Chicago Typographical Union No.16

180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chicago Typographical Union No. 16 and Chicago Sun-Times, Inc. Case 13-CB-11927 August 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On September 22, 1988, Administrative Law Judge Walter H. Maloney issued the attached deci- sion. The General Counsel, the Charging Party, and the Respondent filed exceptions and supporting briefs, and the General Counsel and the Respond- ent filed answering briefs. 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 conclusions' as modified herein and to adopt the recommended Order as modified. The judge found, and we agree, that the Re- spondent, Local 16, unlawfully failed and refused to provide certain information requested by the Charging Party, Chicago Sun-Times (the Compa- ny), pursuant to the "most-favored nation " clause of the parties' collective-bargaining agreement. 2 I We do not rely on Tool & Die Makers Lodge 78 (Square D Co.), 224 NLRB 111 (1976), cited by the judge We also note that the correct cita- tion to NLRB Y Yawman & Erbe Mfg. Ca. is 187 F 2d 947 (2d Cir 1951) 2 As set forth fully in the judge's decision , the clause provided that if terms regarding wages, hours, or working conditions were "granted" that reduced the cost of operations in the composing room of the Chicago Tribune, where the Respondent represented a unit of employees. the Re- spondent and the Sun-Times would meet within 5 days to discuss those conditions, ultimately, the Sun-Times had the right to implement similar terms By letter dated August 21, 1987, the Sun-Times informed the Respond- ent that it had learned that actions might have been taken at the Tribune that would affect its rights under the collective-bargaining agreement The letter asked for the following information concerning the Tribune for the period since January 1, 1985- (1) all correspondence, proposals and agreements between the Re- spondent and the Tribune relating to offers or agreements by the Re- spondent or its members to return to work (after a strike), or to employ- ment of union members or nonunion composing room employees and the terms and conditions of such employment, (2) any written or posted terms or conditions of employment within the bargaining unit, (3) all letters and documents between the Respondent and the Tribune relating to fringe benefits of bargaining unit employees; and (4) wage rates, and effective dates thereof, of bargaining unit employ- ees represented by the Respondent The Respondent replied on August 24 that it was not aware of any ac- tions of the sort referred to in the Company's letter. The Company reiter- ated its request on August 31. The Respondent replied on September 3 that the " 1975 Supplemental Agreement " was still (in its view) in effect at the Tribune and that the conditions posted on January 15, 1985 , after a bargaining impasse, by both the Tribune and the Sun-Times were still posted at the Tribune A third request by the Sun-Times, dated Septem- ber 14, elicited a response on September 18 that asserted that the only contract between the Respondent and the Tribune was the 1975 Supple- mental Agreement , reminded the Company that it (the Sun-Times) was a That clause creates a duty on the part of the Re- spondent to disclose information concerning wages, hours, and other terms and conditions of employ- ment at the Sun-Times' principal competitor, the Chicago Tribune, in order that the Sun-Times may replicate those conditions. Laborers (Heavy Contrac- tors), 285 NLRB 688 (1987); Bartenders Local 355 (Doral Beach Hotel), 245 NLRB 774 (1979). By fail- ing to provide the requested information, the Re- spondent failed to bargain in good faith in violation of Section 8(b)(3).3 The General Counsel and the Company have ex- cepted to the judge's decision in several particulars, contending that the judge erred in failing to require the Respondent to supply all the information re- quested by the Company. We find merit in certain of those exceptions. We agree with the General Counsel and the Company that the judge incorrectly found that the Respondent had fulfilled its duty to furnish infor- mation with respect to striking employees who had returned to work at the Tribune after February 10, 1986. The judge reached that conclusion because (1) the conditions posted by the Tribune on Janu- ary 15, 1985, also had been posted by the Sun- Times, (2) Union President Donovan had informed the Company that "to [his] knowledge" those con- ditions were still posted at the Tribune, and (3) the Respondent's counsel stated at the hearing, without contradiction, that returning strikers were still working at the Tribune under the conditions speci- fied in the Respondent's February 10, 1986 letter to the Tribune. That conclusion, however, does not follow from the facts. Even though Donovan's rep- resentation to the Company may have been accu- rate as far as it went, other pertinent agreements still could have been arrived at since January 15, 1985, that were not referred to in the posted condi- tions.4 Accordingly, the judge improperly conclud- ed that the Company had failed to justify its re- quest for any further information regarding return- party to the conditions posted on January 15, 1985, and stated the Re- spondent's contention that the term "granted" in the "most-favored nation" clause did not mean "unilaterally imposed " Because that inter- pretation evidently differed from that of the Company, the Respondent proposed to arbitrate the dispute a The judge inadvertently found that the Respondent violated Sec 8(a)(1) and (5), instead of 8(b)(3) We correct the error In his recommended Order the judge inadvertently included a provi- sion containing language used in cases involving a respondent-employer Our Order contains the language appropriate for a respondent -labor orga- nization 4 Contrary to the judge, it is irrelevant that the Company produced no evidence to controvert the statement by the Respondent 's counsel that its members were still working under the terms of the February 10 letter. As the judge recognized , statements of the Respondent's counsel are not evi- dence If the Respondent wished to deny the existence of other agree- ments, it should have done so through the sworn testimony of a compe- tent witness See Doubarn Sheet Metal, 243 NLRB 821 , 824 fn. 16 (1979) 296 NLRB No. 24 CHICAGO TYPOGRAPHICAL UNION 16 (CHICAGO SUN-TIMES) ing strikers, and we shall direct the Respondent to provide copies of any written or posted terms and conditions at the Tribune.5 However, we reject the General Counsel and the Company's contention that the correspondence and proposals between the Respondent and the Tribune concerning the employees' return