Gannett Rochester Newspapers, a Div. of Gannett Co., Inc. v. N.L.R.B.
| Decision Date | 26 March 1993 |
| Docket Number | No. 92-1004,92-1004 |
| Parties | 142 L.R.R.M. (BNA) 2809, 300 U.S.App.D.C. 250, 61 USLW 2603, 124 Lab.Cas. P 10,605 GANNETT ROCHESTER NEWSPAPERS, A DIVISION OF GANNETT CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent; Newspaper Guild of Rochester, Local 17, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the National Labor Relations Board.
William A. Behan, with whom John B. Jaske, Arlington, VA, was on the brief, for petitioner.
Angela Washington, Attorney, N.L.R.B., with whom Jerry M. Hunter, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Collis S. Stocking, Supervisory Atty., Washington, DC, were on the brief, for respondent.
James B. Coppess, with whom David S. Barr, Washington, DC, and Marsha S. Berzon, San Francisco, CA, were on the brief, for intervenor Newspaper Guild of Rochester, Local 17.
Mona C. Zeiberg, Washington, DC, was on the brief for amicus curiae the Chamber of Commerce of the United States of America. Robin S. Conrad, Washington, DC, also entered an appearance.
Before BUCKLEY, SENTELLE and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Gannett Rochester Newspapers ("the Company") seeks review of an order of the National Labor Relations Board ("NLRB" or "the Board"). Before the Board, the Company claimed that by agreeing to a collective bargaining agreement requiring the Company to provide certain types of information, but not others, the Newspaper Guild of Rochester, Local 17 ("the Guild"), waived its right to receive information not provided for in the agreement. The NLRB disagreed and ruled that the Company's refusal to produce the information the Guild had requested in order to perform its collective bargaining functions constituted an unfair labor practice, Gannett Rochester Newspapers, 305 N.L.R.B. No. 134, 139 L.R.R.M. (BNA) 1109 (1991), in an order erroneously holding that contract clauses carried forward from prior labor agreements without substantive change lose their validity unless actively renegotiated each time, see id., 139 L.R.R.M. at 1110. Because we cannot determine the extent to which the Board's decision rests on this error of law, we vacate the Board order and remand for reconsideration.
The Company publishes two daily newspapers in Rochester, New York--The Democrat and Chronicle, a morning paper, and The Times-Union, an evening paper. The Guild represents employees in the Company's news and editorial departments pursuant to a collective bargaining agreement. The Company and the Guild have been parties to four two-year collective bargaining agreements since 1978, with several years intervals between agreements during times when the parties apparently experienced difficulty reaching agreement. The latest agreement, which had been in effect since September 25, 1989, expired on September 24, 1992, and the parties are currently negotiating a successor agreement.
Each of the four collective bargaining agreements between the Company and the Guild have included, in substantially the same language, the two provisions at issue in this case. The first is the "information clause," which obligates the Company to provide specified types of information to the Guild upon request. In its present form, the information clause provides, insofar as relevant here:
1. The Publisher shall supply the President of the Guild, upon written request, with a list containing the following information for all regular full-time Guild bargaining unit employees on the payroll. Such requests shall be made at reasonable intervals no more often than semi-annually.
1. Name
2. Address
3. Experience rating
4. Anniversary date
5. Date of hire
6. Salary
2. The above information will be provided for the confidential use of the Guild officers.
. . . . .
4. Information on new hires and individuals returning to the bargaining unit from exempt positions will be provided quarterly. When such information can be generated by the personnel/payroll system, such information will be provided within 30 days.
Collective Bargaining Agreement, at 3 (hereinafter, "CBA ").
