Wpix, Inc

10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WPIX, Inc and Newspaper Guild of New York Local 3, the Newspaper Guild, AFL-CIO, CLC Case 2-CA-22179 February 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 12, 1988, Administrative Law Judge El- eanor MacDonald issued the attached decision The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, the Union filed cross-excep- tions and a supporting brief and a reply brief to the Respondent's exceptions, and the Respondent filed an answering brief to the General Counsel's and the Union's cross-exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order as modified 3 i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We agree with the judge that the Respondent s failure to pay the wage step increases required by the 1983-1986 contract which the par ties had extended violated Sec 8(a)(5) and (1) of the Act Because we also agree with the judge s finding that the Respondent had prematurely declared impasse in its negotiations for a successor agreement when it unilaterally implemented the terms of its last offer we find it unnecessary to pass on her further finding that the failure to pay the wage step in creases under the old contract would preclude reaching a lawful impasse in the negotiations for the successor agreement 2 The General Counsel and the Union contend that the Respondent lacked overall good faith and engaged in surface bargaining throughout the negotiations We disagree The record clearly shows that the Re spondent was willing to meet and confer with the Union exchange pro posals and modify its positions in an attempt to reach agreement with the Union See e g G Zaino & Sons 275 NLRB 456 (1985) United Tech nologies Corp 274 NLRB 1069 1074 (1985) enfd 789 F 2d 121 136 (2d Cir 1986) The General Counsel and the Union also argue inter alia that the Re spondent s proposal to conduct arbitrations under the Federal Mediation and Conciliation Service (FMCS) in lieu of the American Arbitration As sociation (AAA) was in retaliation for the Union s wage step grievance Even assuming that this matter was fully litigated at the hearing the General Counsel has failed to prove an 8(a)(5) violation The Respondent explained without contradiction that it made the proposal because the AAA had mandated the selection of an arbitrator previously rejected by the Respondent to conduct the wage step arbitration The Respondent also maintained that the services of the FMCS are less costly than those offered by the AAA Accordingly we conclude that the Respondent did not make the proposal in bad faith 9 We shall issue amended conclusions of law a modified Order and a new notice to employees that more closely conform to the violations found AMENDED CONCLUSIONS OF LAW 1 Substitute the following for Conclusion of Law 3 "3 By unilaterally failing to pay contractually required wage step increases since October 9, 1986, the Respondent refused to bargain in violation of Section 8(a)(5) and (1) of the Act " 2 Insert the following as Conclusion of Law 4 and renumber the subsequent conclusion of law "4 By unilaterally implementing changes in terms and conditions of employment from April 1, 1987, at which time no bargaining impasse existed, the Respondent refused to bargain in violation of Section 8(a)(5) and (1) of the Act " ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, WPIX, Inc, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(a) and re letter the subsequent paragraphs "(a) Refusing to bargain in good faith with the Union by unilaterally failing to pay contractually required wage-step increases since October 9, 1986 " 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain with Newspaper Guild of New York Local 3, The Newspaper Guild, AFL-CIO, CLC by unilaterally failing to pay contractually required wage-step increases 293 NLRB No 2 WPIX INC WE WILL NOT refuse to bargain with the Union by unilaterally changing wage rates and other terms and conditions of employment in the absence of bargaining impasse The bargaining unit is INCLUDED News editors, assignment edi- tors, senior writers, news writers, sports spe- cialist, senior assignment desk assistants, talent coordinators, graphic artists, assignment desk assistants, graphics assistants, production assist- ants and telephone clerks in the news depart- ment of WPIX-TV EXCLUDED All other employees in the News Department of WPIX TV, including News Director, Executive Producer, Manag- ing Editor, Producers, Metropolitan Editor, Graphics Director, Business Manager, adminis- trative assistant (confidential secretary), all em- ployees represented by other labor organiza- tions, guards, watchmen and supervisors as de- fined in the Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL make whole all bargaining unit em ployees for any losses they may have suffered as a result of our unlawful unilateral changes in the terms and conditions of employment, with interest WE WILL, on request from the Union, revoke any unilateral changes in terms and conditions of employment and reinstate the