Pantagraph Publishing Company

National Labor Relations Board - Administrative Judge Opinions

Dec 16, 2010

33-CA-015798 (N.L.R.B. Dec. 16, 2010)

JD-68-10 Bloomington, IL UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES PANTAGRAPH PUBLISHING CO. and Case Nos. 33-CA-15798 33-CA-15945 DISTRICT COUNCIL FOUR, GRAPHIC COMMUNICATIONS CONFERENCE OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS Ahavaha Pyrtel, Esq., and Melissa Olivero, Esq., for the General Counsel L. Michael Zinser, Esq., and Glenn E. Plosa, Esq. (The Zinser Law Firm, P.C.), for the Respondent Thomas D. Allison, Esq. (Allison, Slutsky & Kennedy, P.C.), for the Charging Party DECISION Statement of the Case JEFFREY D. WEDEKIND, Administrative Law Judge. The consolidated complaints in these cases allege that the Respondent has unlawfully announced and implemented various changes in its medical and retirement plans and service award program since its most recent collective-bargaining agreement with Local 568M (the Union) expired in February 2008.1 Specifically, the General Counsel alleges that these actions violated Section 8(a)(5) and (1) of the Act because they constituted changes in past practices and the Respondent did not provide the Union with prior notice or an opportunity to bargain about the changes or their effects.2 Following two prehearing conferences, the cases were tried before me on August 30 and 31, 2010, in Peoria, Illinois.3 Thereafter, on November 3, 2010, the General Counsel, the Respondent, and the Charging Party filed posthearing briefs. After considering the briefs and the entire record, including my observation of the demeanor of the witnesses, I make the following 1 As used herein, “the Union” also includes the predecessor unions to Local 568M. Local 568M has been affiliated with District Council Four (the Charging Party) since 2007 (Tr. 41-43). Although Local 568M is a separate legal entity with its own officer structure, it has no treasury and District Counsel Four pays all of its bills (Tr. 100). 2 The underlying charge in Case 33-CA-15798 was filed on April 30, 2009, and the complaint issued on September 30, 2009. The charge in Case 33-CA-15945 was filed on November 19, 2009, and the complaint issued on February 25, 2010. The Acting Regional Director’s order consolidating the cases issued March 5, 2010. 3 The Respondent’s unopposed October 7, 2010 motion to correct the transcript is granted. JD-68-10 5 10 15 20 25 30 35 40 45 50 2 Findings of Fact I. Jurisdiction The Respondent is a corporation that publishes newspapers at a facility in Bloomington, Illinois. The Respondent admits, and I find, that it purchased and received over $50,000 in goods directly from outside Illinois during the past calendar year, and that it is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. Alleged Unfair Labor Practices A. Background The relevant facts are largely undisputed. The Respondent currently employs approximately 170 employees. Of these, the vast majority (160) are not represented. The remaining 10, the pressroom employees, are represented by the Union. The Union has represented the pressroom unit for many years and through several changes in ownership. Indeed, according to Mark Hoffman, the current union secretary, the Union has represented the unit for over 100 years. (Tr. 42-43, 103, 106; see also Tr. 42-43, 239.) The Union, of course, has negotiated numerous collective-bargaining agreements with the Respondent over this period. However, prior to the most recent 2005-2008 contract, none of these agreements included any provisions regarding the unit employees’ participation in the company health insurance and retirement plans or service award program. (See R. Exhs. 1- 5).4 Nevertheless, as a matter of practice, the Respondent offered the unit employees the same health and retirement benefits on the same terms that it offered to its nonunit employees (Tr. 170, 177, 201, 293-299, 352, 389). It also gave them service awards at the same frequency (at their 10, 20, and 25-year anniversary dates, and every 5 years thereafter) and in the same manner (a gift, or more recently, a check or cash totaling $10 for each year of service) as nonunit employees (Tr. 147, 195-196, 201, 259-260, 269, 359-361, 393). Similarly, whenever the Respondent made any changes to the health or retirement plans or service award program, which it did frequently, it made the same changes for both the unit and the nonunit employees. The Respondent did so without notice to, bargaining with, or protest from the Union, even though the changes were always made during the contract term, none of the contracts contained a management-rights clause permitting such unilateral