The Washington Star Co.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 391 (N.L.R.B. 1984)

WASHINGTON STAR CO

391
The Washington Star Company and Columbia Typo-
graphical Union No. 101. Case 5-CA-13812-2
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 March 1983 Administrative Law Judge
Sidney J. Barban issued the attached decision. Ex-
ceptions to the judge's decision were due 29 April
1983. The Respondent's exceptions and supporting
brief postmarked 29 April 1983 were received 2
May 1983. The Respondent's exceptions were re-
jected by the Board as untimely. On 1 June 1983
by telegraphic order, the Board denied the Re-
spondent's "Motion for Reconsideration" and on 7
June 1983 the Board issued an order adopting the
judge's rulings, findings, and conclusions.
On 24 April 1984 the United States Court of Ap-
peals for the District of Columbia Circuit denied
enforcement of the Board's order and remanded
the case to the Board for consideration of the Re-
spondent's exceptions. By an order dated 12 June
1984 the Board rescinded its order of 7 June 1983.
The Respondent has filed exceptions to the judge's
decision and a supporting brief. The General Coun-
sel has filed an answering brief to the Respondent's
exceptions and brief.
The National Labor Relations Board has delegat-
ed 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
' decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, the Wash-
ington Star, Washington, D.C., its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
DECISION
'STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative, Law judge. This
matter was heard at Washington, DC, on August 23
and October 15, 1982, on a complaint issued on Decem-
ber 21, 1981 (all dates are in 1981, unless otherwise
noted), pursuant to a charge filed by the above-named
Charging Party (the Union) on October 20. The com-
plaint alleges that the above-named Respondent' violated
Section 8(a)(1) and . (5) of the National Labor Relations
Act (the Act) by declining to furnish the Union, as re-
quested, with a copy of the contract between Respond-
ent and the Washington Post Company (The Post) re-
garding the purchase by the Post of certain equipment
and Respondent's Washington facility, which informa-
tion, it is alleged, is necessary for and relevant to the
Union's performance of its function as the exclusive col-
lective-bargaming r representative of the employees in the
alleged appropriate bargaining unit. 2 The answer denies
the unfair labor practices alleged.
On the entire record in this case, from observation of
the witnesses, and their demeanor, and after due consid-
eration of the briefs filed by the General Counsel and
Respondent, I make the following
FINDINGS AND CONCLUSIONS
L JURISDICTION
For several years prior to August 7, 1981, Respondent
published in the District of Columbia an evening news-
paper of general circulation (The Evening Star). During
the annual period prior to that date, similar to its oper-
ations in previous years, Respondent subscribed to inter-
state news services, published nationally syndicated fea-
tures, and had a gross annual volume of business exceed-
ing $200,000. The Evening Star ceased publication on
August 7, 1981. However, it was stipulated that Re-
spondent at the time of, the hearing continued to be an
employer engaged in commerce within the meaning of
the National Labor Relations Act, and I so find.
The answer to the complaint admits and I find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II SUMMARY OF FACTS AND ISSUES
For a number of years, Respondent recognized the
Union and several other labor organizations as the bar-
gaining representatives of various separate bargaining
units of Respondent's employees. As has been noted, Re-
spondent's bargaining contract with the Union, by its
. 1 Respondent's name as corrected at the hearing
2 The complaint alleges, and I find, that an appropnate unit for the
purpose of collective bargaining within the meaning of the Act consists
of Respondent's employees performing work in the composing room, as
set forth in Sec 7 of the bargaining agreement between Respondent and
the Union effective from January 1, 1979, to December 31, 1983, which
unit was described by William J Boarman, president of the Union, as
"the composing room unit which consists of operators at typesetting ma-
chines, makeup persons who would make up and assemble the newspa-
per, proofreaders, ad makeup people, and machinists who perform main-
tenance [on] the equipment which the [unit] employees operate"
273 NLRB No. 61
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms runs to December 31, 1983. Among the provisions
of that contract are clauses (considered in more detail
hereinafter) referred to :as "lifetime job guarantee" and
"successorship" clauses, which are significant to the
issues in this matter.
After the owners of Respondent, apparently in July
1981, decided to cease‘ publication of the Evening Star,
for reasons not disclosed on this record, the various
labor organizations involved, including the Union, were
notified, and Respondent met jointly, at first, with all
these Unions to answer questions and deal with problems
of common interest. Thereafter, Respondent met with
these Unions separately. During these separate meetings,
the Union advised that it would continue to assert the
continued viability of the lifetime job guarantee in its
bargaining agreement.
