Media General Operations, Inc. v. National Labor Relations Board ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1023
MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a
Richmond Times-Dispatch,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
RICHMOND NEWSPAPERS PROFESSIONAL ASSOCIATION,
Intervenor.
No. 06-1061
RICHMOND NEWSPAPERS PROFESSIONAL ASSOCIATION,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a
Richmond Times-Dispatch,
Intervenor.
No. 06-1213
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a
Richmond Times-Dispatch,
Respondent.
On Petitions for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (5-CA-29157; 5-CA-
29902; 5-CA-29914)
Argued: November 30, 2006 Decided: March 15, 2007
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Petitions for review denied; cross-application for enforcement
granted by unpublished per curiam opinion. Judge Niemeyer wrote a
separate opinion concurring in part and dissenting in part.
ARGUED: James V. Meath, WILLIAMS MULLEN, Richmond, Virginia, for
Media General Operations, Incorporated, d/b/a Richmond Times-
Dispatch. Jay Joseph Levit, Glen Allen, Virginia, for Richmond
Newspapers Professional Association. Kellie J. Isbell, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board. ON BRIEF:
King F. Tower, Heath H. Galloway, WILLIAMS MULLEN, Richmond,
Virginia, for Media General Operations, Incorporated, d/b/a
Richmond Times-Dispatch. Ronald Meisburg, General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, Fred B. Jacob, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for the Board.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This consolidated case is before us on the petitions of
Media General Operations, Inc., d/b/a Richmond Times-Dispatch
(Media General), and Richmond Newspapers Professional Association
(RNPA) to review an order of the National Labor Relations Board
(NLRB or Board). The NLRB has filed a cross-application for
enforcement of its order. The NLRB determined that Media General
violated sections 8(a)(1) and (5) of the National Labor Relations
Act (NLRA), 29 U.S.C. § 158(a)(1), (5), by disparately enforcing a
company e-mail policy and by failing to negotiate before
discontinuing payment for time spent by union negotiators in
bargaining sessions. The NLRB also dismissed RNPA’s complaints
that Media General violated sections 8(a)(1) and (5) by failing to
negotiate over the discontinuance of holiday bonuses and by failing
to pay the union president for time spent in arbitration. For the
reasons set forth below, we deny the petitions for review and
enforce the Board’s order.
I.
Media General publishes the Richmond Times-Dispatch, a
daily newspaper. RNPA represents the newspaper’s reporters and
other newsroom employees. Successive collective bargaining
agreements and accumulated past practice have governed the
relationship between Media General and RNPA for the past forty
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years. In 2000 and 2001 RNPA complained to the NLRB that Media
General had changed certain past practices without bargaining and
had enforced its e-mail policy in a discriminatory manner against
union members.
A.
The first complaint stems from Media General’s
instruction to the union to stop using the company e-mail system to
disseminate union messages. Media General had an official e-mail
policy that restricted use of the company e-mail system to matters
related to company business. The policy stated that “[t]he e-mail
system is provided to employees at Company expense to assist them
in carrying out the Company’s business.” J.A. 586. In practice,
however, employees transmitted a wide variety of messages unrelated
to company business, including personal messages, charitable
announcements, and union matters. Media General did little to
prevent these uses and disciplined only two employees for
violations that involved pornography. The general tolerance for e-
mail violations began to change in May or June 1999 when Media
General informed the RNPA president, Jonathan Pope, in a telephone
conversation that the union could not use the company’s e-mail
system for communicating union messages. This was followed by a
second verbal warning to Pope in September 1999. Pope did not
convey these warnings to the other union leaders or the general
membership. Apart from a reminder sent to Pope by e-mail in June
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2000, the company took no further action. The rest of the RNPA
bargaining committee first learned of Media General’s intent to
enforce the e-mail policy during negotiations for a new collective
bargaining agreement in July 2000. Media General told union
leaders to stop using Media General e-mail for union business.
