The News Journal Co.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1331 (N.L.R.B. 2000)

NEWS JOURNAL CO. 1331
Gannett Co., Inc., d/b/a The News Journal Company
and The Newspaper Guild of Greater Philadel-
phia, Local No. 10 a/w The Newspaper Guild,
AFL–CIO–CLC. Case 4–CA–26797
August 25, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On February 18, 2000, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
General Counsel filed exceptions and a supporting brief
which the Charging Party joined. The Respondent filed
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record in light of the ex-
ceptions and briefs, and has decided to affirm the judge’s
rulings, findings,1 and conclusions, and to adopt the rec-
ommended Order.
ORDER
The complaint is dismissed.

Margaret M. McGovern, Esq., and Anne C. Ritterspach, Esq.,
for the General Counsel.
Joyce T. Bailey, Esq., of Arlington, Virginia, for the Respon-
dent-Employer.
Laurence M. Goodman, Esq., of Philadelphia, Pennsylvania, for
the Charging Party.

DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me on October 27, 1999, in Philadelphia,
Pennsylvania, pursuant to a complaint and notice of hearing
(the complaint) issued by the Regional Director for Region 4 of
the National Labor Relations Board (the Board) on August 27,
1998. The complaint, based on an original and amended charge
filed by The Newspaper Guild of Greater Philadelphia, Local
10 a/w The Newspaper Guild, AFL–CIO–CLC (the Charging
Party or the Union), alleges that Gannett Co., Inc., d/b/a The
News Journal Company (the Respondent or Employer), has
engaged in certain violations of Section 8(a)(1) and (5) of the
National Relations Act (the Act).1 The Respondent filed a
timely answer to the complaint denying that it had committed
any violations of the Act.

