Daily News of Los Angeles

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 511 (N.L.R.B. 1991)

511
304 NLRB No. 63
DAILY NEWS OF LOS ANGELES
The Daily News of Los Angeles, a Division of Cooke
Media Group, Inc. and Los Angeles Newspaper
Guild, the Newspaper Guild Local 69, AFL–
CIO. Case 31–CA–17751
August 27, 1991
DECISION AND ORDER
MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On March 28, 1990, Administrative Law Judge Ger-
ald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
Contrary to our dissenting colleague, we agree with
the judge, for the reasons stated by him, that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally withholding annual merit wage increases
from unit employees. While not explicitly set forth by
the judge, two well-settled legal principles, both enun-
ciated by the Supreme Court in its decision in NLRB
v. Katz, 369 U.S. 736 (1962), underlie the judge’s
analysis. First, an employer negotiating with a newly
certified bargaining representative is prohibited under
Section 8(a)(5) from altering established terms and
conditions of employment without first notifying and
bargaining with the union. Second, merit increases are
included in this prohibition unless they ‘‘are in fact
simply automatic increases to which the employer has
already committed himself. . . .’’ Katz, supra at 746.
The Board has made it clear that the same bargain-
ing obligation applies whether the issue involved is the
employer’s unilateral granting of merit increases or its
unilateral discontinuance of them. As the Board ex-
plained in Oneita Knitting Mills, 205 NLRB 500 fn. 1
(1973):
An employer with a past history of a merit in-
crease program neither may discontinue that pro-
gram . . . nor may he any longer continue to uni-
laterally exercise his discretion with respect to
such increases, once an exclusive bargaining agent
is selected. NLRB v. Katz, 396 U.S. 736 (1962).
What is required is a maintenance of preexisting
practices, i.e., the general outline of the program;
however, the implementation of that program (to
the extent that discretion has existed in determin-
ing the amounts or timing of the increases) be-
comes a matter as to which the bargaining agent
is entitled to be consulted.
Thus, once the judge found that the Respondent had
‘‘a pattern and practice of evaluating the unit employ-
ees at the time of each employee’s anniversary date,’’
he correctly concluded that the Respondent was re-
quired to maintain that practice, absent an agreement
with the Union to the contrary. Given the Union’s spe-
cific request that the Respondent continue its merit
wage program during negotiations, it clearly did not
agree to any discontinuance of that program.
The dissent mischaracterizes several of the judge’s
findings. First, the judge did not find that the Respond-
ent’s merit wage program was ‘‘purely discretionary.’’
Although the judge found that the amount that an em-
ployee would receive was discretionary, he found that
the timing of the increase—at the employee’s annual
evaluation—was not discretionary and thus that the
merit wage program had become an established term
and condition of employment.
The dissent also mischaracterizes the judge’s finding
that the Union ‘‘specifically waived any objection or
legal position it may have otherwise taken on the mat-
ter of merit increases.’’ The Union agreed to the Re-
spondent’s continuing exercise of its discretion in uni-
laterally determining the amount of each employee’s
merit increase based on his or her annual evaluation.
Absent this agreement, the Respondent would have
been obligated, as explained in Oneita, to bargain with
the Union over this discretionary aspect of the merit
wage program. In light of this agreement, however, the
Respondent was privileged to grant merit wage in-
creases at the employee’s annual evaluation without
bargaining with the Union. It was in this context that
the judge found that the Union had waived its bargain-
ing rights over the Respondent’s granting of merit
wage increases.
The Board cases relied on by the judge are consist-
ent with the legal principles discussed above. Thus, in
Central Maine Morning Sentinel, 295 NLRB 376
(1989), the Board found that the employer unlawfully
withheld a wage increase from unit employees where
the granting of the increase had become an established
practice, although the amount of the increase was dis-
cretionary. In General Motors Acceptance Corp., 196
NLRB 137 (1972), Allied Products Corp., 218 NLRB
1246 (1975), and Rochester Institute of Technology,
264 NLRB 1020 (1982), enf. denied 724 F.2d 9 (2d
Cir. 1983), the Board found that the employers unlaw-
fully discontinued their merit wage programs during
negotiations with newly certified unions.
