American Broadcasting Co

86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Broadcasting Company; Brighton Produc- tions, Inc.; CBS Inc.; Century Towers Produc- tions, Inc.; Columbia Pictures Industries, Inc.; Walt Disney Pictures; T.A.T. Communications Company d/b/a Embassy Television; Embassy Productions, Inc.; The Leonard Goldberg Com- pany; Hanna-Barbera Productions, Inc.; Lori- mar Productions, Inc.; Metromedia Producers Corporation; MGM/UA Entertainment Compa- ny; MTM Enterprises, Inc.; National Broad- casting Company, Inc.; NBC Productions, Inc.; Orion Pictures Distribution Corporation; Orion Television; Orion Television T.V. Productions, Inc.; Paramount Pictures Corporation; Aaron Spelling Productions, Inc.; Tandem Communica- tions, Inc.; Twentieth Century Fox Film Corpo- ration; Universal City Studios, Inc.; Viacom Productios, Inc.; Warner Bros., Inc.; Alliance of Motion Picture and Television Producers and Writers Guild of America, West, Inc. Case 31- CA-15121 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On June 30, 1986, Administrative Law Judge Earldean V.S. Robbins issued the attached deci- sion. The Respondents filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondents violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with the following requested in- formation: 1. The number of writers age 40 and over; 2. The number of writers with physical handicap [sic]; and 3. For each category of writers (i.e., Cauca- sian, ethnic minority group, male, female, over 40, or physically handicapped) employed during the fourth quarter of 1984 and the first, second and third quarters of 1985 under the 1981 basic agreement in television , an indica- tion of job classification (i.e., freelance story assignment, freelance first draft assignment, staff writer, staff story editor, or staff writer/producer.) The Respondents contended, inter alia, that the General Counsel should be estopped from relitigat- ing the issues raised by the complaint as they had been resolved in a prior arbitration proceeding con- cerning an earlier request for information by the Union. The Union contended that , in addition to sex and ethnicity data, it is statutorily entitled to in- formation regarding age and physical handicap status, and job classifications of unit employees. The judge found that the arbitrator's decision had preclusive effect only to the extent set forth in the Board's deferral to arbitration policy. She then re- jected deferral because she found that the issues before the Board were not the issues before the ar- bitrator as required by the Board's standards for deferral set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984). We disagree. The facts are more fully set forth in the judge's decision. Briefly stated they demonstrate that the Respondents and the Union have been parties to a collective-bargaining agreement at all material times.' The 1981 collective-bargaining agreement between the Respondents and the Union contained a grievance-arbitration procedure that culminated in final and binding arbitration . The agreement also contained a "Non-Discrimination" provision, arti- cle 38, which provides in relevant part: ARTICLE 38-NON-DISCRIMINATION A. Policy 1... there shall be no discrimination due to sex, age, race, religion, sexual preference, color, national origin, or physical handicap. C. Human Resources Coordinating Committee The Companies and the Guild shall establish a Human Resources Coordinating Committee which shall meet upon request of either party. ... The purpose of this Committee is as fol- lows: 1. to establish the Data Submission Program and to analyze and review employment data submitted thereunder . .. . 4. to explore and consider additional pro- grams the primary purpose of which would be to enhance and expand employment in writing capacities for members of minority groups in the motion picture and television industry. ' The Respondents and the Union were parties to a collective -bargain- ing agreement that was effective from March 17 , 1981 to February 18, 1985 Thereafter, the parties negotiated a successor agreement . Although at the time of the hearing the parties' 1985 drafting committee had not completed its task , the judge found that during the 1985 negotiations there were no significant changes made in art 38, discussed below 290 NLRB No. 15 i AMERICAN BROADCASTING CO D. Data Submission Program 1. The Company shall submit to the Guild within 30 days after receipt of a written re- quest by the Guild (but not more frequently than once a calendar quarter) a report of the sex and ethnicity of writers employed by Com- pany under this Agreement during the preced- ing calendar quarter. Commencing with the fourth quarter of 1982 and continuing through 1983 and the first three quar- ters of 1984, the Union asked the Respondents for information regarding the sex and ethnicity of writ- ers they employed, as well as additional informa- tion on employment patterns, i.e., a breakdown of the sex and ethnicity data by job classifications. Only one of the Respondents complied with these requests. Further, during the first 3 months of 1983, the Human Resources Coordinating Committee (HRCC) established by article 38 of the contract met on a number of occasions to negotiate con- cerning the data submission program referred to ,in that article. During the HRCC meetings, the Union initially demanded that the Respondents provide it with information on physical handicap and age, in addition to sex and ethnicity. The Union also sought information about the nature of the unit em- ployees' employment, a description of the project (title and production number), and the specific job assignment (e.g., story, first or second draft, staff writer, story editor, writer/producer) of the unit employees by sex, ethnic group, age, and handicap status. The Respondents' representatives objected to furnishing any data other than sex and ethnicity, and in February 1983 the Union dropped its demand that the data submission program include age and handicap information. The record shows that the HRCC negotiations broke down in March 1983 because the parties disagreed on whether the information supplied-beyond sex and ethnicity data-would be treated as confidential within the HRCC. Faced with the Respondents' continued refusal to comply with its requests for sex and ethnicity in- formation, the Union filed a grievance and ulti- mately in 1984 the parties participated in an arbitra- tion proceeding with respect to the Respondents' obligation to furnish the Union with such informa- tion under article 38 of the contract.2 2 On October 20, 1983, the Union filed an unfair labor practice charge in Case 31-CA-13606 alleging, inter alia, that the Respondents failed to provide the Union with necessary and relevant information for it to en- force and administer art 38 of the contract Thereafter, the Respondents and the Union agreed to arbitrate the dispute and the Regional Director deferred the charge pursuant to the Board's arbitration deferral policy in Dubo Mfg Corp, 142 NLRB 431 (1963) Subsequent to the arbitrator's 87 The Respondents contended in that proceeding that they had no contractual obligation to furnish the requested data because the data submission pro- gram had never been established in accordance with article 38. The arbitrator's decision noted that the controversy stemmed from the apparent con- flicting requirements of article 38.C.1 and article 38.D.1 of the 1981 collective-bargaining agreement. The arbitrator then determined, after reviewing the parties' bargaining history with respect to article 38 and the article 38 language itself, that the Respond- ents were obligated under article 38.D.1 of the contract to submit the sex and ethnicity data re- quested by the Union. In so concluding, the arbi- trator found that the establishment of the data sub- mission program was self-executing and, therefore, the Respondents' obligation to furnish sex and eth- nicity data required by article 38.D.1 was not con- tingent on the HRCC's establishment of a data sub- mission program. He further concluded, however, that this determination did not render the "to estab- lish" language of article 38.C.1 meaningless. Rather, he concluded that Article 38.C.1 contemplates a Data