Ithaca Journal-News, Inc., The

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Ithaca Journal-News, Inc. and Ithaca Typo- No further wage, benefits or working condi- graphical Union No. 379.' Case 3-CA-9692 tion changes can be made in the newsroom while you are trying to convince newsroom November 27, 1981 employees to join the Typographical Union DECISION AND ORDER unless these changes were announced prior to receipt of your letter. BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN* * * * * On March 27, 1981, Administrative Law Judge On March 27, 1981, Administrative Law Judge However, if, after learning all the facts, they George Norman issued the attached Decision in decide to be represented by your Union, I be- this proceeding. Thereafter, Respondent filed ex- lieve you are also correct in stating that ceptions and a supporting brief, and the General working conditions cannot wages, benefits and working conditions cannot Counsel filed an answering brief,.be changed until an agreement is reached. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- The election was held on August 8, 1979, and tional Labor Relations Board has delegated its au- the Union was subsequently certified as the exclu- thority in this proceeding to a three-member panel. sive representative of the newsroom employees. The Board has considered the record and the at- Negotiations for a collective-bargaining contract tached Decision in light of the exceptions and began August 1979 and continued until September briefs and has decided to affirm the rulings, find- 1980, culminating in tentative agreement, which ings, 2 and conclusions of the Administrative Law had not been ratified as of the date of the hearing, Judge only to the extent consistent herewith. October 27, 1980. Merit increases, which were not We agree with the Administrative Law Judge retroactive, were granted to newsroom employees that Respondent violated Section 8(a)(l) of the Act in September 1980 pursuant to this agreement. by telling two employees on separate occasions During negotiations, on November 15, 1979, the that they would receive wage increases if the Union sent Respondent a letter saying it had no ob- Union were decertified. Contrary to the Adminis- jections to Respondent's effecting "scheduled pay trative Law Judge, however, we conclude that Re- increases" in the bargaining unit. Respondent re- spondent did not violate Section 8(a)(3) and (1) plied in a subsequent letter that it did not know when, during collective-bargaining negotiations what the Union meant by such term, inasmuch as with the Union, (1) it discontinued merit increases salaries and other terms and conditions of employ- for unit employees, and (2) it did not grant them ment were then being negotiated. The Union re- the same increases in their automobile mileage al- sponded on December 19 that its position was lowance that it granted to employees in its adver- based upon "past practice," and it listed 16 employ- tising department. 3 ees who it believed were entitled to pay increases. On June 1, 1979, the Union filed a petition to Finally, on January 9, 1980, Respondent sent a represent Respondent's newsroom employees. On letter telling the Union that salary increases for the same date, it sent Respondent a letter stating in unit employees had been given on a "discretionary pertinent part that any attempt by Respondent "to basis" and, like all other discretionary terms of em- change the status quo with regard to past practices ployment, were subject to negotiation. This letter of wages, hours and working conditions during the further stated that increases for probationary em- period of our organizing efforts and subsequent ployees, since they were given automatically, were contract negotiations is in violation of Section 7 an exception.4 and 8 of the National Labor Relations Act...." The Administrative Law Judge found that Re- Respondent replied, in a letter dated June 7, 1979, spondent had a longstanding policy of regularly that its understanding of the Union's statement was evaluating the performance of newsroom employ- as follows: ees and granting them annual wage increases. He relied on the testimony of witnesses as to what 'The name of the Charging Party (herein called the Union) appears as they were told when hired and upon payroll re- amended at the hearing. 2 Respondent has excepted to certain credibility findings made by the cords showing the dates and amounts of increases Administrative Law Judge. It is the Board's established policy not to received by each employee, and he concluded that overrule an administrative law judge's resolutions with respect to credi- Respondent's discontinuance of this practice was bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have The evidence shows that, almost without exception, Respondent has carefully examined the record and find no basis for reversing his findings. given probationary employees wage increases after they have successfully I Respondent reimbursed employees who used their own automobiles completed approximately 6 months of work. Respondent continued this in connection with their work on a per-mile basis. practice during negotiations, and these actions are not at issue. 259 NLRB No. 60 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Ithaca Journal-News, Inc. and Ithaca Typo- No further wage, benefits or working condi- graphical Union No. 379.' Case 3-CA-9692 tion changes can be made in the newsroom while you are trying to convince newsroom November 27, 1981 employees to join the Typographical Union DECISION AND ORDER unless these changes were announced prior to receipt of your letter. BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On March 27, 1981, Administrative Law Judge However, if, after learning all the facts, they George Norman issued the attached Decision in decide to be represented by your Union, I be- this proceeding. Thereafter, Respondent filed ex- lieve you are also correct in stating that ceptions and a supporting brief, and the General wages, benefits and working conditions cannot Counsel filed an answering brief,.be changed until an agreement is reached. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- The election was held on August 8, 1979, and tional Labor Relations Board has delegated its au- the Union was subsequently certified as the exclu- thority in this proceeding to a three-member panel. sive representative of the newsroom employees. The Board has considered the record and the at- Negotiations for a collective-bargaining contract tached Decision in light of the exceptions and began August 1979 and continued until September briefs and has decided to affirm the rulings, find- 1980, culminating in tentative agreement, which ings, 2 and conclusions of the Administrative Law had not been ratified as of the date of the hearing, Judge only to the extent consistent herewith. October 27, 1980. Merit increases, which were not We agree with the Administrative Law Judge retroactive, were granted to newsroom employees that Respondent violated Section 8(a)(l) of the Act in September 1980 pursuant to this agreement. by telling two employees on separate occasions During negotiations, on November 15, 1979, the that they would receive wage increases if the Union sent Respondent a letter saying it had no ob- Union were decertified. Contrary to the Adminis- jections to Respondent's effecting "scheduled pay trative Law Judge, however, we conclude that Re- increases" in the bargaining unit. Respondent re- spondent did not violate Section 8(a)(3) and (1) plied in a subsequent letter that it did not know when, during collective-bargaining negotiations what the Union meant by such term, inasmuch as with the Union, (1) it discontinued merit increases salaries and other terms and conditions of employ- for unit employees, and (2) it did not grant them ment were then being negotiated. The Union re- the same increases in their automobile mileage al- sponded on December 19 that its position was lowance that it granted to employees in its adver- based upon "past practice," and it listed 16 employ- tising department. 3'ees who it believed were entitled to pay increases. On June 1, 1979, the Union filed a petition to Finally, on January 9, 1980, Respondent sent a represent Respondent's newsroom employees. On letter telling the Union that salary increases for the same date, it sent Respondent a letter stating in unit employees had been given on a "discretionary pertinent part that any attempt by Respondent "to basis" and, like all other discretionary terms of em- change the status quo with regard to past practices ployment, were subject to negotiation. This letter of wages, hours and working conditions during the further stated that increases for probationary em- period of our organizing efforts and subsequent ployees, since they were given automatically, were contract negotiations is in violation of Section 7 an exception. 4 and 8 of the National Labor Relations Act. . ." The Administrative Law Judge found that Re- Respondent replied, in a letter dated June 7, 1979, spondent had a longstanding policy of regularly that its understanding of the Union's statement was evaluating the performance of newsroom employ- as follows: ees and granting them annual wage increases. He relied on the testimony of witnesses as to what 'The name of the Charging Party (herein called the Union) appears as they were told when hired and Upon payroll re- amended at the hearing. od hwn h ae adaonso nrae ' R esponde n t h as excepted to certain credibility findings made by the cords showing the dates and amounts of increases Administrative Law Judge. It is the Board's established policy not to received by each employee, and he concluded that overrule an administrative law judge's resolutions with respect to credi- Respondent's discontinuance of this practice was bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have The evidence shows that, almost without exception, Respondent has carefully examined the record and find no basis for reversing his findings, given probationary employees wage increases after they have successfully I Respondent reimbursed employees who used their own automobiles completed approximately 6 months of work. Respondent continued this in connection with their work on a per-mile basis. practice during negotiations, and these actions are not at issue, 259 NLRB No. 60 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Ithaca Journal-News, Inc. and Ithaca Typo- No further wage, benefits or working condi- graphical Union No. 379.' Case 3-CA-9692 tion changes can be made in the newsroom while you are trying to convince newsroom November 27, 1981 employees to join the Typographical Union DECISION AND ORDER unless these changes were announced prior to receipt of your letter. BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On March 27, 1981, Administrative Law Judge However, if, after learning all the facts, they George Norman issued the attached Decision in decide to be represented by your Union, I be- this proceeding. Thereafter, Respondent filed ex- lieve you are also correct in stating that ceptions and a supporting brief, and the General wages, benefits and working conditions cannot Counsel filed an answering brief,.be changed until an agreement is reached. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- The election was held on August 8, 1979, and tional Labor Relations Board has delegated its au- the Union was subsequently certified as the exclu- thority in this proceeding to a three-member panel. sive representative of the newsroom employees. The Board has considered the record and the at- Negotiations for a collective-bargaining contract tached Decision in light of the exceptions and began August 1979 and continued until September briefs and has decided to affirm the rulings, find- 1980, culminating in tentative agreement, which ings, 2 and conclusions of the Administrative Law had not been ratified as of the date of the hearing, Judge only to the extent consistent herewith. October 27, 1980. Merit increases, which were not We agree with the Administrative Law Judge retroactive, were granted to newsroom employees that Respondent violated Section 8(a)(l) of the Act in September 1980 pursuant to this agreement. by telling two employees on separate occasions During negotiations, on November 15, 1979, the that they would receive wage increases if the Union sent Respondent a letter saying it had no ob- Union were decertified. Contrary to the Adminis- jections to Respondent's effecting "scheduled pay trative Law Judge, however, we conclude that Re- increases" in the bargaining unit. Respondent re- spondent did not violate Section 8(a)(3) and (1) plied in a subsequent letter that it did not know when, during collective-bargaining negotiations what the Union meant by such term, inasmuch as with the Union, (1) it discontinued merit increases salaries and other terms and conditions of employ- for unit employees, and (2) it did not grant them ment were then being negotiated. The Union re- the same increases in their automobile mileage al- sponded on December 19 that its position was lowance that it granted to employees in its adver- based upon "past practice," and it listed 16 employ- tising department. 3'ees who it believed were entitled to pay increases. On June 1, 1979, the Union filed a petition to Finally, on January 9, 1980, Respondent sent a represent Respondent's newsroom employees. On letter telling the Union that salary increases for the same date, it sent Respondent a letter stating in unit employees had been given on a "discretionary pertinent part that any attempt by Respondent "to basis" and, like all other discretionary terms of em- change the status quo with regard to past practices ployment, were subject to negotiation. This letter of wages, hours and working conditions during the further stated that increases for probationary em- period of our organizing efforts and subsequent ployees, since they were given automatically, were contract negotiations is in violation of Section 7 an exception. 4 and 8 of the National Labor Relations Act. . ." The Administrative Law Judge found that Re- Respondent replied, in a letter dated June 7, 1979, spondent had a longstanding policy of regularly that its understanding of the Union's statement was evaluating the performance of newsroom employ- as follows: ees and granting them annual wage increases. He relied on the testimony of witnesses as to what 'The name of the Charging Party (herein called the Union) appears as they were told when hired and Upon payroll re- amended at the hearing. od hwn h ae adaonso nrae ' R esponde n t h as excepted to certain credibility findings made by the cords showing the dates and amounts of increases Administrative Law Judge. It is the Board's established policy not to received by each employee, and he concluded that overrule an administrative law judge's resolutions with respect to credi- Respondent's discontinuance of this practice was bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have The evidence shows that, almost without exception, Respondent has carefully examined the record and find no basis for reversing his findings, given probationary employees wage increases after they have successfully I Respondent reimbursed employees who used their own automobiles completed approximately 6 months of work. Respondent continued this in connection with their work on a per-mile basis. practice during negotiations, and these actions are not at issue, 259 NLRB No. 60 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Ithaca Journal-News, Inc. and Ithaca Typo- No further wage, benefits or working condi- graphical Union No. 379.' Case 3-CA-9692 tion changes can be made in the newsroom while you are trying to convince newsroom November 27, 1981 employees to join the Typographical Union DECISION AND ORDER unless these changes were announced prior to receipt of your letter. BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On March 27, 1981, Administrative Law Judge However, if, after learning all the facts, they George Norman issued the attached Decision in decide to be represented by your Union, I be- this proceeding. Thereafter, Respondent filed ex- lieve you are also correct in stating that ceptions and a supporting brief, and the General wages, benefits and working conditions cannot Counsel filed an answering brief,.be changed until an agreement is reached. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- The election was held on August 8, 1979, and tional Labor Relations Board has delegated its au- the Union was subsequently certified as the exclu- thority in this proceeding to a three-member panel. sive representative of the newsroom employees. The Board has considered the record and the at- Negotiations for a collective-bargaining contract tached Decision in light of the exceptions and began August 1979 and continued until September briefs and has decided to affirm the rulings, find- 1980, culminating in tentative agreement, which ings, 2 and conclusions of the Administrative Law had not been ratified as of the date of the hearing, Judge only to the extent consistent herewith. October 27, 1980. Merit increases, which were not We agree with the Administrative Law Judge retroactive, were granted to newsroom employees that Respondent violated Section 8(a)(l) of the Act in September 1980 pursuant to this agreement. by telling two employees on separate occasions During negotiations, on November 15, 1979, the that they would receive wage increases if the Union sent Respondent a letter saying it had no ob- Union were decertified. Contrary to the Adminis- jections to Respondent's effecting "scheduled pay trative Law Judge, however, we conclude that Re- increases" in the bargaining unit. Respondent re- spondent did not violate Section 8(a)(3) and (1) plied in a subsequent letter that it did not know when, during collective-bargaining negotiations what the Union meant by such term, inasmuch as with the Union, (1) it discontinued merit increases salaries and other terms and conditions of employ- for unit employees, and (2) it did not grant them ment were then being negotiated. The Union re- the same increases in their automobile mileage al- sponded on December 19 that its position was lowance that it granted to employees in its adver- based upon "past practice," and it listed 16 employ- tising department. 3'ees who it believed were entitled to pay increases. On June 1, 1979, the Union filed a petition to Finally, on January 9, 1980, Respondent sent a represent Respondent's newsroom employees. On letter telling the Union that salary increases for the same date, it sent Respondent a letter stating in unit employees had been given on a "discretionary pertinent part that any attempt by Respondent "to basis" and, like all other discretionary terms of em- change the status quo with regard to past practices ployment, were subject to negotiation. This letter of wages, hours and working conditions during the further stated that increases for probationary em- period of our organizing efforts and subsequent ployees, since they were given automatically, were contract negotiations is in violation of Section 7 an exception. 4 and 8 of the National Labor Relations Act. . ." The Administrative Law Judge found that Re- Respondent replied, in a letter dated June 7, 1979, spondent had a longstanding policy of regularly that its understanding of the Union's statement was evaluating the performance of newsroom employ- as follows: ees and granting them annual wage increases. He relied on the testimony of witnesses as to what 'The name of the Charging Party (herein called the Union) appears as they were told when hired and Upon payroll re- amended at the hearing. od hwn h ae adaonso nrae ' R esponde n t h as excepted to certain credibility findings made by the cords showing the dates and amounts of increases Administrative Law Judge. It is the Board's established policy not to received by each employee, and he concluded that overrule an administrative law judge's resolutions with respect to credi- Respondent's discontinuance of this practice was bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have The evidence shows that, almost without exception, Respondent has carefully examined the record and find no basis for reversing his findings, given probationary employees wage increases after they have successfully I Respondent reimbursed employees who used their own automobiles completed approximately 6 months of work. Respondent continued this in connection with their work on a per-mile basis. practice during negotiations, and these actions are not at issue, 259 NLRB No. 60 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Ithaca Journal-News, Inc. and Ithaca Typo- No further wage, benefits or working condi- graphical Union No. 379.' Case 3-CA-9692 tion changes can be made in the newsroom while you are trying to convince newsroom November 27, 1981 employees to join the Typographical Union DECISION AND ORDER unless these changes were announced prior to receipt of your letter. BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On March 27, 1981, Administrative Law Judge However, if, after learning all the facts, they George Norman issued the attached Decision in decide to be represented by your Union, I be- this proceeding. Thereafter, Respondent filed ex- lieve you are also correct in stating that ceptions and a supporting brief, and the General wages, benefits and working conditions cannot Counsel filed an answering brief,.be changed until an agreement is reached. