Santa Barbara News-Press

National Labor Relations Board - Administrative Judge Opinions

May 28, 2010

31-CA-028589 (N.L.R.B. May. 28, 2010)

JD(SF)–20–10
Santa Barbara, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AMPERSAND PUBLISHING, LLC Cases 31-CA-28589
d/b/a SANTA BARBARA NEWS-PRESS 31-CA-28661
31-CA-28667
31-CA-28700
31-CA-28733
31-CA-28734
31-CA-28738
and 31-CA-28799
31-CA-28889
31-CA-28890
31-CA-28944
31-CA-29032
31-CA-29076
GRAPHIC COMMUNICATIONS CONFERENCE, 31-CA-29099
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 31-CA-29124
Steve Wyllie, Esq. and Joanna F. Silverman, Esq.,
for the General Counsel.
A. Barry Cappello, Esq., Dugan P. Kelley, Esq.,
and Richard R. Sutherland, Esq. (Cappello and Noel),
of Santa Barbara, California, and L. Michael Zinser and Glenn Plosa, Esqs.
(the Zinser Law Firm), of Nashville, Tennessee,
for the Respondent.
Ira L. Gottlieb, Esq. and Marissa M. Nuncio, Esq.
(Bush, Gottlieb, Singer, Lopez, Kohanski,
(Adelstein & Dickinson), of Glendale, California,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard the above-captioned
case in 21 days of trial in Santa Barbara, California, over the period May through August 2009.
Post hearing briefs were timely submitted in November 2009.
The matter arose as follows. On various dates from November 27, 2007, through
March 10, 2009, the Graphic Communication Conference, International Brotherhood of
Teamsters (the Union or the Charging Party) filed various charges, and in some cases amended
those charges, against Ampersand Publishing, LLC d/b/a Santa Barbara News-Press (the
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Respondent or the Paper or the News-Press) with the National Labor Relations Board.1 The
Regional Director for Region 31 of the National Labor Relations Board issued consolidated
complaints respecting these various charges, culminating in an Order Consolidating Cases,
consolidated complaint and notice of hearing issued by the Regional Director on March 24,
2009 (the complaint). The complaint was further amended at the hearing. The Respondent
filed timely answers to the complaints and amendments to the complaints.
The individual complaint allegations are addressed in detail in separate portions of this
decision, infra, but the essential complaint allegations are set forth here to allow an initial
understanding of the allegations at issue. The allegations are organized by statutory violation.
Certain conduct alleged as violating multiple sections of the Act may be set forth in multiple
categories.
The consolidated complaint alleges and the answer denies, inter alia, that the
Respondent, in a December 2008 meeting, instructed employees not to discuss their terms and
conditions of employment. Further, the complaint alleges the Respondent distributed a letter to
employees offering to provide Respondent’s attorneys to represent employees in the Board
investigation of the charges herein and discouraging employees from cooperating with the
Board’s on-going investigation of those unfair labor practice charges. The complaint alleges
that this conduct violates Section 8(a) (1) of the National Labor Relations Act (the Act).
The complaint further alleges that the Respondent, since in or around July 2007,
unilaterally changed the terms and conditions of employment of its bargaining unit2 employees
who had been hired through temporary agencies by failing to apply to them the same terms and
conditions of employment, including but not limited to health and vacation benefits, that other
unit employees enjoyed. In the alternative, the complaint alleges that to the extent that unit
employees hired through temporary agencies are found not to be in the unit, the Respondent in
so employing them has consequentially been transferring unit work from unit employees to non-
unit temporary agency-provided employees. The complaint also alleges this conduct was
undertaken because the employees of the Respondent formed, joined, or assisted the Union
and engaged in protected concerted activities and, to discourage employees from engaging in
these activities and, in so doing, the Respondent discriminated in regard to the hire or tenure or
terms and conditions of employment of employees, thereby discouraging membership in a labor
organization in violation of Section 8(a) (3) and (1) of the Act.
The complaint further alleges that on or around May 16, 2008, the Respondent
transferred bargaining unit work to nonbargaining unit individual Robert Eringer. It also alleges
that since around December 2006 or January 2007, the Respondent failed to grant its
employees a merit wage increase in recognition of work performance during calendar year
2006. The complaint alleges that since around December 2007 or January 2008, the
Respondent failed to grant its employees a merit wage increase in recognition of work
performance during calendar year 2007. The complaint alleges that the Respondent made a
general modification to its performance evaluation system in connection with the 2007
performance of unit employees. The complaint further alleges the Respondent failed to conduct
employee performance evaluations of 2008 performance for its unit employees in accordance

1 Cases 31–CA–28589, 31–CA–28661, 31–CA–28667, 31–CA–28700, 31–CA–28733, 31–
CA–28734, 31–CA–28738, 31–CA–28799, 31–CA–28889, 31–CA–28890, 31–CA–28944, 31–
CA–29032, 31–CA–29076, 31–CA–29099, and 31–CA–29124.
2 The bargaining unit of the Respondent’s employees and the collective-bargaining
relationship involved herein are discussed in detail below.
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with the Respondent’s past practice. The complaint alleges this conduct was undertaken
because the employees of the Respondent formed, joined, or assisted the Union and engaged
in protected concerted activities and, to discourage employees from engaging in these activities
and, in so doing, discriminated in regard to the hire or tenure or terms and conditions of
employment of employees, thereby discouraging membership in a labor organization in violation
of Section 8(a) (3) and (1) of the Act.
The complaint alleges that the Respondent laid off its employee Richard Mineards on
February 28, 2009. It further alleges that on or about August 2008, the Respondent suspended
its employee Dennis Moran and on August 30, 2008, discharged Moran. The complaint alleges
this conduct was undertaken because the employees of the Respondent formed, joined, or
assisted the Union and engaged in protected concerted activities and to discourage employees
from engaging in these activities and, in so doing, discriminated in regard to the hire or tenure or
terms and conditions of employment of employees, thereby discouraging membership in a labor
organization in violation of Section 8(a) (3) and (1) of the Act.
The complaint alleges that the Union made various requests of the Respondent’s agents
during the period of August 16, 2008, through January 26, 2009, that the Respondent furnish
the Union with information necessary for, and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of the employees in the unit. The
complaint alleges that the Respondent took an unreasonable amount of time to furnish the
information asked for and therefore failed and refused to bargain collectively in good faith with
the Union as the exclusive collective-bargaining representative of its unit employees in violation
of Section 8(a)(5) and (1) of the Act.
The complaint alleges that the Respondent, since in or around July 2007, unilaterally
changed the terms and conditions of employment of its unit employees who had been hired
through temporary agencies by failing to apply to them the same terms and conditions of
employment, including but not limited to health and vacation benefits that other unit employees
enjoyed and that the Respondent failed and refused to bargain over the terms and condition of
employment of its unit employees hired through temporary agencies. In the alternative, the
complaint alleges that, to the extent that unit employees hired through a temporary agency are
found not to be in the unit, the Respondent since in and around July 2007, has been transferring
unit work from unit employees to temporary agency-provided employees. The complaint alleges
that the Respondent in taking the actions described above in this paragraph took actions without
prior notice to the Union, without the Union’s agreement, and without affording the Union an
opportunity to bargain with respect to the conduct or the effects of the conduct which concerned
a mandatory subject of bargaining and therefore failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining representative of its unit employees in
violation of Section 8(a)(5) and (1) of the Act.
The complaint further alleges that on or around May 16, 2008, the Respondent
transferred unit work to nonunit individual Robert Eringer. It also alleges that since around
December 2006 or January 2007, the Respondent failed to grant its unit employees a merit
wage increase in recognition of work performance during calendar year 2006. The complaint
alleges that since around December 2007 or January 2008, the Respondent failed to grant its
unit employees a merit wage increase in recognition of work performance during calendar year
2007. The complaint alleges that the Respondent made a general modification to its
performance evaluation system in connection with the 2007 performance of unit employees.
The complaint further alleges the Respondent failed to conduct employee performance
evaluations of 2008 performance for its unit employees in accordance with the Respondent’s
past practice. The complaint alleges that the Respondent in taking the actions described above
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in this paragraph took actions without prior notice to the Union and without affording the Union
an opportunity to bargain with respect to the conduct or the effects of the conduct which
concerned a mandatory subject of bargaining and therefore failed and refused to bargain
collectively and in good faith with the exclusive collective-bargaining representative of its unit
employees in violation of Section 8(a)(5) and (1) of the Act.
The complaint alleges that the Respondent on or about May 2, 2008, laid off employee
Kyle Jahner. It further alleges that the Respondent laid off its employee Richard Mineards and
on February 28, 2009 laid off its employee DeWitt Smith. It further alleges that on or about
August 2008, the Respondent suspended its employee Dennis Moran and on August 30, 2008,
discharged Moran. The complaint further alleges that around December 3, 2008, the
Respondent announced and established a requirement that unit employees produce at least
one story per day. The complaint alleges that the Respondent, in taking the actions described
above in this paragraph, took actions without prior notice to the Union and without affording the
Union an opportunity to bargain with respect to the conduct or the effects of the conduct which
concerned a mandatory subject of bargaining and therefore failed and refused to bargain
collectively and in good faith with the exclusive collective-bargaining representative of its unit
employees in violation of Section 8(a)(5) and (1) of the Act.
The complaint alleges that on or about January 14, 2009, and continuing through
January 16, 2009, the Respondent dealt directly with its employees in the Unit by offering an
employee nonunit terms and conditions of employment. The complaint alleges that the
Respondent in taking the action described bypassed its collective bargaining representative, the
Union, and in so doing failed and refused to bargain collectively and in good faith with the
exclusive collective-bargaining representative of its unit employees in violation of Section 8(a)(5)
and (1) of the Act.
The complaint alleges that during collective negotiations between the Respondent and
the Union concerning unit employees during the period of November 2007 to March 2009, as
part of its overall conduct as alleged in the complaint, has insisted on bargaining proposals that
are predictably unacceptable to the Union which proposals include, but are not limited to, the
Respondent’s proposals on management rights, grievance and arbitration, union bulletin board,
discipline and discharge. Further the complaint alleges the Respondent has insisted as a
condition of reaching any collective-bargaining agreement with the Union concerning unit
employees to language in the contract including, but not limited to, language pertaining to a
management’s rights clause that would grant the Respondent unilateral control over many terms
and conditions of employment of unit employees. The complaint alleges that the Respondent in
taking these actions failed and refused to bargain collectively and in good faith with the
exclusive collective-bargaining representative of its unit employees in violation of Section 8(a)(5)
and (1) of the Act.
The Respondent variously alleges that the conduct attributed to its agents in the
complaint either did not occur or, in some situations where actions were taken, the
Respondent’s actions were not undertaken for the malign reasons alleged, or in the total context
and circumstances, did not rise to the level of a violation of the Act, or is subject to additional
affirmative defenses and that, accordingly, the Respondent did not violate the Act as alleged in
any regards and the complaint should be dismissed.
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FINDINGS OF FACT
Upon the entire record herein,3 including helpful briefs from the Respondent, the
Charging Party and the General Counsel, I make the following findings of fact.4
I. JURISDICTION
At all material times, the Respondent, a limited liability company with an office and place
of business in Santa Barbara, California, has been engaged in the publication of the Santa
Barbara News-Press, a daily newspaper. During the calendar year ending December 2008, the
Respondent enjoyed gross revenues in excess of $200,000, held membership in or subscribed
to an interstate news service, the Associated Press, and advertised nationally sold products,
including Cingular. During the same period the Respondent purchased and received at its
Santa Barbara facility goods, supplies, and materials valued in excess of $5000 directly from
suppliers located outside the State of California.
Based on the above, there is no dispute and I find that the Respondent is and has been
at all times material an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The pleadings establish, there is no dispute, and I find the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
To an unusual degree the instant matter is best understood in the context of a series of
events covering a period of years before as well as during the events in controversy. A
relatively long recitation of background events is therefore useful.
1. Earlier cases involving the NLRB and the Respondent
Before addressing the relevant facts of the instant controversy, five decisions must be
identified and their application to the instant proceeding addressed.
The first decision in time is the representation case decision that certified the Union as the
exclusive representative of unit employees. That Board decision in Case 31–RC–8602, issued
on August 16, 2007, and the decision of Judge Schmidt reported at JD(SF)-06-07, (March 8,

3 A deficient exhibit was replaced on March 17, 2010, by agreement of the parties. See fn.
11.
4 As a result of the pleadings and the stipulations of counsel at the trial, there were few
disputes of fact regarding collateral matters. Where not otherwise noted, the findings herein are
based on the pleadings, the stipulations of counsel, or unchallenged credible evidence.
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2007) on which it was based, are important background evidence and are discussed, infra.5
The second decision is that of Judge William G. Kocol in Ampersand Publishing, LLC d/b/a
Santa Barbara News-Press, JD(SF)-37–07, an unfair labor practice case which issued
December 26, 2007. That decision is currently before the Board on exceptions. It contained a
significant amount of uncontested background information which underlay the larger picture of
the controversy at issue herein. As such it is referred to below.
The Board does not take judicial notice of a judge’s decision in another case pending review
before the Board because it is not binding authority. St. Vincent Medical Center, 338 NLRB 888
(2003), remanded on other grounds, 463 F.3d 909 (9th Cir. 2006). But a judge may rely on the
factual findings made by another judge in a prior case, even though it is still pending before the
Board. See Grand Rapids Press of Booth Newspapers, 327 NLRB 393, 394–395 (1998), enfd.
mem. 215 F.3d 1327 (6th Cir. 2000).
I have not relied to any extent herein on the credibility resolutions contained in Judge
Kocol’s decision, but rather have made independent and de novo credibility determinations
based on the instant record and the credibility of the witnesses herein who testified under my
observation. See Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 972 (6th Cir. 2003), cert. denied 543
U.S. 1089 (2005) (judge was “under no obligation to consider determinations made by another
ALJ in a wholly different case regarding the credibility of a particular witness.”). The Kocol
decision does however contain a significant amount of uncontested background information and
both the decision and that background were alluded to by all parties with some regularity during
the course of this proceeding. Where dealing only with clearly uncontested background
evidence, I have relied to some degree on Judge Kocol’s decision; again only to the extent of its
recitation of uncontested events. The occurrence of the Kocol trial itself and the timing of the
issuance of Judge Kocol’s decision in the context of events are factual circumstances that took
place during the events litigated herein and are therefore relevant to a degree in the instant
proceedings. Those facts are presented herein, again, not the content of the Kocol decision but
the fact of the trial and timing of the decision’s issuance.
Two aspects of my use of the Kocol decision remain for discussion. First, in fashioning a
remedy herein, which is a separate matter undertaken after the unfair labor practice allegations
have been resolved, I have utilized the Kocol decision’s findings of violations of the Act fully to
determine the remedy, herein. The Remedy portion of this decision, infra, makes this clear.
Remedial provisions are importantly based on the conduct of the respondent involved both in
the narrow proceeding and also in its past circumstances and conduct. The Kocol decision
provides that critical latter element. The second aspect of my use of the Kocol findings are my
use or non-use of the unfair labor practice and other findings of the Kocol decision as a factor in
determining the merit of allegations in the instant case. I have specifically determined not to use
the Kocol decision’s findings in that fashion. Thus, I have not relied on that decision’s
determinations to reach my own conclusions herein. Thus, my findings herein in this sense—
and not respecting background facts and remedy elements—are completely independent of the
Kocol decision including, as noted, independent of that decision’s credibility findings and unfair
labor practice findings contained therein.

5 An administrative law judge is bound under the doctrine of collateral estoppel to Board
findings made in an earlier case involving the same parties. See Great Lakes Chemical Corp.,
300 NLRB 1024, 1024–1025 fn. 3 (1990), enfd. 967 F.2d 624 (D.C. Cir. 1992).
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A decision of Administrative Law Judge Lana Parke, Ampersand Publishing, LLC d/b/a
Santa Barbara News-Press, JD(SF)-04-10, issued on February 5, 2010, deals with events
occurring after the complaint issued in the instant case and is therefore not substantively
relevant to the instant proceedings given that the allegations of the complaint terminate as of the
complaints issuance in March 2009. The Parke decision is relevant to the procedural history of
this case, however, and for that reason is properly part of the record in the instant case. Since it
is not substantively relevant it will not be relied on or alluded to further herein.6
The General Counsel sought injunctive relief under Section 10(j) of the Act respecting
the Kocol decision in the United States District Court. That process produced a United States
District Court decision by United States District Judge Stephen V. Wilson, McDermott ex rel.
NLRB v. Ampersand Publishing, LLC., 2008 U. S. Dist. LEXIS 94596 at *39 (C.D. Cal May 21,
2008), and a subsequent United States Court of Appeals decision on the appeal of Judge
Wilson’s decision by Justice Richard R. Clifton of the United States Court of Appeals for the
Ninth Circuit, McDermott v. Ampersand Publishing, LLC, Case No. 08-56202, __ F.3d 1447,
2010 WL 276208 (January 26, 2010); General Counsel Petition for Rehearing en banc filed
March 10, 2010. The two decisions deal with issues relevant to matters and issues involved in
proceedings in the Federal courts under Section 10(j) of the Act. While each contains
scholarship and analysis bearing on the instant case and has been considered for that content
and learning, Federal court proceedings under Section 10(j) of the Act are to a degree
conceptually independent of the application of those portions of the Act concerning unfair labor
practice proceedings. And, the Federal decisions address the Kocol decision not the instant
proceeding.
2. The preunion events and circumstances
Santa Barbara is an historic city, population just under 100,000, well favored by nature
on California’s coast at the northern end of the southern California conurbation. It is an affluent
community somewhat separate from the far larger population centers to the south. The Santa
Barbara News-Press is a venerable daily Santa Barbara newspaper that has for many years
been the largest circulation daily local newspaper in the area. Originally family owned, the
paper thereafter moved through various hands until acquired by the New York Times in the mid-
1980s. The News-Press was acquired from the New York Times by Wendy P. McCaw in 2000.
She has been the owner at all times thereafter, holding the Paper in the legal form, Ampersand
Publishing, LLC doing business as the Santa Barbara News-Press (the Respondent and
sometimes referred to as the Paper or the News-Press).
McCaw apparently was initially not an active participant, at least in the newsroom
content side of the business of the Paper, but from 2000 forward she came to view the news
content of the Paper as unsatisfactory from her perspective and over time took an ever more
active role in expressing her views and dissatisfactions with news articles to the Paper’s
management. By at least 2004, McCaw was regularly communicating her views about news
articles that she did not agree with to the Paper’s publisher and editors. McCaw’s
dissatisfactions in these regards continued and grew.

6 This being so, the Respondent’s posthearing motion to strike the Parke decision from the
record is denied inasmuch as the matters addressed in that decision, JD(SF)-04-10, occurred in
the context of the litigation of the instant case and are therefore a part of the instant cases
procedural context.
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As owner she was able to, and did, take action on her dissatisfactions. Resignations
and staff changes occurred. Continuing to be displeased, McCaw and her fiancé, Arthur von
Wiesenberger, took over the position of publisher at the Paper’s as its copublishers on
April 27, 2006. By May of that year, the copublishers were directing criticisms of particular news
articles and types of articles to the management and supervision in the news department. By
June 2006, McCaw as owner and copublisher were disciplining news department employees for
mishandling—in her view—news articles which appeared in the Paper.
At the same time that McCaw’s dissatisfactions were being communicated and
disciplinary actions taken as described above, at least some of the news and editorial staff of
the Paper were alarmed that their perceived necessary and traditional journalistic separation
between the news department and the ownership and editorial departments of the Paper was
being eroded, if not eliminated, by the actions of the copublishers. In their view, modifying or
holding back news articles to suit the sensibilities of important area families, advertisers, or the
opinions of the owner or publishers was anathema.
In the first week of July 2006, the disagreements concerning news department handling
of certain recently published and controverted articles boiled over. Several newsroom editors
resigned and then-editor Roberts gave notice. Upon receipt of Roberts’ notice he was asked to
immediately leave the building by management and his exodus and the strong opinions held
regarding the events generated an emotional scene between employees and management.
Additional resignations occurred in the coming weeks. The heart of the passionate dispute
remained the same: The desire of the owner, copublishers and their allies to correct perceived
improper reporting of news at the Paper and the resistance and anger of at least some
employees in the news department who opposed such actions perceiving Copublishers McCaw
and von Wiesenberger and their allies’ to be engaging in unethical interference in the news-
reporting functions of the Paper.
This seemingly Manichean argument or dispute has never been resolved at the Paper
and, at least among the camps of McCaw and elements of newsroom staff, the differences and
disagreement remained in force during the relevant events herein.
3. The events during which the Union comes to represent news-department employees
and the issuance of the Judge Kocol Decision
A group of the news department employees initiated contacts with the Union during
these events in July 2006, the Union organized the news department employees, and on August
10, 2006, the Union filed a representation petition with Region 31 of the Board, docketed as
Case 31–RC–8602, seeking to represent news department employees. On
September 27, 2006, an NLRB election was held with a vote in favor of the Union of 33 to 6.
Following litigation of postelection matters, the Board in an unpublished opinion on
August 16, 2007, adopted Judge William L. Schmidt’s Administrative Law Judge Report and
Recommendation to Overrule Employer’s Objections and Certify Petitioner, JD(SF)-06-07,
(March 8, 2007), and certified the Union as the representative of the Paper’s employees in the
following unit (sometimes referred to as the bargaining unit or simply the unit):
All full-time and regular part-time employees in the news department, including
writers, reporters, copy editors, photographers, and graphic artists employed at the
Respondent’s Anacapa Street facility located in Santa Barbara, California, but excluding
all other employees, guards, confidential employees, supervisors as defined in the Act,
as amended, and writers and editors engaged primarily in working on the opinion
editorial pages.
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There is no dispute and I find the unit is appropriate for purposes of collective bargaining within
the meaning of Section 9(c) of the Act.
The period covered by this process, roughly July 2006, to March 2007, involved
contentious events and circumstances which were the subject of NLRB charges filed against the
Respondent. The charges were found meritorious by Region 31 of the Board, a consolidated
complaint issued and an unfair labor practice trial ensued before Administrative Law Judge
William G. Kocol. The hearings spanned the period August 14 through September 26, 2007.
Judge Kocol issued his decision on December 26, 2007. Exceptions were taken to the decision.
The Board had not ruled on the exceptions as of the time of the issuance of this decision.
4. Events respecting bargaining
The Board certified the Union as representative of unit employees on August 16, 2007.
Thereafter the Respondent and the Union initiated the process of bargaining. The parties
discussed the mechanics and procedures of bargaining, the Union sought various information
from the Respondent and the information provided was discussed and followed up on. The
parties first met in face-to-face bargaining on November 13, 2007, and met on numerous
occasions thereafter through the date of issuance of the complaint, herein March 24, 2009. No
agreement has been reached.
B. Allegations of the Complaint
As might be expected from a substantial consolidated complaint consolidating multiple
allegations taken from over a dozen charges filed during a period of over 15 months, the
allegations at issue herein do not arise from a single or even a few events and situations, but
are rather based on a variety of incidents arising in various settings and circumstances. Initially
it is appropriate to present the naked allegations in contest and only then to consider the
allegations for purposes of resolution.
1. Independent7 violations of Section 8(a)(1) of the Act
The Act provides at Sections 7 and 8(a)(1):
Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to refrain from any or all such
activities. . . .
Sec. 8. (a). It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7. . . .

7 Violations of other subnumbered elements of Sec. 8 of the Act are also derivative violations of Sec.
8(a)(1) of the Act. Only allegations which are exclusively or independently alleged to violate Sec. 8(a)(1)
of the Act are included here.
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Complaint allegations asserting that an employer’s conduct violates Section 8(a)(1) of the Act,
by virtue of the reference to Section 7 of the Act in Section 8(a)(1), are alleging that the
specified conduct of the employer’s agents improperly discourages or chills the employees’
rights to self-organization, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
The complaint at paragraphs 21 and 22 allege violations of Section 8(a)(1) of the Act.
Complaint Paragraph 21
On or about August 22, 2008, the Respondent, by Wendy McCaw, distributed a letter to
employees in which it offered to provide its own attorney to represent employees during the
Board’s on-going investigation and which discouraged employees from cooperating with the
Board’s on-going investigation of pending unfair labor practice charges.
Complaint Paragraph 22
On or about December 3, 2008, the Respondent, by Don Katich, in a conference room at
the Respondent’s facility, instructed employees not to discuss their terms and conditions of
employment.
2. Violations of Section 8(a)(3) of the Act
Section 8(a)(3) of the Act states in part that it shall be an unfair labor practice for an
employer to:
[B]y discrimination in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization. . . .
Complaint allegations asserting that an employer’s conduct violates Section 8(a)(3) of the Act
are alleging that the specified conduct of the employer’s agents improperly discourages or
encourages employee membership in a labor organization.
The complaint at paragraphs 8 through 13, 14(b), and 15 allege violations of Section
8(a)(3) and (1) of the Act by engaging in conduct which improperly discouraged employee
membership in a labor organization.
Complaint Paragraph 8
Since in or around July 2007, the Respondent unilaterally changed the terms and conditions
of employment of its unit employees hired through temporary agencies by failing to apply to
them the same terms and conditions of employment including, but not limited to, health
insurance and vacation, that are provided to other employees in the newsroom bargaining
unit.
Complaint Paragraph 9
Since in and around July 2007, the Respondent failed and refused to bargain over the terms
and conditions of employment of its unit employees hired through temporary agencies.
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Complaint Paragraph 10
Since in or around July 2007, the Respondent has been transferring unit work from the
employees in the bargaining unit to temporary agency-provided employees.
Complaint Paragraph 11
Since on or around May 16, 2008, the Respondent transferred unit work to nonunit
individual Robert Eringer.
Complaint Paragraph 12
Subparagraph 12(a): Since around December 2006 or January 2007, the Respondent failed
to grant its employees a merit wage increase in recognition of work performance during
2006.
Subparagraph 12(b): Since around December 2007 or January 2008, the Respondent failed
to grant its employees a merit wage increase in recognition of work performance during
2007.
Subparagraph 12(c): Since around December 2008 or January 2009, the Respondent failed
to grant its employees a merit wage increase in recognition of work performance during
2008.
Complaint Paragraph 13
Subparagraph 13(a): In or around November 2007, through January 2008, the Respondent
made a general modification to its performance evaluation system in connection with the
2007 performance of bargaining unit employees.
Subparagraph 13(b): In or around November 2008 through January 2009, the Respondent
failed to conduct employee performance evaluations of 2008 performance for its bargaining
unit employees in accordance with the Respondent’s past practice.
Complaint Subparagraph 14(b)
On or about January 7, 2009, the Respondent laid off its employee Richard Mineards.
Complaint Paragraph 15
Subparagraph 15(a): On or about August 23, 2008, the Respondent suspended its
employee Dennis Moran.
Subparagraph 15(b): On or about August 30, 2008, the Respondent discharged its
employee Dennis Moran.
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3. Violations of Section 8(a)(5) of the Act
Section 8(a)(5) of the Act states, in part, that it shall be an unfair labor practice for an
employer “to refuse to bargain collectively with the representatives of his employees. . . .”
Complaint allegations asserting that an employer’s conduct violates Section 8(a)(5) of the Act
are alleging that the Respondent by its conduct is failing and refusing to bargain collectively and
in good faith with the Union as the exclusive collective-bargaining representative of its
employees in the bargaining unit.
The complaint at paragraphs 7 through and including 16, paragraphs 18, 19, and 20
allege violations of Section 8(a)(5) and (1) of the Act by the Respondent’s failing and refusing to
bargain collectively and in good faith with the Union as the exclusive collective-bargaining
representative of its employees in the bargaining unit. Further the complaint alleges that the
conduct alleged in paragraph 8 and paragraphs 10 through 16 relate to mandatory subjects of
bargaining and were undertaken without prior notice to the Union and without affording the
Union an opportunity to bargain with the Respondent with respect to the conduct and/or the
effects of this conduct.
Complaint Paragraph 7
Complaint paragraph 7 contains many separate allegations. In complaint 7 and its sub-
numbers 7(a) through (e), various union requests of the Respondent for information over the
period November 3, 2007 through January 26, 2009, are alleged:
Complaint subparagraph 7(a):
Since on or about November 16, 2007, the Union, by Ira Gottlieb, requested in writing
that the Respondent furnish the Union with the following information:
For each of the ‘temporary’ employees, state:
How each of the employees made contact with the SBNP, if at all, during the
hiring process;
Whether the employee responded to an ad placed by the SBNP;
Whether the employee responded to any communication from the SBNP to begin
or continue the hiring process;
Whether the employee responded to any communication from Top Echelon or
Office Team (with respect to Mr. Melendez) to begin or continue the hiring
process;
The names of all people with whom the employees spoke and/or were
interviewed in connection with the hiring process;
The names of all people who participated in the decision to hire the employee to
perform work in the service of SBNP; and
Identify all people who supervise the employee, including having the
responsibility to discipline, discharge (or remove from working in the service of
the SBNP), effectively recommend discipline or discharge, and/or provide the
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employee with assignments and/or instruction (including editing) for workplace
performance.
Complaint subparagraph 7(b):
Since on or about December 3, 2007, the Union, by Ira Gottlieb, requested in writing that
the Respondent furnish the Union with the following information:
Has Ampersand ever used employees it labeled ‘temporary’ employees—either
direct hires or through an agency—to perform work that is now included in the
certified bargaining unit?
If so, state the following for each instance of such use of temporary work:
The date(s) on which the ‘temporary’ employee performed bargaining Unit
work;
The name(s) of any temporary agency which you claim employed the
temporary employees;
The specific project or task(s) performed by the temporary employees(s);
and
The pay rates for the temporary employees(s).
Complaint subparagraph 7(c):
Since on or about August 6, 2008, the Union, by Nicholas Caruso, requested in writing
that the Respondent furnish the Union with the following information:
Notification of when a new employee is hired into the unit, when an employee
terminates (including resignation), or when an employee working in the
newsroom has a change in employment status (including changes in employee
title, duties, or other terms and conditions of employment) including date of hire,
classification and rate of pay.
The request included the above requested information for all individuals hired to
perform work performed by the bargaining unit.
Complaint subparagraph 7(d):
Since on or about September 9, 2008, the Union, by Nicholas Caruso, requested in
writing that the Respondent furnish the Union with the following information:
Notification of status changes for workers performing bargaining Unit work;
The status, classifications, wages and benefits of Alex Pavlovic, Dave Mason,
Chauncey Kim, Alan Hunt, Bill McMorris and John Greely, and whether or not,
and if not, what is their status in the New Press’ view.
Please provide the same information for any other people performing bargaining
Unit work with respect to whom you have not yet provided this information.
Complaint subparagraph 7(e): Since on or about January 14 and 15, 2009, orally, and
January 26, 2009, in writing, the Union, by Nicholas Caruso, requested that the
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Respondent furnish it with information related to the employment status of employee
Richards Mineards.
The information requested as alleged in the quoted subparagraphs 7(a) through (e) are
further alleged in complaint subparagraph 7(f) to be relevant to the Union’s duties as the
exclusive representative of bargaining unit. Complaint subnumbers 7(g) through (k) allege that
the Respondent variously failed and refused to provide the information requested or delayed in
providing the information. Thus, the subparagraphs allege:
Complaint subparagraph 7(g): Until about January 23, 2008, the Respondent failed and
refused to furnish the Union with the information requested by the Union as described in
[complaint] paragraph 7(a).
Complaint subparagraph 7(h): Until about January 30, 2008, the Respondent failed and
refused to furnish the Union with the information requested by the Union as described in
[complaint] paragraph 7(b).
Complaint subparagraph 7(i): Until about October 22, 2008, the Respondent failed and
refused to furnish the Union with the information requested by the Union as described in
[complaint] paragraph 7(c).
Complaint subparagraph 7(j): Until about October 24, 2008, the Respondent failed and
refused to furnish the Union with the information requested by the Union as described in
[complaint] paragraph 7(d).
Complaint subparagraph 7(k): Until about February 9, 2009, the Respondent failed and
refused to furnish the Union with the information requested by the Union as described in
[complaint] paragraph 7(e)
Complaint subparagraph 7(l) alleges the conduct alleged in complaint subparagraphs 7(g)
through (k) constitutes an unreasonable delay in furnishing the information requested.
Complaint Paragraph 8
Complaint paragraph 8 states: Since on or about July 2007, the Respondent unilaterally
changed the terms and conditions of employment of its unit employees hired through
temporary agencies by failing to apply to them the same terms and conditions of
employment including but not limited to, health insurance and vacation, that are provided to
other employees in the bargaining unit.
Complaint Paragraph 9
Complaint paragraph 9 states: Since in and around July 2007, the Respondent failed and
refused to bargain over the terms and conditions of employment of its unit employees hired
through temporary agencies.
Complaint Paragraph 10
Complaint paragraph 10 states: Since in or around July 2007, the Respondent has been
transferring unit work from the employees in the bargaining unit to temporary agency-
provided employees.
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Complaint Paragraph 11
Complaint paragraph 11 states: Since on or around May 16, 2008, the Respondent
transferred unit work to nonunit individual Robert Eringer.
Complaint Paragraph 12
Complaint paragraph 12, subparagraphs 12(a), (b), and (c) state:
Subparagraph 12(a): Since around December 2006 or January 2007, the Respondent
failed to grant its employees a merit wage increase in recognition of work performance
during 2006.
Subparagraph 12(b): Since around December 2007 or January 2008, the Respondent
failed to grant its employees a merit wage increase in recognition of work performance
during 2007.
Subparagraph 12(c): Since around December 2008 or January 2009, the Respondent
failed to grant its employees a merit wage increase in recognition of work performance
during 2007.
Complaint Paragraph 13
Complaint paragraph 13, subparagraphs 13(a) and (b) state:
Subparagraph 13(a): In or around November 2007, through January 2008, the
Respondent made a general modification to its performance evaluation system in
connection with the 2007 performance of bargaining unit employees.
Subparagraph 13(b): In or around November 2008, through January 2009, the
Respondent failed to conduct employee performance evaluations of 2008 performance
for its bargaining unit employees in accordance with the Respondent’s past practice.
Complaint Paragraph 14
Complaint paragraph 14, subparagraphs 14(a), (b), and (c) state:
Subparagraph 14(a): On or about May 2, 2008, the Respondent laid of[f] its employee
Kyle Jahner.
Subparagraph 14(b): On or about January 7, 2009, the Respondent laid of[f] its
employee Richard Mineards
Subparagraph 14(c): On or about August 23, 2008, the Respondent laid of[f] its
employee DeQitt Smith.
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Complaint Paragraph 15
Complaint paragraph 15, subparagraphs 15(a) and (b) state:
Subparagraph 15(a): On or about August 23, 2008, the Respondent suspended its
employee Dennis Moran.
Subparagraph 15(b): On or about August 30, 2008, the Respondent discharged its
employee Dennis Moran.
Complaint Paragraph 16
Complaint paragraph 16 states: On or around December 3, 2008, the Respondent
announced and established a requirement that bargaining unit employees produce at least
one story.
Complaint Paragraph 17
Complaint paragraph 17 alleges that the conduct described in complaint paragraphs 8
and 10 through 16, relates to wages, hours, and other terms and conditions of employment of
the bargaining unit employees and are mandatory subjects of bargaining.
Complaint Paragraph 19
Complaint paragraph 18 alleges that on or about January 14, 2009, and continuing
through on or about January 16, 2009, the Respondent by Don Katich, bypassed the Union and
dealt directly with its employees in the bargaining unit by offering an employee nonunit terms
and conditions of employment.
Complaint Paragraph 20
Complaint paragraph 20,subparagraphs 20(a) and (b) state:
Subparagraph 20(a): At various times from November 2007 through and continuing to
March 24, 2009, the Respondent and the Union met for the purposes of collective
bargaining with respect to wages, hours, and other terms of employment of bargaining
unit employees.
Subparagraph 20(b): During the period of time described above in subparagraph 20(a),
the Respondent engaged in the following conduct:
(i) The Respondent has insisted on proposals that are predictably unacceptable
to the Union which proposals include, but are not limited to, the Respondents
proposals on management rights, grievance and arbitration, union bulletin board,
discipline and discharge.
(ii) The Respondent has insisted as a condition of reaching any collective-
bargaining agreement with the Union that the Union agree to language in the
contract including, but not limited to, language pertaining to a management rights
clause that would grant the Respondent unilateral control over many terms and
conditions of employment.
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C. Initial Comments and Findings on Questions of Relevance, Motivation, and Credibility
1. Resolution of allegations of the complaint
The allegations of the complaint are numerous and the issues in the case substantial
and varied. Long cases present organizational issues respecting the better structures to allow
the reader an understanding of the issues both legal and thematic, to achieve clarity of
presentation and, without endless repetition, to achieve global comprehension as well as a
grasp of the finer points of the arguments presented.
In the instant case, for better or worse, I have endeavored to present the various issues,
allegations, arguments, and my findings and legal conclusions organized around particular
events or subjects which frequently involve multiple allegations and legal arguments.
2. The Respondent’s assertions of misconduct as a defense
a. General misconduct and malfeasance by the General Counsel of the NLRB
The Act at Section 3(d) provides for the position and powers of the General Counsel of
the Board:
There shall be a General Counsel of the Board who shall be appointed by the President,
by and with the advice and consent of the Senate, for a term of four years. The General
Counsel of the Board shall exercise general supervision over all attorneys employed by
the Board (other than administrative law judges and legal assistants to Board members)
and over the officers and employees in the regional offices. He shall have final authority,
on behalf of the Board, in respect of the investigation of charges and issuance of
complaints under section 10 and in respect of the prosecution of such complaints before
the Board, and shall have such other duties as the Board may prescribe or as may be
provided by law.
The Regional Office with the duty to investigate and prosecute unfair labor practices in
the Santa Barbara, California area, the area in which the Respondent is located, is Region 31.
That office is headed by the Regional Director for Region 31. The Regional Director as an
agent of the General Counsel supervises the investigation of unfair labor practice charges and
generally determines if they have or lack merit.
In some cases, Regional Directors refer completed investigations of unfair labor practice
charges to the Washington, DC based Division of Advice within the General Counsel’s office for
merit determinations by the Associate General Counsel head of that office. The determination
of the Division of Advice on the merits of an unfair labor practice charge is binding on Regional
Directors.
If a Regional Director determines an unfair labor practice charge lacks merit, and the
charging party declines to withdraw the charge, the charge is dismissed by the Regional
Director. Charging parties are then entitled to seek review of the dismissal with the General
Counsel’s Office of Appeals located in Washington, DC. That office may sustain the charge
dismissal or reverse the dismissal and direct the Regional Office to issue complaint on the
charge. If a Regional Director, on his or her own or at the instruction of the Advice or Appeals
offices, determines a charge has merit, the parties are afforded an opportunity to settle the
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matter and, if that is not possible, the Director causes a complaint to issue and prosecutes the
case.
All of the above actions are carried out by the agents of the General Counsel who has
final authority in respect of the investigation of charges and the issuance of complaints. It is
within this structure of governmental action, that the Respondent’s allegations of General
Counsel malfeasance and misfeasance must be considered.
The instant case involves 15 charges which were found meritorious by the General
Counsel and consolidated for complaint. There were earlier charges, such as the 10 found
meritorious and consolidated for complaint before Judge Kocol as discussed supra. These
charges were virtually all filed by the Charging Party herein against the Respondent herein.
There were also a host of charges filed by the Respondent against the Charging Party, however
the General Counsel through his agents dismissed all of them.
The Respondent at hearing argued that the General Counsel never met a charge by the
Charging Party against the Respondent he did not like and never liked any charge by the
Respondent against the Charging Party. The Respondent argued that this statistical
disproportion favoring the Union supports a finding of prosecutorial bias against the
Respondent.
I rejected the argument at trial and reaffirm my finding here. The Court of Appeals for
the Fourth Circuit in Eldeco, Inc. v. NLRB, 132 F.3d 1007, 1010 (4th Cir. 1997), rejected a bias
argument based on the percentage of Board decisions which favored one side. The Court cited
its earlier holding in Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996), in which it
stated “this type of statistical argument is irrelevant” because in reality it “tells us little or
nothing.”
b. Specific allegations of misconduct by the General Counsel in prosecuting claims the
investigation of which revealed evidence that would defeat the allegation or in issuing
complaints where clear evidence to defeat the claim exists8

8 The adequacy of the General Counsel’s investigation may not be litigated in the unfair
labor practice trial. Due process claims are tested, not by analysis of the investigation, but by
analysis of complaint allegations; Redway Carriers, 274 NLRB 1359 (1985). In Redway
Carriers, id. at 1371, the Board held,
[T]he Court of Appeals for the Seventh Circuit has stated (277 F.2d at 1214), with
respect to an injunction proceeding under Section 10(1) of the Act:
It is our opinion that the scope, conduct or extent of the preliminary investigation
are not matters relevant to or material for consideration on the issue to be
adjudicated on hearing of a Section 10(1) petition, i.e., whether reasonable cause
exists to believe a violation has occurred. This issue is to be resolved by the
evidence adduced by the Board in open court to sustain its petition. The Board is
enjoined to make a preliminary investigation but the adequacy of the investigation is
judicially tested only by the Board’s subsequent ability to sustain its initial
determination that the investigation disclosed reasonable cause to believe that a
violation occurred.
Ross M. Madden v. Hod Carriers Local 41, 277 F.2d 688 (7th Cir 1960), cert. denied 364
U.S. 863 (1961). The same principle is applicable in a Board proceeding on the merits
of the case. To paraphrase the court of appeals, the adequacy of the preliminary
investigation is administratively tested, not by an investigation of the investigation, but by
Continued
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The Respondent on posthearing brief at 284–298 alleges a variety of circumstances
respecting the instant complaint and allegations which it argues constitutes General Counsel
misconduct and a defense to the complaint allegations. The Respondent argues on posthearing
brief at 283:
These allegations about the General Counsel are not made lightly, or filled with
hyperbole. The General Counsel, through Region 31, has repeatedly ignored relevant
evidence, prosecuted in the face of exculpatory evidence, was complicit in perpetrating a
fraud upon the News-Press, and has been woefully partisan in its handling of charges
and investigations involving the News-Press. This hearing was simply more of Region
31’s nearly three year-long vendetta against the News-Press.
The specific arguments and instant allegations of the Respondent in these regards are
addressed below.
The Respondent argues that the General Counsel or his agents, including the Regional
Director, should not have issued complaint on certain allegations ab initio or, having issued the
complaint allegations and discovering post complaint that the allegations were without merit,
should have withdrawn those allegations.
The Respondent notes that the General Counsel made several contentions grounded on
the argument that temporary employees referred by outside agencies were in the Respondent’s
unit. One of the General Counsel’s alternate theories, see complaint paragraphs 8, 9, and 10
described, supra, was that agency-referred outside employees were unit employees. I have
found, infra, that they were not the Respondent’s employees and were not unit employees.
The Respondent argues that the General Counsel’s assertions of these individuals’
employee and unit status were clearly erroneous and therefore the General Counsel’s
prosecution of the allegations following from that error were “malevolent.” I disagree for two
reasons. First, the position of the General Counsel in these regards is simply not so erroneous
that this advocacy could by any stretch of the imagination be regarded as prosecutorial
misconduct. Second, and more generally, prevailing respondents have a means of redress
under the Equal Access to Justice Act (hereinafter EAJA), 5 U.S.C.A. § 504 (1982), for
unreasonable prosecutions. EAJA provides for the award of attorney’s fees and expenses to
eligible parties who prevail in litigation before administrative agencies, unless the Government
can establish that its litigation position was either “substantially justified” or that special
circumstances exist which would make such an award unjust. That process is available when
the decision at issue becomes final, a state this matter has not as yet achieved. This allegation
is therefore not ripe for further consideration of the question at this stage of the proceeding.
The Respondent asserts on posthearing brief at 285:
[W]itness Kyle Jahner was mislead about the purpose of his affidavit taken by the
Region. (Tr. 397). Mr. Jahner informed the General Counsel he signed an employment
contract with Top Echelon, yet his Jencks statement conspicuously omitted any mention
of the employment contract Mr. Jahner signed with Top Echelon. (Tr. 398.)
_________________________
the General Counsel’s ability in an open hearing to demonstrate by a preponderance of
the credible evidence that the respondent has engaged in the unfair labor practices
alleged in the complaint.
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The transcript of the witnesses’ examination by Respondent’s counsel, Dugan Kelley,
contains the following examination:
Q. So the government told you that the News Press had misled you in believing—as to
your employment status at the News Press?
A. No, no. That’s obviously kind of what the implication was. That’s why they talked to
me was that—they didn’t tell me anything, they asked me questions.
MR. WYLLIE: Objection, lacks foundation.
A. They asked me questions. They didn’t tell me anything. They wanted to know about
my situation. They obviously knew enough about it.
JUDGE ANDERSON: You want to establish the particulars, Counsel?
MR. KELLEY: No, Your Honor.
Q. Did you tell the government that you had signed an employment contract with Top
Echelon?
A. An employment contract?
Q. Yes.
A. I believe I did, yes.
Q. Is there any reason why the fact that you signed an actual employment contract with
Top Echelon is not in your affidavit [sic], sir?
A. I did not choose what went in and what did not go into that affadavit.
Q. Did you tell the government that you had signed an employment contract with Top
Echelon?
A. If they had asked, I don’t—again, I don’t remember every detail of that conversation,
but if they had asked that, I would’ve said yes.
Thus the transcript, at the pages offered by the Respondent in support of its argument
here, does not support either the proposition that Jahner said he was mislead by the General
Counsel nor support the argument that Jahner testified that he signed a contract and so
informed the affidavit-taking agent of the government. The witnesses’ testimony: “I believe I did,
yes,” and “If they had asked, I don’t—again, I don’t remember every detail of that conversation,
but if they had asked that, I would’ve said yes.”, hardly establishes the proposition advanced.
And, further, had the witness testified that he signed an employment contract, and that that fact
was not contained in the witnesses’ affidavit, such a state of affairs would still not by any stretch
of the imagination establish prosecutorial bias or misconduct.
The Board has commented on the difficulties in this area:
A preliminary investigation, whether impartial or not, is not a substitute for or duplicate of a
full evidentiary hearing. The principal purpose of the investigation is to determine whether
there is sufficient evidence to warrant the issuance of a complaint. The investigator may
not be interested in corroborative evidence. The investigator may also be concerned with
certain disputed matters and less concerned with other matters which are more easily
subject to resolution, or involve questions that should be addressed to more
knowledgeable witnesses. Issues which appear important during the investigation may
seem less so at the time of hearing and vice versa. Given the nature of the preliminary
investigation, allegations that a witness gave prior contradictory testimony in his affidavit
or that the affidavit is a more reliable indication of the truth than the witness’ testimony at
the hearing should be weighed carefully and with due regard to the context in which the
prior statement was made. For example, when a witness testifies to facts which are not
contained in his investigatory affidavit, a finding of contradictory testimony, i.e.,
impeachment by omission ordinarily is not warranted unless the context of the affidavit
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indicates a probability that the facts would have been included in the narrative if they were
true. Additionally, due consideration must be given for the fact that in the present case
certain words or phrases meant one thing to one witness and a different thing to another.
(Redway Carriers, 274 NLRB 1359, 1371 (1985).)
Considering the record as a whole and the argument of the parties, I find the
Respondent here is simply trying to further argue or bolster its case on the merits by asserting
prosecutorial misconduct without facts to support its claims. I find no misconduct.
The Respondent argues that certain of the Government’s witnesses: Hobbs and Hadley,
did not testify effectively in support of a factual matter—the status of Eringer as an investigative
reporter—advanced by the government. The Respondent argues this is another example where
the government should have withdrawn complaint allegations or, in the alternative—it is not
clear—comprises misconduct. The Respondent’s argument is essentially premised on arguable
factual ambiguity concerning a collateral fact in trial testimony. I do not accept the argument
that the evidence as it unfolded at trial should have produced governmental withdrawal of
allegations or that the failure to so withdraw the allegations was prosecutorial misconduct. As is
set forth elsewhere in this decision, the complaint allegations at issue were sustained based on
the record as it is. The Respondent’s allegation of governmental impropriety is rejected.
The Respondent revisits as argued governmental misconduct its statute of limitations
defense to the complaint allegation concerning the withholding of merit increases discussed and
resolved against the Respondent, infra. Again, the Respondent argues its factual and legal
arguments as to the merits of the complaint allegations in a misconduct accusation. Further, the
nature of the arguments made by the Respondent here concern argued erroneous positions and
theory of the government as to the complaint allegations. Such allegations under the cited
cases, supra, do not raise viable allegations of prosecutorial misconduct. The Respondent’s
argument is rejected.
The Respondent attacks the government’s prosecution of complaint paragraph 13(a) as
“[b]linded by prosecutorial zeal” for advancing a “ludicrous” theory based on the “bald assertion”
of one witness and that it “prosecuted a case that conflicted with existing precedent.” (The
Respondent’s posthearing brief at 287.) Assuming, without deciding, the Respondent’s
assertions are correct,9 the failures of the Government’s case advanced by the Respondent
here would not in any event rise to the level of governmental misconduct. The Respondent
seems to be arguing that if the government does not prevail as to aspects of evidence or law, it
has engaged in misconduct. This is conceptually erroneous. The Respondent’s argument is
rejected.
The Respondent argues that the General Counsel’s allegations in paragraph 14(a) and
(c) of the complaint were not supported by sufficient evidence. The General Counsel made it
clear that complaint paragraph 14(a) and (c) was contingent on its prevailing in its alternative
pleading in complaint paragraph 8 that outside agency employees were the Respondent’s unit
employees. When the General Counsel failed to sustain complaint paragraph 8, complaint
paragraphs 14(a) and (c) failed in consequence. This is a reprise of the Respondent’s earlier
argument concerning complaint paragraph 8 and is rejected for the same reasons. Further, to
the extent the Respondent is arguing that evidentiary weakness in the prosecutions case
equates with misconduct, it is again conceptually erroneous.

