Pegasus v. NLRB

• Court: Court of Appeals for the First Circuit
• Decided: April 22, 1996
• Docket: 95-1966
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-1966



                       PEGASUS BROADCASTING OF SAN JUAN, INC.,



                                     Petitioner,



                                          v.



                           NATIONAL LABOR RELATIONS BOARD,



                                     Respondent.



                                 ____________________



                UNION DE PERIODISTAS Y ARTES GRAFICAS Y RAMAS ANEXAS,

                     AFFILIATED TO THE NEWSPAPER GUILD, AFL-CIO,



                                     Intervenor.

                                 ____________________



                     ON PETITION FOR REVIEW AND CROSS-APPLICATION

                          FOR ENFORCEMENT OF AN ORDER OF THE

                            NATIONAL LABOR RELATIONS BOARD

                                 ____________________



                                        Before



                                 Stahl, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Lynch, Circuit Judge.
                                         _____________



                                 ____________________



            Radames A. Torruella with whom McConnell  Valdes was on brief  for
            ____________________           _________________

        petitioner.

            David  A.  Fleischer, Senior  Attorney,  with  whom  Frederick  L.
            ____________________                                 _____________

        Feinstein,  General Counsel,  Linda Sher,  Associate  General Counsel,
        _________                     __________

        Aileen A.  Armstrong, Deputy  Associate General Counsel,  and National
        ____________________                                          ________

        Labor Relations Board were on brief for respondent.
        _____________________

            Ginoris Vizcarra  De Lopez-Lay and Lopez-Lay  Vizcarra & Porro  on
            ______________________________     ___________________________

        brief for intervenor.

                                 ____________________



                                    April 22, 1996

                                 ____________________



ALDRICH, Senior Circuit Judge.   This is a petition
                               ____________________



            to  review an  order of  the  National Labor  Relations Board



            brought  by Pegasus  Broadcasting  of San  Juan, Inc.,  d/b/a



            WAPA-TV  (the Company),  with the usual  cross-application by



            the  Board for  enforcement of  its order.   The  Company was



            charged with  violation of sections  8(a)(5) and  (1) of  the



            National Labor  Relations Act  (Act), 29  U.S.C.    158(a)(5)



            and (1), by withholding granting wage increases.   We enforce



            the order.



                                 The Unfair Practice
                                 ___________________



                      The Board found  that for 18 years the  Company had



            granted annual  merit-based salary increases to its reporters



            based  on individual  evaluation, effective  January of  each



            year.  In January of 1990-92 the individual raises had varied



            between 3%  and 8%.  In 1993  the Company, instead, granted a



            flat 1%.  The Board chose to regard this as  a continuance of



            the practice.  In  January of 1994, however, the  Company had



            begun  negotiations  for   its  first  collective  bargaining



            agreement  (CBA)   with  a   newly  certified  union,1   and,



            allegedly believing  that to  do otherwise would  violate the



            Act, it  unilaterally discontinued all merit  wage increases.



            It  did not  notify the  union, nor  did it  indicate it  was



                                
            ____________________



            1.  In  February of  1993 the  Union de  Periodistas y  Artes

            Graficas y Ramas Anexas, Local 225, The Newspaper Guild, AFL-

            CIO, CLC,  was certified to  represent all  of the  Company's

            reporters   and  reporter-anchor  persons   employed  at  its

            television facilities in Puerto Rico.



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merely  temporarily suspending the program during bargaining.



            In  May, 1994, during bargaining, the union filed the present



            charge.