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- The election was held on August 8, 1979, and tional Labor Relations Board has delegated its au- the Union was subsequently certified as the exclu- thority in this proceeding to a three-member panel. sive representative of the newsroom employees. The Board has considered the record and the at- Negotiations for a collective-bargaining contract tached Decision in light of the exceptions and began August 1979 and continued until September briefs and has decided to affirm the rulings, find- 1980, culminating in tentative agreement, which ings, 2 and conclusions of the Administrative Law had not been ratified as of the date of the hearing, Judge only to the extent consistent herewith. October 27, 1980. Merit increases, which were not We agree with the Administrative Law Judge retroactive, were granted to newsroom employees that Respondent violated Section 8(a)(l) of the Act in September 1980 pursuant to this agreement. by telling two employees on separate occasions During negotiations, on November 15, 1979, the that they would receive wage increases if the Union sent Respondent a letter saying it had no ob- Union were decertified. Contrary to the Adminis- jections to Respondent's effecting "scheduled pay trative Law Judge, however, we conclude that Re- increases" in the bargaining unit. Respondent re- spondent did not violate Section 8(a)(3) and (1) plied in a subsequent letter that it did not know when, during collective-bargaining negotiations what the Union meant by such term, inasmuch as with the Union, (1) it discontinued merit increases salaries and other terms and conditions of employ- for unit employees, and (2) it did not grant them ment were then being negotiated. The Union re- the same increases in their automobile mileage al- sponded on December 19 that its position was lowance that it granted to employees in its adver- based upon "past practice," and it listed 16 employ- tising department. 3'ees who it believed were entitled to pay increases. On June 1, 1979, the Union filed a petition to Finally, on January 9, 1980, Respondent sent a represent Respondent's newsroom employees. On letter telling the Union that salary increases for the same date, it sent Respondent a letter stating in unit employees had been given on a "discretionary pertinent part that any attempt by Respondent "to basis" and, like all other discretionary terms of em- change the status quo with regard to past practices ployment, were subject to negotiation. This letter of wages, hours and working conditions during the further stated that increases for probationary em- period of our organizing efforts and subsequent ployees, since they were given automatically, were contract negotiations is in violation of Section 7 an exception. 4 and 8 of the National Labor Relations Act. . ." The Administrative Law Judge found that Re- Respondent replied, in a letter dated June 7, 1979, spondent had a longstanding policy of regularly that its understanding of the Union's statement was evaluating the performance of newsroom employ- as follows: ees and granting them annual wage increases. He relied on the testimony of witnesses as to what 'The name of the Charging Party (herein called the Union) appears as they were told when hired and Upon payroll re- amended at the hearing. od hwn h ae adaonso nrae ' R esponde n t h as excepted to certain credibility findings made by the cords showing the dates and amounts of increases Administrative Law Judge. It is the Board's established policy not to received by each employee, and he concluded that overrule an administrative law judge's resolutions with respect to credi- Respondent's discontinuance of this practice was bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have The evidence shows that, almost without exception, Respondent has carefully examined the record and find no basis for reversing his findings, given probationary employees wage increases after they have successfully I Respondent reimbursed employees who used their own automobiles completed approximately 6 months of work. Respondent continued this in connection with their work on a per-mile basis. practice during negotiations, and these actions are not at issue, 259 NLRB No. 60 THE ITHACA JOURNAL-NEWS, INC. 395 discriminatory. Prior to the appointment of Al any discussion. Employees who did not receive in- Greene as managing editor in mid-1978, Respond- creases were excluded not because they had failed ent apparently had a fairly regular practice of a review with objectve, articulable standards or, granting merit increases to employees in January indeed, because they had failed any review whatso- and June or July of the year. Greene, however, ever; they simply had not achieved the entirely modified this practice. 5 According to employee subjective standards of Greene or his predecessor. John Maines, Greene told him when he was hired The arbitrary manner in which Respondent dis- that he would receive a raise at the end of a 6- pensed merit increases is further shown by a month probationary period and would be consid- memorandum to Greene written by newsroom em- ered for a raise annually thereafter. However, ployees, just before the petition was filed, express- Carol Eisenberg testified that Greene told her she ing their frustration at the lack of regular merit in- would be reviewed 6 months after receiving her creases. probationary raise. The testimony of these wit- The circumstances herein are considerably differ- nesses is thus conflicting and does not, in itself, ent from those in General Motors Acceptance Corpo- clearly establish a policy of regular merit in- ration, 196 NLRB 137 (1972), enfd. 476 F.2d 850 creases.6 , i (Ist Cir. 1973), and other cases where the Board The practice under Greene has been even less regular and definite than these statements would in- has found a violaton in an employers unilateral dicate. In 1978, including the 5-month period discontinuance of a merit increase program.8 In before Greene became managing editor, of 13 em- eneral Motors Acceptance Corporation, the employ- ployees who ostensibly would be entitled to non- er instituted a wage freeze of its own accord when probationary raises, 10 received I increase and 3 probationary raises, 10 received 1 increase and 3 the union filed the petition therein, but it continued received no increases. In 1979, of 18 employees os- giving employees semiannual merit reviews, in tensibly eligible for nonprobationary raises, 2 em- May and November. Prior to the wage freeze, em- ployees received 2 increases, 9 received 1 increase, ployees who were rated "fair" or higher in the and 7 employees got no increase. 7 While most of merit reviews received raises, which were effected these increases in 1978 and 1979 were given in at different times during the year. In the 9 months June, in both years a significant proportion of them of the calendar year before the freeze, nearly all of was granted randomly in other months. The the eligible employees had received merit increases amounts of wage increases also did not follow any in approximately the same amount. discernible pattern. Based on a weekly salary, in- Whereas the employer in General Motors Accept- creases ranged from $10 to $20 and were apparent- ance Corporation exercised discretion only with re- ly unrelated to increases received either at the time spect to certain aspects of its merit increase pro- by comparably paid employees or in the past by gram, Respondent's granting of increases has been the particular employee. entirely discretionary. The timing and the amounts Both before and during Greene's tenure, Re- of raises, and the selection of employees to receive spondent did not conduct any formal or written them, have not been determined in any objective or evaluations of newsroom employees. It did not sys- consistent manner. Respondent did not regularly tematically review the performance of newsroom evaluate employees irrespective of whether they employees and grant raises to those who met a were to receive increases and thus did not continue minimum standard, nor did it rate them according periodically to review employees after the filing of to any criteria. Rather, as Greene expressed it, the petition without granting them increases. Thus, when an employee "sparkled," he or she got a it is impossible to conclude with any degree of cer- merit raise. Employees who were chosen for merit tainty when, and if, merit increases would have increases were so informed in brief, oral reviews or been given and which employees would have re- received the increases in their paychecks without ceived them. See The Great Atlantic & Pacific Tea Company, Inc., 192 NLRB 645 (1971). Requiring 5 Respondent did not, at all material times herein, provide any other Respondent during negotiations to continue giving type of wage increases, such as cost-of-living raises. 6 When advised by the Administrative Law Judge that her evidence on raises to employees selected by it, at times and in this point was becoming cumulative, counsel for the General Counsel amounts unrestricted by a clearly established pat- made an offer of proof as to the testimony of other witnesses concerning statements to them when they were hired. Assuming that the General Counsel's representation of their testimony is correct, however, we note that their testimony would show the same disparity between being re- ' E.g., Allied Products Corporation. Richard Brothers Division, 218 viewed at 6-month or at I-year intervals. NLRB 1246 (1975), enfd. in pertinent part 548 F.2d 644 (6th Cir. 1977): 7 Prior to the merit increases given in September 1980 pursuant to the compare Oneita Knitting Mills. Inc., 205 NLRB 500, fn. 1 (1973), with parties' tentative agreement, the last such increases were given in June Southeastern Michigan Gas Company, 198 NLRB 1221 (1972), enfd. 485 1979. The decision to grant these increases was made before the petition F.2d 1239 (6th Cir. 1973). See, generally. Charles Manufacturing Compa- was filed on June I, 1979. ny, 245 NLRB 39 (1979). THE ITHACA JOURNAL-NEWS, INC. 395 discriminatory. Prior to the appointment of Al any discussion. Employees who did not receive in- Greene as managing editor in mid-1978, Respond- creases were excluded not because they had failed ent apparently had a fairly regular practice of a review with objectve, articulable standards or, granting merit increases to employees in January indeed, because they had failed any review whatso- and June or July of the year. Greene, however, ever; they simply had not achieved the entirely modified this practice.' According to employee subjective standards of Greene or his predecessor. John Maines, Greene told him when he was hired The arbitrary manner in which Respondent dis- that he would receive a raise at the end of a 6- pensed merit increases is further shown by a month probationary period and would be consid- memorandum to Greene written by newsroom em- ered for a raise annually thereafter. However, ployees, just before the petition was filed, express- Carol Eisenberg testified that Greene told her she ing their frustration at the lack of regular merit in- would be reviewed 6 months after receiving her creases. probationary raise. The testimony of these wit- The circumstances herein are considerably differ- nesses is thus conflicting and does not, in itself, ent from those in General Motors Acceptance Corpo- clearly establish a policy of regular merit in- ration, 196 NLRB 137 (1972), enfd. 476 F.2d 850 creases. , ^ i-i (Ist Cir. 1973), and other cases where the Board The practice under Greene has been even less h f a 1 in a e unile regular and definite than these statements would in- h as fo u n d a v n o la t l o n a mri irplears s unilateral dicate. In 1978, including the 5-month period Gdiscontinuance of a merit increase program.n In before Greene became managing editor, of 13 em- G e n er a l M o t o rs a ceptance Corporation, the employ- ployees who ostensibly would be entitled to non- te r uistrtuted a wage pinh nb of its own accord when probationary raises, 10 received 1 increase and 3 the gv on eled the petition therein, but it continued received no increases. In 1979, of 18 employees os- '"S employees semiannual merit reviews, in tensibly eligible for nonprobationary raises, 2 em- May a n d November. Prior to the wage freeze, em- ployees received 2 increases, 9 received 1 increase, ployees w h o w e r e rated "fair" or higher in the and 7 employees got no increase.' While most of m e r it reviews received raises, which were effected these increases in 1978 and 1979 were given in at different times during the year. In the 9 months June, in both years a significant proportion of them o f th e calendar year before the freeze, nearly all of was granted randomly in other months. The the eligible employees had received merit increases amounts of wage increases also did not follow any in approximately the same amount. discernible pattern. Based on a weekly salary, in- Whereas the employer in General Motors Accept- creases ranged from $10 to $20 and were apparent- ance Corporation exercised discretion only with re- ly unrelated to increases received either at the time spect to certain aspects of its merit increase pro- by comparably paid employees or in the past by gram, Respondent's granting of increases has been the particular employee. entirely discretionary. The timing and the amounts Both before and during Greene's tenure, Re- of raises, and the selection of employees to receive spondent did not conduct any formal or written them, have not been determined in any objective or evaluations of newsroom employees. It did not sys- consistent manner. Respondent did not regularly tematically review the performance of newsroom evaluate employees irrespective of whether they employees and grant raises to those who met a were to receive increases and thus did not continue minimum standard, nor did it rate them according periodically to review employees after the filing of to any criteria. Rather, as Greene expressed it, the petition without granting them increases. Thus, when an employee "sparkled," he or she got a it is impossible to conclude with any degree of cer- merit raise. Employees who were chosen for merit tainty when, and if, merit increases would have increases were so informed in brief, oral reviews or been given and which employees would have re- received the increases in their paychecks without ceived them. See The Great Atlantic & Pacific Tea Company, Inc., 192 NLRB 645 (1971). Requiring s Respondent did not, at all material times herein, provide any other Respondent during negotiations to continue giving type of wage increases, such as cost-of-living raises. 6 When advised by the Administrative Law Judge that her evidence on raises tO employees Selected by It, at times and in this point was becoming cumulative, counsel for the General Counsel amounts unrestricted by a clearly established pat- made an offer of proof as to the testimony of other witnesses concerning tern, is tantamount to licensing it to grant them statements to them when they were hired. Assuming that the General Counsel's representation of their testimony is correct, however, we note that their testimony would show the same disparity between being re- E.g., Allied Products Corporation. Richard Brothers Division, 218 viewed at 6-month or at 1-year intervals. NLRB 1246 (1975), enfd. in pertinent part 548 F.2d 644 (6th Cir. 1977); 7 Prior to the merit increases given in September 1980 pursuant to the compare Oneita Knitting Millsk Inc., 205 NLRB 500. fn. 1 (1973), with parties' tentative agreement, the last such increases were given in June Southeastern Michigan Gas Company, 198 NLRB 1221 (1972), enfd. 485 1979. The decision to grant these increases was made before the petition F.2d 1239 (6th Cir. 1973). See, generally. Charles Manufacturing Compa- was filed on June I, 1979. ny, 245 NLRB 39 (1979). THE ITHACA JOURNAL-NEWS, INC. 395 discriminatory. Prior to the appointment of Al any discussion. Employees who did not receive in- Greene as managing editor in mid-1978, Respond- creases were excluded not because they had failed ent apparently had a fairly regular practice of a review with objectve, articulable standards or, granting merit increases to employees in January indeed, because they had failed any review whatso- and June or July of the year. Greene, however, ever; they simply had not achieved the entirely modified this practice.' According to employee subjective standards of Greene or his predecessor. John Maines, Greene told him when he was hired The arbitrary manner in which Respondent dis- that he would receive a raise at the end of a 6- pensed merit increases is further shown by a month probationary period and would be consid- memorandum to Greene written by newsroom em- ered for a raise annually thereafter. However, ployees, just before the petition was filed, express- Carol Eisenberg testified that Greene told her she ing their frustration at the lack of regular merit in- would be reviewed 6 months after receiving her creases. probationary raise. The testimony of these wit- The circumstances herein are considerably differ- nesses is thus conflicting and does not, in itself, ent from those in General Motors Acceptance Corpo- clearly establish a policy of regular merit in- ration, 196 NLRB 137 (1972), enfd. 476 F.2d 850 creases. , ^ i-i (Ist Cir. 1973), and other cases where the Board The practice under Greene has been even less h f a 1 in a e unile regular and definite than these statements would in- h as fo u n d a v n o la t l o n a mri irplesre unilateral dicate. In 1978, including the 5-month period Gdiscontinuance of a merit increase program.n In before Greene became managing editor, of 13 em- G e n er a l M o t o rs a ceptance Corporation, the employ- ployees who ostensibly would be entitled to non- te r uistrtuted a wage pinh nb of its own accord when probationary raises, 10 received 1 increase and 3 the union filed the petition therein, but it continued received no increases. In 1979, of 18 employees os- '"S employees semiannual merit reviews, in tensibly eligible for nonprobationary raises, 2 em- May a n d November. Prior to the wage freeze, em- ployees received 2 increases, 9 received 1 increase, ployees w h o w e re rated "fair" or higher in the and 7 employees got no increase.' While most of m e rit reviews received raises, which were effected these increases in 1978 and 1979 were given in at different times during the year. In the 9 months June, in both years a significant proportion of them o f t h e calendar year before the freeze, nearly all of was granted randomly in other months. The the eligible employees had received merit increases amounts of wage increases also did not follow any in approximately the same amount. discernible pattern. Based on a weekly salary, in- Whereas the employer in General Motors Accept- creases ranged from $10 to $20 and were apparent- ance Corporation exercised discretion only with re- ly unrelated to increases received either at the time spect to certain aspects of its merit increase pro- by comparably paid employees or in the past by gram, Respondent's granting of increases has been the particular employee. entirely discretionary. The timing and the amounts Both before and during Greene's tenure, Re- of raises, and the selection of employees to receive spondent did not conduct any formal or written them, have not been determined in any objective or evaluations of newsroom employees. It did not sys- consistent manner. Respondent did not regularly tematically review the performance of newsroom evaluate employees irrespective of whether they employees and grant raises to those who met a were to receive increases and thus did not continue minimum standard, nor did it rate them according periodically to review employees after the filing of to any criteria. Rather, as Greene expressed it, the petition without granting them increases. Thus, when an employee "sparkled," he or she got a it is impossible to conclude with any degree of cer- merit raise. Employees who were chosen for merit tainty when, and if, merit increases would have increases were so informed in brief, oral reviews or been given and which employees would have re- received the increases in their paychecks without ceived them. See The Great Atlantic & Pacific Tea Company, Inc., 192 NLRB 645 (1971). Requiring s Respondent did not, at all material times herein, provide any other Respondent during negotiations to continue giving type of wage increases, such as cost-of-living raises. 