Richmond Times-Dispatch

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346 NLRB No. 11 74 Media General Operations, Inc., d/b/a Richmond Times-Dispatch and Richmond Newspapers Pro- fessional Association. Cases 5–CA–29157, 5– CA–29902, and 5–CA–29914 December 16, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On June 4, 2002, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The General Counsel, the Union, and the Respondent each filed ex- ceptions and supporting briefs. The Respondent and the Union filed answering briefs, and the Respondent and the General Counsel filed reply briefs. Also, the General Counsel filed supplemental exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel and the Respondent filed reply briefs. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings, and conclusions only to the extent consistent with this Decision.1 We agree with the judge’s conclusion that the Respon- dent violated Section 8(a)(5) by failing to negotiate over a change regarding paying union negotiators for time spent in bargaining sessions. Likewise, we agree with the judge’s conclusion that the Respondent did not uni- laterally change its past practice in refusing to pay a unit employee for time spent conducting official collective- bargaining functions during an arbitration.2 We also 1 In light of our reversal of the judge’s finding that the allegation re- garding the e-mail policy is time barred, we deny the General Counsel’s special appeal to revoke the protective order entered by the administra- tive law judge governing the production and exchange of specific sub- poenaed documents relevant to this issue. We note there has been no showing of prejudice from the entry of the protective order. Also, the Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. Member Liebman dissented from an earlier Order in which the Board declined to rule on the General Counsel’s special appeal seeking to revoke the protective order. See Richmond Times-Dispatch, Case 5– CA–29157, et al., (2002) (not published in Board volumes). In her view, the protective order should have been revoked, because the Re- spondent failed to demonstrate that the requested documents were confidential or to establish other good cause for the imposition of the order. For the same reason, Member Liebman would now grant the General Counsel’s special appeal and revoke the protective order. 2 As found by the judge, the arbitration at issue was the first between the parties since at least 1969, thus, there was no established practice of paying the Union’s representatives at arbitration proceedings. By its very terms, a finding of a binding past practice at least requires evi- dence that the practice has a regular, longstanding history, so that em- ployees may reasonably expect it to continue. In this case, no such evidence exists. Thus, we agree with the judge that the Respondent did agree with the judge’s conclusion that the Respondent did not violate the Act by unilaterally terminating the holiday bonus or by refusing to provide financial data requested by the Union, as discussed in Richmond Times- Dispatch, 345 NLRB 195 (2005).3 In contrast, we find merit in the argument that the judge erred in applying Section 10(b)4 to bar the claim that the Respondent vio- lated Section 8(a)(1) by its disparate enforcement of its computer/e-mail policy. Contrary to the judge, we find that Section 10(b) does not bar the claim raised, although we agree with the judge’s alternate finding that the Re- not violate Sec. 8(a)(5) and (1) by refusing to pay for time spent in the arbitration proceeding. In doing so, we reject our dissenting col- league’s suggestion to treat as indistinguishable all collective- bargaining functions, noting, as the judge noted, that the parties them- selves distinguished between arbitrations and other collective- bargaining functions in their collective-bargaining agreement. Contrary to the majority and the judge, Member Liebman would find that the Respondent violated Sec. 8(a)(5) and (1) by refusing to pay unit employee Jonathan Pope for time spent as the Union’s representative at the arbitration of a fellow unit employee’s discharge grievance. The grievance was arbitrated pursuant to the grievance and arbitration pro- vision of the parties’ collective-bargaining agreement. In Member Liebman’s view, the absence of prior arbitrations is not determinative. The Respondent had a general past practice of paying employee union representatives for time spent performing collective-bargaining func- tions during working time. For example, the Respondent paid employ- ees for attending contract negotiations, grievance meetings and hear- ings (including the grievance hearing for the employee whose arbitra- tion is at issue here), and “information-gathering meetings” and other discussions with management concerning layoff and consolidation issues that arose when another newspaper was merged into the Respon- dent. Indeed, prior to the alleged changes at issue here, there is no evidence of any collective-bargaining function performed during work- ing time for which employees were not paid. Member Liebman would thus find that the Respondent’s practice of paying employees for time spent performing collective-bargaining functions had become an im- plied term and condition of employment, and Pope’s role as the Un- ion’s representative at the arbitration was such a function. The majority’s reliance on the collective-bargaining agreement’s “[distinction] between arbitrations and other collective-bargaining functions” is pure hairsplitting. The provisions of the agreement, items 1 and 2 of sec. X of the agreement, simply describe the steps of the grievance and arbitration process. They do not provide a basis for excluding arbitration from the rubric of “collective bargaining func- tions” or from the practice of paying employees for time spent on those functions. Accordingly, Member Liebman would find that the Respon- dent violated Sec. 8(a)(5) and (1) by unilaterally refusing to pay Pope for time spent at the arbitration. 3 As the facts and arguments relating to the claims raised regarding the cancellation of the holiday bonus are substantially similar to the facts in Richmond Times-Dispatch, supra, we will not discuss those issues here, as that case is controlling on those issues. For the reasons stated in her dissent in that case, Member Liebman would find that the Respondent violated Sec. 8(a)(5) and (1) in the present case by unilaterally canceling the holiday bonus and by refusing to furnish the requested financial information. 4 Sec. 10(b) provides in pertinent part that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.” RICHMOND TIMES-DISPATCH 75 spondent disparately enforced its policy, as discussed below. I. FACTS5 On July 13, 2000,6 at the first bargaining session for a successor bargaining agreement, Frank McDonald, the Respondent’s then-vice president of human resources, informed the Union’s entire bargaining committee— which included then-Union President Jonathan Pope— that they should stop using the Respondent’s computers and e-mail for union business. McDonald memorialized these instructions in a July 20 letter to Pope. Although this was not the first time McDonald had informed Pope that the Respondent’s computers and e-mail were not to be used for union business,7 this was the first instance when the other members of the Union’s bargaining committee had been informed of the Respondent’s pol- icy. The Union filed unfair labor practice charges, alleg- ing disparate enforcement of the computer/e-mail policy violating Section 8(a)(1), on August 7, 2000, with a copy served on the Respondent on August 10. Evidence developed at the hearing shows that the Re- spondent’s computer equipment and e-mail have com- monly been used for a broad range of nonbusiness uses—both personal use and use on behalf of third-party organizations. The Respondent and the Union have used e-mail to jointly sponsor charitable campaigns, and man- agement officials have used e-mail to advertise events sponsored by organizations such as the Society of Pro- fessional Journalists, the Virginia Press Women’s Or- ganization, and the Organization for Minority Journalists. Likewise, both management officials and employees have used e-mail for a wide variety of personal mes- sages. Also, during fall 1998, McDonald and Pope col- laborated on an e-mail Pope sent to unit employees about proposed changes in their health insurance policy. McDonald reviewed Pope’s draft, suggested changes, and complimented Pope on the quality of the message. Similarly, in August 2001, the Respondent communi- cated with the Union over e-mail to finalize proposals for part-time employees. II. THE JUDGE’S DECISION The administrative law judge found the charge regard- ing the disparate enforcement was time barred. After indicating that the 6-month period provided by Section 5 These facts relate only to the judge’s finding discussed above that Sec. 10(b) bars the claims regarding the Respondent’s computer/e-mail policy. 