San Diego Newspaper Guild, Local No. 95 of Newspaper Guild, AFL-CIO, CLC v. N.L.R.B.

• Decision Date: 22 February 1977
• Docket Number: CL,AFL-CI,No. 75-3584,P,75-3584
• Citation: 548 F.2d 863
• Parties: 94 L.R.R.M. (BNA) 2923, 81 Lab.Cas. P 13,116 SAN DIEGO NEWSPAPER GUILD, LOCAL NO. 95 OF the NEWSPAPER GUILD,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Union-Tribune Publishing Co., Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 863

548 F.2d 863

94 L.R.R.M. (BNA) 2923, 81 Lab.Cas. P 13,116

SAN DIEGO NEWSPAPER GUILD, LOCAL NO. 95 OF the NEWSPAPER GUILD, AFL-CIO, CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Union-Tribune Publishing Co., Intervenor.

No. 75-3584.

United States Court of Appeals Ninth Circuit.

Feb. 22, 1977.

Richard D. Prochazka, argued, Donmitz, Prochaska & Mazirow, San Diego, Cal., for petitioner.

Vivian A. Miller, argued, Elliott Moore, Washington, D. C., for N. L. R. B.

James K. Smith, argued, Gray, Cary, Ames & Frye, San Diego, Cal., for intervenor.

Petition to Review an Order of The National Labor Relations Board.

Before BARNES and ELY, Circuit Judges, and KELLEHER, District Judge. ^*

OPINION

BARNES, Senior Circuit Judge:

The Decision and Order of the Board here challenged is reported at 220 N.L.R.B. No. 195 (1975).

Union Tribune Publishing Co. ("the Company"), an intervenor herein, publishes two newspapers. It has collective bargaining agreements with six different organizations, one of which is the San Diego Newspaper Guild, Local No. 95 of the Newspaper Guild, AFL-CIO, CLC ("the Union"). The Union represents a bargaining unit of approximately 800 of the Company's employees, including those in its "outside circulation" department ¹ district managers, relief district managers, ² newsstand men and circulation clerks. ³ District managers recruit carriers in their districts, coordinate payment collections and maintain lists of subscribers, carriers and drop locations.

Since 1965, the Company has utilized what it calls "Operation Survival" during contract negotiations with the unions, and on one occasion, during a dispute with one of the unions in 1972. In order to enable the Company to continue publishing and distributing its newspapers in the event of a strike, the Company activates the plan which calls for the training and orienting of individuals to take over all phases of the work customarily performed by its employees. This shadow labor force does not actually perform such work but is prepared to do so if a strike occurs. As there have been no work stoppages since 1965, Operation Survival has never been called into full operation.

The plan was put into effect during contract negotiations in 1965, 1967, 1970 and 1973. The last institution of the plan continued up to the time of the unfair labor practice hearing herein. The Company did not conceal the existence of the plan. During the 1965 negotiations, Operation Survival was discussed and the Union demanded that the Company furnish the identity and compensation of the persons who were being trained to perform the work of the district managers in the event of a strike. The Company refused and the Union did not press the issue. In the 1967 and 1970 negotiations, the plan was only tangentially mentioned. When notified in 1972 that "Operation Survival" was being activated, the Union raised no objections. The 1973 contract talks did not consider the plan. Between 1965 and 1974 the Union filed no grievance or unfair labor practice charge concerning any aspect of Operation Survival.

As to the effect on the outside circulation department when Operation Survival is initially activated, supervisors of the circulation department train independent contractors and individuals, who have no other relationship with the Company, to take over the duties of the district managers and the relief district managers. "Survival personnel" are instructed as to the geography of the district assigned, the location of newspaper delivery or assembly points for carriers, and the basic paper work. Although the trainees are given duplicates of the district managers' route slips, they do not contact subscribers or carriers, do not distribute newspapers to a district, nor perform "any productive work that is now done or has been done by district managers or their reliefs." In the readiness phase of the plan, supervisors receive no extra compensation, although the survival personnel are compensated for their time and mileage travelled.

In March 1974, the Union became aware that district managers were being followed on their routes by individuals who represented that they were training to be strike replacements. On April 1, 1974, John C. Edgington, the Union's Executive Secretary, wrote to Oliver B. Peter, the Company's Director of Industrial Relations, requesting certain information about the individuals who were being trained to perform district manager and relief district manager duties. Article XXIV of the collective bargaining agreement provided inter alia:

"The Publisher shall furnish to the Guild in writing, the name, address, telephone number, sex, date of birth, Social Security number, date on payroll, contract classification, experience rating, experience anniversary date, and salary of each new covered employee within one (1) week after he or she has started to work and has been placed on the company payroll." (Emphasis added.)