changes, and many of the changes were substantial (such as liquidating and substituting different retirement/pension plans, changing health care providers, and significantly decreasing or increasing employee contributions or premiums). Again, the changes were part of the accepted practice that had developed between the parties over the years. (Tr. 132, 147, 155- 156, 180-181, 191, 293-307, 329-337, 360-365, 394, 413; R. Exhs. 1-5, 61-68, 105, 112- 117, 141-144.)5 4 The contracts included an attached “supplement” providing for company contributions to a GCIU-Employer Retirement Fund, a separate pension fund limited to union members (R. Exhs. 1-5; Tr. 125-126, 170). However, the provisions of that supplement are not at issue here. 5 It is undisputed that, prior to the instant charges, not a single grievance or unfair labor practice charge was filed against the company regarding the Respondent’s failure to give notice or bargain over any of these unilateral changes or their effects (Tr. 105, 179-181). JD-68-10 5 10 15 20 25 30 35 40 45 50 3 However, when negotiations for a new labor agreement began in 2005, it was known to both parties that there would soon be another change in ownership, i.e. that the company, which was then owned by Pulitzer, would soon be bought by Lee Enterprises (Lee).6 Accordingly, in an effort to preserve the past practice regarding medical and retirement benefits, for the first time a new provision (section 13) was proposed and agreed to that specifically stated (1) that the company would provide unit employees with the same health and retirement plans as nonunit employees, and (2) that the company would have the “sole and exclusive” right to change these benefits.7 There is no evidence, however, that any language was specifically proposed or agreed to regarding the service award program. (Tr. 109, 116, 184, 390, 393, 418; GC Exhs. 2-4; CP Exhs. 5-6.) Lee did, in fact, acquire the Respondent, via a stock purchase, in June 2005, a few months after the new 2005-2008 contract was executed (Tr. 108, 156, 179, 235). Thereafter, over the remaining term of the contract,8 the Respondent continued the same past practices with respect to the medical and retirement plans, including making various changes to the plans. As in the past, many of these changes were substantial. For example, employees were transitioned from Pulitzer’s to Lee’s medical plans, and the Pulitzer 401(k) plan was merged into the Lee Retirement Account Plan (RAP). The Respondent also made regular adjustments to plan designs and employee premiums and contribution amounts, including adding a wellness incentive/discount to the medical plan in January 2008. Again, as in the past, these changes were made for both unit and nonunit employees and without notice to, bargaining with, or protest from the Union. (Tr. 74-75, 132-135, 180-181, 191, 211, 315, 320; GC Exh. 5; R. Exhs. 42-48, 69-78, 118, 126-128, 131-132, 146-148, 150, 153-158, 242-244, 248.) The Respondent also made changes in the service award program. Indeed, in February 2007, the Respondent adopted a revised employee recognition program for nonunit employees that specifically excluded unit employees altogether (Tr. 360). Under this revised program, which it announced to nonunit employees and implemented in June 2007 (R Exh. 167; Tr. 360- 376), the nonunit employees were given their monetary service awards as VISA gift cards, and received them earlier and more frequently than in the past, i.e. every 5 years. They were also invited to a luncheon and given a company shirt. In addition, an email was sent to all other nonunit employees notifying them of the employee’s service, and a “happy ad” with the employee’s picture was placed in the published newspaper. (Tr. 252-254, 259-271, 360-362, 394.) 6 Pulitzer had previously purchased the company from the San Francisco Chronicle in 2000 (Tr. 102, 236-237). 7 The full text of section 13 reads as follows: The Publisher agrees to provide bargaining unit employees with the same group health insurance, life insurance, long-term disability, retirement, reimbursement accounts, accidental death and dismemberment insurance, funeral, military and jury leave, FMLA and VESSA leave and supplemental insurance programs that are in effect for non-bargaining unit employees. It is agreed that the Publisher shall have the sole and exclusive right to change any or all of these benefits from time to time including, but not limited to, plan design, copays, deductibles, eligibilities, premium costs, insurance carriers, self-insurance funding status, and company matches. (GC Exh. 2, p 6.) 