terms and conditions that existed before our unlawful changes, although this does not mean that we must rescind any wage or benefit increase granted to unit employees WE WILL, on request, bargain collectively with the Union with respect to rates of pay, hours of employment, and other terms and conditions of em ployment, and, if an understanding is reached, embody such understanding in a signed agreement WPIX, INC James Wasserman Esq, for the General Counsel Richard L Marcus Esq and Susan M Benton Powers Esq (Isham Lincoln & Beale) of Chicago Illinois for the Respondent Louis Pechman Esq (Vladeck Waldman Elias & Engel hardt), of New York, New York, for the Charging Party DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge This case was tried in New York, New York on 20 21 and 22 October and 12 November 1987 The complaint alleges that Respondent, in violation of Section 8(a)(1) 11 and (5) and Section 8(d) of the Act, failed to grant em ployees step increases due under the collective bargain ing agreement, offered inconsistent and contradictory written proposals, threatened to repudiate an agreement unless the Union withdrew a pending grievance, refused to bargain about employee evaluation criteria, declared a premature and invalid impasse and unilaterally changed numerous terms and conditions of employment Re spondent denies that it failed to bargain in good faith, al leges that the Union delayed the negotiations and en gaged in surface bargaining, and alleges that the parties had negotiated to impasse by 1 April 1987 In addition, Respondent raises the statute of limitations as a bar to the allegations regarding certain of the step increases On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the bnefs filed by the General Counsel and Respondent, I make the following i FINDINGS OF FACT I JURISDICTION Respondent, a New York corporation with an office at 11 WPIX Plaza, New York, New York, operates radio and television broadcasting stations Respondent annually derives gross revenues in excess of $100,000 advertises products sold nationally, and subscribes to national wire services The parties agree, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act and that Newspa per Guild of New York Local 3, the Newspaper Guild, AFL-CIO, CLC is a labor organization within the mean ing of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A The Negotiations Generally The Union represents the following unit of employees of Respondent INCLUDED News editors, assignment editors, senior writers news writers sports specialist senior assignment desk assistants talent coordinators, graphic artists assignment desk assistants , graphics assistants , production assistants and telephone clerks in the news department of WPIX TV EXCLUDED All other employees in the News Department of WPIX TV, including News Direc tor, Executive Producer Managing Editor Produc ers Metropolitan Editor, Graphics Director, Bust ness Manager, administrative assistant (confidential secretary), all employees represented by other labor organizations, guards, watchmen and supervisors as defined in the Act Respondent and the Union have been parties to a series of 3 year contracts At the time relevant to the in stant case, WPIX and the Union were negotiating a suc i After the initial exchange of bnefs in January 1988 both the General Counsel and Respondent filed additional letters I have considered these in reaching my decision 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cessor agreement to the one with a term from 25 June 1983 to 24 June 1986 There were 12 negotiating sessions from 1 July 1986 through 1 April 1987 when WPIX declared that an im passe existed and unilaterally implemented its last offer B Summary of the Negotiating Sessions For the first four negotiating sessions, WPIX was rep resented by Andrew L Hughes Esq, who had repre sented it in prior negotiations The General Counsel does not allege that Hughes acted in bad faith either at or away from the bargaining table 2 On 21 May 1986 the Union had submitted its propos als for the new contract The demands included changes relating to union security, grievance and arbitration pro cedure, probationary period, recall list posting of sched ules, paid holidays, and leaves of absence The Union said it wanted to negotiate a substantial wage increase but no amounts were specified The Union sought to eliminate the factor of ability to perform the work from the layoff and recall provisions of the contract, it sought greater job security in the face of technological ad vances, it sought improvements in severance pay, and it sought to reduce the workweek and improve overtime, missed meal compensation, vacations, and sick leave pro visions The first negotiating session took place on 1 July 1986 The Union expressed concern that after recent layoffs, interns might be performing unit work The Union had previously sent its written proposal which Hughes was not thrilled about ' The Company had no written pro posal Hughes said the Company was subject to a severe financial crunch and