In a reply letter, Peter responded that the Company was current in supplying information as to all new employees. Further correspondence and meetings between the Union and the Company did not produce any settlement of the issue. The Company maintained that it was under no obligation to give the information as the individuals were not doing any bargaining unit work. The Union insisted that it needed the requested information to determine if possible violations of the contract or encroachment in its jurisdiction had occurred. ⁴

On June 3, 1974, the Union filed an unfair labor practice charge with the National Labor Relations Board ("the Board") alleging that the Company's refusal to provide the Union with the information constituted a violation of the employer's duty to bargain under Sections 8(a)(1) and (5) of the National Labor Relations Act ("the Act"). After a hearing on the matter, the administrative law judge dismissed the complaint in its entirety. While he found the trainees under the plan to be employees rather than independent contractors as urged by the Company, the administrative law judge held that survival personnel did not function so as to be included in the bargaining unit. Further, he concluded that, as the trainees did not "presently perform" or affect the work covered by the collective bargaining agreement, the Union did not need the requested information to perform its duties under the contract. The Board affirmed the findings and conclusions of the administrative law judge and adopted his dismissal of the case in its entirety. The Union petitions this court for review of the Board's decision and order.

The only issue presented here is whether the Board erred in finding that the Company had not violated Section 8(a)(1) and (5) of the Act by refusing to provide the Union with certain information about those of its employees being trained to replace district and relief district managers in the sole event of a strike.

It has long been held that there is a duty on the part of the employer to supply the union, upon request, with sufficient information to enable the latter to understand and intelligently discuss the issues raised in bargaining permitted by the collective bargaining contract. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); Standard Oil Co. of Calif. v. NLRB, 399 F.2d 639, 642 (9th Cir. 1968). This duty is based upon the belief that without such information the union would be unable to properly perform its duties specified in the collective bargaining agreement and no meaningful bargaining could take place. ⁵ Morris (ed.), The Developing Labor Law 309-310 (1971). However, as this court noted in Emeryville Research Center, Shell Dev. Co. v. NLRB, 441 F.2d 880, 883 (9th Cir. 1971): "The first question in such a case is always one of relevance. If the information requested has no relevance to any legitimate union collective bargaining need, a refusal to furnish it could not be an unfair labor practice." Accord, NLRB v. Pearl Bookbinding Co., Inc., 517 F.2d 1108, 1113 (1st Cir. 1975); United Aircraft Corp. v. NLRB, 434 F.2d 1198, 1204-05 (2d Cir. 1970), cert. denied, 401 U.S. 993, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971). ⁶ The existence of a duty thus depends on the factual circumstances of each particular case. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153-154, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); Shell Oil Co. v. NLRB,457 F.2d 615, 618 (9th Cir. 1972). While the Board and the courts have employed a liberal definition of what constitutes relevant information, ⁷ the Board's determination as to whether the requested information is relevant in a particular case is given great weight by the courts either because it is a finding of fact, which is conclusive if supported by substantial evidence, ⁸ or because it is a finding on a mixed question of law and fact which is within the particular expertise of the Board. Cf., International U., United Auto., A. & A. I. Wkrs. v. NLRB, 147 U.S.App.D.C. 284, 455 F.2d 1357, 1364-65 (1971); Fafnir Bearing Co. v. NLRB, 362 F.2d 716, 721 (2d Cir. 1966).

When the Union requests information and the employer refuses, there arises the issue of who has the initial burden of proof as to the relevance of the information. The courts have held that certain types of information, such as wage date pertaining to employees in the unit, are so intrinsic to the core of the employer-employee relationship that such information is considered presumptively relevant. Emeryville Research, supra, 441 F.2d at 887 (9th Cir.); Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 69 (3rd Cir. 1965). In those cases, the employer has the burden to prove a lack of relevance, Prudential Insurance Co. v. NLRB, 412 F.2d 77, 84 (2d Cir.), cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969), or to provide adequate reasons as to why he cannot, in good faith, supply such information, cf., Shell Oil Co., supra, 457 F.2d at 618-619 (9th Cir.). Conversely,...