Central Maine Morning Sentinel

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 376 (N.L.R.B. 1989)

376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Guy Gannett Publishing Company, d/b/a Central
Maine Morning Sentinel and Local 128, Port-
land Newspaper Guild , a/w the Newspaper
Guild . Case 1-CA-25297
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On December 30, 1988, Administrative Law
Judge Arline Pacht issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed a brief in support
of the judge's decision, and the Charging Party
filed a brief answering the Respondent's exceptions
and in support of the judge's decision.
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 explained below and to adopt the
recommended Order.
The judge found, and we agree, that the Re-
spondent had an established practice of granting an
annual wage increase to all its employees not cov-
ered by a collective -bargaining agreement.2 The
editorial employees in this case who had selected
the Union as their bargaining representative re-
mained within this class following certification and
the onset of contract negotiations , and therefore
reasonably expected that the wage increase would
continue to be part of their ongoing conditions of
employment, at least until an initial collective-bar-
gaining agreement was in place to establish a wage
scale independent of the Respondent's past prac-
tice, or until the parties had bargained to impasse
about changing these conditions. Neither event oc-
curred here.
In response to our dissenting colleague, we first
note that while the amount of the general increase
is discretionary on the part of the Respondent, a
subsequent decision to grant that year 's increase to
r The judge found , in the third paragraph of the section of her decision
entitled "Alleged Unfair Labor Practices ," that Eugene Poston , the Re-
spondent 's labor relations director , stated at the initial 1986 bargaining
session that the Respondent did not intend to deviate from its past prac-
tice of granting a general wage increase each year In fact , the Respond-
ent's intention to adhere to past practice , as set forth by Poston, con-
cerned its policy on merit and step increases Poston testified further that
his expressed position regarding the Respondent 's historical annual wage
increase policy "was not very clear" at that initial session . This factual
error by the judge does not affect our decision
2 The parties stipulated that "From at least 1981 through 1987, in Janu-
ary or February of each year , the employer granted to its employees not
covered by a collective bargaining agreement annual wage increases" in
amounts varying from 8 .9 percent in 1981 to 4 percent in 1987.
some employees in the affected class and at the
same time withhold it - from others similarly situat-
ed3 is a clear departure from an established prac-
tice "to which the employer has already committed
himself." NLRB v. Katz, 369 U.S. 736, 746 (1962).
Further, it is of no legal significance that the Re-
spondent did not explicitly agree to do what it was
obligated to do, given the state of negotiations in
February 1988, and what it had in fact done during
negotiations in February 1987-maintain its prac-
tice of wage increase parity for all employees not
covered or, as here, not yet covered by a collec-
tive-bargaining agreement.
Additionally, as the judge found, the parties had
agreed on ground rules under which bargaining
over economic issues would be postponed until
after noneconomic issues were resolved , and the
Respondent did not seek to bargain over a change
in those ground rules . In fact this agreement had
been earlier relied on by the Respondent in resist-
ing a union request concerning a dental plan and a
reduced workweek. Simply stated, what the Re-
spondent did here was to confront the Union with
an obligation to make a decision on a proposed
wage increase before the bargaining over noneco-
nomic issues was concluded.4
We therefore adopt the judge's finding that the
Respondent violated Section 8(a)(5) of the Act by
withholding the 1988 general wage increase from
the unit employees.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Guy Gan-
nett Publishing Company, d/b/a Central Maine
Morning Sentinel , Waterville , Maine, its officers,
agents, successors , and assigns , shall take the action
set forth in the Order.
MEMBER JOHANSEN , dissenting.
Generally, an employer whose employees elect
union representation is not permitted to change
wages as it had done before representation. It may
do so, however, if the changes are "automatic in-
creases to which the employer has already commit-
ted himself . . . ." NLRB v. Katz, 369 U.S. 736,
3 Cf Postal Service , 261 NLRB 505 (1982), relied on by our dissenting
colleague . There the employer 's past practice was to distinguish between
represented and unrepresented employees from the date of certification of
the former's bargaining representative Further , the Board stressed , in dis-
missing the 8(a)(5) allegation , that the timing as well as the amounts of
wage increases were subject to the employer's sole discretion.
