New owner of newspaper was successor employer, must bargain with historical unit
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Tuesday, April 3, 2018

New owner of newspaper was successor employer, must bargain with historical unit

By Nicole D. Prysby, J.D.

The new owner of a Puerto-Rican newspaper was a successor employer under the NLRA, held the District of Columbia Circuit, denying the employer’s petition for review of a Board decision. Although the employer had made changes to the business, the changes were too insubstantial to defeat continuity. And although the employer disputed the NLRB’s determination of the bargaining unit, the court found that the Board’s decision was clearly appropriate, as it was the historical bargaining unit and would have been appropriate even if it were being organized for the first time. The employer’s argument for inclusion of part-time workers into the bargaining unit was rejected by the court, because those positions were substantially different from the full-time employee positions in the bargaining unit, and because the NLRB is not required to determine the most appropriate bargaining unit, only an appropriate one (Publi-Inversiones de Puerto Rico, Inc. v. NLRB, March 30, 2018, Silberman, L.).

Since 1975, a union represented many of the employees of a Puerto Rican newspaper. The bargaining unit included all employees, with the exceptions of executives and supervisors. There were also subcontract workers who worked as “inserters,” placing sales fliers and other materials into the papers. These workers were neither employees nor included in the bargaining unit.

New owner. In 2013, the owner of the newspaper filed for bankruptcy and a new company took over. The new owner told the current employees they could apply for employment and hired about 100 of them. Of the newly-hired employees, 36 occupied positions that were in the previous bargaining unit. The employer also hired a group of part-time inserters (a number fluctuating between 27 and 51). The employer made some changes to the business, such as modifications to the newspaper look, adding the publication of new magazines, and changes to the organizational structure of the company.

Refused to bargain. The union attempted to schedule a meeting to begin negotiations on a new collective bargaining agreement and the employer declined. The union then filed a charge claiming that the employer violated the NLRA by refusing to bargain as a successor employer and blacklisting employees who supported the union. An ALJ found that the employer was a successor employer under the NLRA and that the bargaining unit should exclude the part-time inserters, and the Board affirmed.

Successor employer. The employer made two arguments in support of its claim that it was not a successor employer. First, that it had made changes to the business model which defeated substantial continuity between the old and new enterprises. The court quickly rejected this argument, finding that changes such as modifications to the board of directors, a new motto for the paper, and the purchase of a new copy machine were not the kind of business changes that defeat continuity.

The employer’s second argument was that the hiring of the part-time inserters expanded the number of employees in the previous bargaining unit to the point that a majority of the employees were not former unit members, thus defeating the presumption of majority support for the union. However, the court also rejected that argument, because the NLRB is not required to determine the most appropriate bargaining unit, only an appropriate unit. The Board found that the inserters should not be included in the bargaining unit because their positions were substantially different; they were less-skilled, part-time employees who made significantly lower wages and did not receive health benefits. In fact, they were not even allowed to speak to the full-time employees.

Were it deciding this case initially (not as a successorship), the court found that the Board could easily have found that an appropriate unit could exclude the part-time inserters. And in a successor case, a historical unit will be found to be appropriate if the predecessor employer recognized it, even if the unit would not be appropriate if being organized for the first time. Given that standard, the Board’s decision as to the bargaining unit was clearly appropriate, and the employer was a successor employer.

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