Register-Guard

National Labor Relations Board - Board Decisions

Jun 20, 2003

339 N.L.R.B. 353 (N.L.R.B. 2003)

REGISTER-GUARD 353
Guard Publishing Company d/b/a The Register-
Guard and Eugene Newspaper Guild, CWA Lo-
cal 37194. Case 36–CA–8919-1
June 20, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 27, 2002, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed limited exceptions, a supporting brief, and
an answering brief to the Respondent’s exceptions. The
Respondent filed a reply brief.
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 decided to
affirm the judge’s rulings, findings, and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.1
The judge found that the Respondent violated Section
8(a)(5) and (1) by unilaterally implementing new sales
commissions for employees selling two types of newspa-
per advertisements: “Top of Mind Awareness” (TOMA)
advertisements, and internet display advertisements. For
the reasons stated below, we agree.
I. FACTS
A. The Expired Collective-Bargaining Agreement
The Union represents employees at the Respondent’s
newspaper. The most recent collective-bargaining agree-
ment was effective from October 16, 1996, through April
30, 1999. The alleged unilateral changes took place after
the collective-bargaining agreement had expired and
while the parties were negotiating for a new agreement.
B. New TOMA Commissions
TOMA is an advertising contract sold by the Respon-
dent to its customers. TOMA contracts provide that the
customer’s ad will appear regularly in the Respondent’s
newspaper for a period of several months. From 1997
through 2000, the Respondent’s advertising employees
sold TOMA ads periodically each year, and received
commissions for doing so. The record shows no changes
in TOMA commissions from 1997 through 2000.
In April 2001,2 at a time when the parties’ collective-
bargaining agreement had expired and they were negoti-

1 We shall modify the judge’s conclusions of law, remedy, and rec-
ommended Order and substitute a new notice to conform to our find-
ings and to the Board’s standard remedial language.
2 All dates are in 2001 unless otherwise specified.
ating a new one, the Respondent decided to re-launch its
TOMA program. It kept the same basic commission
structure as in past TOMA programs, except it added two
new commissions: a $25 signing bonus for TOMA ads
sold to existing TOMA customers, and a $10 signing
bonus for TOMA ads sold by the Respondent’s “media
representative,” a bargaining unit position created some-
time after 1997. The Respondent’s advertising director
admitted that these two commissions were not included
in past years’ TOMA programs.
About April 26, the Respondent notified the Union in a
memorandum that it planned to re-launch TOMA and
add the $10 commission for the media representative.
The memorandum did not mention the $25 commission
for existing TOMA customers. The next day, the Union
requested bargaining. About April 30, without bargain-
ing, the Respondent held a meeting announcing the 2001
TOMA program to employees. The Respondent also
distributed a memorandum to employees outlining the
program, including the new $25 and $10 commissions.3
In May, the parties exchanged further correspondence
about the TOMA program. In a memorandum to the
Respondent, the Union reiterated its position that
“[b]ecause the Guild and the company are currently in
the process of negotiating ad commissions, the Guild
believes the company has a duty to bargain any changes
in the existing commission plan . . . .” The Respondent
maintained that the TOMA program had been used in the
past, and that the only change was the $10 commission to
the media representative.4
The parties stipulated that employees began selling
TOMA ads under the 2001 TOMA program, and receiv-
ing commissions for those ads, in May. A witness for
the Respondent testified that the Respondent has never
actually paid the $10 commission to the new media rep-
resentative. However, he did not explain why, and it is
clear that the $10 commission was announced to em-
ployees as part of the 2001 TOMA program. The Re-
spondent does not claim that it has not paid the $25
commission for contracts sold to existing TOMA cus-
tomers.
3 The judge found that the Respondent did not notify the Union of
the new TOMA commissions until after employees were notified, and
that the new TOMA commissions were therefore presented to the Un-
ion as a fait accompli. This is incorrect, at least as to the $10 commis-
sion, which was proposed to the Union about 4 days before it was an-
nounced to employees. Because our analysis in this case does not
depend on finding a fait accompli (see sec. II,A, below), this factual
error does not affect our decision.
4 In its correspondence to the Union, the Respondent did not mention
the new $25 commission for sales to existing TOMA customers. As
explained above, the Respondent’s advertising director testified that
this commission was also a new addition to the 2001 TOMA program.
339 NLRB No. 47
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
The judge found that the Respondent violated Section
8(a)(5) by unilaterally implementing the new $10 and
$25 TOMA commissions.
C. Internet Advertising Commission Program
Prior to May 2001, customers who bought display ad-
vertisements in the Respondent’s newspaper could run
the same advertisement on the Respondent’s web site at
no extra charge. About May 23, at a time when the par-
ties were engaged in negotiations for a new collective-
bargaining agreement, the Respondent notified the Union
president that on June 3, it would begin charging adver-
tisers a flat $10 fee to run these internet ads. The Re-
spondent told the Union that it wanted to pay a commis-
sion of 50 cents per ad, per week, to employees selling
the internet ads.5 The Union replied that any changes in
advertising commissions must be bargained, and re-
quested that the Respondent contact Lance Robertson,
the Union’s lead negotiator. The Respondent contacted
Robertson, who asked that the issue be discussed at the
parties’ next negotiation sessions on July 20 and 21,
along with the Respondent’s other proposed changes to
advertising commissions. Despite the Union’s request,
the Respondent unilaterally implemented the 50-cent
commission.6 The judge found that the Respondent vio-
lated Section 8(a)(5) and (1) by doing so.
II. ANALYSIS
For the reasons stated below, we agree with the judge
that the Respondent violated Section 8(a)(5) and (1) by
unilaterally implementing the new $10 and $25 TOMA
commissions. We further agree that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally implement-
ing the new internet advertising commission program.
A. Unilateral Changes During Negotiations for
New Collective-Bargaining Agreement
1. New TOMA commissions
Although the Respondent had run its TOMA program
in prior years, the Respondent’s advertising director ad-
mitted that the $10 and $25 commissions were not in-
cluded in past TOMA programs, but were first intro-
duced in 2001. These new TOMA commissions repre-
sented a change in employees’ wages, and therefore were