6 All dates are in 2000, unless otherwise noted. 7 From November 10, 1998, through June 8, 2000, Pope was advised several times that the Union should stop using the Respondent’s com- puters and e-mail for union business. 10(b) begins to run only when a party has “clear and un- equivocal notice” of the unfair labor practice, Allied Pro- duction Workers Local 12 (Northern Engraving Corp.), 337 NLRB 16, 18 (2001), the judge found the Union had clear notice of the policy in 1999, when Pope was in- formed that the computers and e-mail were not to be used for union business. The judge rejected the argument that each of the Respondent’s notifications constituted an independent unfair labor practice, relying on Continental Oil Co., 194 NLRB 126 (1971), where the Board held that each application of a unilaterally-implemented change made more than 6 months earlier did not consti- tute an independent failure to bargain. However, the judge alternatively provided that, should the Board disagree that the charges are time barred, the Respondent violated Section 8(a)(1) by disparately bar- ring the Union from using its equipment and e-mail for union business. Noting that an employer has a right to restrict the use of its bulletin boards but that the right may not be exercised discriminatorily so as to restrict postings of union materials,8 the judge held that, analo- gously, the Respondent unlawfully discriminated against the Union when it denied access to its computer equip- ment and e-mail system to distribute union literature and notices because it permitted employees’ routine use of its computer equipment and e-mail system for a wide vari- ety of purposes. III. THE EXCEPTIONS The General Counsel and the Union argue the judge erred in applying Section 10(b), stressing that even as- suming the Union had clear and unequivocal notice that the Respondent was disparately enforcing its policy be- fore the 10(b) period (which they argue was not the case), the Respondent’s subsequent conduct constitutes new and independent 8(a)(1) violations. See Associated Builders & Contractors, 331 NLRB 132, 134 (2000) (adopting administrative law judge’s finding that Section 10(b) did not bar allegations that a trade association unlawfully filed and maintained a lawsuit even though the lawsuit was filed outside the 6-month period). Under this theory, the operative facts establishing disparate en- forcement occurred on July 13 and 20, 2000—within the 10(b) period. On the other hand, the Respondent argues the judge erred in finding the Respondent’s conduct would have violated Section 8(a)(1) if not for Section 10(b). The Respondent asserts its policy prohibiting e-mail use on 8 The judge relied on J. C. Penney, Inc., 322 NLRB 238 (1996). Al- though not noted by the judge, the Seventh Circuit enforced the Board’s decision in relevant part. J. C. Penney Co. v. NLRB, 123 F.3d 988 (7th Cir. 1997). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76 behalf of organizations for objectives distinct from its own objectives is not discriminatory. Alternatively, the Respondent suggests it may be time to re-evaluate a ju- risprudence which developed in the context of telephones and bulletin boards, because new technology differs greatly. IV. ANALYSIS We find merit in the exception that the judge erred in applying Section 10(b) to bar the 8(a)(1) claim. Rather than finding the claims to be time barred under Section 10(b), we view each incident of disparate enforcement of the Respondent’s computer/e-mail policy as a separate and independent act for purposes of Section 10(b). In light of our holding, we adopt the judge’s alternative conclusion that the Respondent violated Section 8(a)(1) by its disparate enforcement of its rules within the 10(b) period. This case is analogous to Seton Co., 332 NLRB 979 (2000), where the Board found the employer violated Section 8(a)(1) by discriminatorily enforcing a no- solicitation/no-distribution rule against employees’ prounion activities while knowingly allowing employees to solicit and distribute antiunion materials. 332 NLRB at 979. Although the Board detailed evidence of dispa- rate enforcement that occurred outside the 10(b) period, the Board emphasized that it was only relying on a warn- ing within the period to establish the violation. Id. at 979 fn. 6 and 983–984. In that case, the employer gave simi- lar warnings that were not actionable because of the time bar, but its prior actions did not affect the viability of a claim based on similar conduct; each instance was viewed as a separate and independent event for purposes of Section 10(b).9 See Norman King Electric, 334 NLRB 154, 162 (2001) (adopting judge’s conclusion that dis- criminatory applications of a policy are actionable even if the policy was announced outside the 6-month period); see also Iron Workers Local 433 (Steel Fabricators), 341 NLRB 523, 523 fn. 1 (2004) (finding that the reiteration of statement within the 10(b) period violated Section 8(b)(1)(A) even though any claim made on the original statement would be time barred under Section 10(b)); Teamsters Local 896 (Anheuser-Busch), 339 NLRB 769 (2003) (finding an 8(b)(1)(A) violation based on union’s 9 Our concurring colleague is correct that the Board, in Seton, found that a complaint allegation was “closely related” to a timely amended charge. Seton Co., supra at 983. However, the Board also found it could not base a disparate enforcement violation on incidents which occurred more than 6 months from the filing of the amended charges, but it could and did find violations based on disparate enforcement occurring within 6 months of the filing of the charges. Id. at 983–984. Consequently, Seton Co. is relevant to the proper application of Sec. 10(b) where disparate enforcement of a policy is alleged. repeated posting of letters threatening internal discipline within the 10(b) period and indicating that the posting of identical threats outside the 10(b) period had no effect on the claim). Continental Oil Co., relied on by the judge, is inappo- site, as the employer was alleged to violate Section 8(a)(5) by failing to bargain over a change, which the Board concluded had occurred prior to the 10(b) period. Continental Oil Co., supra at 126; see also Arrow Line, Inc./Coach USA, 340 NLRB 1 (2003) (relying upon Con- tinental Oil Co. to apply Section 10(b) to bar an 8(a)(5) claim based on the employer’s midterm modification of vacation pay calculations which continued unchanged during the 10(b) period). In sum, for purposes of Section 8(a)(5), the Board has held that maintaining unchanged the same term and condition of employment during the 10(b) period does not give rise to a new duty to bargain. In the case at hand, however, the claims are 8(a)(1) alle- gations of disparate enforcement of the computer/e-mail policy. Although the enforcement efforts made by the Respondent in July were arguably substantially similar to enforcement efforts made as early as November 1998, the fact that the Respondent disparately enforced its rules outside the 6-month period provided by Section 10(b) does not forever immunize the Respondent from allega- tions that it unlawfully enforced its rule through new actions taken within the statutory period.10 Because we reverse the judge’s conclusion that Section 10(b) bars the complaint allegation that the Respondent instructed the Union on July 13 and 20 that its computer equipment and e-mail system was not to be used for con- ducting union business, we adopt the judge’s alternative conclusion that the Respondent’s disparate enforcement of its rules violated Section 8(a)(1). We base this con- clusion on the specific circumstances of this case, espe- cially in light of the breadth of the e-mail usage permit- ted by the Respondent, which included a wide variety of e-mail messages unrelated to the Respondent’s busi- ness.11 AMENDED CONCLUSIONS OF LAW 1. Insert the following as Conclusion of Law 3 and re- number the subsequent paragraphs accordingly. “3. The Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by se- 10 Although the complaint did not raise the allegation, Sec. 10(b) would bar any claims against the Respondent’s enforcement efforts that occurred more than 6 months before the instant charge. 