WAPA-TV

National Labor Relations Board - Board Decisions

Jul 20, 1995

317 N.L.R.B. 1159 (N.L.R.B. 1995)

1159
317 NLRB No. 165
WAPA-TV
1 We adopt the judge’s conclusion that the Respondent violated
Sec. 8(a)(5) of the Act by not granting merit salary increases in Jan-
uary 1994. In so doing, we emphasize that this case, like Daily News
of Los Angeles, 315 NLRB 1236 (1994), on which the judge relies,
involves the discontinuance of an established practice of granting
merit increases. We, however, disavow the judge’s reliance on his
finding that the range of merit increases given by the Respondent
in past years was comparable to the range of increases in Daily
News.
Pegasus Broadcasting of San Juan, Inc. d/b/a
WAPA-TV and Union de Periodistas y Artes
Graficas y Ramas Anexas, Local 225, The
Newspaper Guild, AFL–CIO, CLC. Case 24–
CA–6934
July 20, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On March 22, 1995, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pegasus Broadcasting of
San Juan, Inc. d/b/a WAPA-TV, San Juan, Puerto
Rico, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Magdalena S. Revuelta, Esq., for the General Counsel.
Francisco Chevere, Esq., of San Juan, Puerto Rico, for the
Respondent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Hato Rey, Puerto Rico, on January
19, 1995. On a charge filed on May 12, 1994, and subse-
quently amended, a complaint was issued on June 30, 1994,
alleging that Pegasus Broadcasting of San Juan, Inc. d/b/a
WAPA-TV (Respondent) violated Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act) by failing to grant
a merit salary increase to its reporters in January 1994. Re-
spondent filed an answer denying the commission of the al-
leged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the parties
on March 3, 1995. On the entire record of this case, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation authorized to do business in
Puerto Rico, is engaged in operating a television station
known as WAPA-TV. Respondent admits, and I so find, that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. In addition, it has
been admitted, and I find, that Union de Periodistas y Artes
Graficas Ramas Anexas, Local 225, the Newspaper Guild,
AFL–CIO, CLC (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The sole issue in this proceeding is whether Respondent
violated the Act by not granting a merit salary increase to
its reporters in January 1994. The facts are undisputed. All
relevant facts were stipulated by the parties.
The Union was certified on February 2, 1993, as the ex-
clusive collective-bargaining representative of a unit consist-
ing of all reporters and reporter-anchor persons employed by
Respondent at its television station facilities located in Puerto
Rico. Respondent has granted annual salary increases to its
reporters for the last 18 years. Throughout the years the prac-
tice has been to grant the increases based on merit, after the
employees had been evaluated. For at least the 4 years prior
to 1994, the salary increases were made effective in January
of each year. The amount of the increases varied among the
employees. In 1990 the increases ranged from 3 to 7.3 per-
cent; in 1991 increase ranged from 3 to 8 percent; in 1992
increase ranged from 4.9 to 6 percent; and in 1993 all the
increases were 1 percent. As of January 1994 Respondent
and the Union had begun negotiations for a collective-bar-
gaining agreement. Respondent did not grant salary increases
to its reporters in 1994 and Respondent did not notify the
Union of its decision to discontinue granting the annual wage
increase.
Discussion and Conclusions
An employer negotiating with a newly certified bargaining
representative is prohibited under Section 8(a)(5) of the Act
from altering established terms and conditions of employ-
ment without first notifying and bargaining with the union.
NLRB v. Katz, 369 U.S. 736 (1962). In Daily News of Los
Angeles, 315 NLRB 1236 (1994), the Board made clear that
a discontinuance of merit raises constitutes a violation of
Section 8(a)(5). The Board stated (at 1239):
[T]he Board has consistently supplied Katz to prohibit
an employer from unilaterally changing an existing
term and condition of employment during bargaining,
regardless of whether the change involved a continu-
ance or discontinuance of the existing term.
While Respondent maintains that the increases are discre-
tionary, in its brief Respondent concedes that it maintains an
‘‘established pattern of increases that is fixed as to timing
but discretionary as to amount.’’ In this connection, the
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Remanded 979 F.2d 1571 (D.C. Cir. 1992).
2 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1988
amendment to 26 U.S.C. § 6621.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Board stated in its original Daily News decision, 304 NLRB
511 (1991),1 ‘‘Once the judge found that the Respondent had
a ‘pattern and practice of evaluating the unit employees at
the time of each employee’s anniversary date,’ he correctly
concluded that the Respondent was required to maintain that
practice.’’ The Board continued (id.):
Although the judge found that the amount that an
employee would receive was discretionary, he found
that the timing of the increase—at the employee’s an-
nual evaluation—was not discretionary and thus that the
merit wage program had become an established term
