Long Beach Press-Telegram

354 NLRB No. 4 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Long Beach Press-Telegram and Southern California Media Guild, The Newspaper Guild-Communi- cations Workers of America, Local 9400, AFL– CIO. Cases 21–CA–38484, 21–CA–38524, and 21–CA–38597 April 28, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the consolidated complaint or the amend- ment to the consolidated complaint. Upon charges and amended charges filed by the Union, the General Coun- sel issued the consolidated complaint on January 30, 2009, and issued an amendment to the consolidated com- plaint on February 10, 2009, against Long Beach Press- Telegram, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file any answer. On March 5, 2009, the General Counsel filed a Motion for Default Judgment with the Board. On March 9, 2009, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. Ruling on Motion for Default Judgment1 Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the consolidated complaint and the amendment to the consolidated complaint affirmatively state that an answer must be received by the Regional Office on or before February 13 and February 24, 2009, respectively. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated February 24, 2009, notified the Respondent 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. that unless an answer was filed by March 3, 2009, a mo- tion for default judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration with a principal place of business located at 300 Ocean Gate, Long Beach, California, has been engaged in the business of newspaper publishing. During the 12- month period ending November 30, 2008, a representa- tive period, the Respondent, in conducting its business operations described above derived gross revenues in excess of $200,000, held membership in or subscribed to interstate news services, published nationally syndicated features, advertised nationally sold products, and pur- chased and received at its Long Beach, California facility goods valued in excess of $50,000 directly from points outside the State of California. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Southern California Media Guild, The Newspaper Guild-Communications Workers of America, Local 9400, AFL–CIO, the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: James Janiga Senior Vice President of Human Resources and Labor Relations Phillip Sanfield Executive Editor Gloria Arango Human Resource Director John Futch Managing Editor Ed Moss President and Chief Executive Officer of Los Angeles News- paper Group The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees em- ployed in the following departments: editorial, circula- tion, customer service, PBX and maintenance operation DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 who are engaged in the publication and delivery of the Long Beach Press-Telegram at Long Beach, California; excluding all guards and supervisors as defined in the Act; excluding the following classifications within the editorial department: associate editor, assistant to the editor, business editor, city editor night, city editor day, assistant to the executive editor/confidential secretary, 1 confidential secretary, design editor, editorial pages editor, features editor, executive editor/Sr. VP, execu- tive news editor, features editor, managing editor, news editor, photo director, senior editor/sports/photo, sports editor, building manager; and excluding the following classifications within the circulation department: circu- lation director, 2 confidential secretaries, circulation promotions manager, home delivery manager, 4 re- gional home delivery managers, single copy sales man- ager, NIE coordinator. Since at least November 30, 2003, and at all material times, the Union has been the designated exclusive col- lective-bargaining representative of the unit, and since then the Union has been recognized as the representative by the Respondent. This recognition has been embodied in a collective-bargaining agreement, which was effec- tive by its terms from November 30, 2003 to May 31, 2007. At all times since at least November 30, 2003, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. On about February 29, 2008, the Respondent imple- mented a reduction in its work force, including the elimi- nation of its design and copy-editing departments, and the elimination of some sports reporter and photography job positions, resulting in the layoff of unit employees. On about February 29, 2008, the Respondent subcon- tracted out or transferred unit work in the design and copy-editing departments. The subjects set forth above relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. The Respondent engaged in the conduct described above without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct and the effects of this conduct. Since about April 30, 2008, and again about June 30, 2008, the Union has, in writing, requested that the Re- spondent furnish the Union with a list of all employees and their job classifications at the Daily Breeze who are performing work on behalf of the Respondent. Since about May 8, 2008, and again about June 30, 2008, the Union, in writing, has requested that the Re- spondent furnish the Union with all dates and times, wages paid, and equipment used, for non-Respondent employees performing bargaining unit work. Since at least May 20, 2008, the Respondent has failed and refused to furnish the Union with the information requested by it as described above. Since about June 17, 2008, and again about June 30, 2008, the Union, in writing, has