Transcript Newspapers

124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD New England Newspapers, Inc., d/b/a Transcript Newspapers and Boston Newspaper Printing Pressman's Union No. 3 and Boston Typo- graphical Union No. 13, a/w International Ty- pographical Union, AFL-CIO. Cases 1-CA- 23906 and 1-CA-24178 30 September 1987 DECISION AND ORDER CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 22 April 1987 Administrative Law Judge Norman Zankel issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. The General Counsel also filed a motion to strike and disregard the Respond- ent's exceptions and brief, to which the Respondent filed an opposition. 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 and to adopt the recommended Order3 as modified.4 1 The General Counsel moved to strike and disregard the Respondent's exceptions and brief, contending that they do not comply with the re- quirements of Sec 102 46(b) and (c) of the Board's Rules and Regulations by failing to designate, by precise page citation, the portions of the record relied on The General Counsel's motion is denied, as the excep- tions and brief sufficiently designate the portions of the decision and record relied on 2 In affirming the judge's conclusion that the Respondent violated Sec 8(a)(5) and ( 1) by failing to furnish a copy of the sales agreement to the Unions, we find it unnecessary to pass on the judge 's finding that the agreement is presumptively relevant, as on the particular facts of this case the Unions have demonstrated the relevance of the sales agreement to the performance of their roles as collective -bargaining representatives 8 The Respondent excepted, inter alia, to the failure of the judge to order that (1) the Respondent be permitted to delete sales price informa- tion from the sales agreement before furnishing it to the Unions, and (2) the Unions not disclose the contents of the agreement to employees or others. The Unions have previously given the Respondent assurances that confidentiality would be maintained and, to that extent, had already modified their requests for the sales agreement in response to the Re- spondent's confidentiality concerns Thus, in complying with our order, the Respondent may first delete the sales prices contained in the agree- ment . The Unions may see, study, and use the information provided to the extent required to protect the rights of the unit employees, but shall not otherwise disclose the sales agreement to the employees or others Washington Star Co., 273 NLRB 391, 397 (1984) 4 The judge recommended that the Board issue a broad cease-and- desist order requiring the Respondent to cease and desist from violating the Act "in any other manner " We do not find the Respondent's con- duct in this case egregious enough to warrant the issuance of such an order Consequently, we shall substitute the Board's narrow language, re- quiring the Respondent to cease and desist from violating the Act "in any like or related manner," for the provision recommended by the judge. See Hickmott Foods, 242 NLRB 1357 (1979) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, New England Newspapers, Inc., d/b/a Transcript Newspapers, Dedham, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). "(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. Substitute the attached notice for that of the administrative law judge. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain collectively with Boston Newspaper Printing Pressman 's Union No. 3 or with Boston Typographical Union No. 13, a/w International Typographical Union , AFL-CIO by refusing to supply them with a copy of the sales agreement between Harte -Hanks Communications, Inc. and 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 of either the aboved-named Unions, furnish a copy of our sales agreement with Harte-Hanks Communications, Inc.; and WE WILL, on request of either those Unions, resume bargain- ing with either or both of them over the effects of our termination of production operations at our Dedham, Massachusetts facility on 2 May 1986; and, if agreements are reached, we will reduce them to writing and sign them. 286 NLRB No. 9 TRANSCRIPT NEWSPAPERS 125 WE WILL mail a copy of this notice to each em- ployee represented by the above-named Unions who were on our payroll on 2 May 1986. NEW ENGLAND NEWSPAPERS, INC., D/B/A TRANSCRIPT NEWSPAPERS The parties agree, the record reflects, and I find NENI has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act at all ma- terial times. The parties agree, the record reflects, and I find that Pressman's and BTU have been labor organizations within the meaning of Section 2(5) of the Act at all ma- terial times. Ronald S. Cohen, Esq., for the General Counsel. Howard M Kastrinsky, Esq., and D. Mark Hilliard, Esq. (King & Ballow), of Nashville, Tennessee, for Respond- ent. Stephen R. Domesick, Esq., of Boston, Massachusetts, for Printing Pressman's Union No. 3. Richard W. Coleman, Esq. (Segal. Roitman & Coleman), of Boston, Massachusetts, for Typographical Union No. 13. DECISION NORMAN ZANKEL, Administrative Law Judge. These consolidated cases were tried before me on 17 November 1986,1 at Boston, Massachusetts. The consolidated com- plaint issued on 31 October. The complaint was based on a charge filed by Boston Newspaper Printing Pressman's Union No. 3 (Pressman's) in Case 1-CA-23906 on 5 June, and on a charge filed by Boston Typographical Union No. 13, a/w International Typographical Union, AFL-CIO (BTU), in Case 1-CA--24178 on 3 September. The complaint alleges that Respondent unlawfully re- fused to bargain in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by failing to comply with Pressman's and BTU's requests