                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1023



MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a
Richmond Times-Dispatch,

                                                    Petitioner,

          versus


NATIONAL LABOR RELATIONS BOARD,

                                                    Respondent,


RICHMOND NEWSPAPERS PROFESSIONAL ASSOCIATION,

                                                    Intervenor.


                            No. 06-1061



RICHMOND NEWSPAPERS PROFESSIONAL ASSOCIATION,

                                                    Petitioner,

          versus


NATIONAL LABOR RELATIONS BOARD,

                                                    Respondent,


MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a
Richmond Times-Dispatch,

                                                    Intervenor.
                              No. 06-1213



NATIONAL LABOR RELATIONS BOARD,

                                                          Petitioner,

           versus


MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a
Richmond Times-Dispatch,

                                                          Respondent.



On Petitions for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (5-CA-29157; 5-CA-
29902; 5-CA-29914)


Argued:   November 30, 2006                 Decided:   March 15, 2007


Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.


Petitions for review denied; cross-application for enforcement
granted by unpublished per curiam opinion. Judge Niemeyer wrote a
separate opinion concurring in part and dissenting in part.


ARGUED: James V. Meath, WILLIAMS MULLEN, Richmond, Virginia, for
Media General Operations, Incorporated, d/b/a Richmond Times-
Dispatch. Jay Joseph Levit, Glen Allen, Virginia, for Richmond
Newspapers Professional Association. Kellie J. Isbell, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board. ON BRIEF:
King F. Tower, Heath H. Galloway, WILLIAMS MULLEN, Richmond,
Virginia, for Media General Operations, Incorporated, d/b/a
Richmond Times-Dispatch. Ronald Meisburg, General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, Fred B. Jacob, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for the Board.

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Unpublished opinions are not binding precedent in this circuit.




                                3
PER CURIAM:

             This consolidated case is before us on the petitions of

Media   General     Operations,    Inc.,   d/b/a   Richmond      Times-Dispatch

(Media General), and Richmond Newspapers Professional Association

(RNPA) to review an order of the National Labor Relations Board

(NLRB or Board).        The NLRB has filed a cross-application for

enforcement of its order.         The NLRB determined that Media General

violated sections 8(a)(1) and (5) of the National Labor Relations

Act (NLRA), 29 U.S.C. § 158(a)(1), (5), by disparately enforcing a

company   e-mail     policy   and    by    failing   to    negotiate     before

discontinuing payment for time spent by union negotiators in

bargaining sessions.       The NLRB also dismissed RNPA’s complaints

that Media General violated sections 8(a)(1) and (5) by failing to

negotiate over the discontinuance of holiday bonuses and by failing

to pay the union president for time spent in arbitration.               For the

reasons set forth below, we deny the petitions for review and

enforce the Board’s order.



                                      I.

             Media General publishes the Richmond Times-Dispatch, a

daily newspaper.       RNPA represents the newspaper’s reporters and

other   newsroom     employees.      Successive      collective     bargaining

agreements    and    accumulated    past    practice      have   governed   the

relationship between Media General and RNPA for the past forty


                                       4
years.    In 2000 and 2001 RNPA complained to the NLRB that Media

General had changed certain past practices without bargaining and

had enforced its e-mail policy in a discriminatory manner against

union members.

                                     A.

           The    first     complaint       stems     from     Media    General’s

instruction to the union to stop using the company e-mail system to

disseminate union messages.       Media General had an official e-mail

policy that restricted use of the company e-mail system to matters

related to company business.       The policy stated that “[t]he e-mail

system is provided to employees at Company expense to assist them

in carrying out the Company’s business.”             J.A. 586.     In practice,

however, employees transmitted a wide variety of messages unrelated

to   company   business,    including       personal       messages,   charitable

announcements, and union matters.             Media General did little to

prevent   these   uses     and   disciplined        only    two   employees   for

violations that involved pornography. The general tolerance for e-

mail violations began to change in May or June 1999 when Media

General informed the RNPA president, Jonathan Pope, in a telephone

conversation that the union could not use the company’s e-mail

system for communicating union messages.               This was followed by a

second verbal warning to Pope in September 1999.                   Pope did not

convey these warnings to the other union leaders or the general

membership.    Apart from a reminder sent to Pope by e-mail in June


                                        5
2000, the company took no further action.      The rest of the RNPA

bargaining committee first learned of Media General’s intent to

enforce the e-mail policy during negotiations for a new collective

bargaining agreement in July 2000.        Media General told union

leaders to stop using Media General e-mail for union business.

