Ironton Publications, Inc.

IRONTON PUBLICATIONS Ironton Publications, Inc.' and Athens Printing Pressmen & Assistants Union No. 269, affili- ated with Graphic Communications Internation- al Union, AFL-CIO-CLC. Case 9-CA-24916 June 9, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 13, 1988, Administrative Law Judge Lowell Goerlich 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 National Labor Relations Board has delegat- ed its authority in the proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified and to adopt the recom- mended Order as modified and set forth in full below. The Respondent publishes a newspaper in Iron- ton, Ohio. It is a subsidiary of Boone Publications, a holding company partly owned by Boone News- papers, Inc.2 The Union has represented the Re- spondent's pressmen since 1963. In conformity with the most recent collective-bargaining agreement, the parties in March 1987 reopened the agreement to negotiate employees' wages and retirement bene- fits. While the negotiations were in progress, the Respondent announced that it would adopt the Boone Newspapers, Inc. profit-sharing plan for its eligible employees (i.e., nonunit employees who met age and service requirements). During the course of the negotiations, the Union also learned that there was a relationship between Boone Publi- cations and six other daily newspapers.3 In Novem- ber 1987 the Union requested information about the Boone Newspapers, Inc. profit-sharing plan and in- formation concerning the number of pressmen at the six other newspapers and their wages, hours, and benefits. ' The Respondent has excepted to the judge 's finding that it is a wholly owned subsidiary of Boone Newspapers , Inc The record does not support this finding , and we do not rely on it The name of the Re- spondent in the caption is amended accordingly 2 The parties stipulated that Boone Publications is a holding company partly owned by Boone Newspapers, Inc Although the Respondent denies it is a wholly owned subsidiary of Boone Newspapers, Inc, the judge in his decision stated that the Respondent is a subsidiary of Boone Publications and neither party has excepted to this statement 3 These newspapers were the Alexander City Outlook, Alexander City, Alabama, Andalusia Star News, Andalusia, Alabama, Natchez Democrat, Natchez, Mississippi , Raton Daily Range , Raton, New Mexico, Selma Times-Journal , Selma, Alabama, and Troy Messenger, Troy, Alabama 853 The Respondent refused to supply 'the informa- tion, contending that it was not relevant. The judge found that all the requested information was rele- vant and that the Respondent violated Section 8(a)(5) and (1) of the Act- by its refusal to furnish the information. We adopt the judge's decision only as to the re- quest for the profit-sharing plan and related infor- mation matters.4 We agree that because the Re- spondent adopted the Boone Newspapers, Inc. profit-sharing plan for some of its nonunit employ- ees the requested information concerning that plan is relevant information to which the Union is enti- tled. However, we find that the General Counsel has failed to sustain her burden of proving that the Respondent has an obligation to provide the re- quested information concerning the number of pressmen at the six other newspapers and their wages, hours, and benefits. There is extremely limited competent evidence concerning the corporate relationship between the Respondent and the six other newspapers that are the subject of the information request. The testimo- ny of the union representative who went to the public library, on the suggestion that Boone Publi- cations "represented" six other newspapers, and discovered that "they had six daily newspapers" is so vague and tenuous as to be worthless. His testi- mony regarding a periodical, if offered for the truth of the matters found in the book, is unreliable hearsay. Furthermore, his statement that, at best, Boone Publications "represented" the six newspa- pers, is almost devoid of meaning and does not es- tablish that the six newspapers are subsidiaries of Boone Publications, wholly owned-or otherwise, or that they have any other significant relationship to Boone Publications. The judge relied on an "admission" by the Re- spondent that the six other newspapers are wholly owned subsidiaries of Boone Newspapers, Inc. In fact, this so-called admission is of no probative value because elsewhere in its answer the Respond- ent expressly and unequivocally denies that such a relationship exists. As stated in footnote 1, supra, the record simply does not support the judge's finding that the Respondent is a wholly owned sub- sidiary of Boone Newspapers, Inc. In its answer, the Respondent merely acknowl- edged that among the newspapers there were "some" common officers, "some" common owner- ship, and "some" common management and super- vision, and that "limited" exchanges of services and personnel have