4 Chairman Stephens would rely on this rationale alone. Member Hig-
gins would additionally rely on the judge's finding that, in any event, the
Respondent 's oral and written notices to the Union of its 1988 wage pro-
posal, in the circumstances of this case , did not afford the Union a rea-
sonable opportunity to respond.
295 NLRB No. 42
CENTRAL MAINE MORNING SENTINEL 377
746 (1962). The Respondent here-involved in the
prolonged negotiation of an initial contract-failed
to include newly represented employees in a yearly
increase accorded unrepresented employees as it
had a year earlier. The Union had requested that
parity be maintained while negotiations continued.
The Respondent did not agree. As in Katz, "the
raises here in question were in no sense automatic,
but were informed by a large measure of discre-
tion." Ibid. I am not persuaded that the Respond-
ent undertook to maintain parity, nor that the raise
was "automatic" within the contemplation of Katz.
I would dismiss the complaint.'
' Postal Service, 261 NLRB 505 (1982).
Thomas J. Morrison, Esq., for the General Counsel.
Geoffrey K Cummings, Esq. (Preti, Flaherty, Beliveau &
Pachios), of Portland , Maine, for the Respondent.
E. David Wanger, Esq. (Angoff, Goldman, Manning, Pyle,
Wagner & Hiatt), of Boston , Massachusetts , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Upon a
charge filed on February 26, 1988, a complaint issued on
April 21 alleging that the Respondent, Guy Gannett
Publishing Company, d/b/a Central Maine Morning Sen-
tinel (the Respondent) violated Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act) by refusing
to grant a wage increase to employees in a bargaining
unit represented by the Charging Party, Local 128, Port-
land Newspaper Guild (the Union). The Respondent an-
swered on May 6 denying that it had committed any
unfair labor practices.
The case was tried before me in Boston , Massachu-
setts, on September 29, 1988 , at which time the parties
had full opportunity to examine witnesses , introduce doc-
umentary proof, and present oral argument . Taking into
account the witness' demeanor , and on the entire record,
including posttrial briefs submitted by the parties, pursu-
ant to Section 10(c) of the Act, I make the following
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, a corporation with an office and place of
business in Waterville , Maine, has been engaged in publi-
cation of a newspaper . Respondent had membership in or
subscribes to interstate news services including the Asso-
ciated Press and the United Press International and also
advertises nationally sold products . In addition , Respond-
ent in the course and conduct of its business operations,
annually derived gross revenues in excess of $200,000.
The complaint alleges, Respondent admits, and I find
that it is an employer within the meaning of Section
2)(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In May 1986, the Union was certified as the collective-
bargaining representative for editorial department em-
ployees at the Respondent's offices in Waterville, Sko-
whegan, and Farmington , Maine . Negotiations began in
mid-July with Leo Ducharme , an International repre-
sentative of the Union leading the employee bargaining
committee and Eugene Poston , labor relations director,
serving as the Respondent 's chief spokesman.
When bargaining commenced , the parties adopted cer-
tain ground rules, including agreement that economic
issues would be reserved until noneconomic issues were
resolved. The record is undisputed that consistent with
this agreement , when the Union asked in late 1987
whether an improved dental plan and a reduced work-
week granted to unrepresented employees could not
extend to unit employees as well , the Respondent resist-
ed on the ground that such matters involved "hard eco-
nomics" and had to be deferred until noneconomic issues
were settled. Guild agent Ducharme also testified that
the Respondent resisted the Union's effort to reach
agreement to continue the Company 's sick leave plan for
the same reason.' However, in December 1987, the par-
ties did agree to reimburse employees for automobile
travel expenses.