to the Tribune were relevant and should have been provided. We agree with the judge that the "most-favored nation" clause evidently applies only to terms and conditions actually in effect, or which the employ- er could put into effect, at the Tribune, and that proposals that do not reflect such terms and condi- tions during the relevant period therefore are not relevant and need not be produced . We qualify our holding, however, in one respect. To the extent that the correspondence and proposals do reflect terms and conditions actually in effect (or that the Tribune could put into effect), but that have never been incorporated in a formal , integrated docu- ment, and that exist on paper only in the form of proposals, counterproposals, and incorporations by reference, the Company is entitled to receive copies of those documents.6 Apparently because he had found that the Re- spondent had fulfilled its duty to provide informa- tion concerning returned strikers, the judge or- dered the Respondent to provide wage information only for strike replacements at the Tribune. We agree with the General Counsel and the Company that the Respondent must furnish wage information for all employees in the bargaining unit at the Trib- une, and we shall modify the Order accordingly.? 5 We find no merit, however, in the contention of the General Counsel and the Company that the Respondent unlawfully failed , until the day of the hearing, to provide the Company a copy of the conditions posted at-and by-the Tribune and the Sun -Times on January 15, 1985. Al- though the posted conditions fell literally within the terms of the Compa- ny's request, we find that the Respondent reasonably assumed that the Company already had a copy of the conditions that it had posted itself There is no evidence that the Respondent knew before the day of the hearing that, as had happened, the Company had lost its copy, and on being informed of that fact , the Respondent immediately agreed to pro- vide a copy. Under the circumstances, we do not find that the Respond- ent acted in bad faith in this respect (We do agree with the General Counsel and the Company that the Respondent 's undertaking to provide a copy of the posted conditions was not, as the judge thought, an act of supererogation. but instead was an act of compliance with its statutory duty.) 8 Because the Respondent at the hearing provided the Company a copy of its February 10, 1986 letter to the Tribune stating the strikers' willingness to return to work unconditionally, it need not produce an- other copy to be in compliance with our Order. ' The Respondent excepts to the judge 's finding that it must provide information concerning the terms and conditions of employment of strike replacements at the Tribune. Citing Daily Olympian, 275 NLRB 46 (1985), the Respondent contends that , because there is an unresolved dis- pute over whether it is the representative of the strike replacements, it has no duty to provide information regarding those employees We find no merit in that exception . Daily Olympian concerned a union's request for information from an employer of employees whom the union sought to represent (but previously had not represented) This case, by contrast, involves an information request concerning the terms and conditions of employment at another company, the Tribune, pursuant to the "most-fa- 181 We also find merit in the exceptions by the Gen- eral Counsel and the Company to the judge's find- ing that the Respondent need not provide relevant information to the Company, as requested, that is in the possession of the General Counsel as part of another case. By order dated June 17, 1988, the Board reversed the judge's ruling at the hearing that the General Counsel should give the Company relevant information in her possession . We reiterate our earlier ruling here, and find that the Respond- ent is not excused from providing the Company with relevant information merely because that in- formation may already be in the hands of the Gen- eral Counsel.8 It is the Company, not the General Counsel, that has requested the information; and it is the Respondent, not the General Counsel, that owes the obligation under the Act. Finally, the judge found that the Respondent must provide information concerning fringe bene- fits paid to "composing room employees" at the Tribune. The General Counsel contends that the judge's terminology does not make clear that the Respondent's duty extends to fringe benefits paid to strike replacements as well as to returning strik- ers. We shall modify the Order to make clear that the Respondent's duty applies to all employees in the bargaining unit at the Tribune. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Chicago Typographical Union No. 16, Chicago, Illinois, its officers, agents, and represent- atives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(a) and (b). "(a) Failing and refusing to provide the Chicago Sun-Times, Inc., with information that is relevant and necessary for the Sun-Times to evaluate its vored nation" clause of the Respondent 's contract with the Sun-Times Whether or not the Respondent represents specific employees of the Tribune, those terms and conditions are at least arguably relevant to the Sun-Times under the "most-favored nation" clause . Moreover, whereas the union in Daily Olympian had not represented the employees who were the subject of its information request . Local 16 has traditionally rep- resented all of the Tribune's composing room employees, and takes the position that it still does . Until the representation dispute involving the replacements, which the Respondent relies on as a defense to this allega- tion, is resolved, there is a presumption that the Respondent is still the representative at the Tribune . Accordingly, the Respondent would be en- titled to receive information from the Tribune regarding those employees, and therefore has the duty, even under Daily Olympian, to provide such information to the Sun-Times. 8 A party is not relieved of its duty to provide relevant information simply because that information may be available from other sources Postal Service, 276 NLRB 1282, 1288 ( 1985). 