On August 7, as has been noted, Respondent ceased
publication of the Evening Star.
On September 2, The Post, publisher of the morning
newspaper in the District of Columbia (The Washington
Post) put out a news release to the effect that the owners
of The Evening Star had agreed to sell the plant former-
ly used by Respondent in the District and most of its
equipment to The Post. A lengthy news article to this
effect also appeared in The Washington Post. By letter
dated September 4, the Union requested that Respondent
furnish the Union with a copy of "the purchase and sale
agreement" between the Post and Respondent referred
to, though stating no specific reason for the request.
However, at a meeting with Respondent on September
30, the Union contends that it specifically informed Re-
spondent that it needed the sales agreement in order to
determine whether there had been a violation of the life-
time job guarantee and the successorship clauses of the
bargaining contract. Respondent denies this, and claims
that the failure of the Union to demonstrate that the in-
formation requested was reasonably necessary and rele-
vant to the administration of its bargaining contract with
the Union and the asserted confidential nature of the
document, relieves Respondent of any obligation to pro-
vide that information. It is further contended, as dis-
cussed, that certain alleged procedural errors at the hear-
ing prevented Respondent from fully attacking the credi-
bility of union representatives' testimony as to statements
assertedly made at the September 30 meeting.
During this same period, the Union, which apparently
had a bargaining agreement with the Post similar to that
with Respondent, was attempting to secure a copy of the
sales agreement from the Post. The Union also apparent-
ly filed an unfair labor practice charge against the Post
when that publisher refused to provide the Unioni with a
copy of the sales agreement, but seems to have with-
drawn the charge. 3 Respondent contends, quite vigor-
3 During the hearing there was considerable dispute as to whether the
filing of such a charge against the Post was relevant It was held that the
filing of a charge against the Post was not relevant to this proceeding
and I adhere to that view However, for the purpose of this decision I
have assumed that such a charge was filed The numbering of this case
indicates that a closely related charge was filed The president of the
Union testified that thobgh the Union is not currently pursuing anything -
against the Post it had done so at one time
ously (on the record Respondent stated that this "goes to
the essence of the case"), that the Union's real purpose in
seeking the sales agreement from Respondent was not to
administer its contract with the Respondent, but to at-
tempt to have the Post comply with the lifetime job
guarantee in the Post's bargaining agreement, and thus
the Union's request of Respondent had no relevance to
Respondent's bargaining agreement.
Respondent further contends that the sales agreement
contains "sensitive" and "confidential" material, and that
it had an understanding with the Post not to disclose the
document. In a somewhat related argument in its brief
(p. 14), Respondent asserts that the sales agreement re-
lates to Respondent's "business decision to terminate its
operations," and, arguing that Respondent would not be
required to bargain over its decision to close, "[Respond-
ent] does not have the attendant duty to disclose infor-
mation, such as the sale agreement, that is relevant only
to that decision." •
III. THE COLLECTIVE-BARGAINING AGREEMENT
The significant clauses in the bargaining contract
(G.C. Exh. 3) are contained in the Memorandum of
_ Agreement attached to and made a part of the contract.
These clauses, in relevant part, are the following (par-
ticular provisions have been italicized for emphasis):
(1) Job Guarantee
(a) Each employee whose name appears on the
list of employees to be known as the Job Guarantee
Roster will be entitled to the benefits set forth in
paragraph (b).
(b) The publisher agrees that all of its composing
room employees whose names appear on the Job
Guarantee Roster wil be guaranteed a regular full-
time situation . . . with the publisher in accordance
_ with the provisions of the latest Collective-Bargain-
ing Agreement for the remainder of their working
lives until they vacate same through retirement, res-
ignation, death, or discharge for cause; -provided,
however, in the event the Publisher permanently ceases
publication such guarantee will thereupon cease. . . .
(e) In the event the Publisher merges with any
other publisher or acquires or consolidates its business
in any manner or changes its operation in any manner,
such change of circumstances will in no manner ab-
rogate or alter this job Guarantee, and any successor
employer, publishing company, or enterprise will be
fully bound by the terms of this Job Guarantee as if
such change or successor enterprise had been an
original party thereto.
(g) The Job Guarantee will not be subject to
• amendment or revision in future collective-bargain-
ing negotiations.
WASHINGTON STAR CO. 393
IV. THE REQUESTS FOR INFORMATION,
A. The Written Request
By letter dated September 4, William J. Boarman,
president of the Union, wrote John Dawson, then direc-
tor of human resources of Respondent, as follows:
The recent news stories about the purchase of the
Washington Star Building and equipment by the
Washington Post has necessitated this letter.