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
In affirming the judge’s decision, Member Fox and Member Lieb-
man note that significantly more employees with satisfactory ratings at
the end of their probationary period received raises from 1993 through
September 1997 than received them from October 1997 through 1999.
In some cases, a numerical showing is sufficient to establish a discon-
tinuation of past practice and, hence, a violation. Electrical South, Inc.,
327 NLRB 270 (1998). Here, however, the Respondent adduced evi-
dence, which was credited by the judge, that the decision to award post-
probationary merit wage increases was highly subjective and depended
on numerous criteria, including budget, skill, and area of specialty, and
the General Counsel failed to show that executive editors who approved
those raises prior to October 1997 applied different criteria than current
Executive Editor Jane Amari in determining whether to give merit
increases.
Issues
The complaint alleges that about July 1997,2 Respondent
discontinued its practice of considering and, when appropriate,
granting wage increases to the editorial unit employees on suc-
cessful completion of their 90-day probationary periods.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent, I make the following.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the publishing
and distribution of publications, with a place of business in
New Castle, Delaware, where it derived gross revenues in ex-
cess of $200,000 during the past year and held membership in
or subscribed to various interstate news services, including the
Associated Press. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On December 14, 1989, the Union was certified as the exclu-
sive collective-bargaining representative of the editorial unit.
Since that time, the parties have been operating without a
collective-bargaining agreement. However, since at least 1995,
they have been engaged in negotiations to reach an agreement.
Since October 1997, Jane Amari has been Respondent’s execu-
tive editor and is responsible for all personnel related decisions
of the approximately 150 employees on the editorial staff. This
includes all hiring decisions, reviewing performance appraisals
written by first-line supervisors, and determining whether em-
ployees should receive pay increases after completing their 90-
day probationary periods. In order to assist Amari in finalizing
performance appraisals and salary decisions, a manager’s wage
and salary administration guide is followed (R. Exh. 2). It de-
tails the procedure for conducting performance appraisals and,
at section 4.4, merit increases, states in pertinent part that “Em-
ployees should not expect automatic increases and should not
expect 12 month increases unless their accomplishments justify
it.”
B. Discussion and Analysis
The General Counsel asserts in paragraph 6 of the complaint
that Respondent maintained a practice that employees who
1 The Regional Director consolidated Case 4–CA–26670 with the
subject case. After the opening of the hearing, the parties entered into
an informal Board settlement with the posting of a notice, which I
approved on the record subject to compliance with its terms and condi-
tions (Jt. Exh. 3). Likewise, I approved the General Counsel’s motion
to sever that case from the subject case. Therefore, this decision will
only address the issues in Case 4–CA–26797.
2 All dates are in 1997 unless otherwise indicated.
331 NLRB No. 177
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1332
performed at a satisfactory level or higher routinely received
wage increases after completion of their 90-day probationary
periods. In or about July 1997, the practice was discontinued
and a number of employees did not receive a wage increase
after the completion of their 90-day probationary periods. The
General Counsel opines that the Respondent engaged in this
conduct without notice to the Union and without affording the
Union an opportunity to bargain with respect to this conduct.
Respondent contends that no firm practice ever existed that
editorial employees automatically receive wage increases after
completion of their 90-day probationary periods. Rather, it is
discretionary, subject to an independent review of the executive
editor as to whether individual employees are eligible to receive
wage increases.
The evidence discloses that first-line supervisors prepare a
performance evaluation after employees complete their first 90
days of employment and award a score from 1 through 5 on the
rating system with 3 to 3.5 being average. On occasions, the
first-line supervisor will recommend that a wage increase is
appropriate. The executive editor then reviews all of the em-
ployee performance appraisals and makes an independent deci-
sion as to whether a wage increase is warranted. The parties’
submitted an exhibit that depicts the history of wage increases
for employees in the editorial department who completed their
90-day probationary periods from May 1994 to May 1999 (Jt.
Exh. 1). That document conclusively shows that three employ-
ees,’ who completed their 90-day probationary periods from
May 1994 to the end of June 1997, did not receive a wage in-
crease. Likewise, the document establishes that between July
1997 and May 1999, 17 employees received wage increases
while 28 employees did not receive wage increases despite
being rated satisfactory or higher after completing their 90-day
probationary periods.
Both Executive Editor Amari and former Executive Editor
Bennie Ivory (September 1995 to June 1997) credibly testified
that the decision to grant wage increases to employees after
completion of their 90-day probationary periods is not auto-
matic. Rather, it is within the exclusive discretion of the execu-
tive editor, and is based on a number of factors including
budget considerations, the evaluation of the employee’s per-
formance, the amount of money the employee is currently earn-
ing, and whether granting a wage increase might be a factor in
retaining an individual on the staff. For example, Amari testi-
fied that although employee Hurlock was rated outstanding
after completing his 90-day probationary period, he was not
given a wage increase because he was a part-time sports clerk.
Subsequently, Hurlock was hired as a full-time employee.
The Board previously held in Oneita Knitting Mills, 205
NLRB 500 fn. 1 (1973), that “An employer with a past history
of a merit increase program neither may discontinue that pro-
gram . . . nor may he any longer . . . exercise his discretion with
respect to such increases, once an exclusive bargaining repre-
sentative is selected. NLRB v. Katz, [369] U.S. 736 (1962).
What is required is a maintenance of preexisting practices, i.e.,
the general outline of the program; however, the implementa-
tion of that program (to the extent that discretion has existed in
determining the amounts or timing of the increases), becomes a
matter as to which the bargaining agent is entitled to be con-
sulted.” The Board further addressed the issue of a respondent
discontinuing the practice of granting merit increases to em-
ployees after they successfully completed a 90-day probation-
ary period in Dynatron/Bondo Corp., 323 NLRB 1263 (1997).
In that case, while finding a violation of the Act when the em-
ployer totally discontinued giving merit increases to employees,
the Board principally relied on a number of factors including
that merit was the sole fixed criterion for granting the raise, the
timing of granting the raise was consistent, the amount of the
raise fell within a narrow range, the majority of employees
received the raises, and the increase had been granted over a
significant period of time.
In stark contrast, the merit increases in the subject case have
not been totally discontinued. Additionally, other factors be-
side merit are utilized in determining whether a merit increase
is awarded and the dollar amount of the increase ranges from
100 percent to zero rather then remaining in a narrow range.
Based on the forgoing, I am not convinced that an estab-
lished practice was in effect that employees automatically re-
ceived wage increases if they were rated satisfactory or higher
after completion of their 90-day probationary periods. Indeed,
the evidence establishes that both before and after July 1997, a
number of employees did not receive wage increases after
completion of their 90-day probationary periods. Likewise, the
record discloses that during the same period, a number of em-
ployees did receive wage increases after completion of their 90-
day probationary periods. Thus, as required under Oneita Knit-
ting Mills, the Respondent here maintained its existing practice
of using a number of factors including the discretion of the
executive editor in determining whether a merit increase was
given to employees after completion of the 90-day probationary
period. Accordingly, it follows that if there was no change in
past practice in July 1997, Respondent was not required to no-
tify or bargain with the Union. Under these circumstances, I
find that since there was no change in the practice of granting
wage increases to employees after completion of their 90-day
probationary periods, Respondent did not violate Section
8(a)(1) and (5) of the Act. See Selkirk Metalbestos, 321 NLRB
44 (1996); Haddon Craftsmen, 297 NLRB 462 (1989).
CONCLUSIONS OF LAW
1. 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. Respondent did not engage in violations of Section 8(a)(1)
and (5) of the Act by discontinuing its practice of granting wage
increases to employees after successful completion of their 90-
day probationary periods.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.

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