Shortly thereafter, the union complained to the NLRB that Media

General had enforced the e-mail policy in a discriminatory manner

against the union.

                                 B.

             During the same July 2000 negotiations, Media General

announced that it would no longer pay employee representatives of

the union for time spent in bargaining sessions. Media General had

routinely offered such pay since 1995.    Despite its past conduct,

the company did not allow discussion of its changed stance during

the ongoing negotiation sessions.     The company stopped paying for

bargaining time in September 2000.     To avoid a reduction in pay,

several union leaders worked additional hours to make up time spent

in bargaining sessions.

                                 C.

          RNPA also complained that Media General had engaged in an

unfair labor practice when it refused to pay a union representative

for time spent in arbitration proceedings. The complaint arose out

of a 1999 arbitration of an RNPA grievance concerning an employee’s

discharge.     This was the first arbitration between the parties


                                  6
since 1969.     Media General paid RNPA president Pope for time spent

discussing the grievance with Media General management, but did not

pay him for time spent in formal arbitration proceedings.              Media

General informed Pope that arbitrations differed from negotiations,

and so the general practice of paying for negotiation time did not

encompass arbitration time.         Pope was required to use a vacation

day in order to receive pay for the hours spent in arbitration.

                                      D.

           The union’s last complaint concerned the elimination of

holiday bonuses.       Media General had paid employees an annual

holiday bonus since 1960.       In July 2001 Media General called the

RNPA president to discuss the company’s plan to discontinue the

holiday bonus.     The company attributed its decision to a general

economic downturn and acknowledged that it was a bargainable issue.

Following the phone call to the union, Media General sent a letter

to all employees informing them that “[a]s a result of the poor

economic climate, we are unable to pay a Christmas or Holiday bonus

this year . . . .”    J.A. 630.     After receiving this letter and the

company’s offer to bargain, the union requested “books and records

from which [it] c[ould] determine whether there [was] a ‘cash flow’

problem . . . .”      J.A. 631-32.        The union president declined to

bargain until requested financial information was made available to

RNPA.   Media General explained to RNPA that it had not terminated

the   bonuses   because   of   an   inability   to   pay;   rather,   it   had


                                      7
voluntarily opted for “belt-tightening.”         J.A. 633.     The company

maintained that it was not obliged to turn over the requested

information and now argues that the union waived its right to pre-

termination bargaining by refusing to negotiate.



                                     II.

             Media General urges us to set aside the NLRB order

requiring the company to cease its disparate enforcement of its e-

mail policy and to negotiate with RNPA over the termination in pay

for collective bargaining time. We will uphold the NLRB’s findings

of fact when supported by substantial evidence.           TNT Logistics of

North Am., Inc. v. NLRB, 413 F.3d 402, 405 (4th Cir. 2005).               We

also will defer to the Board’s reasonable legal conclusions.

Americare Pine Lodge Nursing & Rehabilitation Center v. NLRB, 164

F.3d 867, 874 (4th Cir. 1999).

                                     A.

           An employer engages in an unfair labor practice when it

attempts   to    influence   its   employees’   efforts   to   organize   by

interference, restraint, or coercion.       29 U.S.C. § 158(a)(1).        As

part of this prohibition, an employer may not interfere with its

employees’ ability to communicate union messages or discriminate

between union communications and other non-company messages in the

workplace.      See NLRB v. Challenge-Cook Bros. of Ohio, Inc., 374

F.2d 147, 153 (6th Cir. 1967).       When company-sponsored channels of


                                      8
communication      are    opened    to   non-company     purposes,    the     NLRA

prohibits an employer from preventing use for union purposes.                  See

NLRB v. Honeywell, Inc., 722 F.2d 405, 406-07 (8th Cir. 1983); E.I.

Du Pont de Nemours & Co., 311 N.L.R.B. 893, 893 n. 4, 919 (1993).