Submission Program that includes sex and ethnicity data at the minimum, but that may also be expanded to include other data, as determined by the Coordinating Committee. In this sense, Article 38.D.1 parallels the authority of the Coordi- nating Committee set forth in Article 38.C.4 namely to explore and consider additional pro- grams. . . . The arbitrator held, however, that the Respond- ents' failure to submit the requested information, in- cluding sex and ethnicity data, was not "unjusti- fied" within the meaning of the liquidated damages provision of the collective-bargaining agreement, since the Union's request extended far beyond sex and ethnicity data to include a breakdown by job classification. Thus, the arbitrator emphasized that, absent a data submission program negotiated through the HRCC, the Respondents were not ob- ligated to provide any information beyond the sex and ethnicity of unit employees. He added, howev- er, that the Union did not waive its right to the sex and ethnicity data by requesting the additional in- formation on employment patterns. The alleged unfair labor practice here involves the Respondents' refusal to comply with the Union's requests subsequent to the arbitration award for information pertaining to the age, physi- cal handicaps, and job classifications of unit em- ployees for the fourth quarter of 1984 and the first award , the Regional Director dismissed the charge because "the issues al- leged were resolved in the Arbitral forum " M DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD three quarters of 1985, a time period not covered by the arbitration award . As such, the information requests at issue here, as the requests considered by the arbitrator, seek data beyond the sex and ethnic- ity of unit employees. It is well settled that an employer has an obliga- tion to supply requested information that is reason- able and necessary to the exclusive bargaining rep- resentative's responsibilities. NLRB v. Acme Indus- trial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). A union, however, may contractually relinquish a statutory bargaining right if the relinquishment is expressed in clear and un- mistakable terms. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Clinchfeld Coal Co., 275 NLRB 1384 (1985); Timken Roller Bearing Co., 138 NLRB 15, 16 (1962). In United Technologies Corp., 274 NLRB 504 at 507 (1985), the Board noted with approval the following language of the court in Chesapeake & Potomac Telephone Co. v. NLRB, 687 F.2d 633, 636 (2d Cir. 1982), enfg. 259 NLRB 225 (1981): [N]ational labor policy disfavors waivers of statutory rights by a union and thus a union's intention to waive a right must be clear before a claim of waiver can succeed . Waivers can occur in any of three ways : by express provi- sion in the collective-bargaining agreement, by the conduct of the parties (including past prac- tices, bargaining history, and action or inac- tion), or by a combination of the two . The lan- guage of a collective bargaining agreement will effectuate a waiver only if it is "clear and unmistakable" in waiving the statutory right. [Citation omitted.] With these principles in mind, we have examined article 38 of the collective-bargaining agreement and the parties' bargaining history regarding article 38. In agreement with the findings and the ration- ale of the arbitrator, we conclude that the parties contractually agreed that sex and ethnicity data was the minimum information that the Respondents must supply to the Union under article 38. We also find that the parties agreed that the minimum infor- mation that the Respondents must supply to the Union under article 38 could be expanded to in- clude additional data as determined by the HRCC. As mentioned above, however, the record shows that the parties agreed during HRCC negotiations that the Respondents would not be required to submit age and handicap data. On the basis of the foregoing, we conclude that article 38 constitutes a waiver of whatever statutory right the Union might otherwise have to the information involved here. We find that the Union assigned to the HRCC whatever right it may have to article 38 in- formation in addition to sex and ethnicity data in exchange for the Respondents' commitment to re- solve the Union's further entitlement to article 38 information through the HRCC . Although that forum may not have produced the desired results from the Union's point of view, the failure to produce these results does not allow the Union to obtain through the Act data that it had bargained over and otherwise contractually provided for in its collective-bargaining agreement.3 Hearst Corp., 113 NLRB 1067 (1955). In Olin, the Board reaffirmed its commitment to the standards set forth in Spielberg, which held that the Board would defer to an arbitration award where the proceedings appear to have been fair and regular, all parties have agreed to be bound, and the decision of the arbitrator is not clearly re- pugnant to the purposes and policies of the Act. In addition, the Board in Olin also clarified the Rayth- eon Co.4 requirement that the arbitrator must have considered the unfair labor practice issue for defer- ral to be appropriate . Under the standard set forth in Olin, an arbitrator has adequately considered the unfair labor practice issue if the contractual issue is factually parallel to the unfair labor practice issue, and the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. We find that deferral is appropriate here because the contractual issues involved in the arbitration proceeding are factually parallel to the statutory issue and the arbitrator adequately considered the alleged unfair labor practice at issue here . In this regard, the resolution of both the contractual issue and the unfair labor practice allegation is contin- gent on the factual finding of whether the Re- spondents were obligated to furnish the Union with information in addition to sex and ethnicity data. Although the issue framed to the arbitrator may have limited the question only to the Union's right to sex and ethnicity data, in resolving that and re- lated damages issues the arbitrator considered the broader issue of the scope of article 38 . He thus concluded that the contract "contemplates a Data Submission Program that includes sex and ethnicity at the minimum, but that may also be expanded to include other data as determined by the Coordinat- ing Committee [emphasis added]." Thus, the arbitra- tor found that under article 38 the Union was enti- tled to sex and ethnicity data, but that the Union was entitled only to such additional information as the HRCC determined . That finding necessarily in- volves consideration of the same factual question ' We note that there is no contention, and the evidence does not estab- lish, that the failure of the HRCC to meet after March 25, 1983, was due to any bad faith by the Respondents 4 140 NLRB 883 (1963). AMERICAN BROADCASTING CO presented by the complaint in this case, i.e., the extent of the Respondents' obligation to furnish in- formation in connection with the contractual non- discrimination provision. Accordingly, we find that the arbitrator addressed the precise issue raised here of whether the Union is entitled to informa- tion in addition to sex and ethnicity data. We also find that the parties presented the arbi- trator with the facts relevant to resolve the instant unfair labor practice issue. Thus, a review of the arbitrator's decision shows that he was presented with virtually the same evidence in support of the contractual issues before him as was subsequently presented by the parties to the judge, i.e., the histo- ry of the 1981 bargaining with respect to article 38, the parties' negotiations through the HRCC regard- ing the nature and type of data to be submitted, and the article 38 language itself.5 The arbitrator was aware that the arbitration proceeding before him arose from a deferred unfair labor practice charge filed by the Union which, like the instant charge, alleged that the Respondents' refusal to furnish article 38-related information was in viola- tion of the Act. Accordingly, as we find that the contractual issues are factually parallel to the statu- tory issue here and that the parties presented the