The Cincinnati Enquirer, Inc.

National Labor Relations Board - Board DecisionsApr 24, 1990

298 N.L.R.B. 275 (N.L.R.B. 1990)

CINCINNATI ENQUIRER 275 The Cincinnati Enquirer, Inc., a Division of Gansat, Inc. and The Cincinnati Newspaper Guild, Local 9, the Newspaper Guild , AFL-CIO. Case 9-CA-23190 April 24, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 18, 1988 , Administrative Law Judge David L. Evans issued the attached decision. The General Counsel and the Charging Party Union filed exceptions and supporting briefs, and the Re- spondent filed a brief opposing the exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The 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, and conclusions as modified below and to adopt the recommended Order. We agree with the judge that the Respondent did not unlawfully refuse to bargain with respect to its merit pay proposal. The General Counsel's theory of the case was that the Respondent's insist- ence on its proposal for unilateral control of merit pay without reference to minimum wage standards, viewed in the context of its proposal that there be no arbitration of grievances and its proposal con- cerning a no-strike clause (which was withdrawn during the course of bargaining), constituted an in- sistence on unilateral control of all wages, and that this position, in and of itself, violated Section 8(a)(5). Accepting this theory of the complaint, as did the judge, we find that the General Counsel did not establish that the Respondent insisted during negotiations on control of its entire wage system. Thus, although there is some evidence that the Respondent's initial wage proposal also con- templated unilateral control of new hires' wages, it is not established that the Respondent insisted on this-point." Further, notwithstanding that the elimi- nation of minimum wage scales and related con- tract provisions, part of the Respondent's proposal, would have done away with the nonmerit wage in- creases of the previous collective-bargaining agree- ment, there is no indication on this record that the Respondent's proposal extended to unilateral re- ductions ' in wages. The evidence indicates that in the negotiations that followed from the wage pro- posal, the parties focused primarily on the Re- spondent's specific purpose to unilaterally control wage increases . Thus, the record establishes that insofar as its wage proposal was concerned, the Respondent insisted only on unilateral control of wage increases for unit employees, which under the Respondent's proposal would be premised on merit. Accordingly, the General Counsel did not prove that the Respondent sought unilateral con- trol of all wages and we therefore affirm the judge's conclusion that the Respondent's insistence on its proposal, in and of itself, was not unlawful bad-faith bargaining in light of our recent decision in Colorado-Ute Electrical Assn., 295 NLRB 607 (1989). 2 In a preliminary ruling, the judge concluded that the Regional Director was "without authority" to issue a complaint alleging that the Respondent's ne- gotiating position concerning grievance arbitration and a no-strike clause was independently violative of Section 8(a)(5). This statement is erroneous. The contents and issuance of the complaint, determined prior to the hearing and adjudication of the merits, are matters solely within the prosecutorial author- ity of the General Counsel. The exercise of this au- thority is not reviewable by the Board, including its judges, or by the courts. See, e.g., NLRB v. Food & Commercial Workers Local 23, 484 ' U.S. 112 (1987). We note that the judge's "striking" of the complaint allegations to the extent that they averred ,this independent 8(a)(5) violation was im- material, because the General Counsel's interpreta- tion of the complaint, set forth above, never com- prised this separate 8(a)(5) allegation. Thus, the judge's ruling did not limit the introduction of evi- dence or his findings in a mariner prejudicial to the General Counsel's case. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 2 Compare Harrah's Manna Hotel & Casino, 296 NLRB 1116 fn. 1 (1989) (insistence on controlling all aspects of wages found to be one part of a pattern of conduct supporting a finding of bad-faith bargaining in violation of Sec. 8(a)(5)). Because there was no allegation here that the Respondent unplemented its meet increase proposal by granting such in- creases without consulting the Union as to timing or amounts, this case does not present the additional issue, decided in Colorado-Ute, of the law- fulness of such unilateral implementation. Garey E. Lindsay, Esq., for the General Counsel. John B. Jaske, Esq., of Arlington, Virginia, and Robert A. Klingler, Esq., of Cincinnati, Ohio, for the Respondent. David Jonathan Cohen, Esq. (Barr & Peer), of Washing- ton, D.C., for the Charging Party. i The record indicates that the Union did not explicitly reject this aspect of the proposal , but sought only to obtain further information on this item. 298 NLRB No. 41 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This matter was tried before me on October 28, 1987, on charges filed under the National Labor Relations Act (the Act), by the Cincinnati