5 The judge found that the Respondent notified employees of the 50-
cent commission before notifying the Union. He therefore found that
the commission was presented as a fait accompli. Although that is not
clear from the record, it does not affect our decision. Again, our analy-
sis does not depend on finding a fait accompli. See sec. II,A, below.
6 The exact date on which the commission was implemented is un-
clear. An employee who sold advertisements under the commission
program testified that it took effect about June 2001. A memorandum
from the Respondent suggests that the commission may not have taken
effect until early July.
a mandatory subject of bargaining.7 Where, as here, par-
ties are engaged in negotiations for a collective-
bargaining agreement, an employer’s obligation to re-
frain from unilateral changes in terms and conditions of
employment “extends beyond the mere duty to provide
notice and an opportunity to bargain about a particular
subject matter; rather it encompasses a duty to refrain
from implementation at all, absent overall impasse on
bargaining for the agreement as a whole.” RBE
Electronics of S.D., Inc., 320 NLRB 80, 81 (1995); see
also Bottom Line Enterprises, 302 NLRB 373, 374
(1991), enfd. 15 F.3d 1087 (9th Cir. 1994).
The Board has recognized two limited exceptions to
this rule: “when economic exigencies compel prompt
action,” and when a union, “in response to an employer’s
diligent and earnest efforts to engage in bargaining, in-
sists on continually avoiding or delaying bargaining.”
Bottom Line, supra at 374 (quoting M&M Contractors,
262 NLRB 1472 (1982), review denied 707 F.2d 516
(9th Cir. 1983)); see also RBE, supra at 81. The Respon-
dent does not argue that economic exigencies required it
to implement the new commissions, and the evidence
does not show that the Union engaged in delay tactics.
The Union verbally requested bargaining on April 27, the
day after it received notice of the proposed new TOMA
commission. The Respondent, however, announced the
new commissions to employees about April 30, only 3
days later. Employees began selling TOMA ads and
receiving commissions in May. During this time period,
the Union continued to participate in negotiations with
the Respondent for a new collective-bargaining agree-
ment, including negotiation sessions on May 22 and 23.
Under these circumstances, the evidence does not estab-
lish that the Union insisted on continually avoiding or
delaying bargaining. Contrast Serramonte Oldsmobile,
318 NLRB 80, 100–101 (1995), enf. granted in part, de-
nied in part on other grounds 86 F.3d 227 (D.C. Cir.
1996) (union’s entire course of conduct showed a strat-
egy to obstruct negotiations; among other things, union
7 A unilateral change in a mandatory subject of bargaining is unlaw-
ful only if it is “material, substantial, and significant.” Flambeau Air-
mold Corp., 334 NLRB 165 (2001), modified on other grounds 337
NLRB 1025 (2002) (quoting Alamo Cement Co., 281 NLRB 737, 738
(1986)). The new TOMA commissions meet this standard. The record
shows that the sale of TOMA ads in 2001 was an important aspect of
sales representatives’ duties. According to one of its flyers, the Re-
spondent held a “Special TOMA Sales Meeting” to announce the “new
and improved” 2001 TOMA package to employees. The Respondent
also required employees to make at least one TOMA sales call per
week, and to document their TOMA sales calls and future TOMA
prospects to management each week. Although the new commission
amounts were arguably small ($10 and $25), employees had the oppor-
tunity to earn those amounts many times over by selling TOMA ads to
multiple customers.
REGISTER-GUARD 355
avoided bargaining for more than 3 months, took a “spu-
rious” and “sham” position that respondent had failed to
serve timely notice of its intent to open negotiations, and
failed to communicate with unit employees about what
they desired from bargaining); M&M Contractors, supra
at 1472 (delay tactics found where union refused for 7
months to give respondent a date on which it would meet
to bargain).
Therefore, we find that the Respondent violated Sec-
tion 8(a)(5) and (1) by implementing the new TOMA
commissions during negotiations for a new agreement,
before the parties had reached overall impasse on the
entire agreement.
2. New internet advertising commission program
For the same reasons, we also agree with the judge that
the Respondent violated Section 8(a)(5) and (1) by uni-
laterally implementing the internet advertising commis-
sion program. Like the new TOMA commissions, this
program was a change in employees’ wages, and there-
fore was a mandatory subject of bargaining.8 Because
the parties were engaged in negotiations for a new
agreement, the Respondent had an obligation to refrain
from implementing unilateral changes to terms and con-
ditions of employment, absent overall impasse. RBE,
supra at 81; Bottom Line, supra at 374. As with TOMA,
the Respondent does not argue that economic exigencies
required it to implement the commissions, and the evi-
dence does not show that the Union engaged in tactics
designed to delay bargaining. Consistent with RBE and
Bottom Line, the Union simply requested that the new
internet ad commission be discussed during the parties’
next contract negotiation session, along with other
changes the Respondent had proposed to advertising
commissions.
B. Respondent’s Defenses
The Respondent raises several defenses, which it
claims permitted it to implement the new TOMA com-
missions and the new internet advertising commission
program without bargaining. Specifically, the Respon-
dent contends that the new commissions were a continua-
tion of past practice and therefore did not change the
status quo, that the dispute is solely a matter of contract
interpretation, and that the allegations are time barred by