for informa- tion claimed necessary and relevant to the performance of those unions' collective-bargaining obligations. Specifi- cally, the complaint avers that Respondent did not fur- nish both Unions with a copy of the sales agreement be- tween Respondent and Harte-Hanks Corporation, Inc. Respondent's timely answer denies it committed any unfair labor practices. On the entire record, including my observation of the demeanor of witnesses, and after consideration of the briefs filed by the General Counsel and Respondent,2 I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Jurisdiction is uncontested. Respondent New England Newspapers, Inc. (NENI), a corporate entity, at all mate- rial times, maintained an office and place of business in Dedham, Massachusetts, at which it had been engaged in the newspaper publishing business. Annually, NENI de- rived gross revenues exceeding ;5200,000, held member- ship in or subscribed to various interstate news services, published nationally syndicated features, and advertised nationally sold products. 1 All dates hereafter are in 1986 unless otherwise stated 2 Respondent's unopposed motion to correct p 132, L 25 of the offi- cial transcript to substitute "irrelevant" for "relevant" (See fn 9, R. Br to me) is granted No briefs were received from either Union II. THE APPROPRIATE BARGAINING UNITS The parties agree, and I find, that the following two employee groups constitute appropriate units for collec- tive bargaining within the meaning of Section 9(b) of the Act: All pressmen employed in the pressroom at Re- spondent's Dedham, Massachusetts facility, but ex- cluding all other employees, guards and supervisors as defined in the Act.3 All composing room employees including journey- men and apprentices employed at Respondent's Dedham, Massachusetts facility, but excluding all other employees, guards and supervisors as defined in the Act.4 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Are Pressman's and BTU entitled to a copy of a sales agreement (agreement) between NENI and Harte-Hanks Communications, Inc. by which NENI sold its assets to Harte-Hanks?s I shall find they are. B. The Facts The operative facts are substantially undisputed. All factual findings in this section are a composite of unrefut- ed evidence, stipulations, and credited testimony. Not every bit of evidence or argument of counsel is reported. However, each has been considered. Omitted material is deemed irrelevant, superfluous, or of little probative value. 1. Background Pressman's and BTU have been exclusive collective- bargaining representatives for the Pressman's and BTU unit employees, respectively, since at least 1979. Press- man's most recent collective-bargaining agreement was effective 1 October 1979 until 31 May 1982. That agree- ment contained a self-extending provision. It provided the agreement "shall continue in full force and effect, until replaced by a new signed agreement." Pressman's contract did not contain any job guarantee provisions. BTU also had a collective-bargaining agreement for the employees in the BTU unit. That contract was effec- tive 1 June 1979 until 31 May 1982. A so-called job guar- antee supplement was appended to the BTU agreement. 8 The Pressman's unit The BTU unit. 5 No party contends Harte-Hanks is connected to NENI except as a bona fide purchaser. 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The supplement provided, in salient part, for retention of named employees in the BTU unit until the occurrence of one of certain specified events. Both Pressman's and BTU collective-bargaining agree- ments expired on their termination date. Negotiations for successor agreements ensued. No such new agreement has ever been successfully negotiated. NENI first became the owner of the Dedham facility in 1985. NENI and its predecessor owners continued to recognize Pressman's and BTU as representatives of their unit employees and continued to honor the terms and conditions of the ex- pired Pressman's and BTU contracts through all times relevant to the instant proceedings. 2. Scenario of the present dispute NENI published two daily newspapers and six weekly newspapers in the metropolitan area of Boston, Massa- chusetts. P. J. Massey was general manager or publisher since June 1972. In mid-March 1986, Massey learned that NENI intend- ed to sell the newspapers to Harte-Hanks. Massey did not immediately notify Pressman's or BTU. Instead, Pressman's president, E. J. Mylett, wrote Massey on 17 March. Mylett wrote that the sale came to his attention and asked Massey to arrange for negotiations between Pressman's and Harte-Hanks. BTU also wrote to Massey. On 3 April, BTU presi- dent, H. F. Vitale, wrote Massey and requested an im- mediate meeting "for the purpose of learning . . . the de- tails of the sale so that we can begin negotiating the impact, if any, it has. . ." on the BTU unit. On 14 April, Massey wrote two separate letters to Mylett and Vitale. The entire content of one of those let- ters is the following single sentence: "N.E.N.I. has signed an agreement today to sell all of its assets to Harte-Hanks Communications, Inc." The second 14 April letter also contained identical messages to Press- man's and BTU. Massey wrote, in salient part, that Harte-Hanks would terminate production operations at Dedham on 2 May; that all production employees would be affected by the closing; and that NENI "is prepared to negotiate the effect of this shutdown." On 30 April, a joint meeting was conducted among representatives of NENI, Pressman's, and BTU. NENI attorney D. M. Hilliard, Pressman's attorney S. R. Do- mesick, and BTU attorney R. W. Coleman were spokes- persons for their clients on this date and during all