WCCO Radio, Inc., a Div. of Midwest Communications, Inc. v. N.L.R.B.
| Decision Date | 11 April 1988 |
| Docket Number | No. 87-5125,87-5125 |
| Citation | 844 F.2d 511 |
| Parties | 128 L.R.R.M. (BNA) 2069, 112 A.L.R.Fed. 719, 108 Lab.Cas. P 10,425 WCCO RADIO, INC., A DIVISION OF MIDWEST COMMUNICATIONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Carol A. Ellingson, St. Paul, Minn., for petitioner.
Fred Cornnell, Washington, D.C., for respondent.
Before JOHN R. GIBSON, BOWMAN, and WOLLMAN, Circuit Judges.
WCCO Radio, Inc. (WCCO or the Company) challenges a decision of the National Labor Relations Board (the Board) which held that WCCO violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1), (5), by failing to provide information requested by the American Federation of Television and Radio Artists (AFTRA or the Union). The Board cross-applies for enforcement of its order requiring the Company to supply the requested information. We affirm the Board's decision and enforce its order.
WCCO operates a radio station in Minneapolis. AFTRA is the collective-bargaining representative for a unit of WCCO employees composed of announcers, producers, broadcast journalists, traffic reporters, and broadcast meteorologists. To prepare for upcoming collective bargaining sessions, in January 1986 AFTRA requested ten "items" of information on bargaining unit members. WCCO provided the first six items (and they are not at issue), but refused to supply the remaining four items, which were (7) the retainer fee paid the associate announcer; (8) a list of all programs and the fee that "attaches to" each program for each announcer; (9) a list of the salary, shifts, programs, and fees attaching to each program for every producer, broadcast journalist, and broadcast meteorologist; and (10) a copy of all personal contracts. 1 AFTRA found WCCO's offer of alternative information inadequate and filed a charge with the Board alleging that WCCO had violated the Act by failing to bargain collectively.
Despite the unfair labor practice charge, the Union and Company continued to discuss possible settlements. At the heart of the controversy was a conflict between WCCO's desire to keep the requested information confidential and AFTRA's need to have the information to perform its collective-bargaining duties. In response to the Company's concerns, AFTRA's Executive Secretary, John Kailin, assured WCCO's General Manager, Clayton Kaufman, that AFTRA would take steps to protect the confidentiality of the information. But Kailin also said that AFTRA could not accept conditions on disclosure that would preclude the Union from using the information to check contract compliance or formulate bargaining proposals.
During one meeting, Kailin renewed AFTRA's previous requests and presented Kaufman with a letter asking for the following additional information (numbered as in the letter): (11) accounting or payroll records containing the actual compensation received by each unit employee from April 1, 1984 through February 28, 1986; (13) current "personnel manual provisions" describing benefits for non-unit employees; and (15) copies of "all payroll or personnel or accounting records" setting forth the number of regular and overtime hours worked by each unit member since April 1, 1983 or the date of the employee's current personal service contract. 2 The letter explained that AFTRA needed this information "to prepare for current contract negotiations" and to consider the "interplay" and "conflicts" between personal contracts and the collective-bargaining agreement. Appendix of Petitioner (App.) at A-38 to -39. WCCO expressed concern that the information remain confidential.
Discussions aimed at resolving the dispute continued through March and April 1986. During this period a number of settlement proposals were considered. 3 The parties were unable, however, to reach an agreement, and eventually they presented the dispute to an administrative law judge (ALJ). The ALJ determined that WCCO had violated sections 8(a)(1) and 8(a)(5) of the Act by failing to timely provide AFTRA with items (7), (8), (9), (10), (11), (13), and (15). His recommended order required WCCO to furnish the information requested in items (8), (9), (10), (11), (13), and (15). 4 The Board affirmed the ALJ's rulings, findings, and conclusions and adopted his recommended order. 5
The scope of our review here is very narrow. We must affirm the Board's decision if it is substantially supported by the evidence and reasonably based in law. Bauer Welding & Metal Fabricators, Inc. v. NLRB, 758 F.2d 308, 309 (8th Cir.1985); NLRB v. Vincent Brass & Aluminum Co., 731 F.2d 564, 566 (8th Cir.1984).