This is an official request by this organization for a
copy of the purchase and sale agreement entered
into by the Washington Star Company or Time Inc.
and the Washington Post Company covering the
above-referred to transaction
Boarman received no written reply to this request.
B. The September 30 meeting
At a meeting on September 30 with Dawson to discuss
other matters, Boarman brought up his request for the
sales agreement and reaffirmed it. There is some conflict
among the witnesses as to what then occurred, as dis-
cussed in some detail below. •
Boarman testified that at this meeting "[Dawson] said
that if I could tell him what part of the document I was
interested in, he could perhaps get that for me. But if I
was asking him for the whole document, he thought the
answer would be 'no' . . I told John that I didn't know
what part of the document I wanted because I didn't
know what it contained. And that we would have to
have the whole document. . . . I explained to him about
the successorship clause in the contract and the lifetime
job guarantees which were part of great importance to
the Union and its members, and that we needed that pur-
chase and sale agreement to properly administer our con-
tract and see if there had in fact been a violation of those
clauS'es." Boarman asserts that after this explanation,
Dawson "just reiterated his position that if we could tell
him what portion it was [that we wanted] . . . perhaps
he could give it to us. But if it was the whole document,
he thought the answer would be 'no,' and that's where
we left it." 4
The secretary-treasurer of the Union, Robert Petersen,
who also attended this meeting, testified that Boarman
asked Dawson for a copy of the sales agreement "to as-
certain whether or not [Respondent] had violated at least
two provisions of our negotiated agreement, one dealing,
of course, with the successorship and one pertaining to
the lifetime job guarantee provision of the contract." Pe-
tersen recalled that Dawson said that "he didn't think"
he could secure a copy of the sales agreement, to which
the union representatives replied that "it was absolutely
essential that we have a copy of it to ascertain whether
4 At the hearing, Boarman testified that the sales agreement was neces-
sary so that the Union could determine whether a grievance should be
filed alleging that Respondent had violated the bargaining agreement He
also stated that the Union was not interested in the dollar amounts in-
volved, and that if the document merely showed a' sale of assets and
equipment, the Union would probably do nothing It is not indicated that
this was stated at the September 30 meeting however
or not a: violation' [of the collective-bargaining] had oc-
curred." According to Petersen, Dawson "then said
something to the effect that if we could be specific about
some provision of the agreement; and we said we
thought we were being specific, we had come to ascer-
tain 'if a violation had occurred in those provisions we
have indicated." Petersen's recollection is that Dawson
ended the discussion by saying that he would see what
he could do, but that Respondent never provided the
Union with the sales agreement.
Dawson, on the other hand, denies that "at any time
during this Meeting, the Union "ever provide[d] . . . a
reason for requesting" the sales agreement, testifying that
he does "not recall" Boarman raising the subject of the
suCcessorship clause with him during that meeting.
Dawson testified that when Boarman, at this meeting,
asked about the sales agreement, he (Dawson) told Boar-
man that "I thought that turning over the entire docu-
ment would be inappropriate, particularly since he had
not given me any reasons as to why he wanted the docu-
ment I further told him that if he could give me some
specific reasons as to why he wanted the document or
parts of the document that I would pursue his request:95
Dawson states that Boarman said he wanted the entire
document.
Though Dawson avers that he indicated to Boarman at
this meeting that some parts of the document might be
disclosed if the Union were more specific, he admits that
he did not indicate what parts he felt could not be dis-
closed. Further, in seeming contradiction to his testimo-
ny on direct examination, Dawson, on cross-examination
stated that he did not tell the Union that if they gave a
specific reason for their request, he would seek to obtain
the agreement for them, because, he says, at that time the
Union was seeking the entire document. Dawson says,
"[w]hile I never argued with the fact that there may be
specific provisions of that purchase and sale agreement
that might have relevance to the Union's interest, I had
to know what those were before I could take a request
to [Respondent's management] to find out whether we
could get it or not."