           Media General first argues that the union’s claim was not

timely because, if any discriminatory enforcement occurred, it

happened at the time of the first warning in 1999.                     The NLRB

reasonably found that the company’s July 2000 enforcement of the

policy was independent of prior warnings that occurred outside the

limitations period.       NLRA section 10(b) requires employees wishing

to challenge an unfair labor practice to file a charge within six

months of the alleged violation.              29 U.S.C. § 160(b).     The first

warning   was    issued    over    a   year    before   the   union   filed    its

complaint.      The NLRB, however, found that the claim was not time-

barred because each of Media General’s warnings to the union

constituted     independent       violations     of   section   8(a)(1).      Cf.

Brewery, Soda & Mineral Water Bottlers of Calif., 339 N.L.R.B. 769,

770 (2003) (reposting of identical letters within the 10(b) period

renders them vulnerable to attack). Under this interpretation, the

July 2000 warning falls solidly within the 10(b) period.                      This

warning can reasonably be deemed a separate violation because Media

General had taken no action to punish violators after the prior

warnings to the union president.             Moreover, the July 2000 warning

was issued to a broader group of union leaders in the formal


                                         9
context of a collective bargaining session. This distinguishes the

July 2000 warning from the company’s prior informal communications

to Pope.

              The NLRB’s conclusion on the merits was also reasonable.

The Media General e-mail policy restricted use of the e-mail system

to company purposes.             The company made no attempt, however, to

enforce      the    policy      against     any    violations      other     than   union

messages.          The record contains numerous examples of messages

unrelated to the work of the newspaper.                      The e-mail system was

frequently used by both hourly employees and managers to convey

news about the employees’ personal lives, to arrange social events,

and to inform employees about charities.                        Restriction of the

union’s access to this communication channel, while others were

allowed unfettered access, is an unfair labor practice that is

prohibited by the NLRA.

                                             B.

              NLRA sections 8(a)(5) and (d),                28 U.S.C. § 158(a)(5),

(d),    require         employers    to    engage    in     good   faith     collective

bargaining with union representatives before changing a term or

condition of employment.             NLRB v. Katz, 369 U.S. 736, 743 (1962).

Terms   or    conditions        of     employment     are    subject    to    mandatory

bargaining         if    they   have      been    memorialized     in   a    collective

bargaining agreement or if they have been established by the

employer’s past practice or custom.                 Bonnell/Tredegar Indus., Inc.


                                             10
v. NLRB, 46 F.3d 339, 344 (4th Cir. 1995).                Pay for time spent in

negotiation   sessions      may   qualify     as    a    subject    of    mandatory

bargaining.    See Axelson, Inc. v. NLRB, 599 F.2d 91, 94-95 (5th

Cir. 1979).

            The collective bargaining agreement between RNPA and

Media    General   does     not   require     the       company    to    pay   union

representatives for time spent in negotiations.                         Thus, Media

General’s unilateral decision to discontinue pay for bargaining

time would be prohibited only if the company had established a past

practice of awarding such pay.          See Bonnell/Tredegar, 46 F.3d at

344.    For at least five years, Media General routinely paid union

negotiators for time spent in collective bargaining.                       This is

sufficient to establish a past practice. See, e.g., Keystone Steel

& Wire v. NLRB, 41 F.3d 746, 750 (D.C. Cir. 1994) (six-year

practice established an implied term or condition of employment).

The lack of any evidence of an offer to bargain prior to the

termination announcement supports the NLRB’s conclusion that Media

General failed to fulfill its duty to bargain in good faith with

RNPA.



                                      III.

            In its petition RNPA argues that the NLRB erroneously

dismissed   its    claims   related    to    holiday      bonuses   and    pay   for

arbitration time.     We will uphold the NLRB’s dismissal of a claim


                                       11
so long as there is a rational basis in the record for the Board’s

action.     Am. Postal Workers Union v. NLRB, 370 F.3d 25, 27 (D.C.

Cir. 2004).

                                        A.

            RNPA claims that Media General impermissibly altered a

term of employment by refusing to pay union representatives for

time spent in arbitration of grievances. The union argues that the

company’s past practice of paying for time spent in preliminary

grievance    proceedings     and   collective   bargaining   prevent   Media

General from refusing to pay for arbitration time without first

bargaining to impasse.