8 Like the new TOMA commissions, we find that the internet adver-
tising commission program was a “material, substantial, and signifi-
cant” change. Flambeau, supra at 165. An employee testified that he
sold ads under the program and that his wages increased as a result.
Although the new commission amount was small (50 cents per ad per
week), employees had the opportunity to earn many times that amount
by selling multiple ads.

Section 10(b). We reject each of these defenses for the
reasons stated below.
1. Past practice
a. TOMA
The Respondent argues that the new TOMA commis-
sions were a continuation of its past practice, did not
change the status quo, and therefore did not violate Sec-
tion 8(a)(5) and (1). We disagree.
First, the Respondent argues that TOMA has been an
ongoing program since 1997. It is undisputed, however,
that the $10 and $25 commissions discussed above were
not included in the 1997–2000 TOMA programs, but
were first introduced when the TOMA program was re-
launched in 2001.
Second, the Respondent argues that since launching
TOMA in 1997, it has made several changes to the
TOMA program without objection from the Union.
Those changes, however, were not changes to commis-
sions or other terms and conditions of employment, but
changes in the size and duration of the TOMA adver-
tisements offered by the Respondent to its customers.
Therefore, the changes do not establish a past practice of
unilaterally implementing new advertising sales commis-
sions.
Third, the Respondent argues that it has a past practice
of unilaterally implementing other types of advertising
sales incentive programs, without objection from the
Union. However, in contrast to the new TOMA commis-
sions at issue here, all but one of the Respondent’s past
incentive programs were implemented while the collec-
tive-bargaining agreement was still in effect.9 The Re-
spondent contends that it was permitted to implement
those programs under a provision of the agreement that
stated: “In the sole discretion of the Publisher, wages in
excess of the established wage may be paid.” A contrac-
tual reservation of managerial discretion, like the provi-
sion relied on by the Respondent, does not survive expi-
ration of the contract that contains it, absent evidence
that the parties intended it to survive. See Ironton Publi-
cations, 321 NLRB 1048 (1996); Blue Circle Cement
Co., 319 NLRB 954 (1995), enf. granted in part, denied
in part on other grounds 106 F.3d 413 (10th Cir. 1997).
There is no such evidence here. Therefore, the contrac-
tual provision under which the Respondent implemented
9 The one advertising sales incentive program implemented after the
contract expired was a “web directory” ad program implemented in
March 2000. That program is discussed below.
The Respondent also introduced evidence that in January 2000, it
paid a special bonus to one employee for her work on an experimental
project. However, the Respondent made clear that this was a one-time
bonus. It was not an advertising sales commission program like those
at issue here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
its past commission programs expired in 1999, when the
collective-bargaining agreement expired. Under these
circumstances, the Respondent’s past commission pro-
grams, implemented under a contractual provision that
has since expired, do not establish a past practice allow-
ing the Respondent to implement the new 2001 TOMA
commissions at issue here.
The Respondent did implement a “web directory” ad-
vertising sales incentive program in March 2000, after
the collective-bargaining agreement expired. The Re-
spondent gave the Union notice of its intent to implement
this program, and the Union did not request bargaining.
However, a union’s acquiescence in previous unilateral
changes generally does not constitute a waiver of the
right to bargain over such changes in the future. See
Johnson-Bateman Co., 295 NLRB 180, 188 (1989);
Owens-Corning Fiberglass Corp., 282 NLRB 609
(1987). Therefore, the Union’s acquiescence on this one
occasion does not constitute a waiver of its right to bar-
