (d) A list of all promotion jobs assigned to Lerner- King or any other advertising agency since November 1979; the hours spent on each job as reflected by billing statements and the amounts billed to the Post; a list from January 1, 1977, to the date of the request of all person- nel in the creative services department, showing their job classifications, dates of hire, and, if applicable, dates of termination. (e) Information requested by the Guild on November 28, 1980, consisting of the terms and conditions of the contract under which work was being performed for the Post by Stat-Tab, and the volume of work performed by Stat-Tab pursuant to the contract. (f) Information requested by the Guild on November 28, 1980, consisting of the terms and conditions of its contract with, and the following data concerning all per- sonnel of, User Services Systems, Inc., past or present who worked on the premises, of the New York Post: their classifications or job titles, a description of the duties performed by them, their current and past pay rates and fringe benefits, work schedules, and contents of manuals or job classifications or descriptions. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning; of Sec- tion 2(6) and (7) of the Act. 7. The Respondent did not violate the Act by failing or refusing to furnish any of the other information re- quested by the Guild as hereinabove set forth. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor, practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the purposes of the Act. [Recommended Order omitted from publication.]