Newspaper Guild, Local 9, the Newspaper Guild, AFL-CIO (the Union) and upon a complaint issued by General Counsel against the Cincin- nati Enquirer, Inc., a Division of Gansat, Inc. (Respond- ent). The charge was filed by the Union on June 9, and the complaint issued on July 24, 1986. The complaint was withdrawn by the Regional Director on January 12, 1987, and, after appeal by Charging Party, reinstated in part on September 17, 1987. As reissued by the Regional Director, the complaint alleged that Respondent violated Section 8(a)(5) and (1) by insisting in contract negotia- tions that the Union, as collective-bargaining representa- tive for certain of Respondent's employees, agree to a merit wage system which had no minimum wage rates and which system was to be administered exclusively by Respondent. The complaint further alleged that from May 1985 to May 1986 Respondent insisted, without agreeing to arbitration, on a no-strike clause in any col- lective-bargaining contract agreed to by the parties. Re- spondent filed an answer admitting jurisdiction but deny- ing the commission of any unfair labor practices. At the hearing Respondent moved to dismiss the complaint in- sofar as it alleged as a violation of Section 8(aX5) Re- spondent's no-strike and arbitration positions. In support of the motion Respondent introduced, as Respondent's Exhibit 1, a letter dated July 29, 1987, from the Office of the General Counsel, Office of Appeals, addressed to Donald J. Cohen, counsel for the Charging Party. The decision of the Office of Appeals was as follows: ... the appeal is sustained in part and denied in part. It was concluded that the Employer's bargain- ing position pertaining to a merit wage system with- out minimum wages raised Section 8(a)(5) and (1) issues warranting Board determination based on record testimony developed at a hearing before an Administrative Law Judge. With respect to the re- maining contentions raised on appeal the appeal is denied substantially for the reasons set forth in the Regional Director's letter of January 12, 1987. The Regional Director's letter of January 12, 1987, had dismissed a contention by Charging Party that the Re- spondent's insistence on a no-strike clause and refusal to agree to arbitration (and Respondent's posture on several other bargaining issues) violated Section 8(a)(5). I granted Respondent's motion to strike the allegation regarding to arbitration and no-strike because it appeared to me that those allegations had been previously dis- missed by the Regional Director and the dismissal was affirmed by the General Counsel's Office of Appeals. I therefore concluded that the Regional Director was without authority to issue a complaint alleging Respond- ent's no-arbitration/no-strike position as violative of the Act. In the briefs submitted, the General Counsel does not urge reinstitution of those allegations of the com- plaint; the Charging party does. I adhere to my ruling for the reason stated at the hearing. Respondent, the General Counsel, and the Charging Party have filed briefs which have been carefully consid- ered. FINDINGS OF FACT 1. JURISDICTION At all times material, Respondent, a Delaware corpo- ration with an office and place of business in Cincinnati, Ohio, has been engaged in the publication and general circulation of The Cincinnati Enquirer, a daily newspa- per. During the 12 months preceding the issuance of the reissued complaint, a representative period, Respondent, in the course and conduct of its business operations de- rived gross revenues in excess of $200,000, held member- ship in, or subscribed to, various interstate news services including the Associated Press, New York Times Wire Service, and Washington Post Wire Service, published various nationally syndicated features and advertised var- ious nationally sold products, including Radio Shack Electronic Products, Ford and Mercury automobiles, and J. C. Penny Co. clothing. During the same period, Respondent in the course and conduct of its operations purchased and received at its Cincinnati facilities prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from suppliers located at points outside the State of Ohio. Therefore, Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The Union is now and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Union is the successor to the Enquirer Editorial Employees Professional Association (EEEPA), a labor organization which represented Respondent's news de- partment employees until 1984. EEEPA's last collective- bargaining agreement with Respondent expired on Feb- ruary 29, 1984. Their agreement contained a merit pay system which included minimum wage scales based on employees' job classifications and experience. The agree- ment further permitted Respondent to grant merit wage increases on top of the stated minimums. The EEEPA agreement further contained grievance, arbitration and no-strike clauses. In December 1983, EEEPA affiliated with the News- paper Guild. On December 24, 1984, the Union succeed- ed EEEPA and was certified as the representative of Re- spondent's editorial division employees. The parties conducted 30 bargaining sessions between April 16, 1985, and September 1987. A