Gannett Co.

National Labor Relations Board - Board Decisions

Dec 23, 1991

305 N.L.R.B. 906 (N.L.R.B. 1991)

906
305 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge found, and we agree, that the Respondent unlawfully
refused to provide the Union with certain relevant information re-
quested by the Union. The Union’s request for the disputed informa-
tion was the first such request under the current contract. The dis-
puted information, however, had been previously provided under
prior contracts pursuant to the Union’s requests. In excepting to the
judge’s decision, the Respondent points out that the current contract
specifies that certain information will be provided to the Union but
does not provide that the disputed information must be supplied. The
Respondent further notes that the current contract contains a zipper
clause and contends that this zipper clause, combined with the provi-
sion specifying what information shall be provided, precludes the
Union from relying on past practice to justify its request for the dis-
puted information. In support of its position, the Respondent relies
on TCI of New York, 301 NLRB 822 (1991), where the Board held
that a union had waived its right to bargain over the discontinuance
of a benefit.
We find this case distinguishable from TCI despite the similarity
in the language of the zipper clauses in the two cases. In TCI, supra,
the language of the zipper clause had been negotiated and changed
during bargaining for the most recent contract. Here, the Respondent
had provided the information now in dispute in response to the
Union’s information requests under the prior contract. The language
of the zipper clause and the relevant language of the information
clause were not changed from that in the preceding contract to the
current contract. Therefore, here, unlike the situation in TCI, no
event put the Union on notice that the Respondent contemplated a
change in the bargaining relationship in that respect. See Pepsi-Cola
Distributing Co., 241 NLRB 869 (1979), enfd. 646 F.2d 1173 (6th
Cir. 1981); Aeronca, Inc., 253 NLRB 261 (1980), enf. denied 650
F.2d 501 (4th Cir. 1981). Accordingly, we agree with the judge that
the Union did not clearly and unmistakably waive its right to request
the disputed information.
1 If during bargaining the Respondent’s negotiator had made an
oral commitment to supply the requested information, in my opinion
that would have bound the Respondent, notwithstanding the absence
of any specific identification of that information in art. III A, and
even with the zipper clause in the contract. Commitments of that sort
should be given overriding effect. While there is record evidence
that such a commitment may have been given, the judge made no
factfindings on this point. In any event, I do not reach the question
because, as discussed below, under the rule applied by the Supreme
Court I must conclude that there has been no waiver.
Gannett Rochester Newspapers, a Division of Gan-
nett Co., Inc. and The Newspaper Guild of
Rochester, Local 17. Case 3–CA–15531
December 23, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On June 12, 1991, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Gannett Rochester News-
papers, a division of Gannett Co., Inc., Rochester, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
MEMBER OVIATT, concurring.
I am concerned about the effect the rule that a waiv-
er of statutory right must be clear and unmistakable
has on the practical ability of parties to reach agree-
ment on a new contract and the relationship that ema-
nates therefrom.
In practice when parties who have previously bar-
gained contracts sit down to bargain a new contract
they usually start with the language of the expiring
contract. Unless there are proposed language changes,
the old contract’s language becomes the basis at least
for the noneconomic terms of the new contract. The
parties do not go through each provision of the old
contract that they are adopting without change and dis-
cuss whether by that language the Union is waiving a
right to request something not specifically included in
the particular clause. For they recognize that to do so
would likely bog down the bargainers in a discussion
of past matters that in turn could lead to disagreements
and to difficulties in selling the contract to their re-
spective constituencies. Thus, to require the bargainers
specifically to agree to what is or is not included in
a particular contract provision that has been carried
forward from old contracts in my view creates a situa-
tion that could be more destructive of a positive collec-
tive-bargaining relationship than helpful to it. And to
refuse to give effect to a zipper clause unless the par-
ties have engaged in close analysis and extensive dis-
cussion of the scope of each clause carried forward in
essentially the same form from previous contracts ren-
ders negotiation of the zipper clause a meaningless ex-
ercise.1 It is not surprising, therefore, that in this case,
with experienced bargainers at the table, there is no
contemporaneous interpretation from the bargainers
concerning the meaning of the zipper clause as it is re-
lated to information not specifically listed in article III
A.