                      If this  were a novel matter we  might have initial



            sympathy  with the  Company's view  that it  was between  the



            devil and the  deep blue.   It claims  to have suspended  its



            annual merit increases  because awarding discretionary  merit



            pay increases during bargaining seemed  to it to fall  within



            the prohibition  on making changes with  respect to mandatory



            bargaining  matters, in  violation of  section 8(a)(5).   See
                                                                      ___



            NLRB  v. Katz,  369 U.S.  736, 745-46  (1962).   Indeed, with
            ____     ____



            unilateral  discretion, there  would seem  room  for improper



            maneuvering.   Id.  at 746-47.   However,  Katz distinguished
                           ___                         ____



            between  merit  increases that  are  part  of an  established



            practice of granting annual merit reviews, and those that are



            not,  id.  at  746, ruling  that  granting  the  latter is  a
                  __



            violation of the Act.   Id.  Here, the Board found  that even
                                    ___



            though the  amounts of  the increases were  discretionary, it



            was  abandonment of  the practice  itself that  was forbidden



            under the Act.   Pegasus Broadcasting of San Juan,  Inc., 317
                             _______________________________________



            N.L.R.B. No. 165 (July 20, 1995).



                      The record adequately supports the Board's finding,



            and we have no reason to disagree with it.  Rather, we are in



            full accord with the recent similar case of Daily News of Los
                                                        _________________



            Angeles  v. NLRB, 73 F.3d 406, 410  (D.C. Cir. 1996).  See 29
            _______     ____                                       ___


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U.S.C.      158(a)(5) and  (d); Katz,  369  U.S. at  743 (any
                                            ____



            unilateral  change  to  a  mandatory  subject  of  bargaining



            violates the  Act, despite good  faith).  We  have previously



            indicated  that a perception of  the law such  as the Company



            claims  to  have  had  is  incorrect.    See  General  Motors
                                                     ___  _______________



            Acceptance  Corp. v. NLRB, 476 F.2d 850, 854 (1st Cir. 1973).
            _________________    ____



            The  Company  could have  avoided  its  alleged conundrum  by



            freely  offering  January  1,  1994 merit  increases  at  the



            bargaining  table,  rather   than  taking  unilateral  action



            without  notice to the union.   See generally  Daily News, 73
                                            ___ _________  __________



            F.3d 406.2  See also Eastern  Maine Medical Ctr. v. NLRB, 658
                        ___ ____ ___________________________    ____



            F.2d 1, 8-9 (1st Cir. 1981) (withholding wage increase).



                                      The Remedy
                                      __________



                      Pursuant to its authority under 29 U.S.C.   160(c),



            the  Board  ordered  a  multi-faceted  remedy  directing  the



            Company   to,  inter   alia,  (1)   cease  and   desist  from
                           ____________



            unilaterally   withholding  the  merit   wage  increases  and



            "interfering,  restraining or  coercing  employees" in  their



            exercise of rights  guaranteed by section  7 of the  National



            Labor  Relations Act, (2)  make whole each  employee "for any



            loss of  earnings suffered because of  [the Company]'s having
                                
            ____________________



            2.  We note  that Daily  News covers  individual raises.   73
                              ___________
            withheld such increase," with interest, to be computed during

            F.3d at  413.   For  raises  across the  board,  see NLRB  v.
                                                             ___ ____

            Blevins Popcorn Co., 659 F.2d 1173, 1189 (D.C. Cir. 1981).
            ___________________
            "the  compliance stage  of  this proceeding,"3  and (3)  post



            3.  Such a  bifurcated procedure is  common and has  met with

            approval.  See, e.g., Holyoke Visiting Nurses Ass'n. v. NLRB,
                       ___  ____  ______________________________    ____

            11 F.3d 302,  308 (1st Cir. 1993).  See  also NLRB v. Rutter-
                                                ___  ____ ____    _______

            Rex  Mfg.  Co.,  396 U.S.  258,  260  (1969);  NLRB v.  Deena
            ______________                                 ____     _____

            Artware, 361 U.S. 398, 411 (1960).
            _______



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notice  of   the  violation  at  its   facilities.    Pegasus
                                                                  _______



            Broadcasting,  317 N.L.R.B.  No. 165,  slip  op. at  *1, 2-3.
            ____________