been had. The General Counsel failed to pursue this matter at the hearing by ad- 4 Items "h" through "1" of the Union's request 294 NLRB No. 73 854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ducing evidence as to the extent of common offi- cers, ownership, management, and supervision or of the services and personnel exchanged. Thus, no evidence was presented at the hearing of who the common officers were or how -many there were. Similarly, there is absolutely no evidence from the hearing identifying the common owners or supervi- sors of the seven newspapers. There is no evidence of anymore than "some" commonality and ex- change.5 On the basis of the record evidence, including reasonable inferences drawn therefrom, we find that the General Counsel has failed to meet the burden of showing that the requested information concerning the number of pressmen at the other six newspapers and their wages, hours, and benefits constitutes relevant information that must be given to the Union representing the Respondent's press- men. The General Counsel must show more than a nebulous and ill-defined relationship between the Respondent and the six other newspapers in order to create for the Respondent an obligation to pro- vide the requested information. AMENDED CONCLUSION OF LAW 5. Substitute the following for Conclusion of Law "5. By refusing to bargain collectively with the Union by refusing to furnish the Union with infor- mation concerning the profit-sharing plan and relat- ed matters that the Union requested on November 2, 1987, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Ironton Publications, Inc., Ironton, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and' refusing to supply information concerning the profit-sharing plan and related mat- ters requested by the Union in its letter dated No- vember 2, 1987. I We do know that the president of Boone Newspapers, Inc appeared at the bargaining table on the Respondent's behalf, that later the Re- spondent was represented in bargaining by the publisher of one of the six newspapers who was the Respondent's former president and publisher, that the Respondent adopted the Boone Newspapers, Inc profit-sharing plan, and that a Boone Newspapers, Inc letterhead was used in present- ing the Respondent's bargaining proposals These reeds are far too slen- der to support a finding that the seven newspapers have a significant rela- tionship to one another (b) In any like or related manner. interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Supply the Union with, information concern- ing the profit-sharing plan and related matters re- quested by the Union in its letter dated November 2, 1987. (b) Post at its facility in Ironton, Ohio, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 9, after, being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that those allegations of the complaint not found herein to have been sus- tained are dismissed. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail or refuse to supply the Union with profit-sharing plan and related information re- quested in its letter dated November 2, 1987. - 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 supply the Union the profit-sharing plan and related information that it requested in its letter dated November 2, 1987. IRONTON PUBLICATIONS, INC. IRONTON PUBLICATIONS Garey E. Lindsay, Esq., for the General Counsel. Craig A. Allen, Esq., of Ironton, Ohio, for the Respond- ent. Walter L. Martin , of Dayton, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The charge in this proceeding filed on December 2, 1987, by Athens Printing Pressmen & Assistants Union No. 269, affiliated with Graphic Communications International Union, AFL-CIO-CLC (the Union) was served on Iron- ton Publications, Inc., a wholly-owned subsidiary of Boone Newspapers , Inc. (the Respondent) on December 3, 1987 . A complaint and notice of hearing was issued January 13, 1988. It is alleged in the complaint that the Respondent has failed and refused to furnish to the Union certain information, which is necessary for and relevant to the Union's performance of its function as the exclusive collective -bargaining agent of certain of the Respondent's employees in violation of Section 8(a)(1) and (5) of the National Labor Relations Board Act (the Act). The Respondent filed a timely answer denying that it had engaged in the unfair labor practices alleged. This case came on for hearing on March 3, 1988, at Ironton, Ohio. All parties were afforded full opportunity to be heard , to call, examine, and cross-examine wit- nesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered On the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT, CONCLUSIONS OF LAW, AND REASONS THEREFOR I BUSINESS OF THE RESPONDENT At all times material, the Respondent, an Ohio corpo- ration with an office and place of business in Ironton, Ohio (the Respondent's facility), has been engaged