182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rights under the collective-bargaining agreement with the Respondent. "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(a). "(a) On request, furnish the Chicago Sun-Times with any information in its possession that is rele- vant to the evaluation of the Company's rights under the parties' collective-bargaining agreement, including the following: "1. All documents for the period January 1, 1985, to the present between the Respondent and the Chicago Tribune, relating in any manner to agreements by the Respondent and/or its members to return to work at the Chicago Tribune or, in any manner, to employment of members of the Re- spondent or of nonunion composing room employ- ees by the Chicago Tribune and the terms and con- ditions of such employment. If any terms exist that are not contained in integrated documents, but that appear in documents containing proposals and counterproposals, those documents must be pro- duced. "2. Any written and/or posted terms and condi- tions of employment within the bargaining unit represented by the Respondent at the Chicago Tribune for the period January 1, 1985, to the present. "3. All letters and documents between the Re- spondent and the Chicago Tribune relating to fringe benefits afforded employees in the bargain- ing unit represented by the Respondent at the Chi- cago Tribune for the period January 1, 1985, to the present. "4. The wage rates for employees in the bargain- ing unit represented by the Respondent at the Chi- cago Tribune for the period January 1, 1985, to the present,9 and the dates on which those wage rates were put into effect." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to provide the Chicago Sun-Times with information pertaining to employ- ees in the Chicago Tribune composing room that is or may be relevant to its rights under the Uniform- ity of Agreement clause in our contract with the Sun-Times. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL provide the Sun-Times with the fol- lowing information: 1. All documents for the period January 1, 1985 to the present between Local 16 and the Chicago Tribune relating in any manner to agreements by Local 16 and/or its members to return to work at the Chicago Tribune or, in any manner, to employ- ment of members of Local 16 or of nonunion com- posing room employees by the Chicago Tribune and the terms and conditions of such employment, as set forth in the Board's Decision and Order. 2. Any written and/or posted terms and condi- tions of employment within the bargaining unit represented by Local 16 at the Chicago Tribune for the period January 1, 1985, to the present. 3. All letters and documents between Local 16 and the Chicago Tribune relating to fringe benefits afforded employees in the bargaining unit repre- sented by Local 16 at the Chicago Tribune for the period January 1, 1985, to the present. 4. The wage rates for employees in the bargain- ing unit represented by Local 16 at the Chicago Tribune for the period January 1, 1985, to the present, and the dates on which those wage rates were put into effect. CHICAGO TYPOGRAPICAL UNION No. 16 9 Literally, the Company's request was for wage rates "for the period January 1 , 1985 " We assume the Company's intention was to ask for such data "to the present," as it did with respect to the other items of information Julie Hughes, Esq. and Barbara Sapin, Esq., for the Gen- eral Counsel. Gilbert A. Cornfield, Esq., of Chicago, Illinois, for the Respondent. Elliot S. Azoff, Esq., of Cleveland, Ohio, for the Charging Party. CHICAGO TYPOGRAPHICAL UNION 16 (CHICAGO SUN-TIMES) 183 DECISION STATEMENT OF THE CASE WALTER H. MALONEY, Administrative Law Judge. This case came on for hearing before me at Chicago, Illi- nois, upon an unfair labor practice complaint issued by the Regional Director Region 13,' which alleges that Respondent Chicago Typographical Union No. 162 vio- lated Section 8(b)(3) of the Act. More particularly, the complaint alleges that the Respondent failed and refused to supply the Charging Party Sun-Times with certain in- formation relevant to the Sun-Times' bargaining obliga- tions which the Respondent is obligated to provide by virtue of a Uniformity of Agreement provision found in the current Sun-Times-Respondent contract. The Re- spondent asserts, in the alternative, that it has supplied the Sun-Times with any and all relevant information which it requested and that any additional information is not relevant to the bargaining powers and obligations of the Respondent. Upon these contentions the issues herein were joined. FINDINGS OF FACT A. The Unfair Labor Practices Alleged 1. Background The Sun-Times and the Chicago Tribune (Tribune) are the two major daily newspapers operating in the metro- politan Chicago area. For many years they bargained with the Respondent and various other labor organiza- tions in multiemployer bargaining units through the Chi- cago Newspaper Publishers Association (CNPA). The Respondent represents employees in the respective com- posing rooms of the Sun-Times and the Tribune in what are now separate and distinct bargaining units. The last contract concluded by the CNPA with the Respondent expired in January 1983. On January 15, 1985, after nearly 2 years of fruitless bargaining , both the Sun-Times and the Tribune declared an impasse. In the name of the CNPA, both the Sun-Times and the Tribune posted in their respective composing rooms a copy of the "new conditions" which would thenceforth govern the employment of composing room employees at both loca- tions. The "new conditions" were, in effect, a detailed 60-page document , similar in form to a collective-bar- ' The principal docket entries in this case are as follows Charge filed herein by the Sun-Times against the Respondent Union on October 19, 1987; complaint issued by the Regional Director against the Respondent on November 27, 1987, Respondent 's answer filed on De- cember 14, 1987; hearing held in Chicago , Illinois, on February 18, 1988; briefs filed with me by the General Counsel , the Charging Party, and the Respondent on or before July 31, 1988 2 The Respondent admits , and I find, that the Charging Party is a cor- porate entity which publishes and circulates a daily newspaper in the Metropolitan Chicago area. During the year ending June 30, 1987, it de- rived gross revenues in excess of $200,000 During that period of time it purchased and received at its Chicago , Illinois office and place of busi- ness goods and materials directly from points and places located outside the State of Illinois, which goods and materials were valued in excess of $50,000 Accordingly, the Charging Party is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. The Respondent is a labor organization within the meaning of Sec. 2(5) of the Act gaining agreement and identical in its terms for both newspapers. The postings were accompanied by a notice, signed by Robert E. Page of the Sun-Times and Charles T. Brumback of the Tribune on the letterhead of the CNPA. They read: SUBJECT: An Important Message About The Composing Room Contract After two years of negotiations, we are at total impasse. Based on that, we have terminated the old contract and have posted new working conditions. Attached is a copy of the