11 We need not rely on evidence that the Respondent allowed the use of e-mail to jointly sponsor the United Way and March of Dimes cam- paigns with the Union, to announce professional journalism society events, or to communicate proposed changes in health insurance or part-time employment. RICHMOND TIMES-DISPATCH 77 lectively and disparately informing the Union that it was prohibited from utilizing the Respondent’s e-mail and computer systems to send union bulletins and other un- ion-related business.” ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and orders that the Respondent, Richmond Times-Dispatch, Richmond, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified below. 1. Insert the following as paragraph 1(a) and reletter the subsequent paragraph accordingly. “(a) Selectively and disparately prohibiting unit em- ployees from utilizing the Respondent’s e-mail and com- puter systems to send union bulletins and other union- related notices.” 2. Substitute the attached notice for that of the admin- istrative law judge. CHAIRMAN BATTISTA, concurring in part. I concur in the conclusion that there was no 10(b) bar to the complaint’s allegation that the Respondent selec- tively and disparately enforced its policy concerning the use of the Respondent’s computers. However, in my view, where a party, outside the 10(b) period, gives clear and unequivocal notice of a discriminatory practice, and acts consistent with that practice, Section 10(b) would bar an attack on the practice as it continues into the 10(b) period. In the instant case, the Respondent gave such clear and unequivocal notice of its discriminatory con- duct in May or June 1999, well outside the 10(b) period. However, the Union, through Pope, thereafter used the computers for union business, and the Respondent did not seek to enforce that discriminatory practice. Thus, the Union would reasonably believe that a discriminatory practice was no longer being followed, and would rea- sonably forego the filing of a charge. However, in July 2000, within the 10(b) period, Respondent renewed its disparate treatment of union activity, and there is no sug- gestion that it thereafter desisted in this practice. The Union filed its charge in August 2000. In these circum- stances, I would find no 10(b) bar to an attack on the July 2000 action.1 1 I conclude that Seton Co., 332 NLRB 979 (2000), is inapposite. The 10(b) argument there was focused on whether the General Coun- sel’s dismissal letter encompassed the allegation at issue, and on whether that allegation was “closely related” to an earlier and timely charge. See Redd I, 290 NLRB 1115 (1988). And, although the Board found violations based on discriminatory conduct within 6 months of the filing of a live charge, there was no finding, as here, that the dis- criminatory conduct began outside the 10(b) period. Thus, there was no discussion of the theory applied here by my colleagues. On the merits, I note particularly that the Respondent permitted use of its e-mail for a wide variety of personal messages. If the Respondent had restricted use of its e- mail to matters related to its own business and to related matters (e.g., the professional organizations in the news- paper industry, as set forth in the facts), I might well reach a contrary result. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT selectively and disparately prohibit unit employees from utilizing the Respondent’s e-mail and computer systems to send union bulletins and other un- ion-related notices. WE WILL NOT refuse to bargain in good faith with the RNPA by implementing unilateral changes in employ- ees’ wages, work schedules, and other terms and condi- tions of employment without bargaining to agreement or lawful impasse. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL rescind the changes in the wages and work schedules of employee members of the RNPA negotiat- ing committee, and restore all terms and conditions of employment as they existed prior to the change. WE WILL make employee members of the RNPA nego- tiating committee whole for any loss of earnings and other benefits resulting from their time spent in bargain- ing sessions with employer representatives, with interest. MEDIA GENERAL OPERATIONS, INC., D/B/A RICHMOND TIMES-DISPATCH DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78 Thomas P. McCarthy, Esq., for the General Counsel. James V. Meath, Esq. and King F. Tower, Esq., of Richmond, Virginia, for the Respondent-Employer. Jay J. Levit, Esq., of Richmond, Virginia, for the Charging Party. DECISION STATEMENT OF THE CASE BRUCE D. ROSENSTEIN, Administrative Law Judge. This case was tried before me on March 18, 19, and 20, 2002, in Richmond, Virginia, pursuant to a consolidated complaint and notice of hearing (the complaint) issued by the Regional Direc- tor for Region 5 of the National Labor Relations Board (the Board) on October 31, 2001.1 The complaint, based upon charges in Cases 5–CA–29157, 5–CA–29902, and 5–CA– 29914 filed by the Richmond Newspapers Professional Asso- ciation (the Union or RNPA), alleges that Media General Op- erations, Inc., d/b/a/ Richmond Times-Dispatch (the Respon- dent or Employer), has engaged in certain violations of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Respondent filed a timely answer to the complaint denying that it had committed any violations of the Act. Issues The complaint alleges that the Respondent enforced its com- puter equipment and electronic mail policies selectively and disparately by informing the RNPA that it was prohibited from utilizing the Employer’s e-mail and computer systems to send RNPA bulletins and other RNPA-related business in violation of Section 8(a)(1) of the Act. Additionally, the complaint al- leges that the Respondent unilaterally changed wages and working conditions of bargaining unit members for time spent representing the Union in an arbitration hearing and for time spent as employee members of the union negotiating commit- tee. Lastly, the complaint alleges violations of Section 8(a)(1) and (5) of the Act by Respondent’s conduct in unilaterally dis- continuing the practice of paying the Christmas or holiday bo- nus to its employees and by refusing to provide financial in- formation to the Union requested by it to substantiate the Re- spondent’s inability to pay the bonus. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, RNPA, and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is a corporation engaged in the publication of the Richmond Times-Dispatch, a daily newspaper, with an office and place of business located in Richmond, Virginia, where it annually derives gross revenues in excess of $200,000 and has purchased and received products, goods and materials, valued in excess of $5000 directly from points located outside the State of Virginia. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a 1 All dates are in 2001, unless otherwise indicated. labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The RNPA represents all news employees at the Respondent and has been the designated exclusive collective-bargaining representative of the unit since on or about January 1, 1966. This recognition has been embodied in successive collective- bargaining agreements, the most recent of which is effective from August 19, through August 18, 2004 (GC Exh. 33). The parties commenced negotiations for the above agreement on July 13, 2000, and engaged in 42 negotiation sessions including those held on August 3, 8, and 9.2 At all material times J. Stewart Bryan III, held the position of chairman and chief executive officer of Respondent, George L. Mahoney is general counsel and secretary, Frank A. McDonald Jr. serves as vice president of human resources, and Louise Seals is the managing editor. Officials of the RNPA include President Michael Paul Williams, Vice President Michael Martz, and former Presidents Randolph Smith and Jonathan Pope. B. The 8(a)(1) Violations 1. The underlying allegations The General Counsel alleges in paragraphs 5 and 6 of the complaint that the Respondent maintains specific rules for the use of its computer equipment and e-mail system (GC Exh. 30).3 On or about July 13 and 20, 2000, the Respondent en- forced the rules selectively and disparately by informing the RNPA that it was prohibited from utilizing the Employer’s computer and e-mail systems to send RNPA bulletins and other RNPA related business to bargaining unit members. 