Similarly, the cases relied on by the Respondent and
our dissenting colleague are distinguishable from the
present case. As noted by the judge, in American Mir-
ror Co., 269 NLRB 1091 (1984), the Board found no
violation in the employer’s withholding of wage in-
creases where the increases were not an established
practice because of their variance in past years as to
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The majority apparently misapprehends my conclusion, infra, that the
judge found that even though ‘‘the application of the merit pay program was
purely discretionary the Respondent was required to continue it.’’ First, ‘‘ap-
plication’’ is defined as ‘‘the act of applying: specifically, . . . b, the act of
putting something to use.’’ (Webster’s New World Dictionary (2d College ed.
1972)). That is indeed precisely what is involved here. Second, the judge stat-
ed that the Respondent maintained the policy of its predecessor in annually
evaluating the performance of each employee at the time of the employee’s
anniversary date. I readily concur with counsel for the General Counsel in say-
ing that that is ‘‘generally’’ the case. However, the Respondent also at its op-
tion can, and has, evaluated employees more frequently, though the parties
agree it doesn’t happen very often, ‘‘just because of the nature of the thing,’’
as the judge aptly expressed it. The record further shows that in such situations
the Respondent has sometimes retained, and at other times changed the timing
of the employee’s next scheduled evaluation date. The freedom or authority
to make choices, or the power ‘‘to judge or act’’ is by definition, ‘‘discre-
tion.’’
Finally, I am perplexed by my colleagues apparent discomfort over my ac-
curate reference to the judge’s finding that the Union ‘‘specifically waived any
objection or legal position it may have otherwise taken on the matter of merit
increases’’ (majority at par. 7, supra, quoting the administrative law judge at
sec. III,C, first par.). The majority then states, ‘‘The Union agreed to the Re-
spondent’s continuing exercise of its discretion in unilaterally determining the
amount of each employee’s merit increase based on his (or her) annual evalua-
tion.’’ Ibid. (Emphasis in majority.) Their statement is simply wrong–-as the
Union itself concedes. Rather, as detailed more fully below (see discussion of
American Mirror and Rochester Institute of Technology, infra) what the Union
demanded here was the ‘‘best of both worlds.’’
both timing and amount. And in Anaconda Ericson,
Inc., 261 NLRB 831 (1982), the Board found that the
employer lawfully withheld wage increases where the
amounts were discretionary, the parties during negotia-
tions had begun bargaining over wages and the union
did not unconditionally agree to the wage increase. Fi-
nally, the dissent’s conclusion that the Union in this
case sought ‘‘the best of both worlds’’ misses the
mark. What the Union sought was nothing more than
what the Board and courts require the Respondent to
do, namely, to maintain the existing terms and condi-
tions of employment pending negotiated changes in
past practice or an impasse in bargaining. The Re-
spondent, on the other hand, agreed to defer bargaining
over economic issues until after bargaining over non-
economic issues and then unilaterally changed the
wages of unit employees. As the Board stated in Cen-
tral Maine Morning Sentinel, supra at 376, ‘‘Simply
stated, what the Respondent did here was to confront
the Union with an obligation to make a decision on a
proposed wage increase before the bargaining over
noneconomic issues was concluded.’’
For these reasons, we adopt the judge’s finding that
the Respondent violated Section 8(a)(5) by unilaterally
discontinuing its merit wage program.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Daily News of Los
Angeles, A Division of Cooke Media Group, Inc.,
Woodland Hills, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
MEMBER OVIATT, dissenting.
My colleagues have adopted the judge’s finding that
the Respondent violated Section 8(a)(5) and (1) of the
Act by not continuing a discretionary wage increase
program during negotiations for a collective-bargaining
agreement.1
From January 1, 1986, to the commencement of the
negotiations with the Union on June 14, 1989, the Re-
spondent operated under a policy of evaluating the per-
formance of each employee, usually on an annual
basis. The performance review, together with a rec-
ommendation for a salary increase, if any, was submit-
ted to the Respondent’s editor for final approval. Any
resulting salary increase was based on the perceived
efforts and ability of the individual employee, and his
or her value to the newspaper. Whether to give any in-
crease, and the amount, was totally discretionary and
varied among the unit employees.