Shortly thereafter, the union complained to the NLRB that Media
General had enforced the e-mail policy in a discriminatory manner
against the union.
B.
During the same July 2000 negotiations, Media General
announced that it would no longer pay employee representatives of
the union for time spent in bargaining sessions. Media General had
routinely offered such pay since 1995. Despite its past conduct,
the company did not allow discussion of its changed stance during
the ongoing negotiation sessions. The company stopped paying for
bargaining time in September 2000. To avoid a reduction in pay,
several union leaders worked additional hours to make up time spent
in bargaining sessions.
C.
RNPA also complained that Media General had engaged in an
unfair labor practice when it refused to pay a union representative
for time spent in arbitration proceedings. The complaint arose out
of a 1999 arbitration of an RNPA grievance concerning an employee’s
discharge. This was the first arbitration between the parties
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since 1969. Media General paid RNPA president Pope for time spent
discussing the grievance with Media General management, but did not
pay him for time spent in formal arbitration proceedings. Media
General informed Pope that arbitrations differed from negotiations,
and so the general practice of paying for negotiation time did not
encompass arbitration time. Pope was required to use a vacation
day in order to receive pay for the hours spent in arbitration.
D.
The union’s last complaint concerned the elimination of
holiday bonuses. Media General had paid employees an annual
holiday bonus since 1960. In July 2001 Media General called the
RNPA president to discuss the company’s plan to discontinue the
holiday bonus. The company attributed its decision to a general
economic downturn and acknowledged that it was a bargainable issue.
Following the phone call to the union, Media General sent a letter
to all employees informing them that “[a]s a result of the poor
economic climate, we are unable to pay a Christmas or Holiday bonus
this year . . . .” J.A. 630. After receiving this letter and the
company’s offer to bargain, the union requested “books and records
from which [it] c[ould] determine whether there [was] a ‘cash flow’
problem . . . .” J.A. 631-32. The union president declined to
bargain until requested financial information was made available to
RNPA. Media General explained to RNPA that it had not terminated
the bonuses because of an inability to pay; rather, it had
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voluntarily opted for “belt-tightening.” J.A. 633. The company
maintained that it was not obliged to turn over the requested
information and now argues that the union waived its right to pre-
termination bargaining by refusing to negotiate.
II.
Media General urges us to set aside the NLRB order
requiring the company to cease its disparate enforcement of its e-
mail policy and to negotiate with RNPA over the termination in pay
for collective bargaining time. We will uphold the NLRB’s findings
of fact when supported by substantial evidence. TNT Logistics of
North Am., Inc. v. NLRB, 413 F.3d 402, 405 (4th Cir. 2005). We
also will defer to the Board’s reasonable legal conclusions.
Americare Pine Lodge Nursing & Rehabilitation Center v. NLRB, 164
F.3d 867, 874 (4th Cir. 1999).
A.
An employer engages in an unfair labor practice when it
attempts to influence its employees’ efforts to organize by
interference, restraint, or coercion. 29 U.S.C. § 158(a)(1). As
part of this prohibition, an employer may not interfere with its
employees’ ability to communicate union messages or discriminate
between union communications and other non-company messages in the
workplace. See NLRB v. Challenge-Cook Bros. of Ohio, Inc., 374
F.2d 147, 153 (6th Cir. 1967). When company-sponsored channels of
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communication are opened to non-company purposes, the NLRA
prohibits an employer from preventing use for union purposes. See
NLRB v. Honeywell, Inc., 722 F.2d 405, 406-07 (8th Cir. 1983); E.I.
Du Pont de Nemours & Co., 311 N.L.R.B. 893, 893 n. 4, 919 (1993).
Media General first argues that the union’s claim was not
timely because, if any discriminatory enforcement occurred, it
happened at the time of the first warning in 1999. The NLRB
reasonably found that the company’s July 2000 enforcement of the
policy was independent of prior warnings that occurred outside the
limitations period. NLRA section 10(b) requires employees wishing
to challenge an unfair labor practice to file a charge within six
months of the alleged violation. 29 U.S.C. § 160(b). The first
warning was issued over a year before the union filed its
complaint. The NLRB, however, found that the claim was not time-
barred because each of Media General’s warnings to the union
constituted independent violations of section 8(a)(1). Cf.