The central issue in this case is whether WCCO has violated its duty under the Act to bargain in good faith. The duty to bargain in good faith requires, inter alia, an employer to furnish information needed by the employees' bargaining representative to perform its duties. NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495 (1967); Procter & Gamble Mfg. Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir.1979). The duty "extends to data requested in order properly to administer and police a collective bargaining agreement as well as to requests advanced to facilitate the negotiation of such contracts." Oil, Chem. & Atomic Workers Local Union No. 6-418 v. NLRB, 711 F.2d 348, 358 (D.C.Cir.1983). Accord Procter & Gamble, 603 F.2d at 1315. Failure to provide such information, in the absence of a valid countervailing reason, constitutes a violation of sections 8(a)(1) and 8(a)(5) of the Act. See Salt River Valley Water Users' Ass'n v. NLRB, 769 F.2d 639, 641 (9th Cir.1985); New Jersey Bell Tel. Co. v. NLRB, 720 F.2d 789, 790-91 (3d Cir.1983); Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1094 (1st Cir.1981); see also Detroit Edison Co. v. NLRB, 440 U.S. 301, 318, 99 S.Ct. 1123, 1132, 59 L.Ed.2d 333 (1979) ().
The threshold question in a case such as this is 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." Emeryville Research Center, Shell Dev. Co. v. NLRB, 441 F.2d 880, 883 (9th Cir.1971). There is little doubt that the information requested by AFTRA is relevant. AFTRA sought data on compensation received, programs performed, and hours worked by unit members. 6 "Information pertaining to the wages, hours and working conditions of employees in the bargaining unit is so intrinsic to the core of the employer-employee relationship that it is considered presumptively relevant." Procter & Gamble, 603 F.2d at 1315. Accord Oil, Chem. & Atomic Workers, 711 F.2d at 359. Because the information requested by AFTRA was presumptively relevant, WCCO had the burden of proving its irrelevance. See San Diego Newspaper Guild, Local 95 v. NLRB, 548 F.2d 863, 867 (9th Cir.1977).
WCCO contends that AFTRA implicitly conceded the irrelevance of the personal contracts and overscale compensation by stating in a report to its members that "[o]nly [Kailin] and [U]nion attorneys would ever see any individual contract." App. at A-44 (emphasis in original). WCCO argues that it is inconsistent for AFTRA to insist that the information is relevant to the Union's collective-bargaining responsibilities while promising that the information will not be given to the Union's collective-bargaining representatives. We find this argument unpersuasive. It fails to recognize that Kailin, who would see the personal contracts, is himself the primary negotiator for the Union, and it ignores AFTRA's interest in having the information to check compliance with the collective-bargaining agreement. Moreover, the report explicitly states that AFTRA needs the information to "grieve contract violations" and "negotiate gains for overscale performers." App. at A-44. Far from being an admission of irrelevance, the language WCCO cites was simply intended to indicate that AFTRA would accommodate wishes for confidentiality by handling the information discreetly. 7
Although the information AFTRA requested is relevant, this does not end our analysis, for an employer's obligation to furnish such information is not absolute. Where, as here, the employer presents reasons for keeping the information confidential, the court should "weigh the competing interests of the employer and the union in the requested information, and the type and extent of disclosure required will depend on 'the circumstances of the particular case.' " Soule Glass, 652 F.2d at 1094 (quoting Detroit Edison, 440 U.S. at 314-15, 99 S.Ct. at 1130-31). This is true for information either shown or presumed to be relevant. Soule Glass, 652 F.2d at 1094.
WCCO argues that the requested information should not be furnished for three reasons: (1) some employees prefer that the information remain confidential; (2) the information constitutes trade secrets; and (3) disclosure might result in misuse of the information or employee harassment. We disagree. The need for confidentiality may in some circumstances excuse an employer from providing information needed by a union, but not in this case. Here, WCCO's concerns do not outweigh AFTRA's interest in having the information.
One of the consequences of collective bargaining is that it subordinates the particular interests of individual employees to the collective interest of the unit. Hence, a preference for confidentiality on the part of some WCCO employees does not nullify AFTRA's right to the information. See NLRB v. Jaggars-Chiles-Stovall, Inc., 639 F.2d 1344, 1347 (5th Cir.), cert. denied, 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 100 (1981); The Detroit News, a Div. of The Evening News Ass'n v. NLRB, 270 N.L.R.B. 380, 381-82 (1984), enforced, 759 F.2d...
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