8 A stock purchaser generally remains bound to a collective-bargaining agreement in effect at the time of the transaction. Transmontaigne, Inc., 337 NLRB 262, 263 fn. 6 (2001), citing Rockwood Energy & Mineral Corp., 299 NLRB 1136, 1139 (1990), enfd. 942 F.2d 169 (3d Cir. 1993). JD-68-10 5 10 15 20 25 30 35 40 45 50 4 Nevertheless, as with the changes to the medical and retirement plans, the Respondent did not provide the Union with advance notice or an opportunity to bargain over these changes (Tr. 152-153, 256-257, 266, 364-368). Similarly, there is no evidence that the Union formally protested or demanded bargaining over them, either at that time or when a unit employee (Fred Render) subsequently failed to receive a monetary award on his 30-year service anniversary in September 2007. (Tr. 368, 395-397; and R. Exh. 6.) The 2005-2008 contract expired according to its terms on February 10, 2008. Over the next 2 1/2 years, the parties met and bargained on 28 individual days in an effort to reach a new agreement. However, as of the recent hearing, no agreement or impasse had been reached. (Tr. 46-49, 171.) B. The Postexpiration Changes in the Medical and Retirement Plans The Respondent continued to announce and implement various unilateral changes in the medical and retirement plans following expiration of the 2005-2008 contract. With respect to the medical plan, the Respondent announced on November 16, 2008 and October 26, 2009, during the annual open enrollment periods, that it would be increasing employee costs for the upcoming calendar years; also announced on the latter date that it would be significantly modifying the wellness incentive; and implemented these announced changes effective January 1, 2009 and January 1, 2010, respectively.9 With respect to the retirement plan, the Respondent announced on October 31, 2008 that it would be reducing its matching contributions by half; subsequently announced on January 30, 2009 that it would be suspending its matching contributions altogether; and implemented these announced changes effective December 1, 2008 and February 1, 2009, respectively. Again, as in the past, these changes were announced and implemented for both unit and nonunit employees and without prior notice to, or bargaining with, the Union over the changes or their effects. (Tr. 53, 64-68, 73-74, 127-132, 138, 145, 255-257, 266, 272, 322-323; GC Exhs. 5-7, 9-10; CP Exhs. 2, 4; R. Exhs. 80, 85, 160, 242 ).10 Unlike in the past, however, the 9 The complaint in Case 33-CA-015798 (par. 6) alleges that the Respondent also “implemented” a wellness incentive effective January 2009. However, as indicated above, the record indicates that a wellness incentive was first implemented in January 2008, prior to expiration of the 2005-2008 contract. The General Counsel’s posthearing brief also asserts (p. 8) that the Respondent made “a change” in the wellness discount incentive effective January 2009, citing a letter from the Respondent’s attorney to the Union’s attorney dated December 24, 2008 (GC Exh. 5). However, that letter simply described the reductions available under the 2009 incentive, without drawing any comparisons to the 2008 incentive. Further, no changes in the incentive were mentioned in the open enrollment summary of “what’s new for 2009,” which was sent to employees in the fall of 2008 (GC Exh. 85). 10 The record also indicates that the Respondent executed various other amendments to the retirement plan after the 2005-2008 contract expired on February 10, 2008 (R. Exhs. 132-136, 138, 140); however, the amendments were effective January 1, 2008 or earlier, and the General Counsel does not allege that they were unlawful. The record also indicates that the Respondent notified employees of a change in the prescription-drug plan mail-order program effective March 1, 2008 (R. Exh. 80; Tr. 321). However, the record does not indicate whether the employees were notified of the change before or after the contract expired, and the General Counsel does not allege that this change was unlawful either. JD-68-10 5 10 15 20 25 30 35 40 45 50 5 Union objected to, and demanded bargaining over, the post-expiration changes when it became aware of them (Tr. 53, 57-60; GC Exhs. 5, 13; CP Exhs. 1, 2).11 As indicated above, the General Counsel alleges that the Respondent’s admitted refusal to bargain over these changes and their effects violated Section 8(a)(5) of the Act. The General Counsel does not dispute that section 13 of the 2005-2008 agreement permitted such unilateral changes and that the Respondent had a past practice of making frequent changes for both unit and nonunit employees during the term of both that contract and prior contracts. (See Tr. 110; and GC Br. 16, 24.) Nevertheless, the General Counsel