arbitrator with facts relevant to resolving the issues,6 we are satisfied that the alleged unfair labor practice raised by the complaint was ade- quately considered by the arbitrator, and we shall defer to the arbitration award.7 Accordingly, we find that the Respondents did not violate the Act by failing to furnish the requested information to the Union.8 5 The sole exception appears to be the evidence as to the parties' subse- quent 1985 negotiations As found by the judge, that evidence demon- strates that during the 1985 negotiations there was some discussion within the art 38 subcommittee whether the HRCC was a viable committee to continue in existence There were no proposals made to expand the data submission program Although at the time of the hearing in this case the drafting committee had not completed its task, the judge found that the working draft demonstrated that there were no significant changes made in art 38 6 See Chevron, USA, Inc, 275 NLRB 949 (1985), and Furr's Inc, 264 NLRB 554 (1982), in which the Board found deferral to prior arbitration awards appropriate under Spielberg In those cases, although prior arbitra- tion awards involved employees different from those named in the Board proceedings, the Board found deferral appropriate because the arbitration proceedings involved the same contractual questions and legal issues as presented in the unfair labor practice complaints Compare Litton Sys- tems, 283 NLRB 973 (1987), in which the Board refused to defer to a prior arbitration award because factual developments occurring after the award gave rise to new issues and the charging party union took a posi- tion different from that which it had taken in the arbitration proceeding Unlike in Litton, here the Union's information request raises the same issues and contentions as raised in the arbitration proceeding ' There is no contention that the proceedings were not fair and regu- lar, that all parties had not agreed to be bound , or that the arbitrator's award is repugnant to the Act 8 We find it unnecessary to reach the Respondents' argument that the parties agreed that the art 38 information would be correlated by the single job classification of "writer," and not by the breakdown of writing 89 ORDER The complaint is dismissed. CHAIRMAN STEPHENS, dissenting. I would affirm the judge's finding of a violation in this case because I do not regard the statutory and contractual issues as factually parallel, with the consequence that I find deferral inappropriate. Nei- ther do I find evidence sufficient to establish that the Union clearly and unmistakably waived its stat- utory right to the information at issue. Because the collective-bargaining agreement had a nondiscrimination clause prohibiting discrimina- tion on a number of grounds, including sex, ethnic- ity, age, and physical handicap, the Union had the right, under our Act, to request and obtain infor- mation on these work force characteristics.) That right is not dependent on any contractual provision guaranteeing the right to such information.2 Thus, the arbitrator's decision regarding the provision of contractually guaranteed information on sex and ethnicity does not determine any rights the Union enjoyed under the Act to this or any additional in- formation unless it can be said that the arbitrator determined that the Union had contractually waived entitlement to such information.3 Because it seems clear that the arbitrator was not asked to, and did not, decide whether the Union waived stat- utory rights in this matter, there is no factually par- allel decision, required under Olin, to which we can defer in this regard.' With respect to the waiver question now before us, I would have no trouble finding a waiver to in- formation beyond that contemplated in the provi- sions of the agreement relating to information bear- ing on the nondiscrimination provision if the data submission program had worked as the parties ex- pected. The parties clearly contemplated using the Human Resources Coordinating Committee as the forum for working out the scope and format of submission of data other than sex and ethnicity. assignments within that classification as called for in the Union's data re- quest ' The Respondents do not challenge the judge's finding, with which I agree, that the information requested is relevant to the Union's obligation to monitor compliance with the nondiscrimination clause However, they do argue, on relevance grounds, that the Union is not entitled to the in- formation in the format requested, i e , statistically categorized by job classifications I agree with the judge, for the reason set out by her, that this argument has no merit 2 NLRB v Acme Industrial Co, 385 U S 432 (1967) 9 Globe-Union Inc, 233 NLRB 1458, 1460 (1977) 4 Moreover, even assuming that deferral is appropriate with respect to the Union's request for sex and ethnicity data considered by the arbitra- tor, in no event is deferral proper with respect to requests for the same or additional information made subsequent to the arbitrator's award, be- cause (I) it is by definition not possible to pass on the propriety of re- quests made in futuro, and (2) the arbitrator did not retain jurisdiction for the purpose of resolving future disputes over requests for information Kroger Co, 226 NLRB 512, 513 fn 6 (1976) 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thus, the Union was bound to seek to obtain infor- mation on age and physical handicap through that channel, and it waived any statutory right to demand such information directly from the Re- spondents, at least so long as that committee was functioning for that purpose. The Union and the Respondents did seek to resolve their differences through that committee but, owing to a disagree- ment over confidentiality provisions, that arrange- ment simply broke down . I do not view the Union's agreement to channel such information re- quests through that committee as an unequivocal waiver of its statutory right to information relevant to contract monitoring that survives the channel's breakdown. Because the existence of a functioning committee was an express expectation of both par- ties when they negotiated the waiver, the Union is now entitled to rescind the waiver and revert to its statutory right in seeking relevant information. Neither do I find the Union's act of dropping its demand for information on age and physical handi- cap, while committee negotiations were still viable, a waiver of its right to that information once it was clear that no agreement was going to be reached. Had the parties reached an agreement on data sub- mission reports that excluded such information, of course, waiver could properly be found.5 In sum, I reach the following conclusions : (1) the Union's request for information on writers' sex, ethnicity, age, and physical handicap was a request for information relevant to monitoring the contrac- tual nondiscrimination prohibition; (2) although the arbitrator was aware of the then pending unfair labor practice charges, he did not consider any issue other than the Union's entitlement to informa- tion under the contractual provisions; (3) the Union did not waive its statutory right to such informa- tion in the event the Human Resources Coordinat- ing Committee was unable to produce an agree- ment. For these reasons, I would find that the Re- spondents violated Section 8(a)(5) and (1) of the Act by not supplying the requested information after the committee process broke down. a My colleagues are correct that Hearst Corp., 113 NLRB 1067 (1955), is authority for finding waiver where the abandonment of a demand, after full bargaining, is reflected in a final agreement . Here, to the contrary, no such agreement was ever reached on which the parties could rely for sta- buizmg the bargaining relationship with respect to rights to information. Ann Reid Conrin, Esq., for the General Counsel. Richard Moreno, Esq., of Hollywood, California, for Re- spondent American Broadcasting Company. John Turner, Esq., of Sherman Oaks, California, for Re- spondent Members of the Alliance of Motion Picture and Television Producers. Sandra Gorham, Esq., of Los Angeles, California, for Re- spondent CBS, Inc. Edward Reitkopp, Esq., of Burbank, California, for Re- spondent NBC