subse- quent germane activities. Domesick asked for a copy of the NENI-Harte-Hanks sales agreement. Domesick said he needed the agreement to determine whether reserves had been established to meet potential liabilities concern- ing contract negotiations or effects bargaining negotia- tions for such things as health insurance premiums, sev- erance pay and pension contributions. Specifically, Do- mesick indicated the agreement might provide for finan- cial reserves to cover items negotiated during effects bar- gaining. He also said he wanted to see whether the agreement provided the sale might not be completed unless NENI provided protection for its existing work force. Domesick said he needed to ascertain whether the agreement contained provisions regarding preferential re- hiring or seniority credit. Also, Domesick indicated he needed the agreement to determine the nature of the sale which, he said, might demonstrate whether Pressman's was entitled to bargain over terms of a collective-bar- gaining agreement or whether bargaining would be limit- ed only to the effects of the production termination. Coleman also asked for a copy of the agreement for BTU. Coleman said he agreed with the reasons Dome- sick propounded in support of Pressman's request. Cole- man added yet another reason why BTU needed the agreement. Thus, Coleman said he needed to determine the obligations and relationship between NENI and Harte-Hanks to evaluate the impact of the sale on BTU's job guarantee supplement which, Coleman contended, applied to NENI's successors and assigns. Hilliard declined to deliver the agreement. He asserted that there was nothing in it that either Pressman's or BTU needed to see. Hilliard said that Harte-Hanks was not obligated to hire any of the employees in the Press- man's and BTU units. He also said he would answer rele- vant questions concerning the agreement. Nonetheless, Hilliard also acknowledged that he had not personally read the agreement. On 30 April, Hilliard said his expla- nation of the contents of the agreement was derived from his consultation with the corporate attorneys in- volved in the sale.6 On 1 May, BTU met with NENI. Pressman's was not present. Coleman and Hilliard discussed the agreement. Coleman again asked for a copy of the agreement. Hil- liard said he believed he had described the impact of the sale the previous day. Hilliard again offered to answer questions about the sale. Also, Hilliard claimed the agreement contained confidential information that he felt was neither relevant nor necessary to BTU engaging in effects bargaining. Nonetheless, Hilliard indicated he still had BTU's request for the agreement under consider- ation but would not deliver it unless BTU could provide a more cogent reason than earlier stated for BTU's need. Hilliard said that NENI would want BTU and employ- ees in its bargaining unit to sign releases should the par- ties agree on terms of effects bargaining. Coleman asked Hilliard to provide draft language for a release. On 2 May, the sale of NENI assets to Harte-Hanks oc- curred Harte-Hanks closed the Dedham production op- erations and terminated all employees in the Pressman's and BTU bargaining units. Also, on 2 May, BTU telegraphed NENI and Harte- Hanks. The telegram advised both employers that BTU expected them to honor the job guarantee commitments to which BTU claimed its bargaining unit employees were entitled. On 6 May, Hilliard met separately with Pressman's and BTU. With respect to Pressman's, Domesick again asked for the agreement. Hilliard repeated he had al- ready explained the sale's impact and believed Domesick had not presented sufficient reasons to support Press- man's request to see the agreement. Domesick said he 6 Hilliard, Domesick, and Coleman testified during the instant hearing Both Domesick and Coleman recalled Hilliard told them , on 30 April, that he had not read the agreement Hilliard said the first time he read the agreement was not until after his final meeting with Domesick That meeting was on 12 May I credit each of these attorney-witnesses TRANSCRIPT NEWSPAPERS 127 needed the agreement to determine whether it contained any provisions relative to the Pressman's terms and con- ditions of employment as continued by NENI since its acquisition of the newspapers in 1985 Hilliard repeated, in effect, that he was not sure Pressman's had any en- forceable contractual rights because the collective-bar- gaining agreement had expired 4 years earlier, and other circumstances, such as the sale of the business, had changed. Domesick pressed for answers to additional questions concerning the sale. Hilliard attempted to re- spond to as many as he could. Hilliard told Domesick he would obtain answers to questions which Hilliard could not then answer, and respond at a later time Discussion ensued over a plant closing proposal provided by Dome- sick. No agreements were reached, except to meet again on 12 May. During Hilliard's 6 May session with BTU, Coleman again asked to see the agreement. Hilliard testified, "I discussed with him (Coleman) my position about the confidentiality of the agreement, as well as the fact that we (NENI) had fully explained the impact, and did not understand why he (Coleman) was not able to make pro- posals" relative to the effects of the sale on BTU unit employees. Coleman responded that he needed the agree- ment to determine whether arrangements had been made regarding the job guarantees. Hilliard and Coleman also discussed the language of the release that Hilliard proposed. The proposal con- tained language that would release Harte-Hanks, as well as NENI, from further liabilities. Coleman questioned the need to refer to Harte-Hanks. Specifically, Coleman