            This is, presumptively, appropriate.   The Supreme Court "has



            repeatedly interpreted [  160(c)] as vesting in the Board the



            primary   responsibility  and  broad   discretion  to  devise



            remedies  that effectuate  the policies  of the  Act, subject



            only  to limited judicial review,"  in which courts of appeal



            "should not substitute their judgment  for that of the  Board



            in determining how best  to undo the effects of  unfair labor



            practices."  Sure-Tan,  Inc. v.  NLRB, 467  U.S. 883,  898-99
                         _______________     ____



            (1984).  A  Board-ordered remedy "should stand unless  it can



            be shown that [it] is a patent attempt to  achieve ends other



            than  those  which  can  fairly  be  said  to  effectuate the



            policies of the Act."    Virginia Elec. & Power Co.  v. NLRB,
                                     __________________________     ____



            319 U.S. 533, 540 (1943).



                      Put briefly,  it  is  the Board  --  and  union  --



            position that,  the Company having committed  an unfair labor



            practice by unilaterally  cancelling the merit  wage increase



            program in January 1994, it is now for the Board to determine



            the consequences, if any.  The Company objects, first, on the



            ground  that  the  backpay  order  transgressed  the  Board's



            authority, because the raises were always discretionary as to



            amount  and, as  such, not  amenable to  Board determination.



            This thought has been sufficiently answered by the Daily News
                                                               __________


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court.   73 F.3d at  415.  More interesting  is the Company's



            next suggestion, that the wage question is now moot.



                      The Company and the union completed bargaining  and



            entered into  a CBA, effective September 22,  1995, that sets



            wages retroactive  to January 1,  1994.  The  Company asserts



            that  the CBA  contains a  so-called zipper  clause providing



            that  it   comprises  "the   complete  agreement   among  the



            parties."4   In this  circumstance the Company  would have us



            say that the Board's ordered remedy, insofar as it relates to



            lost wages from  January 1994 plus  interest, has been  taken



            care of  by the CBA, rendering the order moot or, at the very



            least, obviating  the need  for further backpay  proceedings.



            Further proceedings  would necessarily  involve the  Board in



            impermissibly  interfering with  the bargaining  process, and



            altering the terms  of the CBA.   See NLRB  v. American  Ins.
                                              ___ ____     ______________



            Co.,  343 U.S. 395, 404 (1952); NLRB v. Insurance Agents, 361
            ___                             ____    ________________



            U.S. 477, 487 (1960) (section 8(d) "prevent[s] the Board from



            controlling   the  settling   of  the  terms   of  collective



            bargaining agreements").  See  also H.K. Porter Co.  v. NLRB,
                                      ___  ____ _______________     ____



            397 U.S. 99, 103-04 (1970).  The Board's short answer is that



                                
            ____________________



            4.  The clause, submitted after oral argument upon request of

            the panel, reads, in full:



                      A.  This  agreement includes the complete

                      agreement  among  the   parties.     This

                      agreement cannot be modified, expanded or

                      amended except by  a written  stipulation

                      properly   signed   by   the   authorized

                      representative of the parties.



                                         -6-



the issue of whether or not the CBA moots the order is one of



            fact, concerning events subsequent  to the Board's order, and



            is not presently before us.



                      We  agree with  the Board.   The CBA  succeeded the



            order, and was not, and never has been, presented to it.  The



            terms  are   not  of  record.     Board  counsel's  courteous



            affirmative answer  to our  question about the  zipper clause



            was accompanied by a statement that his answer could not bind



            the Board.  Nor can we take, of our own accord, the Company's



            submission of the CBA.   We, particularly, know that  we lack



            the same broad right or supervisory power over the Board that



            we might have over a district  court on new matter.  Cf. NLRB
                                                                 ___ ____



            v. Ochoa Fertilizer Corp., 368 U.S. 318, 322 (1962).  The Act
               ______________________



            unequivocally requires that new matter go through the Board:



                      If either party shall apply  to the court

                      for leave to  adduce additional  evidence

                      . . . the court may order such additional

                      evidence  to be  taken before  the Board,

                      its member,  agent, or agency,  and to be

                      made a part of the record.  The Board may

                      modify its findings  as to the  facts, or

                      make new findings by reason of additional

                      evidence so taken and filed, and it shall

                      file such modified or new findings, which

                      findings  with  respect  to questions  of

                      fact if supported by substantial evidence

                      on the record considered as a whole shall

                      be   conclusive,   and  shall   file  its

                      recommendations,   if    any,   for   the

                      modification  or  setting  aside  of  its

                      original order.



