Register-Guard

National Labor Relations Board - Board Decisions

Jan 31, 1991

301 N.L.R.B. 494 (N.L.R.B. 1991)

494
301 NLRB No. 69
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The first clause of art. XIII, sec. 3 has been part of every collective-bar-
gaining agreement between the parties for more than the past 20 years.
Guard Publishing Company d/b/a The Register-
Guard and Eugene Newspaper Guild, Local
194. Case 36–CA–6101
January 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge filed by the Union June 9, 1989, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on July
25, 1989, alleging that the Respondent violated Section
8(a)(5) and (1) of the Act by changing wages of unit
employees without affording the Union the opportunity
to bargain about the changes. The Respondent filed a
timely answer admitting in part and denying in part the
allegations in the complaint.
On December 11, 1989, the General Counsel, the
Union, and the Respondent filed with the Board a stip-
ulation of facts and motion to transfer the case to the
Board. The parties stated that the stipulation and the
attached exhibits constituted the entire record in this
case and that they waived a hearing and decision by
an administrative law judge. Thereafter, the Union and
the Respondent filed briefs. On April 19, 1990, the
Board approved the stipulation and transferred the pro-
ceeding to the Board for issuance of a decision and
order.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Oregon corporation with an of-
fice and place of business in Eugene, Oregon, is en-
gaged in the operation of a newspaper. During the 12-
month period preceding execution of the stipulation, a
representative period, the Respondent, in the course
and conduct of its operations, derived gross revenues
in excess of $1 million and purchased and received
goods and materials valued in excess of $50,000 di-
rectly from sources outside the State of Oregon or
from within the State from suppliers that in turn, ob-
tained these goods and materials directly from sources
outside the State.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Union and the Respondent have bargained for
many years concerning wages, hours, and terms and
conditions of employment of employees in the fol-
lowing appropriate unit:
All editorial, circulation, business office, display
and classified advertising, promotion and informa-
tion services employees; excluding confidential
employees, part-time and temporary employees,
and supervisors as defined in the Act.
The most recent collective-bargaining agreement was
in effect from December 22, 1985, until November 1,
1987. That agreement contained provisions listing min-
imum scale wages for full-time bargaining unit em-
ployees. In addition, article XIII, section 31 of the con-
tract reads as follows:
Section 3. In the sole discretion of the Pub-
lisher, wages in excess of the minimum wage may
be paid. Employees paid merit increments above
the minimum wage shall retain those increments
when minimums are increased.
However, this provision is not intended to pre-
vent the reduction of merit pay should an employ-
ee’s performance become unsatisfactory. In that
event, the employee shall be notified of the prob-
lem and given an appropriate length of time to
correct it before merit pay is reduced.
The Respondent has unilaterally granted wages above
contractual minimum scale in the past based on eco-
nomic considerations. For example, the Respondent
has placed a new hire on the wage scale above the
wage corresponding to his level of experience and has
often maintained employees who had been transferred
to lower-paying classifications at their previous wage
levels, paying fixed and/or percentage amounts over
contractual scale wages corresponding to experience in
the new positions.
Negotiations for a new contract began September
1987 and continued until July 1988. During negotia-
tions, neither party proposed any revisions to article
XIII, section 3. In July 1988, the Respondent declared
impasse and implemented its final offer. In a separate
proceeding, the Union filed 8(a)(5) charges with the
Board alleging that the Respondent has refused to bar-
gain in good faith. The General Counsel declined to
issue a complaint in that case, finding that the parties
were at impasse.
At the point of impasse and throughout negotiations,
the wage scale of article XII of the 1985–1987 collec-
tive-bargaining agreement was a point of contention.
495REGISTER-GUARD
2 These classifications were news aide; editorial assistant; newspaper layout
clerk; data processor A; data processor B; PBX/Receptionist; secretarial classi-
fications A, B, and C; and clerk-typist classifications A, B, and C.
3 Only the Respondent and the Union have filed briefs.
Initially, the Union proposed across-the-board increases
for all wage classifications and extraordinary increases
for several classifications, such as newspaper layout
clerk. Before impasse was reached, the Union dropped
its extraordinary increase proposal and proposed an
across-the-board increase for all unit members. The
Union’s across-the-board proposal was part of an over-
all proposal that included other cost items. Although
the Respondent did not implement other elements of
the Union’s overall proposal, it implemented the
Union’s wage scale, which contained a smaller across-
the-board increase than that originally proposed by the
Union—1 percent scheduled November 6, 1988, and
again May 7, 1989, and no extraordinary increases.
In April 1989, while impasse continued, the Re-
spondent decided to implement additional upward ad-
justments in wage scales of 12 clerical job classifica-
tions affecting about 28 of the Respondent’s approxi-
mately 140 unit employees.2 The adjustments were
scheduled to run concurrently with the May 7 sched-
uled increase. The increases were not ‘‘merit in-
creases,’’ as the parties define that term, but were ad-
justments based on an informal survey of seven local
employers conducted by the Respondent’s personnel
director. On April 24, 1989, the Respondent informed
the Union’s president of its decision to implement
these wage scale adjustments and presented the deci-
sion as final. The same day, the Respondent delivered
a memorandum directly to affected employees inform-
ing them that they would receive increases in addition
to their scheduled May 7 across-the-board increases.