Moreover , during the preliminary stages of bargaining,
Union Representative Ducharme briefly alluded to an-
other economic concern : he told Respondent 's negotia-
tors that the Company would be expected to grant its
customary general wage increase in January or February
1987, just as it had in the past. He was referring to the
Respondent 's traditional practice of granting its unrepre-
sented employees an annual wage increase which varied
from 8.9 percent in 1981 to 4 percent in 1987 . Poston an-
swered at that time that the Respondent did not intend
to deviate from past practice.
Subsequently , at a bargaining session in January 1987,
with noneconomic issues still on the table , the Union
pointed out that the annual wage increase soon would be
due. Specifically , Ducharme stated that the annual in-
crease should be granted to the editorial employees just
as it had in the past. The Company replied that it agreed
to grant the general wage increase , no additional wage
adjustments for the newly represented members of the
editorial unit would be forthcoming that year. When the
Union refused to acquiesce to this position , the Respond-
ent extended a general wage increase of 4 percent to
both unrepresented and editorial unit employees without
further comment.
The Sentinel Employee Handbook describes the
annual wage raise as " [a]n increase determined periodi-
' Although the record is vague on this matter , it appears that at an un-
specified time during the course of negotiations , the editorial unit em-
ployees began receiving sick leave benefits , although the parties had not
agreed in writing to the terms of the program.
The Respondent incorrectly asserted in its brief that the parties bar-
gained about merit increases . In fact , the transcript shows that Ducharme
did not recall discussing this subject . (See Tr. 26.)
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cally by Sentinel Management , intended to reflect eco-
nomic and competitive conditions ." (G.C. Exh . 2 at 10.)2
To augment this description , Robert Moorehead , general
manager of the newspaper , explained that the amount of
the annual increase was influenced by a comparison with
wage rates offered by comparable newspapers in the area
and the condition of the national, state , and local econo-
my. Although Moorehead maintained that the wage in-
crease decision was subjective and discretionary and that
there was no cap above which he would refuse to go, he
conceded that he was opposed to a raise which fell
below 4 percent. 3
In early January 1988, the Union again urged the Re-
spondent to grant general wage increases to its members
together with the unrepresented employees . At a negoti-
ating session of January 14, the Respondent 's spokesman,
Poston, stated that a 4-percent wage raise would be ex-
tended to unit employees provided that the Union would
make no further demands with regard to general wage
adjustments . Ducharme rejected the proposition , charac-
terizing it as a take-it-or-leave-it proposal. At the next
bargaining meeting on January 22 , Poston handed Du-
charme a letter which restated Respondent 's position in
the following terms:
[The] Employer proposes a general wage in-
crease of 4 percent to be effective February 1, 1988
for all employees of the Editorial Department .. .
provided the Guild acknowledges in writing that
such general increase will fully satisfy the Employ-
er's obligation with regard to general wage adjust-
ments for the period extending from May 8, 1986 to
February 5, 1989.
In the event the Guild does not notify the Em-
ployer of acceptance of the above proposal by Feb-
ruary 1, 1988, the Employer will consider the pro-
posal to be rejected by the Guild and the matter of
general wage adjustments continues to be open for
negotiation. [G.C. Exh. 3.]
The Guild advised its members of the Company's pro-
posal in a bulletin dated January 22 pointing out that to
accept it would put an end to bargaining for a retroac-
tive pay increase. [R. Exh . 1.] By letter of February 8,
the Union rejected the Respondent's proposal and re-
fused to waive its right to negotiate wage adjustments
retroactively and prospectively . In the Union 's view, for
the Respondent
to impose such a condition and to unilaterally with-
old [sic] the traditional February increases is . . . an
unfair labor practice . Our position . . . continues to
be that the employer had an obligation to grant the
traditional February increases . . . . [G.C. Exh. 4.]
annual wage increase . Poston reaffirmed the Company's
position , stating that it would be imprudent to grant a
general increase and thereby lose bargaining power
when the matter of retroactive adjustments was ad-
dressed . He then urged the Union to present a counter-
proposal which Ducharme refused to do. As a conse-
quence of this stalemate , the editorial unit employees
were denied a 4-percent raise granted to the unrepresent-
ed workers . By the time of the instant hearing , the par-
ties had held 50 bargaining sessions , but had failed to re-
solve this dispute or execute a final contract.
