Wpix, Inc

National Labor Relations Board - Board Decisions

Feb 28, 1989

293 N.L.R.B. 10 (N.L.R.B. 1989)

10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WPIX, Inc and Newspaper Guild of New York
Local 3 , the Newspaper Guild , AFL-CIO, CLC
Case 2-CA-22179
February 28, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 12, 1988, Administrative Law Judge El-
eanor MacDonald issued the attached decision
The Respondent filed exceptions and a supporting
brief, the General Counsel filed cross-exceptions
and a supporting brief, the Union filed cross-excep-
tions and a supporting brief and a reply brief to the
Respondent 's exceptions , and the Respondent filed
an answering brief to the General Counsel's and
the Union's cross-exceptions
The National Labor Relations Board has delegat-
ed 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
conclusions2 and to adopt the recommended Order
as modified 3
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We agree with the judge that the Respondent s failure to pay the
wage step increases required by the 1983-1986 contract which the par
ties had extended violated Sec 8(a)(5) and (1) of the Act Because we
also agree with the judge s finding that the Respondent had prematurely
declared impasse in its negotiations for a successor agreement when it
unilaterally implemented the terms of its last offer we find it unnecessary
to pass on her further finding that the failure to pay the wage step in
creases under the old contract would preclude reaching a lawful impasse
in the negotiations for the successor agreement
2 The General Counsel and the Union contend that the Respondent
lacked overall good faith and engaged in surface bargaining throughout
the negotiations We disagree The record clearly shows that the Re
spondent was willing to meet and confer with the Union exchange pro
posals and modify its positions in an attempt to reach agreement with the
Union See e g G Zaino & Sons 275 NLRB 456 (1985) United Tech
nologies Corp 274 NLRB 1069 1074 (1985) enfd 789 F 2d 121 136 (2d
Cir 1986)
The General Counsel and the Union also argue inter alia that the Re
spondent s proposal to conduct arbitrations under the Federal Mediation
and Conciliation Service (FMCS) in lieu of the American Arbitration As
sociation (AAA) was in retaliation for the Union s wage step grievance
Even assuming that this matter was fully litigated at the hearing the
General Counsel has failed to prove an 8(a)(5) violation The Respondent
explained without contradiction that it made the proposal because the
AAA had mandated the selection of an arbitrator previously rejected by
the Respondent to conduct the wage step arbitration The Respondent
also maintained that the services of the FMCS are less costly than those
offered by the AAA Accordingly we conclude that the Respondent did
not make the proposal in bad faith
9 We shall issue amended conclusions of law a modified Order and a
new notice to employees that more closely conform to the violations
found
AMENDED CONCLUSIONS OF LAW
1 Substitute the following for Conclusion of
Law 3
"3 By unilaterally failing to pay contractually
required wage step increases since October 9, 1986,
the Respondent refused to bargain in violation of
Section 8(a)(5) and (1) of the Act "
2 Insert the following as Conclusion of Law 4
and renumber the subsequent conclusion of law
"4 By unilaterally implementing changes in
terms and conditions of employment from April 1,
1987, at which time no bargaining impasse existed,
the Respondent refused to bargain in violation of
Section 8(a)(5) and (1) of the Act "
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, WPIX, Inc, New York, New York, its
officers , agents , successors , and assigns , shall take
the action set forth in the Order as modified
1 Insert the following as paragraph 1(a) and re
letter the subsequent paragraphs
"(a) Refusing to bargain in good faith with the
Union by unilaterally failing to pay contractually
required wage-step increases since October 9,
1986 "
2 Substitute the attached notice for that of the
administrative law judge
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 ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT refuse to bargain with Newspaper
Guild of New York Local 3, The Newspaper
Guild, AFL-CIO, CLC by unilaterally failing to
pay contractually required wage-step increases
293 NLRB No 2
WPIX INC
WE WILL NOT refuse to bargain with the Union
by unilaterally changing wage rates and other
terms and conditions of employment in the absence
of bargaining impasse The bargaining unit is
INCLUDED News editors, assignment edi-
tors, senior writers, news writers, sports spe-
cialist, senior assignment desk assistants, talent
coordinators, graphic artists, assignment desk
assistants, graphics assistants, production assist-
ants and telephone clerks in the news depart-
ment of WPIX-TV
EXCLUDED All other employees in the
News Department of WPIX TV, including
News Director, Executive Producer, Manag-
ing Editor, Producers, Metropolitan Editor,
Graphics Director, Business Manager, adminis-
trative assistant (confidential secretary), all em-
ployees represented by other labor organiza-
tions, guards, watchmen and supervisors as de-
fined in the Act
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL make whole all bargaining unit em
ployees for any losses they may have suffered as a
result of our unlawful unilateral changes in the
terms and conditions of employment, with interest
WE WILL, on request from the Union, revoke
any unilateral changes in terms and conditions of
employment and reinstate the terms and conditions
that existed before our unlawful changes, although
this does not mean that we must rescind any wage
or benefit increase granted to unit employees
WE WILL, on request, bargain collectively with
the Union with respect to rates of pay, hours of
employment, and other terms and conditions of em
ployment, and, if an understanding is reached,
embody such understanding in a signed agreement
WPIX, INC
James Wasserman Esq, for the General Counsel
Richard L Marcus Esq and Susan M Benton Powers
Esq (Isham Lincoln & Beale) of Chicago Illinois for
the Respondent
Louis Pechman Esq (Vladeck Waldman Elias & Engel
hardt), of New York, New York, for the Charging
Party
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge
This case was tried in New York, New York on 20 21
and 22 October and 12 November 1987 The complaint
alleges that Respondent, in violation of Section 8(a)(1)
11
and (5) and Section 8(d) of the Act, failed to grant em
ployees step increases due under the collective bargain
ing agreement , offered inconsistent and contradictory
written proposals, threatened to repudiate an agreement
unless the Union withdrew a pending grievance, refused
to bargain about employee evaluation criteria, declared a
premature and invalid impasse and unilaterally changed
numerous terms and conditions of employment Re
spondent denies that it failed to bargain in good faith, al
leges that the Union delayed the negotiations and en