Finally, Zachery Fasman, one of Respondent's attor-
neys, who was present at the meeting on September 30,
recalls that Boarman asked if Respondent were going to
provide the Union with a copy of the sales agreement as
he had previously requested; that Dawson asked "why
he wanted it"; and that, though Fasman does not recall
the specific words used, Boarman replied that he wanted
to examine the document "an see if it was relevant to the
5 Dawson testified during the hearing that in the absence of "any spe-
cific reason or reference why the Union wanted [the document), I was
unable to go back to management [of Respondent] and give them some
coherent reason why it was necessary [to honor the Union's request]",
also that since parts of the sales agreement were "highly sensitive," It
could not be released "unless we had some reason for their request"
Later', however, Dawson admitted that he had cause to believe, and did
assume, that the Union's request was based on the successorship and life-
time job guarantee provisions in the bargaining agreement and, in fact, he
had discussed this with Respondent's management in connection with the
Union's request for the sales agreement
Finally, contrary to the testimony set forth in the text, Dawson also
testified that he did not ask Boarman 'at this meeting to specify the rea-
sons the Union wanted the sales agreement
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract between the [Union] and the [Respondent]. "but
he says Boarman Aid not specify the provision in the bar-
gaining agreement to which he had reference.6
From my observatiOn of the witnesses, the nature of
their testimony, and the record as a whole, I credit Boat-
man and Petersen as to what Boarman told Dawson at
the September 30 meeting. It is clear from Dawson's tes-
timony that it was fairly obvious that the Union's reason
for requesting the sales agreement was rooted in the life-
time job guarantee and successorship clauses of the bar-
gaining agreement, and it was reasonable to assume that
was the case. Indeed, he did so. If Dawson, in fact asked
Boarman for the reasons for his request, as both Dawson
(at one time) and Fasman testified, it is difficult to be-
lieve that Boarman would have failed to give these rea-
sons, which were so self-evident that Dawson says he in-
ferred them. I do not find persuasive Respondent's argu-
ment that Boarman was so preoccupied with securing
the document to' assist the' Union in bargaining with the
Post that he refused or failed to give reasons for seeking
the document from Respondent.
I was not favorably impressed with Dawson's testimo-
ny, which as I have noted herein, tended to be inconsist-
ent, and something less than candid, as when he insisted
that he was hindered in discussing with management the
Union's request for the sales agreement because he did
not know the reasons for the Union's request, though he
concedes that he had readily inferred those reasons; and
had discussed them with Respondent's management. I
have given consideration to 'the fact that at the time he
testified Lawson had not been employed by Respondent
for nearly a year. Perhaps his memory was not as clear
as it might have been. I have also considered Respond-
ent's argument that it was hindered in cross-examining
Boarman by procedural rulings These are discussed
hereinafter:
•
C. Respondent's Asserted Reasons for Refusing the
Union's Request
Dawson was the only witness to testify concerning
Respondent's reasons for refusing to give the Union the
sales agreement. However, it is clear that he did not par-
ticipate in that decision, 9 nor was he engaged in the ne-
gotiations between Respondent and the Post which led
to the sales agreement, which he did not see until after
he had left Respondent's employ. Thus, Dawson's testi-
mony on this point appears to be what he says Hoyt told
him were the reasons for not complying with the Union's
request.
Originally, Dawson says, Respondent did not give the
Union the sales agreement because, when the Union
made its request, the sales agreement had not actually
6 However, Fasman also testified that during this meeting the Union
never Offered a reason for requesting the document .
7 Though Dawson testified that Boarman never gave any reason for
seeking the sales agreement, it would appear from Fasman's testimony
that Boarman did say he wanted to enforce the bargaining agreement
Fasman, nevertheless, also asserts that Boarman gave no reason for his
request
8 Dawson. at one point, testified that the publisher of the Evening
Star, George Hoyt, made the decision to refuse the union request, after
consultation with Dawson Elsewhere: Dawson asserted that he did not
know Who actually made that decision
been signed but, as he recalls, the agreement was signed
before September 30. 9 He also avers that at the outset it
was Respondent's position that the document was not
relevant to the Union's interest, since Respondent consid-
ered it to be a sale of assets.
At another point, Dawson testified that the reasons for
Respondent's refusal were that the Union failed to give
specific reasons for requesting the document and, "addi-
tionally, the contents of that document, or at least parts
of that document were highly sensitive." When asked
what he meant by the term "sensitive," Dawson ex-
plained that (1) the document contained the sale price
and "the understandings and agreements" between the
parties (not otherwise detailed), and (2) that other negoti-
ations were going on simultaneous with Dawson's discus-
sions with Boarman concerning' the sale of an editorial
computer system and Respondent's fleet of trucks, and
"to permit the document ... to go public or where' the
people who were negotiating with the [Respondent] at'
the point in time would have been damaging to our in-
terests."" Dawson added that Respondent also "took
Into consideration" the wishes of the Post that the docu-
ment be kept confidential. Dawson says that . the Post
"felt it was to their disadvantage if the purchase price,
the conditions under which the transfer of assets was
made public."