Productions, Inc. Michael R. White, Esq., of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge. This matter was heard before me in Los Angeles, Cali- fornia, on 29 January 1986. The charge was filed by Writers Guild of America, West, Inc. (the Guild) on 24 June 1985, and copies thereof were served on Respond- ent's on 26 June 1985 . The complaint, which issued on 23 August 1985, alleges that Respondents violated Sec- tion 8(a)(1) and (5) of the National Labor Relations Act (the Act). The basic issue is whether Respondents unlaw- fully refused to provide information requested by the Guild, which information was necessary for and relevant to the Guild's performance of its function as the exclu- sive collective-bargaining representative of certain of Re- spondents' employees. On the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION At all times material Respondent American Broadcast- ing Company (ABC), a New York corporation with an office and place of business in Hollywood, California; Respondent CBS, Inc. (CBS), a New York Corporation with an office and place of business in Los Angeles, Cali- fornia; and Respondent National Broadcasting Company, Inc. (NBC), a Delaware corporation with an office and place of business in Burbank, California; each has been, and is now, engaged in the operation of radio and televi- sion broadcasting stations. At all times material Respondent NBC Productions, Inc. (NBC Productions), a New York corporation with an office and principal place of business located in Bur- bank, California; Respondent Columbia Pictures Indus- tries, Inc. (Columbia), a Delaware corporation with an office and principal place of business located in Burbank, California; Respondent Paramount Pictures Corporation (Paramount), a Delaware corporation with an office and principal place of business located in Los Angeles, Cali- fornia; Respondent Universal City Studios, Inc. (Univer- sal), a Delaware corporation with an office and principal place of business located in Universal City, California; Walt Disney Pictures (Disney), a California corporation with an office and principal place of business located in Burbank, California; Metromedia Producers Corporation (Metromedia), a California corporation with an office and principal place of business located in Hollywood, California; MGM/UA Entertainment Company (MGM/- UA), a California corporation with an office and princi- pal place of business located in Culver City, California; MTM Enterprises, Inc. (MTM), a California corporation with an office and principal place of business located in AMERICAN BROADCASTING CO Studio City, California; Orion T.V. Productions, Inc. (Orion TV), a New York corporation with an office and principal place of business located in Los Angeles California, Twentieth Century Fox Film Corporation (Fox), a Delaware corporation with an office and princi- pal place of business in Century City, California; and Warner Bros, Inc. (Warner), a California corporation with an office and principal place of business located in Burbank, California; Hanna-Barbera Productions, Inc. (Hanna-Barbera), a Delaware corporation with an office and principal place of business located in Hollywood, California, each has been, and is now, engaged in the op- eration of a television and/or movie production studio. At all times material, Brighton Productions, Inc. (Brighton), a California Corporation with an office and principal place of business located in Los Angeles, Cali- fornia, has been, and is now, engaged in the development of theatrical projects for motion picture productions. At all times material, Century Towers Production, Inc. (Century Towers), with an office and principal place of business located in Los Angeles, California, has been, and is now, engaged in the development and/or produc- tion of television motion pictures on video tape. At all times material, Leonard Goldberg Company (Goldberg), a sole proprietorship with an office and' prin- cipal place of business located in Los Angeles, Califor- nia, has been, and is now, engaged in the development of television and/or production of theatrical motion pic- tures At all times material, T.A.T. Communications Compa- ny d/b/a Embassy Television (Embassy Television), a joint venture with an office and principal place of busi- ness located in Los Angeles, California; Lorimar Produc- tions, Inc. (Lorimar), a California corporation with an office and principal place of business located in Culver City, California; Aaron Spelling Productions, Inc. (Spell- ing), a California corporation with an office and princi- pal place of business located in Los Angeles, California; Viacom Productions, Inc. (Viacom), a Delaware corpo- ration with an office and principal place of business lo- cated in Los Angeles, California, each has been, and is now, in the development and/or production of television motion pictures At times material, Tandem Communication, Inc (Tandem), a California corporation with an office and principal place of business in Los Angeles, California, was engaged in the development and/or production of television motion pictures. At all times material, Embassy Productions, Inc (Em- bassy Productions), a New York corporation with an office and principal place of business located in Los An- geles, California, has been, and is now engaged in the de- velopment and/or production of theatrical motion pic- tures. At all times material Orion Pictures Distribution Cor- poration (Orion Pictures), a Delaware corporation with an office and principal place of business located in Los Angeles, California, has been, and is now, engaged in the distribution of theatrical productions. At all times material Orion Television, Inc. d/b/a Orion Television (Orion Television), a California corpo- ration with an office and principal place of business in 91 Los Angeles, California, has been, and is now, engaged in the development of projects for television productions. At all times material, each of the above Respondents, in the course and conduct of their business operations, annually derive gross revenues in excess of $500,000 and annually purchase and receive goods and services valued in excess of $50,000 directly from suppliers located out- side the State of California. The Alliance of Motion Picture and Television Pro- ducers (AMPTP), is now and has been at all times mate- rial an association comprised of various employers with principal offices and places of business in the State of California where they are engaged in the production of motion pictures for television and theatres; and exists for, and does engage in collective bargaining for, and negoti- ates and executes collective-bargaining agreements on behalf of, its employer-members with organizations, in- cluding the Guild. The employer-members of AMPTP, in the course and conduct of their business operations, annually derive gross revenues in excess of $500,000 and annually purchase and receive goods and services valued in excess of $50,000 directly from suppliers located out- side the State of California. The complaint alleges, Respondents admit, and I find that Respondents and the employer-members of AMPTP are now and have been at all times material employers in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondents admit, and I find that the Guild is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES The member-companies of the Association of Motion Picture and Television Producers, Inc., the member-com- panies of AMPTP, and certain other employers, includ- ing Respondents MGM/UA, ABC, CBS, NBC, and Disney were parties to a multiemployer collective-bar- gaining agreement with the Guild covering a unit of writers effective by its terms from 17 March 1981 to 18 February 1985. This agreement (the 1981 agreement) provides, inter alia ARTICLE 38-NON-DISCRIMINATION A. Policy 1.. . . there shall be no discrimination due to sex, age, race, religion , sexual preference, color, national origin, or physical handicap. C. Human Resources Coordinating Committee The Companies and the Guild shall establish a Human Resources Coordinating Committee which shall meet upon request of either party. . . The purpose of this Committee is as follows: 1. to establish the Data Submission Program and to analyze and review employment data sub- mitted thereunder. 