Brewery, Soda & Mineral Water Bottlers of Calif., 339 N.L.R.B. 769,
770 (2003) (reposting of identical letters within the 10(b) period
renders them vulnerable to attack). Under this interpretation, the
July 2000 warning falls solidly within the 10(b) period. This
warning can reasonably be deemed a separate violation because Media
General had taken no action to punish violators after the prior
warnings to the union president. Moreover, the July 2000 warning
was issued to a broader group of union leaders in the formal
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context of a collective bargaining session. This distinguishes the
July 2000 warning from the company’s prior informal communications
to Pope.
The NLRB’s conclusion on the merits was also reasonable.
The Media General e-mail policy restricted use of the e-mail system
to company purposes. The company made no attempt, however, to
enforce the policy against any violations other than union
messages. The record contains numerous examples of messages
unrelated to the work of the newspaper. The e-mail system was
frequently used by both hourly employees and managers to convey
news about the employees’ personal lives, to arrange social events,
and to inform employees about charities. Restriction of the
union’s access to this communication channel, while others were
allowed unfettered access, is an unfair labor practice that is
prohibited by the NLRA.
B.
NLRA sections 8(a)(5) and (d), 28 U.S.C. § 158(a)(5),
(d), require employers to engage in good faith collective
bargaining with union representatives before changing a term or
condition of employment. NLRB v. Katz, 369 U.S. 736, 743 (1962).
Terms or conditions of employment are subject to mandatory
bargaining if they have been memorialized in a collective
bargaining agreement or if they have been established by the
employer’s past practice or custom. Bonnell/Tredegar Indus., Inc.
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v. NLRB, 46 F.3d 339, 344 (4th Cir. 1995). Pay for time spent in
negotiation sessions may qualify as a subject of mandatory
bargaining. See Axelson, Inc. v. NLRB, 599 F.2d 91, 94-95 (5th
Cir. 1979).
The collective bargaining agreement between RNPA and
Media General does not require the company to pay union
representatives for time spent in negotiations. Thus, Media
General’s unilateral decision to discontinue pay for bargaining
time would be prohibited only if the company had established a past
practice of awarding such pay. See Bonnell/Tredegar, 46 F.3d at
344. For at least five years, Media General routinely paid union
negotiators for time spent in collective bargaining. This is
sufficient to establish a past practice. See, e.g., Keystone Steel
& Wire v. NLRB, 41 F.3d 746, 750 (D.C. Cir. 1994) (six-year
practice established an implied term or condition of employment).
The lack of any evidence of an offer to bargain prior to the
termination announcement supports the NLRB’s conclusion that Media
General failed to fulfill its duty to bargain in good faith with
RNPA.
III.
In its petition RNPA argues that the NLRB erroneously
dismissed its claims related to holiday bonuses and pay for
arbitration time. We will uphold the NLRB’s dismissal of a claim
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so long as there is a rational basis in the record for the Board’s
action. Am. Postal Workers Union v. NLRB, 370 F.3d 25, 27 (D.C.
Cir. 2004).
A.
RNPA claims that Media General impermissibly altered a
term of employment by refusing to pay union representatives for
time spent in arbitration of grievances. The union argues that the
company’s past practice of paying for time spent in preliminary
grievance proceedings and collective bargaining prevent Media
General from refusing to pay for arbitration time without first
bargaining to impasse.
