Petition for review and cross-application for enforcement of an order of the National Labor Relations Board finding that the conduct of the petitioner unions constituted a clear and present danger to the bargaining process, thus justifying the employer's refusal to bargain. Petition for review denied; application for enforcement granted.
Van Graafeiland, Circuit Judge, Mehrtens*fn* and Pierce,*fn** District Judges.
The International Brotherhood of Electrical Workers, AFL-CIO, and seven of its Local Unions ("IBEW") seek review of an order of the National Labor Relations Board ("NLRB") dismissing a complaint filed against Intervenor CBS, Inc., by the NLRB's General Counsel upon a refusal-to-bargain charge brought by the Unions. The NLRB has cross-petitioned for enforcement. The question is whether, in the circumstances presented, the NLRB correctly determined that the presence on IBEW's bargaining panel of an official of another labor organization, which represented no employee of CBS, but which did represent employees of ABC and NBC, constituted a "clear and present danger" to the bargaining process wherein CBS had intended to reveal to IBEW confidential trade secrets relating to its proposals. We hold that there is substantial evidence to support the findings of the NLRB, and that CBS' refusal to bargain did not violate Sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 151, et seq.
CBS and IBEW have been parties to collective bargaining agreements since 1938. While it is the 1975 bargaining sessions which are at issue here, the NLRB found that the 1972 negotiations were of some relevance to the present controversy. During that year CBS began revealing to IBEW in confidence certain strategic corporate plans concerning technological innovations, particularly in the area of television news coverage. It was anticipated that these plans would allow CBS to cover news more promptly than it had in the past, and, it was hoped, would afford CBS a competitive advantage over its rivals in the broadcast news industry, ABC and NBC. CBS revealed these plans to IBEW in justification of its proposals for more flexible work schedules and other modifications in the contract which would allow CBS to take advantage of its new systems.
The Board found that as a result of the 1972 negotiations, IBEW did make certain concessions to enable CBS to implement the new plans; the Board further found that these plans did in fact allow CBS to gain a competitive advantage over its competitors. For example, the Board found, CBS gained one year of "lead time" over NBC and ABC in the use of a cableless microwave television camera, a highly useful instrument in the live broadcast of breaking news events.
In the 1975 negotiations, CBS intended to disclose to IBEW still additional technological innovations in support of its bargaining proposals. The Board found that CBS planned to reveal to IBEW plans for certain electronic input devices which could be operated by non-technician artists, and that CBS intended to seek exceptions to IBEW's jurisdiction over such electronic work. CBS also planned to reveal to IBEW a second generation electronic news camera, the "Microcam", apparently a significant advance over the cableless microwave camera. CBS intended to disclose to IBEW the details of the Microcam in support of its proposals that it be permitted to hire free-lance technicians under certain circumstances, and that it be afforded greater flexibility in establishing work schedules.
There is no dispute that this information was confidential and that the plans in question would have given CBS a further competitive advantage. At the hearing before Administrative Law Judge Martin Bennett, IBEW stipulated
"that during the course of the negotiations the Company intended to present information as to new equipment, and processes that come within the category of trade secrets and confidential business plans which would give the Company a competitive advantage over other broadcasters." (App. 255.)
The 1975 negotiations began on July 14, 1975, and bargaining initially proceeded without incident. However, no confidential information was disclosed during the first two sessions, and only IBEW's members were present on the Union panel. Upon resumption of negotiations in September, 1975, IBEW introduced as members of its panel two representatives of the International Alliance of Theatrical and Stage Employees ("IATSE"). This was the first time in thirty-five years that IBEW had designated representatives of other unions as members of its bargaining panel. CBS lodged an objection to IATSE's presence, but it consented to continue negotiations, particularly since CBS did have contractual relations with IATSE.
Four days later, IBEW introduced as a member of its panel a representative of the National Association of Broadcast Engineers and Technicians, AFL-CIO ("NABET"). At that time NABET had no collective bargaining agreements with CBS and it represented no CBS employees. However, NABET did represent employees of CBS' arch-rivals, ABC and NBC. Asserting that it could not disclose its confidential business plans under such conditions, CBS objected to NABET's presence and refused to bargain.
The parties then attempted to resolve the matter without recourse to the NLRB. The Union proposed that they bargain only concerning non-confidential matters, but CBS rejected this, and the Board in its decision below upheld that refusal on the ground that meaningful bargaining necessarily involves give and take on all issues between the parties. CBS invited IBEW to draw up some form of specific confidentiality pledge which would insure that NABET would not leak confidential information to CBS' competitors. IBEW did not develop such a proposal.
During September 1975, the Union and CBS did discuss confidential matters outside the presence of the NABET representative. However, IBEW continued to insist upon NABET's presence during all negotiations regarding modifications in the 1972 agreement. On September 30, 1975, the parties agreed to an extension of the 1972 bargaining agreement until February 29, 1976. When negotiations resumed in January 1976, no NABET representative was present. As ...