On cross-examination, when asked what reasons he
was given by Hoyt for refusing the Union's request,
Dawson testified only that originally he was told that the
sales agreement was in draft form and had not been exe-
cuted, and later that there was an understanding between
the Post and Respondent "with respect to confidential-
ity," and that "there was a great deal of information in
that document that would be of no interest, value, to the
[Union]." .
Finally, testifying as to what he told the Union with
respect to Respondent's reasons for refusing the Union's
request, Dawson stated, "I believe we talked about it
generally I told [Boarman] there was some sensitive in-
formation in that document that I felt was inappropriate
to release . . . and that, as importantly, there was an un-
derstanding between [Respondent] and The Post that the
document would remain confidential."
To summarize, Respondent's asserted reasons for refus-
ing the Union's request for the sales agreement are the
following: First, the document had not been ,executed.
This, of course, was no longer true as of September 30,
when Respondent first answered the Union's request.
Second, the Union failed to give specific reasons for the
request. This also, was no longer true after September
30. Third, the Post did not want the agreement disclosed
9 Respondent's brief (p 5) says that the "formal agreement" was exe-
cuted September 25
is I find this reference to asserted ongoing negotiations with Respond-
ent vague and confusing At the hearing it was my impression that, at
this point, Dawson was referring to negotiations between Respondent
and the Post But, by September 30, the sales agreement between the
Post and Respondent was complete And, of course, "the people" who
Dawson says were negotiating with Respondent would not have been the
Post, since their management knew the terms of the sales agreement On
the face of it, I am inclined to think that this was a make-weight thrown
in by Dawson on the spur of the moment
WASHINGTON STAR CO 395
because it contained the sales pfice and the term i and
conditions of the transaction. These are terms which
Dawson characterized as "highly sensitive." However,
Respondent did not, so far as the record shows, indicate
any intention to discuss these matters in any constructive
detail." Fourth, disclosure would interfere With Re-
spondent's interests in certain unspecified negotiations
with some unidentified people, and lastly, Respondent
did not think that a great deal of the information in the
document would be of interest or value to the Union.
V THE ASSERTED PROCEDURAL ERRORS
Respondent complains that the rejection of Boarman's
affidavit, offered by Respondent, deprived Respondent of
its "right to impeach the credibility of Mr. Boarman's
hearing testimony" that he explained at the September 30
meeting that the Union sought the sales agreement ,!`to
assess the applicability of the successorship clause of the
collective bargaining agreement" (Br. 21.)
Respondent also complains that revocation of its sub-
poenas' to the Regional Director for Region 5 and to the
Union for information concerning the Union's dealings
with The Post, "severely handicap[ped] Respondent's
ability to present relevant evidence in 'defense against
[the complaint]" (Br. 11), asserting that "the subpoenae
were designed to secure information that would enable
[Respondent] to prove that the [Union], in fact, was at-
tempting to secure the agreement from [Respondent] for
use in bargaining with the Post."
1. The subpoenas. From the outset of the hearing, as
has been noted, Respondent insisted that the Union, in
seeking the sales agreement from, Respondent, desired to
use the document in administering its bargaining agree-
ment with The Post After much argument, it was ruled
that whether or not the sales agreement would assist the
Union in administering its contract with the Post was not
relevant , or material to the resolution of the issue in this
case, which is whether the document would assist the
union in administering its contract with Respondent.
Thus, if it is shown that the sales agreement would likely
assist the Union in determining whether its contract with
Respondent had been violated, it is of no consequence
that the information sought might be of use to the Union
for other legitimate purposes as well As the Board
stated in Associated General Contractors of California, 242
NLRB 891, 894 (1979).
[I]t is well established that, where a union's request
for information is for a proper and legitimate pur-
pose, it cannot make any difference that there may
be other reasons for the request or that the data
may be but to other uses. Utica Observer-Dispatch,
-Inc. v NL.R.B., 229 F 2d 575 (2d Cir. 1956).
" It appears that Dawson offered to "pursue" the Union's request if
they would tell him what parts of the agreement they wanted Boarman
replied that since he did not know what was in the document, he could
not tell what parts he wanted and, therefore, insisted on the entire docu-
ment As the Supreme Court once observed, Respondent was, in essence,
requiring the Union "to play a game of blind man's bluff" See NLRB v
Acme Industrial Co, 385 U S 432, 438 fn 8 (1967)
See also East Dayton Tool & Die Co., 239 NLRB 141, 142
fn: 6 (1978).
On the other hand, of course, if it were shown that the
Union's' request was relevant and necessary to the
Union's obligation to represent the unit employees, it
would also not make any difference whether the Union
may have had any other purpose in mind, for in such
case no obligation on Respondent's part would arise.