new conditions. Here are some key points you should be aware of: The critical changes deal with the accepted rules governing situation holders when they are trans- ferred. These new rules do not take away your Job Security. Pagination will not eliminate the building or construction of display ads on 2200 's or similar equipment. CNPA has consistently said to the Union that its offer keeps the work of building dis- play ads in the composing room. The posted conditions do not affect your job security as spelled out in the Supplemental Agreement. From that point forward, labor relations in the respec- tive composing rooms took markedly different paths. In July 1985, the Respondent struck the Tribune, which continued to operate with strike replacements . Negotia- tions continued between the Respondent and the Tribune but no contract was ever concluded . On February 10, 1986, the Union called off the strike and sent a letter to the Tribune over the signature of its president, Dave Donovan, which read as follows: I am writing to you as the President of the Chicago Typographical Union No. 16 and as the authorized agent of those striking employees of the Chicago Tribune Company represented by the Chicago Ty- pographical Union No. 16. The striking employees are willing and ready to return to work without condition . This offer is being made within the terms of the Supplemental Agreement between Chicago Newspaper Publishers' Association and Chicago Typographical Union No . 16 and, in particular, the Job Security Provisions thereof. I thereby request that representatives of the Union and the Company meet immediately to arrange for an expeditious and orderly return to work of the strikers. Please call me at the Union offices and advise me where and when you desire to meet. Some but by no means all of the striking Tribune com- posing room employees have been returned to work. At the Sun-Times no strike occurred. The parties con- tinued to bargain. In the fall of 1985, they concluded a 5- year individual employer agreement covering just com- posing room employees at the Sun-Times . This agree- ment, now in effect, expires on January 14, 1989, and 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was retroactive to the expiration of the previous multi- employer agreement in 1983 . It contains the following clause, styled Uniformity of Agreement, which is at issue in this case: Sec. 7(a) If any terms regarding wages, hours or working conditions that affect the cost of operations in the Composing Room or other concessions af- fecting the cost of operations in the Composing Room are granted to the Chicago Tribune during the life of this Agreement which are better or dif- ferent and have the effect of reducing operating costs in the Composing Room, the Parties shall meet to review such terms or concessions within five (5) days after such terms or concession has been granted. Within ten (10) days after such meet- ing, the Office shall decide whether it wishes to im- plement such or different terms or concessions or effectuate some other change affecting the cost of operations in the Composing Room. If the Office wishes to implement some other change, the Parties shall meet at a mutually convenient time and place to determine whether agreement can be reached to implement such other change. If no agreement is reached within fifteen (15) days from the date the Parties meet to discuss implementing such other change, the Office may elect to implement such better or different terms or concessions granted to the Chicago Tribune forthwith. [Emphasis added.] 2. The request for information and events subsequent thereto In the late summer of 1987, the Sun-Times, acting through its then-director of personnel and labor relations, Jack J. Nettis, and the Respondent, acting through its president, Dave Donovan, engaged in an exchange of correspondence concerning the desire of the Sun-Times to obtain information from the Union concerning wages and terms and conditions of employment at the Tribune. The correspondence is as follows: Nettis to Donovan-August 21, 1987 In recent weeks, we have learned that there may have been actions taken by the Chicago Typo- graphical Union No. 16 in 1986 or 1987, regarding terms and conditions of employment at the Chicago Tribune, that affect certain rights of the Chicago Sun-Times, Inc., under the labor contract between Chicago Sun-Times, Inc., and Chicago Typographi- cal Union No. 16. In order to properly administer our labor contract and to insure the protection of the Company's rights under the labor contract, we request the Union provide us with the following in- formation: 1. All correspondence, proposals and agreements for the period January 1 , 1985, to the present between either yourself, your attorneys or any other agent of Chicago Typographical Union No. 2 [sic] and the Chicago Tribune, George Veon, or any other agent of the Chicago Tribune relating in any manner to offers or agreements by the Union and/or its members to return to work at the Chi- cago Tribune or, in any manner, to employment of members of Chicago Typographical Union No. 16 or non-union composing room employees by the Chicago Tribune and the terms and conditions of such employment. 2. Any written and/or posted terms and conditions for employment within the bargaining unit repre- sented by Chicago Typographical Union No. 16 at the Chicago Tribune for the period January 1, 1985, to the present. 3. All letters and documents between Chicago Ty- pographical Union No . 16 and the Chicago Trib- une relating to fringe benefits afforded employees in the bargaining unit represented by the Union at the Chicago Tribune for the period of January 1, 1985, to the present. 4. The wage rates for employees in the bargaining unit represented by the Union at the Chicago Tribune for the period January 1, 1985, and the dates on which said wage rates were put into effect. Donovan to Nettis-August 24, 1987 This is to acknowledge receipt of your August 21, 1987, letter to me. In your letter you make ref- erence to some information that you have received. I am not aware "that there may have been ac- tions taken by Chicago Typographical Union No. 16 in 1986 or 1987, regarding terms and conditions of employment at the Tribune." Nettis to Donovan-August 31, 1987 By this letter I am again requesting that Chicago Typographical Union No. 16 provide the informa- tion requested in order to enable the Chicago Sun- Times, Inc. to administer the labor unit rate and protect its rights. Your degree of awareness con- cerning the actions of Chicago Typographical Union No. 16 is not relevant to and does not relieve the Union of the Union's obligation to respond to the Company's legitimate information request. Donovan to Nettis-September 3, 1987 I am certain you are aware, and I reaffirm, the following information with respect to the Union's contractual relationship with the Chicago Tribune: 1. It has remained the Union's position that the 1975 Supplemental Agreement is still in effect at the Chicago Tribune. The Chicago Tribune disputes that position and the issue is the subject of litigation before Judge Marvin E. Aspen of the United States District Court. The status of that litigation has been repeatedly referred to during the course of the arbi- tration proceedings between the Union and the Chi- cago Newspaper Publishers' Association while you have been present at the hearing. 