argues that neither circumstance privileged the Respondent to make the subject, postexpiration changes here, as management- rights provisions do not survive contract expiration and past practices during a contract do not support changes during a hiatus, citing, e.g., E. I. DuPont De Nemours, Louisville Works, 355 NLRB No. 176 (2010); and Register-Guard, 339 NLRB 353 (2003). However, the General Counsel’s argument slightly (but significantly) misstates the current law regarding past practices. E. I. DuPont and Register-Guard do not hold that past practices during a contract do not support unilateral changes during a hiatus; rather, they hold that past practices implemented “under the authority of a contractual management-rights provision”-that is, “contractually authorized” past practices- do not support unilateral changes during a hiatus. E. I. DuPont, above, slip op. at 1; see also Register-Guard, above at 355-356 (employer’s past changes, all but one of which were “implemented under a contractual provision” reserving managerial discretion, did not establish a past practice allowing the changes at issue). Here, although all, or virtually all, of the Respondent’s past changes were announced and/or implemented during the term of an agreement (see fn. 10, supra), the record indicates that none but the most recent of those contracts over the past century contained a management-rights provision. Further, whether legally necessary or not, section 13 of the 2005-2008 agreement was specifically intended by the parties to contractually preserve the parties’ longstanding past practice under the anticipated new ownership. Thus, even the changes during the 2005-2008 agreement were, in this respect, grounded in the parties’ past practice. In any event, unlike in E. I. DuPont and Register-Guard, it is clear that the past unilateral changes here were not announced and implemented solely “under the authority of” a contractual management-rights provision. Given these circumstances, in agreement with the Respondent, I find that E. I. DuPont and Register-Guard are distinguishable, and that the controlling precedent is instead the Board’s prior decision in Courier-Journal, 342 NLRB 1093 (2004). In Courier-Journal, the Board found that the employer’s postexpiration changes to unit employees’ health care premiums were lawful because the changes were made for both unit and nonunit employees consistent with prior changes made both during the parties’ successive contracts (the most recent of which contained a provision very similar to section 13 here) and during hiatus periods between contracts. Although the Board did not pass on precedent holding that contractual waivers do not survive contract expiration as a matter of law, it found that the evidence was sufficient in that case to establish that the subject changes were grounded in past practice rather than 11 There is no evidence, however, that the Union specifically requested bargaining over the effects of the changes. JD-68-10 5 10 15 20 25 30 35 40 45 50 6 contractual sanction. For the reasons discussed above, in agreement with the Respondent, I find that the evidence is at least as sufficient in this case.12 The General Counsel also argues that the parties specifically intended that section 13 would expire with the contract. However, Secretary Hoffman, who was a union bargaining committee member in 2005, admitted at trial that the expiration issue was never discussed during the 2005 contract negotiations, and that he made no mention of it in his pretrial affidavit to the General Counsel (Tr. 188). See also Tr. 218-219 (admitting that the only basis for his understanding was “The Labor Act”/”labor law”). Barry Winterland, the Respondent’s general manager and controller since 2003, and a member of the Respondent’s bargaining team in 2005, also testified that there was no discussion during the 2005 negotiations about section 13 automatically expiring with the contract (Tr. 295). Further, as indicated above, Courier-Journal (which issued several months before section 13 was proposed and agreed to, and has not since been overruled) makes clear that, regardless of whether contract expiration extinguishes a management-rights provision, it does not extinguish past practices of the kind here. Finally, the General Counsel also argues that the Respondent’s prior changes fail to establish a sufficient past practice because they were both “wholly discretionary,” and “variable and ad hoc,” citing Berkshire Nursing Home, 345 NLRB 220 (2005); Larry Geweke Ford, 344 NLRB 628 (2005); and Eugene Iovine, Inc., 328 NLRB 294 (1999). However, a similar “wholly discretionary” argument was specifically considered