For these reasons, and others set forth in the orders
issued on the Motions to Revoke Subpoenas, the motions
to revoke were granted and both subpoenas were re-
voked.
2. The affidavit. Respondent contends that it was pre-
vented from placing in evidence Boarman's pretrial affi-
davit with attachments, which, it is asserted, contain
prior statements inconsistent with his testimony in this
proceeding. As was pointed out to 'counsel at the hearing
(Tr. 78, 86), the Federal Rules of Evidence (Rule 613(b))
provide that "Extrinsic evidence of a prior inconsistent
statement by a witness is not admissible unless the wit-
ness is given an opportunity to explain or deny the same
and the opposite party is afforded an opportunity to in-
terrogate him thereon." See also NLRB v. Tahoe Vangas,
517 F.2d 747 (9th Cir. 1975)
So far as I have been able to determine, Respondent
does not claim that there are any specific statements in
Boarman's affidavit which are inconsistent with his testi-
mony. Indeed, Respondent's counsel stated at the hearing
that he was "not concerned about the affidavit. What I
want to do is examine the witness about documents at-
tached [to the affidavit as] exhibits." (Tr. 78, see also Tr.
52.) These exhibits were identified at the hearing as cor-
respondence between the Union and The Post. From the
record I assume, and assumed in ruling on the offer of
the affidavit, that these exhibits would show, in some
detail, that Boarman sought to secure from the Post a
copy of the sales agreement between The Post and Re-
spondent in order to administer the Union's separate bar-
gaining agreement with the Post. Boarman testified to
this effect at the hearing.
In essence, Respondent argues, not that the affidavit
contains any statements which are inconsistent with
Boarman's testimony, but that the documents attached
thereto, if admitted, would show that the Union vigor-
ously sought to obtain the sales agreement from the Post
"for purposes having to do with the [Post]," which Re-
spondent asserts is inconsistent with' Boarman's testimony
that he sought, the sales agreement from Respondent for
purposes having to do with Respondent. (Tr. 85-86.)
On consideration of the above, and the record as a
whole, I reaffirm the ruling rejecting Boarman's affidavit
and attachments, on the basis that Respondent has not
shown a sufficient basis for their admission within Rule
613(b) set forth above, as interpreted in Vangas, supra.
Analysis and Conclusions
As stated by the Board in Westinghouse Electric Corp.,
239 NLRB . 106 at 107 (1978) (footnotes omitted):
It is well established that a labor organization, obli-
gated to represent employees in a: bargaining unit
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to their terms and conditions of em-
ployment, is entitled to such information. from the
employer as may be relevant , and reasonably neces-
sary to the proper execution of that obligation. The
right to such information exists not only for the
purpose of negotiating a contract, but also for the
purpose of administering a collective-bargaining
agreement. The employer's obligation, in either in-
stance, is predicated upon the need of the union for
such information in order to provide intelligent rep-
resentation of the employees. The test of the union's
need for such information is simply a showing of
probability that the desired information was rele-
vant, and that it would be of use to the union in
carrying out its statutory duties and responsibilities.
The union need not demonstrate that the informa-
tion sought is certainly relevant or clearly disposi-
tive of the basic negotiating or arbitration issues be-
tween the parties. The fact that the information is of
probable or potential relevance is sufficient to give
rise to an obligation on the part - of the employer to
provide it. The appropriate standard in determining
the potential relevance of information -sought in aid
of the bargaining agent's responsibility is a liberal
discovery-type standard.
See also Boeing Co., 182 NLRB 421 (1970), and cases
cited in both decisions.
Respondent does not dispute these principles, but
argues that in the circumstances of this case, the Union's
request for information was not sufficiently specific to
raise an obligation on Respondent's part to provide the
information sought. This is based on its contention that
the Union failed, or refused, to tell Respondent the pur-
pose for which the Union needed the information, that is;
that the Union needed the information in order to intelli-
gently enforce its bargaining agreement, or specific por-
tions of that agreement. It is not necessary here to con-
sider whether, in the situation here presented, such speci-
ficity was required. The facts show that -Respondent
could reasonably conclude from the facts at its disposal
that the Union wanted the information sought in order to
administer the "life-time job guarantee" and the "succes-
sorship" provisions in the current bargaining agreement
and, indeed, that Respondent, in fact, did assume that
was the Union's purpose The Board has on several occa-
sions held that such constructive notice is sufficient, -in
these circumstances, to raise an obligation on a 'respond-
ent to provide the relevant information sought, see, e.g.,
Brazos Electric Power Cooperative, 241 NLRB 1016, 1018-
19 (1979); Westwood Import Co., 251 NLRB 1213 (1980),
as is the notice of the Union's purposes which Respond-
ent received at the hearing. See Brazos, supra.. In any
event, as has been found, contrary to Respondent's posi-
tion, the Union, in fact, did advise Respondent of its pur-
poses in requesting the information sought.