could not add to the con tract Hughes mentioned that he was concerned about large severance pay amounts already due and the fact that employees were banking their vacations from year to year The second negotiating session took place on 22 July 1986 There was additional discussion of the use of in terns Hughes said he wanted to take seniority out of the contract and put a cap on severance pay Hughes coin plained about the cost of the overtime payment for missed lunch periods No written company proposal was presented The third negotiating session took place on 8 August 1986 The Company had no written proposal and Hughes explained that he had to figure out a way to sell givebacks to the Union He said the Company could afford very little and that it needed improvements but that it was not seeking wage cuts Perhaps more lay offs would be needed to fund the next wage increase Hughes mentioned a selective wage freeze and the Union said that would present a problem Hughes said the Company wanted to eliminate the step increase method of granting wage increases and Montes said it was an integral part of the contract and that he opposed the 2 Hughes was accompanied by Senior Vice President John Corporon and other employees of WPIX The Union was represented by Business Representative William Monies Unit Chairperson William O Meara and other unit employees On some occasions James Madden Esq a busi ness agent was present with the union team suggestion The Company suggested either a new dental plan or a higher deductible to hold down costs of the plan The Union asked to see a written proposal concern ing the dental plan Hughes discussed the Union s demand for 2 weeks notice of scheduling and stated that it did not give the Company enough flexibility The fourth negotiating session took place on 13 August 1986 Hughes said he had no good news The Company had new cost cutting edicts 0 Meara testified that Hughes said a time might come when the Company would come to the Union with a more limited set of conditions that [the Union] would have a limited time to accept otherwise it would be imposed unilaterally' I credit 0 Meara s testimony Hughes said the parties were bargaining to impasse Montes replied, not yet but that the parties were approaching the point of no return He said the parties had not even begun negotiating Hughes handed out a written proposal on behalf of WPIX Hughes testified that on 13 August 1987 he did not have a complete wage proposal despite his earlier promise to have one for that meeting Hughes had been told that the aim of WPIX was to eliminate inefficiencies and cut costs The union proposals would have increased costs Hughes testified that he did not discuss wages with the Union because the subject was deferred The Compa ny also gave the Union information about the new dental plan After confirming that no other changes would be made, the Union accepted the new dental plan 3 The next meeting had been scheduled for mid Septem ber In the event the parties did not meet until 1 Octo ber 1986 Beginning 1 October 1986 the chief union spokesman was Sidney Kress Esq staff attorney and business agent WPIX s chief spokesman, Hughes, had been re placed by Richard L Marcus Esq The Union presented modifications to its proposal of May 1986 The Company presented a complete written proposal which it explained was a new proposal to replace the document prepared by Hughes in August The company proposals contained 20 numbered items On 1 October 1986, WPIX proposed that employees would no longer be paid for skipped meals Employees consistently worked a 40 hour week and did not take the meal period allotted every working day Instead they were paid one half hour overtime for every working day, or 2 1/2 hours per week The evidence shows that this procedure added a substantial sum to the employees weekly paychecks, estimated by Marcus to average 6 percent of wages for the unit employees Kress questioned a memorandum issued by WPIX to unit members which abolished the system of free dental cleanings with Drs Frankel and Marx as of 1 October 19864 3 The new dental plan insurance career was Aetna Under the new plan effective 1 October 1986 the deductible was increased and a change was made to increase preventive coverage The plan provided for two free cleanings with a dentist to be chosen by the individual employees 4 This system had provided each unit with two free cleanings per year with Drs Frankel and Marx WPIX eliminated the system because the new Aetna dental coverage effective on i October provided two free cleanings with the employees own dentists WPIX INC Kress told Marcus that the Company had failed to grant step wage increases under the contract 5 Accord ing to O Meara, Marcus replied that the step increases were not being paid and that everything has a price tag and it might be appropriate to defer those raises so the Company would have funds to pay a raise to the rest of the members in the unit The Union responded that it was filing a grievance over the failure to grant the in creases, and the