6 When advised by the Administrative Law Judge that her evidence on raises tO employees Selected by It, at times and in this point was becoming cumulative, counsel for the General Counsel amounts unrestricted by a clearly established pat- made an offer of proof as to the testimony of other witnesses concerning tern, is tantamount to licensing it to grant them statements to them when they were hired. Assuming that the General Counsel's representation of their testimony is correct, however, we note that their testimony would show the same disparity between being re- E.g., Allied Products Corporation. Richard Brothers Division, 218 viewed at 6-month or at 1-year intervals. NLRB 1246 (1975), enfd. in pertinent part 548 F.2d 644 (6th Cir. 1977); 7 Prior to the merit increases given in September 1980 pursuant to the compare Oneita Knitting Millsk Inc., 205 NLRB 500. fn. 1 (1973), with parties' tentative agreement, the last such increases were given in June Southeastern Michigan Gas Company, 198 NLRB 1221 (1972), enfd. 485 1979. The decision to grant these increases was made before the petition F.2d 1239 (6th Cir. 1973). See, generally. Charles Manufacturing Compa- was filed on June I, 1979. ny, 245 NLRB 39 (1979). THE ITHACA JOURNAL-NEWS, INC. 395 discriminatory. Prior to the appointment of Al any discussion. Employees who did not receive in- Greene as managing editor in mid-1978, Respond- creases were excluded not because they had failed ent apparently had a fairly regular practice of a review with objectve, articulable standards or, granting merit increases to employees in January indeed, because they had failed any review whatso- and June or July of the year. Greene, however, ever; they simply had not achieved the entirely modified this practice.' According to employee subjective standards of Greene or his predecessor. John Maines, Greene told him when he was hired The arbitrary manner in which Respondent dis- that he would receive a raise at the end of a 6- pensed merit increases is further shown by a month probationary period and would be consid- memorandum to Greene written by newsroom em- ered for a raise annually thereafter. However, ployees, just before the petition was filed, express- Carol Eisenberg testified that Greene told her she ing their frustration at the lack of regular merit in- would be reviewed 6 months after receiving her creases. probationary raise. The testimony of these wit- The circumstances herein are considerably differ- nesses is thus conflicting and does not, in itself, ent from those in General Motors Acceptance Corpo- clearly establish a policy of regular merit in- ration, 196 NLRB 137 (1972), enfd. 476 F.2d 850 creases. , ^ i-i (Ist Cir. 1973), and other cases where the Board The practice under Greene has been even less h f a 1 in a e unile regular and definite than these statements would in- h as fo u n d a v n o la t l o n a mri irplesre unilateral dicate. In 1978, including the 5-month period Gdiscontinuance of a merit increase program.n In before Greene became managing editor, of 13 em- G e n er a l M o t o rs a ceptance Corporation, the employ- ployees who ostensibly would be entitled to non- e rtnstituted a wage pinh nb of its own accord when probationary raises, 10 received 1 increase and 3 the union filed the petition therein, but it continued received no increases. In 1979, of 18 employees os- '"S employees semiannual merit reviews, in tensibly eligible for nonprobationary raises, 2 em- May a n d November. Prior to the wage freeze, em- ployees received 2 increases, 9 received 1 increase, ployees who were rated "fair" or higher in the and 7 employees got no increase.' While most of merit reviews received raises, which were effected these increases in 1978 and 1979 were given in at different times during the year. In the 9 months June, in both years a significant proportion of them o f the calendar year before the freeze, nearly all of was granted randomly in other months. The the eligible employees had received merit increases amounts of wage increases also did not follow any in approximately the same amount. discernible pattern. Based on a weekly salary, in- Whereas the employer in General Motors Accept- creases ranged from $10 to $20 and were apparent- ance Corporation exercised discretion only with re- ly unrelated to increases received either at the time spect to certain aspects of its merit increase pro- by comparably paid employees or in the past by gram, Respondent's granting of increases has been the particular employee. entirely discretionary. The timing and the amounts Both before and during Greene's tenure, Re- of raises, and the selection of employees to receive spondent did not conduct any formal or written them, have not been determined in any objective or evaluations of newsroom employees. It did not sys- consistent manner. Respondent did not regularly tematically review the performance of newsroom evaluate employees irrespective of whether they employees and grant raises to those who met a were to receive increases and thus did not continue minimum standard, nor did it rate them according periodically to review employees after the filing of to any criteria. Rather, as Greene expressed it, the petition without granting them increases. Thus, when an employee "sparkled," he or she got a it is impossible to conclude with any degree of cer- merit raise. Employees who were chosen for merit tainty when, and if, merit increases would have increases were so informed in brief, oral reviews or been given and which employees would have re- received the increases in their paychecks without ceived them. See The Great Atlantic & Pacific Tea Company, Inc., 192 NLRB 645 (1971). Requiring s Respondent did not, at all material times herein, provide any other Respondent during negotiations to continue giving type of wage increases, such as cost-of-living raises. 6 When advised by the Administrative Law Judge that her evidence on raises tO employees Selected by It, at times and in this point was becoming cumulative, counsel for the General Counsel amounts unrestricted by a clearly established pat- made an offer of proof as to the testimony of other witnesses concerning tern, is tantamount to licensing it to grant them statements to them when they were hired. Assuming that the General Counsel's representation of their testimony is correct, however, we note that their testimony would show the same disparity between being re- E.g., Allied Products Corporation. Richard Brothers Division, 218 viewed at 6-month or at 1-year intervals. NLRB 1246 (1975), enfd. in pertinent part 548 F.2d 644 (6th Cir. 1977); 7 Prior to the merit increases given in September 1980 pursuant to the compare Oneita Knitting Millsk Inc., 205 NLRB 500. fn. 1 (1973), with parties' tentative agreement, the last such increases were given in June Southeastern Michigan Gas Company, 198 NLRB 1221 (1972), enfd. 485 1979. The decision to grant these increases was made before the petition F.2d 1239 (6th Cir. 1973). See, generally. Charles Manufacturing Compa- was filed on June I, 1979. ny, 245 NLRB 39 (1979). 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unilateral wage increases, contrary to N.L.R.B. v. lished that "all other departments" referred to the Benne Katz, etc. d/b/a Williamsburg Steel Products, newsroom and the advertising department. The Co., 369 U.S. 736 (1962). In sum, the evidence fails record does not reveal the practice, if any, before to establish that Respondent had a merit increase this date. The advertising department subsequently program that it was bound to continue during ne- received two more increases, which were not given gotiations. to the newsroom: From 14-1/2 cents to 15-1/2 Furthermore, because Respondent's discontinu- cents per mile on an unspecified date, and from 15- ance of merit increases was alleged and litigated as 1/2 cents to 16-1/2 cents per mile on January 22, discriminatory conduct in violation of Section 1980. In February 1980, a newsroom employee 8(a)(3), rather than as a unilateral change in viola- asked Respondent's publisher why the newsroom tion of Section 8(a)(5), the General Counsel also had not received the increase that was recently had to show that Respondent was motivated by granted to the advertising department; the publish- animus toward employees' selection of the Union. er replied that the mileage allowance was a subject The Administrative Law Judge found that such un- of collective-bargaining negotiations and could not lawful motivation was evidenced by (1) the afore- be changed then. Apparently pursuant to the tenta- mentioned two statements violating Section 8(a)(l), tive agreement between Respondent and the Union, made by Greene in the spring of 1980, promising the rate for newsroom employees was increased to employees wage increases if they decertified the 16-1/2 cents per mile shortly before the hearing. Union; and (2) evidence that some employees hired Contrary to the Administrative Law Judge, we during the period when merit raises were not being do not think one ambiguous memorandum proves given, after receiving their probationary increases, that Respondent had an "established past practice" were paid more than senior employees. Contrary to of granting the newsroom the same mileage allow- the Administrative Law Judge's implication in ance it granted to the advertising department. See footnote 9 of his Decision, the record does not United Technologies Corporation (formerly United show that all new hires, after receiving their proba- Aircraft Corporation), 226 NLRB 750 (1976). Even tionary increases, were paid more than all senior if this document were sufficient to show such a employees. Moreover, there is no evidence wheth- practice, the evidence fails to prove that Respond- er the few senior employees who were paid less ent's motivation in discontinuing it was discrimina- than some of the new hires had comparable skills, tory. The above statement by Respondent's pub- experience, and duties. Thus, the mere fact that lisher does not indicate animus toward the employ- some new employees received more pay than some ees' selection of the Union, and the two statements senior employees is inconclusive to establish antiun- by Greene found to violate Section 8(a)(l) bear ion motivation. The two statements found to vio- upon the unrelated issue of merit increases. Ac- late Section 8(a)(l) are insufficient to show such cordingly, we shall also dismiss this allegation of animus in light of Respondent's position, manifest- the complaint. ed in the exchange of correspondence initiated by the Union, that it was precluded by law fromAMENDED CONCLUSIONS OF LAW granting merit increases because of its collective- 1. The Respondent, The Ithaca Journal-News, bargaining obligations. Inc., is an employer engaged in commerce within Therefore, we conclude that Respondent did not the meaning of Section 2(6) and (7) of the Act. violate Section 8(a)(3) and (1) of the Act by dis- 2. Ithaca Typographical Union No. 379 is a labor continuing merit increases for newsroom employ- organization within the meaning of Section 2(5) of ees during negotiations with the Union. the Act. We also disagree with the Administrative Law 3. By promising employees Judith Horstman and Judge's conclusion that Respondent violated Sec- Carol Eisenberg that they would receive wage in- tion 8(a)(3) and (1), while it was engaged in collec- creases if the Union were decertified, Respondent tive bargaining, by not granting newsroom employ- violated Section 8(a)(l) of the Act. ees the same increases in their mileage allowance 4. The aforesaid unfair labor practices affect for use of their personal automobiles that it granted commerce within the meaning of Section 2(6) and to employees in its advertising department. The (7) of the Act. only evidence that Respondent had such a practice 5. Respondent did not violate Section 8(a)(3) and was a memorandum from Respondent's publisher (1) of the Act by discontinuing merit increases for dated May 30, 1979, stating that the circulation de- newsroom employees while it was engaged in col- partment would receive a certain rate and "[a]ll lective-bargaining negotiations with the Union. other departments will go from 13-1/2 cents per 6. Respondent did not violate Section 8(a)(3) and mile to 14-1/2 cents per mile." Testimony estab- (1) of the Act by not granting newsroom employ- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unilateral wage increases, contrary to N.L.R.B. v. lished that "all other departments" referred to the Benne Katz, etc. d/b/a Williamsburg Steel Products, newsroom and the advertising department. The Co., 369 U.S. 736 (1962). In sum, the evidence fails record does not reveal the practice, if any, before to establish that Respondent had a merit increase this date. The advertising department subsequently program that it was bound to continue during ne- received two more increases, which were not given gotiations. to the newsroom: From 14-1/2 cents to 15-1/2 Furthermore, because Respondent's discontinu- cents per mile on an unspecified date, and from 15- ance of merit increases was alleged and litigated as 1/2 cents to 16-1/2 cents per mile on January 22, discriminatory conduct in violation of Section 1980. In February 1980, a newsroom employee 8(a)(3), rather than as a unilateral change in viola- asked Respondent's publisher why the newsroom tion of Section 8(a)(5), the General Counsel also had not received the increase that was recently had to show that Respondent was motivated by granted to the advertising department; the publish- animus toward employees' selection of the Union. er replied that the mileage allowance was a subject The Administrative Law Judge found that such un- of collective-bargaining negotiations and could not lawful motivation was evidenced by (1) the afore- be changed then. Apparently pursuant to the tenta- mentioned two statements violating Section 8(a)(l), tive agreement between Respondent and the Union, made by Greene in the spring of 1980, promising the rate for newsroom employees was increased to employees wage increases if they decertified the 16-1/2 cents per mile shortly before the hearing. Union; and (2) evidence that some employees hired Contrary to the Administrative Law Judge, we during the period when merit raises were not being do not think one ambiguous memorandum proves given, after receiving their probationary increases, that Respondent had an "established past practice" were paid more than senior employees. Contrary to of granting the newsroom the same mileage allow- the Administrative Law Judge's implication in ance it granted to the advertising department. See footnote 9 of his Decision, the record does not United Technologies Corporation (formerly United show that all new hires, after receiving their proba- Aircraft Corporation), 226 NLRB 750 (1976). Even tionary increases, were paid more than all senior if this document were sufficient to show such a employees. Moreover, there is no evidence wheth- practice, the evidence fails to prove that Respond- er the few senior employees who were paid less ent's motivation in discontinuing it was discrimina- than some of the new hires had comparable skills, tory. The above statement by Respondent's pub- experience, and duties. Thus, the mere fact that lisher does not indicate animus toward the employ- some new employees received more pay than some ees' selection of the Union, and the two statements senior employees is inconclusive to establish antiun- by Greene found to violate Section 8(a)(l) bear ion motivation. The two statements found to vio- upon the unrelated issue of merit increases. Ac- late Section 8(a)(l) are insufficient to show such cordingly, we shall also dismiss this allegation of animus in light of Respondent's position, manifest- the complaint. ed in the exchange of correspondence initiated by AMENDED CONCLUSIONS OF LAW the Union, that it was precluded by law from granting merit increases because of its collective- 1. The Respondent, The Ithaca Journal-News, bargaining obligations. Inc., is an employer engaged in commerce within Therefore, we conclude that Respondent did not the meaning of Section 2(6) and (7) of the Act. violate Section 8(a)(3) and (1) of the Act by dis- 2. Ithaca Typographical Union No. 379 is a labor continuing merit increases for newsroom employ- organization within the meaning of Section 2(5) of ees during negotiations with the Union. the Act. We also disagree with the Administrative Law 3. By promising employees Judith Horstman and Judge's conclusion that Respondent violated Sec- Carol Eisenberg that they would receive wage in- tion 8(a)(3) and (1), while it was engaged in collec- creases if the Union were decertified, Respondent tive bargaining, by not granting newsroom employ- violated Section 8(a)(l) of the Act. ees the same increases in their mileage allowance 4. The aforesaid unfair labor practices affect for use of their personal automobiles that it granted commerce within the meaning of Section 2(6) and to employees in its advertising department. The (7) of the Act. only evidence that Respondent had such a practice 5. Respondent did not violate Section 8(a)(3) and was a memorandum from Respondent's publisher (1) of the Act by discontinuing merit increases for dated May 30, 1979, stating that the circulation de- newsroom employees while it was engaged in col- partment would receive a certain rate and "[a]ll lective-bargaining negotiations with the Union. other departments will go from 13-1/2 cents per 6. Respondent did not violate Section 8(a)(3) and mile to 14-1/2 cents per mile." Testimony estab- (1) of the Act by not granting newsroom employ- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unilateral wage increases, contrary to N.L.R.B. v. lished that "all other departments" referred to the Benne Katz, etc. d/b/a Williamsburg Steel Products, newsroom and the advertising department. The Co., 369 U.S. 736 (1962). In sum, the evidence fails record does not reveal the practice, if any, before to establish that Respondent had a merit increase this date. The advertising department subsequently program that it was bound to continue during ne- received two more increases, which were not given gotiations. to the newsroom: From 14-1/2 cents to 15-1/2 Furthermore, because Respondent's discontinu- cents per mile on an unspecified date, and from 15- ance of merit increases was alleged and litigated as 1/2 cents to 16-1/2 cents per mile on January 22, discriminatory conduct in violation of Section 1980. In February 1980, a newsroom employee 8(a)(3), rather than as a unilateral change in viola- asked Respondent's publisher why the newsroom tion of Section 8(a)(5), the General Counsel also had not received the increase that was recently had to show that Respondent was motivated by granted to the advertising department; the publish- animus toward employees' selection of the Union. er replied that the mileage allowance was a subject The Administrative Law Judge found that such un- of collective-bargaining negotiations and could not lawful motivation was evidenced by (1) the afore- be changed then. Apparently pursuant to the tenta- mentioned two statements violating Section 8(a)(l), tive agreement between Respondent and the Union, made by Greene in the spring of 1980, promising the rate for newsroom employees was increased to employees wage increases if they decertified the 16-1/2 cents per mile shortly before the hearing. Union; and (2) evidence that some employees hired Contrary to the Administrative Law Judge, we during the period when merit raises were not being do not think one ambiguous memorandum proves given, after receiving their probationary increases, that Respondent had an "established past practice" were paid more than senior employees. Contrary to of granting the newsroom the same mileage allow- the Administrative Law Judge's implication in ance it granted to the advertising department. See footnote 9 of his Decision, the record does not United Technologies Corporation (formerly United show that all new hires, after receiving their proba- Aircraft Corporation), 226 NLRB 750 (1976). Even tionary increases, were paid more than all senior if this document were sufficient to show such a employees. Moreover, there is no evidence wheth- practice, the evidence fails to prove that Respond- er the few senior employees who were paid less ent's motivation in discontinuing it was discrimina- than some of the new hires had comparable skills, tory. The above statement by Respondent's pub- experience, and duties. Thus, the mere fact that lisher does not indicate animus toward the employ- some new employees received more pay than some ees' selection