At the commencement of negotiations in 1989, the
Respondent’s chief negotiator stated to the Union’s ne-
gotiating committee that the Respondent considered all
future wage increases, including merit increases, to be
bargainable issues; was considering whether these dis-
cretionary merit increases would be discontinued, and
asked the Union what its position would be if they
were to be discontinued. The Union’s chief spokes-
man, Smith, the judge found stated that he considered
the salary adjustment to be an existing condition of
employment that the Respondent could not unilaterally
discontinue, and further that the Respondent should
continue granting merit increases during the negotia-
tions. The Respondent then asked the Union if it
would give the Respondent ‘‘credit’’ in the wage nego-
tiations for any discretionary merit increases awarded
during the negotiating process. The Union responded
by indicating that the Union’s wage proposals were al-
ways in the form of a minimum wage scale ‘‘which
would most likely be above the current salary of the
employees and that therefore how much the individual
employee happened to be earning at the time the new
wage scale was agreed upon’’ would not matter and
thus did not agree that the discretionary merit increases
would have any effect on the bargaining.
At the July 5, 1989 bargaining session, the Com-
pany announced that it was discontinuing discretionary
merit wage increases. The Union advised the Company
that the Union considered such a discontinuance to
‘‘constitute unlawful unilateral conduct.’’ The judge
found that the merit increase program of the Company
has not been applied to unit employees since June 14,
1989, though it has been continued for non unit em-
ployees.
The majority adopts the conclusion of the judge that
the Union, by orally indicating that the Respondent
should continue the merit wage program, waived any
objection it might have had to merit increases during
513DAILY NEWS OF LOS ANGELES
negotiations. That, however, was neither the issue nor
the question posed by the Respondent. Even though
the parties had agreed to postpone the discussion of
economic improvements until the latter stages of the
negotiations, during the first negotiating meeting the
Company inquired whether it would receive ‘‘credit’’
for any increases it might award pursuant to the merit
increase program. The Union failed to answer that
question in replying that any merit increases that were
granted would not matter to the outcome of the wage
negotiations.
At no point did the Respondent inquire whether the
Union had any objection to the continuance of the
merit pay program. The Union stated in response to
the Respondent’s question only that it viewed the pro-
gram as a practice which could not be discontinued.
Whether the Union waived any objections it might
have to the continuation of the merit pay program is
not controlling. That would only establish that the Re-
spondent would have an affirmative defense to the
granting of merit increases. Indeed, if the Respondent
exercised its discretion not to grant increases that
‘‘waiver’’ would seem to require dismissal of the
8(a)(5) allegation.
Secondly, the judge seems to imply that the parties’
agreement to defer economics until the latter stages of
negotiations coupled with the Union’s ‘‘waiver,’’ con-
stituted an agreement ‘‘to continue granting the discre-
tionary merit increases as it would have done in the
absence of the Union.’’ An agreement requires some
semblance of a meeting of the minds of the contracting
parties (not simply the charging party, General Coun-
sel, and judge). The contrary is evident.
Thirdly, the Union’s position was that this merit in-
crease program was a practice which the Respondent
could not unilaterally discontinue. The judge found,
now joined by the majority, that even though the appli-
cation of the merit pay program was purely discre-
tionary the Respondent was required to continue it
under Section 8(a)(5) protection. That finding, in my
view, is not consistent with Board law.
The judge, and now the majority, relies on our deci-
sion in Central Maine Morning Sentinel, 295 NLRB
376 (1989), to support its conclusion here. That case,
however, involved an employer’s established practice
of providing annual increases, of the same percentage,
given to all employees across the board at the same
time. There is no evidence that the merit pay program
here included any of those factors and thus I do not
find that decision controlling here. Both Anaconda Er-
icson, Inc., 261 NLRB 831 (1982), and American Mir-
ror Co., 269 NLRB 1091 (1984), were relied upon by
the Respondent in support of its position. The judge,
and my colleagues, conclude that those decisions are
not controlling. The judge found that Anaconda was
inapposite because there was no finding that the union
had agreed that the employer should continue merit in-
creases. Because I find no such agreement or waiver
here, I do not agree that Anaconda, which dismissed
this allegation of the complaint, can be disposed of so
easily. Likewise, the judge here distinguished Amer-
ican Mirror on grounds that the ‘‘across-the-board in-
creases under consideration there varied as to the date
of implementation and amount,’’ and thus had no ap-
plication to the situation present here. However, there
is no dispute that the amount of increase here, if any,
given individuals under the merit pay program varied
widely among individuals depending on their perform-
ance and ‘‘his or her value to the newspaper’’ and
were ‘‘totally discretionary.’’ (ALJD sec. III,B.)