Company agreed to waive a formal grievance session The Union stated that it would file for arbitration The WPIX proposals of 1 October 1986 contained a pay schedule different from that in effect, and condi tioned movement after one or two steps on manage ment s judgment of merit Those not at the top of the scale would receive up to a 2 percent wage increase In the Union's view, the 2 percent wage increase for some employees taken together with the Company s proposal to eliminate the skipped meal payment would effectuate a substantial wage decrease for unit employees A meeting was scheduled for November, but it was canceled due to illness of Kress and his subsequent de parture from the guild The next bargaining session took place on 12 Decem ber 1986 Kress was replaced as chief union spokesman by Leo Ducharme International representative The par ties went through the company proposals in detail After they did so, Ducharme said that the proposals were dam aging to unit members morale Marcus replied that the Company did not wish to destroy morale but Ducharme said the Company would not be able to convince the Union of its need for the proposals Ducharme asked if the Company would agree to any of the union demands The parties indicated which items were high priority and which were less important The parties discussed the company proposal to eliminate the paramount use of se nionty in determining order of layoff 6 Ducharme indi cated that the parties were at opposite poles but that there was a `middle ground " Marcus said he would dis cuss the proposal with the Company The Union offered to drop its grievance procedure proposal if the Company also dropped its proposal Marcus refused this offer The parties next met on 16 December At the Union s suggestion they discussed a number of grievances includ ing the elimination of the free dental cleanings They agreed to contact a Federal mediator The parties next met on 13 January 1987 They dis cussed various proposals including bereavement leave and paternity leave The Company mentioned that it was possible to change the carrier for the medical insurance plan and the Union agreed to meet with representatives of Aetna, the proposed new carrier, on 20 January O Meara testified that at Marcus instance, proposals and demands that were economic in nature were deferred from discussion and were agreed to be part of the final package 5 It is undisputed that the 1983-1986 contract remained in effect during the negotiations The step increases were based on an employees length of service in his or her job title 6 As of 12 December the Union s proposal on layoffs removed all ref erence to skill and ability and relied on seniority 13 On 20 January the union representatives met with Aetna in the morning The meeting ended with a prom ise from Aetna to prepare a new proposal for coverage The parties met in the afternoon of 20 January for contract negotiations The inconclusive nature of the current Aetna proposal was discussed The parties dis cussed a new written bereavement policy The Union narrowed its demand Marcus had been trying to contact the mediator, and he reported that he had finally been successful and that the mediator was available on 30 Jan uary 1987 On 30 January 1987 the parties each met separately with the Federal mediator The parties next met on 6 February 1987 Marcus an nounced that as a result of the negotiations so far and his discussions of his proposals with the Company he was presenting a new proposal The document contained 40 numbered items Marcus then went through the new pro posal point by point and explained any questions the Union posed about the proposal Some of the proposals were revisions of earlier proposals According to Marcus, a number of the proposals were entirely new and were based on information Marcus had obtained in preparing for negotiations with other units of WPIX s unit employees The arbitration provisions were to be changed substan tially so as to establish a new appointing agency and to remove decisions as to procedural and substantive arbi trability from the jurisdiction of the arbitrator 7 Consid eration of seniority was entirely removed from the clause relating to reduction in force and recall from layoff Marcus proposed deleting the clause that stated the Company s and the Union s recognition that technologi cal change could cause loss of jobs and the Company s continued efforts to consider employees displaced by technological change for other positions Marcus pro posed changing the practice whereby severance pay was granted on layoff, the new proposal would make it pay able only on expiration of the recall period The new proposals would remove the preference for unit employ ees in the filling of vacancies and would give manage merit the right to demote employees even after comple tion of the probationary period established in the old contract Other changes involved payment of overtime, doubletime posting of schedules in a timely fashion holi day pay, and entitlement to vacations WPIX had previ 7 Senior Vice President