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D. Data Submission Program 1. The Company shall submit to WGA within 30 days after receipt of a written request by the Guild (but no more frequently than once a calen- dar quarter) a report of the sex and ethnicity of writers employed by Company under this Agree- ment during the preceding calendar quarter. The agreement contains no specific provisions regard- ing the submission of data within the article 38A catego- ries. Nor does it specifically resolve what, on the surface, appears to be a conflict between the provision of article 38D, which requires quarterly data submission, on re- quest, of a report of the sex and ethnicity of writers em- ployed by signatory employers and the provision of arti- cle 38C, which establishes a human resources coordinat- ing committee whose purpose is to establish a data sub- mission program , and which contains no limitations as to the data to be submitted. Similarly, evidence as to the negotiations leading to the 1981 agreement does not conclusively resolve this question . The Guild's initial proposal, dated 5 April 1981, provided for no discrimination due to sex , age, race, reli- gion, sexual preference , creed, color, or national origin and required that the employer submit, on request, af- firmative action data to the Guild. On 17 February 1981 the employers counterproposed that the employers pro- vide the Guild, on request but not more frequently than once a calendar quarter, a report of the sex, ethnicity, and age of writers covered by the agreement. This pro- posal further provided for the creation of a nondiscrim- ination coordinating committee whose purpose would be, inter alia, to ananlyze and review employment data sup- plied by the Employers. The Employers' 1 April 1981 proposal, as well as the earlier counterproposal, provided that the employers submit a report of the sex and ethnic- ity of writers employed under the agreement , and further that the data "furnished in accordance with this Article shall be for the purpose of facilitating the meeting which the Guild may request" on 10 days notice "to discuss any matter relating to alleged discrimination , fair em- ployment or the policy expressed [in Article 38]." There was no essential change in the employers' 28 April coun- terproposal. The Guild's 10 July counterproposal did not restrict the submission of sex and ethnicity data to the purpose of "facilitating the meeting which the Guild or the employ- er may request . . . to discuss any matter relating to al- leged discrimination , fair employment or the policy ex- pressed [in Article 38]. It did provide for the creation of a human resources coordinating committee, one of whose purposes is "to establish and supervise the data submission program and to analyze and review the em- ployment data submitted thereunder. ..." Dean Farris, an employer-member of the negotiating subcommittee on article 38, testified that when the Guild spokesperson presented the proposal for article 38 she expressed concern regarding the employment of minori- ties as writers in the motion picture and television indus- try and stated that the proposal was being made in an effort to stimulate employment opportunities for minori- ties. Following the presentation of the Employers' counter- proposal, and at the request of the Guild, an article 38 subcommittee was established . According to Farris, the emphasis in the subcommittee discussions was on enhanc- ing the employment opportunities for minorities. Jim Tis- dale, a Black Guild representative on the subcommittee, was insistent that efforts be focused on minorities, and concern was expressed by the Guild that a broadening of efforts would dilute minority opportunities. Employer- representatives expressed concern as to possible first amendment and reverse discrimination problems. A Guild spokesperson represented that there was a very vocal group of women within the Guild who did not want females incorporated in any affirmative action effort because they felt there was no discrimination being practiced within the industry against women in the writ- ing categories. The Employers urged that failure to in- corporate women would cause reverse discrimination problems. As a result of this discussion, the Employers redrafted their counterproposal ' to pinpoint, to the extent they felt it was legal, the employment of minorities and, accord- ing to Farris, agreement was reached to deal with race and sex only. However, he was unable to relate specifi- cally what was said in this regard . According to him, the only time that an expansion of these two categories was discussed was at one session in which one of the produc- ers said he would personally like to see the physically handicapped included. It was determined, however, that it was not necessary to incorporate the physically handi- capped into the contract, as there were no problems with that group that needed to be rectified. On the last night of the negotiations, according to Farris, the data submission program was one of the two or three open issues. The negotiating committee deter- mined that the form to be utilized for submissions would be developed by the human resources coordinating com- mittee. Farris further testified that during the drafting committee meetings, which commenced immediately fol- lowing the negotiation , there was no discussion of the type of data to be included under the data submission program, nor was there any agreement to include any- thing other than sex and ethnicity.2 Following the 1981 negotiations , the human resources coordinating committee (HRCC), was established. On 29 December 1982 the Guild sent AMPTP a proposed data reporting form that it wished to discuss at the first meet- ing of HRCC scheduled for 7 January. This form provid- ed for statistical data as to sex, ethnicity, age, and physi- cal handicap by job classification . On 26 January 1983 AMPTP sent the Guild a proposed data reporting form that it wished to discuss at an HRCC meeting scheduled for 7 February. This form provided for employment data only as to sex and ethnicity. ' The Employer's proposal was based on the 1984 Screen Acton Guild contract $ Farris was not a member of the drafting committee, but did attend some of the sessions AMERICAN BROADCASTING CO According to Farris, at the 7 February meeting of HRCC, as primary spokesperson for the Employers, he objected to the inclusion of the age and physically handi- capped categories on the grounds that they had not been negotiated and specifically had not been included in the requirements for data submission in the agreement He stated that the breakdowns by job classification went far beyond what the Employers felt was necessary and agreed on Farris also testified that it is his recollection that the Guild representatives on the committee agreed to his objections to the inclusion of age and physically handicapped, as not having been incorporated into the agreement and further agreed to exclude it from their format ; but did not agree to exclude the breakdown by job classification . Jane Ellison , as spokesperson for the Guild, stated they felt the breakdown was necessary in order to identify in what categories writers were being employed The Guild then proposed a data submission form identical to the one earlier proposed by them, except that it dropped the age and physical handicap cat- egories and agreed to drop one of the job classification categories. 