and condition of employment.
Respondent also maintains that it is caught in the horns of
a dilemma and that ‘‘Respondent would have violated Sec-
tion 8(a)(5) of the Act had it granted salary increases to the
reporters while conducting bargaining negotiations with the
Union.’’ The Board has found this fear to be unfounded.
Hyatt Regency Memphis, 296 NLRB 259, 286 (1989), enfd.
in part and remanded in part on other grounds 939 F.2d 361
(6th Cir. 1991). As pointed out in that decision, the question
was resolved in NLRB v. Dothan Eagle, Inc., 434 F.2d 93,
98 (5th Cir. 1970), where the court stated:
At first glance it might appear that the employer is
caught between the proverbial ‘‘devil and the deep blue
sea.’’ It is an unfair labor practice to grant a wage in-
crease during the campaign and bargaining periods, but
at the same time it may be an unfair labor practice to
refuse to grant an increase during this same period. In-
deed, the employer in this case has made just this sort
of an argument, claiming that it could not grant the
pressroom employees their normal progression raises
since to do so would have been an unfair labor practice.
We find little merit in such arguments. The cases make
it crystal clear that the vice involved in both the unlaw-
ful increase situation and the unlawful refusal to in-
crease situation in that the employer has changed the
existing conditions of employment. It is this change
which is prohibited and which forms the basis of the
unfair labor practice charge.
In Daily News of Los Angeles, above at 514, in 1986 ap-
proximately 18 percent of the employees received no in-
crease, while the remaining employees received icreases
ranging from 2 to 20 percent. For 1986 to 1989, about 40
to 50 percent of the unit employees received increases from
3 to 5 percent. In the instant proceeding their increases were
well within the range of increases in Daily News. In 1990
the increases ranged from 3 to 7.3 percent; in 1991 the in-
creases ranged from 3 to 8 percent; and in 1992 the increase
ranged from 4.9 to 6 percent. In 1993 those employees re-
ceiving increases all received an increase of 1 percent. Ac-
cordingly, I find that by not granting a merit salary increase
to its reporters in January 1994, Respondent violated Section
8(a)(1) and (5) of the Act.
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. The Union is the exclusive bargaining representative of
Respondent’s employees in the following appropriate unit:
All reporters and reporter-anchor persons employed by
Respondent at its television station facilities located in
Puerto Rico.
4. By unilaterally withholding wage increases from em-
ployees Respondent has violated Section 8(a)(1) and (5) of
the Act.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I find it necessary to order Respondent to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of he Act.
Having withheld its annual merit increase, I shall order
Respondent to make whole its bargaining unit employees for
any loss of earnings suffered because of Respondent’s having
withheld such increase. Backpay shall be computed in ac-
cordance with the formula approved in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).2 The
General Counsel has proposed that an average of the merit
increases granted to each employee for the past 4 years be
used to determine the amount owed. I believe, however, that
the formula to be used would be best left for the compliance
stage of this proceeding. See Daily News, supra, 315 NLRB
1236; Hyatt Regency Memphis, supra at 259 fn. 2.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
The Respondent, Pegasus Broadcasting of San Juan, Inc.
d/b/a WAPA-TV, San Juan, Puerto Rico, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by uni-
laterally withholding annual merit wage increases from the
employees in the appropriate bargaining unit. The unit em-
ployees include all reporters and reporter-anchor persons em-
ployed by Respondent at its television station facilities lo-
cated in Puerto Rico.
(b) In any any like or manner interfering with, restraining,
or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policie 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 in-
1161WAPA-TV
4 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
creases, with interest, in the manner set forth in the section
remedy 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 facilities in Puerto Rico, in English and in
Spanish, copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Regional Di-
rector for Region 24, 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 including all places where notices
to employees 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
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT unilaterally withhold annual merit wage in-
creases from the employees in the appropriate bargaining
unit. The unit employees include all reporters and reporter-
anchor persons employed by Respondent at its television sta-
tion facilities located in Puerto Rico.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL NOT make whole the employees in the appro-
priate unit for any monetary losses they may have suffered
by reason of Respondent’s unilateral withholding of annual
wage increases, with interest.
WE WILL, on request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of the
unit employees.
PEGASUS BROADCASTING OF SAN JUAN, INC.
D/B/A WAPA-TV