Publi-Inversiones de Puerto Rico, Inc. d/b/a El Vocero de Puerto Rico, (2017)

Docket Number:12-CA-120344
 
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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.

Publi-Inversiones De Puerto Rico, Inc. d/b/a El Vocero De Puerto Rico and Union De Periodistas, Artes Graficas Yramas Anexas, Local 33225. Case 12–CA–120344

March 10, 2017

DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On September 27, 2016, Administrative Law Judge Melissa M. Olivero issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief.

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 judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order as modified and set forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc., 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.

In addition, some of the Respondent’s exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit.

There are no exceptions to the judge’s findings that the Respondent’s editors are not statutory supervisors, that the Respondent’s advertising salespersons and security guards are excluded from the unit, that an employee laid off by CIN (Respondent’s predecessor) shortly before it ceased operations but hired by the Respondent as soon as it began operations is included in the unit, and that the Union’s December 17, 2013 letter constituted an effective demand for recognition and bargaining.

In adopting the judge’s finding that the Respondent is a legal successor to CIN under NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), and Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987), we do not rely on her statements suggesting that a finding of successorship depended on the Respondent hiring “a substantial and representative complement of CIN’s employees.” The Respondent was a legal successor because there was substantial continuity between the enterprises, and it employed a substantial and representative complement of employees by December 15, 2013, a majority of whom were former CIN bargaining-unit employees. In adopting the judge’s finding that the Respondent is the legal successor to CIN, Acting Chairman Miscimarra does not rely on GVS Properties, LLC, 362 NLRB No. 194 (2015), cited by the judge.

The Respondent filed bare exceptions, asserting that the judge erred by finding that it violated Sec. 8(a)(5) and (1) by failing and refusing to

CONCLUSIONS OF LAW

1. The Respondent, Publi-Inversiones de Puerto Rico, Inc. d/b/a El Vocero de Puerto Rico, is an employer engaged in commerce within the meaning of Section 2(2),

(6), and (7) of the Act.

2. Union de Periodistas, Artes Graficas y Ramas Anexas, Local 33225 (the Union) is a labor organization within the meaning of Section 2(5) of the Act.

3. The following employees of the Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act:

[A]ll . . . employees except . . . [the following excluded employees]: (1) Administration: President, Executive Assistant to the president, Treasurer, Comptroller, Chief Accounting Officer, and seven executive secretaries who work in any department of the Company, Chief Personnel Officer and his or her secretary and security personnel and credit manager; (2) Advertising: Agency Advertisement Sales Director, Direct Advertisement Sales Director, Classified Ads and Notices Sales Director, and Advertisement Salesperson; (3) Circulation: Circulation Department Director, Island Supervisor, Metro Area Subscriptions Supervisor, Metro Area Lighting and Post Supervisor, two (2) Chief Dispatching Officers, four (4) At Large Regional Supervisors, Newspaper Carriers and Heralds; (4) Editorial: Director, Associate Director, and Chief Editor; (5) Production: Production Department Director, (2) Shop Supervisors, (3) Press Supervisors (two during the day and one at night), Maintenance Engineer and Electrical Engineering Supervisor.

4. Since December 17, 2013, the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain collectively with the Union as the collective-bargaining representative of the above described unit of employees.

5. Since December 17, 2013, the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union by failing and refusing to

furnish the Union with information requested by it on December 17, 2013. Accordingly, we find, pursuant to Sec. 102.46(b)(2) of the Board’s Rules and Regulations, that these exceptions should be disregarded. See, e.g., New Concept Solutions, LLC, 349 NLRB 1136, 1136 fn. 2 (2007). Moreover, even if properly filed, these exceptions would lack merit. In light of the successorship finding, the Respondent’s failure and refusal to furnish the Union with the requested information violated Sec. 8(a)(5) and (1).

2 The judge neglected to include Conclusions of Law in her decision. We shall correct this inadvertent omission.

3 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and substitute a new notice to conform to the Order as modified.

365 NLRB No. 29

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees.

6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

ORDER

The National Labor Relations Board orders that the Respondent, Publi-Inversiones de Puerto Rico, Inc. d/b/a El Vocero de Puerto Rico, San Juan, Puerto Rico, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to recognize and bargain with Union de Periodistas, Artes Graficas y Ramas Anexas, Local 33225 (the Union) as the exclusive collectivebargaining representative of the employees in the bargaining unit.

(b) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:

[A]ll . . . employees except . . . [the following excluded employees]: (1) Administration: President, Executive Assistant to the president, Treasurer, Comptroller, Chief Accounting Officer, and seven executive secretaries who work in any department of the Company, Chief Personnel Officer and his or her secretary and security personnel and credit manager; (2) Advertising: Agency Advertisement Sales Director, Direct Advertisement Sales Director, Classified Ads and Notices Sales Director, and Advertisement Salesperson; (3) Circulation: Circulation Department Director, Island Supervisor, Metro Area Subscriptions Supervisor, Metro Area Lighting and Post Supervisor, two (2) Chief Dispatching Officers, four (4) At Large Regional Supervisors, Newspaper Carriers and Heralds; (4) Editorial: Director, Associate Director, and Chief Editor; (5) Production: Production Department Director, (2) Shop

Supervisors, (3) Press Supervisors (two during the day and one at night), Maintenance Engineer and Electrical Engineering Supervisor.

(b) Furnish to the Union in a timely manner the information requested by the Union on December 17 and 23, 2013.

(c) Within 14 days after service by the Region, post at all of its facilities in San Juan, Puerto Rico, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed...

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