requested that the Re- spondent furnish the Union with the identity of employ- ees and their job classifications who are performing work on behalf of the Respondent. Since about June 17, 2008, the Respondent has failed and refused to furnish the Union with the information requested by it as described above. Since about June 30, 2008, the Union, in writing has requested that the Respondent furnish the Union with a roster of all independent contractors performing unit work, their location, their work, and pay rates. Since about June 30, 2008, the Respondent has failed and refused to furnish the Union with the information requested by it as described above. The information requested by the Union as described above is necessary for, and relevant to, the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit.2 CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has failed and refused to bargain collectively with the exclusive collective-bargaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 2 Member Schaumber notes that while information pertaining to unit matters is presumptively relevant, information pertaining to nonunit matters is not. He is of the view that when, as here, information that is requested by a union is not presumptively relevant to the union’s per- formance as bargaining representative, the burden is on the union to demonstrate its relevance when the information is requested from the employer. See generally his position in Artesia Ready Mix Concrete, 339 NLRB 1224, 1228–1230 (2003). Thus, when default judgment is sought in such a case because a respondent has failed to file an answer to a complaint, Member Schaumber’s position is that the motion must be denied unless the complaint alleges facts sufficient to establish either that the requested information involved unit matters or that the rele- vance of the requested information was demonstrated by the union to the respondent. Mid-American Gunite, Inc., 345 NLRB 1119, 1121– 1122 (2005). However, in the present case, Member Schaumber agrees for institutional reasons, based on the summary language in the com- plaint and the Respondent’s failure to file an answer, with the finding that the information requested was relevant to the Union’s performance of its duties as the bargaining representative, as such a finding is con- sistent with extant Board precedent. LONG BEACH PRESS-TELEGRAM 3 REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain col- lectively and in good faith with the Union by reducing its work force, including eliminating departments and job positions which resulted in the layoffs of the Respon- dent’s employees without prior notice to the Union and without affording the Union an opportunity to bargain with respect to this conduct and the effects of this con- duct, we shall order the Respondent to offer the laid-off employees full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).3 The Respondent shall also be re- quired to remove from its records all references to the unlawful layoffs, and to notify each of the employees in writing that this has been done and that the layoffs will not be used against them in any way. In addition, having found that the Respondents unlaw- fully subcontracted out or transferred bargaining unit work, including work in the design and copy-editing de- partments, without prior notice to the Union and without affording the Union an opportunity to bargain with re- spect to and the effects of this conduct, we shall order the Respondent to restore the status quo ante by returning the design and copy-editing departments to their original location at the Respondent’s Long Beach, California fa- cility and return the work previously performed in those departments to the bargaining unit employees.4 Further, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with relevant and necessary information to its 3 In the complaint, the General Counsel seeks compound interest computed on a quarterly basis for any backpay or other monetary awards. Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., Glen Rock Ham, 352 NLRB 516 at fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005). 4 At the compliance stage of the proceedings, the Respondent will be permitted to argue and present supporting evidence that restoring these departments would be unduly burdensome. San Luis Trucking, Inc., 352 NLRB 211 fn. 5 (2008); Allied General Services, 329 NLRB 568, 569 (1999); Lear Siegler, Inc., 295 NLRB 857 (1989). role as the exclusive collective-bargaining representative of the employees in the unit, we shall order the Respon- dent to furnish the Union in a timely manner with the information requested on April 30, May 8, June 17 and 30, 2008, respectively. ORDER The National Labor Relations Board orders that the Respondent, Long Beach Press-Telegram, Long Beach, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Southern California Media Guild, The Newspaper Guild-Communications Workers of America, Local 9400, AFL–CIO, as the exclusive collective- bargaining representative of the employees in the appro- priate unit below: All full-time and regular part-time employees em- ployed in the following departments: editorial, circula- tion, customer service, PBX and maintenance operation who are engaged in the publication and delivery of the Long Beach Press-Telegram at Long Beach, California; excluding all guards and supervisors as defined in the Act; excluding the following classifications within the editorial department: associate editor, assistant to the editor, business editor, city editor night, city editor day, assistant to the executive