2. Timeliness of the charge Respondent notes that the Union filed the unfair labor prac- tice charge alleging these allegations on August 7, 2000. It argues that the Union, by notification to former President Pope, was instructed not to use the Employer’s computer equipment and e-mail system for union business on a number of occasions in 1998 and 1999. Therefore, the charge filed on August 7, 2000, alleging that the RNPA should cease using the Em- ployer’s computer equipment and e-mail systems for union business is untimely and must be dismissed. McDonald testified that on November 10, 1998, he sent Pope a letter to confirm his prior oral request that the RNPA stop using the Employer’s computer equipment and e-mail system to 2 After these meetings, counsel for the respective parties conducted additional negotiations by telephone in order to bring the agreement to closure. 3 The policy relating to the use of computer equipment states that, “The computers throughout Media General (the Company) are business equipment and they have been acquired to support Company opera- tions. The use of this equipment for personal, or any other purpose other than the Company’s business, must be approved by the Depart- ment Head.” The policy also states, “The e-mail system is provided to employees at Company expense to assist them in carrying out the Company’s business.” RICHMOND TIMES-DISPATCH 79 deliver union messages and conduct union business (CP Exh. 1). Pope credibly testified that he did not receive the letter but did admit that in a telephone conversation with McDonald in May or June 1999, the content of the November 1998 letter was thoroughly discussed. During that conversation, McDonald once again orally instructed Pope that his continued use of the computer equipment and e-mail system for union-related busi- ness was a breach of employer policy. Thereafter, in a conver- sation with McDonald in September 1999, Pope acknowledged that he was once again informed that use of the Employer’s e- mail system and computer equipment for conducting union business was against employer policy. Pope testified that after each conversation with McDonald concerning this matter, he continued to utilize the computer equipment and e-mail system to communicate with bargaining unit members about union business. He expressed his opinion that McDonald’s instruc- tions were illegal and contrary to law. Pope further acknowl- edges that on June 8, 2000, he received an e-mail from Director of Human Resources Karen Larsen that he should cease using the Employer’s computer equipment and e-mail system for union business (GC Exh. 28). Finally, on July 13, 2000, at the commencement of the parties’ first collective-bargaining ses- sion on the successor agreement, Pope admits that McDonald once again orally informed him to stop using the Employer’s computer equipment and e-mail system for union business. McDonald followed up this conversation with Pope by a letter dated July 20, 2000. In pertinent part, the letter apprised Pope that he has informed him on several occasions over the past couple of years that the Employer’s e-mail and computer sys- tems are not available for personal use and/or use for outside organizations (GC Exh. 14). Section 10(b) of the Act precludes the issuance of a com- plaint “based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon” the charged party. Although the General Counsel may rely on evidence outside the 10(b) period as “background,” he is barred from bringing any complaint in which the operative events establishing the viola- tion occurred more than 6 months before the unfair labor prac- tice charge has been filed and served. Allied Production Work- ers Local 12 (Northern Engraving Corp.), 337 NLRB 16 (2001). The statute of limitations under Section 10(b) begins to run, however, only when a party has “clear and unequivocal notice” of a violation of the Act. Id. Notice can be actual or constructive. Thus, the Board has found sufficient notice to start the limitations period where a party, “in the exercise of reasonable diligence, should have become aware” of facts indi- cating that the Act had been violated. Moeller Bros. Body Shop, 306 NLRB 191, 192–193 (1992). The burden of showing that a charging party was on notice of a violation of the Act is on the Respondent. A & L Underground, 302 NLRB 467, 468 (1991). The charge here was filed on August 7, 2000, and a copy was served on the Respondent on August 10, 2000. To satisfy its burden under Section 10(b), the Respondent has to show that the Union knew or could have known by the exercise of rea- sonable diligence, before February 11, 2000, that it was aware of the Employer’s policy to stop using the computer equipment and the e-mail system for union-related business. In the par- ticular circumstances of this case, I find that the RNPA had clear and unequivocal notice of the Employer’s policy that use of the computer equipment and e-mail system was not permit- ted for union-related business. There can be no question that Pope, as the then-union president, was officially informed in 1999 by McDonald to stop using the computer equipment and e-mail system for union business. The General Counsel argues that even if the Union was ap- prised of the Employer’s prohibited use of computer equipment and the e-mail system more than 6 months prior to the filing of the August 7, 2000 charge, each individual notification within the 10(b) period is an independent violation of the Act. Thus, when the Respondent notified the Union on June 8, 2000, and again on July 20, 2000, individual timely violations occurred. I have also considered whether the Respondent’s instructions to Pope concerning use of the computer equipment and e-mail system is a “continuing violation.” A continuing violation is one where the respondent commits an unfair labor practice outside the 10(b) period that continues during the period. Al- though Section 10(b) would bar complaint and remedial relief for the conduct occurring more than 6 months before a charge is filed, relief may be sought for conduct within the 10(b) pe- riod which would constitute a separate and distinct substantive violation in its own right. The alleged unfair labor practice here is the Respondent’s in- structions to the RNPA to stop using the Employer’s computer equipment and e-mail system for union business. The case is thus similar to the facts in Continental Oil Co., 194 NLRB 126 (1971). There, the employer unilaterally implemented a method of equalizing overtime that clearly departed from the express terms of the collective-bargaining agreement more than 6 months before the charge was filed. The employer continued to follow this system during the 10(b) period without change. The Board found that each individual application of the unilat- erally implemented contract modification did not constitute an independent unfair labor practice. Here, I find that the Union, by Pope, was aware of the Respondent’s instructions to stop using the computer equipment and e-mail system for union business outside the 10(b) period. The Respondent’s conduct within the 10(b) period was identical to the instructions the Union received on earlier occasions in 1999, that it was to cease using the Employer’s computer equipment and e-mail system to conduct union business. Under these circumstances, to permit litigation of the complaint based on a charge filed more than 6 months after the Union had clear and unequivocal notice of the Respondent’s policy on the use of its computer equipment and e-mail system, is contrary to the teachings of Section 10(b) of the Act. Accordingly, I recommend that para- graphs 5 and 6 of the complaint be dismissed. 