9 I have found that the complaint allegations of par. 13(a) were without merit, infra.
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The Respondent argues that the General Counsel’s case concerning paragraph 16 of
the complaint had “no evidence to support this allegation.” (The Respondent’s posthearing brief
at 288.) I found merit to the allegation, infra, in part because I found the record evidence
sufficient. The Respondent’s argument is rejected.
The Respondent argues that complaint allegation 22 respecting what was told
employees by a management official of the Respondent at an employee meeting was so clearly
without merit because of language in the employee handbook that it was prosecutorial
misconduct to issue the complaint with this allegation and to prosecute the allegation in court.
I found merit to the allegation, infra. Thus, I find the argument that the complaint allegation was
without merit is incorrect. Further, the argument that the Government’s case was not convincing
in the Respondent’s view does not in any form or fashion justify the submission of an allegation
of prosecutorial misconduct. Again, argued evidentiary weakness in the prosecution’s case
does not equate with prosecutorial misconduct. I reject the Respondent’s argument.
The Respondent argues that regarding complaint subparagraph 15, the suspension and
discharge of employee Dennis Moran, the government knew that the Respondent represented it
terminated Moran based on misconduct that it learned of from Blake Dorfman. Further, it
alleges that the government learned that Dorfman lied to the Respondent regarding Moran’s
conduct and, therefore, the government was bound to inform the Respondent of these facts.
The Respondent argues that prosecutorial ethics and responsibilities required such disclosure.
“The actions—and inactions—of the General Counsel in prosecuting this case fell far short of
what is expected of a prosecutor.” (The Respondent’s posthearing brief at 291.)
I found the Respondent discharged Dennis Moran in violation of Section 8(a)(3) and (1)
of the Act, infra. To the extent the Respondent argues the prosecution knew of exculpatory
evidence and did not inform the Respondent of the evidence which demonstrated Moran’s
innocence, I did not find the evidence in the record as to the allegation at issue established that
the Respondent did not engage in the unfair labor practice alleged. Rather, based on all the
record evidence I found to the contrary, that the Respondent discharged Moran in violation of
the Act.
I am unable to conclude on the basis of the entire record in this matter that the
Respondent would have taken any different action respecting Moran if the General Counsel had
disclosed its evidence to the Respondent or that the General Counsel should reasonably have
believed that it would. To the extent the Respondent argued at trial and on brief that had the
government only informed the Respondent that Dorfman had lied to it, the Respondent could
have reinstated Moran and served both justice and the conservation of governmental resources
by avoiding the litigation of this allegation, one fact impinges: After the Respondent learned of
Dorfman’s perfidy and Moran’s innocence of the “desk clearing” allegation laid against him at
trial, at least insofar as this record indicates, the Respondent did not at that time or thereafter
offer to reinstate Moran. Given all the above, I reject the arguments of the Respondent. I
specifically find no prosecutorial misconduct occurred.
The Respondent argues that allegations of complaint paragraphs 20(b) were known by
the General Counsel to be incorrect, unsustained by the evidence and “pure unadulterated
folly.” (The Respondent’s posthearing brief at 291.) Those complaint allegations of the General
Counsel were found by me, in conjunction with the “overall conduct” allegation of complaint sub-
paragraph 20(c), to have merit, infra. Again the Respondent argues the merits of the complaint
and, arguing the complaint allegation(s) were unsustainable, urges consequential prosecutorial
misconduct must have occurred. Again this is not a proper basis for a misconduct claim. I
reject the Respondent’s argument here.
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The Respondent further alleges that the General Counsel engaged in prosecutorial
misconduct by means of distorting evidence: “XV. It is Misconduct for the General Counsel to
Distort Evidence,” the Respondent’s posthearing brief at page 293. The brief section correctly
cites cases for the proposition that the General Counsel’s distortion of evidence is improper and
a basis for dismissal of allegations of a complaint. The section further correctly notes the
relevant case standards and other cases lamenting and punishing actual prosecutorial bias.
The Respondent’s noted brief section concludes: “Actual bias pervaded this
prosecution.” In the following brief section: “XVI. Bias and Prejudice have No Place In an
Administrative Proceeding,” (p. 295 of the Respondent’s posthearing brief), the section
concludes:
The overriding concern of the News-Press has always been that Region 31, because of
the initial hearing, routine nondismissal of charges, and questionable activity (that has
somehow triggered an alleged violation of the Act when the News-Press responds to
Region 31’s contact of employees on personal cell phones). Has judged the fact as well
as the case law as soon as [the Charging Party] files a charge. This is the kind of
impermissible bias, conflict, favoritism, and pre-judgment, that has deprived (and will
continue to deprive) the News-Press of the right to an impartial investigation so long as
Region 31 maintains its anti-News-Press agenda.
The Respondent’s argument in these quoted two sections of its brief contain correct
citation of authority that governmental misconduct and bias are improper and must have
consequences. However and importantly there are no new specific factual arguments made in
these sections concerning the instant matter save inferentially. Those inferences are here
addressed.
The Respondent’s brief parenthetically noted almost with wonder the Government’s
misperception of Respondent’s conduct: “(that has somehow triggered an alleged violation of
the Act when the News-Press responds to Region 31’s contact of employees on personal cell
phones).” That reference is surely to complaint paragraph 21 which alleges a Wendy McGraw
letter to employees violated Section 8(a)(1) of the Act. I have found, infra, that the government
sustained it burden with respect to the complaint allegation and that the Respondent by its
conduct violated the Act. My analysis and conclusions respecting this allegation will stand or fall
on their own before reviewing authority. Nonetheless, I found the law and the facts on the
allegation not unclear. The complaint allegation, far from being wide of current application of
Board and court case law, is controlled by quite conventional cases. Thus, I must answer the
plaintiff cry of the Respondent as to the circumstances in the Respondent’s quoted remarks,
that the Respondent is simply wrong. The prosecution is advancing common argument and
sought and obtained a not unusual result: A finding that an unfair labor practice occurred.
And when the Respondent’s posthearing brief attacks the actions of Region 31 in
dismissing and/or issuing complaints on charges in a biased manner, several circumstances
seem relevant. First, based on the General Counsel’s internal organization described supra, if
the Region dismisses a charge, the review of that dismissal is conducted de novo by the
Washington, D.C., located Office of Appeals which has its own staff. And, as the record shows
has been involved in several matters in this proceeding, the General Counsel also maintains a
Division of Advice, again in Washington, D.C., with a separate independent staff. So the
Respondent’s complaints about bias in case handling by Region 31, must also be directed, to a
greater or lesser degree, to include the agents in charge of the two Washington, D.C. offices
noted.
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When the General Counsel through a Regional Director issues a complaint, it is just that:
a collection of one or more accusations or an allegations. The complaint must be proved before
an administrative law judge. If the decision on the complaint is adverse to any party, in whole or
in part, review is to the Board, thereafter to the Courts. EAJA, as noted, is available to
qualifying respondents for relief from unreasonable prosecution. The Respondent who asserts
it has suffered at the hands of the Region in issuing complaints, must also note that those
complaints—while not as yet in their final state and with review still in process—has not shown
the Regional complaint in the instant case to be essentially without merit. The complaint at
issue, herein, has largely been sustained— and sustained on record evidence not simply
complaint allegations.
As to the charges cited by the Respondent as filed by it against the Union which have
been dismissed as noted elsewhere in this decision, no substantive evidence offered by the
Respondent addressing the merits of the allegations against the Union was kept from the record
because of the fact that a charge or charges filed by the Respondent was dismissed by the
General Counsel. I tried to make clear at the hearing and the Board has clearly ruled10 that the
Respondent’s evidence is not rendered inadmissible because it was associated with a charge
the General Counsel found without merit. Thus, the General Counsel’s dismissals of charges
that by the terms of the Act quoted, supra, are undertaken without Board review, had no affect
on the Respondent’s ability to adduce relevant evidence in its defense herein.
3. Misconduct and unfair labor practices by the Union
a. The controversy respecting the Union’s use of economic weapons
The Union in 2008 engaged in economic action against the Respondent. The
Respondent filed five charges with Region 31, Cases 31–CC–2169, 31–CC–2170, 31–CC–
2171, 31–CB–12427, and 31–CB–12429, against the Charging Party alleging it was committing
unfair labor practices in conjunction with its economic campaign against the Respondent. The
Regional Director for Region 31 submitted the cases to the General Counsel’s Division of
Advice for advice on whether the Union had violated the Act. The Associate General Counsel,
in charge of the Division of Advice, issued a 22-page “Advice memo” dated December 31, 2008,
considering each of the charges in light of the relationship of the parties and concluded and
instructed the Region consistent with its conclusion,

10 In Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001), enfd. 318 F.3d 1173
(10th Cir. 2003), the Board approved the Judge’s holding at 334 NLRB at 500 fn. 6:
6
The Respondent had filed various charges against the Union with the Region, some of
which remained before the General Counsel respecting these allegations. I held at trial and
here reaffirm that, while any and all evidence relevant to Respondent’s defense could be
offered in the instant case, the content of the Respondent’s charges against the Union
before the General Counsel was not—above and beyond the evidence offered in those
charges which was or could have been on offer herein—relevant simply because it had
been submitted to the Agency in support of a charge against the Union. The charges filed
against the Union by the Respondent are the business of the General Counsel in exercising
his plenary control over complaints, the relevant evidence of the Union’s misconduct in the
bargaining involved herein is relevant whether or not changes against the Union had been
filed.
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. . . that the Region should issue a merit dismissal of the Section 8(b)(4)(i)(B) charge
[Case 31–CC–2169] regarding a Union agent’s July 8 statement to Hot Springs Spa and
Patio employee Sanchez and that the Region should dismiss all other charges.
The Regional Director on January 23, 2009, by separate dismissal letters, dismissed
Cases 31–CC–2170, 31–CC–2171, 31–CB–12427, and 31–CB–12429. On the same date the
Regional Director in Case 31–CC–2169 issued a merit dismissal letter. The Respondent
appealed each dismissal to the General Counsel’s Office of Appeals. By letter dated
March 20, 2009, the Director of the Office of Appeals on behalf of the General Counsel denied
the Respondent’s appeals in all five of the Respondent’s charges. The letter provided reasons
for the denial of the appeals. It stated in part:11
With regard to the Section 8(b)(4)(ii)(B) allegations, contrary to your contention on
appeal, the evidence was insufficient to establish that the Union representatives’ conduct
at the sites of neutral employers constituted traditional picketing, confrontational
conduct, patrolling or other violative conduct. Although the evidence establishes that
union agent distributed handbills and engaged in conversation with the public, this
activity doe[s] not rise to the level of picketing under the Act. Teamsters Local No. 68
(Levitz Furniture Co. of Missouri), 205 NLRB 1131, 1133 (1973). Although it is asserted
on appeal that the representative’ allegedly larger than usual size was itself
confrontational, a person’s above-average height and/or weight, without more, does not
provide a basis for inferring that the individual was attempting to coerce, threaten or
intimidate other individuals.
It is concluded that the relevant facts in these cases parallel those in DeBartolo Corp. v.
Florida Gulf Coast Trades Council, 485 U.S. 568, 578–588 (1987). As in DeBartolo,
there as [sic] no violence, picketing, or patrolling at the site of the neutral businesses
doing business with the primary employer. Thus, no violation of Section 8(b)(4)(ii)(B) is
established by the evidence.
With regard to the Section 8(b)(4)(i)(B) allegations, it was determined that, absent similar
conduct, the Regional Director appropriately issued a merit dismissal with respect to the
effort to induce an employee of a neutral to withhold service from his employer.
With respect to the Section 8(b)(3) allegations, the Union’s efforts to persuade neutral
employers to case to utilize the News-Press to advertise their products was, as
previously observed, law and thus constituted a lawful economic weapon which could
be used during negotiations to further the barraging objectives of the Union.
The Respondent argued correctly that union unfair labor practices during the course of
engaging in economic action against an employer—all during the course of negotiations—could
be a relevant factor in such an employer’s defense to allegations the employer was not
bargaining in good faith. It lamented, however, that the charges filed against the Union making
such allegations had been improperly dismissed. I ruled and here reaffirm that the Respondent
was not limited in the presentation of such evidence by the fact that charges respecting such

11 The original document in evidence as R. Exh. 1118, Exh. C, was incomplete. The parties
by all party stipulation dated March 17, 2010, offered the complete copy as a substitute for the
original deficient one. That stipulation is received and the exhibit has been replaced with the
complete copy.
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allegation had been dismissed. The Respondent announced at trial that it intended to produce
such evidence.
The parties entered into a stipulation, Respondent Exhibit 1118, that in lieu of the
Respondent presenting independent evidence in support of its contentions, the parties would
adopt the facts and allegations described in the “Advice memo,” dismissal letters, and Appeal’s
letter quoted immediately above, and in consequence avoid the need to present any evidence
pertaining to the Charging Party’s boycott of the News-Press. Thus the “Advice memo”
recitation of facts is accepted as true by all parties and constitutes all the relevant facts on the
question. The parties further agreed the receipt into evidence of the stipulation satisfied all
parties’ right to present evidence on the boycott activity arguments offered in support of the
Respondent’s affirmative defense.
The General Counsel and the Charging Party rely on the arguments contained in the
Advice memo to support the memo’s conclusion that no violations of the Act sufficient to justify
issuance of a complaint occurred. The General Counsel notes that as to the statement by a
Union agent to an employee of a neutral that he should not work for an employer who
advertised in the Respondent’s newspaper, the Advice memo found that the Respondent had
presented no evidence that this conduct had adversely affected the parties’ bargaining. The
Respondent at hearing argued that the Union’s conduct in support of its economic boycott in aid
of bargaining should be taken into account in evaluating its conduct and establishes no violation
of the Act was committed by the Respondent.
Relying on the facts as stipulated by the parties, and for the reasons stated and
authorities cited in the Advice memo, and in agreement with it, I find there was simply a single
action by the Charging Party’s agents that was not permissible under the Act and that this single
action did not rise to the level of improper efforts by the Charging Party to bring economic
pressure to bear on the Respondent in aid of its bargaining positions. Thus, to the single
statement of an agent of the Union to an employee of a neutral that he should not work for an
employer who advertised in the News-Press, in agreement with the Advice memo, I find the
isolated July 2008 remark was of no consequence to the negotiations that had been underway
since November 2007.
I find therefore, based on the stipulated facts and the positions and arguments of the
parties, that the Union’s economic boycott of the Respondent in 2008 does not constitute in any
manner a defense to the allegations against the Respondent at issue herein.
b. The argument the Union’s bargaining conduct was improper and constitutes
a defense to the allegations against the Respondent
The Respondent argues in its posthearing brief at 272:
[The Charging Party] consistently engaged in conditional bargaining by attempting, as a
term of employment, that employees and/or [the Charging Party] be able to challenge—
through protest; subjective determinations by employees; and grievance and
arbitration—content decisions of the newspaper. [The Charging Party’s] proposals on
management rights, discipline and discharge, and grievance and arbitration all combined
to limit the News-Presses’ ability to control the content of the newspaper by transferring
content decisions to employees and/or [the Charging Party], and served to make the
News-Press’s content decisions subject to grievance and arbitration.
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As is discussed in substantial detail below in the section on bargaining, the Union as part
of its initial bargaining proposals offered language concerning employees’ role in the newsroom
which, the Respondent argued, set standards or granted employees the right to decide certain
matters which, through the operation of the “reasonable” standards and the binding arbitration
proposals, could be used to reduce the Publisher’s control over the news. The Respondent
further took the view that the elements of these proposals concerning the newsroom work and
ethics and use of employee bylines were all nonmandatory subjects of bargaining.
While conceding that the Union repeatedly withdrew these newsroom and ethics
proposals—as opposed to discipline and grievance/arbitration proposals—when requested by
the Respondent, the Respondent argues the “introduction, withdrawal, reintroduction,
withdrawal and second introduction of its “work assignment/employee integrity” proposal
hampered the bargaining progress, and stifled progress toward an overall agreement.” Thus
the Respondent concludes, on posthearing brief at 272–273:
Far from the News-Press being the bad actor in this play, [the Charging Party]
systematically blocked progress towards agreement by reintroducing proposals on a
permissive subject of bargaining it knew to be predictably unacceptable—the employees
and/or [the Charging Party] controlling the content of the newspaper. In so doing, [the
Charging Party] engaged in bad faith bargaining.
This state of affairs the Respondent emphasizes is a proper affirmative defense to the charges
against it.
The General Counsel and the Union strenuously disagree. First each argues the logic of
the Respondent’s argument is fallacious. The Respondent refused to allow any standards of
reason or any binding arbitration as to any matter whatsoever not simply in regards to news
content or control over the news. The Respondent never expressed a willingness to allow any
objective standards or arbitration during the periods when all the proposals it regarded as
offensive had been withdrawn. It made no statement of conditional willingness to allow
reasonable standards as to discipline or anything else or binding arbitration if in some manner
the newsroom content was left out of the application of those proposals. They argue that the
Respondent’s argument about control is simply a sham and pretext cloaking it unchecked
opposition to employee right of representation under the statute.
Further, the General Counsel and the Charging Party argue, the fact that the
Respondent did not wish to agree with the Union’s proposals does not mean those proposals
may simply be labeled disruptive and/or that they somehow justify the Respondents unfair labor
practices. Whether the proposals of the Union involved were permissive or mandatory is
immaterial, the General Counsel argues, there is no doubt that the parties were never at
impasse and any party may lawfully propose permissive subjects of bargaining in such a setting.
NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958).
On the basis of the record as a whole and the positions of the parties and with close
consideration of the bargaining as is discussed in greater detail infra, I reject the argument of
the Respondent that the Union was engaging in bad-faith bargaining. I do not regard the
Union’s conduct here challenged by the Respondent as rising to the level of a defense against
the unfair labor practice allegations of the complaint. I accept the arguments of the General
Counsel and the Charging Party that the Union’s proposals which the Respondent took to be
permissive subjects of bargaining were not for that reason evidence of bad-faith bargaining by
the Union. Where no impasse has been reached, either party may offer proposals concerning
nonmandatory subjects of bargaining. And here, the Respondent did discuss the contested
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proposals with the Union and, when the Respondent asked the Union to withdraw certain
proposals, it did so. Given these findings, I reject the Respondent’s asserted defense.
D. Allegations Respecting the Respondent’s Use of Employment Agencies
1. An initial caution about a potential ambiguity regarding these allegations
In considering the allegations that the Respondent violated the Act in regards the
employment of individuals hired by or through outside agencies, it is important to keep in mind
the fact that two categories of individuals were utilized by the Respondent at relevant times, but
only one category is the subject to the allegations herein.
The Respondent has long had a practice of hiring “[e]mployees engaged for a specific
period of time or to complete a particular project.” (The Respondent’s employee handbook at
12.) The Respondent maintains and used personnel forms, such as requisition forms, which
allow for recordation of the “length of assignment” of temporary employees. During the
Respondent’s operation up to the union election, such hires had been few—on average roughly
two a year, but regular and no such direct hire temporary employees were employed as of the
September 2006 election. There is no dispute that those “temporary employees” directly hired
on the basis noted were the Respondent’s employees. The complaint does not challenge the
direct hire or employment of these temporary employees by the Respondent.
The Respondent also utilized the services of individuals governed by contracts between
the Respondent and outside providers. These agencies and the individuals providing services
to the Respondent—including the doing of unit work—are variously referred to by the parties,
witnesses, and in the pleadings. The complaint refers to the outside agencies as “temporary
agencies” and to those individuals working under these contracts as “temporary agency-
provided employees.” The contract in evidence between the Respondent and an outside
agency refers to these individuals as “contractors” and the outside agency as the “contractor’s
employer.”
The Union initially was not fully informed of the difference in the two categories of
individuals: the Respondent’s direct hire, temporary employees and the second category, the
outside agency contractors doing unit work. So questions by the Union of the Respondent were
initially ambiguous and were later directed to understanding the difference in the details of the
two categories of the individuals and their use by the Respondent. It is important to keep in
mind that the complaint deals only with the “outside agency” individuals doing unit work and not
the Respondent’s direct hire “employee handbook” defined temporary employees directly
employed by the Respondent.
2. Issues respecting Respondent’s use of employment agencies
The complaint alleges that the Respondent utilized employment agencies to provide
employees who undertook bargaining unit work. The General Counsel pleads alternative
theories of a violation of the Act in this conduct. First, the complaint, at paragraphs 8 and 9,
alleges that these employees obtained through temporary employment agencies were
bargaining unit employees who were not compensated consistently with other unit employees
and that the Respondent at all times had refused to bargain with the Union concerning them.
The General Counsel’s complaint’s second, alterative theory, at complaint paragraph 10,
alleges that, if the agency hired employees are not the Respondent’s unit employees, then the
Respondent by having these nonunit individuals do bargaining unit work was transferring work
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out of the bargaining unit without the agreement of the Union and without providing the Union
with an opportunity to bargain respecting such transfers. In either case, the General Counsel
argues and the complaint alleges, the conduct violates Section 8(a)(1), (3), and (5) of the Act.
As discussed in greater detail below, the Union’s requests for information respecting
these individuals, and the timeliness and sufficiency of the Respondent’s responses to those
requests, are also in issue as alleged violations of Section 8(a)(1) and (5) of the Act.
While there was no dispute that employment agencies were utilized by the Respondent
and that individuals from those agencies did unit work, the parties disagreed respecting the unit
placement of these individuals and the Respondent’s past practices respecting them. These
disputes require exploration of the relationships and practices concerning these individuals.
3. Initial facts, events, and allegations respecting the use of employment agencies
The Respondent’s business record (GC Exh. 234) listed its Newsroom Temporary
Agency Invoices for the period 2000–2008. Two employment services submitted a total of three
invoices for referred employee services in the initial year (2000) of the Respondent’s operations
of the News-Press. Three agencies submitted a total of 34 invoices in 2001. A single agency
submitted two invoices in January of 2002. Agency use by the Respondent stopped at that
point for a period in excess of 5 years resuming with an invoice submitted on May 29, 2007,12
and significant invoices submitted thereafter through 2007 and 2008.
Yolanda Apodaca, the Respondent’s director of human resources, testified the
discontinuance or “freeze” in the use of outside agencies resulted from a policy initiated around
January 2002, by the general manager and/or acting publisher at the time, Will Fleet, who
determined the Respondent was “not to hire temporary employees through agencies.” She
attributed the decision to halt the use of agency services as based on the greater costs of using
such services.
Apodaca testified she raised the matter of use of agencies again with copublishers,
Arthur von Wiesenberger and Wendy McCaw and perhaps counsel in a meeting in the latter half
of 2006. Apodaca testified she reported to the meeting participants that she needed assistance
in hiring employees for the paper and wished to use the services of a recruiter and also to use
temporary employment agencies to provide staff. She received authorization to “seek
assistance if I need it.” No other testimony respecting this meeting was offered.
The business records described above indicate the placement agencies’ invoices halted
in January 2002, did not resume until May 29, 2007, and specifically note that the agency
employment use was frozen for the entire years 2003-06. Apodoca placed the described
meeting as falling somewhere in the latter half of 2006. This period is seemingly inconsistent
with the fact that the Respondent’s use of the agencies did not resume until May 2007. Why, if
at a 2006 meeting the Respondent gave Apodoca permission to use agencies, was their use
delayed till May 2007? Given this unexplained inconsistency and the fact that none of the other
meeting participants testified respecting the event or its date of occurrence, I find that the
meeting more likely occurred shortly before the initial resumed payments to agencies the
records show began in May 2007. Based on the record as a whole and the testimony of
Apodaca I find the meeting did not occur before October 2006. To this extent, I find Apodoca’s

12 The portions of the Agency invoices record covering calendar years 2003–2006, each
bear the entry: “hiring freeze–no temp employees per acting publisher.”
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memory of the timing was in error. In all events I credit the business record provided that the
Respondent’s use of agencies occurred in 2000 and 2001, halted in January of 2002, and did
not resume till May of 2007, when an agency titled Office Team submitted an invoice to the
Respondent.
The agency involved with the Respondent in July 2007, and subsequent periods
respecting individuals doing unit work, is Top Echelon Contracting, Inc. The July 13, 2007
contract or “client services agreement” between Top Echelon and the Respondent was entered
into evidence. By its terms the contract commits Top Echelon to provide its employees (called
contractors in the document) to the Respondent for performance of services in accordance with
the Respondent’s provided job descriptions. Top Echelon is responsible for all compensation of
the individuals involved and provides all necessary insurance and fringe benefits to those
individuals such as, in conjunction with options taken by the individuals for joint payment for
such coverage, as health insurance. Top Echelon has the right to direct and control the
contractors in the performance of their work. The contract provides the Respondent may
request that the contractors conduct themselves in accordance with its internal rules and
policies.
The contract at paragraph 13 explicitly sets forth the relationship of the parties.
The Client and Top Echelon agree that Contractor is Top Echelon’s employee; and, the
services provided by Contractor to the Client are provided pursuant to this Agreement.
Neither this Agreement nor services provided hereunder shall be construed to create a
relationship of employment, agency, partnership or joint venture between Top Echelon
and the Client or the Contractor and the Client. The status of Top Echelon and the
Contractor relative to the Client shall be that of an independent contractor. Neither Top
Echelon, the Contractor, nor the Client shall have any right or authority to assume or
create any obligation on behalf of any of them.
In July 2007, four agency employees began working in the newsroom doing unit work.
Six more were working in the newsroom by November 2007. At that time there were
approximately 34 individuals in the newsroom performing the duties described in the unit
description. Some 24 were undisputed unit employees of the Respondent. The remaining 10
were agency contractors. By December 2008, the agency contractors working in the newsroom
totaled 8 and the undisputed unit members totaled 16.
The records of the Respondent and Top Echelon in the record, as well as the testimony
respecting the contractors’ duties and general working conditions at the Respondent are not in
particular conflict. Top Echelon is a nationwide enterprise and maintains a substantial data
base on the job referents and offer a wide range of benefits to them. It pays and handles typical
“human resources” compensation matters. The Respondent through its newsroom supervision
directed and assigned the contractors essentially identically with its own employees working in
the newsroom in the same positions. The contractors were subject to the Respondent’s
performance and job quality rules. Time and attendance of Top Echelon referents was
maintained by the Respondent’s supervision, but the recordation was submitted to Top Echelon
for payment calculation and actual payments to referents rather than to the Respondent’s pay
systems for its own employees.
The record established that the Respondent placed its own employment advertisements
and interviewed applicants for these positions. The Respondent sometimes informed applicants
that it intended to have work for them or that they would be employed in the newsroom, but
directed the employment applicants to Top Echelon for referral back to the Respondent by the
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agency. Top Echelon in such circumstances did in fact process the Respondent’s referents
back to the Respondent as Top Echelon employees and also used “recruiters” who provided
work applicants who were referred to and considered by the Respondent. Further, applicants
were sometimes told by the Respondent’s agents that they could not be initially hired by the
Respondent directly, but would initially be employed through an agency referral with the
possibility that thereafter in time they would become direct News-Press employees. Hiring
decisions respecting contractors were made by the Respondent’s agents. No individual referred
to an agency by the Respondent for referral back to the Respondent was rejected by the agency
involved. In so far as the record reflects, Top Echelon did not screen the individuals the
Respondent requested be referred to it.
Reporter Marci Wormser was told by the Respondent before she started work that she
would be employed by Top Echelon. She started initially in the newsroom in mid-November
2008, under the assumption she was a referred employee of Top Echelon. After working for a
time, at about the end of November 2008, she learned that was to be converted into a freelance
employee working directly for the Respondent on a fee-per-story basis. She continued on this
basis, working at a desk in the newsroom and using the Respondent’s facilities as other
newsroom employees did. Thereafter, on or about December 18, 2008, she had a conversation
with Don Katich and Scott Steepleton. She was told:
I was still—they were still awaiting approval from [Publisher] Wendy McCaw to make me
a temporary employee, well through Top Echelon. And that is because I’m a freelancer.
I cannot work in the office any more using their equipment, but I could work for them as
a regular freelancer.
She continued in this new freelancer status until she became a regular newsroom employee on
or about January 31, 2009.
The Union and the Respondent held their first bargaining sessions on November 13
and 14, 2007. In these initial bargaining sessions the Union through its spokesman Nicholas
Caruso requested information about the Respondent’s hiring of temporary employees and its
use of hiring agencies. The Respondent through spokesman and counsel Zinser informed the
Union that the Respondent hired its temporary employees through an agency, “Top Echelon”
but that he did not know when the Respondent had started using that agency. The Union asked
for information about Top Echelon.
The Respondent on November 14, 2007 provided the Union with a list of temporary
employees performing work in the newsroom, which list included their names, employing
agency, job titles, dates performing unit work and pay rates. The document lists the names of
eight Top Echelon employees working in the newsroom with commencement dates from July 9,
2007 and thereafter, and one Office Team employee working in the newsroom who started in
July 2007.
Union chief negotiator Caruso again raised the temporary hire issue and told the
Respondent that the Union felt that the Respondent was not hiring consistently with its
employee handbook and expressed concern that the Respondent was replacing unit employees
with hires through outside agencies and that the Respondent’s conduct was a departure from its
past practices. The Union indicated it was reluctant to immediately file NLRB charges
respecting the issue but that it was of concern. Zinser suggested that the Union should make a
written request for information on the issue and Union counsel Gottllieb agreed to do so noting
that “using outside agency Top Echelon is a concern. . . .”
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On November 16, 2007, union counsel, Gottlieb, sent to the Respondent’s counsel
Zinser, by facsimile transmission, email, and USPS mail, a letter captioned: “Re: Unlawful hiring
of ‘temporary’ employees to perform bargaining unit work.” The letter stated in part:
Following up on our discussion of November 14, 2007 at the negotiating table, this is to
request the Employer’s full and complete rationales(s) explaining why the nine
“temporary” employees allegedly hired by either Top Echelon and/or Office Team
Employee and working as reporters for the Santa Barbara News-Press, are, in
Ampersand’s view, not part of the bargaining Unit consistent with the NLRB’s
certification and the requirements of the NLRA.
You will recall that approximately one month ago, the Union requested
information pertaining to the “temporary” employees, and you provided that information
during our second day of negotiations only after repeated requests therefore. When we
asked you at the table for your rationale, you declined to provide it then, and asked for
the opportunity to do so in writing.
As the Union has advised you, since these employees are clearly (and
undisputedly) performing bargaining unit work, and all began work on or after July 2007,
they must be included within the Unit represented by the Union. As you are aware, the
number of eligible employees at the time of the election in September 2006 was 42. . . .
The Union has demanded that the nine “temporary” employees (and any others doing
unit work) be included and that failure to include them, and the failure to notify the Union
of their hire, are violations of Section 8(a)(5) of the National Labor Relations Act. You
requested the opportunity to explain in writing as opposed to orally across the table why
they need not be part of the bargaining unit. Please provide that rationale, and the
following information, no later than November 26, 2007.
For each of the “temporary” employees, state:
1. How each of the employees made contact with the SBNP, if at all, during the
hiring process;
2. Whether the employee responded to an ad placed by the SBNP;
3. Whether the employee responded to any communications from the SBNP to
begin or continue the hiring process;
4. Whether the employee responded to any communications from Top Echelon or
Office Team (with respect to Mr. Melendez) to begin or continue the hiring
process;
5. The names of all people with whom the employee spoke and/or were interviewed
in connection with the hiring process;
6. The names of all people who participated in the decision to hire the employee to
perform work in the service of the SBNP; and
7. Identify all people who supervise the employees, including having the
responsibility to discipline, discharge (or remove from working in the service of
SBNP), effectively recommend discipline or discharge, and/or provide the
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employee with assignments and/or instructions (including editing) for workplace
performance.
The enumerated information requested in this letter is alleged as requested on
November 16, 2007 in complaint paragraph 7(a). The Respondent’s April 7, 2009 answer to
complaint paragraph 7(a) denies the allegation and further avers in part:
Rather on November 13, 2007, [the Union], through Nicholas Caruso, verbally requested
the names and rates of pay for temporary employees at [the Respondent.] On
November 14, 2007, [the Respondent] provided the requested information. . . .
The Respondent did not provide any additional information on receipt of the letter and, on
November 27, 2007, the Union filed Charge 31–CA–28589. The charge alleges violations of
Section 8(a)(1) and (5). It’s stated charge bases states in part:
Within the last six months, the [Respondent] has failed and refused to bargain in good
faith, by subcontracting and/or using employees it labels “temporary” employees to
perform bargaining Unit work purportedly hiring them through an employment agency,
contrary to the [unit] certification issued by the NLRB . . . and without prior notice to the
Union and opportunity to bargain. The [Respondent] has further violated the Act by
failing and effusing to provide requested information relevant to . . . utilizing alleged
“temporary” employees to perform bargaining Unit work.
On January 23, 2008, by letter sent by facsimile transmission and USPS mail, counsel
Zinser wrote counsel Gottlieb. The letter was captioned: Re: supplemental information
concerning temporary employees and stated the Respondent wished to supplement information
previously given concerning temporary employees. The letter then addressed the earlier
information request. The letter tracked exactly the seven numbered questions presented in
counsel Gottlieb’s November 16, 2007 letter to counsel Zinser, quoted in relevant part above,
following each quoted emboldened question by the Respondent’s answer.
The complaint pleads at subparagraph 7(g) that on January 23, 2008, presumably by the
quoted letter, the Respondent responded to the Union’s information request described in
complaint paragraph 7(a). The issue framed by the pleadings then is whether or not, as alleged
in complaint subparagraph 7(l), the period of time which passed between the Union’s request
and the Respondent’s provision of the information “constitutes an unreasonable delay in
furnishing the Union with the information requested.”
On December 3, 2007, the Union, through counsel Gottlieb, send a letter to counsel
Zinser by facsimile, email, and USPS mail with the caption: Re: Unlawful hiring of “temporary”
employees to perform bargaining unit work.” The letter states in part:
In addition to the requests for information that are now outstanding on this issue, please
provide the following, all no later than December 21, 2007:
1. Has [the Respondent] ever used employees it labeled “temporary” employees—
either direct hires or through an agency—to perform work that is now included in the
certified bargaining unit?
2. If so, state the following for each instance of such use of temporary work:
a. The date(s) on which the “temporary” employee performed bargaining Unit work;
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b. The name(s) of all such temporary employees;
c. The name(s) of any temporary agency which you claim employed the temporary
employees;
d. The specific project or task(s) performed by the temporary employee(s);
e. The pay rates for the temporary employee(s).
The enumerated information requested in this letter is alleged in complaint subparagraph 7(b).
By letter dated January 30, 2008, sent by facsimile transmission and commercial carrier,
counsel Zinser wrote counsel Gottlieb. The letter stated in part:
In regard to your additional information requests contained in your December 3, 2007
letter that are the subject of Charge No. 31–CA–28589, please note that I provided that
information to you at our November 14, 2007 bargaining session. If you remember, at
that bargaining session I handed you and Nicholas Caruso a list of temporary employees
performing work in the newsroom, which included their name, agency, job title, dates
performing Unit work and pay rates.
I have enclosed that list for your convenience, I have also enclosed updated information
to reflect the present list of temporary employees in the newsroom. I hope this resolves
the matter and I look forward to continued bargaining.
The letter included two attached lists. The first is the list identified in the letter by the
Respondent to the Union as having been earlier given to the Union along with other materials at
the bargaining session of November 14, 2007. That list contains the names of eight Top
Echelon employees working in the newsroom with their starting dates the earliest of which is
July 9, 2007, and one Office Team employee working in the newsroom again with a July 2007
starting date. The second or revised list addresses the subsequent changes in the newsroom
temporary employees: the list deletes two earlier Top Echelon employees who departed and
adds four additional “temps” who started in the period October 2007, through January 2008.
The complaint pleads at subparagraph 7(h) that until January 30, 2008,13 presumably
the time of the quoted letter, the Respondent had not responded to the Union’s information

13 The General Counsel at trial moved to amend the January 30, 2008 date in complaint
subpar. 7(h) (which is the date the Respondents alleged failure to provide the information ended
in complaint subpar. 7(h)) to a different, later date, May 26, 2009. I denied the motion as
untimely. Where, as in this motion, the General Counsel is seeking to extend the time an
employer is alleged to have failed to provide a labor organization with requested information, he
is in effect reconsiderating his initial complaint contained concession that the information had
been provided by the earlier date as set forth in the unamended complaint. Changing that date
in the complaint to a later date—here over 15 months later, not only extends the period of the
alleged violation, it explicitly withdraws the essential General Counsel concession that the unfair
labor practice allegation ended and the information was sufficiently supplied by the Respondent
to the Union on the earlier, original, date. Since something—here the January 30, 2008 letter—
caused the General Counsel to allege the demand had been satisfied in the original paragraph,
the amendment is not based on new evidence of what occurred on January 30, so much as is
Continued
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request described in complaint paragraph 7(b). The issue framed by the pleadings then is
whether or not, as alleged in complaint subparagraph 7(l), the period of time which passed
between the Union’s request and the Respondent’s provision of the information “constitutes an
unreasonable delay in furnishing the Union with the information requested.”
4. Are the employment agency-referred individuals within the bargaining unit?
The General Counsel and the Charging Party allege the employment agency hired
individuals working in the newsroom were at all relevant times unit employees. The
Respondent has at all times opposed this claim. The initial issue respecting these employees
is: Whose employees were they? The General Counsel contends the Respondent was the sole
employer of these employees and that the agencies involved were employers only in an
administrative sense. The Respondent argues that the individuals involved were temporary
employees who were jointly employed by a user employer and a supplier employer as in
Oakwood Care Center, 343 NLRB 659 (2004), and, as that case holds, are not properly
included in the bargaining unit. The Respondent further argues that temporary employees are
not in the unit in any event.
The General Counsel advances the Board’s decision in Mar-Jam Supply Co., 337 NLRB
337 (2001), in which agency-provided employees were found to be the user employer’s sole
employees. In that case however the user employer set uniform terms and conditions of
employment for all employees doing unit work. That is not true in the instant case where the
agencies involved offered various nonwage benefits which were not applicable to user employer
employed employees. The General Counsel’s cited case, Employee Management Services,
324 NLRB 1051, 1051 fn. 2 (1997), notes that there had been no exceptions filed to the joint
employer findings of the judge. The decision is therefore not precedent respecting that analysis.
In Town & Country Electric, 309 NLRB 1250 (1992), the issue was the referring agency’s
status as agent for the employing employer. Both the Board and the judge found the complaint
resolvable “even absent a joint-employer relationship” (Bd. at 1251). I find the case is therefore
not precedential on the unit issues herein. So, too, the offered case, Storall Mfg. Co., 275
NLRB 200 (1985), enfd. mem. 786 F.2d 1169 (8th Cir. 1986), presents and agency analysis and
not a bargaining unit analysis and therefore is not on point.
The General Counsel and the Charging Party further argue that the employees
involved—the agency-provided individuals—were not in fact temporary within the Board sense
of the term. Unlike the Respondent’s directly hired temporary employees, the agency referred
employees were not hired for specific periods of time or for particular projects. Thus these
individuals did not meet the Respondent’s own employee handbook definitions.
_________________________
impliedly a reconsideration of that original evidence. This act of prosecutorial reconsideration of
events would, if the amendment to the complaint were granted, constitute an expansion of the
government’s case and extend the period of the alleged violation for the period of many months.
To restate, the Government’s proposed amendment was not an action justified by new evidence
but rather the proposed amendment constitutes a withdrawal of the factual and legal conclusion
that the information provided by the Respondent on the originally pled date, i.e., on the earlier
date, January 30, 2008, was sufficient to satisfy the employer’s obligation. This prosecutorial
reconsideration of the legal consequences of the events of January 30, 2008, here the delivery
of the quoted letter—was before the General Counsel at the time the complaint issued. The
proposed mid-trial amendment is therefore out of time.
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Having considered the arguments of the parties on the issue as well as their cited cases,
I find that the agency referred individuals are not properly within the certified bargaining unit.
The issue here is unit cohesion not the agency of one employer as compared to the other. The
fact that the fringe benefits of these employees were set by the agency and the individuals in
consultation with the agency selected their fringe benefit choices from a menu of coverage and
the associated fact that the Respondent did not have a role in setting those benefits renders the
agency-referred employees essentially independent from the Respondent in that important
aspect of compensation.14 They are not employees of the Respondent for purposes of this
analysis. It is unnecessary having resolved the issue of bargaining unit inclusion and the identity
of their employer, to go further and resolve the arguments respecting the temporary or full-time
status of these individuals here.
The General Counsel’s allegation in paragraph 8 of the complaint is that the Respondent
unilaterally changed the terms and conditions of employment of its unit employees hired through
temporary agencies, by failing to apply to them the same terms and conditions of employment
applied to other employees. In paragraph 9 of the complaint the General Counsel alleges that
the Respondent has failed and refused to bargain over these unit employees. Having found that
employees hired through temporary agencies are not the Respondent’s unit employees, I shall
dismiss these paragraphs of the complaint. I note the complaint states alternate theories
regarding the individuals involved which are dealt with elsewhere in this decision.
The complaint at subparagraphs 14(a) and (c) allege the Respondent laid off its
employees Kyle Jahner and DeWitt Smith. Having found that the General Counsel’s first
temporary agency theory as alleged in complaints paragraph 8 and 9 is not correct and having
dismissed those paragraphs of the complaint, the General Counsel’s opening remarks on the
first day of trial come into play. Counsel for the General Counsel asserted:
Respondent also laid off temporary employees, as alleged in the Complaint, Dewitt
Smith and Kyle Jahner. Now, these allegations—I believe this [is] Paragraph 14 of the
Complaint. In Paragraph 14 of the Complaint, these obligations are predicated on our
first theory, Your Honor, that these—that the temporary agency-provided contractors or
employees, that these people were actually employees of Respondent in the unit, and
that by failing to notify the Union of the—of the failure—of the impending layoff of both of
these unit employees that the Respondent had, again, violated the Act.
Now, if you were to find that our second theory were correct, that these
employees were actually jointly employed and this is an unlawful transfer of work than
these two allegations with respect to the layoff. They wouldn’t go anywhere because
their—their contention on a finding that they were employees of the—of the Respondent.
Given the quoted statement of counsel for the General Counsel on the opening day of the
hearing, and having found that agency-referred individuals are not employees of the
Respondent, complaint paragraphs 14(a) concerning Kyle Jahner and 14(c) concerning Dewitt
Smith are without merit. As the General Counsel concedes in his quoted statement, given my
finding that they are not employees of the Respondent, no violation of the Act has been
sustained. I shall therefore dismiss the allegations respecting these two individuals.

14 The General Counsel’s theory and trial of the case eschews any argument that the
agencies are joint employers with the Respondent.
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5. Was the Respondent’s use of agency employees a violation of Section 8(a)(5)
and (1) of the Act?
a. The General Counsel’s prima facie case
The General Counsel’s complaint paragraph 10 is an alternative pleading to the
complaint paragraphs 8 and 9 dismissed above: “. . . [S]ince in or around July 2007, the
Respondent has been transferring unit work from the employees in the bargaining unit to
temporary agency-provided employees. This is alleged to violate Section 8(a)(1) and (5) of the
Act in complaint paragraph 25.
There is no dispute that the election in NLRB Case 31–RC–8602 was held on
September 27, 2006, and that the Board issued the certification of representative to the Union
on August 16, 2007. The Charging Party notes on brief at pages 1–2, footnote 3:
. . . [T]he relevant date by which to measure the status quo . . . is not the NLRB
certification date of August 2007, but the September 27, 2006 election date. Laurel
Baye Healthcare of Lake Lanier, 352 NLRB 179 (2008); Sprain Brook Manor Nursing
Home LLC, 351 NLRB 1190 (2007); Ramada Plaza Hotel, 341 NLRB 310 (2004); Mike
O’Connor Chevrolet, 209 NLRB 701(1974). . . .
The citation of authority is correct.
There is also no dispute that the use of agency employees doing unit work in the
newsroom started for the first time following a multi-year hiatus, see discussion infra, in July
2007. At that time four agency-provided employees started in the newsroom: Angel Pacheco
and Joe Melendez as reporters, Kyle Johner and Kevin Merfeld as sports department writers
and copy editors. By November 2007, 6 additional agency employees were at work as
reporters, writers or copy editors for a total of 10. To put the hires in perspective, in September
2006, 42 employees were listed on the election eligibility list. With the start of bargaining in
November 2007, 24 unit employees were employed in the newsroom as were 10 agency
employees. Agency employees continued to be utilized by the Respondent in the newsroom in
similar proportion—roughly comprising 50 percent of the number of unit employees with
variation—into early 2009. There is no reason to conclude that these individuals did less unit
work than the Respondent’s unit employees on an hour-by-hour basis. Thus, I find that at all
times between July 2007 and early 2009, significant amounts of unit work were being provided
by nonunit employees.
It is clear then that the Respondent hired agency-provided individuals to do and they did
do significant quantities of unit work during the noted period throughout which the Union
represented unit employees. It is also clear that the Respondent did not notify the Union that
the Respondent was going to use agency-provided employees to do unit work until bargaining
commenced in November 2007, at which time use of such individuals was well underway.
There is no dispute that the Respondent did not at any time offer to bargain concerning either
the agency supplied employees nor the unit work that they were doing. Finally there is no
dispute that the Respondent did not at any time obtain the agreement of the Union to the
Respondent’s use of agency-provided employees to do unit work.
An employer’s decision to subcontract work performed by bargaining unit members is a
mandatory subject of bargaining. Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964).
Here that decision was taken by the Respondent and instituted during the postelection period.
There is no claim the Union was informed, provided opportunity to bargain or gave consent to
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these actions. Thus the General Counsel has established his prima facie case that a violation
of Section 8(a)(5) of the Act occurred.
b. Was the Respondent’s use of agency-provided employees to do unit work
a benign continuation of a legally sufficient past practice?
The disputed aspect of the agency-provided individuals doing unit work is whether or not
the Respondent’s had a sufficient past practice justifying the disputed use without bargaining.
Where the employer raises a defense of past practice to a unilateral change allegation of the
type at issue here, the General Counsel bears the burden of showing, by a preponderance of
the evidence, that the allegedly unlawful subcontracting constituted a material and substantial
change in the Respondents’ practices. Great Western Produce, 299 NLRB 1004, 1009 fn. 2
(1990); Clements Wire, 257 NLRB 1058, 1059 (1981).
The Board in a recent case, Eugene Iovine, Inc., 353 NLRB No. 36, slip op. at 1 (2008),
enfd. ___ F.3d ___, No. 09-0217-ag (2d Cir. March 30, 2010), noted the evidentiary standard for
determining the sufficiency of the pattern or frequency of occurrence of the past practice:
The party asserting the existence of a past practice bears the burden of proof on the
issue and the evidence must show that the practice occurred “with such regularity and
frequency that employees could reasonably expect the ‘practice’ to continue or reoccur
on a regular and consistent basis.” Sunoco, Inc., 349 NLRB 240, 244 (2007);
Philadelphia Coca-Cola Bottling Co., 340 NLRB 349, 353 (2003), enfd. mem. 112 Fed.
Appx. 65 (D.C. Cir. 2004).
The Board approved the analysis of Administrative Law Judge Aleman in Philadelphia Coca-
Cola Bottling Co., 340 NLRB 349, who set forth the following at 353:
A past practice is defined as an activity that has been “satisfactorily established” by
practice or custom; an “established practice”; an “established condition of employment;”
a “longstanding practice” (citations omitted). Exxon Shipping Co., 291 NLRB 489, 493
(1988); See, also, Golden State Warriors, 334 NLRB 651 (2001), Dow Jones & Co., Inc.,
318 NLRB 574, 578 (1995). Thus, an activity, such as the Respondent’s distribution of
bonuses, becomes an established past practice, and hence, a term and condition of
employment, if it occurs with such regularity and frequency, e.g., over an extended
period of time, that employees could reasonably view the bonuses as part of their wage
structure and that they would reasonably be expected to continue. Sykel Enterprises,
324 NLRB 1123 (1997); Blue Circle Cement Co., 319 NLRB 661 (1995); Lamonts
Apparel, Inc., 317 NLRB 286, 287 (1995); Central Maine Morning Sentinel, 295 NLRB
376, 378 (1989); General Telephone Co. of Florida, 144 NLRB 311 (1963); The
American Lubricants Co., 136 NLRB 946 (1962).
The Respondent’s past practice concerning agency-provided newsroom employees is
described in the Respondent prepared summary of its payments to vendors, i.e., agencies, for
newsroom referents in the period 2000–2008. As described briefly, supra, agency use is
revealed by weekly invoices submitted by agencies for payment. Thus, the total for 2000 was
three weekly invoices submitted by agencies for payment in October 2000. The total for 2001
was 34 weekly invoices submitted through the year. The total for 2002 was two weekly invoices
submitted in January 2002.
The document reveals no agency referrals in calendar years 2003–2006. In the space
on the record for each of those years is the entry: hiring freeze. Apodaca testified the freeze
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was a policy decision of the Respondent’s publisher at that time. The first invoice ending this
hiatus is dated May 29, 2007,15 and invoices were submitted regularly thereafter to the end of
2008. As described supra, Apodaca testified the Respondent’s management and counsel
determined to resume the practice of using agency referents in the newsroom upon her request.
I have found, supra, that this recommendation and decision were taken in 2007, some time
shortly before the resumption of the practice in May 2007.
The document under discussion has but three columns: (1) for the name of the agency
involved, (2) for the dates of the invoices submitted and (3) for the amount paid on each invoice.
Because the column indicating the amount paid is redacted, it is not possible to gauge the
numbers of individuals covered by each invoice—a number that could be roughly calculated
were the amount of each invoice included. While there was some nonspecific testimony that
agency referents might have worked at other times, I specifically credit the record involved and
discredit any suggestion inconsistent with the document.
Thus, the pattern under scrutiny for determining if the use of agency referents in the
newsroom on and after May 2007, was a unilateral change or rather was simply the continuation
of a past practice may be simply stated. The Respondent used outside agencies to refer
individuals to do newsroom, i.e., unit, work as measured on a total number of weekly invoices
basis as follows:
2000—2 weekly invoices starting in October 2000
2001—34 weekly invoices throughout 2001
2002—2 weekly invoices ending in January 2002
2003—hiring freeze—no employees referred
2004—hiring freeze—no employees referred
2005—hiring freeze—no employees referred
2006—hiring freeze—no employees referred
2007—invoices commence May 29, 2007
Applying the Board cases cited to the past practice of the Respondent’s use of agency
referred individuals as workers in the newsroom, it is clear that the 16 months of agency use in
colander years 2000 and 2001, followed by a total freeze and discontinuance of agency use for
the following 63 calendar months in 2002 into 2007—over 5 years—clearly does not rise to a
level of a sufficient past practice to allow its reintroduction without notice to and bargaining with
the unit employees representative. The Respondent had not used temporary agencies for
newsroom work for over 5 years. That hiatus period is simply far too long to consider the 63-
month old prior use of agencies to refer newsroom workers as part of a pattern or practice of
conduct when viewed in May 2007. Further, there is no evidence newsroom employees were
told of the practice during that period. Clearly the use of temporary agencies in the manner
noted was not something that occurred with such regularity and frequency that unit or
newsroom employees in 2007 could reasonably expect to continue or reoccur on a regular and
consistent basis.
Indeed the use of temporary agencies prior to 2007, was not a pattern or repeat or
recurrent practice. The meaning of all such words carries the concept of doing again. Here the
Respondent’s use of agencies to procure newsroom workers—from the perspective of the time
just before agencies were used in May 2007—was undertaken in 2001, and continued for a bit

15 Since invoices were submitted on a weekly basis, the commencement of unit work by
agency referents was in May 2007.
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of 2002 then was simply discontinued for over 5 years. The description best applied to this
course of conduct is initial use followed by discontinuance followed years later by resumption.
There was no repeated course of action; no continuing pattern of conduct. So, too, the May
2007 resumption was a first time resumption not a repetitive element in a pattern or practice.
The May 2007 resumption may have started a pattern, but the test here is for the actions of May
2007 to constitute part of the continuing pattern not to be the founding element in a resumption
of long discontinued conduct.
I have found the hiatus of over 5 years in the Respondent’s use of temporary agencies
for obtaining newsroom workers does not support a finding of a pattern or practice. I have found
that the unit or newsroom employees could have had a reasonable expectation the Respondent
would start using temporary agency referrals in March 2007. I therefore find and conclude that
the Respondent did not have a “past practice” at relevant times within the meaning of the Board
decisional law, set forth in part above, which could justify its May 2007 decision to use
temporary agencies to procure independent contractors to do unit work in the newsroom. I
therefore find the decision was taken by the Respondent without meeting its notification and
bargaining obligations to the Union.16
c. Summary and conclusion respecting the unilateral subcontracting allegation
There is no doubt that the Respondent resumed the use of agency employees. I have
determined that these individuals are not employees of the Respondent. Thus the Respondent
is not a joint nor a single employer of these temporary agency referents. I have further found
that these individuals are not members of the Respondent’s bargaining unit represented by the
Union. Thus any issue remaining respecting these individuals must be analyzed considering
them to be subcontractors assigned by the Respondent to do unit work.
There is no doubt and I have explicitly found earlier that the amount of unit work lost to
unit employees through the Respondent’s use of the subcontractors provided by the agencies in
and after May 2007, was substantial and resulted in a significant reduction in the number of unit
employees employed by the Respondent who were in the bargaining unit. I have further found
that the Respondent’s subcontracting commenced in May 2007, and the Respondent’s decision
to commence the subcontracting was taken after September 27, 2006. Thus I have found both
the subcontracting and the decision to subcontract occurred during the period the Union
represented the Respondent’s unit employees.
Given the above, I found that the Respondent’s decision to subcontract, its
subcontracting, and the effects of its subcontracting on unit employees, are mandatory subject
of bargaining under the Supreme Court’s decision in Fibreboard Paper Products v. NLRB, 379
U.S. 203 (1964). Having made that threshold determination, I then turned to the issue of
whether or not the Respondent was simply continuing a past practice of subcontracting that
commenced before its obligation to bargain with the Union arose. I found, as set forth above,
that the past conduct respecting contracting relevant to agency referents doing unit work did not
rise to the level of a past practice justifying an omission, let alone refusal, to notify and bargain