Corporon testified that since 1972 arbitrations between the parties had been conducted under the auspices of the Amen can Arbitration Association (AAA) The Company had not proposed any change in the contractual arbitration procedure However by 6 February 1987 the Union had requested arbitration of its grievance over the Com pany s failure to grant the contractually mandated step pay increases Marcus objected to arbitration because the Union was not bargaining fast enough and he objected to continuation of the contract provisions which WPIX sought to eliminate through negotiations The AAA ordered the arbitration to proceed over Marcus objections and the hearing was scheduled for 6 April 1987 On 2 April Marcus advised the Union that WPIX would retroactively pay the step increases due under the contract He did not appear at the arbitration hearing held on 6 April The arbitra tor upheld the grievance Marcus 6 February proposal replacing the AAA with the Federal Mediation and Conciliation Service and removing all questions of arbitrability from the jurisdiction of the arbitrator would have the effect of forcing the Union into court litigation if the Company objected to arbitrating a grievance under the new contract 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ously proposed a change in the banking of vacation time so that it would be paid at the rate earned Now, Marcus proposed eliminating the possibility of banking vacation time altogether unless the Company requested an em ployee to defer a vacation The Company s proposals would permit it to make more extensive use of tempo rary employees WPIX proposed to delete news editors from the unit On 6 February 1987 Marcus for the first time proposed a 3 year contract Before that date the Company had sought a 2 year contract Marcus recalled that after he presented the new set of proposals to the Union Ducharme expressed the opinion that the Company was trying to avoid reaching a collec tive bargaining agreement The parties agreed, effective 1 March 1987, to change the medical insurance coverage to Aetna as proposed by WPIX The parties agreed on an interim basis to main tarn a level of employee and employer contribution to the cost until a new contract was reached between them The Union had recently requested arbitration of the issue raised by the Company's abolition of the free clean ings with Drs Frankel and Marx WPIX took the posi tion that the new dental coverage with Aetna was a re placement for the Frankel Marx benefit The parties next met on 26 February 1987 On that day, they discussed the presence of asbestos in the work place in an area under construction and what safeguards would be taken to protect employees The parties discussed the Company s proposal of 6 February 1987 to remove the news editor from the bar gaining unit The company rationale was that the posi tion should be in management because under its pro posed new system of merit increases the news editor would evaluate employees performance The Union asked what criteria would be used in evaluating perform ance for merit increases WPIX replied that the criteria had not been developed and that this would be done by management after the Union agreed to the proposal The Union said it would not accept the proposal The Union believed the merit system of increases based on employ er s criteria is unjust However the Union has two con tracts in which such merit increases are provided Marcus testified that Ducharme asked him about the merit review and what s going to be involved? He re plied that WPIX had not formulated any specific system for doing that as of this time According to Marcus this was the only time the Union rasied the question of merit reviews At the end of the meeting, Marcus said he could not set up another date but that after consulting with man agement he would get back to the Union The parties subsequently agreed to meet on 1 April 1987 Marcus testified that he told the Union no progress had been made and that he had to confer with Corporon who was not then present, before he could set another date On 20 March Marcus sent a letter to Ducharme delet ing seven of the Company s proposals and modifying the severance and vacation pay proposals WPIX abandoned its attempt to remove news editors from the unit and to delete from the agreement the provision for employees dislocated by technological change and the provision re lating to schedule posting The Company dropped its proposal permitting demotions after the probationary period WPIX also revised its proposal relating to in terns In his letter of 20 March Marcus expressed a sense of urgency about the negotiations and the hope that they could be concluded as quickly as possible The parties met on 1 April 1987 They discussed the issue of performance of until work by nonunit employ ees The Union questioned the meaning and intent of the language proposed b} the Company and said it could accept a provision within stated limits No agreement was reached on this topic At the 1 April meeting, the Union dropped a number of