No bargaining occurred over the decision to award
these increases, which represented the first time the
Respondent ever unilaterally increased the wages of an
entire classification of employees above contractual
scale. On May 16, the Union requested bargaining.
The record does not indicate whether the Respondent
responded to the Union’s request or whether or when
the increases actually took effect.
II. CONTENTIONS OF THE PARTIES3
The Respondent contends that the wage adjustments
are justified under article XIII, section 3 of the expired
contract, which reserves for the Respondent the discre-
tion to pay wages in excess of minimum contractual
wages. The Respondent argues that the wage scale
only sets minimums, not wage ceilings. Further, the
parties have placed no qualifications on the broad lan-
guage of the first clause of article XIII, section 3, in
the more than 20 years the clause has been included
in the parties’ contracts. The Respondent claims the
language is clear and unequivocal and that, like the
contractual language justifying the grant of attendance
incentive bonuses in Johnson-Bateman Co., 295 NLRB
180, 188–190 (1989), the contract clause here is suffi-
ciently specific to warrant a finding that the Union has
contractually waived its right to bargain about wage
scale adjustments.
The Union argues that article XIII, section 3 does
not waive its statutory right to bargain over the wage
scale increases. The contractual language, which refers
to ‘‘merit increases above the minimum wage,’’ em-
phasizes the individualized nature of authorized adjust-
ments, the Union contends. As to past practice, the
Union maintains that the wage scale itself has re-
mained unaltered in both instances of unilateral wage
adjustments in which the Respondent has previously
invoked article XIII, section 3.
III. DISCUSSION
We find merit to the Union’s contention that the Re-
spondent’s unilateral adjustment to the contractual
wage scale is not authorized by the expired contract.
We assume for purposes of analysis, as do the parties,
that any waiver of bargaining rights contained in arti-
cle XIII, section 3 survived expiration of the most re-
cent contract containing this provision. That issue is
unnecessary for us to address here because we do not
find that contractual waiver justifies the Respondent’s
unilateral action in any event.
A contractual waiver of a statutory right will not be
lightly inferred, but rather must be ‘‘clear and unmis-
takable.’’ Metropolitan Edison v. NLRB, 460 U.S. 693,
708 (1983). Thus, we will ordinarily not infer a waiver
of the right to bargain over a particular mandatory sub-
ject of bargaining from a contract clause couched in
general terms. Johnson-Bateman Co., supra. See also
Park-Ohio Industries, 257 NLRB 413, 414 (1981),
enfd. 702 F.2d 624 (6th Cir. 1983). Article XIII, sec-
tion 3 does not contain the requisite specificity for a
waiver of the right to bargain over an increase in the
wage scale for all employees in a job classification.
Although it expressly authorizes the payment of wages
in excess of the minimum scale, it does not contain
language specifically authorizing unilateral alteration
of wage scales for entire job classifications. Indeed, it
contains no reference at all to wage scales or to article
XII of the expired agreement, where the scales for var-
ious job classifications are set forth. The specific lan-
guage contained in article XIII, section 3 all pertains
to merit increases for individuals, a fact that supports
the conclusion that the discretion afforded the Re-
spondent relates to increases for particular individuals
over the wage-scale minimum for their classification,
rather than general wage increases for an entire classi-
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The distinction we draw between individual increases and across-the-board
increases for an entire group of employees was also drawn by the Board in
finding no contractual waiver in C & C Plywood Corp., 148 NLRB 414, 417
(1964), a finding that was upheld by the Supreme Court in NLRB v. C & C
Plywood, 385 U.S. 421, 430–431 (1967).
The Board’s resolution of the waiver issue concerning the attendance-incen-
tive-bonus plan in Johnson-Bateman Co., supra, is not inconsistent with our
holding here. The contract clause there was similar in that it allowed the em-
ployer to grant employees ‘‘additional pay or benefits’’ above the contract
minimums; but the particular increases as to which the Board found a waiver
of bargaining were increases granted to individual employees on the basis of
their respective attendance records and not, as here, changes in the wage scale
for an entire job classification.
5 See Southern Florida Hotel Assn., 245 NLRB 561, 567–569 fn. 22 (1979),
enfd. in pertinent part 751 F.2d 1571 (11th Cir. 1985); Johnson-Bateman Co.,
supra.
6 271 NLRB at 1213.
7 See Southern California Edison Co., 284 NLRB 1205 fn. 1 (1987) (con-
tract clauses invoked by an employer to authorize unilateral temporary work
assignments found insufficiently specific to override clear terms of a separately
negotiated disability plan).
fication of employees.4 Thus, the language of the bar-
gaining agreement does not itself constitute a waiver
under the Metropolitan Edison standard.
The Board may also, on the basis of bargaining his-
tory and past practice, infer waiver of a statutory right.
