The New Day versus The Spokesman

There are times he gets after me, that father of mine. Remember when he felt I had slighted Haydn, and I had to do a whole post on him? Remember the rant I did on the federal judge, and then I had to abase myself on my knees, the next day, and write a post balancing the previous one?

Well, he had a quiet voice, big feet and little steps—that father of mine. The rest of us shout and lope. But he knew how to make himself heard.

OK—the truth. I tuned him out as an adolescent, but look—that’s hardly a jaw-dropper. Find me the kid who doesn’t tune out his old man. 

Besides, he went on and on and ON about it—or so I felt at the time.

The liberal bias of the press. The blurring of the lines between commentary and strictly-the-news. Journalistic ethics.

‘Let’s see if I take the third movement a little slower will I get that damn passage right or will it keep messing me up and why can’t I figure out what to do….’

“When I was a cub reporter the first thing the managing editor said….”

Dear Reader, you have just lived five years of breakfast table at the Newhouse family.

Well, he’s gone, dammit, so I can now quietly say it.

He was right.

“He’d be spinning in his grave,” said Eric, when I told him about the latest allegations on the island.   

In his honor, I’ll try to give you a balanced report.

In the left corner we have El Nuevo Día, or The New Day. The newspaper was founded 42 years ago by Luis A. Ferré, an ardent Republican, art collector, skilled pianist, and statehooder. Ferré had serious money—the family had a little cement factory and Puerto Rico was booming at the time. The New Day, however, has over the years been less and less pro-statehood, and most people who favor statehood believe that The Day is in bed with the other party, known as The Popular Democratic Party.

(Time out for a rant—the computer, not content to censure or tsktsk my generous act of creating new words to enrich the language, is now suggesting that I not use the passive voice. It suggests, instead,  “Luis A. Ferré founded…..” NOOOOOO! The focus of my sentence is the newspaper, not the founder, dammit! Somebody out there in the blogosphere—can you tell me how to deactivate spell check???)

Returning calmly to the ring, we have in the RIGHT corner El Vocero. It started in the 1970’s, was for years the yellowest of tabloids, and then got respectable in the early part of the aught’s. Parent company is Caribbean International News Corporation. This summer, the paper took the step of distributing for free. Politically, most people believe it is aligned with the statehood party, or The New Progressive Party.

(JESUS, this kind of writing is boring. I can’t believe Jack and Eric between them put in half of a century in this salt mine. I’d rather clean bathrooms. And, by the way, Jack edited out the “unusual” that I had placed before the word “step.” Damn!)

Right. So what happened? Well, on the 17^th of October—that would be 6 days ago—the New Day made several allegations against The Spokesman (El Vocero). It claimed that the National Labor Relations Board (NLRB) had found that El Vocero had received over 24 million bucks (come off it, Jack—that’s just informal, not pejorative! OK, DAMMIT—that’s dollars!) in a scheme of creating companies in order to receive incentives. Additionally, the paper alleges that El Vocero has a contract with the municipal government, exchanging advertising in lieu of payment for the municipal fee.

(Just had my third cup of coffee, and my eyelids are still virtually GLUED together. JESUS, what did they PAY these guys to do this! Surgery was more fun….)

A further allegation—hey, was that a snore I heard—is that El Vocero has an outstanding debt of 17,422,239.89 (notice that attention to detail—just love that 89 cents there…) with the state government. However, the parent company of El Vocero signed a contract with the government. This is illegal under Puerto Rico law.

(You know, there’s absolutely no reason I can’t take just a little nap. What about those hours after surgery, when I was busy writing instead of sleeping? Aren’t I owed?)

Right—any backup for these allegations.

Well, I tried, I really did to read the NLRB’s findings. Maybe you can do better…. (Here's a fragment of the document):

On  September  24,  2010,  Administrative  Law  Judge Michael A. Rosas issued the attached decision.  The Respondents  El  Vocero  and  News  Distributor  each  filed exceptions(1) 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 judge’s rulings, findings(2) and  conclusions,(3) to  amend  the  remedy,(4) and  to adopt the recommended Order as modified and set forth in full below.(5)

We  reject  Respondent  News  Distributor’s  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 Distributor’s expense.(6)  Even assuming [arguendo] that these allegations  are  true,  the  Union’s  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 Counsel’s part.

(1)There are no exceptions to the judge’s 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 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,  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 judge’s finding that the Respondents are alter egos, we agree that El Vocero and its alter ego News Distributor had “substantially  identical”  management,  business  purposes,  operations,  customers,  and  supervision.   Further,  as  the  judge  found,  during  News Distributor’s first year of existence, it was “almost entirely dependent on the  continuous transfer of funds and in-kind  contributions from El Vocero,” as well as for its cost-free office space, supplies, and equipment.  However,  we  do  not  rely  on  the  judge’s  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, 594–595 (2007).  We adopt the judge’s 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 Vocero’s President Miguel Roca formed News Distributor in March 2009, while the collective-bargaining agreement with the Union 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 “would [result in]  an impasse.”  These facts support  our finding  that News Distributor was formed with the unlawful motive of avoiding El Vocero’s 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) (“only reasonable explanation” for decision to “go through the legal hoops of creating a new corporation. . . .” 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  Respondents’ 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 Respondents’  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 Respondent’s 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 judge’s recommended Order to comport with the Board’s 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.

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

Member  Becker  notes  that  News  Distributor’s  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).

(What!!! You mean they had to wade through that morass for six decades—my father and brother between them. Look, no wonder we’ve all descended to the gutter of ogling Kate Middleton’s boobies.)

Here are the links to the documents: 
http://especiales.elnuevodia.com/documentos/vocero/home.html
http://especiales.elnuevodia.com/documentos/vocero/JuntaNacionaldeRelacionesdelTrabajo/DecisionJuntaNacional-Pleno.pdf

Right—and what does The Vocero say? Mentiras--LIES that would be and yes, that’s the word they used. They deny having a debt with the government. They claim that El Nuevo Día is hurting financially due to, and cannot compete against, a free newspaper. They allege that the Ferré family….

Know what? I can’t, I just can’t go on. The brain is tired. 

I tried, my good father, and I have failed. I didn’t make it to the end of ONE piece of investigative reporting. I can feel your disgust radiating down from the cold, windswept hilltop of the Jefferson Prairie Cemetery. 

Confession—I even descended to La Comay.

Gentle Readers, stay tuned!

NOTE: This post published at the express order of Marc Newhouse over the just objections of his editor, who winces at his formatting of the material cited from the NLRB....