and rejected by the Board in Courier- Journal, 342 NLRB at 1094, and must therefore be rejected here as well. I also reject the General Counsel’s argument that the Respondent’s prior changes were too “variable and ad hoc.” Unlike in the cases cited by the General Counsel (which involved newly certified or elected unions), here the parties have a 100-year collective-bargaining relationship. Further, not only the changes, but the benefits themselves, have historically been grounded in past practice rather than contractual provisions during that time. In this context, I find that the Respondent’s long history of making frequent, substantial, routine and nonroutine unilateral changes to the benefit plans for unit and nonunit employees alike-a history well documented in the record by both the evidence of the past changes and the language of section 1313- sufficiently establishes that the unit employees “could reasonably expect the ‘practice’ to continue or reoccur on a regular and consistent basis.” Caterpillar, Inc., 355 NLRB No. 91, slip op. at 3 (2010), quoting Sunoco, Inc., 349 NLRB 240, 244 (2007). Accordingly, for all the foregoing reasons, I find that the Respondent has satisfied its burden of showing that the subject unilateral changes in the medical and retirement plans were announced and implemented unilaterally for nonunit and unit employees alike pursuant to a well-established past practice; and that the unilateral changes were therefore lawfully 12 The Respondent also cites the judge’s findings and analysis dismissing similar allegations in Mt. Clemens General Hospital, 344 NLRB 450, 460 (2005). However, the Board did not pass on the judge’s findings and analysis as no exceptions were filed regarding the dismissed allegations. See id. at fn. 2. 13 As noted above, section 13, which was intended to reflect and preserve the parties’ past practice, specifically states that the Respondent will provide bargaining unit employees with the same health and retirement benefits as nonunit employees, and “shall have the sole and exclusive right to change any of all of these benefits from time to time including, but not limited to, plan design, copays, deductibles, eligibilities, premium costs, insurance carriers, self- insurance funding status, and company matches.” JD-68-10 5 10 15 20 25 30 35 40 45 50 7 announced and implemented without prior notice or bargaining over the decisions or their effects under extant precedent.14 C. The Postexpiration Failure to Give 25-year Service Awards to Unit Employees The Respondent also continued to unilaterally deny service awards to unit employees following expiration of the 2005-2008 contract. After Render was denied a 30-year award in September 2007, the next two unit employees to be denied service awards on their anniversary dates were Todd Jefferson in August 2008 (20 years), and Brian Morse (who was the union assistant shop steward and a member of the union bargaining committee) in March 2009 (10 years). (Tr. 198, 398-400; R. Exh. 6.) As in September 2007, there is no evidence that the Union formally protested at either time. Nor did the Union propose any new language regarding service awards during the ongoing negotiations over a successor agreement (Tr. 204). Several months later, however, in August and September 2009, the Respondent failed to give service awards to two more unit employees: Hoffman (who was the union shop steward at the time) and Dean Williams, both of whom reached the 25-year mark. (Tr. 104-107, 148-151; GC Exhs. 11-12; R. Exh. 6.) Shortly thereafter, by letter dated November 5, 2009 (CP Exh. 1), the Union formally objected to, and demanded bargaining over, the Respondent’s failure to grant the 25-year service awards. The Respondent, however, refused to do so (CP Exh. 2). The General Counsel alleges, the Respondent does not seriously dispute, and I find that the failure to give unit employees 25-year service awards in the same manner as nonunit employees constituted a material and substantial unilateral change in past practice regarding a mandatory subject of bargaining. The Respondent, however, contends that the relevant change excluding unit employees from service awards (including but not limited to 25-year service awards) had been implemented long before, in June 2007; that the Union had actual or constructive knowledge of the change no later than March 2009, when Assistant Shop Steward Morse was denied a 10-year award; and that the relevant unfair labor practice charge alleging the refusal to make 25-year awards to Hoffman and Williams in August and September 2009, which was not filed and served until November 19, 2009, is therefore barred under the 6-months