2. The CNPA-posted conditions of January 15, 1985, to my knowledge, are still posted at the Chi- cago Tribune. However, the CNPA and the Chica- go Tribune are in dispute over whether the provi- CHICAGO TYPOGRAPHICAL UNION 16 (CHICAGO SUN-TIMES) sions for mandatory transfers , ad work jurisdiction, and sub hires of the posted conditions are in conflict with the Supplemental Agreement . Additionally, there are pending National Labor Relations Board unfair labor practice and representation proceedings between the Union and the Chicago Tribune over the Chicago Tribune's position that only employees engaged in the manual paste makeup of display ads and pages are covered by the 1985 posted condi- tions and are "composing room employees" within the meaning of the bargaining unit as it existed when the CNPA and the employers' representative and since the fall of 1985 when separate negotia- tions commenced between the Union and the Chica- go Tribune. Your letter of August 21, 1987, followed by your letter of August 31, 1987, and your recent actions in unilaterally cutting wages of the Mailers ' bargaining unit portends the same action by the Chicago Sun- Times for its composing room employees under your interpretation of the "Uniformity of Agree- ment" of our contract (Section 7). The Union dis- putes your position that our contract grants author- ity to the Chicago Sun-Times to lower wages to either the CNPA-posted conditions of January 15, 1985, instituted some ten months prior to the agree- ment for the current main contract between the Union and the Chicago Sun-Times, or to wage rates which the Chicago Tribune may be paying to strikebreakers or others hired since July 18, 1985. None of the latter persons, in any event, hold guar- anteed positions under the Supplemental Agreement as do all the regular situation holders at the Chica- go Sun-Times. The Union will not tolerate action by the Chicago Sun-Times in unilaterally cutting our negotiated wages under the guise of a fabricated interpretation of the Uniformity of Agreement provisions of our contract. Therefore, the Union insists that we imme- diately arbitrate the issue whether the Union has "granted to the Chicago Tribune ... better or dif- ferent . . . operating costs in the Composing Room (which have the effect of reducing operating costs) within the meaning of Section 7(a) and 7(b) of the bargaining agreement." The letter went on to further the Union's demand for ar- bitration. Donovan even suggested names of individuals who might serve as neutral arbitrator and chairman of the Joint Standing Committee, which is established by the contract to resolve contract interpretation disputes. The Sun-Times refused to arbitrate this issue, as it was posed by the Union, so the Respondent in this case filed suit in U.S. district court to compel arbitration. The dis- trict judge refused to grant the Union's request, ruling that, unless and until the Sun-Times actually put in place new and different wage rates and conditions of employ- ment in its composing room pursuant to its right under the Uniformity of Agreement clause of the contract, any request by the Union for arbitration over the meaning of the word "grant" was premature. The Sun-Times main- tains here that it needs the information it requested from 185 the Union in the above-recited correspondence in order to be in a position to evaluate its position under the Uni- formity of Agreement clause and to determine whether or not it should invoke the contract clause in question and reduce the wages of Sun-Times composing room employees during the contract term because Tribune composing room employees are making less. While this litigation was in progress, other related liti- gation, both before the Board and in the courts, was un- dertaken. The Chicago Tribune contends that all replace- ments hired in its composing room between July 18, 1985, when the strike commenced, and February 10, 1986, when the Union offered to return to work uncondi- tionally, are not a part of the original composing room bargaining unit and that the Respondent in this case is not entitled to represent such employees. The Respond- ent stoutly disputes the Tribune's contention and has filed a representation case, now pending , in which it is seeking from the Board a determination that both re- placements and returning strikers are part of the same Tribune composing room bargaining unit (Case No. 13- RC-16862). In support of its position in that case, the Union subpoenaed from the Tribune certain data con- cerning the replacements whom the Tribune hired during the strike. The Tribune resisted this subpoena and the Union was forced to file enforcement proceedings in the United States district court. It ultimately prevailed in this effort and information which the Tribune gave this Re- spondent is in the process of being presented to the hear- ing officer in the course of an on-going and protracted representation case. Meanwhile, the General Counsel, acting through the Regional Director, issued an unfair labor practice com- plaint against the Tribune on May 16, 1986, alleging that the Tribune violated Section 8(a)(5) of the Act by refus- ing to furnish the Respondent with the names and job functions of employees whom it hired as replacements during the strike which had then just concluded (Cases 13-CA-25850 and 13-CA-25852). When the instant pro- ceeding came on for hearing in February 1988 some 2 years after the consolidated complaint was issued against the Tribune, the Tribune case had not yet come on for hearing. According to representations made by counsel for the Respondent, certain documents were provided the Union herein by the Tribune pursuant to a directive of the district court. His further representation states that the documents in question are voluminous and do not disclose what work is being assigned to strike replace- ments nor the wages which they are earning. Counsel for the General Counsel represented in this case that she has in the files of the outstanding Board case against the Tribune certain