Evidence of bargaining history, however, must be suf-
ficient to demonstrate that the allegedly waived matter
was fully explored in negotiations and that the statu-
tory right at issue was consciously yielded.5 Here,
there is no evidence of bargaining history over any one
of the variations of article XIII, section 3 contained in
contracts in effect before December 1985, and it is
stipulated that during 1987 negotiations neither the Re-
spondent nor the Union proposed any modification to
article XIII, section 3. On the other hand, there is evi-
dence that the Union sought extraordinary increases
during 1987 negotiations in individual job classifica-
tions, including at least one whose minimum rates the
Respondent later unilaterally altered. The Union
dropped its proposal for those extraordinary increases
before the parties reached impasse, and the wage pro-
posal that the Respondent implemented on impasse did
not contain those increases. In sum, the bargaining his-
tory reveals that the Union’s only conscious yielding
on the subject of wage increases was its withdrawal of
its own proposals for substantial increases in a number
of job classifications. In no way can this be construed
as tacit agreement that the Respondent would be free
to increase particular job classification wage scales
unilaterally as it saw fit.
As to past practice, the Respondent has unilaterally
placed individual new hires and transferees at wage
rates higher than those correlating to employee experi-
ence. This evidence pertains to wage adjustments for
individual employees only, not entire classifications of
employees. In fact, the parties have stipulated that be-
fore May 1989 the Respondent never unilaterally
raised the wages of an entire classification of employ-
ees above the contractual wage scale. Thus, waiver
cannot be inferred from evidence of past practice. Nor
may the Respondent rely on the Union’s past failure
to request bargaining over individual wage adjustments
to justify unilateral action: ‘‘A union’s acquiescence in
previous unilateral changes does not operate as a waiv-
er of its right to bargain over such changes for all
time.’’ Owens-Corning Fiberglas, 282 NLRB 609
(1987), and cases there cited.
The Respondent’s reliance on NCR Corp., 271
NLRB 1212 (1984), is misplaced. NCR involved a dis-
pute over two collective-bargaining provisions—one
governing transfers between districts of the respond-
ent’s territory and the other authorizing the employer
to consolidate, merge, or reorganize a district. The
union interpreted these articles to bar transfer of work
from one district to another, while the employer relied
on the same provisions as authorization for its unilat-
eral work transfers. In the face of equally plausible in-
terpretations of the contract, the Board stated it would
not endorse either party’s interpretation as correct, but
found the employer’s ‘‘sound and arguable basis’’ for
its unilateral work transfers warranted dismissal of the
8(a)(5) complaint.6
In contrast to the contract at issue in NCR, article
XIII, section 3 contains no language that is sufficiently
specific regarding wage-scale adjustment to support a
plausible interpretation justifying the Respondent’s uni-
lateral action.7 Even assuming, however, that the term
‘‘wages in excess of minimum’’ could be construed to
encompass wage rates affecting an entire classification
of employees, the analogy to NCR still fails. Thus, un-
like employer NCR, which offered evidence of past
practice consistent with its interpretation of the con-
tract, Respondent relies on past adjustments to wages
of individual employees only, rather than of employee
classifications. None of this evidence supports the in-
terpretation the Respondent asserts.
Accordingly, we conclude that the Union has not
waived its right to bargain with the Respondent over
wage-scale adjustments, a mandatory subject of bar-
gaining, and that the Respondent’s unilateral decision
to increase the wage scales for certain job classifica-
tions and notices to employees announcing these in-
creases, without providing the Union with prior notice
and an opportunity to bargain, violated Section 8(a)(5)
and (1) of the Act.
CONCLUSION OF LAW
By its decision to increase the wage scale for certain
job classifications without providing the Union with
prior notice and an opportunity to bargain and by an-
nouncing these increases to employees, the Respondent
has violated Section 8(a)(5) and (1) of the Act.
497REGISTER-GUARD
8 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.’’
REMEDY
Having found that the Respondent has engaged in
unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, we shall order the Respondent to bar-
gain with the Union over its wage-scale change pro-
posals. Further, we shall order the Respondent, on the
Union’s request, to cancel any wage increases unlaw-
fully implemented by the Respondent’s unilateral ac-
tion. Nothing in our Order, however, should be con-
strued as requiring the Respondent to cancel any wage
increase without a request from the Union. See Taft
Broadcasting Co., 264 NLRB 185 fn. 6 (1982).
ORDER
The National Labor Relations Board orders that the
Respondent, Guard Publishing Company d/b/a the Reg-
ister Guard, Eugene, Oregon, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Unilaterally increasing the wage scale for certain
job classifications without providing the Union with
prior notice and an opportunity to bargain and an-
nouncing the increases to employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with Eugene Newspaper
Guild, Local 194 over wage scale change proposals.
(b) If the Union requests, cancel any wage-scale in-
creases implemented through the Respondent’s unilat-
eral action.
(c) Post at its Eugene, Oregon facilities copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Re-
spondent has taken to comply.
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 and without consultation
with the Eugene Newspaper Guild, Local 194, make
wage-scale changes and announce them to employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union over
wage-scale change proposals.
WE WILL, if the Union requests, cancel any wage in-
creases unlawfully granted to employees through our
unilateral action.
GUARD PUBLISHING COMPANY D/B/A
THE REGISTER-GUARD