16 As noted, supra, the term “temporary” applies to the agencies and not to the duration of worker’s
employment. The record shows that the Respondent employed directly a very few individuals for limited,
fixed duration or specific task employment. These true temporary employees of the Respondent are not
involved herein. The Respondent has argued the agency referents were temporary employees. Based
on the record herein, I have found, supra, they were not Respondents employees.
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with the Union respecting the Respondent’s decision to subcontract, its actual subcontracting or
the effect of the subcontracting on the bargaining unit.
Based on all the above findings, I further find that the Respondent, by its admitted failure
and refusal to notify the Union before the decision was taken to use agency-referred
independent contractors to do unit work on and after May 2007 into 2009, and its further failure
and refusal to provide an opportunity to the Union to bargain about the subcontracting decision
and its effects during that period, violated Section 8(a)(1) and (5) of the Act. These findings and
conclusions sustain the General Counsel’s complaint allegations as set forth in complaint
paragraphs 10 and the conclusionary paragraphs as noted supra.
6. Was the Respondent’s use of outside Agency employees to do unit work
a violation of Section 8(a)(3) and (1) of the Act?
a. The parties’ positions and the applicable case law
The General Counsel and the Charging Party argue, and the complaint at paragraphs
10, 24, and 25 alleges, that the Respondent undertook the subcontracting discussed above to
discriminate against its unit employees in violation of Section 8(a)(3) and (1) of the Act. The
General Counsel and the Charging Party rely heavily on the timing of the contractor use by the
Respondent to do unit work, and, finally, by the fact that the agency supplied contractors were
used in violation of Section 8(a)(5) of the Act and the Respondent’s delays and refusals to
provide information respecting them were also in violation of Section 8(a)(5) of the Act. The
Respondent argues that use of the agency-supplied contractors at all relevant times was a
business driven continued use which had been a longstanding practice. The Respondent also
argues no violations of Section 8(a)(5) of the Act may be properly found respecting any of its
actions respecting these individuals.
An employer violates Section 8(a)(3) and (1) of the Act if that employer subcontracts
bargaining unit work in response to union activity. San Louis Trucking, Inc., 352 NLRB 211
(2008),Gaetano & Associates Inc., 344 NLRB 537 (2005), enfd. 183 Fed. Appx. 17 (2d Cir.
2006). Subcontracting of bargaining unit work violates Section 8(a)(3) and (1) of the Act when
undertaken for antiunion reasons. Lear Siegler, Inc., 295 NLRB 857, 860 (1989). The question
in most antiunion conduct cases, including the instant alleged subcontracting discrimination
allegation, is the employer’s motivation for taking the actions under challenge. The Board’s
Wright Line analysis is applied in such situations. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Under Wright Line, the General Counsel has the burden of proving, by a preponderance of
the evidence, that antiunion sentiment was a motivating factor in the subtracting decision. If the
General Counsel satisfies his initial burden under Wright Line, the burden then shifts to the
employer, in the nature of an affirmative defense, to demonstrate that the same action would
have taken place even in the absence of the protected conduct. In meeting this burden, the
employer cannot simply state a legitimate reason for the action taken, but rather must persuade
by a preponderance of the evidence that it would have taken the same action in the absence of
the protected activity. T & J Trucking Co., 316 NLRB 771, 771 (1995). The ultimate burden of
proving discrimination always remains with the General Counsel. Wright Line, supra.
Antiunion motivation may be established through direct or circumstantial evidence. An
example of such circumstantial evidence includes the timing of the decision. “It is well settled
that the timing of an employer’s action in relation to known union activity can supply reliable and
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competent evidence of unlawful motivation.” Gaetano & Associates, 344 NLRB 531 (2005),
enfd. 183 Fed. App. 17 (2d Cir. 2006), Davey Roofing, Inc., 341 NLRB 222, 223 (2004). Thus
the Board stated in Allstate Power Vac., Inc., 354 NLRB No. 111, slip op. at 4 fn. 12 (November
30, 2009).
In analyzing these allegations under Wright Line, the judge should, where necessary,
address the General Counsel’s arguments that the Respondent deviated from past
practice in taking the above alleged unlawful actions and/or treated the affected
employees differently than it had treated other similarly situated employees in the past.
b. The timing of events
The timing of events has been discussed extensively above and need be presented here
only in summary form. Prior to any employee union activities, differences of opinion between
elements in the newsroom and management had existed which culminated in July 2006 with the
resignation of the Respondent’s executive editor, its managing editor, its deputy managing
editor, its city editor, its business editor, and its sports editor. Five staff writers, a columnist, and
a copy editor resigned in the days following.
Newsroom employees commenced union activities in July 2006. The relevant facts
concerning the petition and certification are not in dispute. A representation petition, Case 31–
RC–8602, was filed on August 10, 2006. The election was held on September 26, 2006. A
hearing on postelection matters was conducted on January 9 and 10, 2007, before
Administrative Law judge William J. Schmidt. Judge Schmidt issued his Administrative Law
Judge Report and Recommendation to Overrule Employer’s Objections and Certify Petitioner,
JD(SF)-06-07, on March 8, 2007. The report and recommendation was appealed by the
Respondent to the Board who on August 16, 2007, adopted the report and certified the Union as
the representative of the unit employees.
As has been discussed above and will be further discussed below, the Respondent from
early 2002 into May 2007—over 5 years—did not use outside agencies to provide independent
contractors to do unit work. During the period into May 2007, the Respondent’s agents
prepared and obtained approval of personnel requisition forms for some replacements to be
hired for the newsroom employees who left for various reasons. The General Counsel notes,
none of these approved personnel requisitions suggests the replacements would be employed
on a temporary basis or for a specific job or fixed length of time. No outside agency employee
was used to fill these positions.
In late May 2007, for the first time since January 2002, the Respondent utilized outside
agencies to provide contractors to do newsroom work. In July 2007, four contractors were used
in the newsroom. By November 2007, the number of contractors totaled 10. At the time of the
commencement of bargaining in mid-November 2007, the bargaining unit comprised 34
individuals and the contractors remained at 10. By May 2008, 24 individuals worked in the
newsroom: 19 unit employees and 5 contractors. In December 2008, the totals were 16 unit
employees and 8 contractors. The Respondent discontinued use of newsroom outside agency
contractors in February 2009, converting 6 contractors into unit employees.
Yolanda Apodaca testified that she recommended the reinitiation of the use of outside
agencies to provide contractors because of the large number of new hires that were required as
a result of the tumult described and the concomitant employee turnover, coupled by the fact that
the Respondent’s human resources department was of limited size and capacity. It is clear from
the testimony of many individuals who came to be outside agency contractors used by the
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Respondent in the newsroom that these individuals’ interviewing, evaluation of experience, and
general applicant screening and hiring evaluation was undertaken by the Respondent’s staff.
Further it was at least often true that the evaluating agents of the Respondent were unaware
that a job applicant, in the event the supervisor recommended the applicant’s hire, was going to
be hired as an outside agency referral rather than as a Respondent employee. Further, it is
clear that the Respondent in the cases detailed in the record, advertised or otherwise directly
procured job applicants for its positions and, only after an applicant had been vetted and
selected by the Respondent, was that applicant referred to the outside agency. Indeed some
job applicants were notified they were hired by the Respondent directly as the Respondent’s
employees and actually commenced employment only thereafter to be informed they were to be
contractors rather than the Respondent’s employees.
Marci Wormser testified that she sought work in the Respondent’s newsroom by having
a friend deliver her resume to Respondents Assignment Editor Scott Steepleton. Steepleton
interviewed Wormser in early November 2007. She was told by Steepleton later that day that
she was hired, how much she would be paid, and he asked her when she could start. Wormser
was then directed to the Top Echelon Agency which made her its employee and referred her
back to the Respondent as a Top Echelon contractor. In that capacity Wormser started on
November 18, 2008, in the Respondent’s newsroom working as a reporter. After some 10 days,
she was informed by supervision that since management had not yet formally approved her
employment as a Top Echelon employee she would be transmuted to a freelancer selling
articles directly to the Respondent as an independent contractor. She was also told that as a
freelancer she was to discontinue using the Respondents equipment and office space. In late
January 2009, Wormser was converted from freelancer to newsroom unit employee by the
Respondent and remained so at the time of her testimony using once again the Respondent’s
equipment and offices.
c. Findings and conclusions respecting the Respondent’s use of agency employees
as a violation of Section 8(a)(3) and (1) of the Act
I have found that the Respondent’s recommencement of the use of outside agency
contractors to do unit work in the newsroom, in and after May 2007, was a unilateral change
undertaken in violation of Section 8(a)(5) of the Act. My 8(a)(5) analysis set forth supra that
resulted in that conclusion considered but rejected, the Respondent’s argued assertion that the
use of outside agencies in and after May 2007, was simply a benign business-driven
continuation of a longstanding past practice of the Respondent. Rather, I found the reinstitution
of the use of outside agencies to employ contractors doing unit work at the Respondent was a
reinitiation of a practice that had lain fallow for over 5 years and could not be regarded as simply
a continuation of longstanding practice.
The analysis here must consider the further issue of the reason the Respondent
reinitiated the practice. As noted supra, Apodaca, testified that the practice had been
discontinued years before by a high official of the Respondent as simply too expensive. She
testified that she successfully recommended its reintroduction to the Respondent’s Copublishers
von Wiesenberger and McCaw and possibly counsel in the latter half of 2006, as a way of
avoiding having her office overwhelmed by continuing need for the recruitment and hire of
replacement employees given the recurrent vacancies that had occurred. She testified she was
told to “seek assistance if I need it.” She was the only individual to testify regarding this event,
its date or the matters considered.
Earlier I expressed great doubt that such a meeting would have occurred in the latter
half of 2006, only to have the first use of the requested and granted right to use outside
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agencies occur in May 2007, given that many vacancies—the represented basis for the argued
strain on the industrial relations department—had occurred well prior to May 2007. Further
given the hiring of the outside agency staff was initiated by the Respondent through its own
advertisements, and given that the Respondent interviewed, evaluated, and offered initial hire to
the outside agency staff before they were ever referred to such outside agencies, it is difficult to
conclude that outside agencies—especially given their admitted greater cost to the
Respondent—were used as part of a logical and efficacious business-driven technique to add
staff when the human recourses office of the Respondent was overwhelmed. Further, I note the
use of such outside agency-provided staff continued and even increased in later times when the
human resources office was far less overworked. Finally, as will be discussed supra in the
information provision analysis, the suspicious transmutations of employee Wormser from
employee applicant, contractor, and freelancer during the time the Union was inquiring about
outside agency employees suggests the status of those doing unit work was manipulated by the
Respondent for strategic and tactical reasons having no relationship to the business needs of
the Respondent or the workload of the human resources office. I specifically found, supra, that
the decision to use agencies again occurred during the time the Respondent was obligated to
bargain with the Union.
Considering all the arguments of the parties, the testimony of the witnesses and the
record as a whole, using the analytical framework of Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and further guided by the cases
cited above including those dealing with timing as a legitimate part of the General Counsel’s
prima facie case, I find that under Wright Line, the General Counsel has met his burden of
proving by a preponderance of the evidence that the Respondent’s antiunion sentiment was a
motivating factor in the Respondent’s subtracting decision and in the implementation of that
decision on and after May 2007. The timing, context of events, and pattern of illegal conduct, in
light of the record as a whole, filled vacancies and did combine to easily sustain the General
Counsel’s Wright Line burden here.
In this regard it is important to note that the subcontracting of the work involved a
significant proportion of the bargaining unit. By having nonunit individuals instead of unit
employees to do a significant proportion of the Respondent’s unit work, indeed here having
individuals who are not even employees of the Respondent doing a significant portion of unit
work, the Respondent not only reduced the number of its own unit employees, it divided the
interests of those who are doing unit work. This is so because those who are employed by the
outside agencies could gain no benefit from the Respondent’s unit employees union
representation or those unit employees potentially gaining a contract and/or improved wages
and working conditions. And, dividing those who do unit work, as described, weakens the
economic strength of the Respondent’s represented unit employees who no longer represent
the entirety of those who do the work. During any work stoppage, the unit employees
withholding of labor would only be effective in proportion to the amount of unit work withheld.
The contractors would be less likely to withhold their labor or support any economic action
advanced for improve the unit employees circumstances. The more numerous the nonunit
employees doing unit work, the weaker the Union’s economic position.
Since I have found the General Counsel has satisfied his initial burden under Wright
Line, that the Respondent’s antiunion sentiment was a motivating factor in the subtracting
decision and in the implementation of that decision in the use of outside contractors to do unit
work in the noted period from May 2007 into 2009, the burden then shifts to the Respondent, in
the nature of an affirmative defense, to demonstrate that the same use of outside agencies to
provide contractors to do bargaining unit work over the indicated period would have taken place
even in the absence of the protected conduct.
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Considering the Respondent’s arguments on the question de novo here, and also
considering the arguments of the other parties and the record as a whole, I find that the
Respondent has failed by a significant margin to meet its burden of showing it would have taken
the actions it did in the absence of its employees’ protected activities. The Respondent has
argued and submitted some evidence that management granted its human resources director
the right to use outside agencies to supply individuals who would not be part of the bargaining
unit to do bargaining unit work in the middle of an impassioned campaign by both management
and the Union. The deciding agents did not testify on the question of why they did so. There is
no question that the practice had been discontinued years prior due to it high costs. The
Respondent has made clear the fact that more recent times have been ones of significant
economic pressure—and which present the likelihood of continued economic pressure—on the
Paper, i.e., it was a time to conserve not to resume expensive procedures.
There is no evidence that the economics of the process had changed from the time the
earlier use of such agencies was discontinued by the Respondent on cost grounds over 5 years
before. Also, there was no evidence offered by the Respondent to explain why the entire
process of subcontracting was reinitiated, as I have found was required by Section 8(a)(5) of the
Act—without notifying and bargaining with the Union.
In sum and substance, there is simply an insufficiency of motivation evidence offered by
the Respondent beyond the general “hiring workload” testimony discussed, supra, to support
the proposition that the same use of outside agencies to provide contractors to do bargaining
unit work over the indicated period would have taken place even in the absence of the protected
conduct. Accordingly I find the Respondent has not consummated its affirmative defense as
provided in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), that this practice would have been resumed even were the employees not
to have engaged in union activities and selected the Union to represent them. I therefore find
the subcontracting involved herein was undertaken in violation of Section 8(a)(3) and (1). The
complaint in these regards is sustained.
E. Was the Response of the Respondent to the Union’s Information Requests
Concerning the Respondent’s Use of Outside Agencies to Provide Unit
Workers a Violation of Section 8(a)(5) of the Act?
1. Events relevant to the information requests
On October 20, 2007, as part of the prenegotiation exchange of information, the Union
through Caruso sent the Respondent’s chief negotiator, Zinser, a letter seeking a detailed list of
information including, inter alia, the following:
1. A list of current unit employees, including their names, dates of hire, rates of pay, job
classification, last known address, phone number, e-mail address and Social Security
number. We are informed that a number of recent hires performing newsroom work may
have been labeled or notified that they are “temporary”, please identify and provide the
above listed information for all “temporary” nonsupervisory employees who have done
any bargaining Unit work since July 1, 2006.
* * * *
37. A copy of any company policies or procedures with respect to the hiring of
temporary summer help.
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38. A Statement of any company policy or procedure with respect to the hiring of any
summer or temporary help.
Zinser responded to the request by letter dated November 9, 2007 to Caruso. It stated in
relevant part:
I will address the requests as you have numbered them:
1. This is being prepared as we speak.
* * * *
37. No documents exist.
38. No documents exist.
The parties conducted their initial bargaining sessions on November 13 and 14, 2007.
Discussions included the Respondent describing the use of agency-provided employees to do
unit work. The Union sought details regarding the relationship of the agencies to the
Respondent and the process generally. The dialogue continued on November 14, with the
Union expressing concern respecting the details and even the legality of the process and Zinser
indicating he was not fully informed of the details involved. The session concluded with the
expectation the Union would submit a written information request on the matter.
By letter dated November 16, 2007, Union counsel Ira Gottlieb, by facsimile, e-mail, and
U.S. Mail, sent Zinser a letter with the captioned regards: “Unlawful hiring of ‘temporary’
employees to perform bargaining unit work.” The letter stated in part:
Following up on our discussion of November 14, 2007, at the negotiating table, this is to
request the Employer’s full and complete rationale(s) explaining why the nine”
temporary” employees allegedly hired by either Top Echelon and/or Office Team
Employees and working as reporters for the Santa Barbara News-Press, are, in
Ampersand’s view, not part of the bargaining Unit consistent with the NLRB’s
certification and the requirements of the NLRA.
* * * *
As the Union has advised you, since these employees are clearly (and undisputedly)
performing bargaining Unit work, and all began work on and after July 2007, they must
be included within the Unit represented by the Union. As you are aware, the number of
eligible employees at the time of the election in September 2006 was 42; the list of unit
employees you provided in the course of bargaining numbers 23, including a “gossip
columnist” who was not in the Unit at the time of the election. The Union has demanded
that the nine “temporary” employees (and any others doing unit work) be included and
that failure to include them and failure to notify the Union of their hire, are violations of
Section 8(a)(5) of the National Labor Relations Act. You requested the opportunity to
explain in writing, as opposed to orally across the table, why they need not be part of the
bargaining unit. Please provide that rationale, and the following information, no later
than November 26, 2007.
For each of the “temporary” employees, state:
1. How each of the employees made contact with the SBNP, if at all, during
the hiring process;
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2. Whether the employee responded to an ad placed by the SBNP;
3. Whether the employee responded to any communication from the SBNP
to begin or continue the hiring process;
4. Whether the employee responded to any communication from Top
Echelon or Office Team (with respect to Mr. Melendez) to begin or
continue the hiring process;
5. The names of all people with whom the employees spoke and/or were
interviewed in connection with the hiring process;
6. The names of all people who participated in the decision to hire the
employee to perform work in the service of SBNP; and
7. Identify all people who supervise the employee, including having the
responsibility to discipline, discharge (or remove from working in the
service of the SBNP), effectively recommend discipline or discharge,
and/or provide the employee with assignments and/or instruction
(including editing) for workplace performance.
* * * *
. . . Please respond by November 26. If you wish to discuss this matter, please feel free
to call me.
On November 27, 2007, the Union filed the initial charge involved in this consolidated
proceeding, Case 31–CA–28589, the “basis of the charge” portion of which reads:
Within the last six months, the employer has failed and refused to bargain in good faith,
by subcontracting and/or using employees it labels “temporary” employees to perform
bargaining unit work purportedly hiring them through an employment agency, contrary to
the certification issued by the NLRB in August 2007 and without prior notice to the Union
and an opportunity to bargain. The employer has further violated the Act by failing and
refusing to provide requested information relevant to its violation of the Act in utilizing
alleged “temporary” employees to perform bargaining unit work.
On November 20, 2007, the Respondent counsel Zinser sent to Union counsel Gottlieb a
letter in answer to Gottlieb’s letter quoted in part above. Zinser’s letter states in part:
Let us put this in context. Information requested regarding the temporary employees
was part of a very large, 59-point information request made by Mr. Caruso. Santa
Barbara News-Press has, in large measure, responded to that information request. On
November 14, 2007, we provided some specific information on the temporary employees
which you acknowledge in your letter.
Having some other questions about the temporaries, you began to ask them.
I then asked that you also reduce those additional questions to writing so that there
would not be any misunderstanding about just what was being requested, and you
agreed to do so. You did not, at that time, ask that we provide you with any “rationale.”
You do ask that in your November 16, 2007 letter.
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Your information request arrived on November 16, 2007. I was out of town on business
matters from November 12 through November 16. The following week was the week of
Thanksgiving. I was out of town (Cincinnati, where my parents and sisters live) for the
Thanksgiving holiday, November 21 to November 25. This week we have been quite
busy completing the post-hearing brief to Judge Kocol in the unfair labor practice
matters.
Thus, under the circumstances, your filing unfair labor practice charges is
premature. First of all, you do not get to unilaterally establish time frames. Any
Employer has a reasonable amount of time within which to respond to information
request. Your supplemental information request of November 16, 2007 is being
reviewed and we will respond within a reasonable period of time.
On January 23, 2008, the Respondent through counsel Zinser provided to counsel
Gottlieb for the Union a 2-page letter captioned “Supplemental Information Concerning
Temporary Employees.” The letter stated (bolding in original):
After conferring with Scott Steepleton and Yolanda Apodaca, on behalf of Santa Barbara
News-Press, I will supplement information we had previously given you concerning the
temporary employees.
1. How each of the employees made contact with the SBNP, if at all, during the
hiring process?; (Bolding in original.)
Santa Barbara News-Press did place ads seeking employees for the vacancies. In
some instances the individual contacted Santa Barbara New-Press as the result of
seeing the ad. In other instances the individual was referred to Santa Barbara News-
Press by Top Echelon or Office Team.
2. Whether the employee responded to an ad placed by the SBNP?;
As indicated in the answer to question 1, in some cases yes.
3. Whether the employee responded to any communication from the SBNP to
begin or continue the hiring process?;
Whether responding to an ad or whether referred by one of the two agencies, the
individual would be interviewed by Scott Steepleton or another newsroom supervisor.
This interview may have been only telephonic. In the instance of someone from the
local Santa Barbara area, there could have been an in-person interview. Once it was
determined by Management that the individual was a possibility, they were then
referred to Top Echelon or Office Team. Top Echelon or Office Team would refer the
individuals to the Santa Barbara News-Press for work. A more thorough interview
process was not involved because the individual was going to be a referral from a
temporary agency. If the individual did not work out, they would be sent back to the
agency. The individual is hired by the agency; the individual is paid by the agency; to
the extent the individual has any kind of benefits, they were provided by the agency.
In some cases the individual working at the Santa Barbara News-Press was referred
to the Company by the agency without an interview.
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4. Whether the employee responded to any communication from Top Echelon
or Office Team (with respect to Mr. Melendez) to begin or continue the hiring
process?;
Yes to both.
5. The names of all people with whom the employees spoke and/or were
interviewed in connection with the hiring process?;
Scott Steepleton, Dale Rim, Barry Punzal and/or Yolanda Apodaca, Top Echelon and
Office Team.
6. The names of all people who participated in the decision to hire the
employee to perform work in the service of SBNP?; and
See answer to question 5.
7. Identify all people who supervise the employee, including having the
responsibility to discipline, discharge (or remove from working in the service of
the SBNP), effectively recommend discipline or discharge, and/or provide the
employee with assignments and/or instruction (including editing) for workplace
performance?
Scott Steepleton and/or Dale Rim and/or Barry Punzal supervise the individuals with
respect to their assignments for writing for Santa Barbara News-Press. If there is a
disciplinary and/or performance problem, the individual is referred back to the
agency.
On December 3, 2007, the Union through counsel Gottlieb sent a letter to counsel Zinser
by facsimile, email, and US mail with the caption: Re: Unlawful hiring of “temporary”
employees to perform bargaining unit work.” The letter states in part:
In addition to the requests for information that are now outstanding on this issue, please
provide the following, all no later than December 21, 2007:
3. Has [the Respondent] ever used employees it labeled “temporary” employees—
either direct hires or through an agency—to perform work that is now included in the
certified bargaining unit?
4. If so, state the following for each instance of such use of temporary work:
f. The date(s) on which the “temporary” employee performed bargaining Unit
work;
g. The name(s) of all such temporary employees;
h. The name(s) of any temporary agency which you claim employed the
temporary employees;
i. The specific project or task(s) performed by the temporary employee(s);
j. The pay rates for the temporary employee(s).
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The enumerated information requested in this letter is alleged in complaint subparagraph 7(b).
By letter dated January 30, 2008, sent by facsimile transmission and commercial carrier,
counsel Zinser wrote counsel Gottlieb. The letter stated in part:
In regard to your additional information requests contained in your December 3, 2007
letter that are the subject of Charge No. 31–CA–28589, please note that I provided that
information to you at our November 14, 2007 bargaining session. If you remember, at
that bargaining session I handed you and Nicholas Caruso a list of temporary employees
performing work in the newsroom, which included their name, agency, job title, dates
performing Unit work and pay rates.
I have enclosed that list for your convenience, I have also enclosed updated information
to reflect the present list of temporary employees in the newsroom. I hope this resolves
the matter and I look forward to continued bargaining.
The letter included two attached lists. The first is the list identified in the letter as that provided
by the Respondent to the Union along with other materials at the bargaining session of
November 14, 2007. That list contains the names of eight Top Echelon employees working in
the newsroom with their starting dates, the earliest of which is July 9, 2007, and one Office
Team employee working in the newsroom, again with a July 2007 starting date. The second or
revised list addresses the subsequent changes in the status of these newsroom employees: the
list deletes two of the earlier-listed Top Echelon employees who departed and adds four
additional “temps” who started variously in the period October 2007 through January 2008.
2. The complaint allegations regarding the temporary agency employee
information requests
As discussed supra, the complaint alleges in paragraph 7(a) that on November 16, 2007,
the Union sought the noted information and, as alleged in complaint subparagraph 7(g), the
Respondent did not provide it until about January 23, 2008. Subparagraph 7(f) alleges the
information was relevant and necessary to the Union’s performance of its duties as the
employees’ representative. Similarly, the complaint alleges in paragraph 7(b) that on December
3, 2007, the Union, sought the noted information and, as alleged in complaint subparagraph
7(h) did not provide it until about January 30, 2008.17
The complaint at subparagraph 7(l) alleges the delay in the Respondent’s furnishing the
Union’s requested information in both of these instances was unreasonable and complaint
paragraph 25 alleges the unreasonable delays violated Section 8(a)(5) and (1) of the Act. The
heart of the parties dispute in these regards is whether or not the Respondent was reasonable
to take from November 16, 2007 to January 23, 2008, a period of 69 days, in providing the
requested information in the first instance and from December 3, 2007 to January 30, 2008, a
period of 59 days, to provide the requested information in the second instance.

17 The General Counsel’s trial motion to change this date to May 26, 2009, was denied. See
fn. 13 at p. 34, supra.
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3. Analysis and conclusions regarding delay
a. The preliminary matters
Several aspects of these events are not relevant to resolving the noted complaint issues.
First, the fact that a charge was filed concerning these employees neither enhanced the Union’s
right to the information requested nor in some way obligated the Respondent to speedier
production of the information. Similarly, the charge neither enhanced nor diminished the
Respondent’s obligations under the Act to provide the information timely to the Union. The
charge and the parties’ responses to the Board and to one another regarding it are independent
of their rights and obligations respecting information requests in the bargaining process.
There is one collateral matter that was not focused on by the parties but merits mention
herein: Whether or not the Respondent was obligated to provide information at all concerning
employees not in the unit and who are not the Respondent’s employees?
Information requested by a labor organization representing a unit of an employer’s
employees enjoys a presumption that information concerning those employees is relevant and
should be provided. Chrysler, LLC., 354 NLRB No. 128 (January 6, 2010). There is no such
presumption concerning information concerning nonunit employees or the employees of other
employers. Disneyland Park, 350 NLRB 1256 (2007), As to such information, the labor
organization bears the burden of establishing the relevance of the information sought to the
bargaining. The General Counsel can establish relevance by presenting evidence that either (1)
the union demonstrated the relevance of the information, or (2) the relevance of the information
should have been apparent to the employer under the circumstances. Ibid. The Board notes
this burden is “not exceptionally heavy” and is met by “some initial but not overwhelming
demonstration.” St. George Warehouse, Inc., 341 NLRB 904, 925 (2004). The Board has
commented further that the burden is not “an exceptionally heavy one, requiring only a showing
be made of a ‘probability that the requested information is relevant, and that it would be of use
to the union in carrying out its statutory duties and responsibilities.’” Public Service Electric &
Gas Co., 323 NLRB 1182, 1186 (1997), enfd. 157 F.3d 222 (3d Cir. 1998), quoting Acme
Industrial Co., 385 U.S. 432, 437 (1967).
In the instant case, the parties did not argue either at the time of the Union’s request nor
in the instant proceeding concerning whether the Union was entitled to the information under
challenge in the information request portions of the complaint. In fact the information has been
supplied to the Union only the timing of the provision is in issue. Presumably, the relevance of
the information sought was “apparent to the employer under the circumstances.” I explicitly find,
however, respecting these elements of the complaint that the Union met its burden of showing
relevance for the requested information through its demonstration that it had legitimate
questions concerning whether the individuals inquired about were or were not unit employees.
And, further, given the unit work that was admittedly done by the individuals under inquiry, the
Union had a legitimate basis to inquire concerning the timing of the Respondent’s decision to
utilize such individuals to do unit work and the implications of that decision.
This is so, not simply because of the work of these individuals having a potential impact
on bargaining unit employees’ terms and conditions of employment,18 but also because the

18 See Disneyland Park, 350 NLRB 1256 (2007); Richmond Health Care, 332 NLRB 1304,
1307 fn. 1 (2000); Associated Ready Mixed Concrete, Inc., 318 NLRB 318 (1995), enfd. 108
F.3d 1182 (9th Cir. 1997); Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381
Continued
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information was pertinent to the Union’s decision to file or process grievances. Beth Abraham
Health Services, 332 NLRB 1234 (2000); Bell Telephone Laboratories, 317 NLRB 802, 803
(1995), enfd. mem. 107 F.3d 862 (3d Cir. 1997). Based on all the above, I find the information
sought was relevant to the Union’s role as representative of unit employees and the
Respondent was obligated under the Act to provide the information sought by the Union.
There was no dispute the information was requested by the Union as alleged. I have
found the Respondent was obligated to provide the information sought. The complaint
concedes the information was provided. The final element of the complaint allegations
concerning these information requests is whether or not the response to each of the two
requests was sufficiently timely. That is the heart of the matter and will be addressed
immediately below.
b. The issue of delay
If the Act requires employer disclosure to a union of requested information relevant to
bargaining, it should be compiled in a reasonable period and disclosed in a reasonable time.
The Board has long held that unreasonable delay in providing such information is a violation of
the Act as much as not providing the information at all. Valley Central Emergency Hospital, 349
NLRB 1126 (2007). The employer must act in good faith to provide the information as promptly
as circumstances allow. Postal Service (Bobby Cline), 352 NLRB 923 (2008). The test of the
reasonableness of any particular delay is based on the totality of the circumstances rather than
the simple passage of any specific amount of time. Those circumstances include the larger
pattern of conduct regarding the relations of the parties. Albertson’s, Inc., 351 NLRB 254
(2007). In Cresfield Convalescent Center, 287 NLRB 328 (1987), the Board adopted a judge’s
analysis that a temporary misjudgment causing a brief and noninjurious nondisclosure in the
midst of complying with other requests did not warrant a finding of unlawful conduct. The time
required to acquire the information requested is yet another factor in evaluating the
reasonableness of the period of nondisclosure. E. I. Du Pont de Nemours & Co., 346 NLRB
553, 581 (2006).
The context of the information requests at issue here has been set forth and discussed
in some detail supra. Counsel for the Respondent notes on brief at 18–19 that the information
requests occurred immediately after the parties’ initial bargaining session at which time the
Respondent had provided very substantial amounts of earlier union requested information.
Further the Respondent argues that the period after the request involved both the general
seasonal press of business and the industry specific rush of the Thanksgiving–New Years Day
holiday period in the newspaper industry as well as the unusual circumstance that the very
substantial posthearing brief was in preparation in the earlier unfair labor practice hearing before
Judge Kocol. And, the Respondent argues, the primary, indeed essentially single, gatherer of
the requested information at the Respondent’s facilities was the head of the small human
resources department, Apodaca, who was further burdened with a multitude of tasks during this
busy end of year period.
The General Counsel argues that the delays of the Respondent in providing information
in response to the two information requests: 69 days–approximately 10 weeks in the initial case,
and 59 days–approximately 9 weeks in the second case, constitute periods of information
provision delay frequently found by the Board to be unreasonable and a violation of Section
_________________________
(6th Cir. 1976).
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8(a)(5) and (1) of the Act citing multiple cases.19 And the General Counsel argues that beyond
the season involved, the testimony regarding the business and good intentions of Apodaca, and
the briefing burdens of the four counsel of record from the two firms litigating the Respondent’s
side in the Kocol case, there was no evidence offered by the Respondent regarding any special
unavailability of the information requested or its volume or complexity. Thus, the General
Counsel argues there is simply no reason to grant the Respondent additional time beyond
simple test of reason in complying with these two requests.
The Charging Party, and the General Counsel, also argue that the evaluation of the
information elements of the complaint must take place in what they characterize as the pattern
of unfair labor practices of the Respondent. And in that larger context, there is the finer point
that the information requests deal with the use of outside agencies which use by the
Respondent constitutes violations of Section 8(a)(5) and (1) of the Act and, further, violations of
Section 8(a)(3) and (1) of the Act. Thus, they argue, there is no innocent context as to these
information requests.
I have carefully considered the arguments of the parties, the record as a whole and the
entire context of events and circumstances respecting the relationship between the parties. The
General Counsel and the Charging Party are correct that the bare number of days taken by the
Respondent to provide the requested information devoid of context is regularly found to be
unreasonably long and in violation of the Act. But all delays have a context, a setting and
circumstances that allow the test of reasonableness to be applied to the particular situation.
The cases cited above and numerous others command attention to and evaluation of such
context in reaching any conclusion as to the reasonableness of the delay.
The circumstances respecting the November 16, 2007 request cut both ways. The
importance of the information, the fact that it had been earlier discussed in negotiations and the
fact that the request for the information was delayed in that the Respondent asked for the
request to be put in writing – all these factors - support a finding that it was necessary to provide
the information forthwith. The season and press of business justify some delay in provision of
the information, but not a delay extending to the 23rd of January 2008. I do not find that the
information requested was so burdensome to gather, compile, and report, that the time taken to
provide it was necessary or reasonable. I also find of significance the fact that the information
at issue concerned the temporary agency contractors, the Respondent’s use of whom has been
found supra to violate Section 8(a)(1), (3), and (5) of the Act. All of the above, in the context of
the record as a whole, convince me that the Respondent’s delay in providing the November 16,
2007 requested information until January 23, 2008, was unreasonable and violated Section
8(a)(1) and (5) of the Act. This allegation of the complaint is sustained.
Turning to the information request of December 3, 2007, respecting which the
Respondent provided the requested information on January 30, 2008, my analysis and findings
and conclusions are the same. The factors involved are factually equivalent. The context,
subject matter, press of business arguments, etc., are equivalent. The distinctions are without
legal difference. All of the above, in the context of the record as a whole, convince me that the
Respondent’s delay in providing the December 3, 2007 information until January 30, 2008, was
unreasonable and violated Section 8(a)(1) and (5) of the Act. This allegation of the complaint is
sustained.

19 Postal Service, 354 NLRB No. 58 (2009); Woodland Clinic, 331 NLRB 735 (2000); Capitol
Steel & Iron Co., 317 NLRB 809 (1995), and many others in the General Counsel’s brief at 22.
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F. Allegations respecting employee Richard Mineards
1. Complaint allegations respecting Mineards
Complaint paragraph 14(b) alleges the Respondent laid off its employee Richard
Mineards. Complaint paragraph 18 alleges that the Respondent undertook the layoff without
prior notice to nor affording the Union an opportunity to bargain with the Respondent with
respect to the decision to lay off Mineards or to bargain respecting the effects of the layoff.
Complaint paragraph 19 alleges that the Respondent through its agent, Don Katich, bypassed
the Union and dealt directly with its employees in the unit by offering an employee nonunit terms
and condition of employment. The complaint further alleges at paragraph 23 that the layoff was
undertaken by the Respondent because the employees formed, joined, or assisted the Union
and engaged in protected concerted activities and in order to discourage the employees from
engaging in these activities. Paragraph 24 of the complaint alleges this conduct violates
Section 8(a)(1) and (3) of the Act. Paragraph 25 of the complaint alleges this conduct violates
Section 8(a)(1) and (5) of the Act.
The complaint further alleges in subparagraph 7(e) that on or about January 14 and
15, 2009, orally, and January 26, 2009, in writing, the Union requested the Respondent furnish it
with information related to the employment status of employee Mineards and, in paragraph 7(f)
that the information requested was relevant to the Union’s performance of its duties as
representative of employees in the bargaining unit. The complaint subparagraph 7(k) alleges
that the Respondent failed and refused to provide the Union with the requested information until
about February 9, 2009, and in subparagraph 7(l) alleges this delay as unreasonable.
Paragraph 25 of the complaint alleges this conduct violates Section 8(a)(1) and (5) of the Act.
2. Facts respecting Mineards
Richard Mineards began working for the Respondent as a columnist and radio
broadcaster in April 2007, and worked through 2008, for the Respondent in the bargaining unit20
as a salaried employee. On or about the morning of January 7, 2009, the Respondent’s director
of news operations, Don Katich, met with Mineards in Mineards office and, in Mineards credible
and unchallenged testimony, told him: “we are eliminating your column forthwith because of cost
cutting.” Mineards testified:
[Katich] basically said it was because of cost cutting and then went on to explain that it
was in general but obviously the economy had impacted enormously with newspapers
and magazines across the country, and that it was nothing to do with the column but
merely a cost-cutting measure. . . .
Arrangements were made for final payments and vacation of the premises and the conversation
ended amicably. After perhaps a week, Katich was in contact with Mineards proposing he
resume his column for the Respondent on a freelance basis. The two met over lunch on
January 15, 2009, to discuss the matter and reached a tentative agreement on a weekly
payment for the column which Katich agreed to present to higher management. Management’s
responding offer accepted the freelance payment amount but sought considerable additional

20 While not employed at the time of the election, there was no dispute that as a columnist
Mineards was in the bargaining unit, i.e., he was within the unit inclusion language quoted supra
which includes the list of included categories: “writers, reporters, copy editors, photographers,
and graphic artists.”
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writing of “personality profiles” each week which Mineards indicated involved an unsatisfactory
amount of time and effort for the money involved. The parties shared views for a time, but no
agreement was reached and within a few days Mineards accepted other employment.
The Respondent did not notify the Union nor offer to bargain with it respecting these
Mineards events. Caruso who testified he had learned of Mineards layoff from a blog, asked
Zinser about Mineards status the morning of the January 14, 2009 bargaining session. Zinser
responded he did not know of the individual, took his name down and indicated he would look
into it. During that day’s negotiations and the following day’s negotiations Caruso asked again
regarding the matter with Zinser responding he would have to get back to Caruso. Travis
Armstrong, the Respondent’s editorial page editor, who was present in bargaining, did not
confirm Mineards layoff. Caruso followed up on the request for information with a letter to Zinser
dated January 26, 2009. The letter demanded an immediate explanation of the circumstances
of Mineards layoff and an explanation of why the Respondent had failed to bargain over the
Mineards matter. The letter asserted the Union would take legal action should the Respondent
not respond to the request by close of business on January 27, 2009. In late January, the
Union did in fact file a charge.
The Union received its first response to the information request in the form of a
February 9, 2009 letter from counsel Zinser to Caruso. The letter informed the Union that the
Respondent had made a business decision to lay off Mineards effective January 7, 2009. The
letter recited his salary, workload at the time of his layoff and added the Respondent felt the
combination “to be an inefficient use of resources, especially in these turbulent economic times.”
The letter indicated the Respondent was available to meet and discuss the issue should the
Union so desire. Zinser protested that Caruso was repeatedly setting deadlines for the
production of requested information but that the requirement was only that the employer
respond in a reasonable period of time. The letter stated: “Less than three weeks have passed
since you made your written inquiry regarding Mineards; I believe this response constitutes an
answer within a reasonable amount of time.” On that same day the Union in a letter to the
Respondent indicated it wished to bargain over the decision to lay off Mineards and the effects
of that decision.
On February 26, 2009, Caruso and former employee Melinda Burns met with Zinser and
Armstrong to discuss the Mineards layoff. The Union proposed Mineards be recalled at a 20
percent reduction-in-pay. The Union solicited the Respondent’s agreement to its proposal, a
counter proposal or discussions respecting severance. The Respondent took the position that
the proposed salary was not satisfactory because Mineards was not willing to undertake
substantial additional work beyond his column for that salary. The Respondent also took the
request for severance negotiations “under advisement” noting that in the past the Respondent
had not paid severance in layoff situations.
3. Analysis and conclusions respecting the Mineards’ allegations
a. Did the Respondent’s alleged failure to timely notify and offer to bargain with the
Union regarding the Mineards’ layoff and/or its direct dealing with Mineards violate
Section 8(a)(5) and (1) of the Act?
The facts as set forth supra and briefly recited here concerning Mineards are not in
essential dispute. Thus, there is no doubt that at relevant times Mineards was in the bargaining
unit and that the Union represented the unit. The Respondent does not contend that it notified
the Union regarding the Mineards’ layoff before the Union discovered the layoff had occurred on
it own on or about January 14, 2009, and the Respondent concedes it did not provide the Union
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any of the details concerning the layoff requested by the Union until its letter to the Union of
February 9, 2009. Further the Respondent does not deny that its agent Katich directly dealt
with Mineards during the period before it notified the Union of its actions proposing he become a
freelancer, i.e., a nonunit worker, continuing to write his column and undertaking additional
assignments for a substantial reduction in compensation.
The black letter law in this area is longstanding and recent consistent Board holdings are
cited by the General Counsel on brief at 97. The Board in Eugene Iovine, Inc. 353 NLRB No. 36
(2008), enfd. ___ F.3d ___, No. 09-0217ag, (2d Cir. March 30, 2010), adopted the analysis of
Administrative Law Judge David I. Goldman who wrote at 353 NLRB No. 36, slip op. at 5:
The decision to lay off employees for economic reasons is a mandatory subject of
bargaining, and therefore subject to the requirement of timely advance notice required
by the Act for good-faith bargaining to impasse. McClain E-Z Pack, Inc., 342 NLRB 337
(2004) (“Decisions to conduct economically motivated layoffs are mandatory subjects of
bargaining”); Toma Metals, Inc., [342 NLRB 787, 787 fn. 1 (2004)]; Tri-Tech Services,
340 NLRB 894, 895 (2003) (“It is well established that the layoff of unit employees is a
change in terms and conditions of employment over which an employer must bargain”);
Ebenezer Rail Car Services, 333 NLRB 167 (2001).
Judge Goldman again at Iovine, Inc., id., addressed the question of when such notification and
offer to bargain must take place.
Even when negotiations for a new collective-bargaining agreement are not in progress,
an employer must give a union notice of an intended change sufficiently in advance to
permit an opportunity to bargain meaningfully about the change. Bottom Line
Enterprises, supra; Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013, 1017 (1982)
(“To be timely, the notice must be given sufficiently in advance of the actual
implementation of the change to allow a reasonable opportunity to bargain. However, if
the notice is too short a time before implementation or because the employer has no
intention of changing its mind, then the notice is nothing more than a fait accompli”),
enfd. 722 F.2d 1120 (3d Cir. 1983). In sum, “an employer must at least inform the union
of its proposed actions under circumstances which afford a reasonable opportunity for
counterarguments or proposals.” Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023
(2001), quoting NLRB v. Citizens Hotel Co., 326 F.2d 501, 505 (5th Cir. 1964). Toma
Metals, Inc., 342 NLRB 787, 787 fn. 1 (2004) (announcement of layoffs on day they
occurred does not satisfy duty to provide notice and opportunity to bargain).
See also First National Maintenance Corp. v. NLRB, 452 U.S. 666, 681–682, (1981), where the
Court held that bargaining over the effects of a decision must be conducted in a meaningful
manner and at a meaningful time.
The General Counsel also argues, citing cases such as SPE Utility Contractors, LLC,
352 NLRB 787, 791 (2008), that an employers direct negotiation with unit employees
concerning their terms and conditions of employment bypassing the union representative
inevitably erodes the labor organization’s exclusive representative status. More specifically the
government argues that laying off a unit employee without giving that employee’s representative
an opportunity to bargain and then approaching the employee directly and offering to employ
the individual to do the same work outside the unit violates Section 8(a)(1) and (5) of the Act
citing Modern Merchandising, 284 NLRB 1377 (1987).
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The Respondent makes several arguments seeking to avoid the conclusion under the
cases cited that its actions violated Section 8(a)(1) and (5) of the Act. Initially it argues on brief
at 220:
As for the allegation that the News-Press dealt with Mr. Mineards, the News-Press does
not deny that Mr. Katich contacted Mr. Mineards about becoming a freelancer. The
evidence indicated, however, that Mr. Katich was a new supervisor that was unfamiliar
with his obligations with respect to represented employees. The contact with Mr.
Mineards was limited and unsuccessful. To the extent that the New-Press violated the
Act, the violation was de minimus.
Second, the Respondent argues that it was not required to bargain over its decision to
lay off Mineards because its decision was in fact an entrepreneurial decision involving a change
in the scope and direction of the enterprise and therefore outside the ambit of mandatory
subjects of bargaining. Tel Plus Long Island, 313 NLRB No. 47, slip op. at 9 (1993) (not
reported in Board volumes), citing First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981).
Further, the Respondent emphasizes that it did in fact negotiate with the Union over
Mineards’ layoff, considering the Union’s proposals and offering its own. Thus the Respondent
argues on brief at 223: “No accord was reached, but the parties engaged in bargaining
[bolding in original].” And thus the allegation should be dismissed.
I have considered the record as a whole including the briefs of the parties and the
testimony of the witnesses on the questions posed and arguments presented. I find and
conclude as follows.
First, I reject the argument of the Respondent that the layoff of Mineards was not a
decision subject to bargaining or that the effect of that decision was outside the Respondent’s
bargaining obligation. I do so based on the record which clearly supports a factual finding,
which I explicitly make, that the underlying issue respecting Mineards layoff was economic and
not any type of First National Maintenance Corp. decision concerning the scope and direction of
the enterprise. The record is sufficiently clear that it is unnecessary to belabor the point. As
noted supra, the negotiations between the Respondent and the Union and between the
Respondent and Mineards were pure and simply economic. The Respondent was prepared to
continue Mineards’ column duties at a reduced compensation and with additional duties added
on. As Zinser stated in his February 9, 2009 letter to the Union, the Respondent was concerned
with avoiding the inefficient use of resources. The cases cited supra make it crystal clear such
a layoff is not sheltered from traditional notification and bargaining obligations.
Second, I reject the argument of the Respondent that since bargaining finally did occur,
nothing else is required and the matter should be dismissed. The cases cited supra make it
plain that disclosure and bargaining must occur sufficiently in advance of the proposed action to
allow a reasonable opportunity to bargain. If the notice is too short, the decision at issue is
simply a fait accompli and no sufficient bargaining can take place. Similarly bargaining over the
effects of a decision must be conducted in a meaningful manner and at a meaningful time.
Neither occurred here.
This being so, I find and conclude that the Respondent in failing to timely notify the
Union of the layoff of Mineards and to provide sufficient time to allow bargaining over both the
decision and its effects, violated Section 8(a)(1) and(5) of the Act.
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Regarding the Respondent’s argument that the direct dealing by its agent Katich as
described supra was an innocent, isolated de minimus act of a new supervisor ignorant of the
complications of dealing with union-represented employees, I reject the argument. This action
was not isolated in any fashion. The Respondent has been found herein to have improperly
attempted to have unit work done by nonunit or former unit employees. Actions were taken by
the Respondent that violated both Section 8(a)(3) and (5) of the Act in these circumstances.
The Respondent’s responses to the Union’s related information requests were also
unreasonably delayed in violation of the Act. There was simply no isolation or de minimus
aspect to the conduct at issue. I further find then, consistent with the cases cited above, that
the direct dealing involved herein between Katich and Mineards violated Section 8(a)(1) and (5)
of the Act.
b. Did the Respondent’s layoff of Mineards violate Section 8(a)(1) and (3) of the Act?
Why was Mineards laid off? The government complaint alleges he was laid off because
the employees engaged in union activities. The Respondent’s communications at the time of
his layoff and in negotiations with the Union subsequently suggest the cause of the initial layoff
and the decision not to rehire him was economic. The General Counsel’s theory of an antiunion
layoff of Mineards in violation of Section 8(a)(3) is not based on a theory of Respondent’s
hostility to Mineards as an individual. Nor would such an argument withstand the fact that
Mineards seemingly was on excellent terms with higher management or the paucity of evidence
that the Respondent’s agents believed Mineards was sympathetic to or supportive of the Union.
Rather, the General Counsel argues that the Respondent, in seeking to convert Mineards from
a unit employee doing unit work to a freelancer doing unit work, was continuing an illegal pattern
and practice of seeking to undermine the Union generally by reducing the size of the bargaining
unit and establishing a significant nonunit member population of individuals who were doing unit
work.
In addition to the argument that the Respondent was implementing an illegal and
overarching plan and practice of the transfer of unit work to or the transmutation of unit
members doing unit work to nonunit members, the government argues that Mineards’ layoff
was also in violation of the Act as involving direct dealing and a failure to notify and bargain with
the Union. Further, the General Counsel argues that the Respondent’s response to the Union’s
information request regarding Mineards was itself unreasonably delayed and in violation of
Section 8(a)(1) and (5) of the Act. Considering the number, frequency and type of unfair labor
practices committed by the Respondent in the instant case, the General Counsel seems to be
arguing, antiunion animus must adhere to the Mineards layoff as a man must get wet when
standing in a heavy rain.
It is appropriate to repeat here the Board’s analytical framework for resolving this type of
issue. The analysis was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
Again as set forth supra in considering an earlier Section 8(a)(3) of the Act allegation,
under Wright Line, the General Counsel has the burden of proving by a preponderance of the
evidence that antiunion sentiment was a motivating factor in the subtracting decision. If the
General Counsel satisfies his initial burden under Wright Line, the burden then shifts to the
employer, in the nature of an affirmative defense, to demonstrate that the same action would
have taken place even in the absence of the protected conduct. In meeting this burden, the
employer cannot simply state a legitimate reason for the action taken, but rather must persuade
by a preponderance of the evidence that it would have taken the same action in the absence of
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the protected activity. T & J Trucking Co., 316 NLRB 771, 771 (1995). The ultimate burden of
proving discrimination always remains with the General Counsel. Wright Line, supra.
Assuming, without deciding, that the General Counsel has met his burden as to this
allegation, I turn to the Respondent’s defense in the Wright Line posture. Has the Respondent
met its burden of demonstrating that it would have laid off Mineards, even in the absence of the
employees’ union and or other protected activities—here the employee selection of union
representation? I find that the Respondent has. I reach this conclusion because the
Respondent, both in its direct dealings with Mineards before the Union was involved and in the
subsequent negotiations with the Union, ultimately decided not to reemploy Mineards and its’
decision in the event turned on economics rather than Mineards’ status as a unit employee or
nonunit freelancer.
In its direct dealings with Mineards, the Respondent received an employment counteroffer
from Mineards the substance of which restored Mineards to writing his column, but as a
freelancer. Under the General Counsel’s theory, this was the antiunion desire of the
Respondent, to pull unit work out of the unit by recasting unit employees as nonunit workers.
Yet, in the event, the Respondent did not accept the offer but rather counter offered and, when
no agreement was reached, simply let the layoff stand rather than bring Mineards back on the
terms he had offered. These actions by the Respondent convince me and I find, that the
Responded would have laid off Mineards when it did for economic reasons even if the
employees had not engaged in protected activities and selected a labor organization to
represent them.
Based upon all of the above, I find the General Counsel, under the Wright Line analysis of
this 8(a)(3) allegation, has not met its ultimate burden of proving discrimination in the layoff of
Mineards as alleged in the complaint. Therefore I shall dismiss this aspect of the complaint.
c. Was the delay in the response of the Respondent to the Union’s information
request concerning Mineards a violation of Section 8(a)(5) of the Act?
Again the facts concerning this allegation are essentially undisputed and have been set
forth in brief fashion above. The Respondent laid off Mineards on January 7, 2009, and
negotiations between the Respondent and Mineards—without the Unions awareness of the
layoff or subsequent dealing—continued through a lunch on January 14, 2009, and additional
communications in the following few days. The Union learned Mineards had been laid off from
an outside source and Caruso asked Zinser about Mineards status on the morning of January
14, 2009 during bargaining. Zinser indicated ignorance concerning Mineards and his status.
No other agent of the Respondent at the bargaining spoke up. Caruso renewed his inquiry the
following day at bargaining and Zinser simply indicated he would have to get back to Caruso.
Caruso, having not received a response to the Mineards’ information requests, wrote
Zinser on January 26, 2009, demanding an immediate explanation of the circumstances of
Mineards’ layoff and an explanation of why the Respondent had failed to bargain over the
Mineards’ matter. Zinser responded by letter dated February 9, 2009. The complaint alleges
the Respondent’s delay to February 9, 2009, in providing the requested information was
unreasonable and a violation of Section 8(a)(5) and (1) of the Act.
The Board case law on the test of reason respecting timeliness of employer responses
to union information requests has been set forth supra in considering the outside agency
employees information request allegations. The analysis here is guided by the same Board
teachings. As to the instant information request, the General Counsel cites Postal Service, 308
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NLRB 547 (1992), for the proposition that a delay of about 4 weeks in supplying relatively
uncomplicated and easily acquired information was unreasonable. The Respondent
emphasizes that the totality of the circumstances should be examined citing West Penn Power,
Co., 339 NLRB 585, 587 (2003).
At the threshold it is important to identify the amount of time involved in the delay at
issue. Between the initial request and the production of the information, some 26 days passed.
The General Counsel prefers to characterize this, albeit correctly, as about 4 weeks. The
Respondent on brief argues at 38: “A scant 14 days passed between the [Union’s] formal written
information request and the [Respondent’s] response.” This latter focus on the written
information request parallels Zinser’s response to Caruso which states in part: “Less than three
weeks have passed since you made your written inquiry regarding Mr. Mineards; I believe this
response constitutes an answer within a reasonable amount of time.”
The Respondent early in the bargaining process expressed a preference for receiving
information requests by letter and often requested that oral requests for information across the
bargaining table be followed up by a written request. As may be seen in the factual recitations
in this decision, the Union at least on several occasions followed the requested procedure. And,
when an oral request of the Respondent was not responded to, the Union on some occasions
on its own motion made a written request for the information earlier requested orally.
I made an explicit finding here that an oral request for information is sufficient under
Board standards to start the clock running on the duty of the Respondent to respond. The
Union’s subsequent repeat or parallel requests in writing do not provide additional time or
excuse for delay. Thus, the Respondent’s quoted argument on brief and in the letter to Caruso
recite and seemingly rely on improperly foreshortened periods of delay which are simply legally
irrelevant to resolving the actual delay issues in dispute.
The system the Respondent apparently instituted of, in effect, awaiting for the receipt of
a written union request for earlier orally requested information is not per se violative of the Act.
Rather it simply does not extend the period of time the Board will consider reasonable in
replying to information requests. The test of reason here is twofold: (1) the time allowed is a
reasonable one and, (2) the system by which that time is tested is a reasonable system of
information gathering. Thus when the Respondent in the instant case awaited a written request
rather than taking immediate action to privately acquire the information requested or at the table
immediately query the Respondent’s managers for the information requested, it selected an
unreasonably slow means of obtaining the information.
Further, there is a significant basis for belief in this matter that the Respondent was
deliberately delaying giving the Union information which might disrupt the Respondents then
ongoing illegal direct dealing with Mineards. Thus at the same time as the January 14 and 15,
2009 negotiations were being conducted and oral inquiries about Mineards being put off at the
bargaining table, management was meeting with Mineards without the Union’s knowledge and
in violation of its duty to bargain in good faith with the Union concerning Mineards. As the
Respondent has argued on brief, Katich, the Respondent’s new director of new operations was
the agent of the Respondent meeting with Mineards, was new to his job and was not
experienced or sophisticated in dealing with a represented employees. It is likely that other
agents of the Respondent would have been aware of Kasich’s plans and intentions regarding
Mineards even if they had not given Katich his marching orders in his dealings with Mineards. It
seems quite unlikely that Travis Armstrong, the Respondent’s editorial page editor, who was at
the bargaining table when the oral request for information was made and who did not respond,
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was ignorant of the Respondent’s ongoing direct dealing with Mineards—indeed dealings that
continued through the negotiation sessions involved.
In sum, and based on the record as a whole and the arguments of the parties and the
testimony of the witnesses, I find that the 26-day delay of the Respondent in providing the
Union its requested information was clearly unreasonable and violated Section 8(a)(1) and (5) of
the Act. I therefore sustain these elements of the complaint.
G. Allegations Respecting Employee Robert Eringer
1. Complaint allegations respecting Eringer
Paragraph 11 of the complaint alleges that since on or about May 16, 2008, the
Respondent transferred unit work to nonunit individual Robert Eringer. Paragraph 17 of the
complaint alleges that this conduct concerned a mandatory subject of bargaining. Paragraph 18
of the complaint alleges that the conduct engaged in by the Respondent alleged in complaint
paragraph 11 occurred without the Respondent notifying or affording the Union an opportunity to
bargain with respect to the conduct. Complaint paragraph 20(c) alleges this conduct constitutes
a failure and refusal to bargain in good faith with the Union as the exclusive bargaining
representative of unit employees: Paragraph 21 alleges this conduct constitutes a violation of
Section 8(a)(1) and (5) of the Act. Paragraph 23 of the complaint alleges that the Respondent
engaged in the action described in paragraph 11 because the employees engaged in protected
activities and to discourage employees from engaging in those activities. Complaint paragraph
24 alleges that in engaging in the conduct alleged in paragraph 11 engaged in for the reasons
alleged in paragraph 23, the Respondent has discriminated in regard to the hire or tenure or
terms and conditions of employment of employees, thereby discouraging membership in a
labor organization in violation of Section 8(a)(1) and (3) of the Act.
2. Facts, positions of the parties, and basic issues respecting the Eringer allegations
The Respondent contracted with Robert Eringer, an individual not employed by the
Respondent, to provide copy for publication in the Paper of an investigatory reporter column on
page 2 beginning in middle May 2008. Eringer became and performed as a freelancer for the
Respondent at material times and there is no dispute he was not an employee of the
Respondent nor was he at any time a member of the bargaining unit. There is also no dispute
that the Respondent did not notify or offer to bargain with the Union prior to engaging or utilizing
Eringer as a freelancer in May 2008. There is a fundamental dispute as to whether the
Respondent was obligated under the Act to do so.
The General Counsel and the Charging Party argue that the Respondent was obligated
to notify and bargain with the Union before it, in effect, subcontracted unit work to a
nonemployee. The Respondent argues that in engaging Eringer as yet another freelancer paid
for preparing material for publication, it was simply continuing a longstanding, frequently used,
business technique respecting which it had no obligation to notify or bargain with the Union
simply because there was no change to the prebargaining status quo, the continuing pattern
and practice of Respondent’s newsroom operations.
The General Counsel and the Charging Party argue that the Respondent’s
contemplation of and final action of hiring Eringer as an outside contractor was not simply the
hiring of a generic freelance writer who was tasked with the preparation of an article and
therefore cannot be justified by arguing the Respondent had long and regularly utilized
freelance writers. Rather, they assert that Eringer was hired as an “investigative reporter” a
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category that had always been filled by unit employees and had never previously been done
other than in-house and had never been subcontracted to a freelance writer. Thus, they argue
that Eringer’s hire was the first time subcontracting of investigative writing had been done and it
was not simply the repetition of the admitted practice of assigning generic news writing to
freelancers.
There is no dispute that the Respondent has historically utilized freelance writers and
photographers who provide publishable material for the Paper essentially since it acquired the
News-Press. And there is also no dispute that it has done so regularly and to no small extent.
There is no contention that freelancers are or should be in the bargaining unit even if they are
doing bargaining unit work. The dispute here is whether there existed a sufficiently discrete
category of bargaining unit work at the Paper for which there was no history of use of freelance
writers, i.e., investigative journalist or investigative reporter and whether Eringer’s use by the
Respondent was a break in or exception to the contended history of nonuse of freelance
contractors for such work. It is necessary then to consider in a sense the taxonomy of the
phylum “reporters” or “journalists” as well as the specific terms and content of the work of the
individuals involved.
The General Counsel advances the circumstances of reporter Scott Hadley as
supporting his argument here. Hadley was initially employed by the Paper as a reporter who
was to undertake investigative stores and to assist in training other reporters in the skills and
techniques of investigative reporting. On June 9, 2001, the Respondent published an article in
the Paper announcing: “. . . we are promoting staff writer and county government reporter Scott
Hadley to the new position of investigative reporter.” Hadley continued working for the
Respondent until he resigned on July 14, 2006. During his employ in the period following his
announced promotion to investigative reporter, he wrote both regular and investigative stories.21
During his employment for the Paper he also won various awards titling him an investigative
reporter and was held out by the Paper in articles addressing these awards as an investigative
journalist.
While associate editor, Scott Steepleton, testified the term investigative reporter did not
exist at the Paper, he prepared a personnel requisition form dated March 6, 2007, seeking the
hire of a full-time individual for the position he identified in the “position” box of the form as:
“investigative reporter” and which hire he further noted on the form was to replace employee
Barney McManigal who was “no longer employed.”22 The fact that the Respondent was seeking
to hire an investigative reporter and that the associate editor used that specific term on the
hiring form convinces me, and the fact that the Respondent held out bargaining unit members to
the public as having that title further convinces me that the name or title is not without
significance for unit members, for the Respondent’s newsroom management and for the Paper’s
readership.