information concerning replacements at the Tribune which information was obtained from the representation case. However, because the representation case had not then been reopened and the documents in question had not been introduced either in the represen- tation case or the complaint case against the Tribune, she has refused to produce these documents in this case be- cause of certain strictures contained in Section 102.118 of 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Board's Rules and Regulations.3 Counsel for the General Counsel asserted for the record in this case that the information she was withholding would probably provide some answers to the request for information which the Sun-Times had made upon the Respondent herein. B. Analysis and Conclusions Part of the duty included in the obligation to bargain in good faith involves the furnishing of information to the other party in negotiations which is relevant in ena- bling that party to fulfill its own bargaining obligation. NLRB Y. Acme Industrial Co., 385 U.S. 432 (1967). Infor- mation relating to wages, hours, and terms or conditions of employees relating to the bargaining unit for which negotiations are being conducted is presumptively rele- vant. NLRB v. Yawman and Erbe Mfg. Co., 187 F.2d 949 (2d Cir. 1951). In this case, the data sought by the Sun- Times involves wages, hours, and terms of conditions of employees in another bargaining unit, a separate unit in which the Respondent herein owes a duty to the em- ployees of another employer to represent their interests in negotiations with that employer. Accordingly, the duty to establish the relevance of such information falls upon the one requesting it, not upon the entity from whom the information has been requested. In so saying, it is well to note that the fact that information requested pertains to employees outside the bargaining unit which the parties are negotiating does not per se render the re- quested data nonproducible. Associated General Contrac- tors of California, 242 NLRB 891 (1979). As repeatedly stated by the Charging Party in this case, the employer in the other bargaining unit for which information is here being sought from this Respondent is a competitor, and indeed a stiff and aggressive competi- tor, if we accept the representations of the Sun-Times. Such considerations argue more for confidentiality than they do for relevance of requested data. The fact that Macy's might be curious to know what Gimbel's is doing does not create an obligation on the part of anyone to tell them. In times past, the Charging Party was well ap- prised of the Tribune's bargaining posture and the progress of its negotiations with this Respondent, since the Sun-Times bargained jointly with the Tribune con- cerning composing room employees in both establish- ments. In light of the bargaining history described above, those days are over and each employer has gone its sepa- Sec. 102.118 of the Board 's Rules and Regulations provides: ... (a)(1) Except as provided in section 102 . 117 of these rules re- specting requests cognizable under the Freedom of Information Act, no Regional Director, field examiner, administrative law judge, at- torney, specially designated agent, General Counsel, Member of the Board, or other officer or employee of the Agency shall produce or present any files, documents, reports, memoranda, or records of the Board or of the General Counsel, whether in response to a subpoena duces tecum or otherwise, without the written consent of the Board or the Chairman of the Board if the document is in Washington, D.C. and in control of the Board, or of the General Counsel if the document is in a Regional Office of the Agency or is in Washington, D C. and in the control of the General Counsel A request that such consent be granted shall be in writing and shall identify the documents to be produced , or the person whose testimony is desired, the nature of the pending proceeding, and the purpose to be served by the production of the document .. . rate ways. Notwithstanding this development, the Charg- ing Party still seeks to remain a "fly on the wall" con- cerning the Tribune's negotiations with the Respondent. By its wide-ranging demand for information, it has called upon the Respondent in this case to keep it current con- cerning these matters. In the absence of some contractual undertaking to the contrary, the Respondent would have no obligation to meet any such demand and might very well be jeopardizing the interests of its Tribune-em- ployed members if it acceded to such a request. The General Counsel and the Charging Party point to the existence of a so-called "most favored nations" clause in the current contract between the Union and the Sun- Times, a clause which empowers the Sun-Times to lower wages and modify working conditions during the con- tract term in its own composing room if lower wages or modified working conditions are "granted" by the Re- spondent to the Tribune and such grant has the effect of reducing operating costs in the Tribune's composing room. Such clauses have been held to trigger an obliga- tion on the part of a union which is party thereto to dis- close to an employer the wages, hours, and terms of con- ditions in another plant whose employees are represented by the same union, so that the first employer may enjoy similar treatment. Hotel Employees Local 355 (Doral Beach Hotel), 245 NLRB 774 (1979); Laborers (Heavy Contractors Assn.), 285 NLRB 688 (1987). Where the right to obtain information rests upon such a premise, it is the contract itself which defines the scope of the obli- gation to produce, so the contract itself must be con- strued to determine both the existence of the obligation and its extent. Assistance in going to arbitration forms a justification for producing requested information, Tool & Die Makers' Lodge 78 (Square D Co.), 224 NLRB 111 (1976); Chesapeake & Potomac Telephone Co., 259 NLRB 225 (1981), and an employer need not wait until it actual- ly files a grievance or demands arbitration before its demand for information is timely. Association of General Contractors of California, supra. In all such information production cases, the Board liberally construes what in- formation must be furnished, characterizing it as a "dis- covery type" obligation on the part of the producing party. Postal Service, 276 NLRB 1282 (1984). The Union's continuing position on the underlying contractual dispute in its relationship with the Sun-Times is that the word "granted" in the Uniformity of Agree- ment clause in the Sun-Times contract means that the Sun-Times may not lower wages or revise working con- ditions in its own composing room unless the Union has affirmatively agreed with