II. DISCUSSION
It is axiomatic that an employer may not unilaterally
alter terms and conditions of employment without af-
fording the union representing its employees a meaning-
ful opportunity to negotiate "in fact." NLRB v. Katz, 369
U.S. 736, 743 (1962). This precept provides the starting
point for analyzing the two issues in this case : first,
whether the 1988 general wage increase was a fixed term
of employment within the meaning of Section 8 (d) of the
Act and, second, if it was, whether the Respondent with-
held the increase without bargaining with the Union in
violation of Section 8(a)(5).
A. The Wage Increase Was a Condition of
Employment
In determining whether a particular practice should be
characterized as a term or condition of employment, the
Board has examined the regularity of the practice and
way in which the employer has treated it. See, e.g.,
UARCO Inc., 283 NLRB 298 (1987) (employer unlawful-
ly withheld increase to newly represented employees
who had received increase equal to those of competitor
for 17 years); Southern Michigan Gas Co., 198 NLRB
1221 (1972) (employer violated Sec. 8(a)(5) by discon-
tinuing wage increase policy in effect for 20 years); Gas
Machinery Co., 221 NLRB 862 (1975) (bonuses awarded
for 6 years were part of wage structure); Allied Products
Corp., 218 NLRB 1246, 1252-1253 (1975).
On applying these criteria to the instant case, there can
be no question that the annual wage increase was a fixed
condition of employment. As noted above, the Respond-
ent regularly granted an across-the-board annual increase
for many years , at least since 1981. Given the consisten-
cy of the Respondent's practice, the work force surely
was entitled to regard it as a permanent element in their
wage structure program. Moreover, the Respondent
itself made it clear that a per annum raise was an integral
part of its Salary Administration Plan, stating unequivo-
cally that:
At the bargaining meeting following receipt of this
letter, the parties again focused on the question of the
2 The annual general wage increase is one facet of a "Salary Adminis-
tration Plan" in effect at Respondent 's facility.
a Although Moorehead said he had no ceiling on pay hikes, he dis-
closed that in the early 1980s , when the Respondent realized it was lag-
ging behind industry wages by 14 or 15 percent , it chose to cure this in-
equity by stretching increases over a 2-year period.
[a]t least once in each year, the salary range will
be reviewed , to assure that the salary ranges meet
the plan objectives . Traditionally, significant gener-
al increases are made February 1. [G.C. Exh. 2 at
6.]
This pronouncement establishes beyond doubt that the
general wage increase was a basic term of employment.
CENTRAL MAINE MORNING SENTINEL 379
The Respondent submits that the annual pay raise was
discretionary and subjective and, therefore , was not a
mandatory subject of collective bargaining . To be sure,
the Respondent retained discretion to determine the
amount of the pay raise . But the exercise of some discre-
tion is not fatal to the conclusion that the raise was a
condition of employment . See Gas Machinery Co., supra
at 863-864; Allied Products Corp., supra at 1252; General
Motors Acceptance Corp., 196 NLRB 137 (1972), enfd. 476
F.2d 850, 853-854 (1st Cir. 1973). Here, Respondent fol-
lowed a consistent course : It did not deviate from year
to year in deciding that a raise would be granted; it ap-
plied a formula derived from uniform factors across-the-
board and granted it to all employees whose wages were
not governed by collective-bargaining agreements. Since
Respondent and the Union had not reached agreement
on a labor contract by February 1, the represented edito-
rial unit employees (unlike other represented workers al-
ready covered by extant labor contracts) continued to be
eligible for the 1988 raise as an absolute condition of
their employment.