complete agree- ment was not reached. At time of trial the only issues separating the parties were whether minimum scales, in CINCINNATI ENQUIRER 277 addition to merit increases, should be established and whether there should be binding arbitration. At the first bargaining session the Union proposed to continue all provisions of the last EEEPA contract except with respect to certain specified sections. Among the EEEPA contract sections proposed by the Union were those of article 3. Article 3.01 provided that em- ployees would be paid specified minimums for the 3 years of the contract according to their classifications and the experience ratings which they had received. Sec- tion 3.02 provided for placement of employees in classifi- cations. Article 3.03 provided: Management will evaluate a probationary employ- ee's performance within the first six (6) months of employment. Thereafter, each employee and his/her department head will annually review the employ- ee's performance within one (1) month before or after the employee's six (6) month anniversary date. The department head will notify the employee that a performance review is occurring at the com- mencement of the review. The department head shall show the written performance review to the employee. Nothing in this Contract shall be con- strued to alter or modify the right of an employee to bargain with the Management for salary increases beyond those contractually specified, or restrict the practice of Management to grant merit increases. The Union's initial proposal did not include a request for specific wage increases. On May 20, 1985, in its initial proposal, Respondent proposed to delete sections 3.01, 3.02, and 3.03 and sub- stitute for section 3.03 the following: Management will evaluate a probationary employ- ee's performance within six months of employment. Thereafter, each employee and his/her department head will annually review the employee's perform- ance within one month before or after the employ- ee's six month anniversary date. The department head will notify the employee that a performance review is occurring at the commencement of the review. The department head will show the written performance review to the employee. Pay increases will be based on such reviews. The above merit pay proposal was presented by Com- pany Attorney and Chief Negotiator John Jaske. Jaske then told the union negotiators that the details of Re- spondent's proposed merit pay system would be forth- coming . Jaske added that Respondent was proposing to eliminate arbitration because of abuse of the process by the Union in the past. Jaske proposed to continue the prohibition of strikes or other refusals to work during the terms of the contract. Jaske also stated that Respond- ent was proposing to eliminate the, preexisting picket line clause which allowed employees to refuse to work behind picket lines of other unions. In the following sessions Jaske repeated Respondent's opposition to arbitration and any provision permitting strikes by the bargaining unit employees. Jaske testified that "repeatedly" he explained Respondent's position for wanting wage increases to be determined solely on the basis of merit review: That position was, essentially, that the individuals that the Union represented were journalists were professionals, that they should be reviewed on that basis, that it was difficult to-you should not arbi- trarily set pay on the basis of scales or classifica- tions for people who were writers, reporters, edi- tors, et cetera, that the proper type of a pay pro- gram from our point of view in order to judge the subjective capabilities of one reporter versus an- other, one copy editor versus another, was a per- formance driven program which provided for merit pay as a result. I said that while we were not taking anything away from mailers or janitors or the other classifi- cations that were represented by the other unions there, we felt journalists should be viewed in a dif- ferent light, that journalists, as I said before, were professionals. What makes a good journalist is a subjective determination and what differentiates a good reporter or one reporter from another, one editor from another, one artist from another, is much more subjective than simply the capabilities of a journeyman mailer or a janitor or someone like that, so we felt that merit pay and-driven by a performance evaluation program, was the proper methodology, to be used, the proper type of pay program to be utilized. On October 29, at the 17th bargaining session, the Union submitted a counterproposal on wages which pro- vide for a 10-percent across-the-board wage increase for each of the years 1984, 1985, and 1986 plus a continu- ation of the merit pay provision of the expired EEEPA contract. Respondent's agents rejected this proposal. In January 1986, Respondent transmitted to the Union proposed appraisal forms pursuant to which Respondent intended to implement merit pay increases through the life of any contract reached. The appraisal forms listed various subjective and objective criteria by which super- visors would rate employees. Consistent with Respond- ent's above-quoted proposal, the final determination as to the amount of