Press Democrat Pub. Co. v. N.L.R.B.

• Citation: 629 F.2d 1320
• Decision Date: 08 October 1980
• Docket Number: P,AFL-CI,FRANCISCO-OAKLAND,Nos. 79-7086,s. 79-7086
• Parties: 105 L.R.R.M. (BNA) 3046, 89 Lab.Cas. P 12,320 PRESS DEMOCRAT PUBLISHING CO., Times Herald, Inc., Amphlett Printing Company, and Brown Newspaper Publishing Co., Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. SANNEWSPAPER GUILD, LOCAL 52, the Newspaper Guild,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. to 79-7089 and 79-7158 to 79-7161.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1320

629 F.2d 1320

105 L.R.R.M. (BNA) 3046, 89 Lab.Cas. P 12,320

PRESS DEMOCRAT PUBLISHING CO., Times Herald, Inc., Amphlett

Printing Company, and Brown Newspaper Publishing

Co., Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

SAN FRANCISCO-OAKLAND NEWSPAPER GUILD, LOCAL 52, the Newspaper Guild, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 79-7086 to 79-7089 and 79-7158 to 79-7161.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 10, 1980.

Decided Oct. 8, 1980.

James E. Boddy, Jr., Irwin Leff, San Francisco, Cal., argued, for petitioners; James C. Paras, Irwin Leff, San Francisco, Cal., on brief.

W. Christian Schumann, NLRB, Washington, D. C., argued, for respondent; Elliott Moore, Washington, D. C., on brief.

Petitions for Review and Cross-Applications for Enforcement of Orders of National Labor Relations Board.

Before WRIGHT, KENNEDY and POOLE, Circuit Judges.

POOLE, Circuit Judge.

At issue here are four decisions of the National Labor Relations Board (the Board) involving nearly identical factual and legal questions. The dispute concerns the editorial departments of four publishing companies: Press Democrat Publishing Co.; Times-Herald, Inc.; Amphlett Printing Co.; and Brown Newspaper Publishing Co. (collectively, the "Employers"), which publish several suburban newspapers in the Bay Area. The San Francisco-Oakland Newspaper Guild (the Guild) represents full-time, salaried employees of the four companies who produce editorial copy for the newspapers.

In each of its decisions, ¹ the Board ordered the publishing company to disclose to the Guild aggregate amounts paid to independent correspondents for editorial product. The Board found this information relevant to the Guild's wage demands for union members and that failure to disclose it violated the duty to bargain in good faith imposed by the National Labor Relations Act (the Act), 29 U.S.C. §§ 151, et seq.

The Employers have petitioned for review, challenging the disclosure orders and findings of violations of the Act. The Guild seeks review on the basis that individual rather than aggregate payments should be disclosed. The Board has cross-petitioned for enforcement of its orders without modification.

BACKGROUND

For at least twenty years, the Employers have utilized independent correspondents, ² not represented by the Guild, to write special interest or local news columns. These nonunit correspondents perform work similar to that of bargaining unit editorial employees, but are paid on per article or monthly retainer bases, rather than by the In preparation for negotiations on the 1976-78 contract, the Guild wrote to the Employers on August 5, 1976, requesting identification of each published article written by a nonunit correspondent during a specified period, and of the amount paid for each item. The letter explained that the information was needed to evaluate contract provisions protecting bargaining unit work and to negotiate minimum terms for nonunit work. The Employers refused to comply with this request on the grounds that the information was confidential and irrelevant to any bargaining purpose.

hour. The Employers' use of correspondents has not in the past reduced the work or wages of unit employees. The Guild has not contended that this practice violates the collective bargaining agreements, but has in prior contract negotiations unsuccessfully proposed unit work protection clauses and minimum wage clauses for nonunit workers.

On October 7, 1976, the Guild filed unfair labor practice charges against all four Employers for refusal to furnish information needed to bargain collectively. A single Administrative Law Judge (ALJ) conducted hearings on these charges. On the issue of relevance, the Guild's witness Cuthbertson testified in each hearing that the Guild intended to use the data for comparison to unit employees' wages. ³ In the Press Democrat, Times-Herald and Brown Publishing hearings, the ALJ found an obvious connection, where unit and nonunit personnel performed the same type of work, between information on compensation paid to correspondents and the Guild's unit wage proposals.

In the Amphlett hearing, held several months after the other three, Cuthbertson testified that the Guild might also use the compensation information to obtain a larger share of the editorial budget. ⁴ He explained that the piece rate compensation of correspondents could not be converted into hourly rates for direct comparison with unit wages. ⁵ He also testified that rough comparison, a determination of whether payment to correspondents represented a high or low price, was nevertheless possible. ⁶

Based on this testimony, the ALJ came to the opposite conclusion than in the other three cases and declined to recommend disclosure. He determined that the information would not be useful, since direct comparison of hourly rates was impracticable, and found Cuthbertson's testimony on relevance of budget figures unpersuasive.