21 The traditional dictionary definition of the term investigative journalist or an investigative
story or series describes the underlying task as one that involves intense inquiry often directed
to expose improper behavior or injustice. The testimony of witnesses at the hearing was varied
with far broader meaning assigned by the Respondent’s witnesses. I view the differences in the
testimony by these news reporters and editors on this issue as approaching the theological and
decline to credit one version over another.
22 Barney McManigal was one of the employees held by Judge Kocol to have been
terminated in violation of the Act and ordered reinstated. He was discharged in February 2007,
and has not been reinstated.
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The Respondent argues:23
Robert Eringer was a well-known author and investigative report[er] in the Santa Barbara
region known to his fans as “The Investigator.” He approached the News-Press about
writing an investigative column in their paper and it was very hard for management to
refuse an opportunity to work with such a well-known local author.
Mr. Eringer wrote stories that consistently appeared on page two of the News Section in
a column-style format. He wrote investigative pieces that he pitched to the News-Press.
Robert Eringer did not replace anyone from the bargaining Unit nor did he perform work
that was previously assigned to bargaining unit employees. Mr. Eringer is just another in
a long line of freelancers.
3. Analysis and conclusions respecting the Eringer allegations
a. The 8(a)(1) and (5) allegations
At the threshold there is no real dispute and I find that the work done by Eringer for the
Respondent was bargaining unit work. It is unnecessary to resolve the arguments of the parties
regarding investigative reporters to find that Eringer, either as a columnist or investigative
reporter did unit work. There is no doubt that he was paid as a freelancer and was not an
employee of the Respondent or considered as a member of the bargaining unit. There is no
doubt that the Respondent did not notify or offer to bargain respecting its decision to retain
Eringer as a freelance contributor. There is also no dispute that the Respondent at all relevant
times has utilized freelance writers and photographers to write copy or take publishable
photographs and has published such articles and photographs.
The legal issue remaining is narrowly focused on the issue of past practice as a defense
to the failure to bargain allegation. This is so because the use of a nonemployee to perform unit
work is analytically similar to the act of subcontracting out unit work. St. George Warehouse,
Inc., 341 NLRB 904 (2004). The relevant case law respecting past practices as a defense to
such allegations was earlier discussed respecting the Respondent’s use of outside agencies to
provide nonunit individuals to do unit work. That case law is noted and fully applies here, but
the complete argument set forth earlier will not be repeated in full.
Where the employer raises a defense of past practice to a unilateral change allegation of
the type at issue here, the General Counsel bears the burden of showing, by a preponderance
of the evidence, that the allegedly unlawful subcontracting constituted a material and substantial
change in the Respondents’ practices. Great Western Produce, 299 NLRB 1004, 1009 fn. 2
(1990); Clements Wire, 257 NLRB 1058, 1059 (1981).
The Board in Eugene Iovine, Inc., 353 NLRB No. 36, slip op. at 1 (2008), noted the
evidentiary standard for determining the sufficiency of the pattern or frequency of occurrence
the past practice:
The party asserting the existence of a past practice bears the burden of proof on the
issue and the evidence must show that the practice occurred “with such regularity and
frequency that employees could reasonably expect the ‘practice’ to continue or reoccur
on a regular and consistent basis.” Sunoco, Inc., 349 NLRB 240, 244 (2007);

23 On posthearing brief at 89, et seq.
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Philadelphia Coca-Cola Bottling Co., 340 NLRB 349, 353 (2003), enfd. mem. 112 Fed.
Appx. 65 (D.C. Cir. 2004).
The Board approved the analysis of Administrative Law Judge Aleman in Philadelphia Coca-
Cola Bottling Co., 340 NLRB 349 (2003), who set forth the following at 353:
A past practice is defined as an activity that has been “satisfactorily established” by
practice or custom; an “established practice”; an “established condition of employment;”
a “longstanding practice” (citations omitted). Exxon Shipping Co., 291 NLRB 489, 493
(1988); See, also, Golden State Warriors, 334 NLRB 651 (2001); Dow Jones & Co., 318
NLRB 574, 578 (1995). Thus, an activity, such as the Respondent’s distribution of
bonuses, becomes an established past practice, and hence, a term and condition of
employment, if it occurs with such regularity and frequency, e.g., over an extended
period of time, that employees could reasonably view the bonuses as part of their wage
structure and that they would reasonably be expected to continue. Sykel Enterprises,
324 NLRB 1123 (1997); Blue Circle Cement Co., 319 NLRB 661 (1995); Lamonts
Apparel, Inc., 317 NLRB 286, 287 (1995); Central Maine Morning Sentinel, 295 NLRB
376, 378 (1989); General Telephone Co. of Florida, 144 NLRB 311 (1963); American
Lubricants Co., 136 NLRB 946 (1962).
I find the use of Eringer to write, in the Respondent’s term on brief, “an investigative
column” or columns, which investigative pieces, the Respondent again on brief notes, had never
previously been assigned to freelancers or to bargaining unit employees, was clearly a new
arrangement for which there was no previous history. Thus the defense of an established past
practice or established condition of employment simply does not apply. The Respondent’s
determination in retaining Eringer because he was a well known local author and reporter in the
area who had his own fan base and his unique personal style, as Steepleton testified: “We had
never had a page 2 columnist like this before,” convinces me and I find, that the Respondent’s
past practice of freelance use for general articles does not extend to or include the
circumstances here presented.
An argument of the Respondent offered in defense to this allegation in its posthearing
brief section headed VI.B.2. at 87, is that, in “protesting the contracting of Robert Eringer [the
Union] is unlawfully trying to gain editorial control of the News-Press.” The Respondent’s
general argument is considered elsewhere in this decision, but its attempted application here
that the Union is overreaching is specious, indeed even frivolous. The Union’s charge and the
General Counsel’s complaint addresses the Respondent’s argued bargaining obligations
concerning using a freelance contractor to do certain work. It simply does not address the
content of the work. Were the Respondent’s argument to apply here, Respondent’s freedom to
subcontract unit work in new and untried ways without notification or bargaining with the Union
would be unencumbered by the Act. I reject the asserted defense as simply inapplicable to the
instant allegation. And, further, I find it misconstrues the obligations of Section 8(a)(5) of the Act
applicable here.
The Respondent is not foreclosed by the Act from hiring columnists or others who are
not in the bargaining unit to do unit work. Rather and importantly, the Respondent is simply
obligated to notify and bargain with the Union regarding the unit work at issue. As the Supreme
Court taught in Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964), giving the Union an
opportunity to address the employer’s desires and concerns simply allows, through bargaining,
the employer to consider the positions and offers of the representative of the employees who do
unit work. If the matter is not resolved and an impasse occurs in bargaining, the employer’s
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bargaining obligations are satisfied and the employer is not prevented from taking the action it
feels necessary.
Given all of the above, and based on the record as a whole, including the testimony of
witnesses and the arguments of the parties, I find that the Respondent was obligated to notify
and offer to bargain with the Union regarding its decision to assign bargaining unit work, i.e., the
writing of an investigative column on page two of the paper, to a freelance, nonemployee,
nonbargaining unit member in May 2008. I specifically find that the history of the Respondent’s
use of freelance writers to that time was different and distinct from the use of a freelancer for the
investigatory column and provided the Respondent no shelter from its notification and
bargaining obligations. I further find that since the Respondent did not in the event notify or
offer to bargain with the Union regarding its use of Eringer in the manner described, it violated
Section 8(a)(1) and (5) of the Act. I therefore sustain the relevant paragraphs of the complaint
described above.
b. The 8(a)(1) and (3) allegations
The essence of this allegation is not that the Respondent undertook to have an
investigatory column written by Eringer but that the Respondent hired Eringer as a
nonbargaining unit freelancer to do the writing rather than hiring him as a bargaining unit
member employee of the Paper. Thus the theory of a violation—again as earlier based on a
Wright Line analysis, focuses on the unit/nonunit status of the hired individual.
The General Counsel argues that the argument and analysis advanced to establish that
the Respondent violated Section 8(a)(1) and (3) of the Act in using outside agencies to obtain
nonemployees to do bargaining unit work apply fully to the Eringer situation. Counsel notes that
the timing is also highly supportive of a finding of a violation in that the Eringer freelance hire
and use of his work started in the same month, May 2008, that the use of outside agency
referred contractors were used. The General Counsel argues that all this evidence should be at
least sufficient to meet the governments prima facia showing under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and counsel
notes further that the Respondent supplied no evidence that it would have hired Eringer as a
freelance writer to do the work that he did in the absence of its employees electing union
representation.
This is the third Wright Line Section 8(a)(3) analysis of the Respondent’s actions in
dealing with non-unit individuals—both freelance and outside agency referred individuals—
doing unit work. None the less it is necessary to once again set forth the two part process of a
Wright Line analysis.
Under Wright Line, the General Counsel has the burden of proving by a preponderance of
the evidence that antiunion sentiment was a motivating factor in the subtracting decision. If the
General Counsel satisfies his initial burden under Wright Line, the burden then shifts to the
employer, in the nature of an affirmative defense, to demonstrate that the same action would
have taken place even in the absence of the protected conduct. In meeting this burden, the
employer cannot simply state a legitimate reason for the action taken, but rather must persuade
by a preponderance of the evidence that it would have taken the same action in the absence of
the protected activity. T & J Trucking Co., 316 NLRB 771, 771 (1995). The ultimate burden of
proving discrimination always remains with the General Counsel. Wright Line, supra.
Antiunion motivation may be established through direct or circumstantial evidence. An
example of such circumstantial evidence includes the timing of the decision. “It is well settled
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that the timing of an employer’s action in relation to known union activity can supply reliable and
competent evidence of unlawful motivation.” Gaetano & Associates, 344 NLRB 531 (2005),
enfd. 183 Fed. App. 17 (2d Cir. 2006), Davey Roofing, Inc., 341 NLRB 222, 223 (2004). Thus
the Board stated in Allstate Power Vac., Inc., 354 NLRB No. 111, slip op. at 4, fn. 12
(November 30, 2009).
12 In analyzing these allegations under Wright Line, the judge should, where necessary,
address the General Counsel’s arguments that the Respondent deviated from past
practice in taking the above alleged unlawful actions and/or treated the affected
employees differently than it had treated other similarly situated employees in the past.
I agree with the General Counsel that the timing of the freelance hire, i.e., at the same
time as the commencement of the use of outside agencies to provide nonemployees to do unit
work, as well at the blatantly violative24 failure to notify or offer to bargain with the Union
regarding the decisions of the Respondent to use both the agencies and Eringer supports its
prima facia case. Having reviewed all the evidence and my earlier conclusions and analysis in
these regards, in conjunction with a full consideration of the instant issue, I further find and
conclude that the evidence carries the General Counsel’s case that the Respondent undertook
to employ Eringer as a freelancer rather than as a unit member because it wished to undermine
the Union by reducing the number of bargaining unit employees and increasing the number of
nonunit individuals who were doing unit work.
Given that finding, under Wright Line as noted, it falls to the Respondent, in the nature of
an affirmative defense, to demonstrate that Eringer would have been hired as a freelancer and
not as an employee and bargaining unit member even if the Union had not come to represent
the employers and or the employees had not engaged in union activities. In meeting this
burden, the Respondent cannot simply state a legitimate reason for the action taken, but rather
must persuade by a preponderance of the evidence that it would have taken the same action in
the absence of the protected activity.
The Respondent on brief argues that the government’s allegation is frivolous and that
the Respondent regularly used freelance writers. The record establishes however that the
investigative column undertaken by Eringer was unique in the Respondent’s history and had
never been undertaken by anyone else—bargaining unit member or nonbargaining member,
freelancer or other nonemployee. I do not find the Respondent’s arguments nor the record
evidence addresses why—in this specific instance—Eringer was taken on as a freelancer as
opposed to a unit employee. It is therefore clear to me and I find that the Respondent has not
demonstrated by a preponderance of the evidence that it would have taken on Eringer for the
column he came to write as a freelancer as opposed to as a unit member. This being so, I find
the General Counsel has sustained his ultimate burden as to this allegation.
I therefore find that the Respondent hired Eringer as a freelancer rather than as a unit
employee in order to weaken and undermine the Union in its representative capacity and to
discourage employees’ union activities. I further find that in so doing the Respondent violated

24 The Respondent had the services of highly skilled local and bargaining counsel. Both
firms were involved in the earlier litigation at relevant times. The parties and individuals
involved are smart individuals who would have taken advice from counsel and followed advice.
On this record I simply do not accept the principle of honest mistake, accident, or confusion
respecting major courses of conduct taken by the Respondent.
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Section 8(a)(1) and (3) of the Act as alleged. I shall therefore sustain the relevant allegation of
the complaint.
H. The Respondent’s August 22, 2008 Letter to Employees
1. Allegations and facts concerning the August 22, 2008 communication
Complaint paragraph 21 alleges that on or about August 22, 2008, the Respondent by
Wendy McCaw distributed a letter to employees in which it offered to provide its own attorney to
represent employees during the Board’s on-going investigation and which discouraged
employees from cooperating with the Board’s on-going investigation of pending unfair labor
practices. Complaint paragraph 26 alleges this conduct violates Section 8(a)(1) of the Act.
On August 9, 2008, Top Echelon informed the Respondent, i.e., Apodaca, that certain of
its records had been subpoenaed by the NLRB and that it had given the NLRB contact
information respecting Top Echelon’s temporary employees utilized by the Respondent. In
August 2008, Amie Marie Fowler was a nonunit employee of the Respondent working in the
press department. Fowler had been a Top Echelon referred contractor working on behalf of the
Respondent from August 2007 to February 2008. As such her contact information would have
been part of the material obtained from Top Echelon by the NLRB. Apodaca in August 2008,
knew of Fowler’s work history, including her Top Echelon relationship and therefore within 2
weeks of the events described, knew or should have known25 the NLRB had gotten Fowler’s
contact information earlier that month from Top Echelon.
In August 2008, Fowler used a personal mobile or cell telephone as her sole telephone,
i.e., she did not have a “land-line” or hard-wired telephone at her residence. Her mobile phone
was the only phone on which she could be contacted. As a mobile phone, her phone number
was not published in “hard line” telephone directories.
Fowler testified credibly that in or around mid-August 2008, she received a voice
message from a caller. The caller, a female,26 identified herself as being from the NLRB and
said she wanted to speak to Fowler about her temporary employment at the News-Press. The
caller asked that Fowler return her call but made no suggestion such an action was mandatory.
Fowler testified she was angry because she did not perceive her connection to the disputes
concerning the newsroom employees. She was further concerned respecting how her
telephone number had gotten to the caller.27
Fowler went to her superiors and reported the message she had received and the fact
that she was “concerned how they had received my phone number, that possibly the News-
Press had given it to them.” She testified that she was told in reply:
They told me that it was my decision whether I’d like to contact the NLRB or not and that
they would address the issue to Human Resources to find out if, you know, maybe the
News-Press had given my number out or not.

25 Apodaca conceded during cross-examination that the information was fresh in her mind
during August 2008.
26 Apodaca testified that she was informed that the person who left the voice message for
Fowler was female.
27 Fowler had had unfortunate experiences before moving to Santa Barbara which caused
her to wish to limit the availably of her “contact information.”
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Fowler testified her response from management was the August 22, 2008 memo to employees
that everyone received on their desks from Wendy McCaw a couple of days later.
Apodaca testified that Fowler’s call and report to her supervisors was reported to her by
Fowler’s supervisors. In Apodaca’s recollection she was told Fowler had received a call on her
private cell phone from a female seeking a return call and that Fowler was concerned how her
phone number was obtained. Apodaca testified that she either met with or telephoned McCaw.
She testified:
I said that our employee Amie [Fowler] had received a call and we weren’t sure who it
was from, and somehow her personal cell phone number was out there, and I wanted to
let her know, I assured her the company had nothing to do with it and she thanked me
and that was it.
* * * *
I believe I may have suggested that this may be occurring more and we should probably
let employees know that The News-Press has nothing to do with it.
When asked by the General Counsel during cross-examination what was the basis for her
remark “occurring more,” Apodaca could not recall.
A few days later, Apodaca was in communication with McCaw and was told that McCaw
had learned that the NLRB had been in touch with the employee and that McCaw was preparing
an employee memo. She asked Apodaca to arrange for its distribution which Apodaca did.
Supervisors received and distributed the memo to employees throughout the Paper. McCaw
did not appear or testify at the hearing.
The August 22, 2008 communication is a single letter-size sheet of paper that has no
letterhead. Rather it has a single, bold, large font, all capital letter, centered heading:
CONFIDENTIAL. This was followed in letter format with the August 22, 2008 date and a “Dear
News-Press Employees” greeting and a “Sincerely, Wendy McCaw” close. The body of the
communication stated:
Some disturbing news has recently come to my attention. I was just informed that an
agent of the National Labor Relations Board (NLRB) has contacted News-Press
employees directly, including on their personal cellular telephones.
We have previously addressed the NLRB’s unfair treatment of the News-Press in a letter
to the NLRB General Counsel Meisburg in Washington D.C. outlining the biased
treatment that the News-Press has received.
Rest assured that neither I nor any of senior management has divulged any personal or
other contact information about any non-newsroom employees to the NLRB. As I
previously informed the newsroom employees we are required by law to give
confidential information (salary, address, and other personal information) for the
newsroom employees to the NLRB and the Teamsters union (which represents only the
newsroom employees). Unfortunately, I do not know what the Teamsters and/or the
NLRB has done with that newsroom employee information. However, I am committed to
protecting the privacy of every employee here at the News-Press.
I cannot directly ask you not to speak with the NLRB’s agents should they, in some way,
contact you. However, please note that the News-Press has retained lawyers for these
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matters. As News-Press employees, you may state to the NLRB agent or any Teamster
operative that attempts to contact you that you are represented by counsel and to direct
them to contact our lawyers
If you do not feel comfortable with speaking to the NLRB agents, you may feel free to tell
them that you do not wish to talk with them. These are only some of the options
available to you.
I ask you not to be afraid or intimidated by the NLRB’s “investigation” tactics. As it has
been the Union’s position, so it seems that the NLRB would see us give up our First
Amendment rights by prosecuting meritless charges, if only to try and make up for Judge
Wilson’s rebuke of those same tactics. We will not give up our First Amendment rights,
to the NLRB, Teamsters or anyone else, nor will we submit to any intimidation against
our employees from anyone.
I will not belabor the point any further than to say I am very disappointed that employees
that are not represented by the Teamsters have been contacted directly. Should any of
you have any questions or concerns to share, please contact Mrs. Apodaca in our
Human Resources Department so that we can alleviate any fears or concerns you may
have.
Apodaca testified that this memo had been preceded by an earlier general memorandum
to all employees issued at a different time which directed employees to see Apodaca if they
needed assistance with the “union situation.” That earlier memo mentioned that employees
could obtain legal representation from the Respondent’s counsel who would seek to assist them
if possible.
2. Analysis and conclusions respecting the August 22, 2008 memo allegations
While the facts and circumstances of the memorandum’s authorship and distribution are
not disputed, the parties disagreed regarding the events that generated the communication.
Thus, the Respondent argues that upon learning that an employee with sensitivity to
unauthorized communications to her on her personal mobile phone was concerned that the
Respondent had released her number to the government and did not understand her
relationship to the Union/NLRB concerns respecting the newsroom of which she was not a part,
the Respondent as part of its zero tolerance of harassment issued the memorandum.
The General Counsel rather describes the actions of the Respondent’s agents, predicate
to the issuance of the memorandum, as a malign course of conduct involving distortions,
withheld information and antiunion and antigovernment motivations. Thus the government
argues, Apodaca well knew—the information was “fresh in her mind” - that Top Echelon had
under subpoena released contact information to the NLRB for those Top Echelon employees
who had worked for the Respondent. And, Apodaca equally knew that Fowler was such an
employee. Finally she also knew that this category of individual was connected to the outside
agency issue under investigation and that the NLRB had gotten the contact information to
contact these individuals regarding that issue.
Thus, argues the General Counsel from these assertions, when Apodaca learned that
the NLRB had left a message on Fowler’s phone asking that Fowler call the NLRB, Apodaca
knew: (1) why the NLRB was calling Fowler, (2) how the NLRB had gotten Fowler’s contact
information, and (3) that the inquiry of Fowlers as a former Top Echelon employee was of direct
relevance to a charge and ongoing investigation by the Regional Office of the NLRB. The
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General Counsel argues further that despite Apodaca’s dodging and inconsistent version of her
initial communication with McCaw and Apodaca’s abbreviated and reluctant description of her
later communication with McCaw, Apodaca clearly gave the facts to McCaw who, alone or with
others, determined to attempt to take advantage of the situation. The contrary and overtly false
assertions contained in the memo to employees, when compared to the facts recited above, the
government argues, makes it clear that the Respondent was not constrained by the truth in
preparing the memo, but was rather engaging in malicious deceit and falsified self
righteousness.
The General Counsel also emphasizes the self-serving, and self evidently absurd,
characterization of the NLRB call to Fowler as presenting a harassment issue. The only
evidence on the content of the single call—which seems to be both the complete and entire
experience of Fowler with the NLRB—is that Fowler’s phone was called and, as is available with
mobile phones when no answer occurs, a voicemail message was left. That voice message
was a female voice identifying the caller as an NLRB agent and asking Fowler to call her,
presumably at some phone number also recorded.
Having considered the events that preceded the issuance of the August 22, 2008
memorandum to all employees as described above, I agree with the General Counsel that there
is no reasonable or rational basis for perceiving the fact that a female Board agent called a
female nonbargaining unit employee of the Respondent and left a voice message identifying the
caller as an NLRB agent and requesting the employee return the NLRB agents call as
presenting a “harassment” issue. Further I agree with the General Counsel that the evidence
set forth above establishes that the Respondent either knew or should have known this was
true, that the contact information case from Top Echelon and, finally, that the matter under
inquiry by the NLRB dealt with the Top Echelon/employee issue presented in the earlier portions
of this decision.
The General Counsel makes two, separate arguments that the memorandum violates
Section 8(a)(1) of the Act: (1) that it improperly suggested to its employees that they be
represented by the employer’s attorney in the investigation of a charge against the employer
and, (2) that it improperly interfered with the Board’s investigative processes by discouraging
employees from cooperating with the Board’s on-going investigation. These arguments must be
separately considered.
a. Does the Respondent’s August 22, 2008 memo improperly suggest to its
employees that they be represented by the employer’s attorney in the investigation
of an NLRB charge against the employer?
The Government cites the Board’s decisions in KFMB Stations, 349 NLRB 373, 387
(2007), and S. E. Nichols, Inc., 284 NLRB 556, 559 fn.9, 580-581 (1987). In KFMB Stations, the
Board adopted the conclusion of the judge that the employer violated Section 8(a)(1) of the Act
by offering employees, who had been subpoenaed by the General Counsel, the services of its
attorney. It relied on S. E. Nichols, 284 NLRB 556 (1987), enfd. on this issue, 862 F.2d 952 (2d
Cir. 1988).
In S. E. Nichols, the judge found the employer’s agent informed employees that Board
agents would be visiting the employer’s facility and might want to interview employees. He told
the employees: “if [they] needed any protection he would get his lawyer to sit in on the meeting.”
On his own initiative the employer’s agent also told the employees they could see Respondent’s
attorney if they needed help in connection with anticipated requests by Board agents for
employee statements. Sustaining the General Counsel’s complaint allegation, the judge found
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the employer’s statements violated Section 8(a)(1) of the Act citing Florida Steel Corp., 233
NLRB 491, 494 (1977), enf. denied 587 F.2d 735 (5th Cir. 1979); Garry Mfg. Co., 242 NLRB
539 (1979), enf. denied 630 F.2d 934 (3d Cir. 1980). The judge discussed the evolution of the
doctrine and distinguished the Federal Circuit Court disapprovals of the two cited cases at some
length.
In approving the judge’s analysis on the question the Board held:
Concerning the offer of counsel, we agree with the Judge’s clear exposition of the reasons
the Respondent’s offer is distinguishable from the statements found not coercive by the
courts in Garry Mfg. Co., 630 F.2d 934 (3d Cir. 1980), and Florida Steel Corp., 587 F.2d
735 (5th Cir. 1979). Essentially, telling employees that they might need protection in an
action against the Respondent would tend to dissuade them from cooperating with the
Board. Secondly, here the Respondent did not recommend obtaining independent
counsel but offered only its own attorney, thus, in the judge’s words, “temptingly proposing
a serious conflict of interests.” (284 NLRB 556, portion of fn. 9 at 559).
Chief Judge Feinberg of the Second Circuit addressing the allegation on review of S.E. Nichols,
Inc., held in part:
Finally, the company objects to a finding that it violated the Act by telling employees that
they could receive the advice of the company’s attorney in connection with interviews by
Board investigators. Nichols claims that it was simply advising its workers of their right to
counsel. The ALJ discounted this explanation because the advice seems to imply the
need for protection and would have the effect of dissuading employees from cooperating
with the Board’s investigation since the “most fearless employee would find it difficult to
provide the Board with information against his employer when he was accompanied and
being ‘advised’ by the employer’s counsel.” The Board agreed, and so do we. (862
F.2d 952 (2d Cir. 1988), at 959.)
The Respondent notes that the Fifth Circuit Court of Appeals in Florida Steel Corp., 587
F.2d 735 (5th Cir. 1979), has rejected the Board’s theory of a violation. The Respondent, on
brief at 213–215, passim, cites a variety of cases in which circuit courts have denied
enforcement to cases dealing with written communications of employers to employees of a
generally similar nature. Counsel summarizes, on posthearing brief at 214: “Courts have
systematically concluded that letters like Santa Barbara News-Press’s do not violate the Act.”
The Board has specifically stood by its counsel provision theory of a violation of the Act
in the cases noted. I am bound by Board cases not abandoned by the Board or reversed by the
Supreme Court. And as noted, the Second Circuit Court of Appeals enforced the Board’s
decision in S. E. Nichols, Inc. I therefore follow the cited cases here and find that the
Respondent in offering to employees that its attorneys would represent them during the Board’s
on-going investigation violated Section 8(a)(1) of the Act. I note further that the cases, including
the cases in which the circuit courts have disapproved of the Board’s findings a violation of the
Act turn on their specific facts. Here the employer went out of its way in its communication to
employees to hold back facts it knew, expressed hostility to the government and its agents and
associated them with partisan misconduct in investigations. In that context—one of clear and
admitted hostility and disapproval, the Respondent offered its employees access to lawyers it
had retained. Thus the letter placed on each employee’s desk by his or her supervisor which
letter bore the name of the owner and publisher, Wendy McCaw, said in part:
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I cannot directly ask you not to speak with the NLRB’s agents should they, in some way,
contact you. However, please note that the News-Press has retained lawyers for these
matters. As News-Press employees, you may state to the NLRB agent or any Teamster
operative that attempts to contact you that you are represented by counsel and to direct
them to contact our lawyers.
I find that this factual context of hostility and disdain respecting the NLRB investigation
and investigators especially given the actual circumstances underlying the triggering events
distinguishes the facts pertaining in the situations producing the contrary decisions of the courts.
But in all events I am bound to and therefore follow the Board-cited cases here. Having
considered the record as a whole, the testimony of the witnesses and the arguments of the
parties and the cases cited, I find and conclude that the Respondent in offering to employees in
the manner and context noted that its attorneys would represent them during the Board’s on-
going investigation the Respondent’s August 22, 2008 memo improperly suggested to its
employees that they be represented by the employer’s attorney in the investigation of an NLRB
charge against the employer and thereby violated Section 8(a)(1) of the Act.
b. Does the Respondent’s August 22, 2008 memo improperly interfere with the
Board’s investigative processes by discouraging employees from cooperating with
the Board’s on-going investigation?
The General Counsel’s argument respecting the Respondent’s intentions in circulating
the memo to employees and the general distorted and knowingly false presentation in the
memo regarding its professed ignorance of how and why the Board was contacting nonunit
employees was noted earlier. So, too, the General Counsel and the Charging Party’s
arguments that individual instances of violations of the Act were simply part of a whole course of
conduct designed to undermine the Union and discourage employee support for the Union has
been discussed earlier in considering other allegations.
The authority the government offers for its theory of a violation here is Certain-Teed
Products Corp., 147 NLRB 1517, 1519–1521 (1964). In that case the employer’s agent
informed about 90 percent of the employer’s employees that unfair labor practice charges had
been filed against the employer and that the employees were not obligated to make any
statements to a Board agent unless and until they were subpoenaed to appear at a hearing. He
also advised employees that they could tell the Board agent to “go to the devil, or go to hell.”
The judge found such conduct did not violate the Act. The Board reversed holding:
The Board’s ability to secure vindication of rights protected by the Act depends in large
measure upon the ability of its agents to investigate charges fully and to obtain relevant
information and supporting statements from individuals. It is for this reason that the Board
has carefully sought to protect the integrity of its processes by preventing any obstruction
of Board agents in their investigation of charges. [Footnote omitted.] Here, as noted,
Respondent told 90 percent of its employees that they need not cooperate with Board
agents in their investigation. While it may be technically true that an individual may not be
forced to give statements to a Board agent unless subpoenaed, it is clear, and we find,
that under the circumstances in the present case, Respondent’s advice was designed to
and would in fact tend to discourage employees from supplying information to a Board
agent and thus to hinder him in investigating the charges filed in this case against the
Respondent. [Footnote omitted.] In reaching this conclusion, we rely on the facts that
Respondent advised virtually all of its approximately 100 employees that they need not
cooperate in the Board investigation; that it told several of these employees that their
cooperation would result in their being subpoenaed and forced to testify at a hearing, thus
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indicating that their cooperation would involve them more deeply in the litigation; [footnote
omitted] that Respondent’s opinion regarding the investigation was not solicited by
employees, and the language it utilized was in many instances intemperate; and that
Respondent made other coercive statements to employees which we have previously
found violated Section 8(a)(1), including statements expressing disbelief and annoyance
at employees who testified at the first hearing.We find, therefore, that the above-described
conduct by Respondent interfered with the rights of employees to obtain redress from the
Board and thereby violated Section 8(a)(1) of the Act. [Footnote omitted.] (147 NLRB
1517, 1520–1521.)
The Board also made clear in Certain-Teed that, as is true generally respecting 8(a)(1)
allegations, it is the tendency of the conduct, i.e., its objective possibility, alleged to chill the
section rights of employees rather than its actual effect on specific employees that is to be
considered.
The Respondent argues the Certain-Teed decision is “readily distinguishable and not
dispositive of the instant issue.” (The Respondent’s posthearing brief at 212.) Counsel notes
that employees in Certain-Teed had not been seeking advice from the employer and the
language used was intemperate.
The Respondent emphasizes the advisory and informative nature of its memo. Counsel
for the Respondent argues the General Counsel’s characterizations of the memo are strained
and incorrect. It was rather informative and contained no compulsory instruction for employees.
It specifically noted there were options for employees who were contacted by the NLRB. Indeed
counsel for the Respondent emphasizes the memo specifically indicated to employees that the
Respondent could not advise them: “I cannot directly ask you not to speak with the NLRB’s
agents should they, in some way, contact you.”
From this argument the Respondent advances the proposition that the statements in the
communication are protected by Section 8(c) of the Act which states:
The expressing of any views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evidence of
an unfair labor practice under any of the provisions of this subchapter, if such expression
contains no threat of reprisal or force or promise of benefit.
The Respondent cites the Seventh Circuit’s rejection of the Board’s decision in NLRB v. J. W.
Mortell Co., 440 F.2d 455 (7th Cir. 1971), denying enforcement of 168 NLRB 435 (1967), in
which the Circuit Court found Section 8(c) protected certain employer statements regarding an
employees right not to meet with the NLRB agent preparing for an unfair labor practice trial.
I note however, that I am bound to follow the Board precedent absent reversal by the Supreme
Court. Further, the Respondent cites certain advisory memoranda issued by the General
Counsel’s Division of Advice, so called Advice memoranda. While the case citations contained
therein are obviously instructive insofar as they direct a reader to legal authority, Advice
memoranda are not binding precedent and of themselves neither support nor limit the argument
of any party on a legal issue. I therefore do not rely on them as authority.
The Respondent also cites the Board’s holding in Baptist Med. Ctr., 338 NLRB 346, 347
(2002), which declined to apply the Certain-Teed doctrine to memoranda addressed to
employees dealing with investigations by institutions other than the NLRB. The General
Counsel argues and I agree that this circumstance renders the case distinguishable from the
issues at hand.
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I have considered this issue in light of the memorandum itself, the underlying
circumstances and the record evidence of what was known by the Respondent’s agents at the
time of issuance of the memo. I have considered this in light of the record as a whole, the
testimony of the witnesses and the entire course of conduct of the Respondent at all relevant
times. Based on all the above, the argument of the parties and the applicable precedent, I find
and conclude as follows.
It is important to have the language and context of the memorandum clearly in mind in
considering its likely impact on the employees—the test of the argued violation at issue. The
owner and active manager of the Respondent: McCaw, causes a nonletterhead communication
bearing her name and marked confidential to be delivered to all employees through delivery by
supervision to the desks or other workplaces of all employees.
The communication leads with the correct assertion that she has learned “that an agent
of the National Labor Relations Board (NLRB) has contacted News-Press employees directly,
including on their personal cellular telephones.” The communication however labels this
information as “disturbing” in her first paragraph and labels the Board’s conduct improper in the
second:
We have previously addressed the NLRB’s unfair treatment of the News-Press in a letter
to the NLRB General Counsel Meisburg in Washington D.C. outlining the biased
treatment that the News-Press has received.
The memo is replete with additional warnings and admonitions respecting the conduct of the
NLRB: “I ask you not to be afraid or intimidated by the NLRB’s “investigation” tactics.” “. . . [I]t
seems that the NLRB would see us give up our First Amendment rights by prosecuting meritless
charges. . . .”. “We will not give up our First Amendment rights, to the NLRB, Teamsters or
anyone else, nor will we submit to any intimidation against our employees from anyone.”
Based on the record as discussed earlier, I specifically find that Respondent’s agent,
Apodaca, knew at the time she reported on the inquiry of former Top Echelon employee Fowler
to McCaw, that Top Echelon referents—unit and nonunit members alike—had had their contact
information given to the NLRB and I, on the same basis, further find that Apodaca also knew
that the then ongoing NLRB investigation of the charges against the Respondent involved the
status of such Top Echelon referral individuals—a circumstance that obviously meant that at
least some of these individuals would be contacted by government investigators. Since McCaw
did not testify, I draw the obvious inference that she knew these facts as well at the time she
wrote the memo. Yet given this knowledge, the memo states: “I will not belabor the point any
further than to say I am very disappointed that employees that are not represented by the
Teamsters have been contacted directly.”
All of the above convinces me that the memo was not truthful and was calculated to
produce a hostile view of the NLRB by creating the false impression the NLRB was harassing
the Respondent’s employees. I find this was intended and the Respondent’s creation and
presentation of the memo in the circumstances described was designed so that the employees
would pay attention to the memo’s advisory statements:
I cannot directly ask you not to speak with the NLRB’s agents should they, in some way,
contact you. However, please note that the News-Press has retained lawyers for these
matters. As News-Press employees, you may state to the NLRB agent or any Teamster
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operative that attempts to contact you that you are represented by counsel and to direct
them to contact our lawyers
If you do not feel comfortable with speaking to the NLRB agents, you may feel free to tell
them that you do not wish to talk with them. These are only some of the options
available to you.
The memo is clearly not, and I specifically find it is not, a benign, nonmalicious statement of
the opinion by the Respondent.
It is in this factual context, as well as the larger context of the course of unfair labor
practices committed by the Respondent throughout the period that I consider the legal
arguments respecting the memo. Doing so I rely on the teachings of Certain-Teed Products
Corp., 147 NLRB 1517, 1519–1521 (1964). I find the cases cited by the Respondent both
distinguishable on their facts and, in the case of the United States Circuit Court of Appeals’
cases reversing Board decisions cited to me, I also find the decisions are not binding precedent
on an NLRB administrative law judge. Accordingly, I further find that in distributing the August
22, 2008 memo to all employees, the Respondent improperly discouraged its employees from
cooperating with the Board’s on-going investigation and in so doing violated Section 8(a)(1) of
the Act. I therefore sustain the relevant paragraphs of the complaint.
3. The remaining allegations respecting requests for information
a. The allegations, facts, and argument
(1) The August 6, 2008 information request
Complaint subparagraph 7(c) alleges that since on or about August 6, 2008, the Union
through Caruso, requested, in writing, that the Respondent furnish the Union with the following
information:
Notification of when a new employee is hired into the unit, when an employee terminates
(including resignation), or when an employee working in the newsroom has a change in
employment status (including changes in title, duties, or other terms and conditions of
employment) including date of hire, classification and rate of pay.
The request was headed in the letter by the specification: “I would like to make a standing
information request.” The request also contained the paragraph:
Since we are disputing the employer’s use of only Temporary employees and
Independent Contractors [capitalization and italicization in the original] to dilute the
bargaining unit, this request included the above requested information for all individuals
hired to perform work performed by the bargaining unit.
Subparagraph 7(f) alleges the requested information was relevant and necessary to the Union’s
performance of its duties as the employees’ representative. Complaint subparagraph 7(i)
alleges that until October 22, 2008, the Respondent failed and refused to furnish the Union the
requested information. The complaint at subparagraph 7(l) alleges the delay in the
Respondent’s furnishing the Union’s requested information in both of these instances was
unreasonable and complaint paragraph 25 alleges the unreasonable delays violated Section
8(a)(5) and (1) of the Act.
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(2) The September 9, 2008 information request
Complaint subparagraph 7(d) alleges that since on or about September 9, 2008, the
Union through Caruso, requested, in writing, that the Respondent furnish the Union with the
following information:
Notification of status changes for workers performing bargaining Unit work:
The status, classifications, wages and benefits of Alex Pavlovic, Dave Mason, Chauncy
Kim, Alan Hunt, Bill McMorris and John Creely, and whether the New-Press considers
them to be in the bargaining Unit or not, and if not, what is their status in the New-Press’
view.
Please provide the same information for any other people performing bargaining Unit
work with respect to whom you have not yet provided this information.
Complaint subparagraph 7(j) alleges that until October 24, 2008, the Respondent failed
and refused to furnish the Union the requested information. The complaint at subparagraph 7(l)
alleges the delay in the Respondent’s furnishing the Union’s requested information in both of
these instances was unreasonable and complaint paragraph 25 alleges the unreasonable
delays violated Section 8(a)(5) and (1) of the Act.
(3) Facts concerning the information requests and Respondent’s responses
There is no dispute that the August 6, 2008 Union’s information request was made as
alleged and that the Respondent supplied the information at the October 22, 2008 bargaining
session, i.e., after 77 days or 11 weeks had passed. There is no dispute that the
September 9, 2008 Union’s information request was made as alleged and that the Respondent
supplied the information by letter dated October 24, 2008 bargaining session, i.e., after 45 days
had passed.
The Respondent argues that the information request cannot be viewed in a vacuum and
emphasized that from October 22, 2007, the Union had made numerous, substantial, and
lengthy information requests to which the Respondent timely answered with voluminous
information. The Respondent notes that on September 3, 2008, it provided a roster of
bargaining unit employees which included the employee’s name, hire date, status, regular hours
worked in 2007, overtime hours worked, and gross wages. It notes further that Caruso in a
September 9, 2008 letter to Zinser, voiced appreciation that the Respondent had provided that
wage and hour information. The Respondent further notes that the complaint does not allege a
failure to supply any information, rather only a delay in responding to a very few requests.
The General Counsel argues that the requested information regarding unit employees is
presumptively relevant citing Pennsylvania Power and Light Co., 301 NLRB 1104 (1991), citing
NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967). To the extent that the information
concerning individuals who are doing unit work but who are not unit members or who were in
potential or actual dispute as unit members, the General Counsel argues “the information was
relevant as it was part of the Union’s ongoing investigation into ‘the nature and extent of the use
of workers outside of the Unit who are being used to supplant the unit work force.” St. George
Warehouse, 341 NLRB 904, 925 (2004).” (The GC posthearing brief at 29.) The General
Counsel further adds that the delay coupled with an absence of any justification or explanation,
which belies any claim of difficulty in obtaining the information, clearly violates the Act citing
Bituminous Roadways of Colorado, 314 NLRB 1010 (1991).
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The Respondent argues the Union never established the relevancy of the requested
information respecting nonbargaining unit employees of the Respondent or the agency supplied
nonemployees of the Respondent citing Disneyland Park, 350 NLRB 1256 (2007).
b. Analysis and conclusions regarding the information request response allegations
It is worthwhile to return to the basic law on the elements of an employer’s obligations to
respond to information requests. As discussed supra, the information sought must be relevant
to the Union’s role as unit employees’ representative. The Board holds that information about
subcontracting is not presumptively relevant to such a union. Therefore, a union seeking such
information must demonstrate its relevance to the employer. Richmond Health Care, 332 NLRB
1304, 1305 fn. 1 (2000). In determining whether such relevance has been shown the Board
uses a broad, discovery-type standard. A union demonstration of potential or probable
relevance is sufficient to give rise to an employer’s obligation to provide the information. To
demonstrate that relevance at an unfair labor practice hearing, the General Counsel must
present evidence either: (1) that the union demonstrated the relevance of the nonunit
information, or (2) that the relevance of the information sought by the Union should have been
apparent to the Respondent under the circumstances. See Allison Co., 330 NLRB 1363, 1367
fn. 23 (2000); Brazos Electric Power Cooperative, Inc., 241 NLRB 1016, 1018–1019 (1979),
enfd. in relevant part 6l5 F.2d 1100 (8th Cir. 1980). Absent a showing of relevance, the
employer is not obligated to provide the requested information.
The parties were clearly in dispute regarding the unit status of various of the
Respondent’s employees and were in specific dispute regarding the unit work undertaken by
and the unit placement of outside agency referents. Important elements of that matter were
discussed supra and I have found that the Respondent’s use of those individuals for unit work
violated Section 8(a)(1), (3), and (5) of the Act. As discussed earlier, the Unions view on this
issue was communicated early and often to the Respondent. Based on the record as a whole, I
find the relevance of the information requested was known to the Respondent or at the very
least should have been apparent to the Respondent under all the circumstances. I therefore
find the information requested at issue herein was relevant at the time the Respondent received
the Union’s information requests. I reach this result based on the cited cases and the Board’s
decision in Optica Lee Borinquen, Inc., 307 NLRB 705, 717 (1992), enfd. 991 F.2d 786 (1st Cir.
1993).
The Respondent, on posthearing brief at 29, notes the information requests at issue are
“on going” or “standing” requests, and argues:
There is no precedent for a “standing information request.” The notion of a continuing
information request or “standing information request” is an anathema to the Act. . . .
Providing [the Union] with information on a regular basis or when employees enter or
leave the company is a contract term that can be negotiated, but is not an obligation with
which the [Respondent] must comply at the beck and call of the [Union].
I do not find the argument of the Respondent here convincing. First, parties often negotiate
contracts which expand or limit one or both parties’ statutory rights. Until a contract so limiting a
right has been concluded, and no such contention has been made here, negotiating about
statutory rights does not limit them. Second, I perceive nothing about a standing request for
information which is disabled or reduced in efficacy under the Act by reason of its continuing
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nature.28 Nor has the Respondent cited authority for its asserted proposition. Finally, even
were a continuing request otherwise relevant information for some reason impaired by the fact
of its continuing nature, it would remain effective as an initial or noncontinuing request for the
information and is therefore not for reason of its standing status void ab initio. I explicitly find
that the Union’s requests for information here were not limited by virtue of being “ongoing,” nor
for that reason was the Respondent’s obligation to respond timely to the requests diminished.
This defense is rejected.
Given all the above and the record as a whole including the arguments of the parties and
the testimony of the witnesses, I find and conclude as follows. The Union’s information requests
were received by the Respondent. The information sought was relevant under the Board’s
decisional law and the teaching of the courts. The Respondent responded to each information
request in a sufficient manner as to the content of the response. As to the timeliness of
response, I find the responses to each request, in the light of the entire history of the
relationship, the bargaining and the other information requests and the Respondent’s responses
to them, was unreasonably delayed. The information could and should have been conveyed to
the Union well before the actual times of delivery as discussed and described supra. I further
find that this unreasonable delay in each instance violated the Respondent’s obligation to
bargain in good faith with the union and therefore violated Section 8(a)(1) and (5) of the Act. I
therefore sustain the noted allegations of the complaint.
I. The December 3, 2008 Katich Meeting with Employees: Confidentiality Issue, the
Dispute Concerning the One Story a Day Announcement and Change in Work Practices
1. The allegations
The two complaint allegations set forth below are essentially legally independent but
share common events that make it more efficient and understandable to address them together.
The General Counsel’s complaint paragraph 22 alleges that on or about
December 3, 2008, the Respondent by Don Katich, in a conference room at the Respondent’s
facility, instructed employees not to discuss their terms and conditions of employment.
Complaint paragraph 26 alleges this conduct interfered with, restrained, and coerced employees
in violation of Section 8(a)(1) of the Act. This is the confidentiality issue.
The General Counsel’s complaint paragraph 16 alleges that on or about
December 3, 2008, the Respondent announced and established a requirement that unit
employees produce at least one story per day. Paragraph 18 alleges that the actions alleged in
paragraph 16 were undertaken without prior notice to the Union or affording it an opportunity to
bargain with respect to the conduct or the effects of the conduct. Paragraph 20(c) of the
complaint alleges this conduct constitutes a failure and refusal by the Respondent to bargain in
good faith with the Union and, in paragraph 25, is further alleged to violate Section 8(a)(1) and
(5) of the Act. This is the change in work practices issue.