any wage increase was to be decided by the editor on the basis of management's appraisal of indi- vidual merit. On February 4, 1986, the Union submitted a list of written questions regarding how the past and proposed merit pay systems worked. Respondent answered these questions. The answer to the last question was that for merit wage increases "criteria include, but are not limit- ed to professional experience, special training and educa- tion, demonstrated skill." Following that session the Union made reductions in its demands for minimum and longevity wage increases; these were refused by Respondent on the basis that it de- sired to implement a system of merit wage increases only. The Union repeatly argued that a system of wage increases based on management appraisal of merit, with- out any possible review by arbitration, was an unwork- 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD able and unfair system. Respondent's negotiators always met this argument for arbitration with a reply that Re- spondent did not wish to arbitrate every wage rate in the unit. On May 26, 1986, Respondent withdrew its demands for a no-strike clause, but then and thereafter Respondent insisted on its merit pay proposal, refused to agree to any wage minimums, and refused to agree to arbitration of salaries (or any other matter which might be in dispute). B. Analysis and Conclusions At the hearing, the General Counsel's opening state- ment concluded: Just to recap or to summarize my comments, your honor, it is our position and the evidence will show, that their insistence-the proposals they made with respect to wages, arbitration and no strike, amount- ed to a per se refusal to bargain on their part. In the brief, the General Counsel argues: Respondent's insistence from May 1985 to May 1986 on a merit wage system with no minimum wage rates, coupled with a no-strike clause and no arbitration clause , unlawfully impeded the parties' chances of reaching an agreement, and . . . Re- spondent's continued insistence on its no minimum wage position after it apparently dropped its demand for a no-strike clause on May 28, 1986 also violated Section 8(a)(1) and (5) of the Act. While not using the term "per se" in the brief, it is clear that the General Counsel is continuing to argue that Re- spondent's bargaining with respect to wages constitutes a per se violation of the Act. In NLRB v. American National Insurance Co., 343 U.S. 395 (1952), the employer involved insisted upon a clause retaining: The right to select and hire, to promote to a better position, to discharge, demote for discipline for cause, and to maintain discipline and efficiency of employees and to determine the schedules of work as recognized by both union and company as the proper responsibility and prerogative of manage- ment to be held and exercised by the company. The trial examiner (now administrative law judge) held that the employer had a right to bargain for inclusion of such management-rights clauses but, upon review of the entire negotiations, and certain other of respondent's conduct including unilateral actions, concluded that the employer had engaged in a pattern of bargaining in bad faith. The Board agreed with the trial examiner on other matters but held that the insistence upon the manage- ment-rights clause "constituted, quite apart from re- spondent's demonstrated bad faith, per se violations of Sections 8(a)(5) and (1)." The Board ordered the em- ployer to cease refusing to bargain "by insisting as a con- dition of agreement, that the said union agree to a provi- sion whereby respondent reserves to itself the right to take unilateral action with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment." The court of appeals refused to enforce the Board's Order regarding the bargaining for a man- agement-rights clause but otherwise enforced the Board's Order. On review the Supreme Court noted that, "as has long been recognized, performance of the duty to bargain re- quires more than a willingness to enter upon a sterile dis- cussion of union-management differences." But the Court further noted: "The Act does not compel any agreement whatsoever between employees and employers. Nor does the Act regulate the substantive terms governing wages, hours and working conditions which are incorporated in an agreement." 395 U.S. 402. The Court further noted that Section 8(d) of the National Labor Relations Act was passed in response to fears that the Board in other cases had gone too far in passing upon what proposals and counterproposals should be made by the parties to bargaining.' The Court interpreted the statute: Thus it is now apparent from the statute itself that the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement in support of his position. And it is equally clear that that the Board may not, either di- rectly or indirectly, compel concessions or other- wise sit in judgment upon the substantive terms of collective bargaining agreements. The Court summarized the Board's position thusly: Conceding that there is nothing unlawful in includ- ing a management functions clause in a labor agree- ment, the Board would permit an employer to "pro- pose" such a clause. But the Board would forbid