Accordingly, I find the Board’s analysis in Ana-
conda and American Mirror persuasive. The amounts
of the merit increases were purely discretionary. There
was no evidence that the size or application of the
merit increases was predetermined. I would adhere to
the position taken by the judge in American Mirror
when he said:
What the Union wanted was a continuance of in-
terim or past discretionary raises outside the con-
tract negotiations. The Union, in other words,
wanted the best of both worlds, and under the
facts of this case I find that the Company had no
legal duty to comply with the Union’s request (at
1095). That is precisely what the Union sought
here—the ‘‘best of both worlds.’’
I agree with this rationale. I find the Board’s deci-
sions in Anaconda and American Mirror to be control-
ling here. Accordingly, I would dismiss the complaint
and dissent from my colleagues failure to follow this
precedent.
Ann Weinman, Esq., for the General Counsel.
Thomas P. Burke, Jamie Johnson, and Thomas Petrides,
Esqs. (Petitt & Martin), of Los Angeles, California, for the
Respondent.
Ellen Greenstone, Esq. (Greenstone, Holquin, Garfield &
Knox), of Los Angeles, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing with respect to this matter was held
before me in Los Angeles, California, on December 12 and
13, 1989. The initial charge was filed on July 11, 1989, by
Los Angeles Newspaper Guild, The Newspaper Guild Local
69, AFL–CIO (the Union). Thereafter, on August 30, 1989,
the Regional Director for Region 31 of the National Labor
Relations Board (the Board) issued a complaint and notice of
hearing alleging a violation by The Daily News of Los An-
geles, a Division of Cooke Media Group, Inc. (Respondent),
of Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act).
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from the General Counsel, counsel for
the Union, and counsel for the Respondent.
On the entire record, and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation engaged in the
newspaper publishing business, and maintains its principal
place of business in Woodland Hills, California, where it is
engaged in printing and distributing its daily newspaper. In
the course and conduct of its business operations, the Re-
spondent annually derives gross revenues in excess of
$200,000, and annually purchases and receives goods or
services valued in excess of $50,000 directly from suppliers
located outside the State of California.
It is admitted, and I find, that the Respondent is now, and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, 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. The Issue
The principal issue raised by the pleadings is whether the
Respondent has violated and is violating Section 8(a)(1) and
(5) of the Act by discontinuing its past practice of granting
annual wage increases to employees at the time of their an-
nual performance evaluations.
B. The Facts
The facts are not in material dispute. On May 8, 1989, the
Union was certified as the collective-bargaining representa-
tive of certain of Respondent’s employees in the following
unit:
All full-time and regular part-time editorial department
employees employed by Respondent at its Woodland
Hills, Glendale, Lancaster, Palmdale, Sacramento, Santa
Clarita, Simi Valley, and Thousand Oaks, California
and Washington, D.C. locations.
Since January 1, 1986, when the Respondent took over the
operation of its predecessor, the Valley News, the Respond-
ent has maintained the policy of its predecessor in annually
evaluating the performance of each employee at the time of
the employee’s anniversary date, and submitting the perform-
ance review forms, together with any recommendation for a
salary increase, to the the editor for final approval. The re-
sulting salary increase, if any, is based on merit, and may
range from no increase to a substantial increase depending
on the perceived efforts and ability of the employee, and his
or her value to the newspaper. The amount of the increase,
if any, is totally discretionary. As an example of the Re-
spondent’s general practice with regard to salary increases,
the stipulated facts show that in 1986 there were 81 employ-
ees who received performance evaluations; 18.5 percent of
these individuals received no increase, while the remaining
employees received increases ranging from 2 to 20 percent.
Generally, for the years 1986 to 1989, it appears that from
about 40 to 50 percent of the unit employees receive in-
creases from 3 to 5 percent.
Bargaining negotiations commenced on June 14, 1989.
The parties agreed that they would negotiate the non-
economic issues first, and then take up the economic issues.