B. Respondent Unilaterally Withheld the Wage
Increase
Because the wage increase was a condition of employ-
ment, the Respondent was not proscribed from unilater-
ally granting it to the editorial unit employees. On the
other hand , the Respondent could not withdraw the in-
crease unless impasse was reached after the Union was
afforded a meaningful opportunity to bargain , or waived
its right to bargain about the change . The General Coun-
sel and the Charging Party claim, contrary to the Re-
spondent , that neither of these circumstances occurred in
this case.
Section 8(d) of the Act obligates an employer to bar-
gain in good faith over terms and conditions of employ-
ment such as the 1988 general wage increase at issue
here. In defining the parties ' obligations under the Act,
the Supreme Court has stated that "Collective bargaining
.. . is not simply an occasion for purely formal meetings
between management and labor, while each maintains an
attitude of `take it or leave it '; it presupposes a desire to
reach ultimate agreement ." NLRB v. Insurance Agents,
361 U.S. 477, 485 (1960).
The Board and the courts are particularly vigilant in
scrutinizing bargaining when an employer proposes to
change terms of employment during initial contract ne-
gotiations , recognizing that such changes can jeopardize
the efficacy of a newly certified union . See, e .g., Eastern
Maine Medical Center, 253 NLRB 243, (1980), enfd. 658
F.2d (1st Cir. 1981). Thus, in NLRB v. United Aircraft
Corp., 490 F.2d 1105, 1110 (2d Cir. 1973), in rejecting the
employer's argument that it should be allowed to with-
hold wage increases to improve its bargaining position,
the court of appeals reasoned:
If the Company's position were accepted, an em-
ployer would appear to be entitled , in the hope of
improving its bargaining position , to alter all condi-
tions of employment after union certification , reduc-
ing wages to the legal minimum and allowing the
work environment to deteriorate . The devasting
impact that such action would have upon the exer-
cise of Section 7 rights in indisputable.
On applying the reasoning of the above -cited cases to the
facts of this controversy , I conclude that the Respondent
failed to provide the Union with a meaningful opportuni-
ty to bargain before withdrawing the 1988 wage raise.
To briefly recapitulate the operative facts, the record
shows that while the parties were still engaged in negoti-
ating noneconomic issues in keeping with their ground
rules, the Respondent orally advised the Union on Janu-
ary 14, 1988, that it would grant the annual wage in-
crease to the editorial employees if, by February 1, the
Union agreed to forgo bargaining about additional wage
adjustments . Respondent formally conveyed its position
in writing on January 22, but the Union did not reply
until February 8 with a letter rejecting the proposal.
Consistent with its proposition , the Respondent gave a 4-
percent rate increase to unrepresented employees and
denied it to the editorial unit members.
In analyzing the parties ' bargaining conduct, it is im-
portant to bear in mind that management and the Union
had agreed voluntarily on ground rules which would
govern their negotiations; they first would bargain about
noneconomic issues and then deal with the generally
more taxing economic subjects . Their agreement did not
reflect polite rules of etiquette ; rather, it grew out of the
experience of seasoned negotiators who for reasons of
their own took this rule of order seriously .4 (Cf. Eastern
Maine Medical Center, supra at 232-233 (1980).) The
Union was entitled to rely on this agreement in framing
its bargaining strategy and had no duty to bargain at this
time . The Respondent was not at liberty to rearrange the
structure of negotiations simply because the annual wage
increase came at an inconvenient time . Rather, the
burden was on Respondent to maintain the status quo
and bargain about wage adjustments at a time when that
issue properly was on the table.
Respondent contends that the parties resolved other
ecomomic concerns during the course of negotiations;
consequently, the Union waived any right to claim that
bargaining over the general wage increase was barred.
The record does not support the Respondent's thesis.
Thus, it is uncontroverted that the Respondent insisted
on deferring discussion of such issues as a reduced work
week and a dental plan until economic issues were on the
bargaining table . It is true that several matters such as
reimburseable travel expenses and sick leave benefits
were handled out of turn , but discussion of a few , isolat-
ed economic topics (far less critical to employees than
the subject of wages) does not establish a patten of con-
duct or disrupt the order which the parties themselves
adopted.