bargaining for any such clause when the union de- clines to accept the proposal, even where the clause is offered as a counterproposal to a Union demand for unlimited arbitration. Ignoring the nature of the Union's demand in this case, the Board takes the position that employers subject to the Act must agree to include in any labor agreement provisions establishing fixed standards for work schedules or any other condition of employment. An employer would be permitted to bargain as to the content of the standards so long as he agrees to freeze a stand- ard into a contract . Bargaining for more flexible treatment of such matters would be denied employ- ers even though the result may be contrary to common collective bargaining practice in the indus- try. ' Sec. 8(d) of the Act provides: For the purposes of this section, to bargain collectively is the per- formance of the mutual obligation of the employer and the represent- ative of the employees to meet at reasonable tunes and confer in good faith with respect to wages, hours, and terms and conditions of employment, or the negotiation of any agreement or any question arising thereunder, and the execution of a written contract incorpo- rating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or re- quire the making of a concession. CINCINNATI ENQUIRER 279 The Court rejected the Board's position stating, Whether a contract should contain a clause fixing standards for such matters as work scheduling or should provide for more flexible treatment of such matters is an issue for determination across the bar- gaining table, not by the Board. If the latter ap- proach is agreed upon, the extent of union and man- agement participation in the administration of such matters is itself a condition of employment to be settled by bargaining. Accordingly, we reject the Board's holding that bargaining for the management functions clause proposed by Respondent was, per se, an unfair labor practice. Any fears the Board may entertain that use of management functions clauses will lead to evasion of an employer's duty to bargain collective- ly as to "rates of pay, wages, hours and conditions of employment" do not justify condemning all bar- gaining for management functions clauses covering any "condition of employment" as per se violations of the Act. The duty to bargain collectively is to be enforced by application of the good faith bargaining standards of Section 8(d) to the facts of each case rather than by prohibiting all employers in every in- dustry from bargaining for management functions clauses altogether. Thus American National Insurance Co. establishes that the Board cannot prohibit an employer from bargaining for flexibility in determining terms and condition of em- ployment, including wage rates, especially where, as here, the Union insists on unlimited arbitration. The Board has, recognized this and has not, since the an- nouncement of American National Insurance Co., held that an employer commits a per se violation of the Act by insisting upon flexibility in determining conditions of employment.' The General Counsel and the Charging Party have submitted extensive briefs citing cases in which employ- ers' acts of insistence on unilateral control of wages have been held to be indicia of bad-faith bargaining in viola- tion of Section 8(a)(5) and (1). I need not list and distin- guish these cases individually. All of the cited cases hold that conduct similar to Respondent's (insisting on the right to determine wages unilaterally, with or without arbitration refusals and with or without no-strike de- mands) constitutes an element of bad faith, but none of the cases hold that insistence on unilateral control of wages, without more, constitutes a violation of Section 8(a)(5), as is alleged. Respondent is not alleged to have engaged in a course of overall bad-faith bargaining as was the case in each of the cases cited by the General Counsel and the Charging Party. If an allegation of overall bad-faith bargaining were part of this case, the proof of Respondent's conduct may have supported such a theory. We shall never know. The General Counsel's opening statement made it clear that the complaint issued on a per se theory, and that is the basis upon which the case was tried. More- over, the narrowness of the complaint herein can have only one objective: an order against Respondent that it cease and desist from "insisting as a condition of agree- ment, that the . . . Union agree to a provision whereby the Respondent reserves to itself the right to take unilat- eral action with respect to rates of pay." This would be precisely the order which was specially condemned by the Supreme Court in American National Insurance Co., supra. Accordingly, I shall recommend the complaint be dis- missed. ORDERS The complaint is dismissed in its entirety. 2 The one case cited by the Charging Party which would appear to appraise employer conduct under a per se theory, Aluminum Oil Co., 39 NLRB 1286 (1942), issued approximately 10 years before American Na- tional Insurance. 8 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations , the findings , conclusions , and recommended Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.