3. The merits If others disagree on review with my finding concerning the above 10(b) discussion, I will now independently evaluate and provide my thinking on the allegations of paragraphs 5 and 6 of the complaint. For the following reasons, I find that Respon- dent violated Section 8(a)(1) of the Act by its actions in selec- tively and disparately informing the RNPA that it was prohib- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80 ited from utilizing the Employer’s computer equipment and e- mail system for union business. The Board, in adopting the decision of the administrative law judge, in Adranz, ABB Daimler-Bentz, 331 NLRB 291 (2000), addressed a similar e-mail rule. The Board held that it is well established that there is no statutory right of an employee or a union to use an employer’s bulletin board. Honeywell, Inc., 262 NLRB 1402 (1982); Con- tainer Corp., 244 NLRB 318 (1979). An employer has a right to restrict the use of company bulletin boards. However, that right may not be exercised discriminatorily so as to restrict postings of union materials. J. C. Penny, Inc., 322 NLRB 238 (1996). Similarly, there is no statutory right of an employee or a un- ion to use an employer’s telephone for personal or nonbusiness purposes. However, once an employer grants the privilege of occasional personal use of the telephone during worktime, it may not lawfully exclude union activities as a subject of dis- cussion. Union Carbide Corp., 259 NLRB 974 (1981). Analogously, Respondent could bar its computer equipment and e-mail system to any personal use by employees. In this case, Respondent did permit e-mails of a personal nature, not- withstanding its rule. In the subject case, which deals with a daily newspaper and its newsroom employees, e-mail has become an important, if not essential, means of communication. The large volume of e- mail messages in evidence reveals that the Employer permits employees to use the system to distribute a wide variety of materials on many subjects. Indeed, the Employer in conjunc- tion with the RNPA has used the e-mail system to jointly spon- sor the United Way and March of Dimes Campaign and has worked with the RNPA to finalize proposals for part-time em- ployees (GC Exhs. 35 and 36). Furthermore, the e-mail system has been used by management officials and employees to ad- vertise the availability of reunion and band concert tickets, to sign get well cards, to urge employees to consider purchasing candy bars and girl scout cookies, and to congratulate employ- ees on the birth of a child (GC Exh. 26). Likewise, manage- ment officials have used the e-mail system to communicate with newsroom employees about events of the Society of Pro- fessional Journalists, Virginia Press Women’s Organization, and the Organization for Minority Journalists (GC Exhs. 39, 40, 41, and 42).4 Lastly, I note that when Pope sent an e-mail to all bargaining unit employees regarding proposed changes in their health insurance policy, McDonald reviewed the e-mail and suggested a number of changes to be made. He also compli- mented Pope on the comprehensive explanation of the changes that was sent to all bargaining unit employees and condoned its issuance. 4 Respondent argues that its use of the e-mail system for the above third-party organizations is authorized and not a breach of its policy because such organizations objectives are related to the Employer’s core business (the craft of journalism) unlike the Union. I reject this position and find that, in part, the objectives of the RNPA support activities related to the Employer. In this regard, the RNPA establishes just wages for employees, promotes training and upward mobility to enhance the quality of the newspaper and serves as a partner with the Employer in many worthwhile charitable events. In spite of the above, the Respondent steadfastly defends its position that the Union cannot use the Employer’s computer equipment or e-mail system to distribute any union literature or notice of RNPA events (GC Exh. 14). I find that this prohibi- tion clearly is discriminatory. Thus, I conclude that having permitted the routine use of the e-mail system for management representatives and employees to distribute a wide variety of material that has little or any relevance to the Employer’s busi- ness, the Respondent discriminates against the Union when it denies it access to its computer equipment and e-mail system to distribute union literature and RNPA notices. Therefore, I find that the Respondent violated Section 8(a)(1) of the Act by se- lectively and disparately prohibiting the RNPA from utilizing its computer equipment and e-mail system as alleged in para- graphs 5 and 6 of the complaint. E. I. du Pont & Co., 311 NLRB 893, 919 (1993). C. The 8(a)(1) and (5) Violations 1. Arbitration proceedings The General Counsel alleges in paragraph 10 of the com- plaint that Respondent unilaterally changed a past practice of paying the wages of union representatives who participate in arbitration proceedings without notice to and affording the RNPA an opportunity to bargain over this conduct and the ef- fects of this conduct. The RNPA, by Pope, filed a grievance on July 1, 1999, over the discharge of bargaining unit employee Pam Mastropaolo (GC Exh. 25). Under the parties’ then existing collective- bargaining agreement a number of meetings were held in order to gather information about the grievance and attempt an ami- cable resolution of the matter (GC Exh. 8). Pope was paid his regular wages while he participated in these grievance meet- ings. On March 2, 2000, Pope participated as a representative of the RNPA, in the arbitration of the Mastropaolo discharge grievance. The arbitration lasted all day and he entered on his timesheet for that week the time of arrival at the arbitration and the time that he left. Several days after the arbitration, he was called into the office of Metro Editor Andy Taylor with Seals in attendance and informed that he would not be paid for the time that he attended the arbitration proceeding. Pope indicated to Taylor and Seals that he was always paid for union business on Employer time. Seals agreed with that assessment but in- formed Pope that this was for his participation in an arbitration proceeding and this was different. Seals gave Pope the option of taking a vacation day or working the extra hours to make up for the time spent in the arbitration proceeding. Pope opted to take a vacation day and the General Counsel seeks reimburse- ment as part of the remedy in this matter. Respondent followed up this oral advice with a letter to Pope dated July 31, 2000 (GC Exh. 11). The General Counsel argues that because Pope was paid for his participation in the Mastropaolo grievance meetings, a logi- cal extension of the parties’ collective-bargaining agreement is to also reimburse him for his participation in the arbitration proceeding. For the following reasons, I reject the General Counsel’s argument to this effect. RICHMOND TIMES-DISPATCH 81 The General Counsel did not rebut McDonald’s testimony that the Mastropaolo arbitration proceeding was the first one that the parties participated in during the RNPA’s representa- tive status since 1969. Thus, there is no past practice estab- lished entitling union representatives to reimbursement for their participation in an arbitration proceeding. Moreover, Pope concedes and the then-existing collective-bargaining agreement confirms, that there is no provision that addresses pay for union representatives for union business including participation in arbitration proceedings (R. Exh. 1; GC Exh. 8). I also note that section X of that agreement has separate paragraphs that ad- dress meetings for the purpose of attempting to settle questions arising from the application of the agreement and the mecha- nism to initiate an arbitration proceeding (see sec. X, items 1 and 2). Accordingly, I find that since there was no past practice for the reimbursement of union representatives for their partici- pation in arbitration proceedings, the Respondent did not en- gage in any unilateral changes of wages, hours, or working conditions. Thus, the Respondent was under no obligation to engage in negotiations with