gaged in surface bargaining, and alleges that the parties
had negotiated to impasse by 1 April 1987 In addition,
Respondent raises the statute of limitations as a bar to
the allegations regarding certain of the step increases
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the bnefs filed by the General Counsel and Respondent,
I make the following i
FINDINGS OF FACT
I JURISDICTION
Respondent, a New York corporation with an office at
11 WPIX Plaza, New York, New York, operates radio
and television broadcasting stations Respondent annually
derives gross revenues in excess of $100,000 advertises
products sold nationally, and subscribes to national wire
services The parties agree, and I find, that Respondent is
an employer engaged in commerce within the meaning
of Section 2(2) (6), and (7) of the Act and that Newspa
per Guild of New York Local 3, the Newspaper Guild,
AFL-CIO, CLC is a labor organization within the mean
ing of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A The Negotiations Generally
The Union represents the following unit of employees
of Respondent
INCLUDED News editors, assignment editors,
senior writers news writers sports specialist senior
assignment desk assistants talent coordinators,
graphic artists assignment desk assistants , graphics
assistants , production assistants and telephone clerks
in the news department of WPIX TV
EXCLUDED All other employees in the News
Department of WPIX TV, including News Direc
tor, Executive Producer Managing Editor Produc
ers Metropolitan Editor , Graphics Director, Bust
ness Manager , administrative assistant (confidential
secretary), all employees represented by other labor
organizations , guards , watchmen and supervisors as
defined in the Act
Respondent and the Union have been parties to a
series of 3 year contracts At the time relevant to the in
stant case, WPIX and the Union were negotiating a suc
i After the initial exchange of bnefs in January 1988 both the General
Counsel and Respondent filed additional letters I have considered these
in reaching my decision
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cessor agreement to the one with a term from 25 June
1983 to 24 June 1986
There were 12 negotiating sessions from 1 July 1986
through 1 April 1987 when WPIX declared that an im
passe existed and unilaterally implemented its last offer
B Summary of the Negotiating Sessions
For the first four negotiating sessions , WPIX was rep
resented by Andrew L Hughes Esq, who had repre
sented it in prior negotiations The General Counsel does
not allege that Hughes acted in bad faith either at or
away from the bargaining table 2
On 21 May 1986 the Union had submitted its propos
als for the new contract The demands included changes
relating to union security, grievance and arbitration pro
cedure, probationary period, recall list posting of sched
ules, paid holidays, and leaves of absence The Union
said it wanted to negotiate a substantial wage increase
but no amounts were specified The Union sought to
eliminate the factor of ability to perform the work from
the layoff and recall provisions of the contract, it sought
greater job security in the face of technological ad
vances, it sought improvements in severance pay, and it
sought to reduce the workweek and improve overtime,
missed meal compensation, vacations, and sick leave pro
visions
The first negotiating session took place on 1 July 1986
The Union expressed concern that after recent layoffs,
interns might be performing unit work The Union had
previously sent its written proposal which Hughes was
not thrilled about ' The Company had no written pro
posal Hughes said the Company was subject to a
severe financial crunch and could not add to the con
tract Hughes mentioned that he was concerned about
large severance pay amounts already due and the fact
that employees were banking their vacations from year
to year
The second negotiating session took place on 22 July
1986 There was additional discussion of the use of in
terns Hughes said he wanted to take seniority out of the
contract and put a cap on severance pay Hughes coin
plained about the cost of the overtime payment for
missed lunch periods No written company proposal was
presented
The third negotiating session took place on 8 August
1986 The Company had no written proposal and
Hughes explained that he had to figure out a way to sell
givebacks to the Union He said the Company could
afford very little and that it needed improvements but
that it was not seeking wage cuts Perhaps more lay
offs would be needed to fund the next wage increase
Hughes mentioned a selective wage freeze and the Union
said that would present a problem Hughes said the
Company wanted to eliminate the step increase method
of granting wage increases and Montes said it was an
integral part of the contract and that he opposed the
2 Hughes was accompanied by Senior Vice President John Corporon
and other employees of WPIX The Union was represented by Business
Representative William Monies Unit Chairperson William O Meara and
other unit employees On some occasions James Madden Esq a busi
ness agent was present with the union team
suggestion The Company suggested either a new dental
plan or a higher deductible to hold down costs of the
plan The Union asked to see a written proposal concern
ing the dental plan Hughes discussed the Union s
demand for 2 weeks notice of scheduling and stated that
it did not give the Company enough flexibility
The fourth negotiating session took place on 13
August 1986 Hughes said he had no good news The
Company had new cost cutting edicts 0 Meara testified
that Hughes said a time might come when the Company
would come to the Union with a more limited set of
conditions that [the Union] would have a limited time to
accept otherwise it would be imposed unilaterally' I
credit 0 Meara s testimony Hughes said the parties were
bargaining to impasse Montes replied, not yet but that
the parties were approaching the point of no return He
said the parties had not even begun negotiating Hughes
handed out a written proposal on behalf of WPIX
Hughes testified that on 13 August 1987 he did not have
a complete wage proposal despite his earlier promise to
have one for that meeting Hughes had been told that the
aim of WPIX was to eliminate inefficiencies and cut
costs The union proposals would have increased costs
Hughes testified that he did not discuss wages with the
Union because the subject was deferred The Compa
ny also gave the Union information about the new dental
plan After confirming that no other changes would be
made, the Union accepted the new dental plan 3
The next meeting had been scheduled for mid Septem
ber In the event the parties did not meet until 1 Octo
ber 1986
Beginning 1 October 1986 the chief union spokesman
was Sidney Kress Esq staff attorney and business
agent WPIX s chief spokesman, Hughes, had been re
placed by Richard L Marcus Esq The Union presented
modifications to its proposal of May 1986 The Company
presented a complete written proposal which it explained