            Grievances between RNPA and Media General are typically

resolved before reaching arbitration.           The only other arbitration

in recent memory was held in 1969.              The collective bargaining

agreement    between   the    parties    distinguishes   between   ordinary

grievance resolution and arbitration. When a grievance is brought,

the parties have five days in which to hold a meeting and attempt

to reach agreement regarding the dispute.             The dispute goes to

arbitration only if the parties fail to reach agreement within

thirty days and one of the parties requests it.                 Unlike the

preliminary grievance proceedings, an arbitration involves outside

decisionmakers and takes on a more adversarial tone.               The NLRB

could reasonably conclude that Media General may have wanted to pay

for cooperative efforts to resolve grievances to avoid arbitration,


                                        12
but not wanted to pay once negotiations had broken down and outside

dispute resolution was required.      Thus, the NLRB had a rational

basis for concluding that the infrequency of arbitrations and the

differing roles assumed by the parties support an inference that

the company wished to establish a custom of pay for preliminary

grievance resolution but not for arbitration.   The NLRB reasonably

required the union to show a past practice relating specifically to

arbitration proceedings.    Because only one other arbitration had

occurred in the preceding thirty years, the union failed to show

that pay for arbitration time had become an implied term of

employment and a mandatory subject of bargaining.

                                 B.

          Media General concedes that the annual holiday bonus was

a term of employment that it could not change unilaterally without

bargaining.   It argues, however, that it was relieved of the duty

when RNPA rebuffed its offer to bargain for no valid reason.   RNPA

claims that it was entitled to examine certain company financial

data before bargaining and that Media General violated the NLRA by

withholding the requested information.

          An employer’s refusal to accommodate a union’s request

for financial information to substantiate a claimed inability to

meet union demands “may support a finding of a failure to bargain

in good faith.”   NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956).

The company need not honor such requests when it expresses only an


                                 13
unwillingness to pay.        Wash. Materials, Inc. v. NLRB, 803 F.2d

1333, 1338-39 (4th Cir. 1986).

           To show Media General’s inability to pay, the union

relies on a letter sent by Media General to all employees informing

them of its decision to discontinue payment of holiday bonuses.

The letter stated that the company was “unable to pay” the 2001

holiday bonus because of the “poor economic climate.”                  J.A. 630.

The letter described the elimination of bonuses as part of a

broader plan to cut costs and avoid layoffs.              Despite the “unable

to pay” language, reasons such as these are generally interpreted

as expressions of unwillingness to pay. Nielsen Lithographing Co.,

305 N.L.R.B. 697, 700 (1991). Elimination of a benefit in response

to poor economic conditions is not the same as a claim that the

company is without resources to pay the benefit.                 The company’s

response to the union’s request for financial information clarified

explicitly that it was unwilling, rather than unable, to pay the

bonuses. Substantial evidence thus supported the NLRB’s conclusion

that   Media   General     had   no   duty   to     disclose    its    financial

information to the union.

           Without   any    unfulfilled      duty    on   the   part   of   Media

General, RNPA had no basis for its refusal to bargain.                  A union

must act with due diligence to request bargaining when it receives

notice of a contemplated change in the terms or conditions of

employment.     Haddon Craftsmen, Inc., 300 N.L.R.B. 789, 790-91


                                      14
(1990).      If the union fails to make such a request, there are no

grounds for finding that the employer violated its duty to bargain

in good faith.       Id.

             After declining Media General’s initial offer to bargain,

RNPA never asked for independent bargaining sessions to address the

bonus issue.        The record contains testimony indicating that the

bonuses may have been discussed during the general negotiations

over   the    new    collective   bargaining   agreement.       However,   the

contradictions in the record and the union’s clear failure to

request bargaining on the bonus issue provide a rational basis for

the NLRB’s conclusion that Media General did not violate its duty

to bargain.



                                      IV.

             In     sum,   substantial    evidence   supports     the   NLRB’s

conclusions that Media General violated NLRA sections 8(a)(1) and

(5) by enforcing its e-mail policy in a discriminatory manner and

discontinuing pay for time spent in negotiations.               The NLRB also

had a rational basis for dismissing RNPA’s arbitration and holiday

bonus claims. We therefore deny the petitions for review and grant

the Board’s application for enforcement of its order.

                                           PETITIONS FOR REVIEW DENIED;
                              CROSS-APPLICATION FOR ENFORCEMENT GRANTED




                                         15
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

     I would grant the petition for review and deny the NLRB’s

enforcement with respect to the e-mail policy.   Otherwise, I agree

with the majority opinion.




                                16