of the Union, and the two statements senior employees is inconclusive to establish antiun- by Greene found to violate Section 8(a)(l) bear ion motivation. The two statements found to vio- upon the unrelated issue of merit increases. Ac- late Section 8(a)(l) are insufficient to show such cordingly, we shall also dismiss this allegation of animus in light of Respondent's position, manifest- the complaint. ed in the exchange of correspondence initiated by AMENDED CONCLUSIONS OF LAW the Union, that it was precluded by law from granting merit increases because of its collective- 1. The Respondent, The Ithaca Journal-News, bargaining obligations. Inc., is an employer engaged in commerce within Therefore, we conclude that Respondent did not the meaning of Section 2(6) and (7) of the Act. violate Section 8(a)(3) and (1) of the Act by dis- 2. Ithaca Typographical Union No. 379 is a labor continuing merit increases for newsroom employ- organization within the meaning of Section 2(5) of ees during negotiations with the Union. the Act. We also disagree with the Administrative Law 3. By promising employees Judith Horstman and Judge's conclusion that Respondent violated Sec- Carol Eisenberg that they would receive wage in- tion 8(a)(3) and (1), while it was engaged in collec- creases if the Union were decertified, Respondent tive bargaining, by not granting newsroom employ- violated Section 8(a)(l) of the Act. ees the same increases in their mileage allowance 4. The aforesaid unfair labor practices affect for use of their personal automobiles that it granted commerce within the meaning of Section 2(6) and to employees in its advertising department. The (7) of the Act. only evidence that Respondent had such a practice 5. Respondent did not violate Section 8(a)(3) and was a memorandum from Respondent's publisher (1) of the Act by discontinuing merit increases for dated May 30, 1979, stating that the circulation de- newsroom employees while it was engaged in col- partment would receive a certain rate and "[a]ll lective-bargaining negotiations with the Union. other departments will go from 13-1/2 cents per 6. Respondent did not violate Section 8(a)(3) and mile to 14-1/2 cents per mile." Testimony estab- (1) of the Act by not granting newsroom employ- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unilateral wage increases, contrary to N.L.R.B. v. lished that "all other departments" referred to the Benne Katz, etc. d/b/a Williamsburg Steel Products, newsroom and the advertising department. The Co., 369 U.S. 736 (1962). In sum, the evidence fails record does not reveal the practice, if any, before to establish that Respondent had a merit increase this date. The advertising department subsequently program that it was bound to continue during ne- received two more increases, which were not given gotiations. to the newsroom: From 14-1/2 cents to 15-1/2 Furthermore, because Respondent's discontinu- cents per mile on an unspecified date, and from 15- ance of merit increases was alleged and litigated as 1/2 cents to 16-1/2 cents per mile on January 22, discriminatory conduct in violation of Section 1980. In February 1980, a newsroom employee 8(a)(3), rather than as a unilateral change in viola- asked Respondent's publisher why the newsroom tion of Section 8(a)(5), the General Counsel also had not received the increase that was recently had to show that Respondent was motivated by granted to the advertising department; the publish- animus toward employees' selection of the Union. er replied that the mileage allowance was a subject The Administrative Law Judge found that such un- of collective-bargaining negotiations and could not lawful motivation was evidenced by (1) the afore- be changed then. Apparently pursuant to the tenta- mentioned two statements violating Section 8(a)(l), tive agreement between Respondent and the Union, made by Greene in the spring of 1980, promising the rate for newsroom employees was increased to employees wage increases if they decertified the 16-1/2 cents per mile shortly before the hearing. Union; and (2) evidence that some employees hired Contrary to the Administrative Law Judge, we during the period when merit raises were not being do not think one ambiguous memorandum proves given, after receiving their probationary increases, that Respondent had an "established past practice" were paid more than senior employees. Contrary to of granting the newsroom the same mileage allow- the Administrative Law Judge's implication in ance it granted to the advertising department. See footnote 9 of his Decision, the record does not United Technologies Corporation (formerly United show that all new hires, after receiving their proba- Aircraft Corporation), 226 NLRB 750 (1976). Even tionary increases, were paid more than all senior if this document were sufficient to show such a employees. Moreover, there is no evidence wheth- practice, the evidence fails to prove that Respond- er the few senior employees who were paid less ent's motivation in discontinuing it was discrimina- than some of the new hires had comparable skills, tory. The above statement by Respondent's pub- experience, and duties. Thus, the mere fact that lisher does not indicate animus toward the employ- some new employees received more pay than some ees' selection of the Union, and the two statements senior employees is inconclusive to establish antiun- by Greene found to violate Section 8(a)(l) bear ion motivation. The two statements found to vio- upon the unrelated issue of merit increases. Ac- late Section 8(a)(l) are insufficient to show such cordingly, we shall also dismiss this allegation of animus in light of Respondent's position, manifest- the complaint. ed in the exchange of correspondence initiated by AMENDED CONCLUSIONS OF LAW the Union, that it was precluded by law from granting merit increases because of its collective- 1. The Respondent, The Ithaca Journal-News, bargaining obligations. Inc., is an employer engaged in commerce within Therefore, we conclude that Respondent did not the meaning of Section 2(6) and (7) of the Act. violate Section 8(a)(3) and (1) of the Act by dis- 2. Ithaca Typographical Union No. 379 is a labor continuing merit increases for newsroom employ- organization within the meaning of Section 2(5) of ees during negotiations with the Union. the Act. We also disagree with the Administrative Law 3. By promising employees Judith Horstman and Judge's conclusion that Respondent violated Sec- Carol Eisenberg that they would receive wage in- tion 8(a)(3) and (1), while it was engaged in collec- creases if the Union were decertified, Respondent tive bargaining, by not granting newsroom employ- violated Section 8(a)(l) of the Act. ees the same increases in their mileage allowance 4. The aforesaid unfair labor practices affect for use of their personal automobiles that it granted commerce within the meaning of Section 2(6) and to employees in its advertising department. The (7) of the Act. only evidence that Respondent had such a practice 5. Respondent did not violate Section 8(a)(3) and was a memorandum from Respondent's publisher (1) of the Act by discontinuing merit increases for dated May 30, 1979, stating that the circulation de- newsroom employees while it was engaged in col- partment would receive a certain rate and "[a]ll lective-bargaining negotiations with the Union. other departments will go from 13-1/2 cents per 6. Respondent did not violate Section 8(a)(3) and mile to 14-1/2 cents per mile." Testimony estab- (1) of the Act by not granting newsroom employ- THE ITHACA JOURNAL-NEWS, INC. 397 ees the same increases in their mileage allowance WE WILL NOT in any like or related manner that it granted to employees of its advertising de- interfere with, restrain, or coerce our employ- partment while it engaged in collective-bargaining ees in the exercise of the rights guaranteed negotiations with the Union. them by Section 7 of the National Labor Rela- ORDER tions Act. Pursuant to Section 10(c) of the National Labor THE ITHACA JOURNAL-NEWS, INC. Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, DECISION The Ithaca Journal-News, Inc., Ithaca, New York,STATEMENT OF THE CASE its officers, agents, successors, and assigns, shall: 1. Cease and desist from: GEORGE NORMAN, Administrative Law Judge: This (a) Promising employees that they would receive case was heard in Ithaca, New York, on October 27 and wage increases if the Union were decertified. 28, 1980. The charge was filed by Ithaca Typographical (b) In any like or related manner interfering Union No. 379 (herein the Union) on March 28, 1980. A with, restraining, or coercing employees in the ex- complaint based on that charge issued on May 7, 1980, ercise of the rights guaranteed them by Section 7 alleging that The Ithaca Journal-News, Inc. (herein Re- of the Act. spondent), violated Section 8(a)(l) and (3) of the Nation- al Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: Issues (a) Post at its office and place of business located in Ithaca, New York, copies of the attached notice p r a r ssues re : ,arked ,Appp of said notice, on fused-^1. Whether Respondent denied merit increases and re- marked "Appendix." Copies of sraise the mileage allowance for newsroom em- forms provided by the Regional Director for ployees in violation of Section 8(a)(l) and (3) of the Act. Region 3, after being duly signed by Respondent's 2. Whether Respondent violated Section 8(a)(l) of the representative, shall be posted by Respondent im- Act by promising emoloyees pay raises if they decerti- mediately upon receipt thereof, and be maintained fled the Union. by it for 60 consecutive days thereafter, in con- 3. Whether Respondent's conduct comes within the 6- spicuous places, including all places where notices month limitation rule contained in Section 10(b) of the to employees are customarily posted. Reasonable Act. steps shall be taken by Respondent to insure that All parties were given full opportunity to participate, said notices are not altered, defaced, or covered by to introduce relevant evidence, to examine and cross-ex- any other material. amine witnesses, to argue orally, and to file briefs. Briefs (b) Notify the Regional Director for Region 3, in were filed on behalf of the General Counsel and Re- writing, within 20 days from the date of this Order, spondent. The briefs have been carefully considered. what steps Respondent has taken to comply here- Upon the entire record of the case and from my obser- with. vation of the witnesses and their demeanor, I make the IT IS FURTHER ORDERED that the complaint be followng dismissed insofar as it alleges violations of the Act FINDINGS OF FACT not specifically found herein. I. THE BUSINESS OF RESPONDENT 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Respondent, The Ithaca Journal-News, Inc., is a news- Order of the National Labor Relations Board" shall read "Posted Pursu- paper of general circulation published daily in Ithaca, ant to a Judgment of the United States Court of Appeals Enforcing an New York. Respondent, in the course and conduct of its Order of the National Labor Relations Board." business operations, purchases, transfers, and delivers to its Ithaca, New York, plant goods and materials valued APPENDIX in excess of $50,000, which are transported to said loca- tion directly from States of the United States other than NOTICE TO EMPLOYEES the State of New York. During the past 12 months Re- POSTED BY ORDER OF THE spondent has received gross revenues in excess of NATIONAL LABOR RELATIONS BOARD $200,000, has subscribed to two interstate news services, An Agency of the United States Government and has published advertisements for nationally marketed products. WE WILL NOT promise our employees that I find that Respondent is an employer engaged in com- they will receive wage increases if the Union merce within the meaning of Section 2(6) and (7) of the .~~~~is decertified. °Act and that it will effectuate the policies of the Act to negotiatis decertified. Unitassert jurisdiction herein. THE ITHACA JOURNAL-NEWS, INC. 397 ees the same increases in their mileage allowance WE WILL NOT in any like or related manner that it granted to employees of its advertising de- interfere with, restrain, or coerce our employ- partment while it engaged in collective-bargaining ees in the exercise of the rights guaranteed negotiations with the Union. them by Section 7 of the National Labor Rela- ORDER t io n s A c t . Pursuant to Section 10(c) of the National Labor THE ITHACA JOURNAL-NEWS, INC. Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, DECISION The Ithaca Journal-News, Inc., Ithaca, New York,STATEMENT OF THE CASE its officers, agents, successors, and assigns, shall: 1. Cease and desist from: GEORGE NORMAN, Administrative Law Judge: This (a) Promising employees that they would receive case was heard in Ithaca, New York, on October 27 and wage increases if the Union were decertified. 2 8, 19 80. T h e charge was filed by Ithaca Typographical (b) In any like or related manner interfering Unio n N o . 3 79 (h er ein the Union) on March 28, 1980. A with, restraining, or coercing employees in the ex- complaint based on that charge issued on May 7, 1980, ercise of the rights guaranteed them by Section 7 alleging that The Ithaca Journal-News, Inc. (herein Re- of th&e Act.spondent), violated Section 8(a)(l) and (3) of the Nation- ot the Act. , . , . ~~~~~al Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: Issues (a) Post at its office and place of business located in Ithaca, New York, copies of the attached notice , p l a y s u s ^ e A * inIthac, NewYorkcopies of the attaced notice 1. Whether Respondent denied merit increases and re- marked "Appendix." Copies of said notice, on fused to raise the mileage allowance for newsroom em- forms provided by the Regional Director for ployees in violation of Section 8(a)(l) and (3) of the Act. Region 3, after being duly signed by Respondent's 2. Whether Respondent violated Section 8(a)(l) of the representative, shall be posted by Respondent im- Act by promising emoloyees pay raises if they decerti- mediately upon receipt thereof, and be maintained fied the Union. by it for 60 consecutive days thereafter, in con- 3, Whether Respondent's conduct comes within the 6- spicuous places, including all places where notices month limitation rule contained in Section 10(b) of the to employees are customarily posted. Reasonable Act. steps shall be taken by Respondent to insure that All parties were given full opportunity to participate, said notices are not altered, defaced, or covered by to introduce relevant evidence, to examine and cross-ex- any other material. amine witnesses, to argue orally, and to file briefs. Briefs (b) Notify the Regional Director for Region 3, in w ere fil ed on behal f of the General Counsel and Re- writing, within 20 days from the date of this Order, spondent. The briefs have been carefully considered. what steps Respondent has taken to comply here- Upon the entire record of the case and from my obser- with. vation of the witnesses and their demeanor, I make the IT IS FURTHER ORDERED that the complaint be o w in g dismissed insofar as it alleges violations of the Act FINDINGS OF FACT not specifically found herein. I. THE BUSINESS OF RESPONDENT ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Respondent, The Ithaca Journal-News, Inc., is a news- Order of the National Labor Relations Board" shall read "Posted Pursu- paper of general circulation published daily in Ithaca, ant to a Judgment of the United States Court of Appeals Enforcing an New York. Respondent, in the course and conduct of its Order of the National Labor Relations Board." business operations, purchases, transfers, and delivers to its Ithaca, New York, plant goods and materials valued APPENDIX in excess of $50,000, which are transported to said loca- tion directly from States of the United States other than NOTICE To EMPLOYEES the state of New York. During the past 12 months Re- POSTED BY ORDER OF THE spondent has received gross revenues in excess of NATIONAL LABOR RELATIONS BOARD $200,000, has subscribed to two interstate news services, An Agency of the United States Government and has published advertisements for nationally marketed products. WE WILL NOT promise our employees that I find that Respondent is an employer engaged in com- they will receive wage increases if the Union merc e w it hin the m eaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to is decertified.^assert jurisdiction herein. THE ITHACA JOURNAL-NEWS, INC. 397 ees the same increases in their mileage allowance WE WILL NOT in any like or related manner that it granted to employees of its advertising de- interfere with, restrain, or coerce our employ- partment while it engaged in collective-bargaining ees in the exercise of the rights guaranteed negotiations with the Union. them by Section 7 of the National Labor Rela- ORDER t io n s A c t . Pursuant to Section 10(c) of the National Labor THE ITHACA JOURNAL-NEWS, INC. Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, DECISION The Ithaca Journal-News, Inc., Ithaca, New York,STATEMENT OF THE CASE its officers, agents, successors, and assigns, shall: 1. Cease and desist from: GEORGE NORMAN, Administrative Law Judge: This (a) Promising employees that they would receive case was heard in Ithaca, New York, on October 27 and wage increases if the Union were decertified. 28, 19 80. T h e charge was filed by Ithaca Typographical (b) In any like or related manner interfering Unio n N o . 379 (h er ein the Union) on March 28, 1980. A with, restraining, or coercing employees in the ex- complaint based on that charge issued on May 7, 1980, ercise of the rights guaranteed them by Section 7 alleging that The Ithaca Journal-News, Inc. (herein Re- of th&e Act.spondent), violated Section 8(a)(l) and (3) of the Nation- ot the Act. , . , . ~~~~~al Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: Issues (a) Post at its office and place of business located in Ithaca, New York, copies of the attached notice , p l a y s u s ^ e A * inIthac, NewYorkcopies of the attaced notice 1. Whether Respondent denied merit increases and re- marked "Appendix." Copies of said notice, on fused to raise the mileage allowance for newsroom em- forms provided by the Regional Director for ployees in violation of Section 8(a)(l) and (3) of the Act. Region 3, after being duly signed by Respondent's 2. Whether Respondent violated Section 8(a)(l) of the representative, shall be posted by Respondent im- Act by promising emoloyees pay raises if they decerti- mediately upon receipt thereof, and be maintained fied the Union. by it for 60 consecutive days thereafter, in con- 3, Whether Respondent's conduct comes within the 6- spicuous places, including all places where notices month limitation rule contained in Section 10(b) of the to employees are customarily posted. Reasonable Act. steps shall be taken by Respondent to insure that All parties were given full opportunity to participate, said notices are not altered, defaced, or covered by to introduce relevant evidence, to examine and cross-ex- any other material. amine witnesses, to argue orally, and to file briefs. Briefs (b) Notify the Regional Director for Region 3, in w ere fil ed on behal f of the General Counsel and Re- writing, within 20 days from the date of this Order, spondent. The briefs have been carefully considered. what steps Respondent has taken to comply here- Upon the entire record of the case and from my obser- with. vation of the witnesses and their demeanor, I make the IT IS FURTHER ORDERED that the complaint be o w in g dismissed insofar as it alleges violations of the Act FINDINGS OF FACT not specifically found herein. I. THE BUSINESS OF RESPONDENT ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Respondent, The Ithaca Journal-News, Inc., is a news- Order of the National Labor Relations Board" shall read "Posted Pursu- paper of general circulation published daily in Ithaca, ant to a Judgment of the United States Court of Appeals Enforcing an New York. Respondent, in the course and conduct of its Order of the National Labor Relations Board." business operations, purchases, transfers, and delivers to its Ithaca, New York, plant goods and materials valued APPENDIX in excess of $50,000, which are transported to said loca- tion directly from States of the United States other than NOTICE To EMPLOYEES the State of New York. During the past 12 months Re- POSTED BY ORDER OF THE spondent has received gross revenues in excess of NATIONAL LABOR RELATIONS BOARD $200,000, has subscribed to two interstate news services, An Agency of the United States Government and has published advertisements for nationally marketed products. WE WILL NOT promise our employees that I find that Respondent is an employer engaged in com- they will receive wage increases if the Union merc e w it hin the m eaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to is decertified.