Caribbean International News d/b/a El Vocero de P.R., and News Distributors of Puerto Rico, LLC, and, (2011)

Docket Number:24-CA-011237
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Caribbean International News Corporation, d/b/a El Vocero De Puerto Rico, Inc., and News Distributor of Puerto Rico, LLC and Union De Periodistas, Artes Graficas Y Ramas Anexas (Upagra), Local 33225, affiliated with The Newspaper Guild, CWA, AFL2013CIO. Case 242013CA201311237

December 8, 2011

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES

On September 24, 2010, Administrative Law Judge Michael A. Rosas issued the attached decision. The Respondents El Vocero and News Distributor each filed exceptions1 and a supporting brief, and the Acting General Counsel and Charging Party filed answering briefs.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge2019s rulings, findings2 and conclusions,3 to amend the remedy,4 and to

1 There are no exceptions to the judge2019s findings that Caribbean International News Corp. (El Vocero) violated Sec. 8(a)(1) and (5) of the Act by breaching its December 26, 2008 agreement with the Union, and by making unlawful unilateral changes to employee pay dates, severance pay, vacation, medical insurance benefits, and bumping rights.

2 The Respondents have implicitly excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

3 In adopting the judge2019s finding that the Respondents are alter egos, we agree that El Vocero and its alter ego News Distributor had 201csubstantially identical201d management, business purposes, operations, customers, and supervision. Further, as the judge found, during News Distributor2019s first year of existence, it was 201calmost entirely dependent on the continuous transfer of funds and in-kind contributions from El Vocero,201d as well as for its cost-free office space, supplies, and equipment. However, we do not rely on the judge2019s finding of common ownership between the Respondents. Nonetheless, common ownership is not a prerequisite for an alter ego finding. The Board has found an alter ego relationship in the absence of common ownership where both companies were either wholly owned by members of the same family or nearly entirely owned by the same individual, or where the older company maintained substantial control over the new company. See, e.g., Summit Express, Inc., 350 NLRB 592, 5942013595 (2007). We adopt the judge2019s finding that El Vocero maintained and exercised substantial control over News Distributor.

We also find that El Vocero formed News Distributor for the purpose of evading its collective-bargaining obligations. As the judge found, El Vocero2019s President Miguel Roca formed News Distributor in March 2009, while the collective-bargaining agreement with the Union

adopt the recommended Order as modified and set forth in full below.5

We reject Respondent News Distributor2019s contention that the complaint should be dismissed on the basis that the Union filed the unfair labor practice charges in this case for purposes contrary to the Act. News Distributor alleges, in substance, that the Union has a financial interest in The Daily Sun, an English language newspaper published in Puerto Rico, and filed the charges as part of an overall campaign to support that paper at News Dis

was still in force, but waited until it expired to announce the decision to subcontract the circulation work to News Distributor. Roca admitted that he did not want to deal with the Union and, as the judge found, unlawfully invited employees to deal directly with him while predicting that any dispute over the plan to close the circulation department 201cwould [result in] an impasse.201d These facts support our finding that News Distributor was formed with the unlawful motive of avoiding El Vocero2019s responsibilities under the Act. Diverse Steel, Inc., 349 NLRB 946, 947 (2007); see also Midwest Precision Heating & Cooling, Inc., 341 NLRB 435, 439 (2004), affd. 408 F.3d 450 (8th Cir. 2005) (201conly reasonable explanation201d for decision to 201cgo through the legal hoops of creating a new corporation. . . .201d was unlawful motive of reducing labor costs by repudiating collective-bargaining agreement). Together with the other evidence discussed above, this factor strongly supports our finding that the two entities are alter egos.

4 Payments to employees arising from their unlawful discharges shall be made in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).

Payments owing to employees as a result of the Respondents2019 unlawful unilateral changes in contractual benefits shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, supra, and Kentucky River Medical Center, supra.

Payments owing to contractual benefit funds as a result of the Respondents2019 unlawful unilateral changes shall be made in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). To the extent that an employee has made personal contributions to a benefit or other fund that have been accepted by the fund in lieu of the Respondent2019s delinquent contributions during the period of the delinquency, the Respondent will reimburse the employee, but the amount of such reimbursement will constitute a setoff to the amount that the Respondent otherwise owes the fund.

The Respondents shall also reimburse unit employees for any expenses ensuing from their failure to make the required health insurance premiums and pension fund contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Service, supra, with interest as prescribed in New Horizons for the Retarded, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.

5 Finally, we shall modify the judge2019s recommended Order to comport with the Board2019s usual remedial provisions and to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB No. 9 (2010), enfd. 656 F.3d 860 (9th Cir. 2011). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice.

tributor2019s expense.6 Even assuming arguendo that these allegations are true, the Union2019s motive for filing the charges is irrelevant to the disposition of the allegations in the complaint, which was issued by the General Counsel in the exercise of his authority under Section 3(d) of the Act. There is no contention, and no evidence whatsoever, of any improper motive on the General Counsel2019s part.

ORDER

The National Labor Relations Board orders that Respondent Caribbean International News Corporation d/b/a El Vocero de Puerto Rico (El Vocero), San Juan, Puerto Rico, and its alter ego Respondent News Distributor of Puerto Rico, LLC, Carolina, Puerto Rico, their officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to bargain with the UPAGRA, Local 33225, as the exclusive collective-bargaining representative of the employees in the unit described in the most recent collective-bargaining agreement in effect from 1997 to 2001, between El Vocero and the Union, over the decision to contract out the work of the circulation department.

(b) Failing and refusing to fulfill and adhere to the terms of the December 26, 2008 agreement regarding the pension plan, cancer plan, intensive care plan, life insurance, funeral insurance, long-term disability plan, and gas allowance.

(c) Failing and refusing to bargain collectively with the Union by unilaterally changing unit employees2019 pay dates, medical insurance, vacation, severance payments, and bumping rights.

(d) Undermining the majority status of the Union by telling employees that El Vocero did not want to bargain with the Union but with the employees directly.

(e) Engaging in the creation of an alter ego for the purpose of transferring circulation department bargaining unit work to the alter ego and evading responsibilities under the Act.

(f) Contracting out or otherwise transferring bargaining unit work without bargaining with the Union.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

6 The judge found, and we agree, that News Distributor has failed to establish that the Union2019s relationship to The Daily Sun was detrimental to El Vocero.

Member Becker notes that News Distributor2019s argument that the judge should have made a finding that the Union filed the charge for an unlawful purpose is also untimely, because News Distributor neither raised this defense in its pleading nor litigated it at the hearing before the judge. It is well established that the failure to raise an issue in a timely fashion before the judge operates as a waiver of that argument. See, e.g., Ang Newspapers, 350 NLRB 1175, 1181 (2007).

(g) Permitting supervisors to perform bargaining unit work.

(h) In any like or related manner...

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