was a new proposal to replace the document prepared by
Hughes in August The company proposals contained 20
numbered items
On 1 October 1986, WPIX proposed that employees
would no longer be paid for skipped meals Employees
consistently worked a 40 hour week and did not take the
meal period allotted every working day Instead they
were paid one half hour overtime for every working
day, or 2 1/2 hours per week The evidence shows that
this procedure added a substantial sum to the employees
weekly paychecks, estimated by Marcus to average 6
percent of wages for the unit employees
Kress questioned a memorandum issued by WPIX to
unit members which abolished the system of free dental
cleanings with Drs Frankel and Marx as of 1 October
19864
3 The new dental plan insurance career was Aetna Under the new
plan effective 1 October 1986 the deductible was increased and a change
was made to increase preventive coverage The plan provided for two
free cleanings with a dentist to be chosen by the individual employees
4 This system had provided each unit with two free cleanings per year
with Drs Frankel and Marx WPIX eliminated the system because the
new Aetna dental coverage effective on i October provided two free
cleanings with the employees own dentists
WPIX INC
Kress told Marcus that the Company had failed to
grant step wage increases under the contract 5 Accord
ing to O Meara, Marcus replied that the step increases
were not being paid and that everything has a price tag
and it might be appropriate to defer those raises so the
Company would have funds to pay a raise to the rest of
the members in the unit The Union responded that it
was filing a grievance over the failure to grant the in
creases, and the Company agreed to waive a formal
grievance session The Union stated that it would file for
arbitration
The WPIX proposals of 1 October 1986 contained a
pay schedule different from that in effect, and condi
tioned movement after one or two steps on manage
ment s judgment of merit Those not at the top of the
scale would receive up to a 2 percent wage increase In
the Union's view, the 2 percent wage increase for some
employees taken together with the Company s proposal
to eliminate the skipped meal payment would effectuate
a substantial wage decrease for unit employees
A meeting was scheduled for November, but it was
canceled due to illness of Kress and his subsequent de
parture from the guild
The next bargaining session took place on 12 Decem
ber 1986 Kress was replaced as chief union spokesman
by Leo Ducharme International representative The par
ties went through the company proposals in detail After
they did so, Ducharme said that the proposals were dam
aging to unit members morale Marcus replied that the
Company did not wish to destroy morale but Ducharme
said the Company would not be able to convince the
Union of its need for the proposals Ducharme asked if
the Company would agree to any of the union demands
The parties indicated which items were high priority and
which were less important The parties discussed the
company proposal to eliminate the paramount use of se
nionty in determining order of layoff 6 Ducharme indi
cated that the parties were at opposite poles but that
there was a `middle ground " Marcus said he would dis
cuss the proposal with the Company The Union offered
to drop its grievance procedure proposal if the Company
also dropped its proposal Marcus refused this offer
The parties next met on 16 December At the Union s
suggestion they discussed a number of grievances includ
ing the elimination of the free dental cleanings They
agreed to contact a Federal mediator
The parties next met on 13 January 1987 They dis
cussed various proposals including bereavement leave
and paternity leave The Company mentioned that it was
possible to change the carrier for the medical insurance
plan and the Union agreed to meet with representatives
of Aetna, the proposed new carrier, on 20 January
O Meara testified that at Marcus instance, proposals and
demands that were economic in nature were deferred
from discussion and were agreed to be part of the final
package
5 It is undisputed that the 1983-1986 contract remained in effect during
the negotiations The step increases were based on an employees length
of service in his or her job title
6 As of 12 December the Union s proposal on layoffs removed all ref
erence to skill and ability and relied on seniority
13
On 20 January the union representatives met with
Aetna in the morning The meeting ended with a prom
ise from Aetna to prepare a new proposal for coverage
The parties met in the afternoon of 20 January for
contract negotiations The inconclusive nature of the
current Aetna proposal was discussed The parties dis
cussed a new written bereavement policy The Union
narrowed its demand Marcus had been trying to contact
the mediator, and he reported that he had finally been
successful and that the mediator was available on 30 Jan
uary 1987
On 30 January 1987 the parties each met separately
with the Federal mediator
The parties next met on 6 February 1987 Marcus an
nounced that as a result of the negotiations so far and his
discussions of his proposals with the Company he was
presenting a new proposal The document contained 40
numbered items Marcus then went through the new pro
posal point by point and explained any questions the
Union posed about the proposal Some of the proposals
were revisions of earlier proposals According to
Marcus, a number of the proposals were entirely new
and were based on information Marcus had obtained in
preparing for negotiations with other units of WPIX s
unit employees
The arbitration provisions were to be changed substan
tially so as to establish a new appointing agency and to
remove decisions as to procedural and substantive arbi
trability from the jurisdiction of the arbitrator 7 Consid
eration of seniority was entirely removed from the clause
relating to reduction in force and recall from layoff
Marcus proposed deleting the clause that stated the
Company s and the Union s recognition that technologi
cal change could cause loss of jobs and the Company s
continued efforts to consider employees displaced by
technological change for other positions Marcus pro
posed changing the practice whereby severance pay was
granted on layoff, the new proposal would make it pay
able only on expiration of the recall period The new
proposals would remove the preference for unit employ
ees in the filling of vacancies and would give manage
merit the right to demote employees even after comple
tion of the probationary period established in the old
contract Other changes involved payment of overtime,
doubletime posting of schedules in a timely fashion holi
day pay, and entitlement to vacations WPIX had previ
7 Senior Vice President Corporon testified that since 1972 arbitrations
between the parties had been conducted under the auspices of the Amen
can Arbitration Association (AAA) The Company had not proposed any
change in the contractual arbitration procedure However by 6 February