^assert jurisdiction herein. THE ITHACA JOURNAL-NEWS, INC. 397 ees the same increases in their mileage allowance WE WILL NOT in any like or related manner that it granted to employees of its advertising de- interfere with, restrain, or coerce our employ- partment while it engaged in collective-bargaining ees in the exercise of the rights guaranteed negotiations with the Union. them by Section 7 of the National Labor Rela- ORDER t io n s A c t . Pursuant to Section 10(c) of the National Labor THE ITHACA JOURNAL-NEWS, INC. Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, DECISION The Ithaca Journal-News, Inc., Ithaca, New York,STATEMENT OF THE CASE its officers, agents, successors, and assigns, shall: 1. Cease and desist from: GEORGE NORMAN, Administrative Law Judge: This (a) Promising employees that they would receive case was heard in Ithaca, New York, on October 27 and wage increases if the Union were decertified. 28, 19 80. T h e charge was filed by Ithaca Typographical (b) In any like or related manner interfering Unio n N o . 379 (h er ein the Union) on March 28, 1980. A with, restraining, or coercing employees in the ex- complaint based on that charge issued on May 7, 1980, ercise of the rights guaranteed them by Section 7 alleging that The Ithaca Journal-News, Inc. (herein Re- of th e Act.3spondent), violated Section 8(a)(l) and (3) of the Nation- ot the Act. , . , . ~~~~~al Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: Issues (a) Post at its office and place of business located in Ithaca, New York, copies of the attached notice , p l a y s u s ^ e A * inIthac, NewYorkcopies of the attaced notice 1. Whether Respondent denied merit increases and re- marked "Appendix." Copies of said notice, on fused to raise the mileage allowance for newsroom em- forms provided by the Regional Director for ployees in violation of Section 8(a)(l) and (3) of the Act. Region 3, after being duly signed by Respondent's 2. Whether Respondent violated Section 8(a)(l) of the representative, shall be posted by Respondent im- Act by promising emoloyees pay raises if they decerti- mediately upon receipt thereof, and be maintained fied the Union. by it for 60 consecutive days thereafter, in con- 3, Whether Respondent's conduct comes within the 6- spicuous places, including all places where notices month limitation rule contained in Section 10(b) of the to employees are customarily posted. Reasonable Act. steps shall be taken by Respondent to insure that All parties were given full opportunity to participate, said notices are not altered, defaced, or covered by to introduce relevant evidence, to examine and cross-ex- any other material. amine witnesses, to argue orally, and to file briefs. Briefs (b) Notify the Regional Director for Region 3, in w ere fil ed on behal f of the General Counsel and Re- writing, within 20 days from the date of this Order, spondent. The briefs have been carefully considered. what steps Respondent has taken to comply here- Upon the entire record of the case and from my obser- with. vation of the witnesses and their demeanor, I make the IT IS FURTHER ORDERED that the complaint be o w in g: dismissed insofar as it alleges violations of the Act FINDINGS OF FACT not specifically found herein. I. THE BUSINESS OF RESPONDENT ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Respondent, The Ithaca Journal-News, Inc., is a news- Order of the National Labor Relations Board" shall read "Posted Pursu- paper of general circulation published daily in Ithaca, ant to a Judgment of the United States Court of Appeals Enforcing an New York. Respondent, in the course and conduct of its Order of the National Labor Relations Board." business operations, purchases, transfers, and delivers to its Ithaca, New York, plant goods and materials valued APPENDIX in excess of $50,000, which are transported to said loca- tion directly from States of the United States other than NOTICE To EMPLOYEES the state of New York. During the past 12 months Re- POSTED BY ORDER OF THE spondent has received gross revenues in excess of NATIONAL LABOR RELATIONS BOARD $200,000, has subscribed to two interstate news services, An Agency of the United States Government and has published advertisements for nationally marketed products. WE WILL NOT promise our employees that I find that Respondent is an employer engaged in com- they will receive wage increases if the Union merc e w it hin the m eaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to is decertified.^assert jurisdiction herein. THE ITHACA JOURNAL-NEWS, INC. 397 ees the same increases in their mileage allowance WE WILL NOT in any like or related manner that it granted to employees of its advertising de- interfere with, restrain, or coerce our employ- partment while it engaged in collective-bargaining ees in the exercise of the rights guaranteed negotiations with the Union. them by Section 7 of the National Labor Rela- ORDER t io n s A c t . Pursuant to Section 10(c) of the National Labor THE ITHACA JOURNAL-NEWS, INC. Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, DECISION The Ithaca Journal-News, Inc., Ithaca, New York,STATEMENT OF THE CASE its officers, agents, successors, and assigns, shall: 1. Cease and desist from: GEORGE NORMAN, Administrative Law Judge: This (a) Promising employees that they would receive case was heard in Ithaca, New York, on October 27 and wage increases if the Union were decertified. 28, 19 80. T h e charge was filed by Ithaca Typographical (b) In any like or related manner interfering Unio n N o . 379 (h er ein the Union) on March 28, 1980. A with, restraining, or coercing employees in the ex- complaint based on that charge issued on May 7, 1980, ercise of the rights guaranteed them by Section 7 alleging that The Ithaca Journal-News, Inc. (herein Re- of th e Act.3spondent), violated Section 8(a)(l) and (3) of the Nation- ot the Act. , . , . ~~~~~al Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: Issues (a) Post at its office and place of business located in Ithaca, New York, copies of the attached notice , p l a y s u s ^ e A * inIthac, NewYorkcopies of the attaced notice 1. Whether Respondent denied merit increases and re- marked "Appendix." Copies of said notice, on fused to raise the mileage allowance for newsroom em- forms provided by the Regional Director for ployees in violation of Section 8(a)(l) and (3) of the Act. Region 3, after being duly signed by Respondent's 2. Whether Respondent violated Section 8(a)(l) of the representative, shall be posted by Respondent im- Act by promising emoloyees pay raises if they decerti- mediately upon receipt thereof, and be maintained fied the Union. by it for 60 consecutive days thereafter, in con- 3, Whether Respondent's conduct comes within the 6- spicuous places, including all places where notices month limitation rule contained in Section 10(b) of the to employees are customarily posted. Reasonable Act. steps shall be taken by Respondent to insure that All parties were given full opportunity to participate, said notices are not altered, defaced, or covered by to introduce relevant evidence, to examine and cross-ex- any other material. amine witnesses, to argue orally, and to file briefs. Briefs (b) Notify the Regional Director for Region 3, in w ere fil ed on behal f of the General Counsel and Re- writing, within 20 days from the date of this Order, spondent. The briefs have been carefully considered. what steps Respondent has taken to comply here- Upon the entire record of the case and from my obser- with. vation of the witnesses and their demeanor, I make the IT IS FURTHER ORDERED that the complaint be o w in g dismissed insofar as it alleges violations of the Act FINDINGS OF FACT not specifically found herein. I. THE BUSINESS OF RESPONDENT ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Respondent, The Ithaca Journal-News, Inc., is a news- Order of the National Labor Relations Board" shall read "Posted Pursu- paper of general circulation published daily in Ithaca, ant to a Judgment of the United States Court of Appeals Enforcing an New York. Respondent, in the course and conduct of its Order of the National Labor Relations Board." business operations, purchases, transfers, and delivers to its Ithaca, New York, plant goods and materials valued APPENDIX in excess of $50,000, which are transported to said loca- tion directly from States of the United States other than NOTICE To EMPLOYEES the state of New York. During the past 12 months Re- POSTED BY ORDER OF THE spondent has received gross revenues in excess of NATIONAL LABOR RELATIONS BOARD $200,000, has subscribed to two interstate news services, An Agency of the United States Government and has published advertisements for nationally marketed products. WE WILL NOT promise our employees that I find that Respondent is an employer engaged in com- they will receive wage increases if the Union merc e w it hin the m eaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to is decertified.^assert jurisdiction herein. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED varied from time to time but generally those increases were granted on yearly bases or at 6-month intervals. Ithaca Typographical Union No. 379 is a labor organi- were ane on yearly bases or at 6-month intervals zation within the meaning of Section 2(5) of the Act. Four newsroom employees testified, Judith Horstman, John Maines, Carol Eisenberg, and Jane Marcham, con- III. THE ALLEGED UNFAIR LABOR PRACTICES cerning what they were told at the time they were ini- tially hired and with respect to their actual history of in- A. Background creases while employed by Respondent. Their testimony filed a petition to repent reveals that there was indeed a pattern, albeit a varied On June 1, 1979, the Union filed a petition to represent On June 1, emlyo1979, the Union dient Th eton wrsn one. The payroll records in evidence reveal that, after newsroom employees of Respondent. The election was the 6-month probationary increase, employees received held on August 8, 1979, and the Union was subsequently held on August 8, 1979, and the Union was subsequently pay raises practically every year. In some cases employ- certified. Negotiations for a collective-bargaining con- ees received two pay raises in year followed by no pay tract began in August 1979 and continued until Septem- es e fllw year pay ber 1980, when a tentative agreement was reached be- r a ses the ear and then a resumption of pay be ,tw een the b argaining c mitteem o th e Unin and he- raises on a fairly scheduled annual basis, although many tween the bargaining committee of the Union and the of the increases did not fall exactly on anniversary dates. bargaining committee of Respondent.' On June 7, 1979, Respondent instituted a policy of not Employee Eisenberg testified that, when she was em- ployed by Greene in mid-June 1979, Greene told her she granting any wage increases (with the exception of pro- uld be n r n r 6 mnt n she would be on probation for 6 months and if she did an bationary increases for new emoloyees). That practice continued until the pay and benefit increases had been acceptable job durng that time she would get a raise at made pursuant to the signing of a tentative agreement in the en d o f t ha t p e w o d w ould b e reviewed 6 months September 1980, referred to above. thereafter, and would receive subsequent raises if she The following letter dated November 15, 1979, was continued doing a competent job. Eisenberg said she re- ceived increases 6 months and 12 months after she was sent by Donald C. Ball, secretary of the Union, to Peter c e v e d c eas es ths and 12 months after she was Hickey, publisher of Respondent:y of t U t P initially hired. Six months after her second increase (De- cember 1979 or January 1980) she asked Greene for a This letter is to inform you that International Ty- raise inasmuch as she thought she was doing a good job. pographical Union No. 379 has no objections to the Greene responded that he thought she was doing a good Ithaca Journal putting into effect scheduled pay in- job and would like to give her a raise but could not "be- creases in the newsroom. It is to be understood that cause the labor negotiations are under way." 3 She said any increases put into effect will not prejudice our that, after that, Greene gave her the same answer when contract negotiations in the newsroom. she asked for a raise on other occasions. Because of rate of inflation and also due to the Maines testified that, when he was hired by Greene in fact that some bargaining unit employees are over- February 1979, Greene told him he could expect a raise due on their raises, we would hope that you comply at the end of the 6-month probationary period and, if he with this request. made it through the period, he would be considered for a raise at the end of his first year and every year after B. Respondent's Past Practice that. Maines said he received an increase in June 1979, which Greene told him was based on merit but that Respondent contends that its past practice was as fol- when he asked Greene about a raise after he had worked lows: *when he asked Greene about a raise after he had worked lows: „„ ,, WS:^~~~ 2.1 < i.-~ -for a year (February 8, 1980) Greene told him he had When Al Greene' took over from his predecessor he for a year (February 8, 1980) Greene told him he had done good work; that Greene was not unhappy at all did not become aware of any written or verbal policy with work; that he wl le to i a rais g py i s He e a with his work; that he would love to give him a raise; concerning pay increases. He established a policy of but he could not because his hands were tied by the but he could not because his hands were tied by the granting an increase if the individual successfully com- union matter.4 pleted a 6-month probation period after hire and, after E oe Juih Ho n tiid t s a fo the employee passed that threshold, the policy was to Employee Judith Horstman testified that she asked for give employees discretionary increases based on their a r aise nart en d o f 9 79 a and G ree ne respode t h a t performance. Respondent also contends that Greene had while contract negotiations were in progress he could not grant an increase because his hands were tied. It was no particular system for giving raises; that if the reporter o t g r a t an r ease b eca use on stated would not hav felt he was doing a good job he would ask for a raise or d e t t e on stated i w n ae any objection if Respondent granted wage increases on if Greene felt the reporter was doing a good job he a n y o b ec t o n f p wage increases on Greene lt the reporter was dog a good Job he behalf of bargaining unit members as it had done in the would initiate a request for a raise for that employee. Employee requests were not always granted. p a The General Counsel, on the other hand, contends C. The Alleged Promise of Pay Raises if the that, prior to June 1979, Respondent had a clearly estab- Employees Would Decertify the Union lished past practice of granting periodic merit increases for newsroom employees. The pattern appears to have Judith Horstman further testified that, in late February or early March 1980, she again asked Greene for a raise. As of the date of the hearing in this case, the agreement had not yet been ratified and signed. Pay and benefit increases pursuant to that tenta- Referring to the collective-bargaining negotiations that were under tive agreement, however, had been effected. way at the time. ' The name "Al Greene" is spelled "Al Green" in Respondent's brief. ' Greene did not deny the substance of these conversations with Eisen- But the record establishes that the correct spelling is Al Greene. berg and Maines. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1I. THE LABOR ORGANIZATION INVOLVED varied from time to time but generally those increases Ithaca Typographical Union No. 379 is a labor organi- w e r e granted o n y ea r l y ba ses o r at 6-m o n t h in t e r v al s. zation within the meaning of Section 2(5) of the Act. F o u r newsroom employees testified, Judith Horstman, John Maines, Carol Eisenberg, and Jane Marcham, con- Ill. THE ALLEGED UNFAIR LABOR PRACTICES cerning what they were told at the time they were ini- tially hired and with respect to their actual history of in- A. Background creases while employed by Respondent. Their testimony On June 1, 1979, the Union fied a petition to represent reveals that there was indeed a pattern, albeit a varied On June 1, 1979, the Union filed a petition to representri 11 i 1 . newsroomemployee of Respondent.The eletion w one. The payroll records in evidence reveal that, after newsroom employees of Respondent. The election was .. / ' ., the 6-month probationary increase, employees received held on August 8, 1979, and the Union was subsequently t e 6 ^ o t Pbanryncasmpyeseevd heldon Agus 8, 979 andthe nio wassubequetly pay raises practically every year, In some cases employ- certified. Negotiations for a collective-bargaining con- e s e ree redtwcay every year fole no pay tract began in August 1979 and continued until Septem- r es the l ow ing y ear and heny no pay ber 1980, when a tentative agreement was reached be- r aises t h e a fairlyg year and then a resumption of pay tween the bargaining committee of the Union and the ral ses °" a fairly scheduled annual basis, although many tween the bargaining committee of RespondetheUnionan o f th e in c r e ases d id no t fall exactly o n anniversary dates. On June 7, 1979, Respondent instituted a policy of not E m p lo y ee Eisenberg testified that, when she was em- On Jne , 179,Respndet istiuteda plic ofnot ployed by Greene in mid-June 1979, Greene told her she granting any wage increases (with the exception of pro- woul d be on in forJ6 1979 and if she bationary increases for new emoloyees). That practice b e jobatin tor time she did at continued until the pay and benefit increases had beenacceptable job during that time she would get a raise at made pursuant to the signing of a tentative agreement in t h e en d o f t ha t p erio d , w o u ld b e reviewed 6 months September 1980, referred to above. thereafter, and would receive subsequent raises if she The following letter dated November 15. 1979, was continued doing a competent job. Eisenberg said she re- sent by Donald C. Ball, secretary of the Union, to Peter c eiv e d inceases 6 months and 12 months after she was Hickey, publisher of Respondent: initially h ir ed. Six mo n t h s a f te r h er se c o n d increase (De- cember 1979 or January 1980) she asked Greene for a This letter is to inform you that International Ty- raise inasmuch as she thought she was doing a good job. pographical Union No. 379 has no objections to the Greene responded that he thought she was doing a good Ithaca Journal putting into effect scheduled pay in- job and would like to give her a raise but could not "be- creases in the newsroom. It is to be understood that cause the labor negotiations are under way." 3 She said any increases put into effect will not prejudice our t h a t, after that, Greene gave her the same answer when contract negotiations in the newsroom. s h e asked for a raise on other occasions. Because of rate of inflation and also due to the Maines testified that, when he was hired by Greene in fact that some bargaining unit employees are over- February 1979, Greene told him he could expect a raise due on their raises, we would hope that you comply at the end of the 6-month probationary period and, if he with this request. made it through the period, he would be considered for a raise at the end of his first year and every year after B. Respondent's Past Practice that. Maines said he received an increase in June 1979, Respondent contend that its past practice ws as f- which Greene told him was based on merit but that low: when he asked Greene about a raise after he had worked „„ ,, ^ 2.1 <* i.- -i i-t~or a year (February 8, 1980) Greene told him he had When Al Greene' took over from his predecessor he fo a .ea ( 8, 1 G t h a ,., . , „ .. * . . ,. ~~~done good work; that Greene was not unhappy at al did not become aware of any written or verbal policy d g wok ta 1en w n ua tl concerning pay incr s He e d a pwith his work; that he would love to give him a raise; concerning pay increases. He established a policy of i. 1 .1 ri i .