asked whether Harte-Hanks was required to furnish funds or some other consideration in return for the re- lease. Hilliard said he believed Harte-Hanks was to fur- nish no consideration, but that he would seek a definitive response. Coleman also asked whether the agreement provided a money reserve to cover possible employee claims against Harte-Hanks. Hilliard again answered that he did not believe the agreement contained such an item. The meeting ended with Hilliard saying he understood Coleman's position and would consider it. On 9 May, Hilliard wrote Domesick. The letter re- flects that 4 weeks' severance pay would be given each Pressman's unit employee. Also, the letter advised that "the Company" remains ready and willing to meet with Domesick to negotiate on the effects of the sale. On 12 May Hilliard and Domesick again met. No BTU representative was present. Hilliard had the Press- man's employees' severance checks with him. Domesick agreed that Hilliard could distribute the checks directly to the employees. Domesick again asked for a copy of the agreement. Hilliard said he felt he had previously fully explained the sale's impact. Hilliard asserted there was no obligation to provide the agreement. He gave two reasons: (a) the agreement contained confidential business information; and (b) he had previously fully ex- plained the impact and effects of the sale. Hilliard said that, in view of this, he could not understand why Do- mesick could not engage in effects bargaining. ' Tr 125 Domesick disagreed with the contention NENI was not obliged to produce the agreement. Domesick contin- ued his pursuit of information contained in the agree- ment. He asked Hilliard whether the agreement provided for Harte-Hanks to recognize Pressman's at a production facility in Framingham, Massachusetts.8 Hilliard said there was no such recognition provision and he doubted its legality. Domesick again asked if the agreement pro- vided Harte-Hanks would accord preferential hiring or seniority rights to the Pressman's unit employees. Hil- liard said no such provision existed. Domesick also asked whether the agreement established any funding to redeem liabilities to Pressman's unit employees. Hilliard retorted that issue was irrelevant because NENI had not claimed it was unable to pay any obligation Pressman's claimed was owed. Regarding the agreement, the 12 May session ended by Hilliard saying he would reconsid- er Domesick's request for the document and later advise Domesick of the result. No additional meeting was scheduled at that time. On 13 May, Hilliard wrote to Coleman. In salient part, Hilliard asked Coleman for a proposal to safeguard the confidentiality of information in the agreement and claimed the "company" remains ready and willing to meet with Coleman for effects bargaining.9 On 16 May Hilliard wrote to Domesick.10 In pertinent part, this letter restates various reasons Domesick had as- serted to support his request for the agreement. Hilliard then responded that the agreement did not contain any provisions for Harte-Hanks to reemploy Pressman's unit employees, to recognize Pressman's, or to assume the collective-bargaining agreements. Further, the 16 May letter asserts Harte-Hanks has no liability for outstanding unfair labor practices as a successor. Finally, Hilliard ad- vised that Domesick's questions "regarding reserves to redeem liabilities is not relevant to effects bargaining." On 30 May, Coleman wrote a response to Hilliard's 13 May letter to him. Coleman reiterated his request for a copy of the agreement and assured Hilliard that the con- fidentiality of business secrets or information "which may be advantageous to competitors and disadvanta- geous" to the newspapers or any parties to the agree- ment would be respected. On 7 July Hilliard and Domesick had a telephone con- versation. Domesick reduced the relevant substance of their conversation to a letter that same day (G.C. Exh. 12).11 The letter reflects a renewal by Domesick of his 8 Hilliard had said NENI's Pressman's unit employees were free to apply to Harte-Hanks for employment at its Framingham facility 9 Some other of Hilliard's statements in the 13 May letter (G C Exh 14), together with some of his statements in another letter (G C Exh 16) are urged by the General Counsel to constitute Respondent's admissions that the sales agreement is relevant to Pressman's and BTU's bargaining obligations I have not relied on such statements to make any factual find- ings Also, as will be seen below, no such statement forms the basis for any part of my analysis of the issues '0 G C Exh 11 " I received G C Exh 12 in evidence over Respondent's objection. That objection is reiterated in Respondent's brief (see fn 13) Respondent contends that document, and attendant conversation, are inadmissable be- cause they arose from settlement discussions to dispose of the then pend- ing charge in Case 1 -CA-23906 I disagree Clearly, Pressman's unfair Continued 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD requests for a copy of the agreement, as well as a state- ment as to how Pressman's would restrict disclosure of confidential material. Domesick's uncontradicted testimo- ny on this point shows he wrote this letter after Hilliard offered to supply Domesick with an edited copy of the agreement if the terms of Pressman's restricted disclosure were reduced to writing by Domesick. On 1 August Hilliard wrote to Coleman. Hilliard noted that a complaint had issued on the Pressman's charge and Respondent had decided to litigate the in- stant issue. Hilliard noted Respondent did not understand Coleman's insistence on receipt of a copy of the agree- ment before proceeding further into effects