1987 the Union had requested arbitration of its grievance over the Com
pany s failure to grant the contractually mandated step pay increases
Marcus objected to arbitration because the Union was not bargaining fast
enough and he objected to continuation of the contract provisions which
WPIX sought to eliminate through negotiations The AAA ordered the
arbitration to proceed over Marcus objections and the hearing was
scheduled for 6 April 1987 On 2 April Marcus advised the Union that
WPIX would retroactively pay the step increases due under the contract
He did not appear at the arbitration hearing held on 6 April The arbitra
tor upheld the grievance Marcus 6 February proposal replacing the
AAA with the Federal Mediation and Conciliation Service and removing
all questions of arbitrability from the jurisdiction of the arbitrator would
have the effect of forcing the Union into court litigation if the Company
objected to arbitrating a grievance under the new contract
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ously proposed a change in the banking of vacation time
so that it would be paid at the rate earned Now, Marcus
proposed eliminating the possibility of banking vacation
time altogether unless the Company requested an em
ployee to defer a vacation The Company s proposals
would permit it to make more extensive use of tempo
rary employees WPIX proposed to delete news editors
from the unit On 6 February 1987 Marcus for the first
time proposed a 3 year contract Before that date the
Company had sought a 2 year contract
Marcus recalled that after he presented the new set of
proposals to the Union Ducharme expressed the opinion
that the Company was trying to avoid reaching a collec
tive bargaining agreement
The parties agreed, effective 1 March 1987, to change
the medical insurance coverage to Aetna as proposed by
WPIX The parties agreed on an interim basis to main
tarn a level of employee and employer contribution to
the cost until a new contract was reached between them
The Union had recently requested arbitration of the
issue raised by the Company's abolition of the free clean
ings with Drs Frankel and Marx WPIX took the posi
tion that the new dental coverage with Aetna was a re
placement for the Frankel Marx benefit
The parties next met on 26 February 1987 On that
day, they discussed the presence of asbestos in the work
place in an area under construction and what safeguards
would be taken to protect employees
The parties discussed the Company s proposal of 6
February 1987 to remove the news editor from the bar
gaining unit The company rationale was that the posi
tion should be in management because under its pro
posed new system of merit increases the news editor
would evaluate employees performance The Union
asked what criteria would be used in evaluating perform
ance for merit increases WPIX replied that the criteria
had not been developed and that this would be done by
management after the Union agreed to the proposal The
Union said it would not accept the proposal The Union
believed the merit system of increases based on employ
er s criteria is unjust However the Union has two con
tracts in which such merit increases are provided
Marcus testified that Ducharme asked him about the
merit review and what s going to be involved? He re
plied that WPIX had not formulated any specific
system for doing that as of this time According to
Marcus this was the only time the Union rasied the
question of merit reviews
At the end of the meeting, Marcus said he could not
set up another date but that after consulting with man
agement he would get back to the Union The parties
subsequently agreed to meet on 1 April 1987 Marcus
testified that he told the Union no progress had been
made and that he had to confer with Corporon who was
not then present, before he could set another date
On 20 March Marcus sent a letter to Ducharme delet
ing seven of the Company s proposals and modifying the
severance and vacation pay proposals WPIX abandoned
its attempt to remove news editors from the unit and to
delete from the agreement the provision for employees
dislocated by technological change and the provision re
lating to schedule posting The Company dropped its
proposal permitting demotions after the probationary
period WPIX also revised its proposal relating to in
terns In his letter of 20 March Marcus expressed a sense
of urgency about the negotiations and the hope that they
could be concluded as quickly as possible
The parties met on 1 April 1987 They discussed the
issue of performance of until work by nonunit employ
ees The Union questioned the meaning and intent of the
language proposed b} the Company and said it could
accept a provision within stated limits No agreement
was reached on this topic At the 1 April meeting, the
Union dropped a number of demands relating to cover
age of the contract union security job security sever
ance pay, probationary periods and overtime The Union
proposed a wage increase of 8 percent per year The
Union modified its demand relating to vacation, sick
leave, and paternity leave The Union discussed the com
pany proposal to require grievances to be tiled within 30
days It proposed 90 days, no agreement was reached on
this issue, but some language on grievances was worked
out Thus, Marcus accepted the union proposal that the
time for filing a grievance would start to run when the
employee knew or should have known of the grievance
The Union accepted the Company s proposal to add Ian
guage prohibiting the arbitrator from adding to, ignoring,
or modifying the provisions of the agreement The Union
still refused to accept a change in the agency appointing
the arbitrator
Ducharme asked if the Company had any position on
the union modifications Marcus replied that they could
not accept any of them under any circumstances
About 4 15 p in , the union representatives said they
had to leave and they asked to set up the next meeting
Marcus said he was available the next day, but Du
charme could not meet until 21 April At that point
Marcus said the Company believed the negotiations were
at impasse and that WPIX was terminating the contract
and implementing its proposal Ducharme responded that
the Union s position was that there was no impasse and
that the Union `was ready to continue discussing the
proposals and to move on our proposals Ducharme
told Marcus that the Union had expected the Company
to declare impasse based on its 20 March 1987 letter But
Ducharme reiterated that he was willing to negotiate and
to make additional modifications Marcus replied that if
the Union had something else to propose it should write
him a letter Then Marcus left Corporon held a meeting
in the newsroom with unit employees about an hour later
to inform the employees that an impasse had been de
Glared and the Respondents proposals implemented
Marcus testified that elimination of the missed meal
payment to unit employees would amount to about 6
percent pay cut per annum The Company was propos
ing a 2 percent pay increase (but without taking into ac