in the publication , circulation, and distribution of the Ironton Tribune in the Ironton, Ohio area. During the past 12 months, the Respondent, in the course and conduct of its business operations described above, derived gross revenues in excess of $200 ,000; held membership in or subscribed to various interstate news services, including the Associated Press; published vari- ous nationally syndicated features , including columnist Ann Landers and cartoon Doonesbury ; and advertised various nationally sold products and services , including Piedmont Airlines and Allstate Insurance. The Respondent is now , and has been at all times ma- tenal, an employer engaged in commerce within the meaning of Section 2(5) of the Act. II. THE LABOR UNION INVOLVED 855 The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES As noted, Ironton Publications , Inc. is engaged in the publication, circulation, and distribution of the Ironton Tribune, a daily newspaper in Ironton, Ohio. It is a sub- sidiary of Boone Publications, a holding company partly owned by Boone Newspapers, Inc. The Union has been the recognized bargaining agent for the Respondent's pressmen since 1963. Thereafter, successive collective- bargaining agreements have been ineffective by its terms until March 19, 1988 In conformity with the terms of this agreement, the Union and the Respondent reopened the collective-bar- gaining agreement in order to negotiate employees' wages and retirement benefits. At the first meeting, the Respondent was represented by Dolph Tillotson, the president of Boone Newspapers, Inc., and John Matthew, president and publisher of the Respondent; Tillotson was the chief spokesperson. At this meeting, the Respondent , through Tillotson, pro- posed that the Union agree to reduce the wages of unit employees from $8.78 per hour to $6 per hour and that there be no change in existing benefits . The proposal was presented to the Union on Boone Newspapers, Inc. sta- tionery. At the second bargaining session, the Union was ad- vised by Matthew that he was now publisher of the Natchez Newspaper , and that he was replacing Tillotson as the primary spokesman for the Respondent during ne- gotiations . At this meeting he also introduced Thomas J. Rattenbury as the Respondent 's new editor and publish- er. Negotiations between the Union and the Respondent regarding the three reopened subjects continued until January 11, 1988, with no agreement being reached. Sometime in February 1988 the parties commenced ne- gotiations for a new collective-bargaining agreement to replace the agreement that was expiring on March 19, 1988. During negotiations it came to the attention of Wal- lace Martin that Boone Newspaper, Inc. owned several newspapers other than the Respondent. Moreover, some- time in October 1987, Martin learned that the Respond- ent had posted a notice stating that the Respondent as of June 30, 1987, had "adopted the Boone Newspaper, Inc, Profit Sharing Plan for the benefit of its eligible employ- ees," whereupon Martin engaged in some research and discovered that Boone Newspapers, Inc. owned and op- erated six newspapers . These newspapers were the Alex- ander City Outlook, Alexander City, Alabama; Andalusia Star News, Andalusia, Alabama; Natchez Democrat, Natchez, Mississippi; Raton Daily Range, Raton, New Mexico; Selma Times-Journal, Selma, Alabama; and Troy Messenger, Troy, Alabama. The Respondent in its answer admitted that since about November 2, 1987, the Union, by letter, has re- quested the Respondent to furnish the Union with the following information relating to Alexander City Out- 856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD look, the Andalusia Star News, the Natchez Democrat, Raton Daily Range, the Selma Times-Journal and the Troy Messenger all of which are wholly-owned subsidi- aries of Boone Newspapers, Inc.: a. The number of pressmen employed for each month of 1986 and 1987 through October 1987. b. Whether 37-1/2 hours constitutes a regular work week for pressmen and if not the number of regular hours worked by each pressmen for each week in 1986 and 1987 through October 1987. c. The number of overtime hours worked in each week by each pressmen for 1986 and 1987 through October 1987. d. The regular hourly rate of pay for each press- man in 1986 and 1987 through October 1987. Indi- cate for each pressmen the experienced scale or a new employee scale. e. The overtime hourly rate of pay or formula for calculating overtime for each pressmen in 1986 through October 1987. f. The merit pay, if any, paid to each pressmen for each week or pay period of 1986 and 1987 through October 1987. g. The retirement benefits, if any, paid or contrib- uted on behalf of each pressman for each week or pay period of 1986 and 1987 through October 1987. h. A copy of the Boone Newspaper, Inc. Profit Sharing Plan. i. A copy of any trust indenture or trust agree- ment pertaining to said Plan. j. A copy of any group annuity, deposit adminis- tration or other insurance Contract or policy relat- ing to said Plan. k. A copy of the application for determination with respect to the qualification of this Plan submit- ted to the Internal Revenue Service together with all the attachments to that submission and any addi- tional documents dealing with the application that have been submitted to the Internal Revenue Serv- ice and of any responses thereto. 