By Marjorie Johnson, J.D.
During negotiations concerning a successor collective-bargaining agreement, a broadcast television station unlawfully failed to respond to a union’s request for information regarding its market share ratings and indicia of viewership to help it evaluate the company’s claims that it needed more flexibility to remain competitive in the modern Internet age, ruled a three-member panel of the NLRB. However, the employer wasn’t required to hand over its general financial information since it hadn’t made an “inability to pay” claim. Rather than suggesting “immediate financial vulnerability,” the employer’s representative spoke in terms of “ongoing, long-term changes in the industry,” stated that it was not claiming financial hardship, and even mentioned the possibility of wage increases (Tegna, Inc. dba KGW-TV, January 17, 2019).
Company pushes for “flexibility.” During a meeting between the television station and the union to negotiate a successor CBA, the employer’s lead negotiator gave a lengthy presentation on the changing nature of the broadcast industry, the company’s need to stay relevant to consumers, and its desire to remain competitive for advertising dollars. He made several comparisons between broadcast television and the declining newspaper industry and spoke extensively about how consumers—particularly millennials—were getting their news from other media sources, such as Google, Facebook, and Hulu.
Union alarmed. His presentation was meant to provide context for the employer’s bargaining proposals, which were purportedly designed to give it the flexibility to meet this changing environment. Its proposals would, among other things, remove restrictions on subcontracting, minimums for overtime pay, and the union’s exclusive jurisdiction. The employer representative stated that it needed to be able to assign the union’s bargaining-unit work to “anyone . . . regardless of their union designation,” which the union found particularly concerning.
Seeks extensive information. The union made a lengthy information request to gain greater insight into the employer’s proposals and to help clarify its unsubstantiated claims about the competitive challenges facing the company. In response, the employer generally stated that information about its market share and ratings, revenue, and expenses was confidential. With respect to information about its competitors and advertising, it provided a 36-page article about new media competition and three studies about the media consumption habits of millennials. Regarding requests about its particular proposals (such as its plans to assign bargaining-unit work to non-unit employees, to subcontract work, or to sell or otherwise restructure itself) it provided limited information and claimed it did not possess responsive documents.
Union entitled to market share info. The Board partially adopted the administrative law judge’s finding that the employer unlawfully failed to respond to the union’s requests for information regarding its market share, general revenue, general expenses, competition from other media outlets or changes in advertising revenue, and additional competitor and advertiser information. Notably, the ALJ appeared to have found that the employer based its bargaining proposals on claims that it would neither be able to compete in the market nor remain financially viable without certain concessions from the union. The Board agreed that the employer negotiator’s statements established an “inability to compete” claim since he repeatedly justified his proposals by citing a need for flexibility in order to provide more content for the “millennial” generation in light of increasing competition from other media sources. Thus, the union was entitled to the requested information regarding its market share, ratings, and indicia of viewership to help it evaluate the company’s claims.
Advertising pricing and financial information not relevant. However, the union’s requests that focused on the specific details of the employer’s advertising pricing structure and clients was not relevant to the union’s performance of its duties as bargaining representative since it would not help the union evaluate the employer’s claimed “inability to compete.” Notably, the employer never stated that it had experienced any particular increase or decrease in its advertising revenue in recent years. This information, moreover, would not provide the union with any guidance as to how the employer’s proposals would affect its ability to compete in the modern Internet age.
No “inability to pay” claim. Moreover, the union’s request for general financial information (such as its general revenue and operating expenses) could only be justified if the employer had made an “inability to pay” claim. Disagreeing with the ALJ’s apparent finding that it had done so, the Board found that the company negotiator’s statements did not paint a picture of “immediate financial vulnerability.” Rather, he spoke in terms of “ongoing, long-term changes in the industry” and explicitly stated that the employer was not claiming financial hardship and even mentioned the possibility of wage increases.
Assignment to non-unit employees. The Board also found that the union’s requests for information about the employer’s potential plans to assign bargaining unit work to non-unit employees was relevant but determined that it had sufficiently responded when it indicated during the negotiations that there was no responsive information. The Board declined to allow its renewed request to “reset the clock” since it didn’t appear to have any information that would reasonably suggest that the employer’s plans had changed or that it would now have responsive information. Moreover, the union was not entitled to detailed information concerning three temporary employees who the employer had briefly identified as performing non-bargaining unit work since it failed to explain how such information would help it evaluate the potential effects of the employer’s proposals on unit members.
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