count the defacto 6 percent decrease in the other part of
its proposal) When on 1 April 1987 the Union proposed
an 8 percent wage increase Marcus did not view this as
a basis for negotiations He stated that the company
proposal was not made as a means of seeking middle
WPIX INC 15
ground It was a proposal made to try and reduce the
costs that the Company was bearing 8
According to 0 Meara, the parties to the negotiations
had mutually agreed that discussion of economic items
would be deferred until a final discussion of all economic
matters could resolve the cost of the overall agreement
0 Meara recalled that Marcus introduced the concept
that all matters of financial impact would be deferred
until a later stage of the negotiations
C Specific Violations Alleged in the Complaint
1 Failure to grant step increases
It is undisputed that the 1983-1986 contract between
the parties remained in effect during the negotiations
Article XVII of the contract provided minimum wages
for each job title classification of the unit employees and
provided for so called step increases after specified time
periods such as 6 months, 1 year 2 years, or more On 1
October 1986, the Union informed company negotiators
that the step increases were not being granted as re
quired by the contract Marcus acknowledged that the
increases were not being paid The Union announced
that it was filing a grievance over the failure to grant
step wage increases, the Company agreed to waive the
formal grievance session and the Union stated that it
would file for arbitration The Company resisted arbitra
tion because the Union should not have been seeking to
enforce the wage provisions of the contract while the
Company wanted to modify those provisions through
collective bargaining The American Arbitration Asso
ciation scheduled the matter for an arbitration hearing to
be held on 3 April 1987 On 2 April 1987, the Company
advised the Union that it had decided to institute retro
active wage adjustments for certain employees The ar
bitration hearing was held without the appearance of the
Company, an by award dated 13 May 1987 the arbitra
tor upheld the grievance and ordered WPIX to make the
employees whole At the trial, the parties stipulated that
the employees named in the instant complaint as amend
ed by the General Counsel had received retroactive
wage increases shortly after 2 April 1987
The conclusion is inescapable that each individual fail
ure to pay the wage required by the contract including
the mandated step increases, is unlawful and in violation
of Section 8(a)(1) and (5) of the Act Abbey Medi
cal/Abbey Rents 264 NLRB 969 975 (1982) The defense
based on the statute of limitations is without merit as to
each failure to pay the proper wage from 9 October
1986 a date 6 months before the filing of the instant
charge Further, Respondents contention that the viola
tion is technical and does not warrant a remedial order
is not supported by the cases cited in Respondent's brief
Bellinger Shipyards, 227 NLRB 620 (1976) Deringer Mfg
Co 201 NLRB 622 (1973) In those cases, the Board
found that the unlawful conduct was minimal and that
there was no showing that the employees were adverse
ly affected In the instant case employees were denied
8 Marcus stated that at no point in the negotiations from 1 October
1986 through 1 April 1987 did he consider accepting a union demand as a
tradeoff for a company proposal
wages due them under the contract, an adverse econom
is effect which no employee views as minimal
2 Threat to repudiate an agreement
The General Counsel asserts that the Company threat
ened to repudiate the agreement reached about the new
medical and dental insurance unless the Union withdrew
a pending grievance relating to the two annual free
dental cleanings provided by Drs Frankel and Marx
The testimony of all the witnesses shows that for some
time the Company paid for the free cleanings and that
under the new dental insurance plan agreed to by the
parties effective 1 October 1986, two free cleanings
were provided for by the dentist of the employee s
choice 9 The issue centers on the discontinuance of the
Drs Frankel and Marx cleanings in October 1986, and
the Union s filing of a grievance over the loss of the ben
efit On 26 February 1987 0 Meara understood Marcus
to say that unless the Union withdrew its pending griev
ance, the Company would withdraw from the agreement
to participate in the new Aetna dental and medical insur
ance plan, which was to be effective on 1 March 1987
Marcus testified that he told the Union that the new plan
provided for free dental cleanings, and he wished the
agreement about medical and dental insurance to resolve
all open issues prospectively from 1 March 1987 Marcus
testified that at no point did he press the Union to with
draw the grievance in return for continued company ad
herence to the agreement for new dental and medical in
surance In fact the arbitration was held in July 1987,
and the grievance was denied I find that 0 Meara mis
understood Marcus comments at the bargaining table I
find that Marcus did not threaten to withdraw from the
insurance agreement unless the Union dropped its griev
ance Instead I find that Marcus said the Company
would not proceed with the insurance plan unless it re
solved all issues from the date of 1 March 1987 Thus, I
do not find that Respondent violated the Act
3 Inconsistent and contradictory proposals and
refusal to discuss evaluation criteria
The General Counsel cites as examples of inconsistent
proposals made by the Company the following Hughes
stated he was not asking for a wage reduction but
Marcus later proposed such a reduction Hughes had ap
parently worked on a proposal which retained a system
of step increases while Marcus proposal eliminated the
step increases and gave a 2 percent or lower across the
board increase to employees, depending on their current
rate
The testimony shows that Hughes had announced that
he was under instructions to cut costs that he had to
find a way to sell givebacks to the Union and that he
wanted to eliminate the missed meal payments to em
ployees Hughes did not say he would ask for a wage
8 The changes in health insurance were made in two stages In August
1986 the parties agreed on a change in dental coverage effective 1 Octo
ber 1986 Beginning in January 1987 the parties discussed other aspects
of medical insurance A final agreement on all dental and medical cover
age was reached effective 1 March 1987
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cut but he did mention the possibility of a freeze or
future layoffs to cut costs Hughes never actually made a
wage proposal to the Union Marcus did make a wage
proposal entailing a 2 percent or lower wage increase,
which when coupled with the loss of missed meal pay
ments, would have meant a net wage loss to the employ
ees Further although internal company documents sug
gest Hughes worked on a proposal to keep the step in
creases, he never presented it nor any other wage scale
to the Union