The Respondent’s spokesman, Tom Burke, stated that the
Respondent was considering whether to eliminate the merit
increases, and asked what the Union’s position would be on
this issue. The Union’s administrative officer, James Smith,
stated that he considered the salary increases to be an exist-
ing condition of employment which the Respondent could
not unilaterally discontinue, and that during the course of
bargaining the Respondent should continue to grant the in-
creases to employees, individually, on their anniversary
dates. Burke said that the Respondent wanted to eliminate
this practice because of the adverse economic effect it would
have on the Respondent, and asked whether the Union would
be willing to give credit to the Respondent if the practice
was continued during the negotiations. Smith replied that, al-
though the Union had not yet made a wage proposal, the
Union’s wage proposals were always in the form of a mini-
mum pay scale which would most likely be above the current
salary of the employees, and therefore it would not matter
how much an individual employee happened to be earning at
the time the wage scale was agreed on. Thus, Smith dis-
agreed that the continuation of the Respondent’s merit in-
crease practice during the course of the bargaining negotia-
tions would adversely affect the Respondent. Burke replied
that the Respondent would continue to consider whether it
would discontinue the increases during the course of bargain-
ing.
At the bargaining session on July 5, 1989, Burke an-
nounced that the Respondent had decided to discontinue
granting merit increases to the unit employees. Smith reiter-
ated the Union’s position, stated that he considered this to
constitute unlawful unilateral conduct, and advised the Re-
spondent that the Union would take appropriate action. To
the date of the hearing, December 13, 1989, the parties have
continued to bargain over noneconomic proposals, and the
negotiations have not yet advanced to the stage of wage ne-
gotiations.
The Respondent has continued, and is continuing, to issue
annual performance appraisals to all of its employees. How-
ever, since about June 14, 1989, the Respondent has discon-
tinued granting annual merit increases to its editorial depart-
ment employees, while continuing to grant them to its non-
represented employees.
C. Analysis and Conclusions
At the first negotiating session the Union advised the Re-
spondent that it should continue granting merit increases dur-
ing the course of bargaining as it had done in the past. In
this manner the Union specifically waived any objection or
legal position it may have otherwise taken on the matter of
515DAILY NEWS OF LOS ANGELES
merit increases, and therefore, according to the positions
taken by the Union and the General Counsel, the Respond-
ent, after having agreed that the subject of economics, in-
cluding wages, would be deferred to the latter stages of ne-
gotiations, was then required to continue granting the discre-
tionary merit increases as it would have done in the absence
of the Union. The Respondent argues that it was privileged
to discontinue the granting of discretionary merit increases.
In support of its position, the Respondent relies primarily
on two Board cases, Anaconda Ericson, Inc., 261 NLRB 831
(1982), and American Mirror Co., 269 NLRB 1091 (1984).
In Anaconda Ericson, unlike the instant case, the parties ne-
gotiated the issue of wages prior to the time the annual dis-
cretionary wage increases were customarily granted by the
employer, and the union did not unconditionally agree that
the employer should continue its past practice of granting
wage increases during the course of negotiations. In Amer-
ican Mirror, unlike the instant case, there was no existing
pattern of wage increases since the across-the-board wage in-
creases the employer elected to periodically grant varied as
to date and amount. Moreover, the parties did not defer the
negotiation of wages, but rather the employer took the posi-
tion that any wage increases which would be granted were
then ‘‘on the table’’ for negotiation.
The record evidence establishes that the Respondent had
instituted a pattern and practice of evaluating the unit em-
ployees at the time of each employee’s anniversary date, and
that as a result of such evaluation the Respondent would
grant a discretionary merit salary increase to the employee in
an amount commensurate with the employee’s evaluation;
and further, that the employees were fully aware of the Re-
spondent’s practice in this regard, and had come to expect
that their salary would be adjusted in this manner at the time
of each employee’s anniversary date. Moreover, at the com-
mencement of bargaining, the parties agreed to postpone the
negotiation of salaries until after the noneconomic contract
items had been negotiated, and the Union had specifically re-
quested that the Respondent continue with its customary
aforementioned practice of granting salary increases. Under
these circumstances, it appears that the Board’s recent deci-
sion in Central Maine Morning Sentinel, 295 NLRB 376
(1989), is controlling herein. In finding a violation of Section
8(a)(5) of the Act, the Board stated as follows:
The judge found, and we agree, that the Respondent
had an established practice of granting an annual wage
increase to all its employees not covered by a collective
bargaining agreement. The editorial employees in this
case who had selected the Union as their bargaining
representative remained within this class following cer-
tification 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 practice, or
until the parties had bargained to impasse about chang-
ing these conditions. Neither event occurred here.