limitations period in Section 10(b) of the Act. For the reasons set forth below, I find that the Respondent’s 10(b) defense fails, and that the Respondent violated the Act as alleged. It is well established that the Section 10(b) limitations period does not begin to run “until the charging party is on ‘clear and unequivocal notice,’ either actual or constructive, of a violation of the Act.” Ohio and Vicinity Regional Council of Carpenters (The Schaefer Group, Inc.), 344 NLRB 366, 367 (2005) (citation omitted). Under this standard, adequate notice will be found where the conduct was sufficiently “open and obvious to provide clear notice” to the charging party (Broadway Volkswagen, 342 NLRB 1244, 1246 (2004), enfd. sub nom. East Bay Automotive Council v. NLRB, 483 F.3d 628 (9th Cir. 2007)), or where the charging party was “on notice of facts that reasonably engendered suspicion that an unfair labor practice had occurred,” and could have discovered the violation by exercising reasonable diligence (Phoenix Transit System, 335 NLRB 1263 fn. 2 (2001)). Accord: United Kiser Services, 355 NLRB No. 55, slip op. at 2 (2010). Conversely, Section 10(b) will not bar a charge where the employer has sent conflicting signals or engaged in ambiguous conduct. Concourse Nursing Home, 328 NLRB 692, 694 (1999), citing A & L Underground, 302 NLRB 467, 469 (1991). 14 In light of this finding, it is unnecessary to reach the Respondent’s other affirmative defenses to these allegations. JD-68-10 5 10 15 20 25 30 35 40 45 50 8 Here, as indicated above, it is undisputed that the Respondent did not formally or directly notify the Union in June 2007 either that it was terminating the existing service award program that rewarded both unit and nonunit employees, or that it was implementing a revised program that rewarded only nonunit employees for their length of service. Indeed, the record indicates that not even the unit employees themselves were given any formal notice of these changes. The notice of the revised program was emailed only to nonunit employees (R. Exh. 167).15 Further, contrary to the usual practice with respect to notices affecting unit employees, the notice was not posted in the pressroom or copied and distributed to the employees. Instead, it was only posted in two vending areas on the second and fourth floors that were frequented by nonunit employees and where the unit employees merely “might” sometimes go to get a soda or snack. (Tr. 364-375; see also Tr. 347-351 (discussing the usual practice).) Moreover, the Respondent’s actions following adoption and implementation of the revised program in February and June 2007, respectively, were at least ambiguous, if not inconsistent. Thus, the record indicates that the Respondent continued, as it had in the past, to announce anniversary dates for both unit and nonunit employees in the Pantagraph Family Circle, the in-house company newsletter distributed to all employees (R. Exh. 245-247). In addition, General Manager Winterland admitted that the Respondent actually gave a 25-year service award to one unit employee (Eli Lahr) sometime after June 2007, even though it had failed to give him the award when he reached his 25-year anniversary date in April 2007. Winterland testified that the company decided to “grandfather” Lahr under the old program because his anniversary arose during the 4-month interval between the revised program’s adoption and implementation. However, there is no evidence that this was explained to either Lahr or the Union at the time. And Winterland admitted that Lahr received his award as a VISA gift card, which, as indicated above, was a feature of the revised program, not the old program. (Tr. 260-261, 363, 367, 372-373; R. Exh. 6.) The record also fails to establish that the Union had actual or constructive notice during the remainder of 2007, 2008, or early 2009 that the Respondent had terminated its past practice of giving unit employees the same 25-year monetary service awards as nonunit employees. In arguing to the contrary, the Respondent cites the uncontroverted testimony by Winterland and Daniel O’Brien, the Respondent’s director of operations, that they advised Render in September 2007, in the presence of two other unit employees, that he would not get a 30-year service award because unit employees were not included in the Respondent’s revised program (Tr. 397, 395-397). It also cites O’Brien’s uncontroverted testimony that Jefferson and Morse likewise complained to him when they did not receive their 20-year and 10-year monetary awards in August 2008 and March 2009, respectively (Tr. 397-400). However, neither Render nor the two other employees present were union