*1 i granting an increase if the individual successfullybut he could not because his hands were tied by the granting an increase if the individual successfully corn- 'io matrr pleted a 6-month probation period after hire and, after i matte.' the employee passed that threshold, the policy was to Employee Judith Horstman testified that she asked for give employees discretionary increases based on their a r aise n ear t h e en d o f 19 79 , and G r ee ne responded t h a t performance. Respondent also contends that Greene had w h ile c o n t r ac t negotiations w er e in progress he could no particular system for giving raises; that if the reporter no t .g r ant an in c r ease be c a use h is h an d s w er e tied . I t w as felt he was doing a good job he would ask for a raise or duig thi t im e t h a t the Union stated it would not have if Greene felt the reporter was doing a good job he a n y o bjec tio n if Rponden gat wage increases on would initiate a request for a raise for that employee. b o f bargaining unit members as it had done in the Employee requests were not always granted. p ast. The General Counsel, on the other hand, contends C. The Alleged Promise of Pay Raises if the that, prior to June 1979, Respondent had a clearly estab- Employees Would Decertify the Union lished past practice of granting periodic merit increases for newsroom employees. The pattern appears to have Judith Horstman further testified that, in late February or early March 1980, she again asked Greene for a raise. 'As of the date of the hearing in this case, the agreement had not yet been ratified and signed. Pay and benefit increases pursuant to that tenta- Referring to the collective-bargaining negotiations that were under tive agreement, however, had been effected,.way at the time. ' The name "Al Greene" is spelled "Al Green" in Respondent's brief. ' Greene did not deny the substance of these conversations with Eisen- But the record establishes that the correct spelling is Al Greene. berg and Maines. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1I. THE LABOR ORGANIZATION INVOLVED varied from time to time but generally those increases Ithaca Typographical Union No. 379 is a labor organi- w e r e granted o n y ea r l y bas es o r at 6-m o n t h in t e r v al s. zation within the meaning of Section 2(5) of the Act. F o u r newsroom employees testified, Judith Horstman, John Maines, Carol Eisenberg, and Jane Marcham, con- Ill. THE ALLEGED UNFAIR LABOR PRACTICES cerning what they were told at the time they were ini- tially hired and with respect to their actual history of in- A. Background creases while employed by Respondent. Their testimony On June 1, 1979, the Union fied a petition to represent reveals that there was indeed a pattern, albeit a varied On June 1, 1979, the Union filed a petition to representri 11 i . newsroomemployee of Respondent.The eletion w one. The payroll records in evidence reveal that, after newsroom employees of Respondent. The election was .. / ' ., the 6-month probationary increase, employees received held on August 8, 1979, and the Union was subsequently t h - n n t rb oayicesepoesrcie heldon Agus 8, 979 andthe nio wassubequetly pay raises practically every year, In some cases employ- certified. Negotiations for a collective-bargaining con- e es redtwpay every year fole no pay tract began in August 1979 and continued until Septem- r es the l ow ing y ear andthny no pay ber 1980, when a tentative agreement was reached be- r aises t h e a fairlyg year and then a resumption of pay tween the bargaining committee of the Union and the ral ses °" a 'airly scheduled annual basis, although many tween the bargaining committee of RespondetheUnionan o f th e in c reases d id no t fall exactly on anniversary dates. On June 7, 1979, Respondent instituted a policy of not E m p lo y ee Eisenberg testified that, when she was em- On Jne , 179,Respndet istiuteda plic ofnot ployed by Greene in mid-June 1979, Greene told her she granting any wage increases (with the exception of pro- woul d be on in forJ6 1979 and if she bationary increases for new emoloyees). That practice b e jobatin tor time she did at continued until the pay and benefit increases had beenacceptable job during that time she would get a raise at made pursuant to the signing of a tentative agreement in t h e en d o f t ha t p erio d , w o u ld b e reviewed 6 months September 1980, referred to above. thereafter, and would receive subsequent raises if she The following letter dated November 15. 1979, was continued doing a competent job. Eisenberg said she re- sent by Donald C. Ball, secretary of the Union, to Peter c eiv e d increases 6 months and 12 months after she was Hickey, publisher of Respondent: initially h ir ed. Six mo n t h s a f te r h er se c o n d increase (De- cember 1979 or January 1980) she asked Greene for a This letter is to inform you that International Ty- raise inasmuch as she thought she was doing a good job. pographical Union No. 379 has no objections to the Greene responded that he thought she was doing a good Ithaca Journal putting into effect scheduled pay in- job and would like to give her a raise but could not "be- creases in the newsroom. It is to be understood that cause the labor negotiations are under way." 3 She said any increases put into effect will not prejudice our t h a t, after that, Greene gave her the same answer when contract negotiations in the newsroom. s h e asked for a raise on other occasions. Because of rate of inflation and also due to the Maines testified that, when he was hired by Greene in fact that some bargaining unit employees are over- February 1979, Greene told him he could expect a raise due on their raises, we would hope that you comply at the end of the 6-month probationary period and, if he with this request. made it through the period, he would be considered for a raise at the end of his first year and every year after B. Respondent's Past Practice that. Maines said he received an increase in June 1979, Respondent contend that its past practice ws as f- which Greene told him was based on merit but that low: when he asked Greene about a raise after he had worked „„ ,, ^ 2.1 <* i.- j i~~~tor a year (February 8, 1980) Greene told him he had When Al Greene' took over from his predecessor he fo a .ea ( 8, 1 G t h a ,., . , „ .. * . . ,. ~~~done good work; that Greene was not unhappy at al did not become aware of any written or verbal policy d g wok ta 1en w n ua tl concerning pay incr s He e d a pwith his work; that he would love to give him a raise; concerning pay increases. He established a policy of i. 1 .1 ri i .*1 i granting an increase if the individual successfullybut he could not because his hands were tied by the granting an increase if the individual successfully corn- 'io matrr pleted a 6-month probation period after hire and, after i matte.' the employee passed that threshold, the policy was to Employee Judith Horstman testified that she asked for give employees discretionary increases based on their a r aise n ear t h e en d o f 19 79 , and G r ee ne responded t h a t performance. Respondent also contends that Greene had w h ile c o n t r ac t negotiations w er e in progress he could no particular system for giving raises; that if the reporter no t .g r ant an in c r ease be c a use h is h an d s w er e tied . I t w as felt he was doing a good job he would ask for a raise or duig thi t im e t h a t the Union stated it would not have if Greene felt the reporter was doing a good job he a n y o bjec tio n if Rponden gn wage increases on would initiate a request for a raise for that employee. b o f bargaining unit members as it had done in the Employee requests were not always granted. p ast. The General Counsel, on the other hand, contends C. The Alleged Promise of Pay Raises if the that, prior to June 1979, Respondent had a clearly estab- Employees Would Decertify the Union lished past practice of granting periodic merit increases for newsroom employees. The pattern appears to have Judith Horstman further testified that, in late February or early March 1980, she again asked Greene for a raise. 'As of the date of the hearing in this case, the agreement had not yet been ratified and signed. Pay and benefit increases pursuant to that tenta- Referring to the collective-bargaining negotiations that were under tive agreement, however, had been effected,.way at the time. ' The name "Al Greene" is spelled "Al Green" in Respondent's brief. ' Greene did not deny the substance of these conversations with Eisen- But the record establishes that the correct spelling is Al Greene. berg and Maines. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1I. THE LABOR ORGANIZATION INVOLVED varied from time to time but generally those increases Ithaca Typographical Union No. 379 is a labor organi- w e r e granted o n y early bas es o r at 6-m o n t h in t e r v al s. zation within the meaning of Section 2(5) of the Act. F o u r newsroom employees testified, Judith Horstman, John Maines, Carol Eisenberg, and Jane Marcham, con- Ill. THE ALLEGED UNFAIR LABOR PRACTICES cerning what they were told at the time they were ini- tially hired and with respect to their actual history of in- A. Background creases while employed by Respondent. Their testimony On June 1, 1979, the Union fied a petition to represent reveals that there was indeed a pattern, albeit a varied On June 1, 1979, the Union filed a petition to representri 11 i . newsroomemployee of Respondent.The eletion w one. The payroll records in evidence reveal that, after newsroom employees of Respondent. The election was .. / ' ., the 6-month probationary increase, employees received held on August 8, 1979, and the Union was subsequently t h - n n t rb oayicesepoesrcie heldon Agus 8, 979 andthe nio wassubequetly pay raises practically every year, In some cases employ- certified. Negotiations for a collective-bargaining con- e es redw ay every year fole no pay tract began in August 1979 and continued until Septem- r es the l ow ing y ear andthny no pay ber 1980, when a tentative agreement was reached be- r aises t h e a fairlyg year and then a resumption of pay tween the bargaining committee of the Union and the ral ses °" a 'a'rlv scheduled annual basis, although many tween the bargaining committee of RespondetheUnionan o f th e in c r e ases d id no t fall exactly on anniversary dates. On June 7, 1979, Respondent instituted a policy of not E m p lo y ee Eisenberg testified that, when she was em- On Jne , 179,Respndet istiuteda plic ofnot ployed by Greene in mid-June 1979, Greene told her she granting any wage increases (with the exception of pro- woul d be on in forJ6 1979 and if she bationary increases for new emoloyees). That practice b e jobatin tor time she did at continued until the pay and benefit increases had beenacceptable job during that time she would get a raise at made pursuant to the signing of a tentative agreement in t h e en d o f t ha t p erio d , w o u ld b e reviewed 6 months September 1980, referred to above. thereafter, and would receive subsequent raises if she The following letter dated November 15. 1979, was continued doing a competent job. Eisenberg said she re- sent by Donald C. Ball, secretary of the Union, to Peter c eiv e d increases 6 months and 12 months after she was Hickey, publisher of Respondent: initially h ir ed. Six mont h s a f te r h er se c o n d increase (De- cember 1979 or January 1980) she asked Greene for a This letter is to inform you that International Ty- raise inasmuch as she thought she was doing a good job. pographical Union No. 379 has no objections to the Greene responded that he thought she was doing a good Ithaca Journal putting into effect scheduled pay in- job and would like to give her a raise but could not "be- creases in the newsroom. It is to be understood that cause the labor negotiations are under way." 3 She said any increases put into effect will not prejudice our that, after that, Greene gave her the same answer when contract negotiations in the newsroom. s h e asked for a raise on other occasions. Because of rate of inflation and also due to the Maines testified that, when he was hired by Greene in fact that some bargaining unit employees are over- February 1979, Greene told him he could expect a raise due on their raises, we would hope that you comply at the end of the 6-month probationary period and, if he with this request. made it through the period, he would be considered for a raise at the end of his first year and every year after B. Respondent's Past Practice that. Maines said he received an increase in June 1979, Respondent contend that its past practice ws as f- which Greene told him was based on merit but that low: when he asked Greene about a raise after he had worked „„ ,, ^ 2.1 <* i.- -i i-t~or a year (February 8, 1980) Greene told him he had When Al Greene' took over from his predecessor he fo a .ea ( 8, 1 G t h a ,., . , „ .. * . . ,. ~~~done good work; that Greene was not unhappy at al did not become aware of any written or verbal policy d g wok ta 1en w n ua tl concerning pay incr s He e d a pwith his work; that he would love to give him a raise; concerning pay increases. He established a policy of i. 1 .1 ri i .*1 i granting an increase if the individual successfullybut he could not because his hands were tied by the granting an increase if the individual successfully corn- 'io matrr pleted a 6-month probation period after hire and, after i matte.' the employee passed that threshold, the policy was to Employee Judith Horstman testified that she asked for give employees discretionary increases based on their a r aise n ear t h e en d o f 19 79 , and G r ee ne responded t h a t performance. Respondent also contends that Greene had w h ile c o n t r ac t negotiations w er e in progress he could no particular system for giving raises; that if the reporter no t .g r ant an in c r ease be c a use h is h an d s w er e tied . I t w as felt he was doing a good job he would ask for a raise or duig thi tim e t h a t the Union stated it would not have if Greene felt the reporter was doing a good job he a n y o bjec tio n if Rponden gn wage increases on would initiate a request for a raise for that employee. beh a l o f bargaining unit members as it had done in the Employee requests were not always granted. p ast. The General Counsel, on the other hand, contends C. The Alleged Promise of Pay Raises if the that, prior to June 1979, Respondent had a clearly estab- Employees Would Decertify the Union lished past practice of granting periodic merit increases for newsroom employees. The pattern appears to have Judith Horstman further testified that, in late February or early March 1980, she again asked Greene for a raise. 'As of the date of the hearing in this case, the agreement had not yet been ratified and signed. Pay and benefit increases pursuant to that tenta- Referring to the collective-bargaining negotiations that were under tive agreement, however, had been effected,.way at the time. ' The name "Al Greene" is spelled "Al Green" in Respondent's brief. ' Greene did not deny the substance of these conversations with Eisen- But the record establishes that the correct spelling is Al Greene. berg and Maines. THE ITHACA JOURNAL-NEWS, INC. 399 Horstman said that Greene responded stating that she de- D. Mileage Reimbursement served a raise but his hands were tied while they were The employees of Respondent who use their own negotiating. Horstman further testified that, when she automobiles in connection with their work were reim- *. -, . ._i^ *-i for . automobiles in connection with their work were reim- agamin asked for a raise, Greene said, "[l]f you want a again asked for a raise, Greene said, f you want a bursed a mileage rate which was increased on occasion. raise decertify the Union and then you ll get your raise decertify the Union and then you'll get your Such increases were published by Respondent by placing ~~~~ra~i~~~se"'5~" ,a notice on the employee bulletin board. Eisenberg further testified that Greene took her out to Employee John Huenneke testified that in February lunch sometime in early April 1980. She told him that 1980, upon learning that the advertising department had staff members were unhappy about not getting increases een given an increase in the mileage rate, but not the and that Greene replied that he was aware of it and that newsroom employees, he told Terry Hopkins, publisher, he was sorry about it, but that there was nothing he that the newsroom employees were being treated discri- could do. According to Eisenberg, Greene further stated minatorily. Hopkins responded that the Company did not that he had warned all of them before they voted that want to break the law; that the Company and the Union once a union came in it would not be Al Greene negoti- were involved in contract negotiations; that she felt mile- ating with Carol Eisenberg, but the Ithaca Typographi- age reimbursement was a subject for bargaining; and that cal Union representative talking to a Gannett representa- the Company could not change the rate for the news- tive from Rochester. Greene then said, "Don't you real- room employees at that time.7 Huenneke's testimony was ize money is in the budget if you decertify." Eisenberg not controverted. I credit it. testified further that Greene told her she should find out what it meant to come to impasse. E. Discussion and Conclusions Greene testified concerning the conversations with Horstman and Eisenberg on the topic of decertification. That Respondent's decision to freeze wages of the Greene's memory was bad with regard to the conversa- newsroom employees was made prior to the 10(b) period tion with Horstman, testifying that he did not recall who is not in issue. The fact that Respondent refused to grant initiated the conversation and that he could not remem- merit increases to the newsroom employees from that ber any specific conversation. He also said he could not date (except increases granted in September 1980 pursu- recall how the topic of decertification came up. He said ant to the tentatve agreement) because of union negota- he had a standard answer when people started talking o ns not n issue. That the Un o n n N o v em be r 19 79 about decertification and he recited that standard answer. notified Respondent that it had no objection to its grant- about decertification and he recited that standard answer. ing pay increases to employees in the unit according to He said his standard answer was, "It was up to the news- ing pay increases to employees in the unit according to „ _ ~.- ,~ . . . ,., ,. past practice is also not in issue. room." Greene testified that he did recall a conversation i a n i Contrary to the contention of Respondent, the record with Eisenberg in which she said it was clear, from the Contrary to the contention of Respondent, the record Company's attitude, tt ty w d te n m to substantiates a past practice of granting increases to em- Company's attitude, that they wanted the newsroom to crti .fy. . .tl . th.at iployees in the newsroom annually, although not neces- decertify. He told her that it was up to the newsroomversary dates (the testimony of the wit- sarily on anniversary dates (the testimony of the wit- and said that there was no other discussion. nesses and the payroll sheets received in evidence). Ac- Greene said he remembered the conversation with E cordingly, I do not agree with Respondent that it was in senberg in which they talked about the Union and what a "damned if you do, damned if you don't" situation was happening in the Union and about raises for the with respect to granting merit increases during negotia- people. He said Eisenberg wanted to know if there were tions.8 As in General Motors Acceptance Corporation, 196 room in the budget for raises and he said there was. NLRB 137 (1972), enfd. 476 F.2d 850 (1st Cir. 1973), Re- Greene admitted stating, "I said my hands were tied and spondent had a longstanding policy of evaluating em- I couldn't do anything." Greene further testified that Ei- ployee performance and rewarding such performance senberg then said it was clear the Company wanted the with wage increases. Such a practice was an existing newsroom to decertify but Greene denied saying that if form of compensation, and a term and condition of em- they would decertify that they would be able to get their ployment regularly expected by the employees. And raises. 6 even though an element of discretion predicated upon prior merit review was exercised by Respondent with re- ' Horstman stated that she did not bring up the decertification and that spect to the unit employees after Al Greene became in Greene did. charge it did not make it an less a past policy of Re- 6 With respect to the testimony of the conversations between Greene c i and the employees discussed above, I credit the employees' version and spondent. Accordingly, Respondent could have contin- not Greene's. As stated above, Greene's memory was poor on specifics. ued its past policy, especially in view of the acquiescence He spoke hesitantly and, on occasion, upon further questioning he either of the Union, and not have violated the law. Instead, be- revealed more or gave a different version. Each employee testified in a negotiations with the Union, Respondent clear and convincing manner, unhesitantly and consistently. Moreover, Greene testified that he had no regular system to evaluate employees, but rather, when somebody's work was really "sparkling," he decided to give The mileage rate for advertising and newsroom departments was in- him or her an increase. In the latter regard, Greene's testimony is contra- creased from 13-1/2 cents to 14-1/2 cents per mile on May 30. 