Utica Observer-Dispatch v. National Labor Rel. Bd.
| Decision Date | 31 January 1956 |
| Docket Number | No. 127,Docket 23644.,127 |
| Parties | UTICA OBSERVER-DISPATCH, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Arthur L. Stern, Rochester, N. Y. (Nixon, Hargrave, Devans & Dey, Rochester, N. Y., on the brief), for petitioner.
Franklin C. Milliken, Atty., National Labor Relations Board, Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Assistant Gen. Counsel and Frederick U. Reel, Atty., National Labor Relations Board, Washington, D. C., on the brief), for respondent.
Before SWAN, FRANK and LUMBARD, Circuit Judges.
The Utica Observer-Dispatch, Inc. petitions pursuant to § 10 of the National Labor Relations Act, 29 U.S.C.A. § 160, to review and set aside an order of the National Labor Relations Board that it cease and desist from refusing to bargain collectively with Local 129, Utica Newspaper Guild, affiliated with the American Newspaper Guild, C. I. O., as exclusive representative of 58 of its employees and that it furnish payroll data concerning all of said employees without conditioning such action upon the consent of the individual employees. The Board cross-petitions for enforcement of its order.
At a one day hearing on February 10, 1954, the first point at issue was the refusal of the Company to furnish individual salary data concerning 58 employees as requested by the Union on July 12, 1953, preliminary to a reopening of the contract as to wages. This was charged as a failure to bargain collectively in violation of § 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (5) and (1). The second issue arose from the Company's writing to each of the 58 employees on October 20, 1953 stating that it would furnish the salary information requested by the Local unless advised to the contrary by October 23rd. The complaint charged this as a separate violation of § 8(a) (5) and (1). This second part of the complaint was dismissed by the Trial Examiner after the General Counsel's case, and the Company therefore introduced no evidence on this issue. The Trial Examiner dismissed the remainder of the complaint on the merits. This dismissal by the Examiner was based on his finding that the Local's request for the salary data was not made in good faith because, in the view of the Examiner, the Local sought the data primarily for dues collection rather than for the stated and admittedly proper purposes of policing its existing contract with the Company, bargaining intelligently on a reopening of the wage question, and properly evaluating the Local's and management's wage proposals.
Following the July 12th letter asking for the wage data, the Local president reiterated his request in a telephone conversation on August 4th. On August 10th at a conference in the office of the Company's general manager the manager, although he maintained that individual data was confidential, informed the Local president of the average weekly rates paid in each of thirteen wage classifications. The Local, however, still insisted on its right to the information as to each individual employee.
The Local on September 4, 1953 sent to the Company formal written notice that it desired to reopen its agreement of December 1952 in order to negotiate a new wage scale for the period from November 6, 1953 through November 5, 1954. This it had a right to do under the provisions of the 1952 agreement. Following this notice of reopening, the Union on September 9th filed with the Board a charge that the Company had failed to bargain collectively.
The Company contends that the individual wage data requested by the Union was confidential. It is well settled, however, that an employer has a duty to supply the union with relevant wage data and that such data is not privileged. N. L. R. B. v. Yawman & Erbe Mfg. Co., 2 Cir., 1951, 187 F.2d 947; Aluminum Ore Co. v. N. L. R. B., 7 Cir., 1942, 131 F.2d 485, 147 A.L.R. 1. There are no facts in the record to show any particular need for confidentiality in this case. The information requested was relevant to the contract reopening even if the only issue open for bargaining was minimum wages. As Judge Learned Hand pointed out in N. L. R. B. v. Yawman & Erbe Mfg. Co., supra 187 F.2d at page 949, "we find it difficult to conceive a case in which current or immediately past wage rates would not be relevant during negotiations for a minimum wage scale or for increased wages." See also Boston Herald-Traveler Corp. v. N. L. R. B., 1 Cir., 1955, 223 F.2d 58. The fact that the Union had never before requested individual wage data is immaterial. The information was relevant and the Local had a right to request it whenever it chose to do so. The average classification figures furnished on August 10th did not give the Union all it was entitled to. Nor is the Company excused because it did furnish the data with respect to 54 non-objecting employees on November 3rd. The Union had a right to know the wage rates of all the employees it represented; the Company cannot reduce that right by giving only a part of the information requested and dismissing the rest as de minimis.
The primary ground on which the Trial Examiner dismissed the first charge was that the Union's request was not made in good faith since it wanted the data, not for bargaining purposes, but to aid it in collecting dues. The Board overruled its Trial Examiner. It found that although the Union may have wanted the wage information as an aid in dues collection this was only an additional reason for the request. There is substantial evidence on the whole record to support the Board's finding that the request was made in good faith. Universal Camera Corp....
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