the RNPA with respect to this con- duct and the effects of this conduct. Therefore, I recommend that paragraph 10 of the complaint be dismissed and find that the Respondent did not violate Section 8(a)(1) and (5) of the Act. 2. Negotiation proceedings The General Counsel alleges in paragraph 11 of the com- plaint that Respondent unilaterally changed a past practice of paying the wages of union representatives who participate in negotiation sessions without notice to and affording the RNPA an opportunity to bargain over this conduct and the effects of this conduct. The Respondent argues that it is under no obligation to pay anyone for time not worked and believes that it is the Union’s responsibility to make such payments for its negotiators since it is an investment in the bargaining process. Additionally, the Respondent asserts that all employee union negotiators received a full day’s pay for the time spent in negotiations and no em- ployee lost any wages on days that they spent in negotiations with Respondent representatives. Respondent stipulated that since at least 1995, there was a past practice to pay bargaining unit employee union negotiators for time spent in negotiations with employer representatives. This is consistent with the credited testimony of former union negotiators, Smith and Pope. At the commencement of the July 13, 2000 initial collective- bargaining session for the parties’ successor agreement, McDonald apprised the union negotiators that they would no longer be paid for time spent while negotiating with Respon- dent representatives. He said that, “if I had known that they were paying you, I would have stopped it a long time ago.” McDonald further stated that the union negotiators would be paid for negotiating today, but from here on out you are not getting paid.5 By letter dated July 31, 2000, McDonald con- 5 Pope credibly testified, and Respondent does not dispute, that un- ion negotiators were paid for their time at the bargaining table on Sep- tember 11, 2000. For any collective-bargaining sessions after that date, firmed his earlier oral notification to the union negotiators that they no longer would be paid for participation in negotiations with respondent representatives (GC Exh. 11). The Supreme Court has held in NLRB v. Katz, 369 U.S. 736 (1962), that an employer must first notify and bargain with a union before a change in a mandatory subject of bargaining takes effect. Here, I find that the past practice of paying union negotiators for time spent at the bargaining table with respon- dent representatives ripened into a term and condition of em- ployment that could not be changed without prior notice and bargaining with the RNPA.6 Respondent, however, refuses to acknowledge that the past practice of paying union negotiators is a mandatory subject of bargaining. Rather, it argues it is under no obligation to pay anyone for time not worked.7 I conclude that the July 13, 2000 announced change in the past practice of paying union negotiators for time spent at the bargaining table is similar to the Board’s holding in Owens- Corning Fiberglas Corp., 282 NLRB 609 (1987). In that case, the Board found that the unilateral modification of an employee purchase program was found to be a mandatory subject of bar- gaining and the refusal to negotiate about the changes was vio- lative of the Act. Under these circumstances, and particularly noting that the Respondent unilaterally changed the past prac- tice of paying RNPA union negotiators for time spent in bar- gaining sessions without negotiating, I conclude that the Re- spondent violated Section 8(a)(1) and (5) of the Act. See Axel- son, Inc., 234 NLRB 414, 415 (1978), enfd. 599 F.2d 91 (5th Cir. 1979). 3. Unilateral change and the refusal to provide information a. Facts The General Counsel alleges in paragraph 12 of the com- plaint that on or about July 31, Respondent unilaterally discon- tinued the practice of paying the Christmas or holiday bonus to employees in the RNPA bargaining unit. The General Counsel further alleges in paragraphs 15 and 17 of the complaint that the RNPA requested certain financial information to verify the Respondent’s position that it was unable to pay a Christmas or union negotiators were not paid for their time spent at the bargaining table. 6 The parties’ then effective collective-bargaining agreement is silent on the issue of payment of union negotiators for time spent at the bar- gaining table (GC Exh. 8). 7 The Respondent’s argument that because union negotiators did not lose any pay for the time spent in negotiations, the Act has not been violated is rejected for the following reasons. Pope succinctly de- scribed the change in past practice both before and after July 13, 2000. Prior to the announced change, if union negotiators spent 2 hours in negotiations, it was only necessary for them to work an additional 6 hours in order to receive 8 hours pay for that day. After the change, if union negotiators spent 2 hours at the bargaining table, it was necessary for them to work an additional 8 hours to receive a full day’s pay. Thus, before the announced change, employee union negotiators only worked 8 hours on the day of negotiations while after the change it was necessary to work 10 hours to earn a full day’s pay. Under these cir- cumstances, I find that a change in a mandatory subject of bargaining occurred when McDonald orally announced on July 13, 2000, that union negotiators would no longer be paid for time spent at negotiation sessions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82 holiday bonus in 2001, but Respondent refused to provide such information. The Respondent stipulated that it has paid a Christmas or holiday bonus to employees represented by the RNPA from 1960 through 2000. It concedes, however, that it did not pay a Christmas or holiday bonus to employees represented by the RNPA in December 2001. The record confirms that the Christmas or holiday bonus is normally paid in the second week of December, and Federal, State, and social security taxes are withheld from each employee’s check. The bonus is the equivalent of one week’s pay and increases proportionately with employee increases in salary. The Christmas or holiday bonus is a budgeted item and is reported on the employee’s W-2 form for income tax purposes. Thus, I conclude that the Christmas or holiday bonus relates to wages, hours, and other terms and conditions of employment of the RNPA unit and is a mandatory subject for the purposes of collective bargaining. Radio Electric Service Co., 278 NLRB 531 (1986). On July 31, McDonald along with Larsen notified Union President Williams by telephone that the 2001 Christmas or holiday bonus would not be paid to members of the RNPA bargaining unit because of poor economic conditions.8 Additionally, McDonald apprised Williams that restrictions on earning overtime pay, travel, and hiring would be imposed during the remainder of 2001. During the telephone conversa- tion, McDonald acknowledged that the cancellation of the bo- nus was a bargainable issue and the Respondent was willing to negotiate. McDonald met with Williams later that day and provided him a copy of the draft letter that Chairman and CEO Bryan would be sending to all employees (GC Exh. 31). Bryan, in the final version of the letter that was sent to all em- ployees on July 31, explained that due to “the worst advertising downturn in a decade, the Employer would be unable to pay a Christmas or Holiday bonus this year” (GC Exh. 16).9 On Au- 8 The Christmas or holiday bonus cancellation for 2001 applied to all union and nonunion employees of Respondent. 