28 That is not to say that issue of the reasonableness of the frequency of an employer’s
response to such requests may not arise. But here, the initial response of the Respondent is
under contention not some later, repeat response.
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2. Relevant events
a. Testimony
Don Katich was hired by the Respondent on September 15, 2008, as the Respondent’s
director of news operations. That position reported to the copublishers and chief financial
officer. The director of news operations is in charge of newsroom operations and the
employees there including the bargaining unit employees. Reporting to Katich was the
associate editor, Scott Steepleton, who at the time of Katich’s hire was an experienced member
of the Respondent’s newsroom management.
Early in his employ with the Respondent without recalling a specific date, Katich testified
he had a lunch meeting with Steepleton to become acquainted and learn more of the practical
side of day-to-day operations of the newsroom. Part of that conversation included a general
description by Steepleton of the workload, type of work, and general productivity of newsroom
employees including bargaining unit members.
In late November 2008, Katich came to know that some 17 nonnewsroom employees
were to be laid off by the Respondent. The layoffs were to be effective and made public on
December 3, 2008, a Wednesday. Katich testified he “wanted to provide some assurance to the
people in the newsroom that those layoffs would not affect them in any way” and so he issued a
staff memo a few days before December 3 announcing a meeting for that day for the entire
newsroom staff. He testified:
[I]t was my motive, my objective to give some hope, some guidance to both managers
and bargaining unit employees within the newsroom that there was—that these layoffs
would not affect them and that there was some plan, some hope, some direction of how
we would work together to ensure that we stay viable as a news organization.
That day, with three pages of word processor prepared and printed notes in hand, which notes
included within them the text of the just released press release issued by the Respondent
announcing the layoffs, Katich met in the afternoon with the newsroom staff comprising 15 to 25
reporters, page designers, copy editors and photographers as well as then Associate Editor
Steepleton, Assistant Life Editor Boelchler, Photo Editor Maldonado, and Scene Editor Bradford.
Several witnesses testified regarding the specifics of the meeting.
Katich testified concerning the meeting. When asked if he read his notes verbatim at
that meeting by his counsel, he responded: “Not in its entirety.” He added:
The only portion of my notes that I read verbatim was a press release that you have
identified in the larger font. The remainder of the notes were used more to keep me on
track and to make sure that there were certain things I did not forget.
Katich testified, and his notes track the assertion, that following his opening greetings,
announcement of the layoffs and his assurances that the layoffs would not affect the newsroom,
he announced: “The contents of this meeting are considered to be a trade secret and as such
what is discussed in this meeting shall not leave the confines of this building.” He testified:
And the purpose of that was to hopefully ensure that the words that I spoke, the direction
that I communicated to the newsroom would not appear in the blog-sphere or in our
competition as—and did so report about the 17 layoffs.
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Having announced that caution, Katich discussed the general difficulties in the
newspaper industry and specific problems with other papers. He then turned to the News-Press
and in an exhortation asked for a renewed effort by all to invigorate the Paper.
He testified he then told the employees that “starting immediately” as part of the
necessary effort to build up the paper” a series of things would take place. In testifying about
the specifics of what he said regarding the listed matters, Katich indicated: “What I stated in the
meeting is virtually identical to what my notes have indicated.” The notes state:
Starting immediately, all of our efforts, every day go towards building up this paper.
We will be hiring an AM Assignment Desk Editor who will be working 6 am–3 pm,
preparing the days events and assignments in preparation for our 9 am Meeting with the
Associate Editor, Business Editor, photo in an effort to plan out the days events in a
coordinated and proportional structure.
We will have a posted work schedule and every reporter/writer wall be responsible for a
minimum of one story per day and one story for the weekend.
We will assign/schedule Feature stories 60 days in advance.
We will dominate our Lead story, at times assigning two resources to cover the story.
We will make better use of our graphics design capabilities.
We have the the [sic] best photojournalists in the market; we will use them more
effectively.
We will migrate to [a new type of technology] aggressively providing greater efficiency in
how we operate.
We will remove any artificial barrier that hinders our ability to proceed.
We will provide LIVE streaming over Newspress.com and Dale Earnerst will be present
at our 9 am meetings.
Steepleton testified in response to questions from Respondent’s counsel as follows regarding
what was said in the meeting:
Q. Now, did Mr. Katich explain anything or state anything about the expectations of
reporters as far as the amount of work that the company expected them to produce?
A. Yes.
Q. Okay. What did Mr. Katich say?
A. A story a day.
JUDGE ANDERSON: Do you remember how it came up? The words before it and the
words after, if you will.
THE WITNESS: He went through the closures, he went through having to reposition
people, and kind of as a result, I may not be quoting him accurately, but as a result
people are going to have do a story a day. That’s what we want out of people.
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There is no dispute that the remarks of Katich regarding the “story a day” were not
expanded upon, explained, or even commented upon thereafter by Katich or any of the
Respondent’s managers or supervisors attending the meeting at the meeting itself.
Following his remarks, Katich solicited questions from employees. Some were proffered
and responded to. They did not touch upon the “story a day” matter. In time the meeting
concluded and the assembled group began to disperse. Again no discussions occurred
regarding the “story a day” matter.
Karna Ming E. Hughes, is a reporter in the bargaining unit who at relevant times was a
writer of feature stories for the Paper’s lifestyle section who also wrote shorter stories for the
news and the lifestyle sections. She is also a member of the Union’s bargaining committee.
She testified that she attended the December 3, 2008 meeting. She testified further that the
“one story a day requirement announced by Katich was new to her and she wondered how it
would apply to her circumstances as a lifestyle section writer. She did not raise the matter at
the meeting. She described her later actions concerning the matter:
Well, immediately following the meeting as I was walking back to my area, my desk in
the newsroom, I asked the Assistant Life Editor, Charlotte Boechler, if the story a day
requirement applied to us in the life section.
Q. Did she respond?
A. Yes. She said not to worry about it and that they’d talk to us about it later.
Q. Did you respond to that?
A. I asked when we would talk about it. I asked will that be next week?
Q. And did Ms. Boechler respond?
A. She said not to worry about it, that she’d let us know.
Dave Mason, a reporter for the life section attended the December 3, 2008 meeting and also
had questions about the “story a day” matter and asked Boechler about it.
In due course, Boechler, in Steepleton’s memory, told Steepleton that Hughes and
Mason had questions about Katich’s December 3 statements respecting work amounts.
Steepleton contacted the two and conducted a meeting with the two and Boechler, his spouse,
on December 9, 2008. Steepleton testified that following opening greetings and his thanking the
employees for their efforts, the subject turned to Katich’s “story a day” comment. Steepleton
testified that he told the employees that the “story a day” was “a goal to shoot for” and that not
every story was the same size, “. . . [s]ome stories are going to take longer and some stories
aren’t. . . .” The conversation continued with the employees seeking specifics as to length and
deadline for submission requirements Steepleton assured them that flexibility would apply.
Hughes testified:
Scott Steepleton started the meeting by saying that he was thankful for what we had
done in terms of contributing additional articles around the tea fire incident, and then he
said that with the—that times had changed in general for the Company, that the layoffs,
that we were aware of the layoffs and times had changed, and that the story a day
requirement would apply to us. . . . He said that he wanted us—he said that in general
we seemed to be averaging about two features a week, so he wanted us to continue
writing two features but then also do three additional stories and the three stories would
be what he called write-throughs of about 10 to 12 inches in length.
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Hughes added that Boechler then stated she thought that as to those shorter stories, “we should
just take about 10 minutes to interview one person for the story and then that it would take
about an hour to write the stories.”
Mason recalled Steepleton’s remarks at the meeting regarding additional stories:
Scott [Steepleton] was saying—was talking about they were looking at how the features
department would satisfy the goal of one story per day. Because as I said earlier,
feature stories do involve more time. They involve more research, more writing time.
As Scott said that they thought we could—Scott said that they were having us write two
additional stories, which would be short stories, per week. So we would have our
three—he said that we all were doing the three cover stories a week, the life section
covers, and that there would be two additional shorter stories. And that would bring us
up to five stories a week. . . . I also remember that at the time Karna Hughes had—was
concerned about the workload. And she expressed her concern about how we’d
manage to do all this. And to the best of my memory, I believe Scott and Charlotte said
that they were—you know, discuss those things with her.
Hughes, Mason, and Marilyn McMahon, union bargaining committee member, unit
member, and staff writer in the life section under Charlotte Boechler, each testified to feeling
under greater pressure to write more stories. Mason and Hughes testified that they were
making extra efforts to complete the added shorter stories now required of them weekly.
McMahon testified: “There’s a been a great deal more pressure to write more stories. Not only
for the feature section, but also for the city desk.” Katich and Steepleton testified that no
increase in workload of unit employees was initiated following the December 3, 2008 meeting.
There is no dispute that the Respondent did not communicate with the Union before the
December 3, 2008 meeting respecting any change in the number of stories required of unit
employees. On December 4, 2008, Caruso by letter to Zinser raised two matters which Caruso
stated he learned had been raised by Director of News Operations Katich at a December 3,
2008 newsroom employee meeting. The letter described one matter as the “apparent
announcement of a new requirement” that reporters would be required to write a minimum of
one article per day. The letter at this point stated:
This, is therefore to request that the News-Press disavow and rescind any such policy as
it affects the newsroom. If the News-Press declines to do so this is to request that the
News-Press immediately explain in full on reporter “production” is, what, if any
consequences including disciplinary and/or positive consequences may flow from that
policy. . . .
The letter raised as the second item the fact that Katich instructed the employees that
everything said at the employee meeting was “proprietary” and had to stay in the room and not
be shared by anyone outside the room. The letter noted:
As you know, Michael, we have been down this road before “at least with a “gag order”
that the News-Press significantly modified on the eve of the filing of an ULP charge in
July, 2006, and with the December 15, 2006 memo, which would have been protected if
disclosed to the media by any newsroom employee. Again this is to request that the
News-Press rescind or clarify to its employees its position on what employees may
disclose to non-News-Press employees without negative consequences to them.
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Caruso wrote a second letter to Zinser on the matters covered in the first letter dated
December 11, 2008, again seeking a reply. Zinser responded by letter dated December 12,
2008, stating the Respondent needed more time to respond. On December 19, 2008, Zinser
wrote to Caruso covering various matters. As to the “trade secrets” issue the letter stated:
In the meeting you referenced, Dan Katich informed reporters that the information
pertaining to the business strategy of Santa Barbara News-Press was proprietary and
confidential. Employees were informed of how management had decided to reorganize
the content of the newspaper, as well as how management has decided to dedicate
resources. The information was considered a trade secret that is confidential and
propriety information that Santa Barbara News-Press expected employees to not share
with any competing news outlets.
Santa Barbara News-Press is well aware of employees’ rights to discuss terms
and conditions of employment with [the Union], and in no way were employees directed
to withhold any information pertaining to terms and conditions of employment from [the
Union]. You are replowing tilled soil here. We have been down this road before. To the
extent an employee interpreted anything to reflect such a prohibition, that employee’s
interpretation is unreasonable and unsupported. Of course employees can discuss
terms and conditions with the union and among themselves.
Zinser’s letter also addressed the “one story” policy issue:
Finally, with respect to “a new policy that reporters will be required to write a minimum of
one article per day,” such a goal was announced to employees. This is no new “policy.”
Your letter appears to recognize this by referring to the “preexisting practice and policy
. . . .” Santa Barbara News-Press does not intend to discipline any employees for failing
to meet goals that are greater than historic productivity standards.
b. Credibility resolutions
The bulk of the evidence respecting these allegations is undisputed. To the extent there
is dispute regarding some elements of the events, I here resolve credibility issues needed to
determine what actually occurred. Based on the demeanor of the witnesses, consideration of
their positions and sympathies, and importantly in this case, the fact that the witnesses involved
are purveyors of words and evinced experience and skill in their use, I make the following
findings.
I find that Katich opened his remarks at the December 3, 2008 meeting with the
assertion, which is consistent with his notes: “The contents of this meeting are considered to be
a trade secret and as such what is discussed in this meeting shall not leave the confines of this
building.” Again consistent with the great bulk of the witnesses, I find Katich did not make any
statement to the employees respecting the Respondent’s employee handbook. Further, I find
he did not make the remarks attributed to him in Zinser’s letter to Caruso dated December 19,
2008.
Regarding the statements of Katich respecting the “story per day” subject matter, I find,
consistent with his notes, that he made a statement which contained a series of things which he
indicated he was announcing were to “start immediately” and which were part of the necessary
steps necessary to build up the paper. One of the series of things that he announced would
immediately take place was the statement: “We will have a posted work schedule and every
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reporter/writer will be responsible for a minimum of one story per day and one story for the
weekend.”
3. Analysis and conclusions
a. Matter of subjectivity, intention, ignorance, lack of enforcement, and inexperience
The Respondent argued at some length that I consider the perspective of Katich in
evaluating the allegations of violations of Section 8(a)(1) and (5) arising out of the
December 3, 2008 meeting. Thus counsel for the Respondent argues it is important to note that
Katich at the time of these events was inexperienced in managing a newspaper newsroom and
equally inexperienced in managing employees in a union-represented bargaining unit. Finally,
the Respondent notes that Katich’s conduct must be viewed through the lens of what he knew
or understood to be true concerning employees working conditions at the time the remarks were
made. He further notes no employees had been disciplined for violation of the supposed new
rules in the context of the instant dispute. Finally the counsel for the Respondent urges Katich’s
intentions and desires be taken into account both as to the consideration of a violation and, if
necessary, in crafting a remedy.
The Board has traditionally applied an objective standard to evaluating whether or not
employer conduct constitutes interference, restraint, or coercion of employees in the exercise of
their right to self-organization and therefore violates Section 8(a)(1) of the Act and does not look
to the subjective views of the employer or the employees involved. It has relied on the decision
of the Court in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
But we do note that an employer’s free speech right to communicate his views to his
employees is firmly established, and cannot be infringed by a union or the Board. Thus,
§ 8(c) (29 U.S.C. § 158(c)) merely implements the First Amendment by requiring that the
expression of “any views, argument, or opinion” shall not be “evidence of an unfair labor
practice,” so long as such expression contains “no threat of reprisal or force or promise
of benefit” in violation of § 8(a)(1). Section 8(a)(1), in turn, prohibits interference,
restraint or coercion of employees in the exercise of their right to self-organization.
Any assessment of the precise scope of employer expression, of course, must be made
in the context of its labor relations setting. Thus, an employer’s rights cannot outweigh
the equal rights of the employees to associate freely, as those rights are embodied in § 7
and protected by § 8(a)(1) and the proviso to § 8(c). And any balancing of those rights
must take into account the economic dependence of the employees on their employers,
and the necessary tendency of the former, because of that relationship, to pick up
intended implications of the latter that might be more readily dismissed by a more
disinterested ear. (395 U.S. 617–618.)
The Board has maintained that position in Lafayette Park Hotel, 326 NLRB 824 (1998), a case
which dealt with an employer’s unacceptable conduct rules for employees including “divulging
Hotel-private information” to unauthorized individuals. The Board in a split decision on the
merits held “we all agree” that the employer’s conduct is to be tested by a determination
whether or not it would reasonably tend to chill the exercise of Section 7 rights (326 NLRB at
824). The Board noted further:
Where the rules are likely to have a chilling effect on Section 7 rights, the Board may
conclude that their maintenance is an unfair labor practice, even absent evidence of
enforcement. See NLRB v. Vanguard Tours, 981 F.2d 62, 67 (2d Cir. 1992), citing
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Republic Aviation [v. NLRB, 324 U.S. 793, 797–798 (1945)], 324 U.S. at 803 fn. 10. (326
NLRB at 825).
Based on all the above, the arguments of the parties, the record as a whole and the
testimony of the witnesses, I find as follows respecting these defenses. First, I find the standard
to be applied to the statements in contest is an objective one of determining what reasonable
employees would have perceived in the context of the employer’s labor relations setting.
Applying that standard it is permissible to consider the perceptions of a reasonable employee
perceiving the meeting’s participants statements but the subjective state of Katich to the extent
it was not part of the perceptions of a reasonable employee is immaterial. The noted standard
will be applied in reaching a resolution of the allegations immediately below.
b. The December 3, 2008 meeting confidentiality allegation
I have found, supra, that Katich essentially opened the December 3, 2008 meeting with
the statement: “The contents of this meeting are considered to be a trade secret and as such
what is discussed in this meeting shall not leave the confines of this building.” I further found
that Katich made no reference to the Respondent’s personnel manual in his remarks.
A “trade secret” is a common term for a secret device or technique which is held closely
or confidentially and is used by a company in manufacturing its products. The most common
example within our culture is the secret formula or recipe for the Coca-Cola® beverage.
Proprietary information is simply a broader class of information properly closely held by a
company. An employee would be imprudent to lightly disseminate a trade secret or other
proprietary information of his or her employer. There is no doubt that Katich, the highest official
of the Respondent in the newsroom, was giving an instruction of importance to the meeting
participants in opening with his cautionary advisory: “what is discussed in this meeting shall not
leave the confines of this building.”
In Crowne Plaza Hotel, 352 NLRB 382 (2008), the Board considered whether a rule
prohibiting employees from talking to the press was unlawfully broad and thus violative of the
Act. Citing Valley Hospital Medical Center, 351 NLRB 1250, 1252 (2007), the Board affirmed
that Section 7 of the Act protects “employee communications to the public that are part of and
related to an ongoing labor dispute.” Id. at 386 fn. 21. In Crowne Plaza, the Board found that
the employer’s rule in that case could reasonably be construed as “prohibiting all employee
communications with the media regarding a labor dispute.” At the very least, the rule could be
viewed as “ambiguous.” The Board concluded that the rule was facially overbroad and thus the
maintenance of the rule was violative of Section 8(a)(1) of the Act. Id. at 386. See also Trump
Marina Associates, 354 NLRB No. 123 (2009), and Brunswick Corp., 282 NLRB 794, 795
(1987). With respect to interfering with the protected right to talk to the media about labor
disputes, see St. Luke’s Episcopal-Presbyterian Hospitals, 331 NLRB 761, 762 (2000); and
Hacienda de Salud-Espanola, 317 NLRB 962, 966 (1995).
At all relevant times, the Union was engaged in a labor dispute with the Respondent
presumably in an attempt to put pressure on the Respondent to make concessions at the
bargaining table. The Union requested that businesses cease advertising in the Paper and
called for a boycott of those businesses that did not agree to cease advertising in the Paper.
The Respondent filed several charges against the Union contenting that aspects of the
campaign against the Paper violated the Act. In December 2008, those charges were
outstanding and had not as yet been ruled on by the Board.
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It is important to note the specific statutory rights involved respecting this issue as well
as the Respondent’s and the Union’s positions on the matter as communicated to one another.
At issue are the right of employees to talk to one another and to their bargaining representative
about certain matters, but also, and importantly, the incident touches on the right of employees
to have communication with the media regarding a labor dispute. Caruso’s letter to Zinser
dated December 4, 2008, clearly notes that the Union is again dealing with a perceived
infringement of employees’ rights to communicate to the media, i.e., his reference to earlier
Respondent limitations and restrictions on information that would have been “protected if
disclosed to the media by any newsroom employee.” Yet, in Zinser’s reply, which I have found
supra to incorrectly deny the occurrence of the broad restrictions Katich announced at the
beginning29 of the meeting at issue does not address the access to media rights of employees
or the Union’s complaint in that regard. In my view the Respondent’s overly restrictive view of
employee rights to discuss with their Union and among themselves certain information, as well
as communicate with the media respecting the ongoing labor dispute was defiantly reiterated by
Zinser in the face of the Union’s complaint and Katich’s initial remarks may hardly be labeled as
a de minimus or inadvertent error in the full context of events.
Given all the above and based on the record as a whole, the argument of the parties and
the testimony of the witnesses, I find the broad and essentially total blackout or ‘keep secret’
admonition of Katich to employees regarding the meeting’s content, during this period of the
Union’s ongoing labor dispute “at the very least, . . . could be viewed as ‘ambiguous’” by the
employees. Accordingly I find Katich’s restriction was overbroad and thus was violative of
Section 8(a)(1) of the Act. I therefore sustain the relevant paragraph of the complaint.
In reaching this conclusion I have considered the fact that the employees surely knew
that Katich was new to his job. I find that it makes no difference here because the remarks
made by Katich were made in the presence of the other Respondent managers and supervisors
in the newsroom and were not corrected by them. The employees reasonably took Katich’s
caution as authoritative when it was allowed to stand uncorrected by their more immediate
supervisors who were in the meeting with them. The Respondent’s agents had their chance to
catch any error in their new manager’s remarks. When they did not make corrections, the
employees could hold no reasonable belief he was not speaking with the authority of his office.
And as noted supra, the Respondent was informed of his conduct by the Union and responded
with a denial of the actual details of the event and a reassertion of the Respondent’s rights to
impose such total blackout restrictions at the beginnings of meetings under the banner of trade
secrets and proprietary information.
I have also considered the fact that the Respondent’s handbook has an addendum
which asserts that the Respondent’s handbook’s prohibitions in its “Confidentiality” portion does
not apply to communications protected by the National Labor Relations Act and states its policy
should not be construed as preventing employees from discussing with each other their wages,
hours and other conditions of employment for their mutual aid and protection. I find that an
employer’s written assurances in its employee handbook, of the type and nature involved
herein, are simply not an effective defense to the chill the employees rights suffer when they
are told in a closed meeting by the newsroom editor, with all their other supervisors and

29 It is of course revealing that the meeting commenced with the announcement of a broad
no-disclosure edict by the Respondent. At that point when the meeting was just beginning there
was no way of the employees knowing what broader subjects the meeting might visit. Only at
the end of a meeting, when it is clear what has been said, could an employer safely put out a
blanket restriction under a claim that only company plans and strategies were being protected.
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newsroom editors present, that like a trade secret what was said in the meeting was to be held
closely: “what is discussed in this meeting shall not leave the confines of this building.” The
employee handbook, including its cautionary language, was not before employees summoned
to a meeting attended by their managers and supervisors. What they are told at the meeting,
that all information is restricted as described, is not saved from violating the Act because of the
language of the employee manuals read long before and doubtless stuck by those employees in
the back of the employees’ desk drawers.
c. The allegation concerning the December 3, 2008 one story a day announcement
and subsequent change in work practices
The case law applicable to unilateral changes is not in dispute and has been presented
supra. The issue here rather is factual: Did the Respondent through Katich on
December 3, 2008, announce and establish a new standard for unit employees respecting the
quantum of daily article production?
The Respondent argues that there was no discrete, established minimum standard for
the number of stories or articles written in the newsroom. Further counsel for the Respondent
argues there was no written or disseminated standard addressing the quantum of stories
required to be produced. While there was no such specific standard, the Respondent did
expect employees to be productive and employees who were not sufficiently productive were
regularly admonished in their performance reviews to do better. Thus, for example—a warning
to an employee failing to produce at least one story a shift. On many occasions, particular
employees had their individual productivity described in such reviews in terms of their story
output. Examples include: “. . . usually writes a story a day during weekdays and a story (or
two) and briefs on Saturday”, “. . . is extremely productive and regularly writes a story or two a
day,” “. . . is called upon to write or contribute two stories on a daily basis.” It is also true that
the nature, length, and difficulty of writing particular stories in particular portions of the paper
vary so widely that the terms “article” or “story” as a measure of unit employees productivity was
so variant as to be almost meaningless as a form of measurement.
The Respondent notes that at the meeting at issue Katich sought to inspire employees
and wanted employees to be productive and to contribute daily to the paper. His remarks at the
meeting were simply that employees were responsible for one contribution per day and that this
was historically nothing new. Further, the Respondent argues it did not discipline or threaten to
discipline any employee for failing to achieve such a standard after December 3, and made it
clear to the Union in writing that they would not be disciplining employees.
The Respondent further argues the matter at best is a de minimus violation of the Act
and notes, on brief at 196:
Assuming, arguendo, that Mr. Katich announced a “change” at the December 3, 2008
meeting, the goals announced by Mr. Katich were actually less of a “change” than those
instituted in Service Spring Co., 263 NLRB 812, 812 (1982), where a new president
instituted stricter attendance standards and “tightened discipline” to improve production
efficiency.
The General Counsel argues that it is clear that until the December 3, 2008 meeting, no
quantified rule or standard existed respecting a particular number of stories per unit of time,
such as one story per day. The fact that historically individual employees in private evaluations
conducted after a calendar year had passed were praised for achieving or criticized for not
producing an output of a story or stories a day is not evidence of a rule. New employees who
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need to learn of the employer’s performance rules or standards at the soonest opportunity
would not know such praise or criticism awaits them at year’s end. The General Counsel in
these regards advances the Board’s adopted explanation of Administrative Law Judge Richard
A. Scully in Alwin Mfg. Co., Inc., 314 NLRB 564 (1994), wherein the judge explained at 314
NLRB 568:
There is a substantial difference between attempting to discipline an employee for low
production based on the production of other similarly situated employees or his own
previous production and imposing precise minimum hourly production rates which have
been unilaterally determined by the employer and which all employees must meet or be
subject to disciplinary action.
See also Tenneco Chemicals, Inc., 249 NLRB 1176 (1980). And the General Counsel
emphasizes that the mere announcement of a change is a violation of Section 8(a)(5) of the Act,
irrespective of whether any attempt at enforcement or discipline or threat of discipline or other
steps had been undertaken. ABC Automotive Products Corp., 307 NLRB 248 (1992).
Based upon all the above, the record as a whole, the arguments of the parties and the
testimony of the witnesses, I find and conclude as follows.
First, I find that there was in fact no specific numeric written minimum quantity
requirement attached to story production in the bargaining unit as of the time of the December
3, 2008 meeting. I further find that Katich - when he announced of the various employee
actions and achievements that followed his exhortatory declamation, as his notes reflect:
“Starting immediately, all of our efforts, every day go towards building up this paper,” was listing
new actions the Paper would be taking. Put another way Katich was announcing the new “We
will” actions as changes in old ways of doing business which would aid the paper in overcoming
economic adversity. The only fair meaning to be taken from Katich’s remarks—recall both he
and his audience are professional wordsmiths living in a world of language—in the context
presented, was that all was to be new, that changes were to occur as listed by him in his
remarks. Thus I reject the argument that he was not seeking change. I reject the argument that
the employees would not realize he was setting forth new standards of employee conduct
“starting immediately.” The contrary argument that the employees would believe he was stirring
the troops with an announcement that the status quo would simply be maintained “starting
immediately” is unsound and unpersuasive.
Second, based on the cases cited above, I find the unilateral announcement of a change
in the story output policy for unit members violated Section 8(a)(1) and (5) of the Act from that
point forward even in the absence of enforcement or threat of enforcement. And I do not find
the matter simply de minimus or a new manager’s innocent naiveté as the Respondent has
argued.30 Rather, I find there are significant additional factors that further support the violation
and diminish the Respondent’s arguments that the entire matter was miscommunication and
confusion.
The correspondence quoted in part above, make it clear that the Union put the
Respondent on notice early on of its concerns regarding a December 3 announced new
standard. The Respondent delayed any substantive response by initially asking for more time

30 The Respondent’s cited case, Service Spring Co., 263 NLRB 812 (1982), is inapposite in
that it is a case addressing an alleged violation of Sec. 8(a)(3) of the Act, not a violation of Sec.
8(a)(5) of the Act and hence does not address statutory bargaining rights and issues.
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to prepare a response and then in that response simply reasserted its version of facts, rejected
by me as incorrect supra, and refused to admit of any need to take the Union’s requested action
to either retract the announcement or to assure employees that no new standard was in place or
would be enforced. Further, again as discussed supra, the Respondent’s agents Boechler and
Steepleton, as late as December 9, 2008, met with employees who had expressed worries
about the specific new story quantum requirements personal to them that were in place as a
consequence of Katich’s December 3 “one story” announcement. Those agents of the
Respondent did not give any assurances to the worried employees that no change had occurred
in story requirements. Rather they gave the employees specific instruction in how they should
apply the new rules to their work output. Employees would reasonably believe in such a context
that their performance requirements had been raised. I sustain the relevant complaint
allegations.
J. The Respondent’s Employee Performance Evaluation Modification Allegations
1. The allegations
The complaint at subparagraph 13(a) alleges that in or around November 2007 through
January 2008, the Respondent made a general modification to its performance evaluation
system in connection with the 2007 performance of unit employees. In subparagraph 13(b) the
complaint alleges the Respondent in or around November 2008 through January 2009, “failed to
conduct employee performance evaluations of 2008 performance for its unit employees in
accordance with the Respondent’s past practice.”
Complaint paragraph 17 alleges the performance appraisal system is a mandatory
subject of bargaining and paragraph 18 contends the Respondent took the actions alleged in
paragraph 13 without prior notice to the Union and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct or the effects of this conduct.
Complaint paragraphs 20(c) and 25 alleges that the Respondent in engaging in the conduct set
forth in paragraph 13 has failed and refused to bargain collectively and in good faith with the
exclusive collective-bargaining representative of its employees in violation of Section 8(a)(1)
and (5) of the Act.
Complaint paragraph 23 alleges the Respondent took the actions alleged in paragraph
13 because the employees of the Respondent formed, joined, or assisted the Union and
engaged in protected concerted activities and to discourage employees from engaging in these
activities. Complaint paragraph 24 alleges that the Respondent in engaging in the conduct set
forth in paragraph 13 taken for the reasons set forth in paragraph 24 has discriminated in regard
to the hire or tenure or conditions of employment of employees, thereby discouraging
membership in a labor organization in violation of Section 8(a)(1) and (3) of the Act.
2. Relevant events
At relevant times the Respondent has utilized a performance evaluation system to
evaluate the performance of its employees. The process utilizes a multipage form, which on its
face describes the process. It states in part:
After you and your supervisor discuss your performance, the evaluation form will be
returned to you for your signature to confirm that discussion took place. You may, if you
wish, enter additional comments of your own. A copy of the complete form with your
comments (if any), will be given to you and the original will be on file in the Human
Resources Department.
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Apodaca testified that the forms traditionally are prepared by the supervisor for each
employee and the completed forms are submitted to the human resources department for
approval. The approved forms are then returned to the supervisor who then meets with the
employee to discuss the completed form and the employee’s performance. Thereafter the form,
along with any comments the employee chooses to submit in response, are returned to human
resources for inclusion in the employee’s personnel file. Up to and including the 2006
performance appraisal process at the end of 2006, some employees were given employer-
prepared self-assessment forms by their supervisors which were filled out and returned to
supervisors as part of the evaluation process. Both unit and nonunit employees did so but not
all employees in all departments did. Some employees took the language of the forms and
submitted answers in other ways such as by email. After the 2006 evaluation process, the
Respondent-prepared self-assessment forms were no longer supplied to employees although
some employees submitted self-prepared self-assessment submissions thereafter. Apodaca
testified she believed fewer than half of employees used the employer-prepared self-
assessment forms during the period of their use. Most of the Union’s supporting employees
who testified regarding the matter used them. Apodaca testified the self-assessment process
was always voluntary and simply an aid to supervisors in evaluating employees.
The evaluation process ascribes numeric scores to various elements of employee
performance. The arithmetic total of these scores, depending on their totals, makes the
employee eligible or ineligible for any annual bonus awarded that year by the Respondent to
employees. In January 2006, the then-publisher, Joseph Cole, wrote a memo to employees
explaining that the performance reviews give the employee “the formal opportunity at least once
a year to discuss your job performance with your immediate supervisor. Success can be
reviewed and areas for improvement explored.”
Melinda Burns, a former employee, testified that as a newsroom reporter participant in
the evaluation processes at the end of the years 2001, 2002, and 2004, she had occasion to
discuss her supervisors evaluation of her and that she had protested that her supervisor’s
scoring of her performance were unreasonably low. On these occasions she was able to obtain
increases in her scores that allowed her to receive annual bonuses that she would not have
received had the scores not been raised.
The evaluation process for employee performance in calendar year 2007 took place
after the Union became the representative of unit employees. Witnesses Marilyn McMahon,
Dennis Moran, and Karna Hughes testified that they did not have the opportunity to see their
supervisor-prepared 2007 performance evaluations or meet with their supervisors concerning
them. Hughes testified that she had submitted a self-evaluation form to her supervisor, then-
editor of the life department, Mindy Spar, in November 2007. After a period of months passed
Hughes asked Spar if they were going to have a performance review and Spar answered she
did not know. Spar left the paper on or about May 1, 2008.
These employees testified they learned of the existence of supervisor-prepared
evaluation forms for them only some months later when instructed to come to the human
resources’ department to sign their evaluations. Ultimately the human resources department
had occasion on May 6, 2008, to send to five employees email apologies for the fact “that your
2007 performance review was not reviewed by you” and a similar email to a sixth employee was
sent on May 8, 2008.
Many of the employees involved in this circumstance had had supervisors leave the
employ of the Respondent during the period these circumstances occurred. Other employees,
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including bargaining unit employees, received performance evaluation forms, discussed them
with their supervisors and signed them in the normal course. Supervisors involved in the
performance evaluation process received a memo from the human resources department to
undertake and complete the 2007 evaluation in the normal course similar to the memos
distributed to them in earlier years.
Respecting the employee performance evaluation process for the performance year
2008, Apodaca testified that the Respondent changed the evaluation forms for nonunit
employees of the Respondent and determined their meetings with supervision as part of the
evaluation process for 2008 would take place in late May 2009. She testified regarding the unit
employees:
Why, Ms. Apodaca, did the company not just simply meet with the 20 employees in the
bargaining Unit in November or December or January or February to discuss their
performance evaluations rather than waiting for this new change in the form for the other
130 employees?
A. It was my belief that we should be consistent and administer all of the performance
reviews at the same time.
Q. So, if I may, in other words, you wanted to treat the 150 employees the same rather
than have 20 Unit members receive their performance evaluations prior to the other
ones?
A. Yes.
There is no dispute that the Respondent never notified the Union that it was making changes to
its performance evaluation process for unit employees.
3. Analysis and conclusions
a. Modification of performance evaluation of employee’s 2007 performance
The General Counsel has alleged that the denial of the bargaining unit’s opportunity to
meet with supervision concerning their 2007 performance-evaluation forms was significant to
unit employees because such meetings provided an opportunity for the individual unit employee
to disagree, argue, and obtain increases in the supervisor’s numeric scoring which could make
an employee eligible for a bonus for the first time. The General Counsel has further alleged that
the Respondent’s denial of this unit practice for the performance year 2007, without notifying the
Union or providing it with a chance to meet and bargain is a violation of Section 8(a)(5) of the
Act. The government further alleges the denial was undertaken to discriminate against unit
employees for their union activities in violation of Section 8(a)(3) of the Act.
The Respondent addresses all aspects of the governments claims, but argues most
forcefully that the contretemps concerning the missing of some of the 2007 performance year
employee meetings with their supervisors was not a policy established by the Respondent, but
was rather a mistake of individual supervisors arising from the uncontested fact that some
supervisors and managers left the Respondent’s employ during the relevant period and the
entire newsroom managerial and supervisorial staff was in some confusion during the period at
issue. And, the Respondent emphasizes, there is no evidence that the mistake was more
widespread that the specific half dozen or effected employees to whom the Respondent
specifically apologized when the error was discovered in May 2008.
Thus, the Respondent argues, there was no change in policy—the human resources
department was unaware of the events and apologized to employees for the error when it was
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discovered. Further there was no animus driven action that could possibly be in violation of
Section 8(a)(3), simply because there was no action taken by the Respondent beyond the
personal negligence of a few supervisors who were soon to leave their employment.
Turning initially to the 8(a)(3) allegation, the Board’s decision in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), provides the
analytical framework for addressing the issue. The cases cited supra will not be repeated here
in total, but it is important to recall that in the two-step process, it is the General Counsel has the
initial burden of proving by a preponderance of the evidence that antiunion sentiment was a
motivating factor in the challenged action taken. Here I find the General Counsel bears the
burden of establishing that there was a decision taken by an agent or agents of the Respondent
or attributable to them to withhold or deny the unit employees or some of them the right to
discuss their performance evaluations with their supervisors. It is to that threshold matter I turn.
The record reflects a half dozen employees did not have timely post-evaluation meetings
with supervision for performance year 2007. At least the bulk were union supporters. The
record also shows that when the human resources’ department learned of this fact they issued
apologies. Further there is evidence that the supervision of the newsroom had been in turmoil
at relevant times and that many of the supervisors left the Respondent’s employ. Finally it is
clear that the Respondent distributed the “normal” instructional memo to supervision for
performance year 2007 evaluations and that at least one supervisor testified that he was
instructed in the normal course and personally provided employees with an opportunity to meet
and discuss their evaluations as in prior years. It was also shown that at least one supervisor
when asked whether or not employees would be meeting with their supervisors to discuss the
evaluations indicated she did not know. Lastly the entire issue must be judged on the entire
record including the substantial pattern of antiunion conduct undertaken by the Respondent.
Given all the above, the record as a whole, including the argument of the parties, and
the testimony of the witnesses, I find and conclude the General Counsel has not met his initial
burden of showing an intentional action by the Respondent. There is simply insufficient
evidence of a directed course of conduct. Rather I find a series of mistakes at a time of some
confusion and turmoil: Nothing more. That being so, I find that the Respondent did not violate
Section 8(a)(3) and (1) of the Act as alleged in the complaint concerning the 2007 evaluation
year. I shall therefore dismiss these allegations of the complaint.
This factual finding is likewise fatal to the General Counsel’s 8(a)(5) allegation
concerning the 2007 evaluation year performance process. I have found no intentional change
in practices. Rather I have found that the errors in process were acknowledged by the
Respondent and apologized for. There was insufficient evidence to find that a practice had
been knowingly changed or that the irregularities that occurred were regularized or made into
new practices. That being so, I find that the Respondent did not violate Section 8(a)(5) and (1)
of the Act as alleged in the complaint concerning the 2007 evaluation year. I shall therefore
dismiss these allegations of the complaint. I include in this dismissal any contention that the
discontinuation of the Respondent-prepared self-assessment form in performance year 2007
was a unilateral change violative of Section 8(a)(5) of the Act or an animus based action against
unit employees. The process of self appraisal was clearly voluntary. The language on the
forms was sometime copied by employees in other forms of self evaluation. I find the
significance of the form as opposed to the process, was of insufficient significance to the
performance evaluation process to trigger a bargaining obligation standing alone.31 And I do

31 Further, it is not clear that the General Counsel’s complaint allegations read in conjunction
Continued
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not find sufficient evidence offered that the discontinuance was retaliatory to meet the General
Counsel’s initial burden under Wright Line.
b. Failure to conduct evaluation of employee’s 2008 performance in accordance
with past practice
The facts relevant to this allegation are undisputed and may be taken from Apodaca’s
testimony quoted, supra. The Respondent changed the forms used for nonunit employees for
the calendar year 2008 performance period evaluation process and determined the nonunit
employees’ meetings with their supervision as part of the evaluation process for 2008 would
take place in late May 2009. The Respondent retained the earlier forms and process used for
the unit employees. But rather than have the fewer unit members receive their performance
evaluations prior to the more numerous nonunit employees, the unit members’ process was
conformed to the new nonunit schedule. Thus unit employees’ schedule of meeting with their
supervisors was changed by the Respondent from the late fall, early winter time of previous
years to the late spring period for 2009. The Union was not informed of nor offered an
opportunity to bargain over the scheduling change.
The Respondent counsel argues that the complaint alleges that the Respondent failed to
conduct employee performance evaluations of 2008 performance and the record established
that it in fact did so, therefore there can be no violation found. I find this is an overly narrow
reading of the complaint. The precise language of complaint paragraph 13(b) alleges that the
Respondent: “failed to conduct employee performance evaluations of 2008 performance for its
unit employees in accordance with the Respondent’s past practice.” Parsing the allegation, it is
clear and I find the heart of the allegation and its fair meaning is that the Respondent changed
its practice rather than discontinued it. This being so I find the complaint encompasses the
uncontested delay that took place at the Respondent’s hands.32
The Board holds that a unilateral change is unlawful only if it is “material, substantial,
and significant.” Alamo Cement Co., 281 NLRB 737, 738 (1986). Employee performance
evaluations, especially those that have the potential to affect the amount of bonus an employee
might receive, are important and mandatory subjects of bargaining. The time or season in
which the employee has an opportunity to meet with his or her supervisor to discuss the
supervisors evaluation is not, in my view automatically critical. Rather, I find it may in some
cases turn on events and context. Here, the change in the schedule for meeting with
supervisors is now a period of some months after the supervisor has prepared his or her
evaluation. This is so because the process for unit employees was otherwise retained and only
the date of the supervisor-employee review was changed.
I find the schedule change is significant on this record for two reasons. First, as
witnesses testified, the meetings provide an opportunity to change supervisors’ minds about
numeric scoring that may directly affect the employees’ eligibility for employee-wide annual
bonuses. The delay caused by the change between the supervisor’s evaluation and his or her
discussion of it with the employee may easily cause the supervisor to become less likely to
_________________________
with the General Counsels statements regarding the complaints application to the self-appraisal
form discontinuance at the trial would support a violation.
32 It should be clear and I find that the perceived employer need to change represented
employees terms and conditions of employment to better coordinate with the terms of
unrepresented employees is not a business necessity justifying conduct otherwise violative of
Sec. 8(a)(5) of the Act.
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change the ratings and scores in a later employee meeting. Certainly that would be a
reasonable worry for employees. The employee performance at issue in the meeting held
approximately half a year after the performance year being evaluated is increasingly distant for
both meeting participants, a fact that bodes ill for possible informed discussion and
reconsideration.
All this being so, I find the change in timing was material, substantial, and significant.
I further find the change was therefore an improper unilateral change encompassed within the
allegations of paragraph 13(b) of the complaint. I therefore find the Respondent by making the
change without notifying the Union or offering to bargain, violated Section 8(a)(5) of the Act.
The General Counsel also alleges that this conduct violates Section 8(a)(3) of the Act.
Turning again to the Wright Line analysis, I find the government has not provided sufficient
evidence of discriminatory, animus-based intention to sustain its initial burden. The General
Counsel’s barebones reliance on the general course of the Respondent’s conduct is insufficient
as to this allegation. I shall therefore dismiss the 8(a)(3) theory of a violation alleged in the
complaint regarding this conduct.
K. The Respondent’s Failure to Grant Merit Increases to Employees for
Years 2006-2008
1. The allegations
The General Counsel’s complaint at paragraph 12(a) alleges that the Respondent failed
to grant its employees a merit wage increase in recognition of work performance during 2006.
Paragraph 12(b) makes the same allegation for year 2007 and paragraph 12(c) makes the
same allegation for 2008. Complaint paragraphs 23, 24, and 25 allege that the conduct alleged
in the subparagraphs of paragraph 12 was undertaken without notifying or offering to bargain
with the Union and was further undertaken because of the employees’ union activities and, in
consequence, the complaint alleges, the acts are violations of Section 8(a)(1), (3), and (5) of the
Act.
2. Relevant events33
At the time of the acquisition of the paper by the Respondent in 2000, the then-publisher,
Joe Cole, addressed newsroom employees and announced that pay raises and bonuses based
on merit would be paid. They were for years 2000, 2001, and 2002. In the end of the year
meeting in 2003, then-editor, Jerry Roberts, spoke to newsroom employees and told them that
their wage increases and bonuses would be tied to the scores on their annual evaluations.
The Respondent’s employee handbook, unchanged in relevant part from its 2000 initial
issuance, addresses the Respondent’s performance management system. It states in part:

33 In describing the history and circumstances of employee merit raises it is important to
keep in mind several distinctions to avoid confusion. The merit wage allegations are directed to
increases given at the years end for merit during the ending year. Thus for example the
complaint alleges a failure to grant a merit increase for work performance during 2006. That
increase, like increases in preceding years, would have been granted and been effective at the
end or 2006 or the beginning of 2007. Increase denial allegations may relate to particular
employees, classes of employees such as unit members, or all an employer’s employees.
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Performance reviews are only one of a number of factors that are considered in
determining compensation. Other factors may include but are not limited to merit,
position, and general business and economic conditions. Any and all compensation
increases are at the sole discretion of the News-Press.
On December 16, 2003, Apodaca transmitted an email to the Respondent’s entire staff
entitled: Message from Jerry [Roberts]. The memo stated in part:
Today I am announcing this years’ program for performance-based bonuses and merit
raises for a number of employees.
* * * *
After the rest of the budget was approved by Ampersand management, a pool of money
was set aside and earmarked for performance bonuses and raises. The bulk of that
money is in the form of bonuses; the balance consists of raises that range from 0 to 2
percent annually.
I’m please to say that, for the first time in several years, we have put in place a
structured system for making decisions on pay issues. The system, rafted by senior
News-Press managers over the last month and approved by Wendy [McCaw] and Joe
[Cole] last week, was designed to meet three key criteria:
—It is performance-based [bolding in original]. Bonuses and raises are being awarded,
within categories of responsibility, on the basis for performance review scores given by
supervisors and managers.
—It is objective and rational [bolding in original]. There are two factors that determine
extra compensation: performance review and level of responsibility within the company.
By doing this we sought to remove most of the subjectivity that previously marked some
compensation decisions.
—It is clear and consistent [bolding in original]. Each staffer in a job classification gets
EXACTLY [capitalization in original] the same as anyone and everyone else in that
classification with the same performance score.
* * * *
Building on the framework we have put in place this year, we will also be undertaking a
complete review of our salary and compensation system in 2004.
At the end of 2004, then-assistant city editor, Michael Todd, spoke to his supervisees
including then-senior writer, Melinda Burns. Burns recalled Todd announced that anyone who
received less than a numeric score of three on his or her performance evaluation would not
receive either a wage increase or a bonus. Those receiving a numeric score of three or more
would and in the event did receive merit payments.
On November 30, 2005, Jerry Roberts sent an email to newsroom employees respecting
performance reviews. The email set forth the numerical measures for performance used on the
performance reviews:
5—Always excels or exceeds standards.
4—Consistently meets standards.
3—Generally meets standards. Improvement possible.
2—Meets standards sometimes. Improvement needed.
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1—Does not meet standards. Improvement required.
The memo concluded noting that the matter of year-end compensation was being dealt with by
the Publisher with the goal to have those issues resolved by the end of the year.
On January 27, 2006, Publisher Cole sent an email to all the Respondent’s employees
captioned “timing of performance reviews and bonuses.” The memo announced the 2005
written performance evaluations and bonuses were ready for distribution. It noted: “Potential
pay increases for 2006 are still under consideration as we wrestle with the 2006 spending plan
in light of the business environment.” Under a concluding section headed “Innovation and
Change,” the email stated in part:
Our practice of potentially rewarding everyone in the organization with annual cash
bonuses—in every department—from top to bottom—may be innovative within the
newspaper industry, but it is the norm within a wide range of other industries that face
more competition than the News-Press has had in the past.
In and after calendar year 2006, the newspaper industry entered rocky times. The
Respondent was not immune from the general and industry specific troubles nor like difficulties
specific to its market area. As the Respondent argues on posthearing brief at 101:
It was from this market backdrop that the News-Press did not grant wage increases to
any employees—not just bargaining unit employees—for work performed in 2006, work
performed in 2007, and work performed in 2008.
As noted supra, employees were not eligible for merit payments if they had received a
low numeric score on their annual performance evaluation. Employees were also ineligible for
merit-wage increases if their wage was sufficiently high to have been capped under the
Respondent’s salary cap system which had been put in place in 2000. It is not clear that
employees were generally notified of the fact that no merit-wage increases would be paid for
performance years 2006, 2007, and 2008. Employees Hughes and McMahon testified that they
were not notified by managers or supervisors that the Respondent was not giving out merit
increases in any given year at issue.
Steepleton testified that he participated in the performance review of 2006 which took
place in February 2007, and testified he told at least five employees, Eliason, Hobbs, Hughes,
McManigal, and Davison, there was not going to be an increase for work performed in 2006. He
testified he did this because he had been told by Apodaca a few weeks earlier that there would
be no increases.
Steepleton also initially testified that he spoke to employee Melinda Burns along with the
other employees concerning her evaluation and specifically recalled he told her something
about the fact there would be no wage increases. He noted he had been told to share the fact
of no increases as based on market conditions and the bad economy. In fact Burns left the
Respondent in October 2006, well before any evaluation conversations occurred. Braced with
this fact, Steepleton recanted his earlier testimony about Burns.
Apodaca testified that no written communications to employees or management were
prepared informing them that there would be no merit wage increases in 2007 based on 2006
performance evaluations. Apodaca did however issue a memorandum to supervisors
concerning the evaluation forms, but there was no reference to an omitted merit wage increase.
She recalled however she told the supervisors to inform employees that there would be no merit
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wage increases in 2007 based on 2006 performance evaluations when discussing the
performance evaluations of employees with them.
In 2008, Apodaca issued a similar memorandum concerning 2007 performance based
increases to that noted immediately above. Again this memorandum instructed supervision
respecting evaluations without any mention of the omission of merit wage increases for that
period. Zinser by letter dated January 2008 asserted to the Union in part:
At the present time no decision has been made with respect to awarding merit increases
in 2008 based upon performance in 2007. Additionally should a decision be made to
award merit increases, we will be making a specific proposal with respect to the subject
as it relates to bargaining unit employees.
3. Analysis and conclusions
a. The defense that the merit wage increase allegations are barred by
Section 10(b) of the Act
The Respondent at trial by motion to dismiss and on posthearing brief argues that the
allegations of paragraph 12 of the complaint are time barred by operation of Section 10(b) of the
Act. Section 10(b) of the Act states in part: “. . . [N]o complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing of the charge with the
Board. . . .” Such issues are properly addressed before considering the merits of the
allegations.
If the Respondent’s omission to pay merit wage increases for each of the calendar years
2006–2008, occurred more than 6 months before the relevant charge filed addressing that
year’s failure, time bar is an issue. Assuming for purposes of the initial analysis, that the act of
omission—the nonpayment of merit wage increases—is taken to have occurred on the last day
of the performance year involved, the 6-month period for each year is the June 30 date—i.e., 6
months later—in the following year.
The Union filed Charge 31–CA–28661 on February 20, 2008, and it was served on the
Respondent on February 22, 2008. The charge alleged the Respondent “unilaterally changed
its policy of offering annual raises to bargaining unit employees” in violation of Section 8(a)(1),
(3), and (5) of the Act. This is the charge related to the 2006 performance year merit-wage
increase nonpayment. The Union filed Charge 31–CA–28700 on April 15, 2008, and it was
served on the Respondent on April 17, 2008. The charge alleged the Respondent “unilaterally
and in connection with calendar year 2007, perpetuated its change of its policy of offering
annual raises to bargaining unit employees” in violation of Section 8(a)(1), (3), and (5) of the
Act. This is the charge related to the 2007 performance year merit-wage increase nonpayment.
The Union filed Charge 31–CA–29099 on February 18, 2009 and it was served on the
Respondent on February 23, 2009. The charge alleged the Respondent “unilaterally changed
and in connection with calendar year 2008, perpetuated its unlawful change of its policy of
offering annual raises to bargaining unit employees” in violation of Section 8(a)(1), (3), and (5)
of the Act. This is the charge related to the 2008 performance year merit-wage increase
nonpayment.
Since the service date of Charge 31–CA–28661, February 22, 2008, is past
June 30, 2007, Section 10(b) of the Act seems to potentially apply to the allegation concerning
the omission of merit increases awarded based on employees’ 2006 performance year.
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Since the service date of Charge 31–CA–28700, April 17, 2008, is not past June 30,
2008, Section 10(b) of the Act does not seem to apply to the allegation concerning the omission
of merit increases awarded based on employees’ 2007 performance year.
Since the service date of Charge 31–CA–29099, February 23, 2009, is not past
June 30, 2009, Section 10(b) of the Act does not seem to apply to the allegation concerning the
omission of merit increases awarded based on employees’ 2008 performance year.
The second aspect of a 10(b) tolling analysis is the question of whether or not the
Charging Party knew of the event or events underlying the relevant unfair labor practice charge
and complaint allegation. This is so because there is a body of decisional law addressing
various questions regarding special circumstances in which the commencement of Section
10(b) the 6-month limitation is held not to have occurred. The typical fact situation arising in this
context is the ignorance of the charging party of the facts underlying the conclusion that an
unfair labor practice committed by the respondent in the case had occurred. This argument is
raised by both the Charging Party and the General Counsel here and the underlying law was
argued by all parties.
The Respondent in its motion for summary judgment notes the Board in Moeller Bros.
Body Shop, 306 NLRB 191, 192–193 (1992), reiterated longstanding law that the Board will find
constructive knowledge sufficient to invoke Section 10(b) of the Act’s limitations where the party
involved did not act with reasonable diligence to discover unfair labor practices which could
have been discovered by such diligence. The Board also holds the corresponding notion that
Section 10(b) does not bar an allegation ‘‘that was not within the knowledge of or which could
not have been discovered by the charging part[y] with reasonable diligence,’’ Oregon Steel
Mills, 291 NLRB 185, 192 (1988), enfd. mem. (unpublished) WL 435373 (9th Cir. 1989), cert.
denied 496 US 925 (1990).
It is therefore appropriate to consider what the Union knew or should have known during
the critical period. The critical period here is the period of time, the extent of which is critical to a
10(b) 6-month analysis of the allegations concerning the calendar year 2006 performance-merit
increase nonpayment between knowledge or constructive knowledge and the filing of the
charge. Put another way, how much time is in issue, if the 6-month limit is to be applied?
Returning to the dates in question, if the theoretical toll date is June 30, 2007, how much time
after that passed before the filing of the charge? Since the charge in Case 31–CA–28661 was
served on February 22, 2008, 7 months and 22 days passed after the theoretical tolling date of
June 30, 2007. Thus the Union’s service of the relevant charge was 7 months and 22 days late.
The Charging Party and the General Counsel therefore need to establish through operation of
Board rules and decisional law, that the start of any 10(b) period was delayed by at least 7
months and 23 days. Applying that number of days to the event date established supra of
December 30, 2006, the Charging Party and the General Counsel therefore need to establish
that the 10(b) period was tolled until at least July 23, 2007.
Turning to the period in question, the Union organized employees in 2006, petitioned for
representation, and prevailed in the election of September 27, 2006. Thereafter postelection
matters were litigated and on March 8, 2007, the Board certified the Union as the unit
employees’ representative. In initial bargaining in mid-November 2007 the Union asked the
Respondent about its past practice respecting merit-wage increases and Zinser in initial
bargaining in mid-November 2007 told the Union in Caruso’s memory:
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[W]ell, all I can tell you is that some years—with regard to merit increases, some years
we do it and some years we don’t. We didn’t do it this year. . . . [I]t’s at management’s
discretion as to whether we do it or not.
Zinser sent Caruso a letter dated January 23, 2008, captioned: “Santa Barbara News Press
Merit Increases.” The letter noted in part:
As previously communicated to you, whether or not individuals are awarded merit
increases has been totally discretionary. In some years none are awarded at all. The
attached listing of newsroom employees and their increase history makes very clear that
from 2000 to the present, there have been several years in which no increases were
awarded.
The reason for the fact that merit increases were not awarded in certain years is strictly
a matter of management discretion. Management decided that it did not wish to award
increases in the particular calendar years.
Apodaca testified that the assertion in the letter was incorrect and that merit-wage increases
had been awarded to employees who were not wage capped and who a sufficient numeric
performance score in all years up to the Respondent’s decision not to pay performance year
2006 merit increases.
I have considered the arguments of the parties on the relevant motion for summary
judgment and the general assertion of the 10(b) time-bar defense. As noted supra, I find the
defense is temporally valid only for the 2006 performance year. The other two allegations for
performance periods 2007 and 2008 are proper in that their underlying charge were filed within
6 months of the events at issue.
Turning to the facially time-barred charge of Case 31–CA–28661 and the related
complaint allegation in paragraph 12(a) which alleges that the Respondent failed to grant its
employees a merit-wage increase in recognition of work performance during 2006, the issue is:
May the Union on this record be found to have known or be charged with knowing the
Respondent had omitted merit raises for the 2006 performance year at relevant times?
During the time relevant here, the Respondent had not recognized the Union as the unit
employees representative and the Union did not have designated agents or any official
institutional presence in the workplace, such as union stewards, aiding in the representation
process. And to the extent the Respondent did in time officially describe its practices regarding
merit-based wage increases to the Union, it incorrectly described those past practices of the
Respondent. I find therefore there was no official, institutional notice to the Union or one which
could rise to the level of institutional constructive knowledge by the Union of the facts underlying
the complaint allegation of paragraph 12(a).
The Respondent suggests that the prounion employees in the newsroom identified by
Steepleton as having met with him concerning their 2006 evaluations were specifically told by
him that there would be no raises based on those increases. Therefore, argues the
Respondent, through those individuals, the Union knew or should have known of the
Respondent’s omission of 2006 based increases at least by the time of these conversations
identified by Steepleton as in mid-February 2007. If the Union is held to have known at that
time or soon thereafter that there were to be no merit increases for performance year 2006, its
charge in Case 31–CA–28661 is out of time.
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I reject the Respondent’s argument on several grounds. First, I do not find individual
bargaining-unit employees at that pre-representational time rose to the level of agents of the
Union. What they knew could not be attributed to the Union absent direct evidence not present
here. Further, there is an important credibility issue with the testimony of Steepleton on this
issue. His claim to have told employees there would be no merit increase was denied by
employees and, importantly, he initially testified he clearly recalled telling the same thing to
employee Burns only to be forced to recant when Burns was established not to have been an
employee at the relevant time. I find that impeaching event—and Steepleton’s very
unpersuasive demeanor during the his entire testimony in these regards—renders his testimony
that he told employees there was to be no bonus fatally unreliable. I reject it and find that he did
not in fact make the important assertions he claimed. To the contrary, the employees who
testified that they were not told by Steepleton that there were to be no merit increases at all,
despite being associated with the Union, presented believable testimony and a convincing
demeanor during its delivery.
Based on this important credibility resolution and finding, I come to the same conclusion
the Board did in a very recent case, ABB, Inc., 355 NLRB No. 2 (January 22, 2010), affirming
the judge who found: “There is simply no credible showing the Union had clear and unequivocal
notice of the changes prior to that time. Thus, the charge was timely filed and is not barred by
the 10(b) statute of limitations.” (Slip op. at 9.) On the record as a whole, including the
testimony of the witnesses and in light of their demeanor, I reach the same conclusion. There is
no factual basis to find actual or constructive knowledge by the Union of facts sufficient to bar
the charge or the complaint allegation at issue under Section 10(b) of the Act. Mission Foods,
350 NLRB 356 (2007),
b. The merit increase allegations on their merits
(1) The Section 8(a)(5) merit increase allegations
The record establishes that the Respondent gave annual merit-pay increases from the
onset of its operations in 2000, through the merit increases granted for the 2005 performance
year. For the 2006 performance year and thereafter it has not given merit raises. The merit
raises involved for performance years 2000–2006 were based in significant part on performance
review numerical scores. The increases and the underlying performance evaluations were in the
period 2000–2006 awarded generally in the late part of the performance year or very early in the
following year. The record reflects instances where delays had occurred in the process for
individual employees and later merit increases were made retroactive. Employees scoring at or
above a certain numeric score received an increase which was a fixed percent of the
employees’ salaries. Those not scoring at or above the minimum received no merit increase.
Exceptions in the latter years were for those who had achieved a salary level that the
Respondent had “capped” thereby prohibiting increases above the cap level.
In Dynatron/Bondo, 323 NLRB 1263 (1997), the Board found that the employer had a
past practice of granting merit-based wage increases, and that the employer violated Section
8(a)(5) and (1) of the Act by refusing to bargain over the discontinuance of the program. In
determining that the raises at issue were an established past practice, the Board found the
following factors relevant: (1) the sole, fixed criterion for granting a raise was merit; (2) the
timing of the increase was fixed; (3) the amount of the raise, although discretionary, fell within a
narrow range; (4) the majority of employees received the increase; and (5) the increases had
been consistently granted over a significant period of time. Id. at 1264. The General Counsel
also cites Rural/Metro Medical Services, 327 NLRB 49 (1998), and United Rentals, 349 NLRB
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853 (2007), for the proposition that regular merit increases become a past practice which must
be bargained about and may not simply be unilaterally discontinued.
The unilateral change cases cited supra need not be repeated here. The Acts
requirement in this setting is not a prohibition against discontinuance of merit increases of
represented employees for a year or even permanently. It is rather the obligation to notify and
bargain with the Union respecting the proposed change. It is clear the Respondent did not do
so with respect to any of the three changes at issue herein: the discontinuance of the merit
increases for performance years 2006, 2007, and 2008.
The Board has from early days noted a business necessity or economic exigency
exception to the normal obligation to bargain to impasse or an agreement before implementing
a unilateral change as to a particular matter. See, e.g., Winn-Dixie Stores, 243 NLRB 972, 974
fn. 9 (1979), citing NLRB v. Katz, 369 U.S. 736, 748 (1962). This doctrine has been clarified by
the Board over time. Thus, the Board adopted the judge’s distinction between business
necessity and compelling considerations in Farina Corp., 310 NLRB 318, 321 (1993):
However, business necessity is not the equivalent of compelling considerations which
excuse bargaining. Were that the case, a respondent faced with a gloomy economic
outlook could take any unilateral action it wished or violate any of the terms of a contract
which it had signed simply because it was being squeezed financially.
The distinction was cited with approval by the Board in Hankins Lumber Co., 316 NLRB 837,
838 fn. 9 (1995). And Hankins held further at 316 NLRB 837, 838:
Accordingly, the Board recognizes as ‘‘compelling economic considerations’’ only those
extraordinary events which are ‘‘an unforeseen occurrence, having a major economic
effect [requiring] the company to take immediate action.’’ Angelica Healthcare Services
[Group], 284 NLRB 844, 852–853 (1987).
In establishing such a defense, the party attempting to prove economic exigency carries
a heavy burden. Our Lady of Lourdes Health Ctr., 306 NLRB 337, 340 fn. 6 (1992). Further the
exigency must be shown to have not been reasonably foreseeable. RBE Electronics of S. D.,
Inc., 320 NLRB 80 (1995), and to have a major economic effect that causes the employer to
take immediate action. Hankins, id. The Respondent never made such assertions of
‘‘compelling economic considerations’’ to the Union at relevant times, but rather on several
occasions noted that decisions respecting the granting of merit pay increases due in the coming
months remained under consideration by the Respondent.
Given all the above, the arguments of the parties, and the record as a whole, including
the testimony of the witnesses and the demeanor-based credibility resolutions made supra,
I find that the Respondent had a uniform practice of granting merit raises to employees based
on evaluations of the preceding calendar year having done so without exception from its
commencement of operations in 2000, through the 2005 performance year. I further find that at
the end of the 2006 performance year, a time when the Union represented unit employees, the
Respondent unilaterally determined not to grant merit raises. I further find it continued to breech
its previous practice for performance years 2007 and 2008. The Respondent did not notify or
offer to bargain with the Union with respect to any of these cessations.
Based on these findings, I find that the Respondent, with respect to each year alleged in
the complaint, failed and refused to bargain with the Union concerning its cessation of its
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practice of granting merit wages to unit employees in violation of Section 8(a)(5) and (1) of the
Act. I shall therefore sustain the relevant allegations of the complaint.
(2) The Section 8(a)(3) merit increase allegations
The General Counsel has alleged and argues in support on brief that the merit wage
discontinuance discussed supra was motivated by animus against the represented employees
for having selected the Union and in order to discourage employee union activities generally.
The evidence and argument offered is in essence: (1) the general animus alleged in the instant
case much of which occurred contemporaneously with the cessation of the merit increases and
(2) the lack of any explanation offered by the Respondent for the cessation coupled with the
deceit of the Respondent in asserting falsely, in writing to the Union, that there was no
consistent historical pattern of granting merit wage increases when in fact there was.
The Respondent emphasizes the uncontested fact that all employees of the Respondent
were equally affected by the Respondent’s business decisions to not grant merit wage
increases for performance years 2006–2008, and that the nonunit employees represent by far
the larger fraction of individuals involved. Counsel for the Respondent argues further that
economic conditions were deteriorating and additional cuts occurred in later periods.
The General Counsel’s 8(a)(3) theory of violation again invokes a Wright Line analysis.
Addressing the General Counsel’s threshold burden, I find the government has not provided
sufficient evidence of discriminatory, animus based intention to sustain that initial burden. The
General Counsel’s barebones reliance on the general course of the Respondent’s conduct is
insufficient as to this allegation. While I grant both the widespread course of the Respondent’s
violations which include multiple examples of animus-based 8(a)(3) violations, some closely
linked in time to the merit increase cessations, I do not find that general evidence and history
sufficient to sustain the Government’s burden here. This is especially true where, as the
Respondent correctly argues, the actions under scrutiny applied to all employees, the great
bulk of whom were not represented by a union and have not been shown to be engaged in
union activities on this record.
I shall therefore dismiss the 8(a)(3) theory of a violation alleged in the complaint
regarding this conduct
L. The Suspension and Discharge of Respondent’s Employee Dennis Moran
1. The allegations
Complaint paragraph 15(a) alleges that the Respondent suspended its employee Dennis
Moran on or about August 23, 2008. Complaint paragraph 15(b) alleges that the Respondent
terminated Moran on or about August 30, 2008.
Complaint paragraphs 17 and 18 alleges the actions alleged in paragraph 15 are
mandatory subjects of bargaining and the Respondent failed to notify the Union over its decision
to discharge Moran and failed to bargain with the Union regarding the suspension and
discharge of Moran.34 Complaint paragraph 20(c) and 25 allege the Respondent’s conduct in

34 The Regional Director for Region 31 notified the Respondent, by letter dated
October 28, 2008, that the Union in Case 31–CA–28890 had withdrawn with the Regional
Director’s approval, the portion of the charge alleging that the Respondent had violated Sec.
Continued
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these regards constitutes a failure to bargain with the Union in good faith and violates Section
8(a)(5) and (1) of the Act.
Complaint paragraph 23 and 25 allege that the Respondent’s conduct alleged in
paragraph 15 was undertaken because the employees formed, joined, or assisted the union and
engaged in protected activities and to discourage employees from engaging in these activities
and in so doing violated Section 8(a)(3) and (1) of the Act.
2. Relevant events
Dennis Moran began his employment with the Respondent as a copy editor on the news
desk in September 2005 and worked there for approximately 1 year when he transferred into
the sports department as a copy editor and sports writer. He worked in that capacity until his
termination on August 30, 2008. He described his duties in the sports department:
As a copy editor, your duties would include reading stories, copy editing them, writing
headlines, laying out pages for the computer program, taking phone calls from coaches
who were calling to report in the results of sports events. As a sportswriter, I would
cover sports events as directed by the sports editor and write feature stories.
During the period November 2007 until his discharge, Moran was a member of the
Union’s bargaining committee and, he testified, he was the only member of the bargaining team
still employed by the Respondent who regularly attended bargaining sessions. The
Respondent’s knowledge of Moran’s union activities at relevant times was not in dispute.35
In the period from Moran’s transfer to the sports department to April 2008, the sports
department was supervised by the sports editor, Barry Punzal. At the time of Moran’s transfer,
Punzal supervised seven full-time reporters/copy editors. Punzal was laid off on May 1, 2008.
Sports reporters, Blake Dorfman and John Dvorak, were assigned Penzal’s duties by associate
editor, Steepleton. Dorfman thereafter assigned the great majority of stories in the sports
department. Attrition in the sports department continued in the summer of 2008, until by August
2008, there were four employees in the sports department: Moran, Dennis Bateman, Dorfman,
and Mark Patton.
In late July 2008, Copublisher McCaw received an email from a longtime local reader
expressing unhappiness with the paper’s perceived inadequate coverage of local sports. In
particular the reader complained of the absence of coverage of a local golf tournament, “by the
way what happened to your sports reporters?,” and expressed disapproval generally at some
length concerning the sports section of the paper which had “dwindled to a 4 page joke.”
McCaw forwarded the email to Steepleton on July 29, 2008, with the note: “Fan mail . . . You
might want to respond.”36
_________________________
8(a)(1) and (5) of the Act by failing to notify the Union prior to suspending employee Moran.
35 In a January 2008 letter distributed to employees, Moran was identified by the
Respondent’s director of human resources to employees as one of two employee “newsroom
union reps.” Copies of the letter were sent to the copublishers and to associate editor, Scott
Steepleton.
36 Steepleton testified he could not recall if he had investigated the particulars of the paper’s
coverage of the golf tournament mentioned in the email.
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Blake Dorfman testified that, at Dorfman’s request, Steepleton met with the then-four
employees who constituted the sports department staff two days later on July 31, 2008, to
address Dorfman’s concerns over the lack of staffing in the sports department and the
difficulties that would arise when he left to attend the China summer Olympics that year leaving
only three staff members in the sports department for that period. Dorfman testified he told
Steepleton at the meeting:
Scott, we are understaffed and we need more bodies in the Sports Department and they
need to be trained up by the time football season starts, and training takes a long time,
so we need to get them in as quickly as possible. Also, we need to go over scheduling.
We need to go over scheduling issues with a four-person Department because that’s a
tricky puzzle to put together.
Dorfman recalled that the August sports department schedule was prepared at this meeting.
There would be three people left in the Department and if each person is to get two days
off or even a day off there needs to be at least two people putting out the Section every
day. So, we tried to go over how those three people would be spread scheduling wise.
Because of the short staffing, the August schedule did not include assigning individual
events to particular staff members. Dorfman testified he had not assigned anyone to the
upcoming 2008 Santa Barbara Classic Golf Tournament any time prior to this meeting and it
was not discussed nor assigned at the meeting itself. As Dorfman wrote to Steepleton in an
email reviewing the meeting, he considered the sports department as then staffed to be in a
“desperate situation.”
In the summer of 2008, Richard Chavez was the director of the Santa Barbara Golf Club.
That institution hosts the Santa Barbara Classic, a longstanding annual event of some
importance to the local sports and golf community. The 2-day event is regularly held the first
weekend of August, which for 2008 was Saturday, August 2, and Sunday, August 3. Chavez
testified that in connection with the then-upcoming tournament, in mid-July, he “called Kevin
Merfeld who was the sports writer for the News-Press and left a message on his recording.” He
testified he called Merfeld:
Because [Merfeld] had been writing most of the articles for the tournaments. We have
four major tournaments a year. I like to make sure the News-Press covers those
tournaments, so I call him in advance.
In Chavez’ testimony, Merfeld, who had resigned or was in the process of resigning in
July, never returned Chavez’ call. On or about July 29, 2008, Chavez called the Paper again.
He testified he reached an individual in the sports department with the first name of Dennis. He
did not learn Dennis’ last name. Chavez testified:
Well, if I remember correctly, I believe that I called and told him that I had called Kevin
[Merfeld] and he had not responded. He told me that Kevin was no longer employed.
I told him that the reason for the call was that we were having a large tournament on that
weekend and I wanted the News-Press to cover the tournament. . . . He said that they
were short handed and that they would not be able to cover the tournament with a sports
writer coming out to the golf course, which is what they usually do. So I told him, no
problem, could I send you the results and we can get it in the paper, and he said yes, he
would.
Q. Okay. And was that the end of your conversation?
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A. I believe he told me to fax the information to him and that was it.
The two then-sports department employees working on July 29, 2008, Dennis Moran and
Dennis Bateman, each testified he had no recollection of speaking with Chavez or speaking
about the Santa Barbara Gold Classic Tournament with anyone at that time.
On Saturday, August 2, 2008, the first day of the tournament went forward and Chavez
testified he sent the results of the day to the Paper by facsimile transmission. The following
day, August 3, the second day of the tournament went forward. Chavez heard from Tournament
participants that there had been no coverage in the days News-Press. Chavez at the end of the
tournament that day again sent the results into the News-Press by facsimile transmission. On
the following day, August 4, 2008, Chavez discovered that the News-Press had not covered the
tournament in that day’s paper either. Chavez testified he was displeased by the absence of
coverage and “instantly” called Copublisher McCaw. He was unable to reach her but was able
to leave a message on her answering machine. He described the message:
I explained to her that I had done the radio show for her and that I felt that the least the
newspaper could do was to cover my tournaments, and so I was very upset that it hadn’t
happened. They told me it was going to happen and it didn’t happen. And I was
irritated.
McCaw had received an earlier email on Sunday, August 3, 2008, from a subscriber to
the Paper complaining of the Paper’s omission to cover and report in that day’s Paper the
results of the Classic Tournament. She forwarded the email to Steepleton at 8:07 a.m. the
following day, Monday, August 4, 2008, under an “FYI” reference. Steepleton responded by
email to McCaw at 6 p.m. later that day, August 4, 2008, which email stated in its entirety:
Wanted to let you know that Brad Cheng pulled me aside today to inform me that word
on the street is Blake [Dorfman] is not returning to the News-Press after China. (This
would go against what Blake had said and what Lee says.) Also, Brad Cheng says he
hears the “plan” among sports reporters is to stage a walkout and launch a sports Web
site in Santa Barbara.
Patton says he is happy here. We have Trenchard that we can pull off Scene; we have
Tony Peck; we have Bateman. And I have at least two people in the works in the
writing/designing ranks. We also have the stringer ad that should break any day.
McCaw responded to this communication by email at 12:15 p.m. on August 5, 2008. The email
stated:
Have you discussed this with Blake [Dorfman]? I think you must ask him if the rumor
you heard is true. Please let me know what he says.
Also, there was no local sports coverage at all in Sunday’s and Monday’s papers. On
Saturday there was a staff report that didn’t appear online and Patton’s column.
There were no results of the Formula One race in the Monday paper. I believe the paper
is being sabotaged. We need to discuss this tomorrow when you are back at the paper.
Steepleton testified he then met, still on August 5, with Dorfman at the Respondent’s
facility and in essence confronted him with the rumors he had reported to McCaw. Dorfman in
his memory denied all and professed loyalty and affection for the Respondent. Dorfman in
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testifying in the instant proceeding admitted that his statements to Steepleton in this
conversation were mendacious. Steepleton then responded to the quoted McCaw email with an
email reporting on his conversation with Blake Dorfman earlier that day in which Dorfman
denied all aspects of the matters attributed to him, professed loyalty to the Paper and stated his
intention to remain with it. McCaw did not testify.
Chavez testified he received a return telephone call that same day he called McCaw,
August 4, 2008, from Copublisher Authur von Wiesenberger. Chavez told the copublisher of his
earlier conversation with the un-last-named “Dennis,” his transmission of the tournament results
to the Paper and the subsequent failure of tournament coverage in the Paper. Chavez was
emphatic in his testimony that he did not know and certainly did not identify to von
Wiesenberger in this telephone call the last name of the Paper based caller he identified as
Dennis. Chavez further recalled that in this telephone call he also expressed his hope and
desire that the two upcoming Women’s and Junior Tournaments would receive proper press
coverage in the News-Press. In Chavez’ memory, von Wiesenberger was apologetic on behalf
of the Paper and assured Chavez that the upcoming two tournaments of concern to Chavez
would be covered by the Paper.37
Steepleton testified that on August 4, 2008 he got a telephone call from von
Wiesenberger relating the complaints of Chavez which Steepleton recalled as:
Dennis had apparently told Mr. Chavez that we would cover it, and [von Wiesenberger]
was upset that we didn’t follow through with what Dennis had told Mr. Chavez apparently
that we would do.
Steepleton replied that he “would figure out why we didn’t cover it and that if there is anything
we could do to get something in, we’ll get something in.” Von Wiesenberger also sent an email
to Steepleton on August 5, 2008, at 1:21 p.m., with the following opening paragraph:
I spoke with Richard Chavez at the Santa Barbara Golf Club. He was one (of many)
who was upset with the lack of coverage of the Gold Tournament even though he had
faxed information over to the paper. He was also the one who spoke to Dennis Moran.
The email also made suggestions to Steepleton on how to insure proper coverage of the then-
upcoming Women’s Classic Golf Tournament. Steepleton responded at 4:12 p.m. the same day
that he would take the copublisher’s recommended actions to cover the event and he noted he
would contact Chavez. Authur von Wiesenberger did not testify.
Steepleton testified that after sending the above quoted email he almost immediately
telephone Chavez and offered apologies for the Paper’s coverage failure. He indicated to
Chavez that von Wiesenberger had told him of the problem and Chavez confirmed he had
spoken to von Wiesenberger. Steepleton also recalled he asked Chavez for the details of the
mix-up. Chavez told him that he had spoken on the telephone with the Paper’s employee,
Dennis, about coverage of the Classic and had been told to send in the results to the Paper’s
facsimile phone line. Steepleton could not recall whether Chavez initiated providing Dennis’ last
name or if Steepleton asked him what it was but, in either event, Chavez, in Steepleton’s
testimony, told him the individuals full name, he thought, was Dennis Moran. The conversation

37 The Women’s Classic was to occur on the following Wednesday and Thursday, August 6
and 7, 2008, and the Junior Tournament was to occur on Thursday and Friday of the next week,
August 14 and 15, 2008.
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turned to the upcoming Santa Barbara Women’s Open and the Santa Barbara Junior
Tournaments. Chavez asked for coverage of those events and Steepleton assured Chavez the
Paper would cover them. Chavez generally recalled having a discussion with an employee of
the Respondent as Steepleton had described, although Chavez’ memory on the specifics of the
call was vague. Chavez was, however, quite clear, even emphatic, that in all the
communications concerning these events, he did not ever provide Dennis’ last name to anyone
because he had never learned it.
After the call, Steepleton arranged to have the Women’s Classic Tournament covered.
Chavez testified that the Paper had a reporter present at the Women’s Classic Tournament and
the event was covered in the Paper “very well.” Without being able to recall the specifics, he
testified that he learned the Paper would not be able to have a reporter in attendance during the
Junior Tournament and that he should fax the Junior Tournament results to the Paper’s
facsimile telephone each day. Chavez did as instructed, but the Junior Tournament which was
held on August 14 and 15, 2008, received no coverage in the Paper in the following days.
Soon thereafter, Chavez testified he called Steepleton at the Paper for an explanation.
Steepleton told him that the facsimiles Chavez had submitted to the Paper respecting the Junior
Tournament were unintelligible. Chavez thereafter personally delivered the Junior Tournament
results to the Paper and the Junior Tournament was covered in the Paper the following day.
Steepleton testified that in mid-August he spoke to Dennis Bateman at the Paper. He
recalled asking Bateman if he had spoken to anyone about the Santa Barbara Gold Classic.
Bateman answered no. Steepleton then asked him if the name Richard Chavez rang a bell with
him and again Bateman answered it did not. Bateman testified he had no memory of this
conversation with Steepleton , but that since he would have regarded it as of no particular
significance, he could not be positive it had never occurred. He did recall he told Steepleton
that he in fact had never knowingly talked with an individual named Richard Chavez or even
recognized the name Richard Chavez. Further he was sure he had talked to no one at all about
a golf tournament.
A few days later, Steepleton testified he spoke to Dennis Moran at the facility.
Steepleton recalled that he told Moran:
That we missed a big golf tournament, that I understand that he may have talked to
somebody about it, and I wanted to figure out—this is important to us and I want to figure
out why we didn’t cover it. . . . He told me that he talked to Richard Chavez about the
tournament and that he had also talked to Mr. Chavez about Mr. Chavez sending in the
scores by fax. He said at one point that he talked to Mr. Chavez about perhaps us not
being able to cover it because a guy that had been covering golf, Kevin Merfeld, was no
longer with the newspaper and that he didn’t know if we would be able to get somebody
out there on site to cover it, or at the golf course to cover it. . . . He apologized. He said
something about it could have slipped through the cracks. I asked him if he had done
any follow up to try to get the fax scores or since he didn’t get the fax scores if he had
followed up with Mr. Chavez at all to try to get the fax scores, or the scores faxed in, I’m
sorry, and he said he hadn’t.
Moran also testified to a conversation with Steepleton on or about August 16, 2008 at
the facility. He characterized the conversation far differently from that described by Steepleton
above. Moran denied that he was asked by Steepleton about the Santa Barbara Golf Classic
Tournament or about knowing Richard Chavez. Moran testified he had had no dealings with
Richard Chavez since covering a single golf tournament in May of 2007, and that he had never
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covered the Classic at anytime and had not had any contact with anyone in 2008 regarding the
Classic nor had he been assigned to cover the tournament for the Paper. Rather, Moran
recalled, the conversation with Steepleton concerned only the circumstances of how faxed
Junior Tournament results could have been received by the Paper and yet the event had not
been covered in the Paper. Moran recalled he related that some fax results had been received
but that they were illegible and could not be used as the basis for coverage.
By email to editor Travis Armstrong and Yolanda Apodaca dated Friday,
August 15, 2008, at 12:12 p.m., Blake Dorfman announced his resignation effective at the end
of his Beijing-based coverage of the Olympic Games. The email was forwarded under a “FYI”
reference by Apodaca to each of the copublishers and to Steepleton.
On August 23, 2008, a formal meeting to review the circumstances surrounding the
Classic Golf Tournament coverage was conducted by Steepleton. Also in attendance were
Norman Colavincenzo, the Respondent’s chief financial officer, Yolanda Apodaca, and Moran.
Steepleton testified:
I said, “Dennis, I need to follow up on some things regarding the Golf Classic, and what
we had talked about in the earlier meeting. I just want to double check that you did talk
to Richard Chavez about this and said that we would cover this.” He, Dennis, said that,
“Maybe it was Mark Patton who talked to him.” I said, “Mark Patton?” Dennis then—I
said to him, “That’s different than what you told me in my office. You didn’t talk to him?”
And then he said, “Well, you know what, maybe I did. Maybe it was me who talked to
him.” I said, “Did you tell Mr. Chavez that we could not cover it, and that Kevin Merfeld
was no longer with the newspaper and that he would have been covering golf?” He said
that he had. I said, “Do you understand that I’m the one that decides who we send to
cover things, what we cover, how we cover things, when we cover things?” He said,
“Yes, I do.” I said, “It’s clear to you that—”I think I said, “that I’m the one that makes the
decisions?” He said, “Yes.” And that would be my recollection.
Steepleton recalled that at the end of the meeting he told Moran that he was going to be placed
on indefinite suspension. Steepleton further testified that at the conclusion of the meeting, he
had no current intention to terminate Moran. He testified: “I had no plan at that point. . . . It
could be a suspension. It could be a written reprimand, I was taking into account a lot of
different things.”
Steepleton also testified that his fellow managers, Colavincenzo and Apodaca, took
notes of the meeting and that immediately after the meeting the three reviewed the notes and
created a single document that was “the most accurate representation of the verbal exchange at
that meeting.” The notes, in evidence as Respondent’s Exhibit 805, simply do not track the
testimony of Steepleton regarding the statements of Moran quoted above. Importantly in the
notes, Moran throughout the meeting denies that he had any knowledge of or dealings
regarding the golf tournament and denied having talked to Chavez before the tournament and
denied ever telling Chavez at any time that Kevin Merfeld was no longer an employee of the
Respondent.
Moran described the meeting at trial:
Well, Mr. Steepleton brought up again the golf tournament and asked me if I had told
Richard Chavez before the golf tournament that we would not be able to cover the golf
tournament this year because our staff was reduced and Kevin Merfeld had left the
paper and he was our golf writer. . . . I said I had no recollection of talking to Richard
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Chavez and that I’m certain I didn’t tell anyone that Kevin Merfeld had left and that we
wouldn’t be able to cover this event. . . . [A]t some point in the meeting he told me that
decisions on what to cover should have gone through him. . . . I remember telling him
that because our staff was reduced there were a number of things we weren’t covering
that we normally would have because we went from eight people to three people in a
fairly short period of time. . . . [Steepleton] told me at the end of the meeting that I was
being suspended while he investigated this. And then Yolanda Apodaca said she would
escort me out. . . . [S]he escorted me out and at the door I told her that I would tell her if
I remembered anything else, but that the golf tournament I remembered was the Santa
Barbara City Championships in May, and I didn’t have prior knowledge of the Santa
Barbara Classic.
Norman Colavincenzo did not testify. Apodaca did not testify regarding this meeting.
There is no dispute that the Respondent did not notify nor offer to bargain with the Union
regarding the Moran suspension before its decision and implementation of the decision to
suspend Moran. On August 23, 2008, Caruso sent a letter to Zinser regarding the Moran
suspension. The letter sought immediate rescission of the suspension, restoration of any lost
pay and that the Respondent “agree to negotiate over this action before implementation if the
News-Press wishes to persist with it.”
Zinser responded with a letter dated September 2, 2008, a time after the suspension of
Moran had been converted to a discharge. The letter acknowledged the Union’s
August 23, 2008 letter and advised that the Respondent had no obligation to bargain over any
discipline relating to Moran or the Respondent’s maintenance of discipline consistent with the
status quo. The Respondent, the letter asserted, was “maintaining the dynamic status quo that
has always existed.” The letter also noted the discipline and discharge of Moran were for cause
and rejected the Union’s proposal to rescind the discipline of Moran.
Blake Dorfman testified that by early July 2008, he had determined he was going to
resign his employment with the Respondent but concealed that fact from the Respondent in fear
of jeopardizing his newspaper credentials for the China Olympics starting in August. Dorfman
after considering the matter and changing his initial testimony concluded he had left for China
on August 5 or 6, 2008.
Dorfman’s Board prepared pretrial affidavit asserted he had:
received a call about August 7th from a gentleman who was irate, who said he was the
founder of the tournament—this is the Santa Barbara Golf Classic—30 or so years ago
and he was very upset that the News Press was not covering the event because it
always had somebody there. . . . I don’t know the name of the caller. I know it was not
Richard Chavez. . . . I told the caller I was sorry and I referred the caller to Scott
Steepleton.
Under cross-examination Dorfman testified the call took place before he left for China and
therefore must have occurred at an earlier date than the affidavit asserted.
Dorman testified that just before he left for the Olympics, knowing he would not be
returning to the Respondent’s employ when he came back from China, he:
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stayed late that night after we put the Paper to bed and filled a couple of boxes with
personal knickknacks from my desk and pulled my Jeep—or pulled my car up to the
loading dock there so I didn’t have to carry it too much and loaded up the car.
As noted, supra, Dorfman resigned his employment with the Respondent by email from China
on August 15, 2008.
Dorfman returned from China on or about August 25 and telephoned Apodaca some few
days late in late August 2008. He recalled:
She said I have—there’s something you need to sign as far as—I think it was about my
last paycheck, something I needed to sign along those lines and then also she asked if
I needed any personal items from my desk. I said, no, I already asked Dennis Moran to
grab some stuff from my desk and don’t worry about it.
Dorfman added: “I said that he had grabbed some stuff from my desk for me.” Apodaca
recalled that Dorfman told her that he did not need to collect his personal things because
“Dennis Moran had already cleaned out his desk.”
Apodaca reported to Steepleton, Dorfman’s statements and asked him to check on the
contents of Dorfman’s desk. Steepleton did so. He testified that at the earlier time he had
discussed the rumors of Dorfman leaving the employ of the Respondent just before he went to
China, as discussed supra, he had inspected Dorfman’s desk and it was full of the normal
accruements of journalism, but when he inspected the desk a second time at Apodaca’s behest,
the desk no longer had any personal contents and was missing all the previously present
notebooks.38
Steepleton testified that he believed Dorfman’s statement to Apodaca as reported by her
to him, i.e., that Moran had cleaned out Dorman’s desk. When he saw that Dorfman’s
notebooks, which Steepleton regarded as proprietary material, had been taken, he assumed
Moran had taken them. In consequence Steepleton determined to terminate Moran. Dorfman,
who was on suspension and not allowed on premises, was never contacted by the Respondent
respecting the Dorfman desk events. As noted, supra, Dorfman has emptied his desk on his
own, before travelling to China and there is no doubt on this record that Moran had no
participation or even knowledge of the “desk clearing” events that actually occurred, the story
Dorfman had told Apodaca or the Respondent’s belief that he was complicit in those events.
A letter was prepared over Steepleton’s signature dated August 30, 2008, terminating
Moran. Moran—on indefinite suspension and away from the facility—was telephoned by
Steepleton that day. Moran testified:
. . . [Steepleton] told me that his investigation was complete and that unfortunately they
were letting me go. . . . I asked him why, and he said that would be explained in a letter
and that I could come by and get it. He told me to come to the rear employee entrances
of the News-Press that afternoon and ask the security guard for Yolanda who would
come and give me the letter.

38 Steepleton described a reporter’s notebooks as containing:
Story notes, Story ideas. Telephone numbers of sources, names of sources.
Maybe planning notes for stories down the road, I mean all sorts of information that
[a] reporter needs to write stories for us.
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Q. Did you go to the News-Press that day?
A. I did.
Q. What happened when you arrived at the News-Press?
A. Well, Scott himself came to the back door and he smiled and shook my hand and
gave me the letter. He asked me if there were any personal items at my desk that I
wished to have, and I said I couldn’t think of anything of any importance, and that was it.
The letter asserted, inter alia, that Moran was discharged because of his dishonesty, his
failures concerning the Classic Golf Tournament coverage, his improper disclosure to Chavez
that former employee Merfield was no longer employed by the Respondent, his improper
disclosure to Chavez that the Respondent did not have the sport staff to cover the Classic
Tournament, failures of instruction and follow-through respecting the faxing of scores, and other
assertions of misconduct. As to the Dorfman desk matter the letter noted:
You have never been given authority by anyone in management to assist Mr. Dorfman in
the removal of proprietary information or any material from Mr. Dorfman’s prior desk
belonging to the News-Press. You know that Mr. Dorfman is planning on setting up a
competing business in reporting local sports. Your removal of this material in secret and
failing to even ask Human Resources or any member of management of this activity
speaks more to your dishonesty.
Moran’s employment was terminated effective September 16, 2008. There is no
evidence Moran ever knew anything about the desk episode, or was ever asked by Respondent
about his role in the desk emptying episode, or that the Respondent ever attempted to obtain
from him any of the desk’s missing contents or sought to learn if he had or could locate such
materials.
Both Steepleton and Apodaca testified that had the Respondent known that Dorfman
lied about Moran cleaning out Dorfman’s desk, Moran would still be employed by the
Respondent. Counsel for the Respondent contends on posthearing brief at 150 that the
Respondent only learned that Dorfman had lied to Apodaca regarding that matter on
June 1, 2009 at the hearing in the instant case. As of August 21, 2009, the final day of hearings
in this matter, Moran had not been offered reinstatement by the Respondent and his discharge
remains in issue.
3. Analysis and conclusions
a. Threshold resolution of factual conflicts and credibility issues
The record respecting the Moran allegations present several significant factual conflicts,
some of which are a consequence of different testimony regarding specific events. My
resolutions here as elsewhere in this decision, turn on consideration of the record as a whole,
the arguments of the parties and, my consideration of the witnesses’ demeanor during their
testimony.
Of the greatest significance to the resolution of the factual dispute is the issue of what
Chavez reported regarding the last name of the individual “Dennis” with whom Chavez had the
conversation which essentially initiated the relevant events. That conflict involves the testimony
of Chavez, the speaker, and Steepleton, the listener, regarding whether or not Chavez identified
Moran as the “Dennis” involved. Also of importance is the divergence of versions of
conversations had between Steepleton and Moran regarding the events. I shall deal with the
credibility of each of the three witnesses first.
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Richard Chavez testified to the various conversations he had as discussed supra. The
critical element for the instant dispute was whether he had ever provided the last name of the
individual “Dennis,” with whom he had had an earlier conversation, to agents of the
Respondent, McCaw, von Wiesenberger, or Steepleton. Chavez testified with some conviction
that in his conversation with Dennis he did not learn his last name, he never learned his last
name and he, in consequence of this ignorance, did not provide his last name to anyone.
Pressed on the matter of whether or not he had discussed “Dennis” in various conversations,
Chavez came to admit or concede the likelihood that he had done so with McCaw, von
Wiesenberger, and Steepleton. He resisted however any suggestion that he had given Dennis’
last name to anyone or in some other way identified him as a specific individual.
Chavez, at the time of his testimony a recently retired head of the Santa Barbara Golf
Club, was on this record an unbiased neutral without a stake in the outcome of the litigation and
without any apparent hostility to any party or to the “Dennis” involved in the events. I was
impressed with his serious attention to the questions presented to him and to his answers. He
was willing to admit his memory as to certain matters was not complete and to have that
memory refreshed. He did not however simply adopt attributions contained in leading questions
by counsel attempting to go beyond his refreshed recollection. I found him to be a believable
and an impressive witness, highly credible.
Suspecting the importance of the matter to the case, I was particularly attentive to the
portion of Chavez’ testimony respecting his communication or noncommunication of Dennis’ last
name to anyone. A subject that was revisited by counsel throughout his testimony. I found
Chavez’ testimony to be consistent and believable without being defiant or stubborn. Based on
his testimony and demeanor, I came to believe that Chavez was both telling the truth as he saw
it and that the way he saw it was based on a strong memory of that aspect of the events.
Witnesses’ memories of events which allow the rememberer to state that a thing did not occur
or that a statement was not made must be cautiously evaluated. I have done so here and
remain convinced Chavez was that rare witness who was able to persuasively make such a
claim as to Dennis’ last name here. I credit him in full and specifically find he did not at anytime
know and therefore did not and, indeed, could not have repeated Dennis’ last name to anyone
during the events and conversations at issue.
Credibility resolutions do not take place in a vacuum. Any opposing evidence including
opposing testimony is properly considered in resolving credibility. I have done so in this case in
making the resolution immediately above. For purposes of organizational clarity, I address
those conflicting areas.
Scott Steepleton testified that Chavez identified the Dennis of these events as Dennis
Moran in his conversations with him. As noted, Chavez denied this was so. I found Steepleton’s
testimony concerning his memory of events and conversations during this proceeding to be
simply unreliable. Concerning another element of the complaint, he testified to having had a
performance evaluation meeting with an employee in 2007, only to recant when braced by the
fact that the employee in question had left the Respondent’s employ in 2006. Steepleton
attributed statements to Dennis Moran in a meeting with management on August 23, 2008, that
were importantly inconsistent with Moran’s testimony and more importantly with the notes of the
meeting prepared by Steepleton’s fellow management meeting attendees and reviewed by him
immediately following the meeting. Steepleton’s memory did not serve him well, missing the
mark in important ways.
In observing Steepleton’s demeanor during his testimony, I found he appeared quite
anxious when asked to give testimony of events and conversations relevant to the issues in
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dispute herein. His seeming doubts in my view reflected a lack of confidence on his part
regarding the accuracy of his testimony in these regards and very much undermined my
confidence in his credibility as well. I had no doubt and here specifically find that Steepleton’s
credibility was very significantly less than that of Chavez and I credit Chavez over Steepleton
wherever the two witness’ versions of events differed.
The noted McCaw and von Wiesenberger email to Steepleton merits consideration and
analysis. Chavez’ very first report of his experiences with Dennis were his phone message left
for Publisher McCaw. While Chavez’ message likely reported his dealing with the no last name
Dennis, there was no evidence of Chavez’ use of Dennis’ last name in this communication left
for Copublisher McCaw. McCaw did not testify.
Other matters, not fully fleshed out on this record, were being discussed between
McCaw and Steepleton. As set forth more completely supra, Steepleton had reported to
McCaw that there were rumors of a “plan” among sports reporters is to stage a “walkout.” At
that time, with Dorfman days away from leaving for the China Olympics, there were only three
sports writers: Dennis Moran, Dennis Bateman, and Mark Patton. Steepleton’s email to
McCaw further asserts that in evaluating who would be “with” the Respondent in such a walkout:
“Patton says he is happy here. . . . [W]e have Bateman.” Moran’s name is omitted. McCaw
responds with an email to Steepleton sent at 12:15 p.m. on August 5, 2008, noting recent
problems in sports coverage and concluding: “I believe the paper is being sabotaged. We need
to discuss this tomorrow when you are back at the paper.”
It is clear and was surely clear to McCaw at that time, who as copublisher was involved
in newsroom matters and also in the employer/union disputes at the Paper, that (1), if there was
a chance of a walkout of sports department employees and/or sabotage of sports coverage,
and, (2), if, of the three sports department employees who would be working, two were regarded
as allies by Steepleton, then the third sports employee, Dennis Moran, was the potential
walkout and the saboteur. Further management would have well known that Moran was also a
union representative in the newsroom. Put another way, there were two Dennis’ in the sports
department, Bateman and Moran. Bateman was an ally, Moran was the union representative.
Clearly in management’s view Moran was the Dennis who had spoken to Chavez and was
responsible for the sabotage. Since these is no credible evidence tying him to these events,
his union activities are the only factor on this record the Respondent’s agents would be
considering.
The two copublishers were actively involved in dealing with the Chavez matter in this
period. The record shows at relevant times they were also affianced. I do not find it
unreasonable to assume the two were in communication regarding these goings-on on that
Tuesday, August 5, 2008.
At 1:21 p.m. on August 5, 2008, 66 minutes after McCaw’s email to Steepleton quoted
immediately above, von Wiesenberger’s email to Steepleton identified Dennis Moran as the
Dennis who had talked to Chavez. There was no other record evidence beyond that email that
Chavez used Dennis’ last name to Copublisher von Wiesenberger. And, importantly, von
Wiesenberger did not testify.
Considering all the above, I find that the unexplained email assertion in Copublisher von
Wiesenberger’s email that Dennis Moran was the person who had spoken to Chavez is not
supported by credible evidence and is not in and of itself persuasive evidence of the fact
asserted therein.
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Turning to the conflict between Steepleton and Moran respecting their conversations
concerning Moran’s role in the golf events described above, I have discredited Steepleton’s
testimony above. I did so for the reasons asserted supra and because I found Moran to be a
persuasive witness regarding these events with a sound demeanor. As is set forth in detail
above, Steepleton attributed to Moran various essentially confessional statements regarding his
role in calling and talking to Chavez which attributions Moran credibly denied. The record
contains important corroboration of Moran’s denials of such attributions in the August 23, 2008,
meeting of Moran with Steepleton and his fellow managers Colavincenzo and Apodaca. The
management notes of the meeting track Moran’s version of the meeting in these important
aspects. Colavincenzo did not testify and Apodaca did not address what was said at this
meeting in these regards or the contents of the notes of the meeting.
b. Positions and arguments of the parties
The General Counsel argues that the suspension and discharge of Dennis Moran were
motivated by union activities and invokes the analytical framework established in Wright Line,
251 NLRB 1083 1089 (1980), as developed and applied in considering various 8(a)(3)
allegations, supra. The General Counsel develops the Wright Line procedures in some detail.
Counsel for the General Counsel on posthearing brief cites the Board’s decision in Pacific
Design Center, 339 NLRB 415 (2003), in which the Board approved the holding of Judge Lana
Parke respecting the General Counsel’s prima facie case in a Wright Line analysis (339 NLRB
at 418):
The prima facie case may be established by proving the following four elements: (1) the
alleged discriminatee engaged in union or protected concerted activities; (2) Respondent
knew about such activity; (3) Respondent took adverse employment action against the
alleged discriminatee; and, (4) there is a link or nexus between the protected activity and
the adverse employment action. Hays Corp., 334 NLRB 48 (2001).
The government asserts that the first three of the quoted elements of the General Counsel’s
prima facie case are not in dispute and focuses on the fourth element, establishing a link or
nexus between the protected activities and the adverse actions taken.
The General Counsel then cites various factors which counsel argues gives rise to an
inference that an employer acted with antiunion motivation with citation of Board authority for
each factor asserted. Those factors, as set forth in the General Counsel’s posthearing brief at
163-164, include:
ï‚· Expressed hostility toward the protected activity
ï‚· Abruptness of the adverse employment action
ï‚· Suspicious timing
ï‚· Pretextual reasons given for the adverse employment action
ï‚· Disparate treatment
ï‚· Departure from past practice
ï‚· Shifting defenses
Finally, the General Counsel notes, as has been discussed supra in several Wright Line
analyses, if the government establishes its prima facia case, the burden shifts to the employer
to demonstrate that the adverse action taken would have been taken even absent protected
activity. The government emphasizes however that the employer must demonstrate that the
same action would have, not just could have, been taken in the absence of the protected
conduct citing Hicks Oil & Hickgas, Inc., 293 NLRB 84, 85 (1989).
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The Respondent agrees the correct analytical framework for resolving the suspension
and discharge disputes is the Wright Line formulary. The Respondent argues correctly
however, with numerous Board and court citations supporting the proposition, that employers
are free to make and enforce employee rules, to investigate misconduct and to discipline and
discharge employees, indeed to do so for any or no reason save for protected reasons. Further
protected activity is not a grant of immunity sheltering an employee or employees from having
misconduct addressed to and including discipline and discharge. Counsel for the Respondent
argues in effect that the citations of the government’s cases asserting general principles do not
necessarily apply to the instant case, but rather are distinguishable on the facts involved herein.
The heart of the parties’ arguments regarding the suspension and discharge of Moran
are factual. The parties on brief and at the hearing acknowledged the analytical principles
involved under Wright Line and related cases and have marshaled and cited the lead cases
regarding them. They each correctly assert however that the application of those principles to
the complex facts involved in the relevant events is where the instant dispute must be resolved.
It is to the party’s factual arguments that I now turn.
The General Counsel argues that there is a clear link between Moran’s union activity
and the suspension and discharge he received. Thus counsel argues Moran was the Union’s
newsroom representative at relevant times and one of the few employees—as opposed to
former employees—active on the Union side in bargaining. The government directs attention to
the very substantial and ongoing hostility of the Respondent to the Union and to employees
supporting the Union and the long string of unfair labor practices committed by the Respondent
against the Union and union supporting employees as adjudicated in the instant case.
The Respondent notes that these arguments, which it also contests respecting the
assumption of improper respondent conduct as to other employees, rely on generalities that are
of no logical force. Thus the Respondent argues the status of Moran as a bargaining unit
committee member is not related to his suspension or discharge and there was simply no nexus
between any union activities and the discharge. The Respondent argues on posthearing brief at
161:
Moran was not engaged in union activities when he spoke to Mr. Chavez, when he failed
to bring the Santa Barbara Gold Classic Story to the attention of management, when he
unilaterally decided that the News-Press was understaffed and could not cover the
tournament, and when he failed to bring to anyone’s attention that Mr. Chavez would fax
in the scores.
The Respondent emphasizes that the occurrences that underlie the Respondent’s
unhappiness with events and its subsequent suspension and discharge of Moran were
developments concerning which it did not initiate but rather reacted to. And, the Respondent
asserts, the conduct at issue—both the circumstances involving Chavez and the golf coverage
and the unauthorized removal of the Respondent’s proprietary materials from Dorman’s desk—
was objectively as well as subjectively from the Respondent’s perspective worthy of discipline
including discharge.
The General Counsel focuses on the Respondent’s handling of Chavez’ and Dorfman’s
desk content removal matters arguing that no proper or balanced investigation of the events
took place and that the Respondent’s actions contained many of the traditional indicia of
contrivance and deceit. Thus the General Counsel argues the Respondent never established
that it had any basis for finding Moran, to be the un-last-named Dennis who called Chavez.
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Thus it did not treat the two sports department Dennis’ who were equally possible Chavez
conversants, equally. It essentially never investigated the Dorfman accusation that Moran had
taken the material from his desk, never asking Moran about the desk emptying assertion nor
asked Dorman to speak again to the desk emptying matter after informing him of the importance
of his previously lightly given statement that Moran did it. Finally the General Counsel argues
the Respondent misattributed statements and actions to Moran that he had essentially
confessed his guilt in order to justify its erroneous discipline of him, which accusations were
simply false and pernicious. Thus the General Counsel notes that Steepleton consistently
asserted that Moran had in effect admitted his guilt in the Chavez events, which assertions were
false and should be discredited. The government notes the Respondent’s counsel Cappello
falsely argued in his opening statement in the instant case that Moran “was also involved in
clearing out the desk of another employee who had resigned and then he denied it when he was
confronted” when there was never any evidence offered that Moran was ever provided an
opportunity to deny the accusation. And, the government notes, the record clearly established
that Moran had neither a role in nor even knowledge concerning the Dorfman desk clearing
incident.
c. Analysis and conclusions
The parties have correctly identified the Board’s Wright Line approach as the correct
manner of addressing these allegations. They have largely marshaled the applicable cases,
many of which have been cited in earlier Wright Line inquiries, supra, and immediately above. It
seems most appropriate to address the two separate allegations, the suspension of Moran and
the later discharge of Moran seriatim using the Wright Line framework. I shall consider the
challenged suspension first.
(1) The suspension of Moran under Section 8(a)(1) and (3) of the Act
As noted the government has alleged that Moran’s suspension was in violation of
Section 8(a)(3) of the Act, the Respondent strongly denies the allegation, and the parties
addressed the issue under Wright Line. Turning to the government’s case, I agree with the
government that the initial elements of the General Counsel’s prima facia case set forth in the
quoted portion of Pacific Design Center, 339 NLRB 415 (2003), above, are met. Thus: (1) the
alleged discriminatee engaged in union or protected concerted activities; (2) Respondent knew
about such activity; (3) Respondent took adverse employment action against the alleged
discriminatee. The remaining and disputed element then is the fourth element from the quoted
portion of that decision: whether or not there has been a sufficient showing by the General
Counsel on this record of a link or nexus between the protected activity and the adverse
employment action, here Moran’s suspension on August 23, 2008.
In order to determine the existence of a causal relationship, the specific union activity
involved must be identified. As the Respondent argues persuasively on brief causation is an
important issue. Thus the Respondent notes: Moran’s general union activities were and had
been ongoing for some time and had also long been known by the Respondent. Counsel
argues those general union activities were not directly or even indirectly related to the
Chavez/golf matters underlying the suspension and, in essence, were so attenuated so as not
to provide a persuasive nexus connecting Moran’s union activity with the suspension.
It is necessary however in this analysis to focus on the particular circumstances which
lead to the suspension with attention to the events which underlay the Respondent’s
determination that Dennis Moran was the “Dennis” of the Chavez phone conversation. Clearly
when Chavez reported he had talked to a “Dennis” at the Paper, two choices reasonably
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presented themselves, the two Dennis’ in the sports department: Dennis Moran and Dennis
Bateman. How did it come to pass that Respondent suspected Dennis Moran and not Dennis
Bateman or even Dorfman?
Steepleton testified that he came to that conclusion after talking to the two and to
Chavez. I have specifically found supra, based on the credibility analysis set forth supra, that
this was not so and that Steepleton came to the belief that Moran and not Bateman was the
Dennis/Chavez conversant because he was specifically so informed by Copublisher von
Wiesenberger by email on August 4, 2008—the day before Steepleton first talked to Moran.
But, on this record, how did Copublisher von Wiesenberger come to that opinion as of that
date? He had spoken to Chavez, but Chavez testified credibly that he had never known the last
name of “Dennis” and had not identified Moran as the “Dennis” involved to von Wiesenberger.
Von Wiesenberger did not testify.
Copublisher McCaw, present in the office with Copublisher von Wiesenberger that day,
was also involved in the events and, it might be inferred, informed her colleague. But again
Chavez’ credible denials encompassed his conversations with McCaw and she did not testify.
So while it is logical that she would have told Copublisher von Wiesenberger what she knew,
I cannot find she learned that the “Dennis” who was the wrongdoing employee of the Paper was
in fact Moran from Chavez.
A separate email exchange between McCaw and Steepleton on August 4, quoted in part
above is relevant. Copublisher McCaw had earlier learned of the problems in golf coverage and
let Steepleton know in an email. Steepleton by email in response informed McCaw that he had
learned of a possible sports reporter “plan” to “stage a walkout.” Steepleton identified various
employees who would be allies of the Paper in such an event including his statement: “we have
[Dennis] Bateman.” He also noted: “Patton says he is happy here.” McCaw’s response to
Steepleton’s email clearly indicates she took the events and rumors to be animated by hostility
to the Paper: “I believe the paper is being sabotaged.”
It is not a far leap to conclude that McCaw associated Dennis Moran with the sabotage
against the paper. There were only three sports employees present at the Paper (Dorfman
being in China), Moran, Bateman, and Mark Patton. By process of elimination from the
perspective of McCaw, the Dennis who was sabotaging golf coverage and agitating Chavez had
to have been Dennis Moran, the Union’s representative. The copublishers’ actions that August
5th is the only basis for explaining the statement in von Wiesenberger’s email to Steepleton that
Moran was the “Dennis” of Chavez’ complaints. The logical force of this conclusion that Moran
was the villainous “Dennis,” based on his union activities, is sustained primarily by the lack of
record alternatives. Importantly, neither McCaw nor von Wiesenberger testified. And Chavez’
testimony was both credited and clear that he did not provide the last name of his telephone
conversant who identified himself only as Dennis to anyone since he never knew the individual’s
last name.
Given the above analysis, it is clear that the union activities of Moran, despite their
general nature, had a contextually direct relationship to the fact that Moran was identified as the
employee, indeed in McCaw’s judgment, saboteur, named Dennis whose conduct involving
Chavez and golf had damaged the Paper. That identification, I find based on all the above,
leads directly to Moran’s suspension.
The Respondent notes that it was clearly entitled to ascertain who had spoken with
Chavez and caused the difficulties set forth at length earlier. Thus, Respondent argues the
investigatory suspension of Moran was reasonable and nondiscriminatory. The problem with
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this argument, as the General Counsel notes on brief, is that only Dennis Moran and not Dennis
Bateman was suspended during the investigation. That asymmetry or disparate treatment is
justified only if the identification of Moran as the villainous Dennis is itself benign and free from
union animus. I specifically find that this record simply does not support any finding that the
identification of Moran as the Dennis/Chavez conversant was made based on other than
Moran’s association with, and advocacy on behalf of, the Union as noted above.
Based on all the above, including the argument of the parties, the testimony of the
witnesses including an evaluation of their demeanor and, importantly, the fact that neither
McCaw nor von Wiesenberger, testified, I find the General Counsel has sustained his prima
facie case under Wright Line that the Respondent suspended Dennis Dorfman because of his
union activities and sympathizes.
Given this finding, the burden under Wright Line then shifts to the Respondent to prove
that it would have suspended Moran in the absence of his union or protected activity. Here the
Respondent’s factual arguments founder on the rock of my finding that there is no credible basis
on this record for finding that the Respondent has any reason—other than Moran’s union
activities and sympathies—for assuming that Dennis Moran rather than Dennis Bateman or
another employee was the self-identified Dennis who spoke to Chavez by telephone regarding
the golf tournament.
I am aware of the line of cases under Wright Line that hold that an employer may meet
its burden of showing that an employee would have been disciplined even if no protected or
union activities had occurred based on a reasonable belief that the employee committed an
offense. In McKesson Drug Co., 337 NLRB 935, 936 fn. 7, the Board noted:
In order to meet its burden under Wright Line (i.e., to show that it would have discharged
the employee even in the absence of protected activity), an employer need not prove
that the employee committed the alleged offense. However, the employer must show
that it had a reasonable belief that the employee committed the offense, and that it acted
on that belief when it discharged him. See Yuker Construction, 335 NLRB 1072 (2001)
(discharge of employee based on mistaken belief does not constitute unfair labor
practice, as employer may discharge an employee for any reason, whether or not it is
just, so long as it is not for protected activity); Affiliated Foods, 328 NLRB 1107, 1107
and fn. 1 (1999) (it was not necessary for employer to prove that misconduct actually
occurred to meet burden and show that it would have discharged employees regardless
of their protected activities; demonstrating reasonable, good-faith belief that employees
had engaged in misconduct was sufficient); and GHR Energy, 294 NLRB 1011, 1012–
1013 (1989) (respondent met Wright Line burden by showing that employees would
have been suspended even in the absence of their protected activities, because
respondent reasonably believed they had engaged in serious misconduct endangering
other employees and the plant itself).
That line of cases does not apply here however because I have explicitly found that the
Respondent’s belief that Moran was the otherwise unidentified Dennis who had engaged in
misconduct resulted from the Respondent’s suspicion of Moran generally based on Moran’s
union activities. The belief is therefore neither reasonable nor exculpatory. The Supreme Court
made it clear many years ago in NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964), that
regardless of motive, discharging employees who did not engage in misconduct and were
engaged in protected activities tends to discourage Section 7 activity and violates Section
8(a)(1) of the Act. As set forth supra, I have found and here reiterate that there is no persuasive
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evidence that Moran in fact was the Dennis at issue. And the Respondent bears the burden of
proof at this stage of the Wright Line analysis.
Having found that the General Counsel has sustained his prima facie case under Wright
Line that the Respondent suspended Moran because of his union activities and that the
Respondent has not established that the Respondent would not have suspended Moran had he
not engaged in such activities, I find the General Counsel has prevailed respecting the
suspension allegation. I sustain this paragraph of the complaint.
(2) The discharge of Moran under Section 8(a)(1) and (3) of the Act
As discussed supra, Moran was under indefinite suspension effective August 23, 2008.
A few days later in conversations with Dorfman, Apodaca was told by Dorfman that had no need
to clear out his desk because “Dennis Moran had already cleaned out his desk.” The
Respondent discovered that the desk was in fact “cleaned out” and that materials the
Respondent regarded as proprietary were missing. The Respondent without speaking to
Dorfman further or to Moran at all regarding the matter, determined to discharge Moran and did
so on August 30, 2008. The discharge is alleged in the complaint to be in violation of Section
8(a)(3) of the Act. The Respondent denies the allegation. All parties agree that the Wright Line
analysis is appropriate in resolving this dispute. The General Counsel and the Respondent to a
large degree treat the suspension and discharge of Moran in a common manner or as a unity
and the arguments noted above in my consideration of the suspension were applied by each
party to the facts of the post suspension events.
The General Counsel argues additionally however that the complete absence of any
investigation by the Respondent into the truth of Dorfman’s claim that Moran had cleared his
desk reveals the desk clearing matter to be a pretext for discharge. Thus, the government
argues that the contention that the Respondent’s agents believed and accepted Dorfman’s
casual remark that Moran had cleared his desk, an unexamined statement from an ex-employee
who the Respondent knew had lied to them only days before in asserting that he did not intend
to resign his employment, is palpably incredible. The General Counsel further contends that for
the Respondent to believe Dorfman’s casual statement to such an extent that the Respondent
would fire Moran without revisiting the matter with Dorfman or even asking Moran about the
matter is beyond blatantly incredible and reveals duplicity by the Respondent’s agents.
The Respondent emphasizes that its agents Steepleton and Apodaca made clear that
Moran would not have been discharged, but for their belief he had engaged in the desk clearing
conduct described by Dorfman and that, while during the course of the trial the Respondent
learned of Dorfman’s false statement and Moran’s nonparticipation in the desk cleaning, no
agent of the Respondent was aware of the falsity of Dorfman’s attributions regarding Moran at
any earlier time.
Based on the record as a whole, the testimony of the witnesses in light of their
demeanor and the arguments of the parties, I find and conclude as follows. Essentially for the
reasons given in finding the government has established its prima facie case as to the
suspension, I make the same finding here respecting the discharge. Moran was suspect in the
eyes of the Respondent for his union activities and sympathies in light of the Respondent’s high
officials’ determination that the sports department was under threat of a walkout and that, by the
process of elimination discussed supra, Moran was the disloyal employee.
I find it simply unbelievable, indeed more like something from the works of Franz
Kafka, the post-Moran suspension events and actions of the Respondent’s agents ending in
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Moran’s discharge. Relying on a casual reference by Dorfman, a now former employee who
Respondent well knew had recently lied to it regarding his intentions to continue his employment
with the Respondent, Apodaca and Steepleton determined to terminate Moran. The
Respondent never asked Moran about the matter and seemingly went far out of its way to avoid
informing Moran he was viewed as having done a dischargeable act. Thus Steepleton called
Moran and told him he was to be discharged. When Moran asked him why, Steepleton told him
he would get a letter and to come to the exit of the facility. When Moran did so, again
Steepleton omitted to disclose the Dorfman accusation, but rather simply gave Moran a lengthy
letter containing a litany of advanced sins and omissions asserted as a basis for discharge and
sent him on his way before he could address the assertions. To argue that Moran never denied
the Dorfman claim is again the Kafkaesque sin of the accused that, never learning of the
allegations against him, is incapable of making a denial or offering explanation.
Given my finding that the Wright Line prima facia case of the government has been
sustained, the burden then shifts to the Respondent to prove that it would have discharged
Moran in the absence of his union or protected activity. As in my rejection of this contention
respecting Moran’s suspension, I reject it here because I am simply unable to accept that had
Moran not been the object of suspicion and disloyalty for his union activities, as discussed
supra, the Respondent would never have simply blindly believed Dorfman’s remark about
Moran clearing out his desk without even asking Moran about his actions if any in actually
clearing out Dorfman’s desk. And, if such a fundamentally fair and reasonable undertaking had
occurred,39 I am satisfied that Dorfman’s glib falsehoods would have been quickly discerned, if
not immediately corrected by Dorfman himself or by Moran.
Given all the above, I find that the General Counsel has sustained the complaint
allegations that the discharge of Moran violated Section 8(a)(1) and (3) of the Act.
(3) The bargaining allegations respecting Moran’s suspension and discharge
The General Counsel in his complaint alleges the Respondent’s post suspension failure
to notify and bargain with the Union over the suspension and termination of employee Dennis
Moran violated Section 8(a)(1) and (5) of the Act. As set forth in greater detail supra, the
Respondent did not notify nor offer to bargain with the Union regarding the Moran suspension
before its decision and implementation of the decision to suspend Moran. Rather, when the
Union learned of Moran’s suspension on the day of its occurrence, Union Chief Negotiator
Caruso by letter sought of the Respondent’s Chief Negotiator Zinser the immediate rescinding
of Moran’s suspension, restoration of any lost pay and that the Respondent “agree to negotiate
over this action before implementation if the News-Press wishes to persist with it.” By letter
dated September 2, 2008—after Moran’s discharge, Zinser replied to Caruso again by letter that
the Respondent had no obligation to bargain over any discipline relating to Moran or the
Respondent’s maintenance of discipline consistent with the status quo. The Respondent, the
letter asserted, was “maintaining the dynamic status quo that has always existed.” The letter
also noted the discipline and discharge of Moran were for cause and rejected the Union’s
proposal to rescind the discipline of Moran.