gain over the new TOMA commissions at issue here.
Nor does this one instance establish a past practice of
unilaterally implementing advertising sales incentive
programs after the contract expired. Accordingly, we
reject the Respondent’s argument that the new TOMA
commissions were a continuation of past practice and did
not change the status quo.
b. Internet ad commission program
The internet advertising commission program was un-
questionably a new program, introduced for the first time
in May 2001. Nevertheless, the Respondent argues that
it had unilaterally implemented other types of advertising
sales incentive programs in the past, and that the internet
ad commission program was therefore a continuation of
past practice and did not change the status quo. To es-
tablish a past practice, the Respondent relies on the same
advertising incentive programs discussed above with
respect to TOMA. For the same reasons stated above,
we reject the Respondent’s argument that the internet ad
commission program was a continuation of past practice.
2. Contract interpretation
With respect to both TOMA and the internet ad com-
mission program, the Respondent argues that the only
dispute in this case is over interpretation of the contract
provision that states: “In the sole discretion of the Pub-
lisher, wages in excess of the established wage may be
paid.” The Respondent relies on Board decisions stating
that where a dispute is solely one of contract interpreta-
tion, the Board “will not seek to determine which of two
equally plausible contract interpretations is correct,” and
will not find a Section 8(a)(5) violation if the employer
has a “sound arguable basis for ascribing a particular
meaning to his contract and his action is in accordance
with the terms of the contract as he construes it.” Crest
Litho, 308 NLRB 108, 110 (1992) (quoting Atwood &
Morrill Co., 289 NLRB 794, 795 (1988), and Vickers,
Inc., 153 NLRB 561, 570 (1965)).
We find these decisions inapplicable. Unlike the pre-
sent case, they did not involve interpretation of a contrac-
tual reservation of managerial discretion that had expired
by the time of the alleged 8(a)(5) violation. Here, the
alleged unlawful unilateral changes took place in 2001.
However, the contract provision relied on by the Re-
spondent expired in 1999, when the collective-bargaining
agreement expired. See Ironton, supra at 1048; Blue
Circle, supra at 954. Therefore, the Respondent cannot
defend its unilateral changes on the basis that they were
made in accordance with a plausible interpretation of that
provision.
3. Section 10(b)
Finally, the Respondent argues that the allegations in
this case are barred by Section 10(b).10 The Respondent
contends that the 10(b) period for both TOMA and the
internet ad allegations should run from 1997, when the
Respondent first began using its TOMA program and
implementing other advertising sales incentive programs.
We disagree. The alleged violations in this case are
the unilateral implementation of new TOMA commis-
sions and the unilateral implementation of a new internet
advertising commission program, both of which occurred
in 2001. The 10(b) period commenced only when the
Union had clear and unequivocal notice of those viola-
tions. Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54
F.3d 802 (D.C. Cir. 1995). With respect to the new
TOMA commissions, the earliest date on which the Un-
ion can be charged with knowledge of a violation is April
30, when the Respondent announced the new commis-
sions to employees. Knowledge that the Respondent had
unilaterally implemented the internet ad commission
program came even later, in June or early July. There-
fore, the charge filed and served on October 26 is timely
as to both the TOMA and internet ad commission allega-
tions.
For all the foregoing reasons, we agree with the judge
that the Respondent violated Section 8(a)(5) and (1) by
unilaterally implementing the new $10 and $25 TOMA
commissions and the internet ad commission program
during negotiations for a collective-bargaining agree-