1979. On dieted both by the payroll sheets of newer employees and the testimony January 22, 1980, the mileage rate for the advertising department was in- of Maines and Eisenberg concerning statements made by Greene at the creased from 15-1/2 cents per mile to 16-1/2 cents Thus, the advertising time they were hired Greene said that 5 out of the 27 employees "spar- department received two mileage rate increases after May 30, 1979, kled" in June 1979, and therefore received merit increases The payroll which were not received by the newsroom department. sheets reveal that nine employees must have "sparkled" inasmuch as nine The Union's request in November that Respondent grant those in- employees were granted increases in early June 1979. creases should have relieved Respondent's doubts of legality. THE ITHACA JOURNAL-NEWS, INC. 399 Horstman said that Greene responded stating that she de- D. Mileage Reimbursement served a raise but his hands were tied while they were T e of R w u t „ , ,. , . ..,- .. . . The employees of Respondent who use their own negotiating. Horstman further testified that, when she automobiles in connection with their work were reim- agamn asked for a raise, Greene said, "[I]f you want a ^^ ^^ ^ ^ ^ ^ ^ agai ased or raie, reee sid, [I~ yo wat a bursed a mileage rate which was increased on occasion. raise decertify the Union and then you'll get your such increases were published by Respondent by placing raise." a notice on the employee bulletin board. Eisenberg further testified that Greene took her out to Employee John Huenneke testified that in February lunch sometime in early April 1980. She told him that 1980, upon learning that the advertising department had staff members were unhappy about not getting increases been given an increase in the mileage rate, but not the and that Greene replied that he was aware of it and that newsroom employees, he told Terry Hopkins, publisher, he was sorry about it, but that there was nothing he that the newsroom employees were being treated discri- could do. According to Eisenberg, Greene further stated minatorily. Hopkins responded that the Company did not that he had warned all of them before they voted that want to break the law; that the Company and the Union once a union came in it would not be Al Greene negoti- were involved in contract negotiations; that she felt mile- ating with Carol Eisenberg, but the Ithaca Typographi- age reimbursement was a subject for bargaining; and that cal Union representative talking to a Gannett representa- the Company could not change the rate for the news- tive from Rochester. Greene then said, "Don't you real- room employees at that time.7 Huenneke's testimony was ize money is in the budget if you decertify." Eisenberg not controverted. I credit it. testified further that Greene told her she should find out what it meant to come to impasse. E. Discussion and Conclusions Greene testified concerning the conversations with Horstman and Eisenberg on the topic of decertification. T h at Respondent's decision to freeze wages of the Greene's memory was bad with regard to the conversa- newsroom employees was made prior to the 10(b) period tion with Horstman, testifying that he did not recall who is no t in is su e . T h e fa c t t h at Respondent refused to grant initiated the conversation and that he could not remem- m erit increases to the newsroom employees from that ber any specific conversation. He also said he could not d a te (except in c r eas es granted in September 1980 pursu- recall how the topic of decertification came up. He said an t to t h e t e n ta tiv e agreement) because of union negotia- he had a standard answer when people started talking tio n s is n o t in is su e . T h a t t h e U n io n in N o v e m b e r 19 7 9 about decertification and he recited that standard answer. notified Respondent that it had no objection to its grant- ,, .,,. , , „, .,~~~~~~~ing pay increases to employees in the unit according to He said his standard answer was, "It was up to the news- i p i t e i tc „ _ .- , . . . ,., „ * ,. ~~~past practice is also not in issue. room." Greene testified that he did recall a conversation p is a n i issue. .,, c. , * i.. i. i. *,. i r .1Contrary to the contention of Respondent, the record with Eisenberg in which she said it was clear, from the C t th c o R Company's attitude, that they wanted the newsroom to substantiates a past practice of granting increases to em- Company s attitude, that they wanted the newsroom to , ., if i , * r' . ,, . .1. . . .i-~~ployees in the newsroom annually, although not neces- decertify. He told her that it was up to the newsroom ployees (the testhonot thes- and sid tht thre wa no oher iscusion.sarily on anniversary dates (the testimony of the wit- and said that there was no other discussion. „^ einc)A- Greee sad heremmberd th conerstionwithEi- nesses and the payroll sheets received in evidence). Ac- cordingly, I do not agree with Respondent that it was in senberg in which they talked about the Union and what a "damned if you do, damned if you don't" situation was happening in the Union and about raises for the with respect to granting merit increases during negotia- people. He said Eisenberg wanted to know if there were tions." As in General Motors Acceptance Corporation, 196 room in the budget for raises and he said there was. NLRB 137 (1972), enfd. 476 F.2d 850 (1st Cir. 1973), Re- Greene admitted stating, "I said my hands were tied and spondent had a longstanding policy of evaluating em- I couldn't do anything." Greene further testified that Ei- ployee performance and rewarding such performance senberg then said it was clear the Company wanted the with wage increases. Such a practice was an existing newsroom to decertify but Greene denied saying that if form of compensation, and a term and condition of em- they would decertify that they would be able to get their ployment regularly expected by the employees. And raises.6 even though an element of discretion predicated upon prior merit review was exercised by Respondent with re- s Horstman stated that she did not bring up the decertification and that spect to the unit employees after Al Greene became in G ree n e did. charge, it did not make it any less a past policy of Re- ' With respect to the testimony of the conversations between Greene and the employees discussed above. I credit the employees' version and spondent. Accordingly, Respondent Could have contin- not Greene's. As stated above, Greene's memory was poor on specifics. ued its past policy, especially in view of the acquiescence He spoke hesitantly and, on occasion, upon further questioning he either of the Union, and not have violated the law. Instead, be- revealed more or gave a different version. Each employee testified in a cause of the negotiations with the Union, Respondent clear and convincing manner, unhesitantly and consistently. Moreover, Greene testified that he had no regular system to evaluate employees, but rather, when somebody's work was really "sparkling," he decided to give The mileage rate for advertising and newsroom departments was in- him or her an increase. In the latter regard. Greene's testimony is contra- creased from 13-1/2 cents to 14-1/2 cents per mile on May 30. 1979. On dieted both by the payroll sheets of newer employees and the testimony January 22, 1980, the mileage rate for the advertising department was in- of Maines and Eisenberg concerning statements made by Greene at the creased from 15-1/2 cents per mile to 16-1/2 cents. Thus, the advertising time they were hired. Greene said that 5 out of the 27 employees "spar- department received two mileage rate increases after May 30, 1979, kled" in June 1979, and therefore received merit increases. The payroll which were not received by the newsroom department. sheets reveal that nine employees must have "sparkled" inasmuch as nine I The Union's request in November that Respondent grant those in- employees were granted increases in early June 1979. creases should have relieved Respondent's doubts of legality. THE ITHACA JOURNAL-NEWS, INC. 399 Horstman said that Greene responded stating that she de- D. Mileage Reimbursement served a raise but his hands were tied while they were T e of R w u t „ , ,. , . ..,- .. . . The employees of Respondent who use their own negotiating. Horstman further testified that, when she automobiles in connection with their work were reim- agamn asked for a raise, Greene said, "[I]f you want a ^^ ^^ ^ ^ ^ ^ ^ agai ased or raie, reee sid, [I~ yo wat a bursed a mileage rate which was increased on occasion. raise decertify the Union and then you'll get your such increases were published by Respondent by placing raise." a notice on the employee bulletin board. Eisenberg further testified that Greene took her out to Employee John Huenneke testified that in February lunch sometime in early April 1980. She told him that 1980, upon learning that the advertising department had staff members were unhappy about not getting increases been given an increase in the mileage rate, but not the and that Greene replied that he was aware of it and that newsroom employees, he told Terry Hopkins, publisher, he was sorry about it, but that there was nothing he that the newsroom employees were being treated discri- could do. According to Eisenberg, Greene further stated minatorily. Hopkins responded that the Company did not that he had warned all of them before they voted that want to break the law; that the Company and the Union once a union came in it would not be Al Greene negoti- were involved in contract negotiations; that she felt mile- ating with Carol Eisenberg, but the Ithaca Typographi- age reimbursement was a subject for bargaining; and that cal Union representative talking to a Gannett representa- the Company could not change the rate for the news- tive from Rochester. Greene then said, "Don't you real- room employees at that time.7 Huenneke's testimony was ize money is in the budget if you decertify." Eisenberg not controverted. I credit it. testified further that Greene told her she should find out what it meant to come to impasse. E. Discussion and Conclusions Greene testified concerning the conversations with Horstman and Eisenberg on the topic of decertification. T h at Respondent's decision to freeze wages of the Greene's memory was bad with regard to the conversa- newsroom employees was made prior to the 10(b) period tion with Horstman, testifying that he did not recall who is no t in is su e . T h e fa c t t h at Respondent refused to grant initiated the conversation and that he could not remem- m erit increases to the newsroom employees from that ber any specific conversation. He also said he could not d a te (except in c r eas es granted in September 1980 pursu- recall how the topic of decertification came up. He said an t to t h e t e n ta tiv e agreement) because of union negotia- he had a standard answer when people started talking tio n s is n o t in is su e . T h a t t h e U n io n in N o v e m b e r 19 7 9 about decertification and he recited that standard answer. notified Respondent that it had no objection to its grant- ,, .,,. , , „, .,~~~~~~~ing pay increases to employees in the unit according to He said his standard answer was, "It was up to the news- i p i t e i tc „ _ .- , . . . ,., „ * ,. ~~~past practice is also not in issue. room." Greene testified that he did recall a conversation p is a n i issue. .,, c. , * i.. i. i. *,. i r .1Contrary to the contention of Respondent, the record with Eisenberg in which she said it was clear, from the C t th c o R Company's attitude, that they wanted the newsroom to substantiates a past practice of granting increases to em- Company s attitude, that they wanted the newsroom to , ., if i , * r' . ,, . .1. . . .i-~~ployees in the newsroom annually, although not neces- decertify. He told her that it was up to the newsroom ployees (the testhonot thes- and sid tht thre wa no oher iscusion.sarily on anniversary dates (the testimony of the wit- and said that there was no other discussion.^ ^rcie neiec) c Greee sad heremmberd th conerstionwithEi- nesses and the payroll sheets received in evidence). Ac- cordingly, I do not agree with Respondent that it was in senberg in which they talked about the Union and what a "damned if you do, damned if you don't" situation was happening in the Union and about raises for the with respect to granting merit increases during negotia- people. He said Eisenberg wanted to know if there were tions." As in General Motors Acceptance Corporation, 196 room in the budget for raises and he said there was. NLRB 137 (1972), enfd. 476 F.2d 850 (1st Cir. 1973), Re- Greene admitted stating, "I said my hands were tied and spondent had a longstanding policy of evaluating em- I couldn't do anything." Greene further testified that Ei- ployee performance and rewarding such performance senberg then said it was clear the Company wanted the with wage increases. Such a practice was an existing newsroom to decertify but Greene denied saying that if form of compensation, and a term and condition of em- they would decertify that they would be able to get their ployment regularly expected by the employees. And raises.6 even though an element of discretion predicated upon prior merit review was exercised by Respondent with re- s Horstman stated that she did not bring up the decertification and that spect to the unit employees after Al Greene became in G ree n e did. charge, it did not make it any less a past policy of Re- ' With respect to the testimony of the conversations between Greene and the employees discussed above. I credit the employees' version and spondent. Accordingly, Respondent could have contin- not Greene's. As stated above, Greene's memory was poor on specifics. ued its past policy, especially in view of the acquiescence He spoke hesitantly and, on occasion, upon further questioning he either of the Union, and not have violated the law. Instead, be- revealed more or gave a different version. Each employee testified in a cause of the negotiations with the Union, Respondent clear and convincing manner, unhesitantly and consistently. Moreover, Greene testified that he had no regular system to evaluate employees, but rather, when somebody's work was really "sparkling," he decided to give The mileage rate for advertising and newsroom departments was in- him or her an increase. In the latter regard. Greene's testimony is contra- creased from 13-1/2 cents to 14-1/2 cents per mile on May 30. 1979. On dieted both by the payroll sheets of newer employees and the testimony January 22, 1980, the mileage rate for the advertising department was in- of Maines and Eisenberg concerning statements made by Greene at the creased from 15-1/2 cents per mile to 16-1/2 cents. Thus, the advertising time they were hired. Greene said that 5 out of the 27 employees "spar- department received two mileage rate increases after May 30, 1979, kled" in June 1979, and therefore received merit increases. The payroll which were not received by the newsroom department. sheets reveal that nine employees must have "sparkled" inasmuch as nine I The Union's request in November that Respondent grant those in- employees were granted increases in early June 1979. creases should have relieved Respondent's doubts of legality. THE ITHACA JOURNAL-NEWS, INC. 399 Horstman said that Greene responded stating that she de- D. Mileage Reimbursement served a raise but his hands were tied while they were T e of R w u t „ , ,. , . ..,- .. . . The employees of Respondent who use their own negotiating. Horstman further testified that, when she automobiles in connection with their work were reim- agamn asked for a raise, Greene said, "[I]f you want a ^^ ^^ ^ ^ ^ ^ ^ agai ased or raie, reee sid, [I~ yo wat a bursed a mileage rate which was increased on occasion. raise decertify the Union and then you'll get your such increases were published by Respondent by placing raise." a notice on the employee bulletin board. Eisenberg further testified that Greene took her out to Employee John Huenneke testified that in February lunch sometime in early April 1980. She told him that 1980, upon learning that the advertising department had staff members were unhappy about not getting increases been given an increase in the mileage rate, but not the and that Greene replied that he was aware of it and that newsroom employees, he told Terry Hopkins, publisher, he was sorry about it, but that there was nothing he that the newsroom employees were being treated discri- could do. According to Eisenberg, Greene further stated minatorily. Hopkins responded that the Company did not that he had warned all of them before they voted that want to break the law; that the Company and the Union once a union came in it would not be Al Greene negoti- were involved in contract negotiations; that she felt mile- ating with Carol Eisenberg, but the Ithaca Typographi- age reimbursement was a subject for bargaining; and that cal Union representative talking to a Gannett representa- the Company could not change the rate for the news- tive from Rochester. Greene then said, "Don't you real- room employees at that time.7 Huenneke's testimony was ize money is in the budget if you decertify." Eisenberg not controverted. I credit it. testified further that Greene told her she should find out what it meant to come to impasse. E. Discussion and Conclusions Greene testified concerning the conversations with Horstman and Eisenberg on the topic of decertification. T h at Respondent's decision to freeze wages of the Greene's memory was bad with regard to the conversa- newsroom employees was made prior to the 10(b) period tion with Horstman, testifying that he did not recall who is no t in is su e . T h e fa c t t h at Respondent refused to grant initiated the conversation and that he could not remem- m erit increases to the newsroom employees from that ber any specific conversation. He also said he could not d a te (except in c r eas es granted in September 1980 pursu- recall how the topic of decertification came up. He said an t to t h e t e n ta tiv e agreement) because of union negotia- he had a standard answer when people started talking tio n s is n o t in is su e . T h a t t h e U n io n in N o v e m b e r 19 7 9 about decertification and he recited that standard answer. notified Respondent that it had no objection to its grant- ,, .,,. , , „, .,~~~~~~~ing pay increases to employees in the unit according to He said his standard answer was, "It was up to the news- i p i t e i tc „ _ .- , . . . ,., „ * ,. ~~~past practice is also not in issue. room." Greene testified that he did recall a conversation p is a n i issue. .,, c. , * i.. i. i. *,. i r .1Contrary to the contention of Respondent, the record with Eisenberg in which she said it was clear, from the C t th c o R Company's attitude, that they wanted the newsroom to substantiates a past practice of granting increases to em- Company s attitude, that they wanted the newsroom to , ., if i , * r' . ,, . .1. . . .i-~~ployees in the newsroom annually, although not neces- decertify. He told her that it was up to the newsroom ployees (the testhonot thes- and sid tht thre wa no oher iscusion.sarily on anniversary dates (the testimony of the wit- and said that there was no other discussion.^ ^rcie neiec) c Greee sad heremmberd th conerstionwithEi- nesses and the payroll sheets received in evidence). Ac- cordingly, I do not agree with Respondent that it was in senberg in which they talked about the Union and what a "damned if you do, damned if you don't" situation was happening in the Union and about raises for the with respect to granting merit increases during negotia- people. He said Eisenberg wanted to know if there were tions." As in General Motors Acceptance Corporation, 196 room in the budget for raises and he said there was. NLRB 137 (1972), enfd. 476 F.2d 850 (1st Cir. 1973), Re- Greene admitted stating, "I said my hands were tied and spondent had a longstanding policy of evaluating em- I couldn't do anything." Greene further testified that Ei- ployee performance and rewarding such performance senberg then said it was clear the Company wanted the with wage increases. Such a practice was an existing newsroom to decertify but Greene denied saying that if form of compensation, and a term and condition of em- they would decertify that they would be able to get their ployment regularly expected by the employees. And raises.6 even though an element of discretion predicated upon prior merit review was exercised by Respondent with re- s Horstman stated that she did not bring up the decertification and that spect to the unit employees after Al Greene became in G ree n e did. charge, it did not make it any less a past policy of Re- ' With respect to the testimony of the conversations between Greene and the employees discussed above. I credit the employees' version and spondent. Accordingly, Respondent Could have contin- not Greene's. As stated above, Greene's memory was poor on specifics. ued its past policy, especially in view of the acquiescence He spoke hesitantly and, on occasion, upon further questioning he either of the Union, and not have violated the law. Instead, be- revealed more or gave a different version. Each employee testified in a cause of the negotiations with the Union, Respondent clear and convincing manner, unhesitantly and consistently. Moreover, Greene testified that he had no regular system to evaluate employees, but rather, when somebody's work was really "sparkling," he decided to give The mileage rate for advertising and newsroom departments was in- him or her an increase. In the latter regard. Greene's testimony is contra- creased from 13-1/2 cents to 14-1/2 cents per mile on May 30. 