3 With these exceptions , no agreement was never reached as to what should or should not be includ- ed on the data submission form Commencing with the fourth quarter of 1982 and con- tinuing through the first two or three quarters of 1983, the Guild requested sex and ethnicity data according to a job classification breakdown . With one exception, the Employers did not comply with these requests. On 20 October 1983, the Guild filed an unfair labor practice charge in Case 31 -CA-13606, alleging, inter alia, that Respondents failed and refused to provide the Guild with information relevant and necessary to its abil- ity to enforce and administer article 38 of the parties' collective-bargaining agreement. The parties agreed to arbitrate the underlying dispute in, this case and the Re- gional Director deferred the charge pursuant to the Board's arbitration deferral policy in Dubo Mfg. Corp, 142 NLRB 431 (1963). The Guild continued to request the same information for the remaining quarters of 1983 and for the first three quarters of 1984. By letter dated 28 December 1984, the Guild request- ed that Respondents furnish the following information for the third quarter of 1984: 1 The number of writers age 40 and over, 2 The number of writers with physical handicap, and 3. For each category of writers (i.e., Caucasian, ethnic minority group, . male, female, over 40, or physically handicapped) employed during the third quarter of 1984 under the 1981 basic agreement in 3 The classifications proposed by the Guild were I Freelance (a) story (b) first draft (c) second draft 2 Staff (a) staff writer (b) story editor (c) writer producer The category the Guild agreed to drop was that of second draft in the freelance category 93 television, an indication of job classification (i.e., freelance story assignment, freelance first draft as- signment, staff writer, staff story editor, or staff writer/producer). During the arbitration, the Guild alleged that Re- spondents breached the 1981 agreement in that, with one exception, they had submitted no data regarding the sex and ethnicity of writers in their employ despite the re- quirements of article 38D(l). Relying on article 38C(l), Respondents urged that because that provision requires the HRCC "to establish" the data submission program, their obligation to furnish sex and ethnicity data comes into being only after the committee had established the program, and, since the committee has not yet done so, they neither have, nor have had, any obligation to submit any data The Guild urged that the data submission pro- gram was "established" when the agreement was execut- ed and thus the Companies have been obligated to submit data, pursuant to the limitations of article 38D(2), since that time On 9 January 1985 Arbitrator Murray L. Schwartz issued an opinion in which he concluded that, based on the collective-bargaining history and the structure and policy of article 38, the data submission requirement of the contract is self-executing and the Companies are re- quired by its terms to furnish sex and ethnicity data He further concluded.: That determination does not render the "to estab- lish" language of Article 38.C.1 meaningless. Arti- cle 38 C 1 contemplates a Data Submission Program that includes sex and ethnicity data at the minimum, but that may also be expanded to include other data, as determined by the [HRCC]. In this sense, Article 38.D.1 parallels the authority of the [HRCC] set forth in Article 38.C.4, namely, to "ex- plore and consider additional programs." Accordingly, the arbitrator found that Respondents were obligated to furnish sex and ethnicity data to the Guild under article 38D(1). As to the Guild's request for a determination that it had not waived its statutory and contractual rights to re- ceive such data by requesting a job classification break- down, the arbitrator concluded that inasmuch as he had held that Respondents are required by article 38D to submit sex and ethnicity reports the Guild's statutory rights were not adversely affected However, the arbitra- tor further found that, as the Guild's demand for data ex- tended beyond sex and ethnicity' into job classification areas, the refusal of the Respondents to submit sex and ethnicity data in response to the Guild's written request was not "unjustified" under article 38, and that conse- quently the Guild was not entitled to an award of liqui- dated damages because of the companies' failure to file reports prior to any that may have been demanded for the third quarter of 1984. Accordingly, the Respondents were ordered to submit a report of the sex and ethnicity of the writers employed by them during the fourth quar- ter of 1982, 1983, and the first two quarters of 1984 cov- ering all employees employed in any capacity as writers. 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However, it was further ordered that the Guild should not recover liquidated damages for the Respondents' fail- ure to submit such reports. By letter dated 5 February 1985 the Guild requested that the Regional Director investigate that portion of the charge in Case 31-CA-13606, which alleged that Re- spondents "have failed and refused to provide [the Guild] with information relevant and necessary to [the Guild's] ability to enforce and administer Article 38 of the parties' collective-bargaining agreement in further violation of Section 8(a)(1) and (5) of the Act." In sup- port thereof, the Guild argued that the arbitrator did not consider nor decide whether Respondents breached the contract or violated the Act with respect to their con- tinuing refusal to provide the Guild with information concerning the writers' job classifications. On 9 May 1985 the Regional Director dismissed the charge in Case 31-CA-13606 on the grounds that the issues alleged were resolved in the arbitral forum. The Guild did not appeal this dismissal. Following negotiations in January and February 1985, an oral agreement, in principle, was reached on a 1985 collective-bargaining agreement, which was ratified by the employees on or about 18 March 1985 . According to Farris, there was some discussion within the 1985 article 38 subcommittee whether the ]-HRCC was a viable com- mittee to continue in existence . There were no proposals, as he recalls, to expand the data submission program. At the time of the hearing, the drafting committee had not completed its task. However, the working draft corro- bates Farris' testimony that no significant changes were made in article 38. Guild's 28 December 1984 request for information was repeated on 18 March 1985 for the fourth quarter of 1984; on 25 June 1985 for the first quarter of 1985; on 30 September 1985 for the second quarter of 1985; and on 31 December 1985 for the third quarter of 1985. Certain of the employer-signatories complied with these requests but most of them, including Respondents, did not. Conclusions 1. The relevance of the requested information It is well established that an employer is obligated to provide the collective-bargaining representative of its employees, on request, with information that is relevant and necessary for the proper performance of a union's duties as a collective-bargaining representative . This obli- gation extends not only to information that is useful and relevant for the purpose of contract negotiations, but also to information necessary for the administration of a collective-bargaining agreement . However, before the obligation to produce arises, it must be shown that the requested information is relevant and reasonably neces- sary for the labor organization 's proper performance of its role as a collective-bargaining representative. Rel- evancy is to be determined by a liberal standard, and it is necessary to establish only the "probability that the de- sired information is relevant, and that it would be of use to the union in carrying out its statutory duties and re- sponsibilities." NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1965); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Gunn & Briggs Inc., 267 NLRB 944, 947 (1983); W-L Molding Co., 272 NLRB 1240. Respondents do not dispute the relevance of the re- quested information as related to "all writers." However, they do argue that the requested information is not rele- vant insofar as it requires a breakdown of such informa- tion by "job classification." In this regard Respondents contend that there is only one job classification at issue, which classification is accurately set forth in the bargain- ing unit description in the complaint as covering all writ- ers employed to write literary material for Respondents' motion pictures. Thus, Respondents argue, the request is not actually calling for a breakdown of job classifica- tions, but instead it calls for descriptions of the particular writing assignment and the nature of the writers' writing employment. Respondents further argue that this conten- tion is supported by the fact that the annual employment data report required by the Equal Employment Opportu- nity Commission requests information only as