10 Sec. 10(b) provides in relevant part that “no complaint shall issue
based on any unfair labor practice occurring more than six months prior
to the filing of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is made . . . .”
REGISTER-GUARD 357
ment, in the absence of overall impasse on the entire
agreement.11
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3:
“3. By unilaterally implementing changes in terms and
conditions of employment during negotiations for a col-
lective-bargaining agreement in the absence of overall
impasse on the entire agreement, the Respondent violated
Section 8(a)(5) and (1) of the Act.”
AMENDED REMEDY
In addition to the remedy provided for in the judge’s
decision, we shall order the Respondent, on request of
the Union, to bargain collectively and in good faith with
the Union concerning terms and conditions of employ-
ment of unit employees and, if an understanding is
reached, to embody it in a signed agreement. Further, we
shall order the Respondent, if requested to do so by the
Union, to rescind the unlawful unilateral changes, and to
reinstate the terms and conditions of employment in
these areas that existed before those changes. To the
extent that the unlawful unilateral changes implemented
by the Respondent have improved the terms and condi-
tions of employment of unit employees, the Order set
forth below shall not be construed as requiring the Re-
spondent to rescind such improvements unless requested
to do so by the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Guard Publishing Company d/b/a The Reg-
ister-Guard, Eugene, Oregon, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
Eugene Newspaper Guild, CWA, Local 37194, as the
exclusive bargaining representative for the appropriate
unit of employees described in the parties’ 1996–1999
collective-bargaining agreement, by unilaterally imple-
menting changes in terms and conditions of employment
during negotiations for a collective-bargaining agreement
in the absence of overall impasse on the entire agree-
ment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

11 Chairman Battista notes that the Respondent does not contend that
there was an impasse in bargaining, either overall or on a major subject
or on the particular subject of the internet commission program. Thus,
he agrees that the unilateral implementation of that commission pro-
gram was unlawful.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) On request, bargain collectively and in good faith
with the Union as the exclusive representative of all the
employees in the appropriate unit described above con-
cerning terms and conditions of employment and, if an
understanding is reached, embody it in a signed agree-
ment.
(b) If requested by the Union, rescind the unlawfully
implemented internet advertising commission program
and new TOMA commissions, and reinstate the terms
and conditions of employment in these areas that existed
before the Respondent’s unlawful unilateral changes.
(c) Within 14 days after service by the Region, post at
its facility in Eugene, Oregon, copies of the attached no-
tice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 26, 2001.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply with this Order.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
12 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT fail and refuse to bargain collectively
with Eugene Newspaper Guild, CWA, Local 37194, as
the exclusive bargaining representative for the appropri-
ate unit of employees described in the parties’ 1996–
1999 collective-bargaining agreement, by unilaterally
implementing changes in terms and conditions of em-
ployment during negotiations for a collective-bargaining
agreement in the absence of overall impasse on the entire
agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their Section 7 rights.
WE WILL, on request, bargain collectively and in good
faith with the Union as the exclusive representative of all
the employees in the appropriate unit described above
concerning terms and conditions of employment and, if
an understanding is reached, embody it in a signed agree-
ment.
WE WILL, if requested by the Union, rescind the unlaw-
fully implemented internet advertising commission pro-
gram and new TOMA commissions, and reinstate the
terms and conditions of employment in these areas that
existed before our unlawful unilateral changes.