bargaining. Finally, the 1 August letter indicates Respondent's will- ingness to engage in effects bargaining. No copy of the agreement has been delivered to Press- man's or BTU at any time. C. Analysis The General Counsel principally contends that the agreement is presumptively relevant to Pressman's and BTU collective-bargaining responsibilities . Alternatively, the General Counsel argues the evidence establishes the agreement is necessary and relevant to the performance of the unions' statutory functions as collective-bargaining agents of the affected employees in this case. Respondent claims no presumptive relevancy attaches to the agreement and that the evidence does not suffi- ciently establish that either labor organization is entitled to its production. I conclude the totality of evidence in this case sup- ports the finding, which I make, that the agreement is presumptively relevant in the instant circumstances. The applicable legal precedent is clear. An employer's duty to bargain in good faith includes the obligation to provide information needed by a bargaining agent for the proper performance of its duties. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). The right to receive informa- tion arises by operation of the Act itself, on an appropri- ate request and the scope of the right is limited only by considerations of relevancy. Ellsworth Sheet Metal, 224 NLRB 1505, 1507 (1976). In Bohemia, Inc., 272 NLRB 1128, 1129 (1984), the Board observed: [A]n employer must provide a union with requested information "if there is a probability that such data is relevant and will be of use to the union in fulfill- ing its statutory duties and responsibilities as the employees' exclusive bargaining representative." As- sociated General Contractors of California, 242 NLRB 891, 893 (1979), enfd. 633 F.2d 766 (9th Cir. 1980); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). The Board uses a liberal, discovery-type labor practice charge was pending on 7 July Nonetheless, neither Hil- liard's nor Domesick's testimony reflects they had explicit discussion on 7 July concerning settlement of the charge Even if the conversation had been initiated , as Hilliard's testimony suggests , for settlement purposes (even he could not recall who called whom ), the instant record is bare of evidence that either participant to the conversation actually conveyed those purposes to the other I reaffirm my earlier rulings receiving G C Exh 12 and the interconnected testimony In any event, I have not con- cluded any of the 7 July events comprise an admission of any sort by Respondent standard to determine whether information is rele- vant, or potentially relevant, to require its produc- tion . NLRB v. Truitt Mfg. Co., supra. Information about terms and conditions of employment of em- ployees actually represented by a union is presump- tively relevant and necessary and is required to be produced . Ohio Power Co., 216 NLRB 987 (1975), enfd . 531 F.2d 1381 (6th Cir. 1976). Requested information that is not so apparently related to a union's bargaining obligations is not presumptively relevant. In such situations, there must be a demonstra- tion of relevance. NLRB v. Rockwell Standard Corp., 410 F.2d 953 , 957 (6th Cir. 1969). Information not presump- tively relevant nonetheless may have "an even more fun- damental relevance than that considered presumptively relevant." Prudential Insurance Co. of America v. NLRB, 412 F.2d 77, 84 (2d Cir. 1969). Not all relevant informa- tion need be disclosed. If the information is of a confi- dential nature, it may be withheld until appropriate safe- guards are provided . Detroit Edison Co. v. NLRB, 440 U.S. 301, 314 (1979). I find the agreement presumptively relevant to Press- man's and BTU for the following reasons: 1. The document struck at the core of the employment relationship of the unit employees represented by those labor organizations . The agreement is the base instru- ment that caused the unit employees to lose their jobs with NENI. Moreover, that document clearly triggered the obligation to bargain over the effects of the sale to Harte-Hanks. The agreement was used by NENI to invite the Unions to engage in effects bargaining . Indeed, Hilliard's letters repeatedly emphasized this point at every possible juncture. I find the above context makes it literally self-evident that knowledge of the terms of the sale was a required foundation for the Unions to make intelligent and com- prehensive proposals during effects bargaining. Viewed in this light, the conclusion is inescapable that the sales agreement "lay at the heart" of the effects bargaining. As such, the document was producible without either Union having to explicitly show how or why it was relevant or necessary to the negotiations to which NENI had invited them. Shell Development Co., 441 F.2d 880 (9th Cir. 1971); Air Express International Corp., 245 NLRB 478, 500-501 (1979). 