to broad employment categories and does not require a further breakdown of information regarding job assignments within those categories. I find these arguments unpersuasive. Here, the Guild requested information as to sex, ethnicity, handicapped status, and age of employees 40 and over. It is undis- puted that this information was requested in order to monitor and administer the equal opportunity policy set forth in the collective-bargaining agreement . In view of the statutory bargaining representatives' obligation to insure that discriminatory practices are not established or continued, the Board has found that information, such as requested here, which relates to alleged discrimination is clearly relevant to a determination of whether discrimi- nation exists. The Board has further concluded that it shall apply the same standard to requests for statistical data relating to employment practices as is applied to re- quests for wage data; namely, that such information is presumed relevant to the collective-bargaining process and that it shall not require the union initially to show the relevance of the requested information . Westinghouse Electric Corp., 239 NLRB 106, 107-109 (1978), enf. in pertinent part sub nom. Electrical Workers IUE, 648 F.2d 18 (D.C. Cir. 1981). I therefore find that the information requested by the Guild is relevant and reasonably neces- sary for the Guild's performance of its role as collective- bargaining representative. 2. The res judicata, collateral estoppel, and deferral to arbitration argument On October 1983 the Guild filed an unfair labor prac- tice charge in Case 31-CA-13606 alleging , inter alia, that Respondents had failed and refused to provide the Guild with information relevant and necessary to its ability to enforce and administer article 38 of the parties' collec- tive-bargaining agreement. Thereafter, in view of the parties' agreement to arbitrate the underlying dispute, the Regional Director deferred the charge pursuant to the Board's arbitration deferral policy in Dubo Mfg. Corp., supra. Following the issuance of the arbitrator's opinion, and award, the Regional Director dismissed the charge for the stated reason that "the issues alleged were re- AMERICAN BROADCASTING CO solved in the arbitral forum." The Guild did not appeal this dismissal. Respondents argue that the doctrines of res judicata and collateral estoppel apply because the relevant factual and legal issues are identical to those raised in the arbi- tration proceeding and in the charge in Case 31-CA- 13606, the dismissal of which was not appealed. Under the res judicata doctrine "[a] valid , final judgment on the merits is a bar to a subsequent action between the same parties, or those in privity with them , upon the same claim or demand." 1B Moore Federal Practice 0.411[2], at 1281 fn. I (2d ed. 1982); and "such a judgment precludes the subsequent litigation both of issues actually decided in determining the claim asserted in the first action of issues that could have been raised in the adjudication of that claim." Id. § 0.045[3], at 631-632 The doctrine of collateral estoppel normally will bar the relitigation of an issue or law or fact that was raised , litigated, and actual- ly decided by a judgment in a prior proceeding between the parties, if the determination of that issue was essential to the judgment, regardless of whether the two proceed- ings are based on the same claim . NLRB v. United Tech- nologies Corp., 706 F.2d 1254 (2d Cir. 1983), Clearly, nei- ther doctrine applies to the administrative dismissal of a charge, and an arbitrator's decision has preclusive effect only to the extent set forth in the Board's deferral to ar- bitration policy. Under that policy, the following criteria must be met for the Board to defer to the decision of an arbitrator: (1) the proceeding must be fair and regular, (2) all parties must agree to be bound ; and (3) the decision must not be repugnant to the purposes and policies of the Act. Spiel- berg Mfg. Co., 112 NLRB 1080 (1955) Further, the arbi- trator must have considered the unfair labor practice issue . Raytheon Co., 140 NLRB 883 (1963). The current policy for the application of this latter standard and the burden of proof is set forth in Olin Corp., 268 NLRB 573, 574 (1984). There the Board held: We would find that an arbitrator has adequately considered the unfair labor practice if (1) the con- tractual issue is factually parallel to the unfair labor practice issue, and (2 ) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. In this respect, differences, if any, between the contractual and-statutory stand- ards of review should be weighed by the Board as part of its determination under the Spielberg stand- ards of whether an award is "clearly repugnant" to the Act. And, with regard with to -the inquiry in to the "clearly repugnant" standard, we would not re- quire an arbitrator's award to be totally consistent with Board precedent . Unless the award is "palpa- bly wrong," i.e., unless the arbitrator's decision is not susceptible to an interpretation consistent with the Act, we will defer. Finally, we would require that the party seeking to have the Board reject deferral and consider the merits of a given case show that the above stand- ards for deferral have not been met. Thus, the party seeking to have the Board ignore the determination 95 of an arbitrator has the burden of affirmatively dem- onstrating the defects in the arbitral process or award. Here, there is no contention or evidence that the arbi- tral proceedings were not fair and regular or that all par- ties did not agree to be bound. However, the evidence does not support Respondents ' position that the issues before the arbitrator were the same as the issues here. Thus, according to the arbitrator's opinion, the dispute that gave rise to the arbitration related to the Employers; failure to submit requested sex and ethnicity data and the Employers' position that they were obligated to furnish sex and ethnicity data only after the HRCC established a data submission program ; and since HRCC had not done so, they had no obligation to submit any data. Therefore, the basic issue before the arbitrator was whether, despite the provision of article 38(C)(l) that the HRCC establish the data submission program , the Employers were re- quired by article 38(D)(1) to furnish sex and ethnicity data without regard to whether HRCC established a data submission program. The arbitrator concluded that article 38 contemplated a data submission program that included sex and ethnic- ity data at the minimum, but that could be expanded to include other data as determined by the HRCC. Accord- ingly, he concluded that the data submission requirement of article 38(D)(1) relating to sex and ethnicity was self- executing and the Employers were required by its terms to furnish such data . Further, upon the Guild's request for a determination that it had not waived its statutory and contractual rights to receive such data by requesting a job classification breakdown, the arbitrator concluded that inasmuch as he had held that Respondents are re- quired by article 38(D) to submit sex and ethnicity re- ports, the Guild's statutory rights were not adversely af- fected. However, he also found that since the Guild's demand for data extended beyond sex and ethnicity into job classification areas, the refusal of Respondents to submit such data was not "unjustified" under article 38 and, consequently, the Guild was not entitled to an award of liquidated damages. Thus, the arbitrator's fin- dining was limited to a determination of whether Re- spondents' refusal to comply with the Guild's request for sex and ethnicity data by job classification was "unjusti- fied" under article 38(G)(1), thereby making the employ- ers obligated to pay the liquidated damages provided for therein . Thus, the arbitrator never reached the general question of whether the Employers could be required to furnish information according to a job classification breakdown. Here, the issue is whether Respondents were obligated to furnish the requested data relating to discrimination, other than sex and ethnicity , prohibited by article 38; and were obligated to furnish such information , as well as that related to sex ethnicity, according to the job classifi- cation breakdowns requested by the Guild. Neither of these issues was before the arbitrator. Further, their reso- lution requires considerations in addition to those rele- vant to the issues before the arbitrator. Accordingly, under the Board's deferral to arbitration policy, it is appropriate for me to make a determination 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in this matter. However, the record shows that the arbi- trator interpreted certain provisions of article 38 of the collective-bargaining agreement underlying both the issue here and that in the arbitration proceeding . I, there- fore, further find it appropriate , in the circumstances, to defer to the arbitrator's interpretation of these provisions. Thus my decision here will be based , in part, on the arbi- trator's determination that sex and ethnicity is the mini- mum, rather than the exclusive, data required under arti- cle 38 to be submitted to the Guild by the employers. 