Grievances between RNPA and Media General are typically
resolved before reaching arbitration. The only other arbitration
in recent memory was held in 1969. The collective bargaining
agreement between the parties distinguishes between ordinary
grievance resolution and arbitration. When a grievance is brought,
the parties have five days in which to hold a meeting and attempt
to reach agreement regarding the dispute. The dispute goes to
arbitration only if the parties fail to reach agreement within
thirty days and one of the parties requests it. Unlike the
preliminary grievance proceedings, an arbitration involves outside
decisionmakers and takes on a more adversarial tone. The NLRB
could reasonably conclude that Media General may have wanted to pay
for cooperative efforts to resolve grievances to avoid arbitration,
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but not wanted to pay once negotiations had broken down and outside
dispute resolution was required. Thus, the NLRB had a rational
basis for concluding that the infrequency of arbitrations and the
differing roles assumed by the parties support an inference that
the company wished to establish a custom of pay for preliminary
grievance resolution but not for arbitration. The NLRB reasonably
required the union to show a past practice relating specifically to
arbitration proceedings. Because only one other arbitration had
occurred in the preceding thirty years, the union failed to show
that pay for arbitration time had become an implied term of
employment and a mandatory subject of bargaining.
B.
Media General concedes that the annual holiday bonus was
a term of employment that it could not change unilaterally without
bargaining. It argues, however, that it was relieved of the duty
when RNPA rebuffed its offer to bargain for no valid reason. RNPA
claims that it was entitled to examine certain company financial
data before bargaining and that Media General violated the NLRA by
withholding the requested information.
An employer’s refusal to accommodate a union’s request
for financial information to substantiate a claimed inability to
meet union demands “may support a finding of a failure to bargain
in good faith.” NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956).
The company need not honor such requests when it expresses only an
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unwillingness to pay. Wash. Materials, Inc. v. NLRB, 803 F.2d
1333, 1338-39 (4th Cir. 1986).
To show Media General’s inability to pay, the union
relies on a letter sent by Media General to all employees informing
them of its decision to discontinue payment of holiday bonuses.
The letter stated that the company was “unable to pay” the 2001
holiday bonus because of the “poor economic climate.” J.A. 630.
The letter described the elimination of bonuses as part of a
broader plan to cut costs and avoid layoffs. Despite the “unable
to pay” language, reasons such as these are generally interpreted
as expressions of unwillingness to pay. Nielsen Lithographing Co.,
305 N.L.R.B. 697, 700 (1991). Elimination of a benefit in response
to poor economic conditions is not the same as a claim that the
company is without resources to pay the benefit. The company’s
response to the union’s request for financial information clarified
explicitly that it was unwilling, rather than unable, to pay the
bonuses. Substantial evidence thus supported the NLRB’s conclusion
that Media General had no duty to disclose its financial
information to the union.
Without any unfulfilled duty on the part of Media
General, RNPA had no basis for its refusal to bargain. A union
must act with due diligence to request bargaining when it receives
notice of a contemplated change in the terms or conditions of
employment. Haddon Craftsmen, Inc., 300 N.L.R.B. 789, 790-91
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(1990). If the union fails to make such a request, there are no
grounds for finding that the employer violated its duty to bargain
in good faith. Id.After declining Media General’s initial offer to bargain,
RNPA never asked for independent bargaining sessions to address the
bonus issue. The record contains testimony indicating that the
bonuses may have been discussed during the general negotiations
over the new collective bargaining agreement. However, the
contradictions in the record and the union’s clear failure to
request bargaining on the bonus issue provide a rational basis for
the NLRB’s conclusion that Media General did not violate its duty
to bargain.
IV.
In sum, substantial evidence supports the NLRB’s
conclusions that Media General violated NLRA sections 8(a)(1) and
(5) by enforcing its e-mail policy in a discriminatory manner and
discontinuing pay for time spent in negotiations. The NLRB also
had a rational basis for dismissing RNPA’s arbitration and holiday
bonus claims. We therefore deny the petitions for review and grant
the Board’s application for enforcement of its order.
PETITIONS FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
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NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
I would grant the petition for review and deny the NLRB’s
enforcement with respect to the e-mail policy. Otherwise, I agree
with the majority opinion.
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