[Footnote omitted.]
While the Respondent would distinguish the instant case
from Central Maine Morning Sentinel, on the basis that the
annual wage increases in Central Maine Morning Sentinel
were granted to all employees at the same time and each em-
ployee’s wages was increased by the same percentage, that
distinction does not mandate a different disposition of the
issue. Thus, as in the instant case, when there is a well-estab-
lished pattern of granting wage increases to employees who
have come to expect an annual evaluation together with a
salary increase commensurate with the results of that evalua-
tion, it would seem of no material significance that all em-
ployees were not evaluated simultaneously, or that their eval-
uations were not identical. See General Motors Acceptance
Corp., 196 NLRB 137 (1972); Allied Products Corp., 218
NLRB 1246 (1975), enfd. 548 F2d 644 (6th Cir. 1977);
Rochester Institute of Technology, 264 NLRB 1020 (1982),
enf. denied on other grounds 724 F.2d 9 (2d Cir. 1983).
On the basis of the foregoing, I find that the Respondent
has violated, and is violating, Section 8(a)(5) of the Act as
alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union 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 department
employees employed by Respondent at its Woodland
Hills, Glendale, Lancaster, Palmdale, Sacramento, Santa
Clarita, Simi Valley, and Thousand Oaks, California
and Washington, D.C. locations.
4. By unilaterally withholding wage increases from em-
ployees the Respondent has violated and is violating 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 the Respondent has failed to bargain in
good faith with the Union by withholding wage increases to
which bargaining unit employees were entitled, I shall rec-
ommend that the Respondent be ordered to cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the purposes of the Act, including the posting of an
appropriate notice.
Since the Respondent has been found to have withheld
wage increases to which bargaining unit employees were en-
titled and would have received but for the Respondent’s uni-
lateral conduct in violation of Section 8(a)(5) of the Act, I
shall recommend that each of the affected employees in the
bargaining unit described above be made whole for the in-
creases they would have received from the date such in-
creases were discontinued, apparently on about June 14,
1989, by payment to them of the difference between their ac-
tual wages and the wages they would have otherwise re-
ceived. 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).
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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 objec-
tions to them shall be deemed waived for all purposes.
2 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, The Daily News of Los Angeles, a Divi-
sion of Cooke Media Group, Inc., Woodland Hills, Califor-
nia, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by uni-
laterally withholding annual merit wage increases from em-
ployees in the appropriate unit represented by Los Angeles
Newspaper Guild, The Newspaper Guild Local 69, AFL–
CIO.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole the employees in the appropriate unit for
any monetary losses they may have suffered by reason of
Respondent’s unilateral withholding of annual wage increases
which the employees would have received in the manner set
forth above in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its various facilities copies of the attached no-
tice marked ‘‘Appendix.’’2 Copies of the notice, on forms
provided by the Regional Director for Region 31, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to 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.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National Labor
Relations Board has found that we violated the National
Labor Relations Act and has ordered us to post and abide by
this notice.
WE WILL NOT unilaterally withhold any merit wage in-
creases from you to which you may have been entitled as a
result of your annual evaluations.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed to them as set forth in Section 7 of the Act.
WE WILL bargain in good faith with the Los Angeles
Newspaper Guild, The Newspaper Guild Local 69, AFL–CIO
as the exclusive representative of our employees in the fol-
lowing appropriate unit:
All full-time and regular part-time editorial department
employees employed by Respondent at its Woodland
Hills, Glendale, Lancaster, Palmdale, Sacramento, Santa
Clarita, Simi Valley, and Thousand Oaks, California
and Washington, D.C. locations.
WE WILL make whole the employees in the above appro-
priate unit for any monetary losses they may have suffered
by reason of our unilateral withholding of the annual wage
increases they would have received.
THE DAILY NEWS OF LOS ANGELES, A DIVI-
SION OF COOKE MEDIA GROUP, INC.