Based on these facts, I cannot find any inconsistency
Both Hughes and Marcus gave fair notice that the Com
pany wished to cut costs and that draconian measures
would be proposed to the Union Both targeted specifi
cally the missed meal payments which amounted to at
least 6 percent of employee wages Although Marcus
proposal to eliminate the step increases angered the
Union, it was not inconsistent with Hughes proposals
because Hughes had not given the Union a wage propos
al
Another example of an inconsistent company proposal
cited by the General Counsel is the exchange of 1 April
1987 concerning performance of unit work
In its proposal of 1 October 1986, as modified on 6
February 1987, the Company had proposed language
permitting nonbargaining unit employees occasionally to
perform bargaining unit work In response to Du
charme s question on 1 April about the meaning and im
plementation of the language, Marcus replied that it
would permit Corporon or his secretary to answer the
telephone in the newsroom or book a guest for the show
0 Meara testified that he stated that this interpretation
was in accord with current practice Ducharme said the
Union could accept the proposal providing it would not
change present practice Marcus replied that the exam
ples he had just given were not exhaustive and that the
clause might be applied differently The Union then
stated that it would not accept the proposal
The General Counsel argues that Marcus' actions
amount to a sudden shift to increase demands that were
inconsistent with [Marcus ] prior explanation in order to
avoid reaching an agreement with the Union I do not
find that the facts are consistent with the General Coun
sel s theory In this case, Marcus and the Union engaged
in a brief exchange about the meaning of a company pro
posal In response to the Unions statement that if the
meaning were limited it would accept the proposal,
Marcus hastened to explain that the language could be
read in a more expansive way This is not a situation
where the Company had been adamantly insisting on a
provision and had explained it at length only to change
its proposal once the Union seemed willing to agree Cf
NLRB v Herman Sausage Co, 275 F 2d 229 233 (5th
Cir 1960) Instead, Marcus expansion of his initial expla
nation came during the exchange concerning the mean
ing and intent of the proposed language It would hardly
serve the cause of collective bargaining to limit a party s
permissible explanation of its proposals to one or two
sentences, the give and take of negotiations requires the
ability to explore a proposal at length
The General Counsel supports the allegation that
WPIX refused to discuss the evaluation criteria to be em
ployed by the Company under the wage proposal by the
following On 1 October 1986 Marcus proposed that
future movement to the top wage rates for a job title
classification would be at the Company s discretion
This was part of the proposal to eliminate the automatic
step increases and substitute merit evaluations On 6 Feb
ruary 1987 Marcus also proposed elimination of the news
editor from the bargaining unit because that employee
would henceforth be involved in conducting the merit
evaluation for unit employees
On 26 February when the Union asked what criteria
would be used in merit evaluations Marcus replied that
these had not yet been formulated He said the criteria
would be formulated by the Company after the Union
accepted the proposal to remove the news editor from
the unit Even after Marcus deleted the proposal to drop
news editors from the unit on 20 March 1987, he still
proposed that raises to the top wage rates would be de
termined by the Company, but he still did not provide
any criteria for the Company's exercise of its discre
tion
The General Counsel urges that by proposing raises at
the Company s unilateral discretion without discussing
the applicable criteria, WPIX removed the highly signifi
cant subject of wages from the bargaining table
The evidence shows that on 26 February 1987 the
Union asked what the criteria for wage increases would
be under the Company s proposal, and Marcus said these
had not yet been developed I can find no indication that
the Union asked about the criteria again Marcus state
merit that the Company would develop the criteria was
thus the last word on the subject before he declared im
passe on 1 April 1987
I do not find that the Union ever requested WPIX to
bargain about the criteria for granting pay raises, thus I
do not find that Respondent refused to discuss the eval
uation criteria to be employed by the Company under
the wage proposal by the following On 1 October 1986
Marcus proposed that future movement to the top wage
rates for a job title classification would be at the Com
pany s discretion This was part of the proposal to
eliminate the automatic step increases and substitute
merit evaluations On 6 February 1987 Marcus also pro
posed elimination of the news editor from the bargaining
unit because that employee would henceforth be in
volved in conducting the merit evaluation for unit em
ployees
On 26 February, when the Union asked what criteria
would be used in merit evaluations Marcus replied that
these had not yet been formulated He said the criteria
would be formulated by the Company after the Union
accepted the proposal to remove the news editor from
the unit Even after Marcus deleted the proposal to drop
news editors from the unit on 20 March 1987, he still
proposed that raises to the top wage rates would be de
termined by the Company but he still did not provide
any criteria for the Company s exercise of its discre
tion
The General Counsel urges that by proposing raises at
the Company s unilateral discretion without discussing
WPIX INC
the applicable criteria WPIX removed the highly signifi
cant subject of wages from the bargaining table
The evidence shows that on 26 February 1987 the
Union asked what the criteria for wage increases would
be under the Company s proposal , and Marcus said these
had not yet been developed I can find no indication that
the Union asked about the criteria again Marcus state
ment that the Company would develop the criteria was
thus the last word on the subject before he declared im
passe on 1 April 1987
I do not find that the Union ever requested WPIX to
bargain about the criteria for granting pay raises, thus I
do not find that Respondent refused to bargain on this
issue
4 Declaration of impasse and unilateral changes
The conclusion seems clear that there was no true im
passe between the parties on 1 April 1987 when the
Company declared impasse
The parties began negotiations in July 1986 After four
meetings, during which no wage proposal was submitted
by the Company , a new company bargaining representa
tive came on the scene with a new set of proposals to
replace the incomplete company proposals presented ear
her Thus, on 1 October 1986 the bargaining in essence
began anew The parties met six times from 1 October
1986 to 30 January 1987 During these sessions the Com
pany presented its new proposals on 1 October On 12