editor/confidential secretary, 1 confidential secretary, design editor, editorial pages editor, features editor, executive editor/Sr. VP, execu- tive news editor, features editor, managing editor, news editor, photo director, senior editor/sports/photo, sports editor, building manager; and excluding the following classifications within the circulation department: circu- lation director, 2 confidential secretaries, circulation promotions manager, home delivery manager, 4 re- gional home delivery managers, single copy sales man- ager, NIE coordinator. (b) Implementing a reduction in work force, including eliminating departments and job positions, without prior notice to the Union and without affording the Union an opportunity to bargain with respect to this conduct and the effects of this conduct. (c) Subcontracting out or transferring bargaining unit work, including work in the design and copy-editing de- partments, without prior notice to the Union and without affording the Union an opportunity to bargain with re- spect to and the effects of this conduct. (d) Failing and refusing to furnish the Union with in- formation that is relevant and necessary to its role as the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 exclusive collective-bargaining representative of the em- ployees in the unit. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer the laid-off unit employees full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed. (b) Make the laid-off unit employees whole for any loss of earnings and other benefits suffered as a result of the unlawful layoffs, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoffs of the unit employees, and within 3 days thereafter, notify the employees in writing that this has been done and that the layoffs will not be used against them in any way. (d) Restore the status quo ante by returning the design and copy-editing departments to their original location at the Respondent’s Long Beach, California facility and return the work previously performed in those depart- ments to the unit employees. (e) Furnish the Union in a timely manner the informa- tion requested on April 30, May 8, June 17 and 30, 2008, respectively. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its facility in Long Beach, California, copies of the at- tached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees 5 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.” are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since February 29, 2008. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. April 28, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 fail and refuse to bargain collectively and in good faith with Southern California Media Guild, The Newspaper Guild-Communications Workers of America, Local 9400, AFL–CIO as the exclusive collec- tive-bargaining representative of the employees in the appropriate unit below: LONG BEACH PRESS-TELEGRAM 5 All full-time and regular part-time employees em- ployed in the following departments: editorial, circula- tion, customer service, PBX and maintenance operation who are engaged in the publication and delivery of the Long Beach Press-Telegram at Long Beach, California; excluding all guards and supervisors as defined in the Act; excluding the following classifications within the editorial department: associate editor, assistant to the editor, business editor, city editor night, city editor day, assistant to the executive editor/confidential secretary, 1 confidential secretary, design editor, editorial pages editor, features editor, executive editor/Sr. VP, execu- tive news editor, features editor, managing editor, news editor, photo director, senior editor/sports/photo, sports editor, building manager; and excluding the following classifications within the circulation department: circu- lation director, 2 confidential secretaries, circulation promotions manager, home delivery manager, 4 re- gional home delivery managers, single copy sales man- ager, NIE coordinator. WE WILL NOT implement a reduction in work force, in- cluding eliminating departments and job positions, with- out prior notice to the Union and without affording the Union an opportunity to bargain with respect to such conduct and the effects of such conduct. WE WILL NOT subcontract out or transfer bargaining unit work, including work in the design and copy-editing departments, without prior notice to the Union and with- out affording the Union an opportunity to bargain with respect to such conduct and the effects of such conduct. WE WILL NOT fail and refuse to furnish the Union in- formation that is relevant and necessary to its role as the exclusive collective-bargaining representative of the em- ployees in the unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer the laid-off unit employees full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make the laid-off unit employees whole for any loss of earnings and other benefits suffered as a re- sult of the unlawful layoffs, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful layoffs of unit employees, and within 3 days thereaf- ter, notify the employees in writing that this has been done and that the layoffs will not be used against them in any way. WE WILL restore the status quo ante by returning the design and copy-editing departments to their original location at our Long Beach, California facility and return the work previously performed in those departments to the unit employees. WE WILL furnish the Union in a timely manner the in- formation requested on April 30, May 8, June 17 and 30, 2008, respectively. LONG BEACH PRESS-TELEGRAPH