Nevertheless, Respondent argues that the sales-pur-
chase agreement between Respondent and The Post
sought by the Union is not relevant to the Union's en-
forcement of the contract clauses set forth. Respondent
initially asserts that the sales agreement merely involves
liquidation of Respondent's assets pursuant to its decision
to terminate Respondent's operations, and has no bearing
on the wages, hours, or working conditions of employees
in the bargaining unit who -were displaced when Re-
spondent , ceased publication. Respondent . argues that
since it had no obligation,to bargain with the Union con-
cerning the decision to go out of business, it had no obli-
gation to furnish the sales agreement which, it argues, "is
relevant only to that dectston." 2 A major difficulty with
this argument and several like arguments asserted by Re-
spondent is that it assumes a fact that may be critical to
the proceeding, i.e., whether the sales agreement is solely
a sale of assets or may be, in whole or in part, a transac-
tion within the successorship provision of the bargaining
agreement. The Union says that if the sales agreement in-
volves merely a transfer of assets, it probably will not
pursue the matter. Respondent has so far refused to dis-
close the agreement or any part of it. Thus, in absence of
disclosure, the document appears to have a potential rel-
evance to the enforcement of the bargaining agreement
and is, therefore, relevant to the working conditions of
the employees whose rights were established by that
agreement. As the Board stated in Westinghouse, supra, it
is not necessary to find here that "the information sought
is certainly relevant or clearly dispositive of the basic
issues between the parties," "Nile fact that the in-..
formation is of probable or potential relevance is suffu-
cent.",
The Board has on a number of occasions _held that
where the union bargaining representative has received
information that the employer may be subcontracting
unit work or has or may be transferring its business to
another, the union is entitled, on appropriate request, to
information bearing on that issue, so that the union may
properly represent - the unit employees. See, e.g.,
Westwood, supra; Air Express International Corp., 245
NLRB 478 . (1979). Respondent, however, asserts that
those cases involved transfer of "going concerns" (Br.
15-16), which, it is 'argued, distinguishes those cases from
the present matter. However, as Respondent has noted,
each of these cases must be determined on its Own cir-
cumstances (Br. 11). Here, the bargaining agreement pro-
vides that in the case Respondent merges with another,
or is acquired, "or consolidates its business . . . or
changes its operation in any manner," the resulting- pub-
lisher shall be bound by the lifetime job guarantee in the
bargaining agreement. Two facts- are self-evident, unit
employers who were guaranteed lifetime jobs by the bar-
gaining agreement have been dismissed from their em-
ployment by Respondent and, as part of the circum-
stances involved, Respondent has transferred the build-
ing in which these employees were employed - and appar-
ently a major part 'of its equipment to another publisher
by terms of a written document which Respondent re-
fuses to disclose. In the circumstances there is not only a
probability that the sales agreement would be useful to
the Union in deciding whether to file a grievance on
behalf of the unit employees or take other action against
Respondent for failing to comply with the bargaining
12 Respondent cites C Elton Johnson, 262 NLRB No 9 [rescinded by
Order dated June 11, 1982] which I find inapplicable to the situation in
this case
WASHINGTON STAR CO 397
agreement, , but the,document is probably essential to that
purpose."
Respondent's reasons for refusing to disclose the
agreement, considered at some length hereinabove, seems
to boil down to one point, that Respondent and The Post
did not want to disclose the sales prices and "the under-
standings and agreements" between the parties In other
words, Respondent says that the sales agreement was
"confidential" and need not be disclosed, citing Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979). In that case,
the employer refused to disclose to the union directly cer-
tain psychological test material used to determine wheth-
er union-represented employees should be promoted, but
agreed to disclose the material to a certified psychologist
chosen by the union there involved. The employer also
refused to give the- union test scores of employees who
took the tests, unless the employees specifically agreed to
waive their right to confidentiality of this material The
Board held that in both 'situations the material should be
disclosed directly to the union, subject only to a protec-
tive order restricting disclosure of the material by the
union.
The Supreme Court, first of all, found that the reason-
ableness of the employer's concern for secrecy was not
in question, a point not at all evident here." Because of
the procedural posture in which the case was presented,
the Supreme Court held, as to the psychological test ma-
terial, only that the Board's remedy in ordering the test
material be given directly to the union, rather than to a
certified psychologist, was in error. In respect to the test
scores, the Court stated that the employer's conditional
offer to disclose the test scores was warranted and rea-
sonable in the circumstances.