3. Respondent's obligation to furnish the requested data Respondents contend that by the provisions of article 38 the Guild waived any statutory rights it may have had with respect to the age and handicapped data re- quested by the Guild. The record does not support this contention . It is well established that waiver of a right to information must be "clear and unmistakeable." Hearst Corp., 113 NLRB 1067 (1955). Such a waiver must be in express terms and can never be found by implication. Skyway Luggage Co., 117 NLRB 681 (1957), W-L Mold- ing Co., 272 NLRB 1239 (1984). Here, the arbitrator concluded that sex and ethnicity data were the minimum data required and that , under ar- ticle 38, the requirement could be expanded to include other data as determined by the HRCC. Thus, it is ap- parent that the Guild did not waive its rights to age and physical handicap data, nor to breakdowns by job classi- fications of data relevant to issues of actual or potential discrimination. Rather, the Guild agreed to further nego- tiate the specifics of a data submission program within HRCC. That section of article 38(C) constituted a com- mitment to continue negotiations rather than a waiver of the Guild's right to data except as required by the HRCC is apparent, not only from the failure to include express waiver language in the provision , but also from Farris' testimony as to the conclusion of the 1981 negoti- ations. According to him , on the last night negotiations the data submission program was one of the two or three open issues. An agreement to conclude the strike was reached, and they simply ran out of time to further refine the data submission program. So it was determined that development of a format for data submission would be turned over to HRCC. However, even assuming arguendo that by article 38(C) the Guild did limit its right to data other than sex and ethnicity to only such data as required by HRCC, the arbitrator found , and I agree, that it is clear the par- ties did not contemplate a complete breakdown as oc- curred within the HRCC. Nevertheless, such a break- down did occur, resulting in a complete abandonment of the process by 25 March 1983, only 2-1/2 months after the first HRCC meeting that was held on 7 January 1983.4 In view of this breakdown of the agreed-upon The arbitrator concluded the breakdown was occasioned by the Em- ployers' insistence that data submitted other than as to sex and ethnicity be treated as confidential and that all data submitted be "prospective" only The Guild refused to accede on either issue. process for determining the extent of the data to be sub- mitted, the Guild may properly insist on its statutory right to information relevant to actual or potential dis- crimination despite the authority given to the HRCC under article 38. To conclude otherwise would give a re- calcitrant employer the power to effectively evade its obligations under the Act. In view of the above, I find that each of the Respond- ents violated Section 8(a)(5) and (1) of the Act by its re- fusal to furnish the Guild with the requested data as to sex, ethnicity, age, and physical handicap status of unit employees by job classification CONCLUSIONS OF LAW 1. The Respondents are employers within the meaning of Section 2(2) of the Act, engaged in commerce or a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Guild is a labor organization within the mean- ing of Section 2(5) of the Act. 3. (a) From 2 March 1981 until 28 February 1985, the following-described employees of Respondents constitut- ed a multiemployer unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: (a) Theatrical-all writers employed by the Respondents; and (b) Television-all writers en- gaged by Respondents as employees for the purpose of preparing literary material for the entertainment portion of motion pictures produced primarily for exhibition over television. Excluded : Producers, directors, story supervisors, composers, lyricists, non-professional writers, story analysts, employees employed in non-writing capac- ities, guards and supervisors as defined in the Act. (b) From 2 March 1985 to date, the following de- scribed employees of each Respondent (other than AMPTP) have constituted individual units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: (a) Theatrical-all writers employed by Respondent in the motion picture industry; and (b) Television-all writers engaged by Respondent as employees for the purpose of preparing literary ma- terial for the entertainment portion of motion pic- tures produced primarily for exhibition over televi- sion. Excluded : Producers, directors, story supervisors, composers, lyricists, non-professional writers, story analysts, employees employed in non-writing capac- ities, guards and supervisors as defined in the Act. 4. (a) From 2 March 1981 until 28 February 1985, the Guild was the designated exclusive bargaining represent- ative of the employees in the multiemployer unit de- scribed above in paragraph 3(a) and during that period of time was recognized as such representative by Re- spondents. AMERICAN BROADCASTING CO 97 (b) Since on or about 2 March 1985 the Guild has been, and is now, the designated exclusive collective-bar- gaining representative of the employees in each unit de- scribed above in paragraph 3(b) and since that date has been recognized as such representative by each Respond- ent 5. Respondents have engaged , and are engaging, in unfair labor practices within the meaning of Section THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that Re- spondents cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act Having found that Respondents have violated Section 8(a)(1)'and (5) of the At by failing and refusing to pro- 8(a)(1) and (5) of the Act by failing and refusing to fur- vide the Guild with the following requested information nish certain information requested by the Guild com- relevant to actual or potential discrimination in the units mencing on or about 28 December 1984, I shall recom- described above mend that each of the Respondents be ordered to.furnish the Guild with the following information: 1 The number of writers age 40 or over; 2 The number of writers who are physically handicapped; 3. For each category of writer (i.e, Caucasian, ethnic minority group, male, female , over 40, or physically handicapped ) employed during the fourth quarter of 1984 and the first, and second, and third quarters of 1985 under the Guild's basic agree- ment^m television , an indication of job classification (i e , Freelance story assignment , freelance first draft assignment , staff writer, staff story editor, or staff writer/producer). .6. , The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 1. The number of writers age 40 or over; 2. The number of writers who are physically handicapped; 3 For each category of writer (i.e, Caucasian, ethnic minority group, male, female , over 40 or physically handicapped) employed during the 4th quarter of 1984 and the first , second, and third quar- ters of 1985 under the Guild's basic agreement in television, an indication of job classification (i e , Freelance story assignment, freelance first draft as- signment, staff writer, staff story editor, or staff writer/producer) [Recommended Order omitted from publication.]