GUARD PUBLISHING COMPANY D/B/A THE
REGISTER-GUARD

Adam D. Morrison and Irene Botero, for the General Counsel.
L. Michael Zinser, of Nashville, Tennessee, for Respondent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Eugene, Oregon, on April 30, 2002. On October
26, 2001, Eugene Newspaper Guild, CWA Local 37194 (the
Union) filed the charge in Case 36–CA–8919 alleging that
Guard Publishing Company d/b/a The Register-Guard (Re-
spondent) committed certain violations of Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act). On January
30, 2002, the Regional Director for Region 19 of the National
Labor Relations Board issued a complaint and notice of hearing
against Respondent, alleging that Respondent violated Section
8(a)(1) and (5) of the Act. Respondent filed a timely answer to
the complaint denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing.1
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is an Oregon corporation with an office and
place of business in Eugene, Oregon, where it is engaged in the
business of publishing newspapers. During the 12 months prior
to issuance of the complaint, Respondent had gross sales of
goods and services in excess of $200,000. In the same time
period, Respondent held membership in or subscribed to inter-
state news services, published nationally syndicated features,
and advertised nationally sold products. Respondent admits
and I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The Union has represented employees at Respondent’s
newspaper since 1946. The most recent collective-bargaining
agreement between the Union and Respondent was effective by
its terms from October 1996 to April 30, 1999. The parties
have been bargaining for a successor agreement since February
1999, including bargaining sessions in March, April, and May
2001, the times material herein.
The complaint alleges that Respondent violated Section
8(a)(1) and (5) of the Act by implementing changes in an ad-
vertising incentive commission program named top of the mind
awareness (TOMA) and, by implementing a new commission
for advertising space sold on Respondent’s internet website.
The answer denied the commission of any unfair labor prac-
tices. Respondent alleges that it maintained the status quo and
did not change its TOMA program. Further, Respondent main-
tains that under the status quo it is entitled to pay the unit em-
ployees’ sales commissions in excess of the bargaining contract
rate.
B. Facts
In 1997, Respondent instituted its top of the mind awareness
program (TOMA). A TOMA contract is a frequency contract,
typically 4-column inches, 1 column by 4 inches, or 2 columns
by 2 inches. A TOMA advertisement is usually printed three
times in a week. TOMA contracts were originally for 52-week
or 26-week periods. Salespersons represented by the Union
receive commissions under this program, pursuant to the collec-
tive-bargaining agreement. There were some modifications to