The Board, however, in all four cases found the information relevant for the purpose of formulating unit wage proposals. In reversing the ALJ in Amphlett, the Board concluded that difficulty in converting piece rate compensation to hourly wages was countered by the Guild's interest in budget figures. Construing Cuthbertson's testimony as a request for either individual figures or budget data, the Board ordered the Employers to disclose the aggregate amount paid for nonunit editorial product. Disclosure of correlated compensation information was not ordered in order that individuals' salaries could remain confidential.

DISCUSSION

A.

It has long been established that the obligation to bargain collectively in good faith includes an employer's duty to furnish information which the union needs to carry out its statutory duties and responsibilities, N. L. R. B. v. Truitt Mfg. Co., 351 U.S. 149, 156, 76 S.Ct. 753, 757, 100 L.Ed. 1027 (1956); N. L. R. B. v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567, 17 L.Ed.2d 495 (1967), that is, "sufficient information to enable the (union) to understand and intelligently discuss the issues raised in bargaining permitted by the collective bargaining contract." San Diego Newspaper Guild v. N. L. R. B., 548 F.2d 863, 866 (9th Cir. 1977). Failure to disclose such information constitutes a violation of §§ 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a) (5) and (1). N. L. R. B. v. Silver Spur Casino, 623 F.2d 571, 583 (9th Cir. 1980, as amended July 14, 1980); Truitt Mfg. Co., supra.

The first question in a disclosure case is one of relevance; information must be divulged only if it is relevant to a legitimate union need. San Diego Newspaper Guild, supra, 548 F.2d at 867; Emeryville Research Center v. N. L. R. B., 441 F.2d 880, 883 (9th Cir. 1971). "Relevant" information is related to the union's function as bargaining representative and reasonably necessary to performance of that function. Curtiss-Wright Corp. v. N. L. R. B., 347 F.2d 61, 68 (3d Cir. 1965); Proctor & Gamble Mfg. Co. v. N. L. R. B., 603 F.2d 1310, 1315 (8th Cir. 1979); San Diego Newspaper Guild, supra, 548 F.2d at 867 n.7.

A dichotomy has developed between data bearing directly on mandatory bargaining subjects and other kinds of information. Information in the first category, pertaining to wages, hours or conditions of employment, is presumptively relevant, and must be disclosed unless the employer proves a lack of relevance. San Diego Newspaper Guild, supra, 548 F.2d at 867; Western Massachusetts Electric Co. v. N. L. R. B., 573 F.2d 101, 105 (1st Cir. 1978). On the other hand, when information not ordinarily pertinent to collective bargaining, such as information concerning nonunit employees, is requested by a union, relevance is not assumed. Instead the union must affirmatively demonstrate relevance to bargainable issues. San Diego Newspaper Guild, supra, 548 F.2d at 867-68; Prudential Insurance Co. of America v. N. L. R. B., 412 F.2d 77, 84 (2d Cir. 1969), cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969); Curtiss-Wright Corp., supra, 347 F.2d at 69.

The Employers attack the legal standard for relevancy applied by the Board in the instant case, urging that when information on nonunit personnel is sought case law requires overt action by the employer or a showing of necessity as a distinct element of relevance. Relevance depends, however, on the particular facts of each case, Truitt Mfg. Co., supra, 351 U.S. at 153 76 S.Ct. at 756, and may arise without an issue being placed into contention by specific conduct of the employer. E. g., Connecticut Light and Power Co., 220 NLRB 967 (1975), enforced, 538 F.2d 308 (2d Cir. 1976); N. L. R. B. v. Davol, Inc., 597 F.2d 782 (1st Cir. 1979); Ohio Power Co., 216 NLRB 987 (1975), enforced, 531 F.2d 1381 (6th Cir. 1976). The argument that necessity constitutes a separate guideline has been squarely rejected. Curtiss-Wright Corp., supra, 347 F.2d at 69.

The Employers also challenge what they describe as the Board's use of a liberal, "discovery-type" standard of relevancy, relying on language in Acme Industrial Co., supra, 385 U.S. at 437, 87 S.Ct. at 568. They argue that the Board has misconstrued Acme Industrial and that a heightened standard of relevance should apply to nonunit information. Their construction of Acme Industrial comes too late; Courts of Appeal have long and consistently applied this "liberal" standard of relevancy. E. g., Davol, Inc., supra, 597 F.2d at 787 (1st Cir.); N. L. R. B. v. Temple-Eastex, Inc., 579 F.2d 932 at 937-38 (5th Cir. 1978); General Electric Co. v. N. L. R. B., 466 F.2d 1177, 1183 (6th Cir. 1972); Proctor & Gamble, supra, 603 F.2d at 1315 (8th Cir.); Local 13, Detroit Newspaper Printing and Graphic Communications Union v. N. L. R. B., 598 F.2d 267, 271 n.5 (D.C.Cir.1979). ⁷ Exchange of a broad range of information would seem to further the statutory...