39 An employer, the Respondent here, is not required to be fair, reasonable, or even to avoid
Kafkaesque human resource decisions. In determining if certain conduct would have occurred
absent protected conduct, however, the motivations, habits, and practices of the employer must
be considered.
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It is important in addressing the allegations here to distinguish between an employer’s
obligation to bargain over its system of discipline, i.e. disciplinary rules and practices, and its
application of those rules and practices to a particular individual or situation. An employer must
upon demand bargain with its employees’ representative concerning its terms and conditions of
employment applicable to the represented employees. An employer’s disciplinary rules and
practices are a part of those employees’ terms and conditions of employment. Changes in the
rules are mandatory subjects of bargaining and require notification and provision of an
opportunity to bargain to the Union prior to changes in rules in their manner of implementation.
The complaint allegations framing the instant dispute here, complaint paragraphs 15(a)
and 14(b), specifically name the conduct at issue as the Respondent’s post suspension failure
and refusal to bargain as the specific acts of suspending and discharging Moran. Thus, the
complaint allegations do not allege and the General Counsel does not argue the Respondent
failed to bargain about the Respondent’s general system of disciplinary rules and practices.
Rather the complaint and the government asserts a narrower statutory bargaining obligation
respecting the application of the Respondent’s discipline in regards to the Respondent’s specific
acts of suspending and discharging Moran. It is also important to note the bargaining obligation
asserted by the complaint and argued by the General Counsel arises by virtue of the Union’s
request for bargaining. This is consistent with the Union’s actions offered by the government in
support of the allegation, i.e., the Union’s letter sent upon its learning Moran had been
suspended in which the Union seeks negotiations with the Respondent over the suspension of
Moran and any subsequent Respondent “implementation” of its discipline, i.e., discharge, of
Moran.
An employer’s obligation to bargain respecting individual application of its rules to
employees in any given situation differs depending on the circumstances of the application of
the rules. Some rules require very little if any discretion on the part of the employer in their
application, for example a rule providing employees receive a fixed percentage wage increase
on the anniversaries of their employment. If the rules are longstanding, i.e., meet the Board’s
test as a past practice and do not involve the exercise of substantial discretion, the employer is
not obligated to provide notice to a Union that had not sought such prerule application
bargaining. Washoe Medical Center, Inc., 337 NLRB 202, 202 fn. 1 (2001).40
Other employer rules, including disciplinary rules, require the exercise of a substantial
degree of employer discretion and a bargaining obligation exists concerning their application.
The Board in Eugene Iovine, Inc., 328 NLRB 294, 294 (1999), addressed such discretionary
rules:
The Board and the courts have consistently held that such discretionary acts are, as
stated by the judge, “precisely the type of action over which an employer must bargain
with a newly-certified Union.” See NLRB v. Katz, 369 U.S. 736, 746 (1962) (employer
must bargain with union over merit increases which were “in no sense automatic, but
were informed by a large measure of discretion”); Garment Workers Local 512 v. NLRB
(Felbro, Inc.), 795 F.2d 705, 711 (9th Cir. 1986) (employer must bargain with the union
over economic layoff, which is “inherently discretionary, involving subjective judgments
of timing, future business, productivity and reallocation of work”); NLRB v. Allis-Chalmers

40 See also Virginia Mason Medical Center, 350 NLRB 923, 931–932 (3007). In the instant
case the General Counsel is not contending the Respondent failed to bargain about the Moran
suspension and discharge at any time before the Union requested such bargaining on
August 23, 2008, after Moran’s suspension.
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Corp., 601 F.2d 870, 875–876 (5th Cir. 1979) (employer must bargain over wage
increase which did not result from “purely automatic” policy and was not pursuant to
“definite guide-lines”); Adair Standish Corp., 292 NLRB 890 fn. 1 (1989), enfd. in
relevant part 912 F.2d 854 (6th Cir. 1990) (despite past practice of instituting economic
lay-offs, employer, because of newly certified union, could no longer continue unilaterally
to exercise its discretion with respect to layoffs).
The initial step here then, as to both the suspension and the discharge of Moran, is to
determine: (1) if the Respondent’s disciplinary acts applied longstanding rules (i.e., were past
practices) as opposed to new rules (unilateral changes) and, (2) if the rules applied were
discretionary or sufficiently nondiscretionary to avoid the obligations set forth in Eugene Iovine,
Inc., supra. The Board in Eugene Iovine, Inc. makes it clear that the burden is on the employer
to establish in this context that a past practice existed and that the disciplinary actions taken
were consistent with that practice.
Turning to the Moran suspension, the Respondent asserted to Moran and at trial in its
defense that Moran was suspended indefinitely pending completion of the investigation of his
role in various Chavez and golf tournament events as discussed above. The rules advanced by
the Respondent as applicable to Moran’s argued actions in this sequence of events are
multifold. They include rules against disclosure of proprietary information, rules regarding
honesty, consulting with supervision, proper work scheduling and follow through and others.
The General Counsel vigorously contested the existence, consistency of application and
applicability of many of the challenged rules to Moran’s situation. Indeed Steepleton, the
supervisor tasked with the disciplinary decision regarding Moran indicated at the time he
needed to consider the matter.
All of the above makes it clear and I find that the application of the rules to Moran at the
time of his suspension involved highly discretionary decisions by the Respondent’s agents as to
what to do with Moran and/or others involved in the complex events which have been discussed
in some detail, supra. Thus I find, under the Eugene Iovine, Inc., 328 NLRB 294 (1999)
decision, that the Respondent was required to bargain with the Union concerning the
suspension process and the discipline that could potentially result from the completion of the
consideration. As the Board noted in Oneita Knitting Mills, Inc., 205 NLRB 500, 500 fn. 1
(1973):
What is required is a maintenance of preexisting practices, i.e., the general outline of the
program, however the implementation of that program (to the extent that discretion has
existed in determining the amounts or timing of the increases), becomes a matter as to
which the bargaining agent is entitled to be consulted.
Given all the above, I find the Respondent had an obligation to bargain with the Union
concerning the suspension and subsequent discipline of Moran, at least from the time of the
Union’s August 23, 2008 request to bargain about Moran’s suspension and any subsequent
discipline, which is as far back in time as the Union and the General Counsel have chosen to
litigate. The Respondent’s explicit refusal to so bargain, therefore violates Section 8(a)(1) and
(5) of the Act and I so find.41

41 Given these findings I find it is unnecessary to address the various contentions of the
government that the various rules the Respondent identified as applicable to Moran’s potential
discipline were not legitimate or were not applied consistent with the Respondent’s past
practice.
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Turning to the subsequent discharge of Moran by the Respondent, the same decisional
law applied to Moran’s suspension applies to Moran’s discharge save that here the Union had
requested bargaining and the Respondent’s obligation to bargain preceded its discharge
decision. Thus, the Union’s August 23, 2008 request to bargain concerning the post suspension
handling of Moran clearly proceeds and encompasses Moran’s discharge.42 That being so, the
Respondent was obligated to meet and bargain with the Union concerning the discharge, this
includes both bargaining regarding the decision itself before the decision was taken as well as
bargaining concerning the effects of the discharge.43 This being so, the Respondent’s explicit
refusal to engage in such bargaining violated Section 8(a)(5) and (1) of the Act and I so find. I
therefore sustain the relevant paragraph of the complaint.
M. The Table Bargaining Allegations
1. The complaint allegations
The complaint at paragraph 20 alleges an improper course of bargaining by the
Respondent during the November 2007–March 2009 period. Thus, the complaint alleges the
parties met for the purposes of collective bargaining concerning unit employee’s terms and
conditions of employment during the period. Complaint subparagraph 20(b)(i) and (ii) allege
that during this period during bargaining:
(i) The Respondent has insisted on proposals that are predictably unacceptable to the
Union, which proposals include, but are not limited to, the Respondent’s proposals on
management right, grievance and arbitration, union bulletin board, discipline and
discharge.
(ii) The Respondent has insisted as a condition of reaching any collective-bargaining
agreement with the Union that the Union agree to language in the contract including, but
not limited to, language pertaining to a management rights clause that would grant the
Respondent unilateral control over many terms and conditions of employment.
The complaint at paragraph 20(c) alleges:
By its overall conduct including but not limited to the conduct alleged in paragraphs 7
through and including 16 and paragraphs 18, 19, and 20(b), the Respondent has failed
and refused to bargain in good faith with the Union as the exclusive collective bargaining
representative of the Unit.
Complaint paragraph 25 further alleges the quoted conduct of the Respondent
constitutes a failure and refusal to bargain collectively in good faith and a violation of Section
8(a)(5) and (1) of the Act. The Respondent in its answer denies both the specific bargaining
allegations and the conclusionary allegation that it violated Section 8(a)(5) and (1) of the Act.

42 Steepleton and Apodaca testified that at the time of Moran’s suspension, which was also
the time of the Union’s bargaining request, the Respondent had not decided to terminate Moran.
43 Various subjects such as severance terms, references, unemployment processing, and
other matters arise after a termination and may be the subject of effects bargaining.
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2. The bargaining conduct of the parties44
The Respondent and the Union have met in bargaining since November 13, 2007,
usually in 2-day stints. Since May 9, 2008, the parties have utilized the services of a
commissioner of the Federal Mediation and Conciliation Service. The Union at all material
times has been led in bargaining by Nicholas Caruso, an international staff representative of the
Charging Party, with many years of negotiating experience in the publishing industry. The
Respondent has at all times been represented by Michael Zinser of the Zinser law firm who has
many years of negotiating experience in the publishing industry. These individuals have been
assisted: in the Union’s case by its counsel, Ira Gottlieb, of the law firm of Bush, Gottlieb,
Singer, Lopez, Kohanski, Adelstein, and Dickinson, as well as an employee committee and, in
the Respondent’s case, by managerial agents of the Respondent and other members of the
Zinser law firm.
In negotiating and agreeing to procedural arrangements prior to the start of face-to-face
bargaining, the Respondent made it clear that it was interested in confining bargaining to
mandatory subjects of bargaining and was not interested in consuming “valuable bargaining
time with permissive, nonmandatory subjects of bargaining.” The Respondent’s initial position
respecting bargaining proposals was that it would stand on the status quo and wait and see
what changes the Union might propose.
The Union submitted to the Respondent its opening proposal on November 1, 2007, in
anticipation of the opening meeting on November 13. The proposal included, inter alia, a
discipline and discharge clause limiting the Respondent’s rights to discipline, suspend, or
discharge unit members without just cause. The proposal also included a progressive
discipline, grievance, and arbitration clause applicable to any disciplinary action, controversy, or
dispute concerning the application or interpretation to the contract. The final step of the
proposed procedure was final and binding arbitration with the arbitrator able to sustain, reverse,
or modify any unjust discipline of unit employees the arbitrator determined not to be for just
cause. The decision of the arbitrator was to be final and binding. The Union’s November 1,
2007 proposal contained a no-strike, no-lockout clause. The proposal also contained a work
assignments clause which included, inter alia, the following separate paragraphs:
1. An employee shall not be required to perform, over the employee’s protest, any
practice which compromises the employee’s integrity.
3. Substantive changes in material submitted shall be brought to the employee’s
attention before publication. An employee’s byline or credit line shall not be used over
the employee’s protest.
4. An employee shall not be required to gather, write, edit, photograph or process
anything for publication that is malicious, distorts the facts or creates an impression45
which the employees knows to be false. If a question arises as to the accuracy of

44 Certain complaint allegations sounding in Sec. 8(a)(5) of the Act have been discussed
earlier in association with factually related violations. Those discussions and conclusions while
also appropriately set forth in this factual recitation and consideration, for reasons of avoiding
making a long decision even longer, will not be duplicated save in a partial abbreviated fashion.
They formed part of the relevant circumstances in my consideration of the issues herein.
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printed material or photographs, no correction or retraction of that material or photograph
shall be printed without prior consultation with the employee involved.
5. An employee may not be disciplined for refusing to cover a story or perform a task
that is unethical, immoral or unsafe. An employee may request and shall receive a
written explanation from management in instances when an employee is given an
assignment that violates this section.
6. An Employee may request and shall receive a written explanation from Management
in instances when significant changes are made to a story, photo or graphic or the story,
photo or graphic is not published. An employee may also request and shall receive a
written explanation from Management in instances when the employee has submitted a
written story, photo or graphic and that proposal is denied.
9. Each employee shall furnish the Employer with conscientious service for the entire
period of time he/she is employed each day, and no employee shall be required to
perform an excessive amount of service, constituting, in fact, an unreasonable workload.
In the initial 2-day bargaining session, November 13–14, 2007, various discussions and
information requests respecting temporary employees and merit wages increases were
undertaken and followed up with later correspondence as has been discussed supra. On
November 14, 2007, the Respondent submitted written proposals to the Union including articles
on management rights, discipline, and discharge, and a no-strikes article which included no-
lockout language.
The management-rights proposal (which included “bargaining notes” entries at its end.)
stated in part:
Section 1. Except as expressly modified or restricted by a specific provision of
this Agreement the Employer reserves and retains, solely and exclusively, all of
its normal, statutory inherent, and common law rights prerogatives and functions
to manage the business, whether exercised or not, as such rights existed prior to
the time any Union became the statutory bargaining representative of the News
Department employees of the Employer.
Section 2. The sole and exclusive rights of management which are not abridged
by this Agreement shall include, but are not limited, to the following rights:
(a) To determine the content of Santa Barbara News-Press, including, but
not limited to, editing, presentation and placement of all stories, columns
and photos.
(b) To establish or continue policies, practices and procedures for the
conduct of the business and, from time to time, to change or abolish such
policies, practices or procedures.
(c) To determine and, from time to time, to redetermine the methods,
processes and materials to be employed.
(d) To discontinue processes or operations of the Employer.
(e) To establish work, quality and productivity standards.
(f) To determine the number of hours per day or week that operations shall
be carried on.
(g) To determine and to select the equipment to be used in the Employer’s
operations and, from time to time, to change or to discontinue the use of
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any equipment and to select new equipment for its operations, including
equipment for new operations.
(h) To establish employee work schedules, to set the hours of work and the
number of employees, and from time to time to change the hours and
employees’’ work schedules.
(i) To select and hire employees, determine their qualifications and assign
and direct their work.
(j) To determine the number and type of employees required.
(k) To assign work to such employees in accordance with requirements as
determined by management.
(l) To lay off employees due to lack of work or for reasons of efficiency.
(m)To determine the fact of lack of work.
(n) To make and enforce safety rules and rules governing the conduct of
employees within the News Department and for the maintenance of
discipline, to the fullest extent permitted by the National labor Relations
Act, to establish and enforce a Code of Ethics for all News Department
employees.
(o) To suspend, discharge or otherwise discipline employees.
(p) To issue, amend and revise policies, rules, regulations, and practices.
(q) To determine the content of all jobs and descriptions thereof, and to
determine the essential functions of all jobs.
(r) To determine when training will be provided to employees and those
employees to receive training.
Section 3. The Employer shall have the right to utilize independent contractor
free-lance writers and photographers to the extent deemed necessary by News
Department management.
Section 4. The Employer’s failure to exercise any right, prerogative, or function
hereby reserved to it, or the Employer’s exercise of any such right, prerogative,
or function in a particular way, shall not be considered a waiver of the Employer’s
right to exercise such right, prerogative, or function or preclude it from exercising
the same in some other way not in conflict with the express functions of the
Agreement.
Section 5. Managers/Supervisors shall have the right to write and/or take
pictures for publication in Santa Barbara News-Press.
Section 6. The rights and prerogatives of Management, whether established by
express provisions (including this Article) or by practice, shall be deemed to be
part of the status quo that remains in effect after the expiration of this Agreement
on ________ and until a different agreement is reached or other lawful change is
permitted.
Bargaining Notes [Bolding in original.]
1. This proposal represents the status quo for Santa Barbara News-Press.
* * * *
3. The Union’s proposal on “Work Assignments” in effect transfers control of
content from Management (where it resides now) to the individual employee’s
subjective notions of “integrity,” “malicious,” unethical,” “immoral,” “unsafe,
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and “unreasonable work load.” Santa Barbara News-Press is not willing to so
transfer control. That should remain with the Publisher.
The Respondent’s discipline and discharge proposal stated in part:
Section 1. The Employer shall have the right to discharge or discipline
employees. The disciplinary action which the Employer may take in punishing or
penalizing employees shall include, but not be limited to: (a) warning; (b)
suspension from work without pay; (c) discharge.
Section 2. In the case of any offense for which an employee may be discharged,
the Employer may at its sole discretion, impose a lesser penalty.
Section 3. While the policy of the Employer is at-will employment, the Employer
wishes to communicate that it will impose discipline or discharge for the following
types of misconduct:
(a) Biased reporting.
(b) Violation of the Employer’s policies on Business Conduct, Conflicts of
Interest, Confidentiality and Code of Ethics.
* * * *
(h) Disloyalty
(i) Insubordination
(j) Dishonesty
* * * *
(l) Neglect of Duty
* * * *
(r) Failure to meet the productivity standards of the Employer
Section 4. Employees should have no expectation of privacy when on Employer
property or while on duty, whether on or off Employer property, insofar as it
involves the Employer’s right to search desks, vehicles, brief cases, purses,
computers, E-mail to investigate possible violations of Employer rules and
policies. A refusal of an employee to cooperate in any such investigation shall be
deemed to be insubordination and therefore, cause for discipline and/or
discharge.
The Respondent’s no-strike proposal included the following language:
Section 1. There shall be no strikes (including sympathy, unfair labor practice, or
wildcat strikes), sit-downs, work stoppages, boycotts, picketing, any acts honoring a
picket line or any other acts that interfere with the Employer’s business, including but
not limited to the Employer’s operations, the production or sale of its products or
services or any Employer sponsored events or meetings, during the term of this
Agreement by the union, its officers, agents and members, or by the employees.
* * * *
Section 4. Any or all employees participating in any activity proscribed herein shall
be subject to disciplinary action, including discharge.
* * * *
Section 6. The Employer agrees that during the term of this Agreement, it will not
lock-out the employees covered by this Agreement.
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Following this 2-day bargaining session, as discussed in earlier portions of this decision,
information requests were made by the Union. The parties also agreed by letter to meet for 3
days of bargaining in mid-January 2008. That session was cancelled by Zinser based on the
unavailability because of illness of Scott Steepleton. Bargaining sessions were agreed to be
held on February 12, 13, 14, and 15 and February 25, 26, and 27, 2008.
The bargaining sessions in the week of February 12, 2008, included discussions of the
merit-pay history and discussion of information submitted to the Union as well as the Union’s
desire and request for information as has been discussed in other portions of the decision.
The Respondent on February 13, submitted a written grievance proposal. The proposal
provided for a 4-step process for grievance handling. In essence, step 1 provided for an
employee, individually or with a union steward, a period of time following the ripening of the
dispute to discuss the claim with the employee’s immediate supervisor who would provide a
verbal response within 3 days.
Absent resolution, step 2 allowed for taking the matter in a more formal way to the
associate editor who would respond in writing within 4 days. Absent resolution, step 3 provided
for review by a group of two union representatives, the associate editor, and the director of
human resources with the director of human resources communicating the Company’s decision
in writing within 4 days.
Finally, if no resolution has taken place, step 4 provided for a written appeal to the
copublishers and a meeting of the copublishers, the associate editor, the director of human
resources, and two union representatives. The copublishers within 4 working days “would
provide to the Union in writing the final decision of the Company on the grievance.”
During this week in bargaining the Union addressed the Respondent’s earlier submitted
discipline and discharge, and management-rights proposals and the newly submitted grievance
proposal. Caruso identified these subjects as the heart of the negotiations which if settled
would make reaching an agreement easier. The Union noted with alarm however the
Respondent’s proposed contract clauses were punishing and harsh for employees and there
was no limit or control on the Respondent’s rights: no standards of just cause or
reasonableness and no third party dispute resolution such as arbitration.
Zinser emphasized that the Respondent’s proposals provided for employee grievances
with Union representation, with multistep processing that provides for dialogue of the interested
parties and discussion of the matters in dispute. These proposals created new rights for the
Union that had not existed heretofore. He noted however that the “publishers want to retain
final say on these decisions. They do not want to relinquish that decision-making power to the
third party.”
The negotiators also discussed the Respondent’s bulletin board proposal of
February 14, 2007. The Union complained that the provision requiring the Respondent’s
approval of material prior to its posting was demeaning and condescending. The Respondent
responded that there was no union statutory right to bulletin board access and that such rights
were created by a contract. The Union rejoined that the Respondent’s proposals seemed to
have a theme that management needed “total control.” The Union modified its bulletin board
proposal on February 15, 2008, but it became clear that the language was not complete in
Caruso’s view and that it would have to be fixed by giving both sides keys to the board.
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Following intersession information correspondence discussed in other sections of this
decision, the parties met in bargaining on February 25 through 27, 2008. At that session the
Union provided its written discipline and discharge language. It provided for “just cause” as a
basis for discharge or discipline of employees as well as a progressive or multistep discipline
system: verbal warning (documented), written warning, suspension from work without pay,
discharge. The Union made it clear that the fundamental difference between the parties in
these areas was not the language so much as the existence of an impartial third party to decide
differences.
The Union amended its bulletin board proposal to specify that the union shop steward
and the newsroom manager would each have a key to the board for the purpose of posting and
removing material. Caruso took pains to explain that despite the fact that Respondent had a
key under the proposal, the bulletin board was the Union’s and the Union though its steward
would determine what was appropriate to be posted.
The grievance and arbitration proposals were discussed. The Respondent indicated it
had no new proposal and the Union lamented that it was “unheard of” for the employer to retain
“total control” over disputes. Caruso, as the Union’s negotiation notes indicate, complained:
Every step of the way . . . the Company wants everything to be the same and to have
ultimate control. . . . Quite frankly, I am very frustrated with the proposals being
essentially nothing more than what the employees already have and that the company
wants absolute say over disputes.
The Union also submitted a written proposed letter of understanding on Journalism Ethics which
was a proposed addendum to the agreement. The language of the proposal adopted the code
of ethics of the Society of Professional Journalists. The proposal further asserted:
Additionally, the parties recognize that it may be impossible to eliminate all forms of bias
from the news. In the spirit of continual improvement, however, reporters pledge to be
fair and objective. When Management views a news story to be unbalanced or
distorted, a discussion will be held between the applicable parties to make appropriate
changes. It is agreed further that the Management will not attempt to interject opinion
into a news story. If agreement cannot be reached on appropriate changes, the reported
may withhold his/her byline.
The parties met again in bargaining on April 2 and 3, 2008. The Respondent submitted
a new grievance procedure proposal with timing language changes and a new step 4 which
provided a grievance mediation process before a Federal Mediation and Conciliation
Commissioner. The former step 4, now became step 5 and as before reserved the final
decision in disputes to the Publishers. The Union argued that its core issues were grievance
language, management rights, and discipline and discharge. While appreciative of the value of
mediation the Union insisted it was not a substitute to final and binding arbitration by an
impartial arbitrator.
The Respondent supplied an updated written grievance proposal which deleted the
earlier specifically named FMCS representative. The proposal contained the following
bargaining note”
Santa Barbara News-Press rejects the notion that a grievance procedure without “just
cause” and “binding arbitration” by a neutral is illegitimate. Thousands and thousands of
employers have written procedures for resolving workplace disputes, without the concept
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of just cause and arbitration. The Union seems to be saying that these employment
relationships are not legitimate. Santa Barbara-Press strongly disagrees with this
premise.
The Respondent in writing withdrew its November 14, 2007 no-strike article. Zinser
represented that since the Respondent was not going to agree to a binding arbitration clause, it
was withdrawing its no-strike language and the employees can go on strike in furtherance of
their view of a labor dispute.
Caruso responded thereafter that the focus should be on union contracts since the
employees elected the Union to represent them. “[W]e have to start negotiating things that are
found in Union Contracts, not things that may be out there in the nonunion environment.”
Caruso suggested the Union might remove the “just cause” language in the grievance clause if
the parties could reach agreement on a grievance procedure with third-party resolution.
In this session the Respondent submitted modified proposals on discipline and
discharge and on bulletin boards. The Respondent’s proposal on discipline and discharge
modified its earlier Section 4, quoted above, by striking the items “brief cases, purses” from the
search language and adding a new sentence:
The Employer shall have the right to search personal vehicles, brief cases, or purses if
the Employer has a reasonable suspicion that the contents thereof involve possible
violation of the Employer[‘s] rules and policies.
The Respondent’s bulletin-board proposal carried unchanged the proposition that items to be
posted must be submitted to the Publisher and approved prior to posting. Caruso again took
umbrage with the proposition that the Union had to get approval for its postings and asserted
that the Union would be responsible for posting and taking down materials.
The Respondent responded to the Union’s earlier proposal on journalism ethics by
noting it remained of the view that the subject matter was a permissive nonmandatory subject of
bargaining that it did not wish to bargain about. It specifically requested the Union withdraw the
proposal.
Between sessions, Caruso in a letter dated April 23, 2008, complained to the
Respondent that the Respondent’s insistence in its proposals with no just cause requirements in
disciplinary action matters and its rejection of binding arbitration concerning grievances were
“predictably unacceptable as we have repeatedly informed you.” Caruso challenged Zinser in
his letter:
This position in the context of collective bargaining is in bad faith, both because it is
illustrative of the News-Press’ overarching and virtually uniform refusal to deviate from
the status quo on any significant matter, and because of a fundamental difference
between pre-union and post-election set of circumstances. . . . Since you continue to
assert . . . that the Santa Barbara News-Press can persist—as do non-union
employers—with its pre-existing, one-sided non-binding “procedures” leading to a
unilateral resolution to a contractual dispute it strongly suggests that you have no
interest in reaching an agreement with the Union.
Zinser replied by letter of May 9, 2008, which letter dealt with other matters but also
addressed the language quoted immediately above:
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With respect to your proposals for just cause and arbitration, it is certainly the union’s
right to propose those concepts for a new Collective Bargaining Agreement. However,
as you acknowledged at the table, grievance and arbitration is a mandatory subject of
bargaining, and the Santa Barbara News-Press has the right to propose a procedure
that does not contain concepts of “just cause” or binding arbitration. Even you
acknowledged awareness of Collective Bargaining Agreements without arbitration in
them. Your statements reflect a belief and/or position that by virtue of the union being
certified, that translates into a requirement that an employer agree to what you want.
This is not the law. From the point of view of the Santa Barbara News-Press, the
existing wages, hours, and working conditions are very generous. Therefore proposing
the status quo on such items is certainly consistent with good faith. “Predictably
unacceptable” is not a standard under the National labor Relations Act. If that were the
case, either party could unilaterally adopt fixed positions and them announce that any
proposals from the other side that do not adopt those positions are predictably
unacceptable. . . .
The parties met in bargaining again at a May 14 and 15, 2008 session. The Union
withdrew at the Respondent’s request, its November 2007 proposals on work assignments
quoted in part supra, and its earlier proposed letter of understanding on journalism ethics. It
also submitted a new proposal on discipline and discharge. The proposal retained the
“discipline for just clause” language as well as “reasonable and uniformly applied” limitation
language on implementation of discipline.
At this session management’s rights were discussed with the Respondent asking for the
Union’s position on management rights. The Union responded that the Respondent’s proposed
management-rights language became more acceptable if other parts of the Union’s proposed
contract, such as just cause and grievance and arbitration, were in place and applied to the
clause. The Union agreed to provide a written position on management rights.
Intersession exchange of correspondence, in part discussed in other sections of this
decision, took place and the parties met again in bargaining at the June 3 and 4, 2008 session.
FMCS Commissioner Rucks participated. The Union provided the Respondent with its written
response on management rights. The Union’s response took the form of copying the entirety of
the Respondent’s management’s rights proposal, quoted supra, and appending 24 footnotes to
various of its sections and subsections with the Union’s position and commentary contained in
those footnotes. A significant number of the Union’s proposal’s footnotes appended to various
of the listed rights of management contained the statement: “[T]he Union is not willing to waive
its right to bargain over changes in wages, hours and working conditions if applicable,” or similar
language. The Union also made clear that management-rights language must not be read in
isolation. Thus a footnote: “The Union has no concerns provided such action is with Just
Cause which may be processed through a legitimate grievance procedure.”
The Respondent in turn at the session provided the Union with a written response to the
Union’s footnote formatted document addressing the Respondent’s earlier management-rights
proposal. The Respondent’s document begins:
Santa Barbara News-Press appreciates the Union providing us its position with respect
to our Management Rights proposal. We want to make sure the Union understands the
proposal. The proposal is intended to set out subject matters on which Management
has the right to act unilaterally, without bargaining, during the term of the Collective
Bargaining Agreement. As a general observation, your comments largely communicate
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a desire to have the ability to require the Santa Barbara News-Press to bargain over
virtually every decision it would need to make to run the News Department.
The document then addresses various union footnotes and questions raised by the
Union. It concludes:
Inasmuch as the Union did not actually make any counter proposal on Management
Rights, you have presented us with no new language to consider. That being the case,
subject to discussion of future counter proposals o[f] the Union, the proposal of Santa
Barbara News-Press regarding Management Rights remains as stated.
In response to the Respondent’s document, the Union on June 4, 2008, provided a
complete written management-rights proposal. While the proposal tracked the format of the
Respondent’s proposal, it interjected the limiting term “reasonable” in the matters the
Respondent would have license to modify. Further it provided in its Section 6:
Rights as provided in this [Management-Rights] Article shall not supersede
Managements legal obligation to bargain over changes that substantially affect the
wages, hours and working conditions of Bargaining Unit Employees.
Zinser on behalf of the Respondent read the Union’s proposal and lamented that the Union was
proposing that the Respondent would have to bargain over every change. Caruso demurred
saying the Union’s over-arching problem with the Respondent’s management-rights proposal
was that it represented the status quo which means there is no purpose to having a collective-
bargaining agreement.
The parties again undertook intersession communications discussed in other sections of
this decision. The parties held their next bargaining session on July 10 and 11, 2008. They
exchanged proposals on collateral matters such as electronic communications, mileage
reimbursement, access to premises, and severance pay. On July 10, 2008, the Union
submitted a new proposal on employee integrity setting forth in the proposal’s “bargaining
notes” that the Union had withdrawn its earlier work assignments proposal at the Respondent’s
behest and now offered the employee-integrity language as a modified proposal. The proposal
contained certain paragraphs which recited that that the employer “shall continue” certain
existing practices and also contained the following:
3. An employee may withhold his byline from an article which he/she reasonably
believes is malicious, distorts the facts or creates an impression which the employee
knows to be false.
4. An employee may not be disciplined for refusing to perform a task that the employee
reasonably believes is unsafe.
5. [omitted]
Nothing in this provision shall be interpreted or applied to compromise or affect the
employer’s right to control the substantive content of the newspaper, consistent with
applicable law and with the employee’s right to withhold his/her byline as described
above.
The parties discussed the proposal that day and the next with the Respondent taking the
position that it was a repackaging of the Union’s earlier nonmandatory proposals on ethics.
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The Respondent responded to this proposal in writing on July 11, 2009, indicating it
would consider the Union’s argument that the proposal was a mandatory proposal and asked
several questions respecting the Union’s intentions regarding the employees control over
bylines.
On July 16, 2008, Zinser notified Caruso he could not meet in August but offered dates
in September which Caruso agreed to. The parties held their next session on September 3 and
4, 2008. Each side met separately with the FMCS Commissioner who shuttled between the
parties. In this manner they exchanged proposals on vacations and holidays. On
September 4, 2008, the Respondent requested the Union withdraw its employee integrity
proposal.
Intersession communication took place regarding information and other matters
including matters discussed in other sections of this decision. By letter of September 9, 2008,
Caruso wrote Zinser dealing with several matters. Respecting the Employee Integrity proposal
the letter stated:
With regard to your bargaining request of 9/4/08 to withdraw our proposal on Employee
integrity; it is my understanding that the Employer wanted to study the case law on this
matter provided by our legal counsel and respond. Evidently, you do not feel any
obligation to explain your position. We will withdraw the proposal per your request, take
your request to mean you are refusing to bargain over the Union’s proposal and file a
charge for refusal to bargain on a mandatory subject of bargaining. The Union reserves
all rights pertaining to this subject.
The next bargaining session was held on October 22 and 23, 2008 with the FMCS
Commissioner assisting. The parties discussed language addressing vacation, duration of
contract, wages, retirement, overtime, electronic communications, and reductions-in-force.
Again, intersession communication took place regarding information and other matters
including matters discussed in other sections of this decision. The parties met again in
bargaining on January 14 and 15, 2009. The Mineards matter was discussed as was presented
in a separate section of this decision. Several contract subjects were discussed including hours
of work, overtime, full time status, sick leave, contract integrity, access to the premises,
vacation, and holidays. Later in the session, wages, mileage, retirement, health insurance,
holidays, and issues of concerning the assistant life and scene editors were discussed. The
Respondent noted the parallel language between its management-rights proposal and the
Union’s language and sought tentative agreement on any portions of the proposals. The Union
took the position that no agreement on any part of the management-rights proposals could be
even tentatively approved until the entire proposal was agreed upon.
Intersession communication concerning Mineards and other information issues
continued as discussed in other sections of this decision. The parties met for their next
bargaining session on February 25 and 26, 2009. In the session matters discussed in other
sections of this decision took place. The Respondent provided the Union a document entitled:
Proposed Agreement Between Santa Barbara News-Press and GCC/IBT as of
February 25, 2009,46 which Zinser identified as the company’s position. He reviewed the
document with the parties noting the articles on which the parties had indicated tentative

46 The 39-page document comprised some 32 articles and each article had following
notations indicating the dates of the Respondent’s proposals and if tentatively agreed upon.
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agreement. The Respondent also submitted a February 26, 2009 bargaining agenda items
recitation which summarized the state of management-rights clause discussions and asked if
the Union’s position on the matter had changed. Caruso told Zinser he would provide a written
response on its position later in the week.
By letter to Zinser dated March 10, 2009, Caruso reviewed the bargaining history of the
managements-rights proposal and informed Zinser that after the Union’s subsequent review of
the Respondent’s last management-rights proposal with counsel, the Union “concluded the
clause as the News-Press proposed it, in conjunction with its other outstanding proposals, was
potentially more harmful than had been communicated to the Union Committee at the table.”
Caruso explained that the Union’s last position, in which it had omitted the Respondent’s
Section 6 postcontract expiration language, was based on it’s determination of the section’s
“ramifications were potentially harmful.”
The parties thereafter addressed matters discussed in other sections of this decision and
did not meet in bargaining again until the timeframe of the allegations of the complaint, ending
on March 24, 2009, had passed. All parties agree that at no time during the relevant period of
bargaining had an impasse been declared and at no time had an impasse in bargaining existed.
Bargaining has continued, at least to the end of the hearing in the instant case, without
agreement having been reached.
3. Analysis and conclusions
Consideration of allegations of bad-faith bargaining under the Act, includes consideration
of the parties conduct in bargaining but also require examination of all other conduct at relevant
times. For purposes of clarity of analysis, the two individual complaint bargaining conduct
allegations, complaint subparagraphs 20(b)(i) and (ii), are addressed separately and thereafter
the “over all conduct” bad-faith bargaining allegation, complaint subparagraph 20(c), will be
addressed which covers essentially the Respondent’s total bargaining conduct.
a. The allegation that the Respondent has insisted on bargaining proposals that are
predictably unacceptable to the Union, including but not limited to the Respondent’s
proposals on managements rights, grievance and arbitration, union bulletin board rights,
and discipline and discharge. Complaint subparagraph 20(b)(i)
The Board has long held that an employer’s rigid adherence to collective-bargaining
proposals that are predictably unacceptable to the union may indicate a predetermination not to
reach agreement in order to frustrate bargaining and undermine the statutory representative.
Lake Holiday Manor, 325 NLRB 469,470 (1998); Mar-Len Cabinets, 243 NLRB 523 (1979);
enfd. 695 F.2d 995 (9th Cir. 1981); Tomco Communications, Inc., 220 NLRB 636 (1975); Stuart
Radiator Core Mfg. Co., 173 NLRB 125 (1968); Procter & Gamble Mfg. Co., 160 NLRB 334, 336
(1966); Fitzgerald Mills Corp., 133 NLRB 877, 882 (1961), enfg. 313 F.2d 260 (2d Cir. 1962),
cert. denied 375 U.S. 834 (1964); NLRB. v. Herman Sausage Co., 275 F 2d 229 (5th Cir. 1960),
enfg. 122 NLRB 168 (1958), rehearing denied 277 F.2d 793 (5th Cir. 1960).
It is clearly not simply the unacceptability of the respondents contract proposals to the
other side that renders the conduct described in the cases improper but the purpose behind the
proposals and the defense of the proposals. Thus a genuine and sincerely held view may be
put forward and defended without violating the Act, Pease Co. v NLRB, 666 F.2d 1044 (9th Cir.
1981), but the rigid offering and defense of a range of proposals not for their own sake, but
rather because the party is aware the proposals are anathema to the other side, is bad faith
bargaining because there is no true intention by the offering party to reach agreement.
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Since motive is the underlying issue, these cases more commonly arise in the context of
an employer’s insistence, as here, on a broad management-rights’ clause as well as other
proposals which are predictably unacceptable to the labor organization representing the unit
employees. In applying the predictably unacceptable test, the Board emphasizes that it
understands and adopts the teachings of NLRB v. American National Insurance Co., 343 US
395 (1952), in which the Supreme Court held that an employer’s bargaining for a broad
management-functions clause was not an unfair labor practice. The Board has made it clear,
and the Respondent on brief emphasizes as well,47 that the entire bargaining circumstances
must always be kept in mind. Thus, the Board noted in Public Service Co. of Oklahoma (PSO),
334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003), at 334 NLRB 488:
Finally, it is axiomatic that under the NLRA neither the Board nor the courts may compel
concessions or otherwise sit in judgment upon the substantive terms of collective-
bargaining agreements. NLRB v. American National Insurance Co., 343 U.S. 395, 403–
404 (1952). However, “[e]nforcement of the obligation to bargain collectively is crucial to
the [NLRA] statutory scheme.” Id. at 402. Our examination of the Respondent’s
proposals in this proceeding is thus not to determine their merits, but instead to determine
whether in combination and by the manner proposed they evidence an intent not to reach
agreement. Coastal Electric Cooperative, 311 NLRB 1126, 1127 (1993).
The instant allegation focuses on the Respondent’s proposals concerning management
rights, grievance and arbitration, union bulletin board rights, and discipline and discharge. The
proposals are attacked by the General Counsel and the Charging Party for their broad and total
failure to do more than reflect the substantive terms and conditions of employment that were in
place before the Union became the employees’ representative and the tenacity and rigidity with
which the Respondent’s negotiators maintained these substantive proposals throughout the
negotiation.
The Respondent during negotiations readily conceded, if not affirmatively declaimed,
that its proposals and its bargaining intentions generally were designed to preserve the terms
and conditions of unit employees, the status quo, without making substantive concessions to the
Union. The items tentatively agreed upon during the course of the negotiations were essentially
proposals either on procedural or process changes to the Respondent’s then existing practices
or, on covered minor or less significant matters. The management rights language in important
ways sought to return the Respondent’s rights not just to the status quo of the state of affairs
when the Union was representing employees without a contract but seemingly to the earlier
“pre-representation” time when there was not employee representative and the Respondent
could take actions and make decisions without the duty or obligation to bargain with the unit
employees’ representative about such matters.
In turn the Union at all relevant times indicated that the heart of the noneconomic
aspects of the contract from its perspective required an objectification of standards, i.e.,
specification of production or other standards against which employees were to be measured, or
the identification of the standard to be applied as “reasonable.” Coupled with such identification

