News

🗞️ Washington Post Case: Union Waiver of Statutory Information Rights

An NLRB Administrative Law Judge dismissed a complaint against WAPO, ruling that a 1989 settlement agreement and subsequent bargaining history established a "clear and unmistakable waiver" by the Washington-Baltimore News Guild of its right to name-linked salary information for employees.

onthelaborfront

07 Jan 2026 — 4 min read

In January 2026, Administrative Law Judge Michael A. Rosas issued a decision addressing a fundamental tension in labor relations: when can a union waive its statutory right to information that would otherwise be presumptively relevant for collective bargaining? The case involved The Washington Post's refusal to provide the Washington-Baltimore News Guild with name-linked salary information—data showing which specific employees earn particular salaries—during 2022 contract negotiations.

Under Section 8(a)(5) of the National Labor Relations Act, employers must provide unions with information that is "presumptively relevant" to collective bargaining, particularly data concerning wages, hours, and working conditions of bargaining unit employees. The NLRB has consistently held that salary information meets this standard. However, employers can avoid this obligation by demonstrating a valid waiver of the union's information rights.

The case's core facts trace back to 1989, when the parties settled earlier litigation over information requests. That settlement required The Washington Post to provide comprehensive salary data—including demographics, job classifications, and salary histories—but explicitly structured it as "non-name-linked" information. The employer would provide a separate list of employee names, but not connected to individual salary figures. This arrangement was memorialized in a settlement agreement stating it would continue "in full force and effect unless or until it is modified or terminated in writing by mutual agreement."

In 2005, the parties entered a side letter confirming the Post would continue providing this non-name-linked data electronically and more frequently than originally required. Critically, the 2005 side letter stated: "Nothing in this letter shall be deemed to modify or amend the 1989 Settlement Agreement." This language has been incorporated into every subsequent collective bargaining agreement through 2026.

The union's 2022 information request sought name-linked salary data to conduct pay equity analyses, particularly after the Post repeatedly challenged the union's previous analyses as inadequately detailed. Notably, the Post had been providing name-linked data for other purposes—including healthcare benefits, bonuses, leave accruals, and demographic information—but refused to link employee names to salary figures. The Post refused the salary linkage, citing the 1989 settlement.

The General Counsel argued that the settlement couldn't constitute evidence of waiver because it contained a "nonadmission" clause stating the agreement should not "be deemed evidence of, or an admission with respect to, any issue of law or fact."

Judge Rosas agreed the nonadmission clause precluded using the settlement itself as direct evidence of waiver. However, he found that other factors established a clear and unmistakable waiver: (1) the settlement's ongoing obligation to provide only non-name-linked salary data remained in effect as an independent agreement never incorporated into collective bargaining contracts; (2) the union proposed name-linked salary data provisions during negotiations in 2005, 2014, and 2022 but failed to secure them in any contract; and (3) for 33 years, the union consistently requested and accepted only non-name-linked salary data, establishing a past practice demonstrating conscious acquiescence to the limitation.

The decision applies the "clear and unmistakable waiver" standard established by the Supreme Court in Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), which requires that bargaining partners "unequivocally and specifically express their mutual intention to permit unilateral employer action with respect to a particular employment term." The standard examines precise contract wording, bargaining history showing issues were "fully discussed and consciously explored," and past practices demonstrating the union "consciously yielded" its position. The ALJ cited numerous Board precedents applying this standard to information requests, including E.I. DuPont DeNemours & Co., 368 NLRB No. 48 (2019), and Omaha World-Herald, 357 NLRB 1870 (2012).

This case illustrates how settlement agreements addressing information disclosure can create binding, long-term limitations on statutory rights when combined with consistent bargaining history and established practices. The decision has significant implications for unions negotiating information-sharing protocols, as voluntary agreements to accept limited data formats—even when addressing presumptively relevant information—may establish enforceable waivers that persist across multiple bargaining cycles.

The dismissal stands despite the union's argument that name-linked data would enable more accurate pay equity studies. The ALJ concluded that waiver analysis focused on the parties' established contractual relationship and demonstrated course of conduct rather than evolving informational needs or the quality of data required for effective representation. The decision emphasized that while the union might have legitimate uses for name-linked data, it had knowingly and repeatedly agreed to accept limitations on that information through decades of bargaining and practice.

Key Points

Presumptively relevant information can be waived: While salary data for bargaining unit employees is ordinarily presumptively relevant and must be provided on request, unions can waive this statutory right through settlement agreements and established practices
Clear and unmistakable standard requires specific evidence: The ALJ applied Supreme Court precedent requiring that parties "fully discussed and consciously explored" the matter and the union "consciously yielded" its position through contract language, bargaining history, and past practice
Multiple factors demonstrated waiver: The decision relied on three complementary factors: (1) ongoing settlement agreement obligations, (2) repeated unsuccessful bargaining proposals for name-linked data in 2005, 2014, and 2022, and (3) 33 years of consistent past practice accepting non-name-linked data
Settlement agreements can survive contract expiration: The 1989 settlement remained enforceable because it was never incorporated into collective bargaining agreements and contained its own durational clause requiring mutual written agreement to modify or terminate
Nonadmission clauses have limits: While the settlement's nonadmission provision prevented the agreement itself from being used as direct evidence of waiver, it didn't prevent consideration of the parties' bargaining history and conduct under the agreement
Side letters preserved the limitations: The 2005 side letter providing electronic format and increased frequency explicitly stated it did not modify the underlying settlement, reinforcing rather than superseding the original information restrictions
Bargaining history matters significantly: The union's repeated proposals for name-linked salary data in three separate bargaining cycles—each unsuccessful—demonstrated conscious awareness of the limitation and voluntary acceptance of agreements without the desired provision
Partial name-linked data insufficient to negate waiver: The Post provided name-linked data for healthcare benefits, bonuses, and leave accruals, but the ALJ found this did not undermine the specific waiver regarding name-linked salary information established through the settlement and bargaining history
Pay equity concerns insufficient alone: The union's need for name-linked salary data to conduct detailed pay equity analyses, while potentially valid, could not override the established waiver based on decades of bargaining history and consistent practice