The status of negotiations between the Respondent and
the Guild distinguishes this case from the situation in
Winn-Dixie Raleigh, Inc., 267 NLRB 231 (1983). In that
4 Ducharme was employed by the Guild for more than 15 years and as
an International representative, was responsible for negotiating contracts
Poston administered labor agreements throughout his 14 years with the
Respondent and participated in negotiations for at least 8 of the current
contracts
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case, both the employer and the union had exchanged
specific proposals regarding wage increases ; the union
rejected the employer 's offer, and then told the employer
it was free to implement the raise for the represented as
well as unrepresented employees and it would seek an
additional amount from the NLRB . The administrative
law judge found that the parties had bargained over the
wage increase and, in addition , had almost completed
their negotiations . In these circumstances , the administra-
tive law judge, with Board approval , found that the Re-
spondent satisfied its bargaining duty.5 Unlike the bar-
gaining history in Winn-Dixie, there is no evidence here
that the parties had exchanged or considered wage pro-
posals.6 To the contrary , they had agreed to shelve eco-
nomic issues until the pending noneconomic matters
were resolved.
More was at stake here than the order of bargaining.
When the Respondent 's bargaining strategy is examined
in context, it is clear that whatever the outcome, the
Union was put into a no-win position . If the Union
wanted to assure that its unit members received the wage
increase to which they were entitled , it would have to
give up its right to bargain over other wages altogether.
If the Union rejected Respondent 's proposal, the editori-
al employees would be denied a raise they had good
reason to expect . Once the wage increase was withheld,
the damage to the Union 's prestige was accomplished.
Bargaining at some unspecified future date could not
compensate the represented employees for the loss of a
wage increase given to all unrepresented employees
months earlier . Thus, by posing untenable options, the
Respondent cast the Union into the mold of an ineffec-
tive bargaining agent . The Supreme Court's rule requir-
ing maintenance of the status quo during collective-bar-
gaining negotiations was designed to prevent just such
situations . See NLRB v. Katz, supra.
By setting a deadline for the Union's response only 1
week after it formally presented its position on the wage
increase, Respondent did not afford the Union sufficient
opportunity to bargain "in fact ." NLRB v. Katz, supra at
743. The Respondent 's haste deprived the Union of the
time to deliberate , to reflect on a whole range of issues
so that it could decide what compromises to make and
what proposals to resist . Respondent's insistence on a
quick reply provides further evidence that it did not
intend to engage in a meaningful give and take on this
issue . Even if the parties had not agreed to defer eco-
nomic issues, 1 week is hardly sufficient time for the
Union to formulate a thoughtful counterproposal. See
Milwaukee Terminal Service, 282 NLRB 637 ( 1987) (em-
ployer violated Sec. 8(a)(5) where offer to discuss major
change with union 3 days before implementation , too late
to allow study of the offer or exploration of compromise
of the issue); Rose Arbor Manor, 242 NLRB 795, 798
(1979) (employer 's letter notifying union of planned uni-
lateral action prevented meaningful bargaining).
Respondent submits that it gave the Union adequate
notice since Poston orally advised Ducharme on January
14 of its intentions with regard to the annual wage in-
crease . In the circumstances present here , the Respond-
ent's oral communication cannot constitute effective
notice . It will be recalled that, in 1987, the Respondent
also attempted to take the same position it did in 1988,
that is, to use the annual wage increase as a bargaining
chip . When the Union protested , the Respondent relent-
ed and granted the wage increase to the editorial em-
ployees together with other unrepresented workers. The
Union had no reason to assume that the Respondent
would persist in 1988 when it had retreated with respect
to that same issue in the past.
For the reasons set forth above, I find that the Re-
spondent did not satisfy the Act's command to bargain in
good faith with the representative of its employees over
the wage increase issue . Therefore, by unilaterally with-
holding the 1988 increase from the editorial unit employ-
ees, Respondent violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent , Guy Gannett Publishing Compa-
ny, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, Local 128, Portland Newspaper Guild,
is a labor organization within the meaning of Section
2(5) of the Act.