47 Counsel for the Respondent, on brief at 240, cites the Board’s decision in KFMB Stations,
Inc., 349 NLRB 373 (2007) in which the Board adopted the judge’s assertion, at 383: “Cases
are legion holding that the Board will not analyze an employer’s particular contract proposal to
determine whether it would be “‘acceptable”‘ to the union.”
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the Union sought the resolution of disputes by a third party, i.e., an arbitrator in binding
arbitration. In essence the Union made it clear that the contract must constitute a
transformation of the Respondent’s operation from an imperium where the employer’s decisions
were its own to make without final review without limiting standards and were unchallengeable
to a reasonable world to a new setting and circumstance under a contract where the application
of reasonable rules could be challenged and adjudicated before an outside arbitrator who had
final authority. This latter world, the Union’s negotiators insisted, was the world of represented
employees and collective-bargaining contracts, and it was the world the Respondent entered
when the employees selected the Union to represent them.
The position of the parties on these fundamental approaches did not shift during the
negotiations. While procedural changes were made in proposals, such as additional prearbitral
steps in the Respondent’s grievance process proposal, the parties positions remained
essentially as they began on the fundamental issues of the Respondent’s relinquishment of final
control and decision making respecting matters of disputes and discipline. The Respondent’s
demurral, or even rejection, of the Union’s view was matched by the Union’s negotiators
rejection of the Respondent’s proposals or the Union took the view that certain of the
Respondent’s proposals might be acceptable were the Union’s core principals incorporated.
The negotiations respecting the union bulletin board was somewhat different. The
Respondent was willing to provide contract language which would allow the Union to post union
materials in an identifiable location with restrictions on the type of materials posted. The
negotiations foundered on the Respondent’s insistence that it retain the right to preapprove any
and all materials the Union sought be posted. The Union balked an any preapproval process.
Procedural changes in the parties’ proposals were unable to span that critical difference.
The Union’s declamations that the Respondent’s proposals, to the extent they did not
accept the core principles of the Union, were predictably unacceptable, were met by the
Respondents answer that various collective-bargaining agreements known to it contained
provisions similar or even identical to those proposed by the Respondent and hence its
proposals were by virtue of that fact absolutely not predictably unacceptable. Further, as the
Respondent argued during the negotiations, the term “predictably unacceptable” was not a
statutory phrase in the language of the Act.
The bargaining herein must consider the larger context as will be undertaken below.
Initially, however, elements of both sides’ arguments here are correct. The Respondent is
correct that individual proposals of the type at issue here are not to be judged individually as per
se proper or improper. Further, the parties generally are entitled to seek to preserve their
bargaining positions and resist making concessions. The parties in the course of negotiations
and the interplay of economic forces are expected to reach their own agreement. It is not
intended by the statute that it substitute statutory terms for parties negotiated terms. Further, it
is not impermissible for there to be winners and losers in contract negotiations in the sense that
one party’s proposals may prevail to a greater or lesser degree over the other sides proposals.
The General Counsel and the Charging Party however are correct that the Respondent’s
consistent failure and refusal to accept binding arbitration and any limitation of the Respondent’s
unfettered power to decide at the final step all unit employee discipline matters, including
matters of measuring and judging employee performance, are predictably unacceptable to labor
organizations representing employees under the Act.
The Respondent made essentially two separate, albeit related, arguments on this issue.
First the Respondent notes the fact that at the time it made these proposals it knew of, and in
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some cases provided, contracts to the Union which contained the Respondent’s proposed
language and or which omitted the provisions the Union sought. It raised the existence of these
contracts with the Union to establish that such language could not be predictably unacceptable
since they existed in other settings. It made the same argument before me. I reject the notion
advanced or its logical force that the simple fact that a contract exists or existed somewhere in
another place and/or another time which contains certain language somehow anoints the
selected language of that contract as acceptable or not predictably unacceptable to the Union in
the context of the instant negotiations.
Second, in colloquy in negotiations, the Union argued that collective-bargaining
contracts containing grievance- and binding-arbitration language were commonplace in
America. The Respondent argued that there were a far greater number of nonunion employee
relationships with their employers which were not covered by contracts at all let alone binding
arbitration, implicitly arguing that that those unorganized employees relationships with their
employers must influence, if not control in their numerical superiority, the question of inherent
unreasonableness of given proposals. I reject the Respondent’s “nonunion” relationships
argument here. What is or is not predictably unacceptable to a labor organization in contract
negotiations with employers concerning their employees is not determined by the state of the
unrepresented world.
If the proposals under discussion were in fact predictably unacceptable at the time of
their offer, the remaining issue must be considered. What was the motive for their offer and
defense by the Respondent? In this connection, the Respondent argued and the record as a
whole sustains the proposition that the Respondent, through the consistent views of its owner,
was sincerely and very strongly intent upon, even determined, to preserve and retain for the
publisher all possible control over the Paper’s employment relationship with represented
employees, in essentially all possible permutations.
That fact of a strong need to retain essentially total control over the employee
relationships may be argued to show the Respondent’s motives were not to avoid or prevent
agreement in bargaining with the Union, but rather were not inconsistent with the Respondent’s
effort to reach an agreement which would maintain the Respondent’s control of the employees.
Or, it may be argued that the Respondent’s actions were designed to frustrate agreement and in
time thwart the Union and render it so obviously powerless and ineffective that the employees
would eventually reject the Union and allow the Respondent to return to the truly unfettered
control that only a nonrepresented employee complement would allow – the removal of any
obligation to bargain with an employee representative. The former motive is not inconsistent
with an intention to reach agreement with the Union. The latter motive is specifically focused on
not reaching an agreement, on thwarting the Union, and ending union representation.
Resolution of this critical factual issue, in this case, depends on evaluating the entire
record of the relations between the parties. Without that broader consideration, no
determination on the failure to bargain allegations may be confidentially reached. The
predictably unacceptable approach which focuses only on bargaining proposals and bargaining
conduct, on this record respecting the instant bargaining relationship, I conclude, does not
complete the necessary analysis of the bargaining issues before me. I therefore decline to
make conclusions based on this overly narrow view of the bargaining. The Act and the cases
simply require a broader analysis and consideration on the facts of this case.
All of the above, therefore, is but preamble to the consideration of the Respondent’s
bargaining in the context of the entire relationship over all relevant times. The cases make clear
that the larger view is essential to determine what is or is not predictably unreasonable. And
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further, the larger picture is necessary to determine if predictable unreasonableness of
proposals, in the context of both the totality of bargaining and other events, rises to the level of
surface bargaining. The larger picture must be considered to reach a final result. That analysis
will await the consideration of complaint paragraph 20(c) below.
b. The allegation that the Respondent has insisted as a condition of reaching any
collective-bargaining agreement with the Union that the Union agree to language in the
contract including, but not limited to, language pertaining to a management-rights
clause, that would grant the Respondent unilateral control over many terms and
conditions of employment. Complaint paragraph 20(b)(ii)
The theory of surface bargaining the General Counsel invokes in the quoted pleading is
that set forth by the Board in Public Service Co. of Oklahoma (PSO), 334 NLRB 487, 488–489
(2001), enfd. 318 F.3d 1173 (10th Cir. 2003):
Although the Board does not evaluate whether particular proposals are acceptable or
unacceptable, the Board will examine proposals when appropriate and consider
whether, on the basis of objective factors, bargaining demands constitute evidence of
bad-faith bargaining. Reichhold Chemicals, 288 NLRB 69 (1988), affd. in relevant part
906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991). An inference of bad-
faith bargaining is appropriate when the employer’s proposals, taken as a whole, would
leave the union and the employees it represents with substantially fewer rights and less
protection than provided by law without a contract.4

In such circumstances, the union is
excluded from the participation in the collective-bargaining process to which it is
statutorily entitled, effectively stripping it of any meaningful method of representing its
members in decisions affecting important conditions of employment and exposing the
employer’s bad faith. See A-1 King Size Sandwiches, [265 NLRB 850 (1982], at 859
fn. 4.
_______________________
4 A-1 King Size Sandwiches, 265 NLRB 850, 859–861 (1982), enfd. 732 F.2d 872, 877
(11th Cir. 1984), cert. denied 469 U.S. 1035 (1984); NLRB v. Johnson Mfg. Co. of
Lubbock, 458 F.2d 453, 455 (5th Cir. 1972); Eastern Maine Medical Center, 658 F.2d 1,
12 (1st Cir. 1981), enfg. 253 NLRB 224, 246 (1980); South Carolina Baptist Ministries,
310 NLRB 156, 157 (1993). See Logemann Bros. Co., 298 NLRB 1018, 1021 (1990).
In order to test the theory of the violation asserted, it is necessary to first identify the
Respondent’s proposals relevant to the claim and consider their impact as a whole on employee
rights.48
The General Counsel’s pleading by its terms identifies the Respondent’s management-
rights proposal as one of the contract proposals that would grant the Respondent unilateral
control over many terms and conditions of employment. The Respondents management-rights
article was proposed by the Respondent at the November 2007 bargaining session, the very
first bargaining between the parties, and is quoted in full supra. Its first section states:
Section 1. Except as expressly modified or restricted by a specific provision of this
Agreement the Employer reserves and retains, solely and exclusively, all of its normal,

48 This analysis is threshold to the final consideration of the bargaining in light of the entire
course of conduct of the parties both at and away from the bargaining table.
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statutory inherent, and common law rights prerogatives and functions to manage the
business, whether exercised or not, as such rights existed prior to the time any Union
became the statutory bargaining representative of the News Department employees of
the Employer.
The Respondent’s bargaining note attached to the management-rights proposal makes its
purpose clear: “This proposal represents the status quo for Santa Barbara News-Press.” The
discussion between the parties made it clear that the clause is an attempt by the Respondent to
retain control over many, indeed most, aspects of employees’ activities.
It is important to understand the reference point contained in the quoted management-
rights proposal Section 1. When the clause refers to the Respondent’s sole and exclusive
retention of all “rights prerogatives and functions to manage the business” “as such rights
existed prior to the time any Union became the statutory bargaining representative of the News
Department employees of the Employer,” the clause refers to a time before the Respondent had
any obligation to bargain with the Union under the Act. Thus, the clause unambiguously asserts
that “[e]xcept as expressly modified or restricted by a specific provision of this Agreement” the
Respondent will have no obligation to bargain with the Union or otherwise be obligated under
Section 8(a)(5) of the Act to deal with the Union during the contract’s life.
Section 2 of the Respondent’s management-rights proposal, quoted supra, contains an
exhaustive list of 18 specific categories of decisions effecting unit employees that are expressly
reserved exclusively to the Respondent with the Union having no bargaining rights respecting
them. Section 3 provides the Respondent unlimited license to utilize independent contractor
news writers and photographers. Section 5 provides a similar license to use managers and
supervisors to write or take pictures.
And, even beyond the life of the contract, the Respondent’s management’s rights
proposal if adopted would restrict the Union’s bargaining rights beyond the contract. The
Respondent’s proposal’s Section 6 states:
Section 6. The rights and prerogatives of Management, whether established by express
provisions (including this Article) or by practice, shall be deemed to be part of the status
quo that remains in effect after the expiration of this Agreement on ________ and until a
different agreement is reached or other lawful change is permitted.
Thus, Section 6 of the proposal would continue the life of the management-rights language
proposed and all its preemption or elimination of the Union’s collective-bargaining rights as
discussed until a new contract was reached. If the Respondent was prepared to stand firm on
insisting that the language be carried forward into new contracts, the Union’s representational
role as envisioned by the statute and Section 8(a)(5) of the Act would be eviscerated in
perpetuity.
Since the Respondent’s management’s rights proposal recognizes that the
Respondent’s freedoms under Section 1 are susceptible to being “expressly modified or
restricted by a specific provision of this Agreement,” it is also necessary to consider other of
Respondent’s proposal’s terms effect on the management-rights language. In other words, is
the management’s rights proposal limited in any significant way by the remainder of the contract
as proposed by the Respondent? To a significant degree, the contract as proposed by the
Respondent does not establish standards or specific conditions that might limit the reach and
power of Section 1 of the management right’s proposal.
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The Respondent’s discipline proposals have been quoted above. The Respondent’s
proposals very clearly reserves final decisions respecting the discipline and discharge of unit
employees to the Respondent’s unfettered discretion. Indeed the Respondent’s proposals
unambiguously recite the Respondent goal and the effect of the language is to preserve the
rights and responsibilities the Respondent had during prerepresentation days when the Union
had no bargaining rights, i.e., when all right and discretion to act was with the Respondent
exclusively and the Union had no rights whatsoever. That this fact was intentional is not in
dispute and is exemplified by the statements of the Respondent’s negotiators at the table and in
bargaining notes set forth in the Respondent’s written proposals that the proposals were
deliberately intended to reserve to the Respondent the establishment, modification and
application of all standards of employee discipline and conduct generally. This includes any
determination of whether employees have violated those standards of conduct, and includes the
determination and enforcement of any and all discipline, up to and including discharge, of unit
employees in respect to such matters. No standards of “just cause” or the limiting word
“reasonable” are included in the proposals, no mechanism of third-party adjudication of disputes
such as an arbitration clause is included in the Respondent’s proposals.49
The General Counsel and the Charging Party argue that the proposals of the
Respondent reflect in effect a proposed waiver by the Union of its bargaining rights so that the
Respondent could resume its pre-Union representation complete and unfettered control of the
Respondent’s operations in so far as unit employees are involved. They note that, were the
Union to accept the Respondent’s rigidly advanced and defended proposals to preserve the pre-
bargaining status quo, for the very limited rights specifically provided by the remainder of the
Respondent’s proposals, the Union and the unit employees they represent would be very much
worse off than if they simply settled for never having entered into an agreement at all. Indeed,
they argue, the postcontract effects of the Respondent’s proposals were such that, accepting
the Respondent’s proposals would not simply condemn the Union and unit employees to
severely diminished rights during the life of the contract, they would also be waiving their
representational and bargaining rights after the contract expired and potentially in perpetuity.
The Respondent emphasizes that there is no dispute that the parties were never at
impasse. The Respondent argues that it never insisted on or took a final position on its
management-rights proposal. It notes that it expressed implicit flexibility in the management-
rights clause when asking the Union if there were portions of it that the Union could agree to
and that the Union expressed tentative or potential acceptance of certain of the enumerated
reservations in the proposal. Rather the Respondent argues it was the Union that inflexibility
sought to restrict the Respondent by means of a grievance and arbitration clause and limited
management-rights clause and, in so doing “undermine and control the content of the
newspaper.” (The R. Posthearing Br. at 271.)
I do not accept the Respondent’s claims of flexibility respecting the management-rights
clause. The enumerations of various rights in Section 2 of the Respondent’s management-
rights proposal were discussed. That section opened with the caveat: “The sole and exclusive
rights of management which are not abridged by this Agreement shall include, but are not

49 While procedural steps providing the Union rights to participate and argue during the
discipline or dispute process, including participation in third-party mediation processes, are in
the Respondent’s proposals, they are all preamble to the absolute power of the Publishers to
take unreviewable final decisions in all aspects of discipline. The Respondent’s bulletin board
proposal does contain language that limits the Respondent to “reasonable” restrictions on union
postings.
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limited, to the following rights. . . .” Thus the inclusion or exclusion of a particular item in later
portions of the contract, without other changes, did not effect the substance or reach of the
earlier quoted language. And there was no demonstrated flexibility respecting the critical
Section 1 which in the broadest possible language waived the Union’s bargaining rights in their
entirety save for specific contractually provided rights. And as is noted, there was a paucity of
substantive rights set forth in the remainder of the contract proposals of the Respondent.
It is clear and I find that the proposals of the Respondent for a collective-bargaining
agreement, if accepted by and entered into by the Union, would without doubt have rendered
the Union and the unit employees worse off in terms of the statutory bargaining rights the Act
provides than if they had not agreed to a contract at all.
The Respondent is correct that the parties had not bargained to an impasse, as of the
final date of the complaint allegation in these regards and that the Respondent did not
characterize its proposals as last and final or in some other fashion as final. The absence of
such specific language or the state of impasse being reached does not however automatically
render the Respondent’s bargaining in these regards flexible. Rather the record is clear and I
find that the Respondent made it clear that critically as to the managements rights proposal but
also as to its proposals dealing with discipline and discharge, and grievance and arbitration, that
the Respondent was wedded to regaining control over decision making by obtaining the Union’s
waiver through the quoted contract language of its representation rights for the life of the
contract and beyond. Further, the Respondent explicitly in statements by its agents across the
table and in notes on proposals and in comments respecting proposals, made it clear that the
Respondent was happy with and saw no reason to depart from the pre-Union, prebargaining
obligation, substantive status quo package of rights and powers that gave it unfettered final
decision making authority over its unit personnel and its operations. And, during the 2007–2009
period at issue it held to that position.50
I find that the Respondent’s proposals as described and insisted on as described, simply
overreached.
When the employer’s proposals, considered as a whole, vest nearly total discretion in
the employer while offering little in return, this does not look like the conduct of an
employer sincerely attempting to reach agreement, but rather is evidence that it is not
seeking to bargain in good faith. Hydrotherm, Inc., 302 NLRB 990, 995 (1991).
c. The allegation that the Respondent, by its overall conduct has failed and refused to
bargain in good faith. Complaint subparagraph 20(c)
The Board has long made it clear that table bargaining allegations must be resolved by
considering all aspects of the parties’ relationship at and away from the bargaining table. It
recently restated this doctrine in Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001),
enfd. 318 F.3d 1173 (10th Cir. 2003), 334 NLRB at 488:
In determining whether a party has violated its statutory duty to bargain in good faith, the
Board examines the totality of the party’s conduct, both at and away from the bargaining
table. See, e.g., Overnite Transportation Co., 296 NLRB 669, 671 (1989), enfd. 938
F.2d 815 (7th Cir. 1991); Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). From

50 As discussed, both supra and infra, the Respondent did withdraw its broad no-strike
proposal in February 2008.
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the context of an employer’s total conduct, it must be decided whether the employer is
engaging in hard but lawful bargaining to achieve a contract that it considers desirable or
is unlawfully endeavoring to frustrate the possibility of arriving at any agreement. Id.
Although the Board does not evaluate whether particular proposals are acceptable or
unacceptable, the Board will examine proposals when appropriate and consider
whether, on the basis of objective factors, bargaining demands constitute evidence of
bad-faith bargaining. Reichhold Chemicals, 288 NLRB 69 (1988), affd. in relevant part
906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991).
The relevant complaint paragraph at issue explicitly recognizes and incorporates the “totality of
the party’s conduct, both at and away from the bargaining table” standard. All parties
recognized the Board’s quoted analytical approach. It will be applied here.
The specific proposals and conduct occurring at the table respecting negotiations have
been discussed in the two immediately preceding sections. I have found as the Respondent
argued that there is no duty on the Respondent’s part to make concessions simply because the
employees have selected a labor organization to represent them. I have further found, again as
the Respondent has argued, that viewing itself as having essentially resisted the Union’s
economic pressure campaign, it was generally entitled to seek to impose its economic
proposals on the Union. I further noted however that the Respondent’s substantive proposals
sought, essentially uniformly, to entrench and encapsulate in its proposed contract the pre-
bargaining terms and conditions of unit employees’ employment.
Importantly, I further found that the Respondent’s proposals to an extraordinary degree
sought to remove by union contractual waiver the Union’s rights to bargain with the Respondent
regarding matters not explicitly controlled by the contract. This fact coupled with the general
revanchist nature of the entirety of the Respondents proposed contract clearly rendered the
Union better off refusing to enter into the Respondent’s proposed contract and accepting a
relationship which while without a contract’s limitations on Respondent’s actions also did not
including any waivers of the Union’s bargaining rights.
In these regards, however, I further noted that the Respondent had explicitly withdrawn
its no-strike proposal leaving the Union and unit employees free to engage in strikes in
furtherance of contract disputes under the Respondent’s proposed contract. I also noted that
although the parties had been in negotiations for some time and that the Respondent’s
proposals in relevant part as to the substantive matters noted here had remained firmly held, the
parties were at no time at impasse. And no party had declared that impasse was at hand.
Turning to the procedural aspects of bargaining, I have found and concluded that the
parties did not engage in improper bargaining in matters not discussed herein. Although each
party viewed the others actions and conduct regarding certain procedural matters with alarm, I
found that the conduct at the table was not wrongfully abusive or non-cooperative, that the
parties agreement and occasional disagreement on dates, times and places for bargaining was
not improper, and that the procedural aspects of bargaining were not improper.
I have in earlier sections of this decision considered a host of other allegations including
alleged violations of Section 8(a)(5), (1), and (3) of the Act, and various allegations of Union
and General Counsel misconduct as alleged by the Respondent. As set forth supra, I have not
sustained the Respondent’s contentions of misconduct. I have however, as set forth supra,
found a wide range of unfair labor practices committed by the Respondent.
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These unfair labor practices as set forth in full above include violations of Section 8(a)(5)
of the Act respecting unilateral changes involving nonunit employees, direct dealing with
employees bypassing the Union, unreasonable delays in providing information to the Union and
factual misstatements made during bargaining in response to information requests.
The violations of Section 8(a)(1) and (3) of the Act, which comprise a host of violations
which are again set forth in detail supra and will not be duplicated here, include employee
discharges, denials of annual bonuses, improper use of other employer’s employees to do unit
work, and improper communications to employees both orally and by memorandum. These
events occurred conterminously with the negotiations at issue here.
Considering all the above, on the record as a whole, including the arguments of the
parties and the credibility of the witnesses, viewing the entire relationship for purposes of
evaluating the bargaining allegations, I find without difficulty that the Respondent engaged in a
course of bad-faith bargaining in these negotiations for a first contract.51 As discussed, the
Respondent’s proposals in their totality and, despite the fact that no impasse had occurred in
bargaining and that the Respondent’s no-strike proposal was withdrawn, throughout the
bargaining, required the Union to in essence abandon its bargaining rights in order to obtain a
contract, which contract, as a recitation of the Respondent’s proposals, would essentially and
without other than procedural exception, return the substantive relationship between the parties
to that obtaining before the Union obtained bargaining rights for the Respondent’s unit
employees, i.e. the Union would have its role diminished to a point approaching elimination.
Thus the Respondent at all times and without material modification of the total package of
substantive proposals in these regards, offered no outcome but abandonment of the Union’s
bargaining rights not only for the life of the contract but until and unless the Respondent agreed
to remove the waiver by agreeing to a contract that did not contain such a limitation.
Without more this conduct would sustain a finding of Section 8(a)(5) bad-faith
bargaining. But coupled with that conduct, the Respondent herein was simultaneously
conducting an ongoing broad and pernicious pattern of unfair labor practices designed to delay
bargaining and undermine the Union’s strength and support among unit employees. Employees
of outside employment referral agencies were improperly used to do unit work. Unit employees
were wrongfully denied annual bonuses. Employees were wrongfully coerced by statements of
management and by memo from the Publisher. Employers were dealt with directly; bypassing
the Union. Repetitive failures to notify and bargain concerning changes in working conditions
took place. Employees were discharged because of their union activities. This is serious stuff
and well supports the finding that the Respondent was fundamentally opposed to union
representation of its employees had no intention to enter into a collective-bargaining agreement
with the Union, save one which would geld it, leaving the unit employees essentially
unrepresented by contractual waiver.
Given these findings, I further find that the Respondent by engaging in the conduct
noted, failed and refused to bargain with the Union in good faith and in so doing, violated
Section 8(a)(1) and (5) of the Act as alleged. I therefore also sustain the General Counsel’s
complaint paragraph 20(c).

51 “[T]he Board should be especially sensitive to claims that bargaining for a first contract
has not been in good faith. Thus, the fact that the bargaining is for a first contract, especially
after a contentious election campaign, would be one of the circumstances to consider in
evaluating the bona fides of the bargaining.” APT Medical Transportation, 333 NLRB 760, 760
fn. 4 (2001).
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CONCLUSIONS OF LAW
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. The Respondent is, and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is, and has been at all relevant times, a labor organization within
the meaning of Section 2(5) of the Act.
3. At all times since September 27, 2006, based on Section 9(a) of the Act, the Union
has been the exclusive representative of the following unit of the Respondent’s employees for
purposes of collective bargaining:
All full-time and regular part-time employees in the news department, including writers,
reporters, copy editors, photographers, and graphic artists employed at the
Respondent’s Anacapa Street facility located in Santa Barbara, California, but excluding
all other employees, guards, confidential employees, supervisors as defined in the Act,
as amended, and writers and editors engaged primarily in working on the opinion
editorial pages.
The unit is appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. The Respondent violated Section 8(a)(1) of the Act by engaging in the following acts
and conduct:
(a) Issuing a letter to employees from the owner and Publisher discouraging
employees from cooperating with the Board’s on-going investigation of pending unfair labor
practices and offering to provide its own attorney to represent employees who are contacted
by the Board.
(b) Instructing employees that anything that might be said at an employee meeting,
including statements concerning employees terms and conditions of employment or other
statements about their working conditions were confidential, proprietary, and could not be
discussed by employees outside the meeting.
5. The Respondent violated Section 8(a)(3) and (1) of the Act by engaging in the
following acts and conduct because the employees of the Respondent formed, joined, or
assisted the Union and engaged in protected concerted activities and to discourage employees
from engaging in these activities:
(a) Transferring work from the bargaining unit to agency employees who were not
employees of the Respondent.
(b) Transferring unit work to nonemployee Robert Eringer.
(c) On or about August 23, 2008, suspending employee Dennis Moran.
(d) On or about August 30, 2008, discharging its employee Dennis Moran.
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6. The Respondent violated Section 8(a)(5) and (1) of the Act by engaging in the
following acts and conduct:
(a) Failing and refusing as set forth in the body of this Decision to furnish the Union
with information requested by it which was necessary for and relevant to the Union’s
performance of its duties as the exclusive representative of bargaining unit employees in a
reasonable time under all the circumstances but rather delayed unreasonably in providing
the requested information:
(b) Transferring unit work from unit employees to outside agency employees and
failing and refusing to notify and provide the Union an opportunity to bargaining concerning
the Respondent’s decision to utilize outside agency employees to do unit work and the
effects of such a decision on unit employees.
(c) Failing to grant its unit employees a merit increase in December 2006 or January
2007, in recognition of work performance during 2006.
(d) Failing to grant its unit employees a merit increase in December 2007 or January
2008, in recognition of work performance during 2007.
(e) Failing to grant its unit employees a merit increase in December 2008 or January
2009, in recognition of work performance during 2008.
(f) Failing to notify and offer to bargain with the Union concerning its determination to
delay performance evaluations of unit employees as part of the Respondent’s performance
evaluation system in or around November 2007, and implementing the delay unilaterally.
(g) On or about January 7, 2009, laying off its employee Richard Mineards without
notifying or offering to bargain with the Union concerning his discharge or the effects of this
discharge.
(h) On or about August 23, 2008, suspending employee Dennis Moran without
notifying or offering to bargain with the Union concerning his suspension.
(i) On or about August 30, 2008, discharging its employee Dennis Moran without
notifying or offering to bargain with the Union concerning his discharge or the effects of this
discharge.
(j) On or about December 3, 2008, announcing a requirement that unit employees
produce at least one story per day without notifying or offering to bargain with the Union
respecting the new policy.
(k) On or about January 14, 2009 and continuing to about January 16, 2009,
bypassing the Union and dealing directly with its employees in the unit by offering a unit
employee nonunit terms and conditions of employment.
(l) Bargaining in bad faith with the Union concerning unit employees’ terms and
conditions of employment by insisting as a condition of reaching any collective-bargaining
agreement with the Union that the Union agree to language in the contract that would grant
the Respondent unilateral control over many terms and conditions of employment and leave
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the Union and the bargaining unit employees worse off than if they went without an
agreement.
7. The unfair labor practices described above are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not violate the Act as alleged in the complaint save as
specifically found in this Decision and the complaint allegations not sustained above shall be
dismissed.
REMEDY
Having found that the Respondent violated the Act as set forth above, I shall order that it
cease and desist therefrom and post remedial Board notices addressing the violations found.
The language on the Board notices will conform to the Board’s decision in Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), that reiterates the logic of the proposition that remedial
notices should be drafted in plain, straightforward, layperson language that clearly informs
employees of their rights and the violations of the Act found.
The Respondent having wrongfully suspended or discharged certain of its employees,
must offer them reinstatement and make them whole for any loss of earnings and other benefits,
with interest which shall be computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as described below.
Respecting the remedy for the wrongful unilateral layoff of employee Richard Mineards,
the Board’s decision in Eugene Iovine, Inc., 353 NLRB No. 36 (2008), provides that
reinstatement and a standard make-whole remedy including backpay, with interest, is
appropriate where economic layoffs have not been properly bargained as found herein. That
remedy shall be directed herein.
Unit employees who suffered injury in the form of loss of work as a result of the
Respondent’s improper assignment of unit work to outsiders, shall be made whole for any loss
of earnings and other benefits, plus interest as set forth below.
The General Counsel seeks compound interest on the sums due herein. The Board in
its recent case, ADF, Inc., and its alter ego ADLA, LLC, 355 NLRB No. 14 (February 26, 2010)
stated at slip op. at 1 fn. 4:
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., Cardi Corp., 353 NLRB No. 97,
slip op. at 1 fn. 2 (2009); Rogers Corp., 344 NLRB 504, 504 (2005).
I therefore decline the General Counsel’s request and shall direct interest be calculated and
paid consistent with the Board’s current view. See New Horizons for the Retarded, 283 NLRB
1173 (1987).
The Respondent is obligated to remedy its improper unilateral changes as found herein.
At the Union’s request, the Respondent shall restore the unit employees’ terms and conditions
of employment as they existed before the Respondent’s improper unilateral changes and
maintain those conditions, unless and until the Respondent either reaches agreement with the
Union respecting proposed changes or properly implements its proposal following a valid
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impasse in bargaining. Further, the Respondent shall make unit employees whole, with interest,
for any and all losses they incurred by virtue of the Respondent’s unlawful unilateral changes in
employees’ terms and conditions of employment as found herein and as more specifically
provided above.
The General Counsel seeks a broad cease-and-desist order noting that an important
factor in such a determination is whether the employer displays “an attitude of opposition to the
purposes of the Act to protect the rights of employees generally.” May Dept. Stores Co. v.
NLRB, 326 US 376, 392 (1945). The typical requirement justifying the “in any other manner”
limitation is the proclivity to violate the Act and general disregard for employees’ fundamental
rights. Hickmott Foods, 242 NLRB 1357 (1979). The Board has continued to direct the broad
remedy in appropriate cases: Pan American Grain Co., 346 NLRB 193, 193 fn. 2 (2005). The
General Counsel notes that the Respondent was issued a broad remedial order by Judge Kocol
in his decision, Santa Barbara News-Press, Case 31–CA–27950, JD(SF)-37-07, slip op. at 72
(December 26, 2007). I agree the instant case falls well within the parameters of the cited
cases. I shall therefore direct a broad cease-and-desist order apply herein.
The General Counsel also urges that the Respondent be required to have a high-ranking
official read the notice aloud to employees or be present at its reading to employees by a Board
agent. Counsel points out the broad sweep of the unfair labor practices committed by the
Respondent herein and notes “the public reading of the notice is an effective but moderate way
to let in a warning wind of information and more important, reassurance.” McAllister Towing &
Transportation Co., 341 NLRB 400 (2004) (internal quotations omitted). The Three Sisters
Sportswear, 312 NLRB 853 (1993).
Judge Kocol was asked for the same remedy in his earlier case and held:
Citing McAllister Towing & Transportation Co., 341 NLRB 394, 400 (2004), the General
Counsel also seeks an order requiring Steepleton to read to the employees, or at the
option of the News-Press, to have a Board agent read, the Notice to Employees in this
case. While the issue is close, I conclude the broad cease and desist order should be
adequate to prevent further violations and assure employees of their rights under the
Act. Of course, if the News-Press continues to violate the Act additional remedial
measures might be necessary. (Santa Barbara News-Press, Case 31–CA–27950,
JD(SF)-37-07, slip op. at 72 (December 26, 2007)).
Given the fact that the Respondent has continued to violate the Act and the fact that it
has continued to do so in a wide ranging and significant manner involving numerous of
Respondent’s agents, including its highest officials, as noted supra, it is appropriate that this
special remedy be directed. I shall therefore require the Respondent to permit a Board agent at
a location at the Respondent’s Santa Barbara facilities, of sufficient size and otherwise
appropriate for such an address, to real aloud the notice set forth herein to all unit employees
and newsroom supervisors and management in the presence of a high management official of
the Respondent. The Respondent may, at its option, elect that the notice be read aloud at the
same location to the audience indicated by the high management official rather than a Board
agent.
The General Counsel also requests that the certification year in the representation case
in which the Union was certified, Case 31–RC–8602, be extended “to insure that the employees
are accorded the service of their selected bargaining agent for the period provided by law.
Mercedes-Benz of Orlando, 354 NLRB No. 72, slip op. at 2 (2009). Since the Respondent’s
unfair labor practices as found by Judge Kocol in JD(SF)-06-07 (2007) remain unremedied
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along with the unfair labor practices found herein and, most importantly, because the
Respondent engaged in its bad-faith bargaining from the very onset of face to face negotiations
with the Union and continued its bad-faith bargaining thereafter throughout the period litigated,
the Union has been deprived of all opportunities to engage in good-faith bargaining. Thus, the
good-faith bargaining which was intended to occur in the certification year has not yet begun.
Given this critical fact, I find it appropriate to order as part of the remedy herein that the
Respondent as part of it obligation to commence bargaining in good faith with the Union, do so
and continue to do so, as if the certification year in Case 31–RC–8602 begins at the moment of
commencement of the first face-to-face bargaining in good faith after the unfair labor practices
found herein have been fully remedied.
The unfair labor practices found herein, but not specifically discussed in the portion of
this Decision entitled “Remedy” shall be remedied in accordance with current Board decisional
law. Omission to include discussion of such traditional unfair labor practice remedies in the
remedy discussion herein respecting each and every sustained allegation, is not to suggest
standard remedies for the violations found are not required.
Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended Order52
ORDER
The Respondent, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing letters or other communications to employees from the owner and
copublisher discouraging employees from cooperating with the Board’s on-going investigation of
pending unfair labor practices and offering to provide its own attorney to represent employees
who are contacted by the Board.
(b) Instructing employees that anything that might be said at an employee meeting,
including statements concerning employees terms and conditions of employment or other
statements about their working conditions were confidential, proprietary, and could not be
discussed by employees outside the meeting.
(c) Transferring work from the bargaining unit to outside agency employees who
were not unit employees of the Respondent because the unit employees of the Respondent
formed, joined, or assisted the Union and engaged in protected concerted activities and to
discourage employees from engaging in these activities.
(d) Transferring unit work to nonemployee Robert Eringer because the employees of
the Respondent formed, joined, or assisted the Union and engaged in protected concerted
activities and to discourage employees from engaging in these activities

52 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 shall be waived for all
purposes.
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(e) Suspending employee Dennis Moran because the employees of the Respondent
formed, joined, or assisted the Union and engaged in protected concerted activities and to
discourage employees from engaging in these activities.
(f) Discharging employee Dennis Moran because the employees of the Respondent
formed, joined, or assisted the Union and engaged in protected concerted activities and to
discourage employees from engaging in these activities.
(g) Failing and refusing to furnish the Union with the information requested by it
which was necessary for and relevant to the Union’s performance of its duties as the exclusive
representative of bargaining unit employees in a reasonable time under all the circumstances
but rather delaying unreasonably in providing the requested information.
(h) Transferring unit work from unit employees to outside agency employees and
failing and refusing to notify and provide the Union an opportunity to bargain concerning the
Respondent’s decision to utilize outside agency employees to do unit work and the effects of
such a decision on unit employees.
(i) Failing to grant its unit employees a merit increase in December 2006 or January
2007, in recognition of work performance during 2006, without notifying the Union and offering it
an opportunity to bargain respecting the decision to not grant merit increases in this period.
(j) Failing to grant its unit employees a merit increase in December 2007 or January
2008, in recognition of work performance during 2007, without notifying the Union and offering it
an opportunity to bargain respecting the decision to not grant merit increases in this period.
(k) Failing to grant its unit employees a merit increase in December 2008 or January
2009, in recognition of work performance during 2008, without notifying the Union and offering it
an opportunity to bargain respecting the decision to not grant merit increases in this period.
(l) Failing to notify and offer to bargain with the Union concerning delay in the timing
of performance evaluations of unit employees as part of the Respondent’s performance
evaluation system in or around November 2007, and implementing the delay unilaterally.
(m) Laying off its employee Richard Mineards without notifying or offering to bargain
with the Union concerning his discharge or the effects of this discharge.
(n) Suspending employee Dennis Moran without notifying or offering to bargain with
the Union concerning his suspension.
(o) Discharging employee Dennis Moran without notifying or offering to bargain with
the Union concerning his discharge or the effects of this discharge.
(p) Announcing a requirement that unit employees produce at least one story per day
without notifying or offering to bargain with the Union respecting the new policy.
(q) Bypassing the Union and dealing directly with its employees in the unit by offering
an employee nonunit terms and conditions of employment.
(r) Bargaining in bad faith with the Union concerning unit employees’ terms and
conditions of employment by insisting as a condition of reaching any collective-bargaining
agreement with the Union that the Union agree to language in the contract that would grant the
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Respondent unilateral control over many terms and conditions of employment and leave the
Union and the bargaining unit employees worse off than if they simply did not enter into a
collective bargaining agreement.
(s) Assigning freelance employee, Robert Eringer, unit work in order to weaken the
Union as the representative of unit employees.
(t) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
(a) Offer Dennis Moran and Richards Mineards 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 or privileges previously enjoyed, in the manner described in the
Remedy portion of this Decision.
(b) Make Dennis Moran and Richard Mineards whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, with interest, in the
manner described in the remedy section of this Decision.
(c) Remove from its files any reference to the unlawful employment actions against
Dennis Moran and Richard Mineards, and within 3 days notify each that this has been done and
that the wrongful discrimination will not be used against him in any way.
(d) Make its unit employees whole for any losses they may have suffered by reason
of the Respondent’s discontinuance of its program of merit pay raises or the Respondent’s
delay in the timing of performance evaluations of unit employees, in each case with interest, in
the manner set forth in the remedy section of this Decision and, on request, bargain with the
Union about the granting of merit raises and the timing of performance evaluations of unit
employees in the future.
(e) Restore all unit work transferred to nonemployees of the Respondent referred by
outside agencies and make its unit employees whole for any losses they may have suffered by
reason of the Respondent’s wrongful unilateral use of such nonemployees to do unit work, with
interest as provided in the remedy section of this Decision.
(f) Within 14 days after service by the Region, post copies of the attached Notice at
its Santa Barbara, California facilities set forth in the Appendix.53 Copies of the notice, on forms
provided by the Regional Director for Region 31, 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 each of the facilities where unit employees are employed. Reasonable
steps shall be taken by the Respondent to ensure the notices are not altered, defaced, or
covered by other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed one or more of the California facilities involved

53 If this Order is enforced by a Judgment of the 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.”
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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 the
closed facility at any time after March 24, 2009.
(g) 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.
(h) Within 14 days after service by the Region, permit a Board agent, at an
appropriate location within the Respondent’s Santa Barbara, California facility, to read aloud to
all employees in the appropriate unit the notice marked “Appendix” in the presence of a
responsible management official. The Respondent may elect to have the notice read by a high
management official rather than by a Board agent in the same setting and circumstances.
The allegations of the complaint not sustained herein shall be, and they hereby are,
dismissed.
Dated, Washington, D.C., May 28, 2010.
______________________
Clifford H. Anderson
Administrative Law Judge
JD(SF)–20–10
Santa Barbara, California
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
FEDERAL LAW GIVES EMPLOYEES 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
Chose not to engage in any of these protected activities
After a trial at which we appeared, argued, and presented evidence, the National Labor
Relations Board has found that we violated the National Labor Relations Act and has directed
us to post this notice to employees, have it read aloud to employees, and to abide by its terms.
Accordingly, we give our employees the following assurances.
WE WILL NOT issue letters or other communications to employees from the owner and
Copublisher discouraging employees from cooperating with the Board’s on-going investigation
of pending unfair labor practices and offering to provide its own attorney to represent employees
who are contacted by the Board.
WE WILL NOT instruct employees that anything that might be said at an employee meeting,
including statements concerning employees terms and conditions of employment or other
statements about their working conditions were confidential, proprietary and could not be
discussed by employees outside the meeting.
WE WILL NOT transfer work from the bargaining unit to outside agency employees who were
not employees of the Respondent.
WE WILL NOT transfer unit work to nonemployee Robert Eringer.
WE WILL NOT suspend and/or discharge employee Dennis Moran or any other employee
because of his union or other protected concerted activities or to discourage other employees
from supporting the Union.
At all times since September 27, 2006, based on Section 9 of the Act, the Union, the
Graphic Communication Conference, International Brotherhood of Teamsters, has been the
exclusive representative of the following unit of the our employees for purposes of collective
bargaining:
JD(SF)–20–10
Santa Barbara, California
All full-time and regular part-time employees in the news department, including
writers, reporters, copy editors, photographers, and graphic artists employed at the
Respondent’s Anacapa Street facility located in Santa Barbara, California, but excluding
all other employees, guards, confidential employees, supervisors as defined in the Act,
as amended, and writers and editors engaged primarily in working on the opinion
editorial pages.
The unit is appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
We are obligated by Federal labor law under the National Labor Relations Act to bargain with
the Union as the exclusive representative of unit employees concerning their terms and
conditions of employment. In conjunction with that obligation, we give you these further
assurances:
WE WILL NOT unreasonably delay in furnishing the Union with information requested by it
which was necessary for and relevant to the Union’s performance of its duties as the exclusive
representative of bargaining unit employees.
WE WILL NOT fail to notify and offer to bargain with the Union respecting the economic layoff,
disciplinary suspension, or disciplinary discharge of unit employees.
WE WILL NOT transfer unit work from unit employees to outside agency employees and fail
and refuse to notify and provide the Union an opportunity to bargaining concerning the
Respondent’s contemplated decision to utilize outside agency employees to do unit work and
the effects of such a decision on unit employees.
WE WILL NOT fail to grant our unit employees merit increases without first notifying the Union
and providing an opportunity to bargain respecting such a decision to depart from past practice
for the period December 2006 through January 2009.
WE WILL NOT lay off, suspend or discharge employees without first notifying the Union these
actions are under consideration and providing an opportunity to bargain respecting such a
decision and its effects.
WE WILL NOT discharge or hire individuals as nonunit employees rather than unit employees
in order to weaken the Union as the unit employees’ representative.
WE WILL NOT announce new requirements that unit employees produce at least one story per
day without first notifying and offering to bargain with the Union respecting the proposed new
policy.
WE WILL NOT bypass the Union and deal directly with our employees in the unit by offering
unit employees’ nonunit terms and conditions of employment to do unit work.
WE WILL NOT bargain in bad faith with the Union concerning unit employees’ terms and
conditions of employment by insisting as a condition of reaching any collective-bargaining
agreement with the Union that the Union agree to language in the contract that would grant the
News-Press unilateral control over many terms and conditions of employment and in
consequence leave the Union and the bargaining unit employees worse off than if they declined
to enter into such an agreement and simply did without a contract.
JD(SF)-20-10
Santa Barbara, California
WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor Relations Act.
WE WILL offer Dennis Moran and Richards Mineards full reinstatement to their former unit
positions 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 Dennis Moran and Richard Mineards whole for any loss of earnings and other
benefits suffered as a result of our discrimination against them, with interest.
WE WILL remove from our files any reference to the unlawful employment actions against
Dennis Moran and Richard Mineards, and within 3 days WE WILL notify each that this has been
done and that those wrongful actions will not be used against either in any way.
WE WILL make our unit employees whole for any losses they may have suffered by reason of
the Respondent’s transfer of unit work to employees of outside agencies and by reason of our
discontinuance of our program of merit pay raises for performance years 2006–2008 or as the
result our delay in the timing of performance evaluations of unit employees for performance year
2007, in each case with interest, and, on request, WE WILL bargain with the Union about the
transfer of work outside the unit and the granting of merit raises and the timing of performance
evaluations of unit employees in the future before we deviate from past practice.
WE WILL restore all unit work transferred to nonemployees of the Respondent referred by out
agencies and make its unit employees whole for any losses they may have suffered by reason
of our wrongful unilateral use of such nonemployees to do unit work.
JD(SF)-20-10
Santa Barbara, California
WE WILL convert Robert Eringer to unit employee, if we utilize his services, and will not hire
him as a freelance employee doing unit work in order to weaken the Union as the representative
of unit employees.
AMPERSAND PUBLISHING, LLC
d/b/a SANTA BARBARA NEWS-PRESS
(The Respondent)
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
Regional Office set forth below. You may also obtain information and an electronic version of
this decision from the Board’s website: www.nlrb.gov.
National Labor Relations Board
Region 31
888 South Figueroa Street, 9th Floor,
Los Angeles CA 90017-5449
(213) 894-5200, Hours: 8:30 a.m. to 5 p.m.
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, (213) 894-5229.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC DOCUMENTS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the
Decision of which this Notice is a part may do so by contacting the Board’s Offices at the
address and telephone number appearing immediately above or may also obtain an electronic
version of this decision from the Board’s website: www.nlrb.gov.
.
JD(SF)-20-10
Santa Barbara, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AMPERSAND PUBLISHING, LLC Cases 31-CA-28589
d/b/a SANTA BARBARA NEWS-PRESS 31-CA-28661
31-CA-28667
31-CA-28700
31-CA-28733
31-CA-28734
31-CA-28738
and 31-CA-28799
31-CA-28889
31-CA-28890
31-CA-28944
31-CA-29032
31-CA-29076
GRAPHIC COMMUNICATIONS CONFERENCE, 31-CA-29099
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 31-CA-29124
Table of Contents
Statement of the Case......................................................................................................................1
Findings of Fact ................................................................................................................................5
I. Jurisdiction..................................................................................................................................5
II. Labor Organization .....................................................................................................................5
III. The Alleged Unfair Labor Practices............................................................................................5
A. Background ...........................................................................................................................5
1. Earlier Cases Involving the NLRB and the Respondent ..................................................5
2. The Pre-Union Events and Circumstances ......................................................................7
3. The Events during which the Union Comes to Represent News Department
Employees and the Issuance of the Judge Kocol Decision .............................................8
4. Events Respecting Bargaining .........................................................................................9
B. Allegations of the Complaint .................................................................................................9
1. Independent Violations of Section 8(a)(1) of the Act........................................................9
2. Violations of Section 8(a)(3) of the Act...........................................................................10
3. Violations of Section 8(a)(5) of the Act...........................................................................12
C. Initial Comments and Findings on Questions of Relevance, Motivation, and
Credibility.............................................................................................................................17
1. Resolution of Allegation of the Complaint ......................................................................17
2. The Respondent’s Assertions of Misconduct as a Defense...........................................17
a. General Misconduct and Malfeasance by the General Counsel of the NLRB ..........17
b. Specific Allegations of Misconduct by the General Counsel in Prosecuting
Claims the investigation of which revealed evidence that would defeat the
allegation or in issuing Complaints where clear evidence to defeat the
claim exists ................................................................................................................18
3. Misconduct and Unfair Labor Practices by the Union ....................................................24
a. The Controversy Respecting the Union’s Use of Economic Weapons.....................24
b. The Argument the Union’s Bargaining Conduct was Improper and
Constitutes a Defense to the Allegations Against the Respondent...........................26
D. Allegations Respecting the Respondent’s Use of Employment Agencies..........................28
1. An Initial Caution about a Potential Ambiguity Regarding these Allegations.................28
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2. Issues Respecting Respondent’s Use of Employment Agencies ..................................28
3. Initial Facts, Events, and Allegations Respecting the Use of Employment
Agencies..........................................................................................................................29
4. Are the Employment Agency-Referred Individuals Within the Bargaining Unit? ...........35
5. Was the Respondent’s Use of Agency Employees a Violation of Section
8(a)(5) and (1) of the Act? ..............................................................................................37
a. The General Counsel’s Prima Facie Case................................................................37
b. Was the Respondent’s Use of Agency-Provided Employees to do Unit Work
a Benign Continuation of a Legally Sufficient Past Practice? ...................................38
c. Summary and Conclusion Respecting the Unilateral Subcontracting Allegation......40
6. Was the Respondent’s Use of Outside Agency Employees to do Unit Work a
Violation of Section 8(a)(3) and (1) of the Act? ..............................................................41
a. The Parties’ Positions and the Applicable Case Law................................................41
b. The Timing of Events ................................................................................................42
c. Findings and Conclusions Respecting the Respondent’s Use of Agency
Employees as a Violation of Section 8(a)(3) and (1) of the Act ................................43
E. Was the Response of the Respondent to the Union’s Information Requests
Concerning the Respondent’s Use of Outside Agencies to Provide Unit Workers a
Violation of Section 8(a)(5) of the Act?...............................................................................45
1. Events Relevant to the Information Requests...............................................................45
2. The Complaint Allegations Regarding the Temporary Agency Employee
Information Requests ....................................................................................................50
3. Analysis and Conclusions Regarding Delay .................................................................51
a. The Preliminary Matters ...........................................................................................51
b. The Issue of Delay ...................................................................................................52
F. Allegations Respecting Employee Richard Mineards .........................................................54
1. Complaint Allegations Respecting Mineards..................................................................54
2. Facts Respecting Mineards............................................................................................54
3. Analysis and Conclusions Respecting the Mineards’ Allegations..................................55
a. Did the Respondent’s Alleged Failure to Timely Notify and Offer to Bargain
With the Union Regarding the Mineards’ Layoff and or its Direct Dealing
With Mineards Violate Section 8(a)(5) and (1) of the Act?........................................55
b. Did the Respondent’s Layoff of Mineards Violate Section 8(a)(1) and (3)
of the Act? .................................................................................................................58
c. Was the Delay in the Response of the Respondent to the Union’s Information
Request Concerning Mineards a Violation of Section 8(a)(5) of the Act? ................59
G. Allegations Respecting Employee Robert Eringer .............................................................61
1. Complaint Allegations Respecting Eringer .....................................................................61
2. Facts, Positions of the Parties, and Basic Issues Respecting the Eringer
Allegations ......................................................................................................................61
3. Analysis and Conclusions Respecting the Eringer Allegations......................................63
a. The Section 8(a)(1) and (5) Allegations ....................................................................63
b. The Section 8(a)(1) and (3) Allegations ....................................................................65
H. The Respondent’s August 22, 2008 Letter to Employees ..................................................67
1. Allegations and Facts Concerning the August 22, 2008 Communication ......................67
2. Analysis and Conclusions Respecting the August 22, 2008 Memo Allegations ............69
a. Does the Respondent’s August 22, 2008 Memo Improperly Suggest to its
Employees that they be Represented by the Employer’s Attorney in the
Investigation of an NLRB Charge Against the Employer? ........................................70
b. Does the Respondent’s August 22, 2008 Memo Improperly Interfere With
the Board’s Investigative Processes by Discouraging Employees From
Cooperating with the Board’s On-Going Investigation? ............................................72
3. The Remaining Allegations Respecting Requests for Information.................................75
a. The Allegations, Facts, and Argument ......................................................................75
(1) The August 6, 2008 Information Request ...........................................................75
(2) The September 9, 2008 Information Request.....................................................76
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Santa Barbara, California
(3) Facts Concerning the Information Requests and Respondent’s
Responses...........................................................................................................76
b. Analysis and Conclusions Regarding the Information Request Response
Allegations ................................................................................................................77
I. The December 3, 2008 Katich Meeting With Employees: Confidentiality Issue,
the Dispute Concerning the One Story a Day Announcement and Change in
Work Practices ...................................................................................................................78
1. The Allegations...............................................................................................................78
2. Relevant Events .............................................................................................................79
a. Testimony..................................................................................................................79
b. Credibility Resolutions...............................................................................................83
3. Analysis and Conclusions ..............................................................................................84
a. Matter of Subjectivity, Intention, Ignorance, Lack of Enforcement, and
Inexperience ..............................................................................................................84
b. The December 3, 2008 Meeting Confidentiality Allegation .......................................85
c. The Allegation Concerning the December 3, 2008 One Story a Day
Announcement and Subsequent Change in Work Practices ....................................87
J. The Respondent’s Employee Performance Evaluation Modification Allegations................89
1. The Allegations..............................................................................................................89
2. Relevant Events ............................................................................................................89
3. Analysis and Conclusions .............................................................................................91
a. Modification of Performance Evaluation of Employee’s 2007 Performance ............91
b. Failure to Conduct Evaluation of Employee’s 2008 Performance in
Accordance With Past Practice ................................................................................93
K. The Respondent’s Failure to Grant Merit Increases to Employees for Years
2006–2008............................................................................................................................94
1. The Allegations................................................................................................................94
2. Relevant Events ..............................................................................................................94
3. Analysis and Conclusions ...............................................................................................97
a. The Defense that the Merit Wage Increase Allegations are Barred by
Section 10(b) of the Act..............................................................................................97
b. The Merit Increase Allegations on Their Merits........................................................100
(1) The Section 8(a)(5) Merit Increase Allegations .................................................100
(2) The Section 8(a)(3) Merit Increase Allegations .................................................102
L. The Suspension and Discharge of Respondent’s Employee Dennis Moran ....................102
1. The Allegations.............................................................................................................102
2. Relevant Events ...........................................................................................................103
3. Analysis and Conclusions ............................................................................................111
a. Threshold Resolution of Factual Conflicts and Credibility Issues ...........................111
b. Positions and Arguments of the Parties ..................................................................114
c. Analysis and Conclusions........................................................................................116
(1) The Suspension of Moran Under Section 8(a)(1) and (3) of the Act ................116
(2) The Discharge of Moran Under Section 8(a)(1) and (3) of the Act...................119
(3) The Bargaining Allegations Respecting Moran’s Suspension and
Discharge .........................................................................................................120
M. The Table Bargaining Allegations ....................................................................................123
1. The Complaint Allegations ...........................................................................................123
2. The Bargaining Conduct of the Parties ........................................................................124
3. Analysis and Conclusions ............................................................................................134
a. The Allegation that the Respondent Has Insisted on Bargaining Proposals
that are Predictably Unacceptable to the Union, Including But Not
Limited to the Respondent’s Proposals on Management-Rights, Grievance
and Arbitration, Union Bulletin Board Rights and Discipline of Discharge.
Complaint Subparagraph 20(b)(i)............................................................................134
JD(SF)-20-10
Santa Barbara, California
b. The Allegation that the Respondent has Insisted as a Condition of
Reaching Any Collective-Bargaining Agreement with the Union that the
Union Agree to Language in the Contract Including, But Not Limited to,
Language Pertaining to a Management-Rights Clause, that Would Grant
the Respondent Unilateral Control Over Many Terms and Conditions
of Employment. Complaint Paragraph 20(b)(ii)......................................................138
c. The Allegation that the Respondent, by its Overall Conduct has Failed
and Refused to Bargain in Good Faith. Complaint Subparagraph 20(c) ...............141
Conclusions of Law ......................................................................................................................144
Remedy ........................................................................................................................................146
ORDER.........................................................................................................................................148
APPENDIX..........................................................................................................................................