1979. On dieted both by the payroll sheets of newer employees and the testimony January 22, 1980, the mileage rate for the advertising department was in- of Maines and Eisenberg concerning statements made by Greene at the creased from 15-1/2 cents per mile to 16-1/2 cents. Thus, the advertising time they were hired. Greene said that 5 out of the 27 employees "spar- department received two mileage rate increases after May 30, 1979, kled" in June 1979, and therefore received merit increases. The payroll which were not received by the newsroom department. sheets reveal that nine employees must have "sparkled" inasmuch as nine I The Union's request in November that Respondent grant those in- employees were granted increases in early June 1979. creases should have relieved Respondent's doubts of legality. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suspended merit increases which it would otherwise have partment employees even though there is an established given to its employees. 9 past practice of giving such increases, Respondent violat- In this case Respondent's conduct included a statement ed Section 8(a)(3) and (1) of the Act. by Managing Editor Greene to at least two employees I also find that the statements made by Al Greene to which, at best, inferred that the employees would receive the effect that, if the employees decertified the Union increases if they decertified the Union inasmuch as there they would receive raises, constitute interference, re- was money for such increase in the budget. By its con- straint, and coercion of employees in the free exercise of duct, Respondent, in effect, placed full responsibility on Section 7 rights in violation of Section 8(a)(1) of the Act. the Union for the employees' failure to receive their merit increases. The message conveyed to the employees CONCLUSIONS OF LAW was clear-to obtain their scheduled merit increases they first had to abandon the Union. General Motors Accept- 1. Respondent is an employer engaged in commerce ance Corporation, supra. within the meaning of Section 2(6) and (7) of the Act. I consider Respondent's conduct as being equivalent to 2. The Union is a labor organization within the mean- Respondent's conduct in General Motors Acceptance Cor- ing of Section 2(5) of the Act. poration, supra, wherein the Board stated, "The evil of 3. By interfering with, restraining, and coercing its em- the Respondent's actions was further compounded by the ployees in the exercise of rights guaranteed in Section 7 Respondent's coercive poll by which it sought to present of the Act, by discriminatorily denying merit increases to evidence of employee dissatisfaction with the Union." newsroom employees and by discriminatorily refusing to I conclude that Respondent's attempts to decertify the raise the mileage allowance for newsroom employees be- Union, by withholding merit increases and stating that cause the newsroom employees selected the Union as they would receive them if they decertified, interfered their collective-bargaining representative, thereby dis- with, restrained, and coerced employees in the free exer- couraging membership in the Union, Respondent violat- cise of their Section 7 rights in violation of Section ed Section 8(a)(l) and (3) of the Act. 8(a)(1) of the Act. I find, further, Respondent discriminatorily discontin- THE REMEDY ued the practice of periodic merit increases and denied employees increases during the 10(b) period, t 0 which in- Having found that Respondent committed certain creases would have been granted to these employees unfair labor practices, I find it necessary to order Re- absent the Union, because the newsroom employees se- spondent to cease and desist therefrom and to take cer- lected the Union as their collective-bargaining repre- tain affirmative action designed to effectuate the policies sentative, thereby discouraging union membership by and purposes of the Act. I shall recommend that, in addi- placing the blame for the discontinued merit increases on tion to posting a notice to employees, Respondent make the Union, in violation of Section 8(a)(3) and (1) of the whole those newsroom employees for any loss of wages Act. I find also that by refusing to grant an increase in and benefits they may have suffered because of Respond- the mileage reimbursement rate for newsroom employ- ent's discriminatory failure to grant merit increases and ees, while granting such an increase to advertising de- mileage rate increases after September 28, 1979." Such merit increases and mileage rate increases shall be paid as The testimony of witnesses indicated that Greene would have given prescribed in F. W. Woolworth Company, 90 NLRB 289 several of the unit employees merit increases but for the negotiations that (1950), with interest thereon to be computed in the were then being conducted. In addition, there is uncontroverted evidence manner prescribed in Florida Steel Corporation, 231 that Respondent paid new hires more after the 6-month increase than it did to unit employees, thus, in effect, penalizing the more senior employ- NLRB 651 (1977). See, generally, Isis Plumbing & Heat- ees for having voted for the Union. ing Co., 138 NLRB 716 (1962). 10 Each individual denial of a merit increase during the 10(b) period [Recommended Order omitted from publication.] constitutes a violation of the Act although the initial decision with re- spect to the policy of denials was made and disclosed prior to the 10(b) period. Pease Company, 251 NLRB 540 (1980); General Motors Acceptance " All conduct prior to that date comes within the proscription of Sec. Corporation, supra. 10(b) of the Act. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suspended merit increases which it would otherwise have partment employees even though there is an established given to its employees. 9 past practice of giving such increases, Respondent violat- In this case Respondent's conduct included a statement ed Section 8(a)(3) and (1) of the Act. by Managing Editor Greene to at least two employees I also find that the statements made by Al Greene to which, at best, inferred that the employees would receive the effect that, if the employees decertified the Union increases if they decertified the Union inasmuch as there they would receive raises, constitute interference, re- was money for such increase in the budget. By its con- straint, and coercion of employees in the free exercise of duct, Respondent, in effect, placed full responsibility on Section 7 rights in violation of Section 8(a)(l) of the Act. the Union for the employees' failure to receive their merit increases. The message conveyed to the employees CONCLUSIONS OF LAW was clear-to obtain their scheduled merit increases they first had to abandon the Union. General Motors Accept- 1. Respondent is an employer engaged in commerce ance Corporation, supra. within the meaning of Section 2(6) and (7) of the Act. I consider Respondent's conduct as being equivalent to 2. The Union is a labor organization within the mean- Respondent's conduct in General Motors Acceptance Cor- ing of Section 2(5) of the Act. poration, supra, wherein the Board stated, "The evil of 3. By interfering with, restraining, and coercing its em- the Respondent's actions was further compounded by the ployees in the exercise of rights guaranteed in Section 7 Respondent's coercive poll by which it sought to present of the Act, by discriminatorily denying merit increases to evidence of employee dissatisfaction with the Union." newsroom employees and by discriminatorily refusing to I conclude that Respondent's attempts to decertify the raise the mileage allowance for newsroom employees be- Union, by withholding merit increases and stating that cause the newsroom employees selected the Union as they would receive them if they decertified, interfered their collective-bargaining representative, thereby dis- with, restrained, and coerced employees in the free exer- couraging membership in the Union, Respondent violat- cise of their Section 7 rights in violation of Section ed Section 8(a)(l) and (3) of the Act. 8(a)(1) of the Act. I find, further, Respondent discriminatorily discontin- THE REMEDY ued the practice of periodic merit increases and denied employees increases during the 10(b) period," 0 which in- Having found that Respondent committed certain creases would have been granted to these employees unfair labor practices, I find it necessary to order Re- absent the Union, because the newsroom employees se- spondent to cease and desist therefrom and to take cer- lected the Union as their collective-bargaining repre- tain affirmative action designed to effectuate the policies sentative, thereby discouraging union membership by and purposes of the Act. I shall recommend that, in addi- placing the blame for the discontinued merit increases on tion to posting a notice to employees, Respondent make the Union, in violation of Section 8(a)(3) and (1) of the whole those newsroom employees for any loss of wages Act. I find also that by refusing to grant an increase in and benefits they may have suffered because of Respond- the mileage reimbursement rate for newsroom employ- ent's discriminatory failure to grant merit increases and ees, while granting such an increase to advertising de- mileage rate increases after September 28, 1979." Such merit increases and mileage rate increases shall be paid as *The testimony of witnesses indicated that Greene would have given prescribed in F. W. Woolworth Company, 90 NLRB 289 several of the unit employees merit increases but for the negotiations that (1950), with interest thereon to be computed in the were then being conducted. In addition, there is uncontroverled evidence manner prescribed in Florida Steel Corporation, 231 that Respondent paid new hires more after the 6-month increase than it did to unit employees, thus, in effect, penalizing the more senior employ- NLRB 651 (1977). See, generally, Isis Plumbing & Heat- ees for having voted for the Union. ing Co., 138 NLRB 716 (1962). 10 Each individual denial of a merit increase during the 10(b) period [Recommended Order omitted from publication.] constitutes a violation of the Act although the initial decision with re- spect to the policy of denials was made and disclosed prior to the 10(b) period. Pease Company, 251 NLRB 540 (1980); General Motors Acceptance " All conduct prior to that date comes within the proscription of Sec. Corporation, supra. 10(b) of the Act. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suspended merit increases which it would otherwise have partment employees even though there is an established given to its employees. 9 past practice of giving such increases, Respondent violat- In this case Respondent's conduct included a statement ed Section 8(a)(3) and (1) of the Act. by Managing Editor Greene to at least two employees I also find that the statements made by Al Greene to which, at best, inferred that the employees would receive the effect that, if the employees decertified the Union increases if they decertified the Union inasmuch as there they would receive raises, constitute interference, re- was money for such increase in the budget. By its con- straint, and coercion of employees in the free exercise of duct, Respondent, in effect, placed full responsibility on Section 7 rights in violation of Section 8(a)(l) of the Act. the Union for the employees' failure to receive their merit increases. The message conveyed to the employees CONCLUSIONS OF LAW was clear-to obtain their scheduled merit increases they first had to abandon the Union. General Motors Accept- 1. Respondent is an employer engaged in commerce ance Corporation, supra. within the meaning of Section 2(6) and (7) of the Act. I consider Respondent's conduct as being equivalent to 2. The Union is a labor organization within the mean- Respondent's conduct in General Motors Acceptance Cor- ing of Section 2(5) of the Act. poration, supra, wherein the Board stated, "The evil of 3. By interfering with, restraining, and coercing its em- the Respondent's actions was further compounded by the ployees in the exercise of rights guaranteed in Section 7 Respondent's coercive poll by which it sought to present of the Act, by discriminatorily denying merit increases to evidence of employee dissatisfaction with the Union." newsroom employees and by discriminatorily refusing to I conclude that Respondent's attempts to decertify the raise the mileage allowance for newsroom employees be- Union, by withholding merit increases and stating that cause the newsroom employees selected the Union as they would receive them if they decertified, interfered their collective-bargaining representative, thereby dis- with, restrained, and coerced employees in the free exer- couraging membership in the Union, Respondent violat- cise of their Section 7 rights in violation of Section ed Section 8(a)(l) and (3) of the Act. 8(a)(1) of the Act. I find, further, Respondent discriminatorily discontin- THE REMEDY ued the practice of periodic merit increases and denied employees increases during the 10(b) period,'"which in- Having found that Respondent committed certain creases would have been granted to these employees unfair labor practices, I find it necessary to order Re- absent the Union, because the newsroom employees se- spondent to cease and desist therefrom and to take cer- lected the Union as their collective-bargaining repre- tain affirmative action designed to effectuate the policies sentative, thereby discouraging union membership by and purposes of the Act. I shall recommend that, in addi- placing the blame for the discontinued merit increases on tion to posting a notice to employees, Respondent make the Union, in violation of Section 8(a)(3) and (1) of the whole those newsroom employees for any loss of wages Act. I find also that by refusing to grant an increase in and benefits they may have suffered because of Respond- the mileage reimbursement rate for newsroom employ- ent's discriminatory failure to grant merit increases and ees, while granting such an increase to advertising de- mileage rate increases after September 28, 1979." Such merit increases and mileage rate increases shall be paid as *The testimony of witnesses indicated that Greene would have given prescribed in F. W. Woolworth Company, 90 NLRB 289 several of the unit employees merit increases but for the negotiations that (1950), with interest thereon to be computed in the were then being conducted. In addition, there is uncontroverled evidence manner prescribed in Florida Steel Corporation, 231 that Respondent paid new hires more after the 6-month increase than it did to unit employees, thus, in effect, penalizing the more senior employ- NLRB 651 (1977). See, generally, Isis Plumbing & Heat- ees for having voted for the Union. ing Co., 138 NLRB 716 (1962). 10 Each individual denial of a merit increase during the 10(b) period [Recommended Order omitted from publication.] constitutes a violation of the Act although the initial decision with re- spect to the policy of denials was made and disclosed prior to the 10(b) period. Pease Company, 251 NLRB 540 (1980); General Motors Acceptance " All conduct prior to that date comes within the proscription of Sec. Corporation, supra. 10(b) of the Act. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suspended merit increases which it would otherwise have partment employees even though there is an established given to its employees. 9 past practice of giving such increases, Respondent violat- In this case Respondent's conduct included a statement ed Section 8(a)(3) and (1) of the Act. by Managing Editor Greene to at least two employees I also find that the statements made by Al Greene to which, at best, inferred that the employees would receive the effect that, if the employees decertified the Union increases if they decertified the Union inasmuch as there they would receive raises, constitute interference, re- was money for such increase in the budget. By its con- straint, and coercion of employees in the free exercise of duct, Respondent, in effect, placed full responsibility on Section 7 rights in violation of Section 8(a)(l) of the Act. the Union for the employees' failure to receive their merit increases. The message conveyed to the employees CONCLUSIONS OF LAW was clear-to obtain their scheduled merit increases they first had to abandon the Union. General Motors Accept- 1. Respondent is an employer engaged in commerce ance Corporation, supra. within the meaning of Section 2(6) and (7) of the Act. I consider Respondent's conduct as being equivalent to 2. The Union is a labor organization within the mean- Respondent's conduct in General Motors Acceptance Cor- ing of Section 2(5) of the Act. poration, supra, wherein the Board stated, "The evil of 3. By interfering with, restraining, and coercing its em- the Respondent's actions was further compounded by the ployees in the exercise of rights guaranteed in Section 7 Respondent's coercive poll by which it sought to present of the Act, by discriminatorily denying merit increases to evidence of employee dissatisfaction with the Union." newsroom employees and by discriminatorily refusing to I conclude that Respondent's attempts to decertify the raise the mileage allowance for newsroom employees be- Union, by withholding merit increases and stating that cause the newsroom employees selected the Union as they would receive them if they decertified, interfered their collective-bargaining representative, thereby dis- with, restrained, and coerced employees in the free exer- couraging membership in the Union, Respondent violat- cise of their Section 7 rights in violation of Section ed Section 8(a)(l) and (3) of the Act. 8(a)(1) of the Act. I find, further, Respondent discriminatorily discontin- THE REMEDY ued the practice of periodic merit increases and denied employees increases during the 10(b) period," 0 which in- Having found that Respondent committed certain creases would have been granted to these employees unfair labor practices, I find it necessary to order Re- absent the Union, because the newsroom employees se- spondent to cease and desist therefrom and to take cer- lected the Union as their collective-bargaining repre- tain affirmative action designed to effectuate the policies sentative, thereby discouraging union membership by and purposes of the Act. I shall recommend that, in addi- placing the blame for the discontinued merit increases on tion to posting a notice to employees, Respondent make the Union, in violation of Section 8(a)(3) and (1) of the whole those newsroom employees for any loss of wages Act. I find also that by refusing to grant an increase in and benefits they may have suffered because of Respond- the mileage reimbursement rate for newsroom employ- ent's discriminatory failure to grant merit increases and ees, while granting such an increase to advertising de- mileage rate increases after September 28, 1979." Such merit increases and mileage rate increases shall be paid as *The testimony of witnesses indicated that Greene would have given prescribed in F. W. Woolworth Company, 90 NLRB 289 several of the unit employees merit increases but for the negotiations that (1950), with interest thereon to be computed in the were then being conducted. In addition, there is uncontroverled evidence manner prescribed in Florida Steel Corporation, 231 that Respondent paid new hires more after the 6-month increase than it did to unit employees, thus, in effect, penalizing the more senior employ- NLRB 651 (1977). See, generally, Isis Plumbing & Heat- ees for having voted for the Union. ing Co., 138 NLRB 716 (1962). 10 Each individual denial of a merit increase during the 10(b) period [Recommended Order omitted from publication.] constitutes a violation of the Act although the initial decision with re- spect to the policy of denials was made and disclosed prior to the 10(b) period. Pease Company, 251 NLRB 540 (1980); General Motors Acceptance " All conduct prior to that date comes within the proscription of Sec. Corporation, supra. 10(b) of the Act.