What is most evident in Detroit Edison, however, is the
fact that at no time did the employer there claim the
nght to absolutely refuse to provide the information or
documents required by the union in the performance of
its duty to represent the employees, but in all situations
offered the union reasonable means of securing the nec-
essary information. See Air Express International Corp,
supra. Here Respondent, though admitting that at least
parts of the sales document were relevant to the Union's
interest, insisted on a unilateral privilege to withhold the
entire document. Nor may Respondent's obligation to
provide the sales agreement be defeated by a private
agreement between Respondent and The Post, as Re-
spondent claims. See General Electric Co. v. NLRB, 466
F.2d 1177 (6th Cir. 1972); cf. Detroit Edison, supra, at
348 (indicating that staturory duties cannot be defeated
by the standards of a private group).
" Respondent also points out that the bargaining agreement provides
that its obligation to provide lifetime jobs under the bargaining agreement
ceased when Respondent ceased publication However, this is a matter of
contract interpretation, in light of all the facts, to be made by the arbitra-
tor, if a grievance is filed It is not my function to pass on the merits of
the contract dispute
14 One may have some appreciation for Respondent's desire to keep
secret the sales prices involved, but there is little to support a finding of
need for such secrecy In any event, Respondent did not identify this as a
concern to the Union during their discussions At the hearing, the Union
made clear that it was not interested in the sales prices Respondent con-
tinues to refuse to disclose the material requested
On the basis of the above, and the entire record, I find
that by failing and refusing to provide the Union with
the sales agreement between Respondent and The Post,
Respondent violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The unit set forth in footnote 1 above is appropriate
for collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material to this proceeding the Union
has been the exclusive representative of the employees in
the appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5; Respondent has violated and continues to violate
Section 8(a)(5) and (1) of the Act by failing and refusing
to grant the Union's demand for a copy of the sales
agreement Respondent and The Washington Post Com-
pany entered into between September 2 and September
30, 1981, which is relevant and necessary to the Union's
obligation to ,administer and enforce its collective-bar-
gaining agreement *with Respondent
6. The aforesaid unfair labor practices affect commerce
within , the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has violated and
continues to violate the Act by failing and refusing to
grant the Union's demand for a copy of the sales agree-
ment between Respondent and The Washington Post
Company entered into in September 1981, it will be rec-
ommended that Respondent cease and desist therefrom
and supply the Union, on request, with that document,
provided, however, that Respondent may first delete
therefrom the sales prices contained therein. The Union
may see, study, and use the information provided to the
extent required to protect the rights of the unit employ-
ees under the collective-bargaining agreement with Re-
spondent, but shall not otherwise disclose the sales agree-
ment to the employees or others.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edi5
ORDER
The Respondent, The Washington Star Company,
Washington, D.C., its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Columbia Ty-
pographical Union No. 101 by refusing to furnish the
Union with a copy of the sales-purchase agreement be-
15 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
398 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
tween Respondent and The Washington Post Company
entered into during September 1981, or other information
relevant and reasonably necessary to the Union's duty to
administer and enforce the collective-bargaining agree-
ment between the Union and Respondent
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act.
(a) Furnish to the Union, on request, a copy of the
sales-purchase agreement between Respondent and The
Washington Post Company, entered into in September
1981, in accordance with the provisions of the section
entitled "The Remedy."
(b) Mail to each employee in the 'appropriate unit cov-
ered by Respondent's :collective-bargaining agreement
with the Union during August 1981,. at the employee's
home address, a copy of the attached nOtice Marked
"Appendix."" Copies of said notice, on 'forms provided
by the Regional Director fcir Region 5, ,after being
signed by Respondent's authorized representative, shall
be immediately mailed to the employees designated
above. Five additional signed copies shall be provided to
the Union for posting at its 'offices and meeting places,
it desires.
„
16 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps 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
WE WILL NOT refuse to bargain collectively with the
Union by refusing to furnish the Union with the sales-
purchase agreement.
WE \vat_ NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guranteed by Section 7 of the Act. .
WE WILL, on request, furnish to Columbia Typo-
graphical Union No. 101 a copy of the sales-purchase
agreement entered into between The Washington Star
Company and The Washington Post Company during
September 1981, in order to assist the Union in protect-
ing the rights of employees in the composing room co y
-ered by the Union's bargaining agreement with The
Washington Star Company
THE WASHINGTON STAR COMPANY
-;