demands relating to cover age of the contract union security job security sever ance pay, probationary periods and overtime The Union proposed a wage increase of 8 percent per year The Union modified its demand relating to vacation, sick leave, and paternity leave The Union discussed the com pany proposal to require grievances to be tiled within 30 days It proposed 90 days, no agreement was reached on this issue, but some language on grievances was worked out Thus, Marcus accepted the union proposal that the time for filing a grievance would start to run when the employee knew or should have known of the grievance The Union accepted the Company s proposal to add Ian guage prohibiting the arbitrator from adding to, ignoring, or modifying the provisions of the agreement The Union still refused to accept a change in the agency appointing the arbitrator Ducharme asked if the Company had any position on the union modifications Marcus replied that they could not accept any of them under any circumstances About 4 15 p in , the union representatives said they had to leave and they asked to set up the next meeting Marcus said he was available the next day, but Du charme could not meet until 21 April At that point Marcus said the Company believed the negotiations were at impasse and that WPIX was terminating the contract and implementing its proposal Ducharme responded that the Union s position was that there was no impasse and that the Union `was ready to continue discussing the proposals and to move on our proposals Ducharme told Marcus that the Union had expected the Company to declare impasse based on its 20 March 1987 letter But Ducharme reiterated that he was willing to negotiate and to make additional modifications Marcus replied that if the Union had something else to propose it should write him a letter Then Marcus left Corporon held a meeting in the newsroom with unit employees about an hour later to inform the employees that an impasse had been de Glared and the Respondents proposals implemented Marcus testified that elimination of the missed meal payment to unit employees would amount to about 6 percent pay cut per annum The Company was propos ing a 2 percent pay increase (but without taking into ac count the defacto 6 percent decrease in the other part of its proposal) When on 1 April 1987 the Union proposed an 8 percent wage increase Marcus did not view this as a basis for negotiations He stated that the company proposal was not made as a means of seeking middle WPIX INC 15 ground It was a proposal made to try and reduce the costs that the Company was bearing 8 According to 0 Meara, the parties to the negotiations had mutually agreed that discussion of economic items would be deferred until a final discussion of all economic matters could resolve the cost of the overall agreement 0 Meara recalled that Marcus introduced the concept that all matters of financial impact would be deferred until a later stage of the negotiations C Specific Violations Alleged in the Complaint 1 Failure to grant step increases It is undisputed that the 1983-1986 contract between the parties remained in effect during the negotiations Article XVII of the contract provided minimum wages for each job title classification of the unit employees and provided for so called step increases after specified time periods such as 6 months, 1 year 2 years, or more On 1 October 1986, the Union informed company negotiators that the step increases were not being granted as re quired by the contract Marcus acknowledged that the increases were not being paid The Union announced that it was filing a grievance over the failure to grant step wage increases, the Company agreed to waive the formal grievance session and the Union stated that it would file for arbitration The Company resisted arbitra tion because the Union should not have been seeking to enforce the wage provisions of the contract while the Company wanted to modify those provisions through collective bargaining The American Arbitration Asso ciation scheduled the matter for an arbitration hearing to be held on 3 April 1987 On 2 April 1987, the Company advised the Union that it had decided to institute retro active wage adjustments for certain employees The ar bitration hearing was held without the appearance of the Company, an by award dated 13 May 1987 the arbitra tor upheld the grievance and ordered WPIX to make the employees whole At the trial, the parties stipulated that the employees named in the instant complaint as amend ed by the General Counsel had received retroactive wage increases shortly after 2 April 1987 The conclusion is inescapable that each individual fail ure to pay the wage required by the contract including the mandated step increases, is unlawful and in violation of Section 8(a)(1) and (5) of the Act Abbey Medi cal/Abbey Rents 264 NLRB 969 975 (1982) The defense based on the statute of limitations is without merit as to each failure to pay the proper wage from 9 October 1986 a date 6 months before the filing of the instant charge Further, Respondents