the Tribune that such may be done in the Tribune bargaining unit. The mere fact that the Union capitulated at the Tribune and went back to work unconditionally does not, in the view of the Re- spondent, mean that it has granted new or different wages or conditions to the Tribune. Moreover, the fact that the Tribune may have imposed lower wages unilat- erally upon strike replacements does not, in the view of the Union, constitute a "grant" within the meaning of the operative clause of the aforesaid contract. Accord- ingly, the Respondent contends that the arbitral conten- tion of the Sun-Times is so frivolous that, even if it pro- CHICAGO TYPOGRAPHICAL UNION 16 (CHICAGO SUN-TIMES) 187 duced information indicating lower rates at the Tribune, the Charging Party would have no standing in invoking the Uniformity of Agreement clause.4 The Sun-Times takes the position that "granted" means not only formal agreement but acquiescence, ex- press or implied, and that the information requested is relevant to that issue . I will not resolve these conten- tions, leaving to an arbitrator, as yet unnamed, the task of resolving this question. For information to be produci- ble under an obligation to bargain in good faith , the re- quested information need not be dispositive of an arbitra- tion case but need only bear some relevance to the con- tentions advanced by the parties . Pfizer, Inc., 268 NLRB 916 (1983). Some of the information requested by the Charging Party falls into this category. Having set forth these parameters of the duty to produce relevant information, it is well to return to the original premise, namely that the provisions of the Uni- formity of Agreement clause in the Sun-Times-Union contract necessarily define the duty of the Union to produce information, because, in the absence of such a clause, there would be no duty and the Sun- Times would be under an obligation to wait till the end of the contract term to adjust wages and conditions in its com- posing room, regardless of what might be happening at the Tribune. In the absence of such a clause, the Trib- une-Union bargaining relationship would be essentially none of the Sun-Times' legitimate business, any more than the bargaining relationship of the Union with any other company with whom it has such a relationship would be any of the Sun-Times' legitimate business. The clause in question permits the Sun -Times to reduce wages or modify conditions in its own composing room if reduced wages or modified conditions at the Tribune "are granted" and "have the effect of reducing operating cost" at the Tribune . It is clear beyond peradventure that this clause applies only to wages and conditions at the Tribune which are actually in effect, not to wages or conditions which are under discussion or which are the subject of proposals and counterproposals . Accordingly, the Union is under no duty to produce information unless it relates to economic conditions actually being enjoyed by the Tribune which its competitor is not en- joying. With respect to strikers who returned to work on and after February 10, 1986, the Union has fulfilled its duty. The Charging Party knew full well what the posted con- ditions of January 15, 1985 , contained by way of wages and conditions because it was party to joint negotiations which led to the formulation of those conditions and they were posted in the Sun-Times ' composing room as well as the Tribune composing room. In his letter of September 3, 1987, Donovan told Nettis that, to his knowledge, this statement of conditions was still. posted at the Tribune . The Board has, on occasion, required a 4 In its brief, the Respondent admits that the wages and conditions im- posed upon strike replacements by the Tribune are lower than those con- tained in the January 15 , 1985 statement of conditions which was posted in both composing rooms after impasse had been reached , and it further asserts that the Sun-Times is well aware of this fact This admission sug- gests that the Union may be in possession of certain data concerning the Tribune bargaining unit. party to produce information at the request of its bar- gaining adversary even though the information could have been obtained by the requesting party from an al- ternative source. However, it has never gone so far as to require a party to produce information that the request- ing party had, or should have had, in its own file draw- ers. The Union in this case has no duty to serve as the Charging Party's file clerk . See Tom 's Ford, 253 NLRB 888 (1980). Out of an abundance of caution the Union furnished the Charging Party at the hearing with another copy of what the Charging Party posted on January 15, 1985, in its own plant, but this effort was simply an act of super- erogation. At the hearing in this case , the Union also gave the Sun-Times a copy of its letter , dated February 10, 1986, in which striking Union members offered to return to work unconditionally. It is disingenuous of the Charging Party to claim that it did not know that the strike at the Tribune had ended because Union members in that composing room offered unconditionally to return to work. At the hearing, Respondent's counsel stated that its members went back to work under the terms of the letter of February 10 and that they are still working under those conditions. While statements of counsel are not evidence, they are enough to place in issue the ques- tion of whether there are in fact other terms and condi- tions of employment in effect governing union -represent- ed members in the Tribune composing room. The Sun- Times senior vice president and general manager, Charles T. Price, testified that, as far as he knew, there was no other collective-bargaining agreement covering the Tribune composing room (except for a contract re- ferred to in the record as the 1975 Supplement), and the Charging Party produced no evidence that returning strikers might be employed other than as Respondent's counsel asserted . Previous statements that there were rumors abounding that Tribune composing room em- ployees were making less than Sun -Times' employees re- lated only to strike replacements, not to returning strik- ers. It would be an extraordinary intrusion into the pri- vacy of the Union and far beyond the terms of the Uni- formity of Agreement clause to use this state of facts to justify a fishing expedition into the files of the Respond- ent, and I decline to do so.5 Among the items requested by the Sun-Times in its original request for information were letters and docu- ments in the possession of the Union relating to fringe benefits paid at the Tribune to composing room employ- ees. Actual payments by the Tribune to joint union-man- agement benefit trust funds