9 The July 31 letter states in pertinent part: As we all well know, we are in the midst of the worst advertising downturn in a decade, caused by a weak economy. This is having a devastating effect on the financial performance of all media compa- nies. In response to weak business conditions, the companies in our industry are implementing aggressive cost-cutting measures in order to maintain cash flow during this difficult time. Many have had sig- nificant employee layoffs. Thus far, this has not been the case at Me- dia General, and we hope to continue to avoid a major layoff. We must, however, find other ways to reduce costs further. Unfortu- nately, the revenue outlook for the rest of this year is bleak. Opinion in our industry is divided on whether the advertising downturn is at bottom, but there certainly is no evidence of an upturn. Our company faces a very difficult second half of the year. The broadcast division will not have the revenues it had last year from political campaigns and the Olympics, and our newspaper side is also weak. In the ab- sence of new revenue possibilities, we are driven to look at the cost side of the business to improve overall performance. We have already instituted strict hiring constraints and reduced overtime. We have re- stricted travel and entertainment and the use of outside consultants. We have eliminated many marketing and promotion expenditures. Capital expenditures have been restricted to those that produce quick positive cash impact. Many of the initiatives focused on the cost side of the business have been in place for several months. These initia- gust 2, the Union responded to Bryan’s letter agreeing that the Christmas bonus was a bargainable matter and indicating a willingness to meet with the Respondent on this issue (GC Exh. 17). In the letter, however, the Union stated that before such a meeting took place, it was necessary to obtain specific financial information from Respondent. Such information requested included books and records so it could determine whether there is a “cash flow” problem and to verify that the newspaper is “weak” when it comes to revenues. The Union reiterated that after it examines the information, it would meet with the Re- spondent to engage in meaningful discussions over the elimina- tion of the Christmas or holiday bonus. By letter dated August 7, Respondent replied to the RNPA’s request for information (GC Exh. 18). The Respondent stated that since the Union relied on statements in the Bryan July 31 letter and assumed that the Employer was unable to pay the Christmas or holiday bonus, the Respondent was officially retracting that statement. The Respondent informed the RNPA that it is not unable to pay the bonuses from a financial stand- point but rather that it has chosen not to pay at this time due to the economic situation in the marketplace. While the Respon- dent informed the RNPA that it had no legal obligation to pro- vide the requested information, it reiterated its willingness to bargain over the elimination of the Christmas or holiday bonus. The Respondent, while not providing any financial books or records responsive to the information request, did give the RNPA copies of the current annual report and 10(k) report provided to the Securities and Exchange Commission on or about August 7. b. Analysis It is well settled that an employer must disclose financial in- formation only when the employer has indicated an inability to pay. In determining whether an employer is claiming an inabil- ity to pay, the Board and the U.S. courts of appeals distinguish an employer’s claim that it “can not pay” from an employer’s claims that it “will not pay.” When an employer states that it can not pay, it must furnish information to substantiate the claim, if asked to do so by the union. Where an employer states that it will not pay, the union must take other avenues to gather the information. The Board has held that information about the financial con- dition of the employer is not presumptively relevant. Nielsen Lithographing Co., 305 NLRB 697 (1991), affd. sub nom. Graphic Communications Local 50B v. NLRB, 977 F.2d 1168 tives have been helpful in addressing the business requirement to maintain a strong cash flow. However, as we look to the remaining part of the year we find that our current initiatives will not be enough to offset the projected decline in advertising revenues. As a result of the poor economic climate, we are unable to pay a Christmas or Holi- day bonus this year to employees who many have been eligible for one. We will also implement a new Voluntary Unpaid Leave Policy for non-represented employees, and your Human Resources Depart- ment will announce the details shortly. Our entire management team very much regrets having to take these actions, but we have no choice based on the business environment. While this may appear drastic within the culture of our company, it is far less severe than measures already taken by many of our peer companies. RICHMOND TIMES-DISPATCH 83 (7th Cir. 1992). As stated in ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1438 (D.C. Cir. 1997): Although the relevance of information concerning the terms and conditions of employment is presumed, see Ohio Power Co., 216 NLRB 987 (1975), no such presumption applies to an employer’s information regarding its financial structure and condition, and a union must demonstrate that any re- quested financial information Is relevant to the negotiations in order to require the employer to turn it over. See Interna- tional Woodworkers v. NLRB, 263 F.2d 483, 485 (D.C. Cir. 1959). In order to meet its burden of proving relevance, the union must establish that the employer has claimed that it is financially unable to pay the amounts proposed by the union in negotiations. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). In Nielsen Lithographing, the Board defined the “inability to pay,” which triggers the employer’s obligation to provide requested financial information. The Board said: [A]n employer’s obligation to open its books does not arise unless the employer has predicated its bargaining stance on assertions about its inability to pay during the term of the bar- gaining agreement under negotiation. [Footnote omitted.] . . . . By contrast, the employer who claims only economic difficulties or business losses or the prospect of layoffs is simply saying that it does not want to pay. 305 NLRB at 700. In enforcing the Board’s Nielsen decision, the Seventh Cir- cuit elaborated on the term “inability to pay.” The court noted that Nielsen sought concessions in bargaining to reduce its la- bor costs. However, the court said that: [Nielsen] did not base the demand on any claim that it was in financial jeopardy, strapped for cash, broke or about to go broke, unprofitable, or otherwise unable to pay the existing level of wages and fringe benefits . . . . If the employer claims that it cannot afford to pay a higher wage or, as here, the existing wage, the union is en- titled to demand substantiation in the employer’s financial records. . . . But there isn’t a hint of that here. . . . All that Nielsen was claiming was that if it didn’t do anything about its labor costs it would continue to lose business and lay off workers. It didn’t claim that it was in any financial trouble. In subsequent cases, the Board and courts have made clear that only when a present inability to pay has been asserted will the union be entitled to requested financial information from the employer. For example, in Shell Co., 313 NLRB 133 (1993), the Board found that an employer’s claims that condi- tions were “very bad[ ],” “critical,” a “matter of survival,” and that “we need your help, your assistance, because of this condi- tion,” were tantamount to a claim of present inability to pay, and triggered the obligation to provide requested financial in- formation. Conversely, where the employer merely states that it is “having trouble staying afloat,” the “well has run dry,” or claims only general economic difficulties or business losses” as the reason for its position, the employer may lawfully refuse to hand over financial information.” Nielsen, 305 NLRB at 700, supra. Nor will an employer be required to open its books to the union on the basis of the employer’s contentions that “its financial condition is bleak, or that it is suffering losses, or encountering economic difficulties.” Wisconsin Steel Indus- tries, 318 NLRB 212, 224 (1995). When determining whether an employer is claiming a pre- sent inability to pay in bargaining, the Board looks not at iso- lated words, but at the record as a whole. Finally, even where an employer initially claims an inability to pay, if it subse- quently makes clear that it is neither claiming poverty nor a present inability to pay, the Board will not require the employer to open its books to the union. See Central Management Co., 314 NLRB 763, 768–769 (1994). In the subject case, the Union bases its argument that the Re- spondent is obligated to