2. The agreement was the single, most authoritative and reliable source of data which would have formed the underpinnings of effects bargaining. The terms and con- ditions of employment of the Pressman 's and BTU unit employees were governed by the expired collective-bar- gaining agreements on the sales agreements ' effective date. In my opinion , it is reasonable to presume the exist- ence of a clear relationship between the de facto collec- tive-bargaining status between NENI and each Union and the terms of the sales agreement. That document necessarily affected the Union 's status, as well as the em- ployment conditions of the unit employees. Inclusion or absence of particular provisions in the agreement would unquestionably address or otherwise resolve the issues of the extent to which the employees' working conditions and the Unions' status would be altered, extended, modi- TRANSCRIPT NEWSPAPERS 129 fled, terminated, substituted, or remain the same, or be subject to compensatory remuneration. No special show- ing need be made to establish this. I find the questions asked by Domesick and Coleman were specific and designed to elicit information critical to the formulation of proposals regarding the effects of the sale. Apparently, Hilliard too, considered the ques- tions regarding the contents of the agreement relevant. He provided immediate responses to all questions he could. Concerning others, Hilliard said he would investi- gate and later respond. I find Hilliard's attempts to answer those questions tend to reflect the presumptive quality of the agreement. This is particularly true because the record shows Bil- liard's responses were unreliable. He conceded his an- swers were the product of consultations with the person- nel who had drafted the agreement. He acknowledged his answers to the Unions were not based on his personal acquaintance with the terms of the agreement. This defi- ciency is not cured by Hilliard's subsequent reading of the document. The initial patently unreliable responses to the Unions' questions made it imperative that the Unions be placed in a position to facilitate verification (or con- tradiction) of Hilliard's assertions made during, and after, he read the agreement. Such need to see the document in question supports the conclusion that it was presumptive- ly relevant. Wallace Metal Products, 244 NLRB 41 fn. 2 (1979). Where information sought by a union is presumptively relevant, the employer has the burden of proving lack of relevance. Prudential Insurance Co., supra. In my view, the instant record as a whole establishes that Respond- ent's actions and positions taken with the Unions' sup- port the proposition that the agreement was relevant and that Respondent has not borne its evidentiary burden. i 2 My finding that the agreement is presumptively rele- vant does not end the inquiry. NENI claims the agree- ment is not producible because it contains, according to Hilliard's testimony (and in his words), "listing of liabil- ities and assets and several other confidential things, such as supply contracts and the like" (Tr. 135). Respondent argues its need to protect this "sensitive" business infor- mation is more compelling than any need for the infor- mation by the Unions. The confidentiality issue requires a balancing of the need for the information against legiti- mate confidential interests that must be established by Respondent. General Dynamics Corp., 268 NLRB 1432, 1433 (1984). Also, it requires reference to facts not previ- ously reported in this decision. Confidentiality was mentioned during the 30 April ses- sion among the parties. Domesick asked whether Re- spondent's refusal to deliver the agreement would be changed if Pressman's would modify its request for the agreement to permit Respondent to sanitize it by deletion of the sales price and if assurances were provided by Do- mesick that only he would review the agreement and not disclose its contents to anyone but Pressman's representa- 12 I have considered the legal precedent cited by NENI in its post- hearing brief Generally, I find it inapposite because the cases which I find germane were decided in a context where the material sought was not presumptively relevant. tives. Hilliard said Domesick's suggestion would not change Respondent's position. Hilliard wrote the Board 's Regional Office on 24 June (see G.C. Exh. 16). He stated, concerning confidentiality: The sales agreement involved here contains very sensitive information surrounding the sale . The final settlement of the sale will not occur until sixty or seventy-five days after the closing date of May 2, 1986. Any premature leak of the sensitive informa- tion contained in the Sales Agreement before the transaction is complete could have serious ramifica- tions on the sale. Accordingly, the Company re- quests that the union provide some type of written assurances outlining the measures the union pro- poses in order to protect the confidentiality of the information. As earlier noted, Domesick and Hilliard spoke via tele- phone on 7 July. That date was 66 days after the 2 May closing date of the NENI-Harte-Hanks sale. Hilliard orally agreed to supply Domesick with an edited version of the agreement if Domesick would confirm their ar- rangements for restrictions on disclosure. Domesick did so (G.C. Exh. 12). Coleman's 30 May letter to Hilliard (G.C. Exh. 18) gave similar assurances. I find no merit to Respondent's claim of confidential- ity. There are two reasons for my conclusion. First, I find Respondent's assertions in this connection are not particularly specific. As articulated by Hilliard in his tes- timony quoted above, they appear rather generalized. This is in sharp contrast to the particularized and precise reasons given by the Unions when asking for the agree- ment. Moreover, the listings of assets, liabilities, and supply contracts are not facially so secret that, when bal- anced against the Unions' need for relevant information, their existence should defeat the Employer's obligation to provide it. Hilliard's 24 June letter does little to identify the confi- dential aspects of the agreement. The assertion is that it contains "very sensitive information surrounding the sale." I find this statement insufficient to overcome the more cogent and persuasive explanations of the Unions' need for the agreement. This is especially true where it appears Respondent was concerned mainly with any "premature leak" (G.C. Exh. 16), and Hilliard described that period of time