            29 U.S.C   160(e).  See also Ochoa, 368 U.S. at 322.
                                ___ ____ _____


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Amicable  adjustment  by   parties  is  of   course



            permissible, and encouraged.   See 29 C.F.R.     101.9(a) and
                                           ___



            101.16.   However, "parties" include  representatives of  the



            Board, and  formal settlement is contingent  upon the General



            Counsel's approval.  Id.     101.9, 101.13, 101.16, 102.52 et
                                 ___                                   __



            seq.  See NLRB v. Tennessee Packers,  Inc., 390 F.2d 787, 788
            ____  ___ ____    ________________________



            (6th Cir. 1968)  (collecting cases).  Here, neither the union



            nor  the  Board agrees  with the  Company  that the  issue of



            compliance  with the  backpay order  has been settled  by the



            CBA.    This  court  is  without  jurisdiction  to  entertain



            arguments  not previously presented to the Board.  See Woelke
                                                               ___ ______



            & Romero Framing, Inc.  v. NLRB, 456 U.S. 645,  665-66 (1982)
            ______________________     ____



            (court of  appeals without jurisdiction to  consider question



            that   could   have   been    presented   in   petition   for



            reconsideration or rehearing before the Board).  If  there is



            any  question the proper course is for the Company to present



            its proofs  regarding amounts in  further proceedings  before



            the  Board.  29 U.S.C.   160(e).  See, e.g., Holyoke Visiting
                                              ___  ____  ________________



            Nurses, 11 F.3d  at 308;  Fox Painting Co.  v. NLRB, 16  F.3d
            ______                    ________________     ____



            115, 116 (6th Cir. 1994).  29 C.F.R.    102.52 et seq.
                                                           _______



                      The Company  nonetheless presses that the  Act bars



            the Board in this  particular case from conducting compliance



            proceedings, or otherwise implementing the order,  because it



            has  now fully bargained to agreement with the union over the



            very amounts the  Board would address.  In other  words, as a


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matter of law, any compliance order would operate to alter or



            impermissibly supplement  the terms of the  CBA, in violation



            of   8(d) of the Act.  H.K. Porter, 397 U.S. at 103-04.  This
                                   ___________



            is simply not so.  The Board, in effect, found the bargaining



            had not  been on  the now universally-demanded  level playing



            field.   More  exactly, having  unfairly lacked  the expected



            benefits  of  the   unilaterally  cancelled  merit   increase



            program, the union was  required to start behind the  line of



            scrimmage.   As observed in  John Zink Co.,  196 N.L.R.B. 942
                                         _____________



            (1972),  1972 WL 12497 at  *1, the employer  is "enjoying the



            fruits  of  his  unfair  labor practices  and  gaining  undue



            advantage at the bargaining table  when he bargains about the



            benefits which he has already [illegally] discontinued."



                      The Board's order means that the bargaining was not



            free, a  matter of public, as well  as private, concern.  Cf.
                                                                      ___



            Phelps  Dodge Corp.  v. NLRB,  313 U.S.  177,  192-95 (1941).
            ___________________     ____



            What were the  consequences of  the order?   Did the  Company



            change its behavior, admit,  for example, merit increases for



            January  1, 1994?  We, of course,  make no suggestion, but it



            is  for  the  Board, not  the  Company,  to  say whether  the



            ultimate bargaining in fact  accomplished the entirety of the



            Board's purpose.



                      The  Company's petition is  denied, and the Board's
                                                  ______



            application for enforcement is granted.
                                           _______


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