provide financial data on a portion of the Bryan July 31 letter (GC Exh. 16). In this regard, the Un- ion’s focus is on the statement, “As a result of the poor eco- nomic climate, we are unable to pay a Christmas or Holiday bonus this year to employees who may have been eligible for one.” While there is no question that the words “unable to pay” are contained in the letter, it must be considered together and in context. In examining the July 31 letter, it specifically points out that the weak economy is having a devastating effect on the financial performance of all media companies and those em- ployers are implementing aggressive cost-cutting measures to maintain cash flow during this difficult time. Respondent notes that while competitors have been forced to lay off employees, this has not been the case here and it hopes to avoid a major layoff. In order to avoid such layoffs, it states it must find other ways to reduce costs further. The Respondent, in order to re- duce costs, informed all employees including those represented by the RNPA that it must improve overall performance and it has already instituted strict hiring constraints, reduced over- time, restricted travel and entertainment and the use of outside consultants. Based on my evaluation of the July 31 letter in its entirety, I find that its content reflects and conveys to employees that the Respondent was losing money. However, there is a clear dis- tinction between “losing money” and “an inability to pay.” An employer can be losing money and yet have sufficient assets to weather the storm. In the subject case, the Respondent may well have been “losing money,” but it never claimed that it had insufficient assets to meet the Union’s demands for the pay- ment of the Christmas or holiday bonus.10 10 In this regard, the RNPA knew or should have known that Re- spondent was not pleading poverty nor was it on the verge of filing bankruptcy. Indeed, the RNPA was provided the annual and 10(k) report on or about August 7 that shows that the Respondent had suffi- cient assets to pay the Christmas or holiday bonus. Likewise, the RNPA admitted that it was aware and received Respondent’s July 17 press release reporting second-quarter results that showed net income of $9.6 million, or 39 cents per diluted share (R. Exhs. 2 and 3). Lastly, the RNPA, as a stockholder along with its individual employee mem- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 84 Under these circumstances, I find that the Respondent did not violate Section 8(a)(1) and (5) of the Act by refusing to provide the requested information. Even assuming, arguendo, that certain conduct by the Re- spondent could be construed as an implicit claim of “inability to pay,” the Respondent subsequently made it clear, in its Au- gust 7 letter to the RNPA, that it had not been and was not as- serting such a claim (GC Exh. 18). Thus, the Respondent ex- pressly stated that “Media General has not indicated that it is unable to pay the bonuses from a financial standpoint but rather that it has chosen not to pay at this time due to the economic situation in the marketplace. Because the revenue outlook for the rest of the year is bleak, Media General has chosen as a discretionary matter to introduce some institutional belt- tightening.” Based on the forgoing, I find that this represents an addi- tional reason that the Respondent did not violate Section 8(a)(1) and (5) of the Act by refusing to provide the requested informa- tion. In regard to the General Counsel’s additional assertion that the Respondent violated Section 8(a)(1) and (5) when it unilat- erally discontinued the practice of paying the Christmas or holiday bonus, I find that the Respondent did not violate the Act for the following reasons. The RNPA admits that McDonald during their telephone conversation on July 31, agreed that the discontinuance of the Christmas bonus was a negotiable issue and it wanted to meet with the Union. By letter dated August 2, and admitted by Williams, the RNPA agreed to meet but conditioned the meet- ing on the receipt of specific financial information. The RNPA stated, “After our examination, we will then be able to meet with you so that we can have meaningful discussions of these financial matters and their impact, if any” (GC Exh. 17). Because the RNPA conditioned any meeting to discuss the discontinuance of the Christmas bonus on the receipt of infor- mation, no separate negotiation sessions took place between the parties on this issue.11 Since the RNPA sat on its rights and conditioned bargaining on the receipt of financial information that I have determined was not necessary to provide to the Union, I find that the Re- spondent did not violate the Act. Therefore, when the Respon- bers, was aware that the Respondent on July 26 declared a quarterly dividend of 17 cents per share payable on Sept. 15 (R. Exh. 4). 11 There is a wide disparity and difference of opinion on whether discussions took place on the discontinuance of the Christmas bonus. In this regard, the General Counsel and the RNPA argue that no inde- pendent discussions occurred between the parties on this issue and their collective-bargaining notes of the August 3, 8, and 9 negotiation ses- sions conclusively support this assertion. Conversely, the Respondent argues that during the August 8 bargaining session that led to the par- ties’ August 19 successor agreement, the RNPA raised the Christmas bonus issue. Indeed, the Respondent argues that the Union’s chief negotiator asserted during the August 8 bargaining session that he refused to negotiate about the Christmas bonus issue. He further stated that the Union had no obligation to bargain about the issue and the Respondent should in no manner construe the fact that a discussion at the bargaining table regarding the Christmas bonus had occurred, as the Union actually negotiating about the issue. In light of my conclusion above, I do not find it necessary to resolve this credibility resolution. dent discontinued the practice of paying the Christmas or holi- day bonus in December 2001, and the Union did not engage in negotiations after Respondent’s prior notification and willing- ness to negotiate, Section 8(a)(1) and (5) of the Act was not violated. Based on the foregoing, I recommend that paragraphs 12, 15, and 17 of the complaint be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act by unilaterally refusing to pay wages of employee members of the RNPA ne- gotiating committee for time spent in bargaining sessions with Respondent representatives. 4. Respondent did not engage in any other unfair labor prac- tices as alleged in the complaint. 5. The unfair labor practices described above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent must make employee members of the RNPA negotiating committee whole for any loss of earnings and other benefits, for time spent in bargaining sessions with Respondent representatives as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as computed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended12 ORDER The Respondent, Richmond Times-Dispatch, Richmond, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally changing wages, hours, and working condi- tions by failing and refusing to negotiate and pay wages of employee members of the RNPA negotiating committee for time spent in bargaining sessions with respondent representa- tives. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Make employee members of the RNPA negotiating committee whole for any loss of earnings and other benefits in the manner set forth in the remedy section of the decision. 12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended 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 purposes. RICHMOND TIMES-DISPATCH 85 (b) Rescind the changes in the wages and work schedules of employee members of the RNPA negotiating committee, and restore all terms and conditions of employment as they existed prior to the change. (c) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its fa- cility in Richmond, Virginia, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided 13 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” by the Regional Director for Region 5, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 13, 2000. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found.