The second provision at issue is the "zipper clause," which restricts the scope of the parties' agreement to the four corners of the contract and bars collective bargaining during the term of the agreement. Found in Article XXV, section 4, the zipper clause provides as follows:
The contract entered into on September 25, 1989 between the Newspaper Guild of Rochester and the Rochester Democrat and Chronicle and Rochester Times-Union constitutes the sole and entire agreement between the parties, and supersedes all prior agreements, commitments, and practices, whether oral or written between the Company and the Union, or the Company and any covered employee or employees. No matter or matters shall be the subject of collective bargaining negotiations during the term of this agreement, even though such matters may not have been negotiated upon previously nor within the knowledge or contemplation of either or both of the parties hereto at the time of negotiations for this contract.
CBA, at 15-16. Both the information and zipper clauses have been the subject of continued negotiations and, at times, controversy between the Company and the Guild.
1. The Information Clause
The Guild proposed adding what is now section 1 of the information clause in 1970. In response, the Company made a counterproposal that included certain safeguards, such as a requirement that the Guild keep confidential any information provided. However, the Guild dropped its proposal in the spring of 1971, in exchange for concessions by the Company on holiday benefits and exemptions from the bargaining unit. The information clause was not again negotiated until 1975.
On March 25 of that year, the Company proposed to add an information clause that was broader in scope than the clause's present language. The Guild countered, on October 22, 1975, with a counterproposal making technical revisions to the Company's proposal. Under the 1975 proposals, the Company would have been obligated to provide, in addition to the information set forth in section 1 of the information clause, the following information on a monthly basis:
a. All merit increases granted by name of employe [sic], individual amount, resulting new salary, and effective date.
b. Step-up increases paid by name of employe [sic], individual amount, resulting new salary, and effective date.
c. Changes in classification, any salary changes by reason thereof and effective date.
d. Resignations, retirements, deaths and any other revisions in the data listed in Section 1 and effective dates.
Joint Appendix at 533. The contract, as finally signed on November 17, 1978, did not include the above language; the information clause did, however, contain present section 1 and the confidentiality requirement the Company had proposed in the 1970 negotiations.
In 1980, the Guild proposed that the information clause be broadened to include the additional information disclosure requirements discussed in the 1975 negotiations but deleted from the 1978 agreement. Later that year, the Company asked, inter alia, that section 1 of the information clause be restricted in scope to four items--name, experience rating, anniversary date, and salary change (if any)--for current employees. The agreement in operation from November 17, 1981 to November 16, 1983 adopted the Company's proposed revisions to the information clause, but not the Guild's.
The next agreement, which was in effect from December 19, 1984 through November 16, 1986, incorporated the Guild's 1983 proposal to amend section 1 to require the Company to provide the date of hire for current employees. Finally, in the negotiations preceding the most recent agreement, the Guild proposed to include a requirement that the Company provide the specified information on new employees or transferees into the Guild's bargaining unit within thirty days of their addition to the bargaining unit. That proposal was adopted in the most recent collective bargaining agreement and resulted in the present information clause.
2. The Zipper Clause
The zipper clause has a much simpler, but less harmonious, history. On March 25, 1975, the Company proposed to add the present language of the zipper clause. The Guild strongly objected to the zipper clause, arguing that Transcript of Bargaining Negotiations 5 (Jan. 7, 1976). Apparently, it was very important to the Company as well, for the agreement subsequently signed on December 4, 1979 included the zipper clause. Each of the three agreements that followed also included the zipper clause. Although no changes were made to the language of the zipper clause, its effective date was changed in each contract to reflect the new effective date of the agreement as a whole.
The zipper clause was last discussed in 1988, when the parties made competing proposals addressing a potential merger between the Company's two newspapers. The Company's proposed addition contained a zipper clause specific to the language dealing with the potential merger. The Guild questioned the need for the self-contained zipper clause, in view of the agreement's overall zipper clause. Agreeing with the Guild, the Company withdrew the mini-zipper clause from its proposal.
During each of the four most recent contracts, the Guild made semiannual requests for the information set forth in the information clause, plus information on grade, evaluation rating, previous salary, work history raises, merit raises and step raises for each employee in...
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