could have some bearing upon economic conditions in place at the Tribune and thus fall within the liberal discovery-type information producible under previous Board decisions . Accordingly, such data should be produced, if the Union officials have such data in their capacity as bargaining representative, as distinguished from their capacity as trustees of a trust a The Board has held that , to be entitled to information, an employer must advance something more than surmise or suspicion . Otherwise it would have unlimited access to any and all data in the possession of the other party Southern Nevada Home Builders Assn., 274 NLRB 350 (1984) 188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fund. Plasterers Local 346 (A. G. Brawner Plastering), 273 NLRB 1143 (1984). With respect to strike replacements, the Tribune has refused to bargain with the Union concerning those re- placements and claims that they are not even a part of the composing room bargaining unit . However, with great difficulty the Union has obtained certain data bear- ing upon the condition of strike replacements at the Trib- une which it intends to introduce (or has introduced) in a representation proceeding in support of its contention that replacements at the Tribune are in fact a part of the union-represented composing room unit . To the extent that such data relates to wages, hours, and terms and conditions of employment of those employees which are currently in effect at the Tribune, they are producible since, even if the Tribune prevails in its bargaining unit contention, such nonunit wages and conditions could conceivably affect composing room costs and fall within the parameters of the Uniformity of Agreement clause in the Sun-Times-Union contract. To this holding I make one exception . Some of that data is already in the hands of the General Counsel in another case, yet the General Counsel is calling upon the Respondent to produce it twice, once in a collateral pro- ceeding and once in this one. Such a duty is onerous and burdensome. It is also an abuse of the processes of this Agency for the General Counsel to demand something she already has. The files in this case and in the com- plaint case outstanding against the Tribune are both under the control of the same public official. She can, if she chooses, take the data from one file, copy it, and place it in another, and her failure to do so has not been justified other than by the suggestion that no one has for- mally asked her to perform this ministerial act. I would excuse the Respondent from furnishing in this case any data it has also given to Board agents in any other case. Just as it is under no obligation to serve as file clerk to the Charging Party, the Union is under no obligation to serve as a xeroxing clerk to the General Counsel. Respondent's failure to produce information which has been determined above to be producible is a violation of Section 8(a)(1) and (5). With respect to other data, the Complaint herein should be dismissed. On the foregoing findings of fact and upon the entire record herein considered as a whole, I make the follow- ing CONCLUSIONS OF LAW 1. Chicago Sun-Times, Inc. is now and at all times ma- terial herein has been an employer engaged in commerce within the meaning of Section 2(2) of the Act. 2. Respondent Chicago Typographical Union No. 16 is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Chicago Sun-Times who are employed in the composing room at its Chicago, Illinois plant, except for guards and supervisors as defined in the Act, constitute a unit appropriate for collective bargain- ing within the meaning of Section 9(b) of the Act. 4. At all times material hereto the Respondent has been the exclusive collective bargaining representative within the meaning of Section 9(a) of the Act for all of the employees employed in the unit set forth above in Conclusion of Law 3. 5. By failing and refusing to supply to the Sun-Times, upon its request, with certain data concerning fringe ben- efit payments made by the Chicago Tribune on behalf of its composing room employees , and by failing and refus- ing to supply to the Sun-Times , upon its request, certain data relating to wages, hours, and terms and conditions of employment in effect respecting strike replacements hired by the Chicago Tribune in its composing room, the Respondent herein violated Sections 8(a)(1) and (5) of the Act. Said acts have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(7) of the Act. REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take other actions designed to effectuate the purposes and policies of the Act. I will require the Respondent to furnish the Chicago Sun-Times with certain information which it re- quested and which has been discussed in detail above, and I will recommend that the Respondent be required to post the usual notice, advising its members of the re- sults in this case. On the basis of the foregoing findings of fact and con- clusions of law, I make the following recommended6 ORDER The Respondent, Chicago Typographical Union No. 16, Chicago, Illinois, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Failing and refusing to provide the Chicago Sun- Times, Inc., with certain requested data relating to fringe benefits actually paid by the Chicago Tribune to Tribune composing room employees and other data respecting wages, hours, and terms and conditions of employment actually in effect at the Chicago Tribune respecting re- placement employees hired by the Chicago Tribune in its composing room. (b) By any like or related means interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish the Chicago Sun-Times with any informa- tion in its possession concerning fringe benefits paid to composing room employees at the Chicago Tribune, and any information in its possession concerning wages, hours, and terms and conditions in effect at the Chicago Tribune covering strike replacements hired to work in said composing room. 6 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. CHICAGO TYPOGRAPHICAL UNION 16 (CHICAGO SUN-TIMES) (b) Post at the Respondent's office in Chicago, Illinois, copies of the attached notice marked "Appendix"7 and send to the Chicago Sun-Times, Inc., signed copies of said notice for posting on the premises of the Chicago Sun-Times, Inc., if said employer is willing to do so. Copies of said notice, on forms provided by the Regional Director, shall be posted immediately upon receipt and 7 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." 189 maintained by the Respondent for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that insofar as the com- plaint alleges matters which have not been found to be violations of the Act, said complaint is dismissed.