3. The Union is the exclusive bargaining representative
of Respondent 's employees in the following appropriate
unit:
All full-time and regular part-time editorial employ-
ees, employed by the Employer at its Waterville,
Skowhegan and Farmington , Maine facilities, but
excluding all other employees guards and supervi-
sors as defined in the Act.
4. By unilaterally withholding the 1988 general wage
increase without affording the Union an opportunity to
bargain with respect thereto , Respondent has violated
Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice , I shall recommend that Respondent
be ordered to cease and desist therefore and take certain
affirmative action designed to effectuate the purposes of
the Act, including the posting of appropriate notices and,
on request , bargaining with the Union in good faith.?
6 See also Anaconda Enccson Inc., 261 NLRB 831, 834-835 (1982), in
which the administrative law judge also found that because wage issues
were on the bargaining table 3 weeks before a scheduled increase, the
denial of the increase to represented workers did not violate Sec. 8(a)(5).
6 The Union's brief reminders to the Respondent that the annual gener-
al wage increase soon would be due certainly cannot be characterized as
a discussion of an economic proposal
7 In order to ensure that the employees in the appropriate unit will be
accorded the services of their selected bargaining representative for the
period provided by law , the initial period of certification shall be con-
strued as beginning on the date Respondent commences to bargain in
good faith with the Union as the statutory bargaining representative in
the appropriate unit . See Mar-Jac Poultry Co, 136 NLRB 785, 786-787
(1962).
CENTRAL MAINE MORNING SENTINEL
Since Respondent has been found to have withheld
wage increases to which bargaining unit employees were
entitled and would have received but for Respondent's
unilateral action in violation of Section 8(a)(5) and (1) of
the Act. I shall recommend that each of the affected em-
ployees in the bargaining unit described above in Con-
clusions of Law 3 be reimbursed for the increases they
would have received from February 1, 1988, to the
present by payment to them of the difference between
their actual wages and the wages they would have re-
ceived had the same 4-percent increases been granted to
them as were awarded to unrepresented employees. The
amount shall be computed on a quarterly basis in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed8
ORDER
The Respondent, Guy Gannett Publishing Company,
d/b/a Central Maine Morning Sentinel , Waterville,
Maine, its officers , agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union
with respect to the 1988 general wage increase or any
other term or condition of employment by unilaterally
withholding said increase in the appropriate unit repre-
sented by Local 182, Portland Newspaper Guild.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively in good faith with
the Union as the exclusive collective -bargaining repre-
sentative of its employees in the appropriate unit de-
scribed above in Conclusions of Law 3.
(b) Make whole the employees in the appropriate unit
for any monetary losses they have suffered by reason of
Respondent 's unilateral withholding of the 1988 general
wage increase in the manner set forth above in the
remedy section.
(c) Preserve and, on request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at its Waterville , Skowhegan , and Farming-
ton, Maine facilities copies of the attached notice marked
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.
381
"Appendix."9 Copies of the notice, on forms provided
by the Regional Director for Region 1, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted . Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1 in writ-
ing within 20 days from the date of this Order, what
steps the Respondent had taken to comply.
9 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally withhold the 1988 general
wage increase for editorial employees represented by
Local 128, Portland Newspaper Guild without adequate
notice and appropriate opportunity to bargain with re-
spect thereto being afforded to the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the National Labor
Relations Act.
WE WILL, on request, bargain in good faith with the
Union as exclusive collective-bargaining representative of
our employees in the following appropriate unit:
All full-time and regular part-time editorial employ-
ees, employed by the Employer at its Waterville,
Skowhegan and Farmington , Maine facilities, but
excluding all other employees guards and supervi-
sors as defined in the Act.
WE WILL make whole the employees in the above ap-
propriate unit for any monetary losses they may have
suffered by reason of our unilateral wihholding of the
1988 general wage increase.
Guy GANNETT PUBLISHING CO. D/B/A
CENTRAL MAINE MORNING SENTINEL