December the parties discussed the company proposal in
detail and the Union offered to compromise on the griev
ance procedure and sought a middle ground on the se
niority issue On 16 December the parties discussed
pending grievances On 13 January bargaining took place
on certain leave issues On 20 January the parties dealt
with medical insurance and the Union narrowed its
demand on bereavement leave On 30 January the media
tor was brought in and met with the parties separately
Nothing in this brief summary indicates that there was a
failure of the bargaining process Instead, there was ex-
ploration of the parties aims and proposals offers of
compromise by the Union , and a resort to the assistance
of a mediator
Then on 6 February 1987 the Company presented a
new set of proposals containing 40 items Some of these
were changes to the 20 proposals presented by Marcus
on 10 October 1986 but many of these were new de
mands For the most part, the new proposals did not rep
resent an attempt to compromise with the Union by
taking into account union concerns or demands Many of
the proposals of 6 February were unfavorable to the
Union and involved more retrogression in employee
rights under the contract than did the proposals of 1 Oc
tober 1987 Indeed Marcus candidly testified that he pre
pared the WPIX proposals of 6 February based on new
information he had acquired concerning the Company s
needs In a sense the bargaining again began anew on 6
February The Union had new demands and new Ian
guage to consider
The parties met times to consider the 6 February pro
posals On 6 February the new proposals were given to
the Union and were discussed On 26 February the par
ties met, they discussed removal of the news editor from
17
the unit , criteria for merit increases , and an asbestos
problem The new medical insurance plan was finally
agreed to By letter of 20 March , WPIX dropped some
of its proposals and moved closer to the union position
on others On 1 April the Union dropped some of its
proposals and modified others, it also proposed some
compromise on the subject of grievances Thus, some
progress was indeed made by the parties in bringing their
positions closer together each side dropped demands
deemed unfavorable by the other This movement indi
cater that bargaining was not exhausted and that it
would not have been futile to continue collective bar
gaining negotiations The Union wanted to negotiate fur
ther The fact that the parties were not close on many
issues does not indicate that the negotiations were dead
locked it shows that that parties still had many hours of
bargaining before them in order to resolve their differ
ences The parties had met only three times since the
new proposals of 6 February 1987 By the nature of the
issues still to be resolved it was to be expected that the
negotiations would be lengthy and difficult Moreover
the evidence shows that parties had never bargained ex
tensively about wages WPIX had proposed to change
the automatic step increase system to a merit system
based on employer evaluations The Union had expressed
its opposition to this new system In addition the Em
ployer s 2 percent wage increase offer was too low in
the view of the Union But no extended discussion of
wages had ever been taken place The uncontradicted
testimony shows that wage discussions had been deferred
by mutual agreement In fact it was not until 1 April
1987 that the Union asked for an 8 percent annual in
crease Even on 1 April no bargaining took place on
economic items Thus it is clear that no impasse could
have been reached on the subject of wages And without
an intensive discussion of wages, it would be difficult to
find that any bargaining impasse had been reached Al
though as Respondent points out , the Union was op
posed to a system of ment increases it did have such
provisions in other of its contracts Further there is no
evidence that the Union had refused to discuss the Com
pany s proposal for such a system
Although Respondents brief faults the Union for not
having accepted company proposals during the course of
bargaining it is clear that the Union could not be re
quired to compromise its own demands where the Em
ployer felt free to keep adding new proposals to the
table The Union would then be withdrawing or modify
mg its demands only to be faced with the later addition
of more company proposals In such an instance the
give and take of collective bargaining would be meaning
less because it would involve no mutual give and take
only the Union would be giving And the Union would
have no way of gauging what the Company s basic needs
were in order to offer a compromise in these areas be
cause , faced with an incomplete and ever changing set of
demands, the Union could never be sure what company
proposals were of paramount importance in reaching a
contract
At the end of the 1 April bargaining session the par
ties discussed when to negotiate further Marcus wanted
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to meet the next day, but when it was clear that Du
charme could not meet until 2 April Marcus declared
impasse and said WPIX would implement its last offer
Apparently Marcus was willing to negotiate further with
the Union but unwilling to wait 3 weeks to do so and
for that reason he declared an impasse This was in the
face of Ducharme s statement that the Union was pre
pared to meet and to move on its demands Respond
ent s brief intimates that the Union was not willing to
meet as often as the Company wished and that this un
willingness was the cause of an impasse being reached It
is true that the negotiations were protracted Some
delays in meeting were because the Company and the
Respondent changed their chief spokesmen in the negoti
ations One delay was due to a Union s spokesman s ill
ness Some delay was caused by the unavailability of the
mediator It would be useless and wasteful to recite all
the facts in detail The Union has not been charged with
refusing to bargain in the instant case The Union did not
refuse to meet with WPIX and it did not refuse to sched
ule new dates for negotiations nor did it abruptly cancel
meetings with no apparent justifications Marcus was
piqued that on I April Ducharme states that his next
available date was 21 April A delay of 3 weeks is not
unreasonable See Gulf States Mfgrs, 287 NLRB 26
(1987)
I conclude that no impasse existed in the collective
bargaining negotiations between Respondent and the
Union when Respondent declared impasse on 1 April
1987 See Powell Electrical Mfg Co, 287 NLRB 969
(1987) ( The parties had yet to bargain exhaustively over
core economic issues The relatively limited discussions
engaged in do not provide a basis for Respondents al
leged belief that further bargaining would ha% a been
futile ) Towne Plaza Hotel, 258 NLRB 69, 78 (1981)
(recent union concession and expression of willingness by
union to consider employers proposals show no impasse
existed) Henry Miller Spring Co 273 NLRB 472 (1984)
(no impasse based on continuous negotiations involving
