Chicago Tribune Co. v. N.L.R.B.

• Decision Date: 24 June 1992
• Docket Number: Nos. 91-2750,91-2916,s. 91-2750
• Citation: 965 F.2d 244
• Parties: 140 L.R.R.M. (BNA) 2516, 60 USLW 2773, 121 Lab.Cas. P 10,194 CHICAGO TRIBUNE COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 244

965 F.2d 244

140 L.R.R.M. (BNA) 2516, 60 USLW 2773,

121 Lab.Cas. P 10,194

CHICAGO TRIBUNE COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 91-2750, 91-2916.

United States Court of Appeals,

Seventh Circuit.

Argued April 1, 1992.

Decided May 29, 1992.

Rehearing Denied June 24, 1992.

Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., Aileen A. Armstrong, Linda J. Dreeben, David Seid (argued), N.L.R.B., Appellate Court, Enforcement Litigation, John C. Truesdale, N.L.R.B., Contempt Litigation Branch, Washington, D.C. and Paul Bosanac, N.L.R.B., Region 30, Milwaukee, Wis., for N.L.R.B.

R. Eddie Wayland (argued), E. Andrew Norwood, King & Ballow, Nashville, Tenn. and William O. Howe, Chicago Tribune Co. Employee Relations, Chicago, Ill., for Chicago Tribune Co.

James B. Coppess, Washington, D.C. and Richard Rosenblatt (argued), Englewood, Colo., for Chicago Mailers Union No. 2.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and NOLAND, Senior District Judge. ^*

POSNER, Circuit Judge.

Before us are cross-petitions to review and to enforce an order by the National Labor Relations Board finding that the publisher of the Chicago Tribune committed several unfair labor practices in a dispute with the union that represents the employees in its mail room. The dispute arose from a strike that began in July 1985 after negotiations for a new collective bargaining agreement broke down. The strike was marred by violence directed against the replacement workers whom the company hired to operate the mail room while the regular employees were out on strike. Tires were slashed, death threats made, windows shot out, a supervisor's garage firebombed. While all this was going on, the union asked the company to give it the names of the replacement workers, ostensibly so that it could verify that the company had indeed hired these people, which would determine how many of the striking workers would be entitled to reinstatement when the strike ended. (The union had in fact made an unconditional offer to return to work, which the company had rebuffed on the ground that all the jobs were filled by replacement workers.) The company refused the union's request for names, on the ground that the replacement workers might be harassed further, as once their names were known their addresses and phone numbers could easily be obtained from the telephone book. It offered the union two alternatives: providing the names of the replacements to an accounting firm that would verify their employment, and providing the union with the birthdate of each worker and a part of his or her social security number. The union rejected both alternatives without explanation and unsuccessfully renewed its demand for the names. The administrative law judge, seconded by the Board, pronounced the alternatives that the company had offered "reasonable" but held nonetheless that the union was entitled to the names. The union had a presumptive right to them which the company could defeat only by showing that there was a "clear and present danger" that the union would use the names for purposes of harassment. In finding that the company had not carried its burden of showing such a danger, the administrative law judge noted that in August 1987, eleven months after the company had turned down the union's demand for the names, the company had done an about face and given the union the names and addresses of the replacement workers even though the strike and the violence were continuing.

The Board has taken the position in a number of cases that a union has a statutory right to the names of replacement workers unless the company can prove a "clear and present danger" of harassment. That position, although described in Lear Siegler Inc. v. NLRB, 890 F.2d 1573, 1581 (10th Cir.1989), as a "settled rule" and recited with apparent approval in numerous court of appeals decisions, including our own NLRB v. Illinois-American Water Co., 933 F.2d 1368, 1377 (7th Cir.1991), should not be taken literally. No statute entitles a union to the names of replacement workers. The demand for names is in the nature of a discovery request. Id. at 1378; cf. NLRB v. Acme Industrial Co., 385 U.S. 432, 437-38, 87 S.Ct. 565, 568-69, 17 L.Ed.2d 495 (1967). The parties have a dispute, and one of them wants information germane to its resolution. In deciding whether the duty to bargain in good faith (29 U.S.C. § 158(a)(5)) requires the other party to disclose the information in the form demanded, the judge must have due regard for the interests of third parties, including workers, even replacement workers. The pattern of violence that marked the strike was bound to arouse concern in their minds about their personal safety should their names be disclosed. It is not as if the union had stood virtuously aloof from the violence: after a riot outside one of the company's facilities the union was enjoined from engaging in violent picketing. The company, moreover, was offering the union alternatives to the names that, so far as anyone has been able to show, were completely adequate. The union's unexplained refusal to accept either alternative suggests that it wanted the names not necessarily to harass the replacement workers directly but perhaps to do so indirectly by giving them an additional source of anxiety.