as 60 or 75 days after 2 May. Inas- much as Hilliard's 24 June letter was written on the 66th day following 2 May, it is difficult to comprehend Re- spondent's adamant insistence on its claim of confiden- tiality, even assuming legitimate confidentiality attached to the document at the beginning of the critical events in this case. Second, the events of 7 July reflect that Respondent was satisfied that Domesick agreed to provide Detroit Edison safeguards. Domesick's 7 July letter to Hilliard (G.C. Exh. 12) contains Domesick's assent to Hilliard's request for restrictions on examination of the agreement. In salient part, the letter states: "As you (Hilliard) re- quested, the Agreement, when supplied will be reviewed by the undersigned and the President and the Chapel Chairman of Local Union No. 3. As to those individuals, 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they will undertake not to disclose the contents to others except insofar as they may be required in order to carry forth their legal duties to affected members and futher [sic] in preparation for any arbitration, agency or other legal proceeding." BTU gave similar assurances that confidential informa- tion would be respected. (See Coleman's 30 May letter to Hilliard, G.C. Exh. 18.) Nonetheless, the Agreement was not delivered at any time after both Unions provid- ed the safeguards with which NENI apparently had been satisfied. Curiously, Hilliard's 1 August letter to Coleman (R. Exh. 1) contains language that suggests that NENI's fail- ure to supply the agreement, in these circumstances, was not so much motivated by the need for confidentiality as it was by other considerations. Thus, in that letter Hil- liard wrote, in pertinent part, "The Company's under- standing was that the [Pressman's] charge would be dis- missed if the pressmen's union and the Company worked out a satisfactory settlement between themselves. Pursu- ant to that understanding, the Company endeavored in good faith to negotiate such a resolution with the press- men's union and with BTU Local 13. However, the Board has responded by issuing a Complaint with prior notice to the Company, even though the Company was attempting to negotiate a settlement of the dispute with the pressmen's union." I conclude this quoted language substantially dimin- ishes the vitality of Respondent's adamant insistence on the confidentiality defense at a time long after the con- cern for premature disclosure had passed and in the backdrop of the Unions' agreements to supply the re- quested safeguards of confidentiality." 3 The total context suggests this defense has been maintained for recrimina- tory purposes. On all the foregoing, I find the record does not con- tain sufficient evidence to support Respondent's claim of confidentiality. Accordingly, I find the agreement pre- sumptively relevant and Respondent's refusal to comply with Pressman's and BTU requests for its production constitutes a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. E. W. Buschman Co., 277 NLRB 189, 191 (1985), Washington Gas Light Co., 273 NLRB 116 (1984). If my conclusion that the agreement is presumptively relevant and is not sustained by an appeal forum, then I conclude and find the General Counsel sustained the burden to show "probability that the (agreement) was relevant, and that it would be of use to the (Unions)" in carrying out their statutory duties and responsibilities. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967).14 There is no need to encumber this decision with a lengthy analysis of my alternative finding. It suffices that I outline the factors that underlay my conclusion. These factors are: 1. Hilliard's explanations of the agreement's terms were unreliable because he had no personal knowledge of its content. (See my discussion of this matter, supra.) 2. The claim of confidentiality is not supported by per- suasive evidence. (See my discussion of this matter, supra.) 3. Hilliard's statements regarding relevance reflect that NENI was conferring on itself the authority to declare the relevance and necessity of the agreement. This amounted to declarations of relevance based on NENI's own interpretation. This conduct is an improper usurpa- tion of the Board's responsibility and authority. 4. There is no merit to NENI's argument that the Unions' need for the agreement was vitiated by the expi- ration of their collective-bargaining agreements, particu- larly with respect to BTU's supplemental job guarantee agreement. This contention must fail in light of the fact that all parties continued their collective-bargaining rela- tionship, including adherence to the terms and conditions of the expired contracts for several years (1982-1986) beyond their expiration date. 5. NENI's request to release Harte-Hanks supports the Unions' claim of relevance. Arguably, the proposal to re- lease Harte-Hanks is a commendable exercise of Bil- liard's caution as an attorney. However, that conduct is equally susceptible to being construed as an effort to ex- onerate Harte-Hanks from liability from one or more terms of the agreement. Production of the document would permit meaningful resolution of these distinctions. 6. As to BTU the so-called lifetime guarantee provi- sion establishes the agreement's relevancy. Washington Star Co., 273 NLRB 391, 396 (1984).15 In sum, I conclude these six elements, in their totality, amply show that the agreement was relevant and neces- sary to the Unions' performance of their collective-bar- gaining obligations. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Pressman's and BTU are labor organizations within the meaning of Section 2(5) of the Act. 3. The bargaining units identified in section II, above, are appropriate units for collective bargaining within the meaning of Section 9(b) of the Act. 4. By failing and refusing to provide Pressman's and BTU with a copy of the sales agreement between Re- spondent and Harte-Hanks, since 30 April 1986, Re- spondent unlawfully refused, and is refusing, to bargain in violation of Section 8(a)(5) and (1) of the Act. 5. The above unfair labor practices affect commerce within the meaning of the Act. 13 Indeed, Pressman's safeguards were reduced to writing in direct re- sponse to Hilliard's offer to produce an edited version of the agreement. (Tr 58 ) ': In so finding, I expressly do not place any reliance whatsoever on the General Counsel's evidence and arguments that tend, or are pro- pounded, to show that NENI in any way admitted relevance 's Concededly, Pressman's did not have a contractual job guarantee claim However, by analogy, I find some of Domesick's explicit requests to see the agreement for purposes of determining whether it contained provisions regarding reemployment rights created a demonstrable need to see a copy of the agreement (See my discussion concerning presumptive relevance in which I conclude the agreement comprised the seminal basis for effects bargaining, supra ) TRANSCRIPT NEWSPAPERS 131 THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. That Order will require Respondent to comply with the various requests of Pressman's and BTU for a copy of the agreement. Inasmuch as a full year has elapsed from the date of Respondent's initial refusal to provide the agreement, and the affected employees were terminated in May 1986 without full and reliable information concerning their rights, privileges, and benefits, I conclude it is fair and reasonable to provide each of the Unions an opportunity to use information, if any, relevant to effects bargaining. Accordingly, the Order will require Respondent to resume bargaining over the effects of the May 1986 ter- mination of production operations, if requested by Press- man's or BTU after having examined the contents of the agreement. Also, Respondent shall be ordered to sign and date an appropriate notice to employees. Further, my Order shall require Respondent to mail a signed copy of the notice to each employee in the Pressman's and BTU bargaining units on Respondent's payroll on the date the Dedham facility's production operations were terminated. I consider the lengthy pursuit by Respondent of its failure to supply a copy of the agreement, coupled with an apparent spurious claim of confidentiality, in the in- stant circumstances, tantamount to a rejection of the Act's collective-bargaining principles. Not only did Re- spondent thwart effects bargaining, but it also interposed its own terms of relevance onto the Unions' legitimate request for information. These events, in my view, repre- sent a total disparagement of the collective-bargaining process. As such I consider them sufficiently egregious to warrant a broad proscriptive order (Hickmott Foods, 242 NLRB 1357). Therefore, the Order will require Re- spondent to refrain from, in any manner, interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER 1. Cease and desist from (a) Refusing to bargain collectively with Boston News- paper Printing Pressman's Union No. 3 and with Boston Typographical Union No. 13, a/w International Typo- graphical Union, AFL-CIO, by refusing to provide each of these labor organizations with a copy of the sales agreement between it and Harte-Hanks Communications, Inc. (b) In any manner interfering with, restraining, or co- ercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish, on request, to Boston Newspaper Printing Pressman's Union No. 3 and to Boston Typographical Union No. 13, a/w International Typographical Union, AFL-CIO a copy of the sales agreement between New England Newspapers, Inc., d/b/a Transcript Newspapers and Harte-Hanks Communications, Inc. (b) On request of Boston Newspaper Printing Press- man's Union No. 3 and/or Boston Typographical Union No. 13 a/w International Typographical Union, AFL- CIO resume bargaining over the effects of the cessation of production operations at the Dedham, Massachusetts facility of New England Newspapers, Inc. d/b/a Tran- script Newspapers; and to reduce to writing and sign any agreements which might result from such effects bargain- ing. (c) Sign and date a notice to employees, on forms pro- vided by the Regional Director for Region 1, and mail a copy of such notice to each employee in the bargaining units represented by Boston Newspaper Printing Press- man's Union No. 3 and Boston Typographical Union No. 13, a/w International Typographical Union, AFL-CIO at the Employer's Dedham, Massachusetts facility on the payroll the day the production operations at that facility were terminated . Such mailing shall occur within 5 working days from the date the signed and dated notices are supplied by the Regional Director to the Employer. The Employer shall forward an affidavit that such mail- ing has been accomplished to the Regional Director within 3 working days from the mailing date. A copy of the notice to be mailed is attached to this decision and marked "Appendix." 17 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 18 The Respondent, New England Newspapers, Inc., d/b/a Transcript Newspapers, Dedham, Massachusetts, its officers, agents, successors, and assigns, shall 16 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 17 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 " ie The General Counsel requests that the Order contain a so-called vi- sitatorial clause I find no evidentiary basis in this record to grant this request Accordingly, such a provision is not contained in my recom- mended Order