officials, and there is no evidence they told the Union about the September 2007 conversations with Winterland and O’Brien. Nor is there any evidence that Winterland or O’Brien advised them whether unit employees who reached different anniversary marks would also be denied awards under the old or revised program, or what type of awards were provided to nonunit employees under the revised program. And there is no evidence that O’Brien gave any explanation whatsoever to Jefferson or Morse when they expressed displeasure to him about not receiving their 20-year and 10-year monetary awards in August 2008 and March 2009, respectively. In arguing that the Union had actual or constructive notice, the Respondent also cites (1) an October 19, 2007 edition of the The Pantagraph Family Circle, which announced that the 15 Unlike nonunit employees, unit employees are not provided with company email addresses (Tr. 268). JD-68-10 5 10 15 20 25 30 35 40 45 50 9 “first annual Service Award Luncheon” had been held 2 days earlier for 38 nonunit employees (R. Exh. 248); and (2) the individual employee service anniversary announcements in the newsletter and in newspaper “happy ads” during late 2007, 2008, and early 2009 (R. Exhs. 171, 174, 176, 180, 183, 185, 189, 245-247). However, the October 2007 newsletter reported only that the 38 nonunit employees were “recognized” at the luncheon for marking 5, 10, 15, 20, 25, 30, 35, and 40 years of service in fiscal year 2007. Although it also stated that “special awards” were presented to 25 and 40-year honorees, it did not specify what those awards were or whether non-“special” monetary awards were given to the other honorees who reached different anniversary marks. The individual anniversary announcements in the newsletter and in newspaper “happy ads” for nonunit employees likewise did not specify what type of awards, if any, were given. Further, as noted above, unit employee Lahr actually received a 25-year monetary award sometime between June and December 2007, and his anniversary and other unit employees’ anniversaries continued to be mentioned in the newsletter along with the anniversaries of nonunit employees. Finally, the foregoing circumstances must be considered in light of the Respondent’s exceptionally long and previously unbroken history of making all of its unilateral changes applicable to both unit and nonunit employees alike. Indeed, as discussed above, this practice has continued to date with respect to the company medical and retirement plans. In this context, even if the Union knew or could properly be imputed with knowledge that the unit employees would no longer get monetary service awards at one or more of their usual anniversary dates under the old program, it would not reasonably suspect that this change in the service award program applied to the unit employees only; in fact, it would reasonably assume the opposite. Accordingly, considering all of the relevant facts and circumstances, I find that the Respondent has failed to meet its burden of showing either that the change was “open and obvious,” or that the Union otherwise had sufficient constructive notice that the Respondent had materially and substantially changed its past practice with respect to 25-year monetary service awards, outside the 10(b) period.16 Therefore, as the Respondent has not presented any other defenses to the allegation (see Tr. 11-14, 24-25; Br. 67-74), I find that it violated the Act as alleged. Conclusions of Law 1. By unilaterally changing its past practice of giving the same service awards to both unit and nonunit employees by failing and refusing to give $250 awards to unit employees who reached their 25-year service anniversary in August and September 2009, without providing the Union prior notice or an opportunity to bargain to an agreement or impasse, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 16 The posthearing briefs filed by the General Counsel and the Union do not assert that the Respondent’s 10(b) defense should also be rejected under a “continuing violation” theory, or because the service award allegation is “closely related” to the allegations in the earlier charge filed on April 30, 2009. In any event, in light of my finding that the defense fails for lack of actual of constructive notice to the Union outside the 6-month limitations period, it is unnecessary to address alternative theories. JD-68-10 5 10 15 20 25 30 35 40 45 50 10 2. The Respondent did not violate the Act from October 31, 2008 through January 10, 2010, by unilaterally announcing and implementing, consistent with past practice, various changes in the company medical insurance and retirement plans for both unit