Where the Board got the idea that a union's demand for the names of replacement workers is to be handled not like any other discovery request but by placing on the company an insuperable burden of proving that the union will in fact use the information to harass the workers beats us. We know where the "clear and present danger" formula comes from: Justice Holmes's great opinion in the early First Amendment case of Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). It debuted in the labor-information setting in United Aircraft Corp. v. NLRB, 434 F.2d 1198, 1207 (2d Cir.1970), where the Board's then test of "any present threat," United Aircraft Corp., 181 N.L.R.B. 892, 903, enforced, 434 F.2d 1198 (2d Cir.1970), was first rhetorically inflated to "clear and present danger" and then mysteriously softened to "likelihood of a clear and present danger." The meaning and purpose of this reformulation elude us, and most of the later cases either drop "likelihood of" or treat it as surplusage. E.g., Shell Oil Co. v. NLRB, 457 F.2d 615, 618-20 (9th Cir.1972); Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1094-95 (1st Cir.1981).

A formula designed to protect rights of constitutional dignity has no proper application to a demand for a list of names in a garden-variety labor dispute. (Not for nothing did Holmes warn us that to rest upon a formula is a slumber that, prolonged, means death.) The union is not asserting a First Amendment right, and the company is not trying to stifle the union's right of free speech. With free speech nowhere in the picture, the decisive consideration is that, as the administrative law judge acknowledged, every legitimate need of the union for the list of names would have been met by either of the alternatives offered by the company. The cases recognize the relevance of alternatives. NLRB v. Burkart Foam, Inc., 848 F.2d 825, 833-34 (7th Cir.1988); E.W. Buschman v. NLRB, 820 F.2d 206, 209 (6th Cir.1987); Soule Glass & Glazing Co. v. NLRB, supra, 652 F.2d at 1095; Shell Oil Co. v. NLRB, supra, 457 F.2d at 620. Indeed, Buschman holds that "an unfair labor practice charge is not made out where a company offers a facially reasonable accommodation in a situation involving the release of allegedly confidential information, and where no finding is made that the conditions offered were unreasonable or were only a pretext for a refusal to advance the bargaining process." In our case the danger is intimidation rather than breach of confidence--but surely that is no justification for a lesser degree of protection--and the accommodation offered by the company is not merely reasonable on its face but conceded to be reasonable in fact.

We must, however, consider the possibility that the company's about face almost a year after its initial refusal to release the names to the union is evidence of "pretext" within the meaning of Buschman. By August 1987, having concluded that the union no longer had the support of a majority of the workers, the company wanted to conduct a poll to demonstrate this and it thought the union entitled to the names and addresses of all the workers to be polled so that it could verify the poll's accuracy. By then it was eleven months since the last demand for names and maybe the violence had abated or the company thought the problem would soon end because the union would be decertified. And, as we are about to see, the union accepted the company's offer for a new collective bargaining agreement in July 1987; that might have indicated that the dispute was winding down, and with it such collateral consequences as violence and harassment. All this is speculation but our point is only that the company's subsequent actions do not show that the union was reasonable in refusing to consider perfectly adequate alternatives that would have obviated the concern that the replacement workers were likely to feel at the knowledge that the union had their names.

Although NLRB v. Burkart Foam, Inc., supra, involved no substantiated evidence of violence and no offer by the company of alternatives to turning over the names, the Board fastens on the following dictum: "Even if we were to find that Burkart did have a reasonable good faith fear of Union retaliation against its employees, Burkart would also have to show that the Union was asked for and refused to provide assurances that the employees would not be harassed." 848 F.2d at 834. Perhaps in the peaceful setting of that case and given the absence of alternatives to disclosure of the names, union "assurances" would be the most the...