concessions and agreements and a final lengthy session
during which some items were settled) SGS Control
Services 275 NLRB 984 (1985) (recent concessions and
statement that differences could be worked out show no
impasse was reached)
In addition to my conclusion that the parties had not
bargained to impasse on 1 April 1987, I note that I found
above that beginning 1 October 1986, and continuing
until after 1 April 1987, the Company admittedly was
not paying required wage step increases to employees
This unilateral change was an unfair labor practice and
an absence of good faith by WPIX, and thus no lawful
impasse could be reached while it persisted NLRB v
Katz 369 U S 736, 747 (1962) Respondent citing Eagle
Express Co 273 NLRB 501 (1984), argues that its failure
to abide by the contract did not contribute to a deadlock
between the parties Respondent seems to argue that the
Union did not care about the failure to pay step in
creases I note that the Union pressed its claim to the in
creases immediately and fully it asked Marcus about
them on 1 October 1986, and then it secured the Compa
ny's waiver of the intermediate grievance step and filed
for arbitration Eagle Express is not applicable to the case
at bar In Eagle Express the administrative law judge
found that an almost bankrupt employer which reduced
wages unilaterally in the face of the union s technique of
discussing the wage issue interminably rather than engag
ing in negotiations designed to reach agreement was
privileged later to declare impasse despite the earlier un
lawful unilateral action In adopting the judge s finding
in Eagle Express, the Board panel noted that the unilater
ally reduced wages were discussed in the negotiations
between the parties In the instant case, Respondent uni
laterally failed to pay the step increase before it present
ed its wage proposal to the Union and Respondent did
not engage in extensive bargaining on its wage proposal
or other economic items these were deferred by mutual
consent to some later stage of the negotiations No find
ing can here be made that the Unions dilatory tactics
prevented the parties from reaching agreement on wages
In Eagle Express, the Board distinguished Bedford Farm
ers Cooperative, 259 NLRB 1226 (1982), in which the uni
lateral action was taken before bargaining began and
where additional unilateral action was taken contrary to
a tentatively settled matter In the instant case, Respond
ent did not take emergency action in the face of an in
transigent union Here, Respondent took action without
prior negotiation and without subsequent discussion of
the subject The Union was faced with a fait accompli,
and the Company did not permit the bargaining to go on
long enough for an impasse on wages to take place
Thus I find that the unilateral changes put into effect
on 1 April 1987 were unlawful and in violation of Sec
tion 8(a)(1) and (5) of the Act
CONCLUSIONS OF LAW
1 The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
INCLUDED News editors assignment editors
senior writers news writers sports specialist senior
assignment desk assistants, talent coordinators
graphic artists, assignment desk assistants graphics
assistants production assistants and telephone clerks
in the news department of WPIX TV
EXCLUDED All other employees in the News
Department of WPIX TV, including News Direc
tor Executive Producer, Managing Editor Produc
ers, Metropolitan Editor Graphics Director Busi
ness Manager, administrative assistant (confidential
secretary) all employees represented by other labor
organizations, guards, watchmen and supervisors as
defined in the Act
2 At all times material the Union has been the exclu
sive representative of all employees within the appropri
ate unit described above for purposes of collective bar
gaining within the meaning of Section 9(a) of the Act
3 By unilaterally implementing changes in terms and
conditions of employment from 9 October 1986 and
again from 1 April 1987, at which time no bargaining im
passe existed Respondent refused to bargain in violation
of Section 8(a)(5) and (1) of the Act
WPIX INC 19
4 Respondent did not engage in unfair labor practices
other than those found here
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act I shall recommend that it be required to
cease and desist therefrom and that it take certain affirm
ative action necessary to effectuate the policies of the
Act
Respondent having unilaterally implemented its last
offer when it unlawfully declared impasse, it must make
the employees whole for loss of earnings and other bene
fits from 1 April 1987 Backpay shall be computed in a
manner consistent with Ogle Protection Service, 183
NLRB 682 (1970), enfd 44 F 2d 502 (6th Cir 1971),
with interest as prescribed in New Horizons for the Re
Larded 283 NLRB 1173 (1987) No backpay remedy is
required for the failure to pay step increases from Octo
ber 1986, as the parties have stipulated that these were
paid shortly after 2 April 1987
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edio
ORDER
The Respondent, WPIX, Inc, New York, New York
its officers , agents, successors , and assigns, shall
1 Cease and desist
(a) Refusing to bargain with the Union, by unilaterally
implementing changes in terms and conditions of em
ployment, in the absence of a bargaining impasse of its
employees in the appropriate unit described above
(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
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Make all employees whole for any losses they may
have suffered as a result of Respondent's unlawful unilat
eral changes in the terms and conditions of employment
as of 1 April 1987 in the manner set forth in the remedy
section of the decision
(b) On request from the Union, revoke any unilateral
changes in wages or other conditions of employment and
reinstate the terms and conditions of employment that
obtained before the unilateral changes 1 April 1987, pro
vided that nothing shall be construed as requiring recis
sion of any wage or benefit increase heretofore granted
to unit employees
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) On request, bargain collectively with the Union as
the exclusive representative of all employees in the ap
propriate unit described with respect to rates of pay,
wages, hours, and other terms and conditions of employ
ment, and, if an understanding is reached, embody such
understanding in a signed agreement
(e) Post at its facility copies of the attached notice
marked Appendix 11 Copies of the notice, on forms
provided by the Regional Director for Region 2, after
being signed by the Respondents authorized representa
tive, 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 materi
al
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint is dis
missed insofar as it alleges violations of the Act not spe
cifically found
10 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
i i 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 Nation
al 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