1. Any and all other documents mailed to partici- pants or filed with any governmental agency with respect to this Plan. The Respondent has failed and refused to furnish the Union with the requested information. Conclusions and Reason Therefor In a recent case the United States Court of Appeals for the Sixth Circuit said in NLRB v. Postal Service, 841 F.2d 141 (1988): Generally, an employer's duty to bargain collec- tively established in 8(a)(5) of the National Labor Relations Act, obligates it to provide a labor union with relevant information necessary for the proper performance of the union's duties as the employees' bargaining representative. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 100 LRRM 2728(1979); NLRB v. Acme Indus. Co., 385 U.S. 432, 64 LRRM 2069 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 38 LRRM 2042 (1956). The failure to provide such information constitutes an unfair labor practice in violation of 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1)(5). The General Counsel contends that the information re- quested by the Union during negotiations has probable and potential relevance to the performance of its duties as the Section 9(c) representative of the Respondent's employees and that the requested information will assist the Union in framing its own wage and retirement bene- fit proposals and assist the Union in intelligently evaluat- ing and responding to the Respondent's proposals. While the Respondent agrees that the General Counsel has asserted the correct standards,' the Respondent con- tends that the Charging Party has failed to establish even a rebuttable presumption that the information is rele- vant." (R. Br. 2.) In the recent case of Hawkins Construction Co., 285 NLRB 1313 at 1315 (1987), the Board said: The Board and the courts employ a liberal, dis- covery-type standard for determining what consti- tutes relevant information. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967); Bohemia, Inc., 272 NLRB 1128, 1129 (1984). This liberal standard is utilized both when the information requested relates directly to matters affecting the bargaining unit em- ployees, and thus is considered presumptively rele- vant, or when it relates to matters outside the bar- gaining unit. United Graphics, 281 NLRB No. 70, slip op. at 8 (Sept. 15, 1986). In determining rel- evancy, it is sufficient that the Union demonstrate that there is a probability that the desired informa- tion is relevant and that it would be of use to the Union in carrying out its statutory duties and re- sponsibilities. NLRB v. Acme Industrial Co., supra at 437. [Emphasis added.] The fact that the Respondent adopted the profit-shar- ing plan of Boone Newspapers, Inc. (which owns the Respondent as well as the other corporations named in the Union's request) for "its eligible employees" marks the relevance of the information requested. It is obvious that the information would be of use to the Union in framing its wage and retirement benefit proposals and also in evaluating and responding to the Respondent's proposals. The Union's request is well taken. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. See Tr 10, LL 18-22 The Board has held that the standard to be applied in that case is that there is no presumption relevant What, in fact, General Coun- sel, the union, must demonstrate the relevance for the information But they don't have to demonstrate the exact relevance All you have to demonstrate is probable , or potential relevance , to bargain IRONTON PUBLICATIONS 2. The Union is a labor organization within the mean- ing of the Act. 3. The following employees of the Respondent consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All employees employed in [Respondent's] press room, including camera and offset plate making; ex- cluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees.2 4. At all times since 1963, the Union, by virtue of Sec- tion 9(a) of the Act, has been, and is, the exclusive repre- sentative of the unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of em- 2 The appropriateness of the unit is admitted 857 ployment, and other terms and conditions of employ- ment 5. By refusing to bargain collectively" with the Union by refusing to furnish the Union with the information it requested on November 2, 1987. The Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , I recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. [Recommended Order omitted from publication.]