1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
REGISTER-GUARD 359
the TOMA program between 1997 and 2001. For example, in
1999, the TOMA program sold contracts for 13-week periods.
In April 2001, Respondent decided to “relaunch” its TOMA
program. On April 26, 2001, Respondent sent the Union a
notice that it was launching a new TOMA program and adding
a $10 signing bonus to the new media representative’s commis-
sion plan. The new media representative was a new position
and was not previously covered by the TOMA commission
program. In addition, the 2001 TOMA program provided for a
commission for the selling of contracts to existing TOMA cus-
tomers. The commission for sales to existing TOMA custom-
ers had not existed in the TOMA program from 1997–2000.
Upon receipt of the notice of the new TOMA program, Suzi
Prozanski, then president of the Union, called Cynthia Walden,
Respondent’s director of human relations. Prozanski asked that
Respondent not implement the TOMA program and that Re-
spondent bargain about the matter. Walden stated that Respon-
dent was maintaining the status quo and had a right to imple-
ment the program. Walden stated that Respondent was not
making any change but that TOMA was a continuing program.
She stated that the only change was the new media representa-
tive because that position had not existed when TOMA was
first instituted. Walden set up a meeting so that supervisors in
the sales department could explain to Prozanski that no change
was being made. However, even after that meeting, Prozanski
maintained that Respondent was implementing changes to a
commission program and was obligated to bargain with the
Union. On May 22, Prozanski wrote Walden requesting that
Respondent refrain from unilateral implementation of the
TOMA program until the parties bargained over the matter.
On May 23, Walden sent Prozanski a memorandum an-
nouncing that Respondent was making available internet adver-
tisements to its print advertisers. Under this program print
advertisers could have their display advertisements on Respon-
dent’s internet web page. The memorandum also announced
the commission to the salespersons for such advertising. The
next day, Prozanski sent Walden an e-mail demanding that
Respondent bargain over this change in advertising commis-
sions. Walden took the position that Respondent was permitted
to pay more than the contract rate and that Respondent could
implement this program. Walden wrote Lance Robertson, then
the Union’s chief negotiator, and offered to meet and discuss
this new incentive program. On June 19, 2001, Robertson re-
sponded that the matter was a mandatory subject of bargaining
and was suitable for negotiation at the bargaining table. At no
time during negotiations, did the Union make a formal proposal
regarding the TOMA program or internet advertising commis-
sions.
III. ANALYSIS
It is well settled that unilateral action by an employer with-
out prior discussion with the union amounts to a refusal to ne-
gotiate about the effected conditions of employment. NLRB v.
Katz, 369 U.S. 736 (1962). Moreover, a showing of subjective
bad faith on the employer’s part is unnecessary to establish a
violation. NLRB v. Katz, 369 U.S. at 747. The Board looks to
whether a change has been implemented in conditions of em-
ployment. It simply determines whether a change in any term
and condition of employment has been effectuated, without first
bargaining to impasse or agreement and condemns the conduct
if it has. Daily News of Los Angeles, 315 NLRB 1236 (1994),
remanded 979 F.2d 1571 (D.C. Cir. 1992), decision supple-
mented 315 NLRB 1236 (1994), enfd. 73 F.3d 406 (1996), cert.
denied 519 U.S. 1090 (1997). It makes no difference whether
or not the unilateral changes increased or decreased the em-
ployees’ wages or benefits. Daily News of Los Angeles, id.
The Board held in Bottom Line Enterprises, 302 NLRB 373
(1991), that when, as here, parties are engaged in negotiations
for a collective-bargaining agreement, an employer’s obligation
to refrain from unilateral changes extends beyond the mere duty
to provide notice and an opportunity to bargain about a particu-
lar subject; rather it encompasses a duty to refrain from imple-
mentation at all, absent overall impasse on bargaining for the
agreement as a whole. The Board in Bottom Line recognized
two limited exceptions to that general rule; when a union en-
gages in tactics designed to delay bargaining and “when eco-
nomic exigencies compel prompt action.” See RBE Electronics
of S.D., Inc., 320 NLRB 80, 81 (1995). See also Visiting
Nurses Services of Western Massachusetts, 325 NLRB 1125,
1130 (1998), enfd. 177 F.3d 52 (1st Cir. 1999) cert. denied 528
U.S. 1074 (2000); Pleasantview Nursing Home, 335 NLRB 961
(2001).
I find that Respondent had an established TOMA program.
However there were two changes in that program, a signing
bonus for the new media representative and a commission for
sales to existing TOMA customers. Respondent was obligated
to bargain over such matters. On May 23, 2001, the Respon-
dent notified the employees of the changes in its TOMA plan.
Respondent did not notify the Union of the changes until after
the employees were notified. The parties did not engage in
bargaining over these changes. Respondent could not institute
changes in sales commissions without first bargaining to im-
passe with the Union. See RBE Electronics, supra. Under RBE
Electronics, the defense of waiver does not apply where nego-
tiations are in progress. Id at 81–82.
In any event, the facts do not support Respondent’s allega-
tion that the Union waived its right to bargain over the changes
in the TOMA program. It was Respondent’s failure to notify
the Union of the prospective changes, rather than a union
waiver or inaction, which led to the unilateral action. The em-
ployees and the Union were presented with a fait accompli.
See Brannan Sand & Gravel Co., 314 NLRB 282 (1994).
Similarly, the internet advertising commissions were a
change from past practice. The Union never had the opportu-
nity to bargain about this commission rate. Rather, Respondent
unilaterally determined the commission it would pay for inter-
net advertising. Again, the Union was not notified of this
change until the employees were notified of the new commis-
sion. Respondent could not institute changes in sales commis-
sions without first bargaining to impasse with the Union. See
RBE Electronics, supra. Under RBE Electronics, the defense of
waiver does not apply where negotiations are in progress. Id. at
81–82.
Respondent’s argument that the expired contract allowed it
to unilaterally increase wages is not persuasive. The Board has
held that such a waiver does not extend beyond the expiration
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
of the contract unless the contract provides for it to outlive the
contract. Blue Circle Cement Co., 319 NLRB 954 (1995);
Holiday Inn of Victorville, 284 NLRB 916, 916–917 (1987).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. By announcing and implementing changes in its TOMA
commission incentive program and its internet commission
incentive program for bargaining unit employees, Respondent
violated Section 8(a)(1) and (5) of the Act.
4. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]