04/14/2025: Employer Ordered to Respond to Information Request Even After CBA Reached
A confidential employee was excluded under the Pullman test.
Nexstar Media Group, Inc. Dba WPIX, JD-32-25, 02-CA-298558 (ALJ Decision)
This case involves Nexstar Media Group, operating as WPIX, a television station in New York, and the NewsGuild of New York labor union. The Administrative Law Judge (ALJ) ruled that Nexstar violated Sections 8(a)(1) and (5) of the National Labor Relations Act by refusing to provide information requested by the union during contract negotiations.
The union had represented WPIX employees since 1972. After multiple ownership changes, Nexstar began operating WPIX under a time brokerage agreement with Mission Broadcast Company. The parties were negotiating a successor agreement to their expired collective bargaining agreement, with wages being a significant issue as employees had not received general wage increases for over four years.
During negotiations in March-May 2022, WPIX representatives, including General Manager Chris McDonnell, made numerous statements about the station's financial challenges. McDonnell claimed WPIX had lost 40% of revenue from 2019 to March 2020 due to the pandemic, lost an additional 12% of revenue when the Yankees canceled their broadcast contract in November 2021, and faced ongoing financial constraints. McDonnell specifically stated that the company's proposed 2% wage increase was "as much as humanly possible" and that he wished he "had a blank checkbook" but didn't.
Following these discussions, on May 27, 2022, the union requested financial information including:
WPIX's revenues for 2018-2021, broken down monthly
Year-to-date revenues for 2022
A complete list of current advertisers with contact information
A list of advertisers lost since 2018 with contact information
WPIX advertising prices since 2018
WPIX's budget for the current, previous, and next year
WPIX refused to provide this information, claiming it never stated an "inability to pay" and that the information was confidential. Despite this dispute, the parties continued negotiations and eventually reached a collective bargaining agreement in October 2022, which was finalized in March 2023.
The ALJ concluded that WPIX had effectively claimed an inability to pay during negotiations, particularly when McDonnell stated that the 2% wage increase was "as much as humanly possible." This triggered the company's obligation to provide the requested financial information to allow the union to evaluate these claims. The ALJ rejected WPIX's confidentiality concerns, noting the company never attempted to negotiate a confidentiality agreement despite the union's willingness to do so.
The ALJ also rejected WPIX's argument that the dispute was resolved when the parties signed their new collective bargaining agreement, finding that the parties had explicitly excluded resolution of this unfair labor practice charge from their agreement.
As a remedy, the ALJ ordered WPIX to provide the requested information, finding that the union still had an ongoing need for it despite the executed agreement, particularly for future negotiations.
Significant Cases Cited
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956): Established that employers must provide information necessary for unions to perform their collective bargaining duties.
Nielsen Lithographing Co., 305 NLRB 697 (1991): Determined that employers claiming inability to pay must "open their books" and provide detailed financial information.
Caldwell Mfg. Co., 346 NLRB 1159 (2006): Established a "broad, discovery-type standard" for determining relevance of requested information.
Boeing Co., 364 NLRB 158 (2016): Articulated standards for determining when an employer need not produce unlawfully withheld information due to intervening events.
Borgess Medical Center, 342 NLRB 1105 (2004): Held that employers need not produce unlawfully withheld information when the union has no present or continuing need for it.
North Carolina Association of Educators, 10-RC-361131 (Regional Election Decision)
The North Carolina Staff Organization ("Petitioner") filed a petition on February 28, 2025, seeking an Armour-Globe self-determination election to add the position of Confidential Legal Assistant to an existing bargaining unit of professional and associate employees at North Carolina Association of Educators ("Employer"). The Employer argued that the position, held by Amy Miller, should be excluded as a confidential employee. A hearing was held on March 18, 2025, at the NLRB Region 10, Subregion 11 office in Winston-Salem, North Carolina.
Employer Operations
The Employer is a labor organization representing teachers and educational professionals in North Carolina, employing 53 people. The organization's Advocacy Center consists of two attorneys (Interim Lead Counsel April Adeeyo and Staff Attorney Elisabeth Jones), Confidential Legal Assistant Amy Miller, and two UniServ Directors. The department handles corporate counsel matters, human resource and labor relations, and member advising.
Confidential Legal Assistant Position
Miller was hired in August 2023. Her primary duties included creating case files from member requests and submitting summaries to attorneys. Additionally, Miller:
Took notes during collective bargaining negotiations on at least two occasions
Participated in weekly department meetings where labor relations matters were discussed after UniServ Directors were excused
Had access to Adeeyo's email account (until September/October 2024), calendar, and SharePoint drive
Occasionally performed research, sent emails on Adeeyo's behalf, and reviewed documents drafted by Adeeyo
Legal Analysis
The Acting Regional Director applied both the labor-nexus test and the Pullman test to determine confidential status. The labor-nexus test examines whether an employee assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management policies in labor relations. The Pullman test examines whether an employee regularly has access to confidential information concerning anticipated changes from collective bargaining negotiations.
The Acting Regional Director found that Lead Counsel is a managerial employee who formulates, determines, and effectuates management policies based on her role in bargaining, advising on personnel matters, preparing responses to employment litigation, and drafting employment policies.
While Miller directly reports to Lead Counsel, the evidence regarding her assistance in employee relations matters (proofreading, emailing, copying, and note-taking) was insufficient to establish confidential status under the labor-nexus test, as mere typing of confidential material or access to such material does not render an employee confidential.
However, under the Pullman test, the Acting Regional Director found that Miller's regular attendance in weekly meetings where bargaining strategies and undisclosed proposals were discussed was sufficient to establish confidential status. This access to labor strategy could "potentially give the Union an unfair advantage during future negotiations."
Decision
The Acting Regional Director concluded that the Confidential Legal Assistant is a confidential employee and should remain excluded from the existing bargaining unit. The petition was dismissed.
Significant Cases Cited
B.F. Goodrich Co., 115 NLRB 722 (1956): Established the labor-nexus test for determining confidential employee status.
Pullman Standard Division of Pullman, Inc., 214 NLRB 762 (1974): Established alternative test for confidential status based on regular access to confidential labor relations information.
Bakersfield Californian, 316 NLRB 1211 (1995): Held that access to labor strategy notes was sufficient to establish confidential status under Pullman.
Greyhound Lines, Inc., 257 NLRB 477 (1981): Established that mere typing of confidential labor relations material does not render an employee confidential.
American Radiator & Standard Sanitary Corp., 119 NLRB 1715 (1958): Held that employees who may prospectively gain confidential status but do not qualify at the time of determination are not confidential employees.