I am nonetheless constrained to concur here in view
of the Supreme Court’s statement in Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693, 708 (1983), that:
[W]e will not infer from a general contractual
provision that the parties intended to waive a
statutorily protected right unless the undertaking
is explicitly stated.
907GANNETT CO.
1 All dates refer to 1990 unless otherwise specified. 2 The clause appeared in the prior agreements as art. XV, sec. 4.
In this case, while there are contractual provisions
that strongly suggest the parties understood that the
Union would not be entitled to the information it re-
quested, and that the Respondent’s furnishing of this
information in the past was entirely gratuitous, I can-
not find that there was an ‘‘explicit’’ waiver of the
Union’s statutory right to the requested information.
Accordingly, I reluctantly concur in the opinion of the
panel majority in this case.
Michael Cooperman, Esq., for the General Counsel.
William A. Behan, Esq., of Arlington, Virginia, for the Re-
spondent.
Matthew J. Fusco, Esq. (Chamberlain, D’Amanda,
Oppenheimer & Greenfield), of Rochester, New York, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Rochester, New York, on August 13
and 14, 1990.1 Upon a charge filed on March 26, a com-
plaint was issued on May 10, alleging that Gannett Rochester
Newspapers, a Division of Gannett Co., Inc. (Respondent)
violated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act). Respondent filed an answer denying the
commission of the alleged unfair labor practices.
The parties were given full opportunity to participate, ex-
amine and cross-examine witnesses, argue orally, and file
briefs. Briefs were filed by all of the parties.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, with an office and
place of business in Rochester, New York, has been engaged
in the publication of the Democrat and Chronicle and the
Times Union, daily newspapers in the Rochester, New York
area. During the 12 months prior to the issuance of the com-
plaint, Respondent derived gross revenues in excess of
$200,000, held membership in, or subscribed to, various
interstate news services, published various nationally syn-
dicated features and advertised various nationally sold prod-
ucts. Respondent admits, and I so find, that it is an employer
engaged in commerce, within the meaning of Section 2(2),
(6), and (7) of the Act. In addition, it has been admitted and
I so find, that the Newspaper Guild of Rochester, Local 17
(the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union and Respondent have been parties to a series
of collective-bargaining agreements, the last of which is ef-
fective September 25, 1989, to September 24, 1992. Article
III, A of the present agreement provides:
The Publisher shall supply the President of the Guild,
upon written request, with a list containing the fol-
lowing information for all regular full-time Guild bar-
gaining unit employees on the payroll . . . (1) name,
(2) address, (3) experience rating, (4) anniversary date,
(5) date of hire [and] (6) salary.
Article III, A has been contained in collective-bargaining
agreements between the parties since the contract signed by
the parties in 1979. The language in article III, A has been
substantially the same in each contract negotiated since that
date.
Prior to 1990, the Union had requested wage information
beyond that specifically set forth in article III, A and Re-
spondent had been furnishing the Union with such informa-
tion. In addition to the information specifically covered by
article III, A, Respondent provided the Union with informa-
tion regarding grade, evaluation rating, previous salary, work
history raises, merit raises, and step raises of unit employees.
In a letter dated January 2 the Union made its semi-annual
request for wage information covering the last half of 1989.
However, the information supplied by Respondent in re-
sponse to this request was restricted to the data specifically
listed in article III, A. On February 12 the Union wrote to
Respondent, as follows:
The salary information for the second half of 1989,
forwarded the Guild with a note dated January 31, does
not contain all the necessary information. Missing are
grade, evaluation rating, previous salary, work history
raises, merit raises and step raises.
As you know, we have received this information in
response to all previous requests. The missing informa-
tion is needed for the Guild to properly administer the
contract.