and nonunit employees. Remedy Having found that the Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(5) by unilaterally changing its past practice of giving the same service awards to both unit and nonunit employees by failing and refusing to give $250 awards to unit employees Mark Hoffman and Dean Williams when they reached their 25-year service anniversaries in August and September 2009, I shall order the Respondent, on request, to rescind the unilateral change in its past practice and maintain the past practice until the parties have bargained to an agreement or valid impasse. In addition, I shall order the Respondent to make whole Hoffman and Williams, and any other unit employees who have been denied a monetary service award since August 2009, pursuant to the Respondent’s unlawful change in the past practice, by giving them their monetary service award consistent with past practice, plus interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). Finally, I shall order the Respondent to post a notice to all employees in accordance with J. Picini Flooring, 356 NLRB No. 9 (2010).17 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended18 ORDER The Respondent, Pantagraph Publishing Co., Bloomington, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally changing the past practice of giving the same service awards to the pressroom unit employees as nonunit employees, without providing Graphic Communications Conference of the International Brotherhood of Teamsters, Local 568M prior notice or an opportunity to bargain to an agreement or impasse. (b) In any like or related manner interfering with, restraining, 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. 17 See the discussion of the Respondent’s standard notice posting procedures in part II.C, par. 5, above. 18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended 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. JD-68-10 5 10 15 20 25 30 35 40 45 50 11 (a) On the Union’s request, rescind the unilateral change in its past practice of giving the same service awards to unit employees as nonunit employees, and maintain the past practice until the parties have bargained to an agreement or valid impasse. (b) Make whole Mark Hoffman and Dean Williams, and any other unit employees who have been denied a monetary service award since August 2009, pursuant to the unlawful change in the past practice, with interest compounded daily, in the manner set forth in the Remedy section of this decision. (c) 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 designated by the Board or its agents, all payroll records, social security payment records, 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 facility in Bloomington, Illinois, copies of the attached notice marked “Appendix.”19 Copies of the notice, on forms provided by the Region, 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 are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 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 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 October 31, 2008. (e) Within 21 days after service by 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. Dated, Washington, D.C. December 14, 2010 __________________________________ Jeffrey D. Wedekind Administrative Law Judge 19 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” JD-68-10 Bloomington, IL 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 benefit and protection Choose not to engage in any of these protected activities WE WILL NOT unilaterally change our past practice of giving the same service awards to our pressroom unit employees as nonunit employees, without providing Graphic Communications Conference of the International Brotherhood of Teamsters, Local 568M prior notice or an opportunity to bargain to an agreement or impasse. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on the Union’s request, rescind the unlawful change in our past practice of giving the same service awards to unit employees as nonunit employees, and maintain the past practice until we have bargained with the Union to an agreement or valid impasse. WE WILL make whole Mark Hoffman and Dean Williams, and any other unit employees who have been denied a monetary service award since August 2009, pursuant to our unlawful change in the past practice, with interest compounded daily. PANTAGRAPH PUBLISHING CO. (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Subregional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 300 Hamilton Boulevard, Suite 200 Peoria, Illinois 61602-1246 Hours: 8:30 a.m. to 5 p.m. 309-671-7080 JD-68-10 Bloomington, IL THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 309-671-7085.