On March 16 Respondent replied to the Union, as follows:
Because this is the Guild’s first request for informa-
tion since the signing of the current contract, the Pub-
lisher will adhere to the language in article III A. Fur-
thermore, in accordance with Article XXV, section 4,
the Publisher recognizes that the current contract ‘‘con-
stitutes the sole and entire agreement between the par-
ties, and supercedes all prior agreements, commitments,
and practices, whether oral or written between the
Company and the Union, or the Company and any cov-
ered employee or employees.’’
Article XXV, section 4, known as the zipper clause, which
has been in the prior agreements2 as well, states:
The contract entered into on September 25, 1989 be-
tween the Newspaper Guild of Rochester and the Roch-
ester Democrat and Chronicle and Rochester Times-
Union constitutes the sole and entire agreement be-
tween the parties, and supersedes all prior agreements,
commitments, and practices, whether oral or written be-
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tween the Company and the Union, or the Company
and any covered employee or employees.
Prior to 1990 Respondent has not used this clause in re-
sponse to the Union’s semi-annual wage information re-
quests. Since the letter of March 16 Respondent has failed
to supply the additional wage information requested by the
Union in its February 12 letter.
B. Discussion and Conclusions
Respondent does not contend that the additional informa-
tion requested by the Union is not relevant. Instead, Re-
spondent argues that the Union waived its right to the addi-
tional information because it agreed to the language in article
III, A after collective bargaining. In addition, Respondent
contends that the zipper clause contained in article XXV,
section 4, eliminates past practices from consideration.
The duty to furnish information is a statutory obligation
which exists independent of any agreement between the par-
ties. American Standard, 203 NLRB 1132 (1973). Although
a union may relinquish a statutory right, any waiver of such
a right, however, must be clear and unmistakable. As the
Board stated in Bozzuto’s, Inc., 275 NLRB 353 (1985):
The Respondent does not deny the the relevance of
the requested addresses, but instead argues that the fol-
lowing contractual provision limited the information to
which the Union is entitled and thus waived the
Union’s right to the addresses. . . . We do not agree.
The provision specifies what information to include in
a seniority list. The clause does not provide that other
information need not be disclosed to the Union and the
Respondent points to no other contractual provision that
addresses the Union’s right to receive information. We
find that the contract does not clearly and unmistakably
waive the Union’s right to a list of unit members’ ad-
dresses.
Article III, A provides that the name, address, experience
rating, anniversary date, date of hire and salary of unit em-
ployees shall be furnished. It does not provide that only that
information shall be furnished. The clause was unchanged
from the prior collective-bargaining agreement. In addition,
the record indicates that there was no discussion during the
negotiations of the information to be furnished. Inasmuch as
there was no discussion and no change in the language of
the clause, I believe that the Union had every reason to ex-
pect that it would continue to receive the same information
that it had received for the prior 10 years pursuant to its re-
quest for information.
Respondent contends that because of the zipper clause it
is not required to provide the additional information. How-
ever, a zipper clause which is carried over from a prior col-
lective-bargaining agreement, where there has been no modi-
fication from the prior contract, cannot be used to eliminate
a past practice and thereby establish a clear and unmistakable
waiver. In Angelus Block Co., 250 NLRB 868, 877 (1980),
it was stated:
A zipper clause must meet the standard of any other
form of alleged waiver. It is well established that in
order to establish waiver of the statutory right to bar-
gain in regard to mandatory subjects of bargaining . . .
there must be a clear and unequivocal relinquishment of
such right. Even where a zipper clause is couched in
broad terms, it must appear from an evaluation of the
negotiations that the particular matter in issue was fully
discussed or consciously explored and the Union con-
sciously yielded or clearly and unmistakably waived its
interest in the matter.
See also Suffolk Child Development Center, 277 NLRB
1345 (1985).
In addition, as the Board recently stated in Johnson-Bate-
man Co., 295 NLRB 180, 185 (1989):
Waiver of a statutory right may be evidenced by bar-
gaining history, but the Board requires the matter at
issue to have been fully discussed and consciously ex-
plored during negotiations and the union to have con-
sciously yielded or clearly or unmistakably waived its
interest in the matter. [Rockwell International Corp.,
260 NLRB 1346, 1347 (1982).]
Both article III, A and the zipper clause in the current con-
tract are substantially the same as they were in the prior con-
tract. The record is clear that there was no discussion during
the negotiations concerning the list of items in article III, A.
In addition, other than a discussion during negotiations con-
cerning whether a separate zipper clause for mergers was
necessary, there was no discussion of article XXV, section
4 during the negotiations. Under Johnson-Bateman, supra, in-
asmuch as the additional information was not discussed dur-
ing the negotiations the Union clearly did not ‘‘consciously
yield’’ or ‘‘clearly or unmistakably waive its interest in the
matter.’’
Respondent relies on Hearst Corp., 113 NLRB 1067
(1955), where the Board held that the Union waived its statu-
tory right to additional information. The Hearst case, how-
ever, is distinguishable. As the Board pointed out in Hearst
(id. at 1070–1071): ‘‘What the Union asked for on Sep-
tember 9 was almost precisely the portion of its May 27 in-
formation proposal that the Respondent had refused to assent
to, and which the Union had, in fact, abandoned, in the
course of the bargaining negotiations . . . .’’ In Hearst, dur-
ing negotiations, the union proposed, and then abandoned,
the same information it later requested. Under such cir-
cumstances the Board held that the union had clearly waived
its right to the additional information. In the instant pro-
ceeding, however, the additional information was never
brought to the table for negotiations. There was no discus-
sion of article III, A during negotiations nor, except for a
discussion whether to have a separate zipper clause for merg-
ers, was there any discussion of changing article XXV, sec-
tion 4.
I conclude that there has been no clear and unmistakable
waiver by the Union to furnishing the additional information.
The Union had every reason to believe that the longstanding
past practice of providing the additional information would
continue. The zipper clause, which was carried over from the
prior contract, without modification, cannot be used to elimi-
nate the past practice of providing the additional information.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
909GANNETT CO.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing to furnish the Union with information con-
cerning grade, evaluation rating, previous salary, work his-
tory raises, merit raises, and step raises of unit employees,
Respondent has violated Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I find it necessary to order Respondent to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Gannett Rochester Newspapers, a Divi-
sion of Gannett Co., Inc., Rochester, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Newspaper Guild of
Rochester, Local 17 by refusing to furnish information to the
Union regarding grade, evaluation rating, previous salary,
work history raises, merit raises, and step raises of employ-
ees in the following appropriate unit:
All full-time employees of the news and editorial de-
partments as described in the collective-bargaining
agreement between the parties employed by Respondent
at its 55 Exchange Boulevard, Rochester, New York fa-
cility, excluding all individuals described as exempt in
Article 1 of the collective-bargaining agreement, all
managerial employees, confidential employees, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish the Union with information con-
cerning grade, evaluation rating, previous salary, work his-
tory raises, merit raises, and step raises of unit employees.
(b) Post at its facility in Rochester, New York, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
tice on forms provided by the Regional Director for Region
3, after being duly signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and be maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain with the Newspaper Guild
of Rochester, Local 17 by refusing to furnish the Union with
information concerning grade, evaluation rating, previous sal-
ary, work history raises, merit raises, and step raises of em-
ployees in the following unit:
All full-time employees of the news and editorial de-
partments as described in the collective-bargaining
agreement between the parties employed by us at our
55 Exchange Boulevard, Rochester, New York facility,
excluding all individuals described as exempt in Article
1 of the collective-bargaining agreement, all managerial
employees, confidential employees, guards and super-
visors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed to you by Section 7 of the Act.
WE WILL, on request, furnish the Union with information
concerning grade, evaluation rating, previous salary, work
history raises, merit raises, and step raises of unit employees.
GANNETT ROCHESTER NEWSPAPERS, A DIVI-
SION OF GANNETT CO., INC.