contention that the viola tion is technical and does not warrant a remedial order is not supported by the cases cited in Respondent's brief Bellinger Shipyards, 227 NLRB 620 (1976) Deringer Mfg Co 201 NLRB 622 (1973) In those cases, the Board found that the unlawful conduct was minimal and that there was no showing that the employees were adverse ly affected In the instant case employees were denied 8 Marcus stated that at no point in the negotiations from 1 October 1986 through 1 April 1987 did he consider accepting a union demand as a tradeoff for a company proposal wages due them under the contract, an adverse econom is effect which no employee views as minimal 2 Threat to repudiate an agreement The General Counsel asserts that the Company threat ened to repudiate the agreement reached about the new medical and dental insurance unless the Union withdrew a pending grievance relating to the two annual free dental cleanings provided by Drs Frankel and Marx The testimony of all the witnesses shows that for some time the Company paid for the free cleanings and that under the new dental insurance plan agreed to by the parties effective 1 October 1986, two free cleanings were provided for by the dentist of the employee s choice 9 The issue centers on the discontinuance of the Drs Frankel and Marx cleanings in October 1986, and the Union s filing of a grievance over the loss of the ben efit On 26 February 1987 0 Meara understood Marcus to say that unless the Union withdrew its pending griev ance, the Company would withdraw from the agreement to participate in the new Aetna dental and medical insur ance plan, which was to be effective on 1 March 1987 Marcus testified that he told the Union that the new plan provided for free dental cleanings, and he wished the agreement about medical and dental insurance to resolve all open issues prospectively from 1 March 1987 Marcus testified that at no point did he press the Union to with draw the grievance in return for continued company ad herence to the agreement for new dental and medical in surance In fact the arbitration was held in July 1987, and the grievance was denied I find that 0 Meara mis understood Marcus comments at the bargaining table I find that Marcus did not threaten to withdraw from the insurance agreement unless the Union dropped its griev ance Instead I find that Marcus said the Company would not proceed with the insurance plan unless it re solved all issues from the date of 1 March 1987 Thus, I do not find that Respondent violated the Act 3 Inconsistent and contradictory proposals and refusal to discuss evaluation criteria The General Counsel cites as examples of inconsistent proposals made by the Company the following Hughes stated he was not asking for a wage reduction but Marcus later proposed such a reduction Hughes had ap parently worked on a proposal which retained a system of step increases while Marcus proposal eliminated the step increases and gave a 2 percent or lower across the board increase to employees, depending on their current rate The testimony shows that Hughes had announced that he was under instructions to cut costs that he had to find a way to sell givebacks to the Union and that he wanted to eliminate the missed meal payments to em ployees Hughes did not say he would ask for a wage 8 The changes in health insurance were made in two stages In August 1986 the parties agreed on a change in dental coverage effective 1 Octo ber 1986 Beginning in January 1987 the parties discussed other aspects of medical insurance A final agreement on all dental and medical cover age was reached effective 1 March 1987 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cut but he did mention the possibility of a freeze or future layoffs to cut costs Hughes never actually made a wage proposal to the Union Marcus did make a wage proposal entailing a 2 percent or lower wage increase, which when coupled with the loss of missed meal pay ments, would have meant a net wage loss to the employ ees Further although internal company documents sug gest Hughes worked on a proposal to keep the step in creases, he never presented it nor any other wage scale to the Union Based on these facts, I cannot find any inconsistency Both Hughes and Marcus gave fair notice that the Com pany wished to cut costs and that draconian measures would be proposed to the Union Both targeted specifi cally the missed meal payments which amounted to at least 6 percent of employee wages Although Marcus proposal to eliminate the step increases angered the Union, it was not inconsistent with Hughes proposals because Hughes had not given the Union a wage propos al Another example of an inconsistent company proposal cited by the General Counsel is the exchange of 1 April 1987 concerning performance of unit work In its proposal of 1 October 1986, as modified on 6 February 1987, the Company had proposed language permitting nonbargaining unit employees occasionally to perform bargaining unit work In response to Du charme s question on 1 April about the meaning and im plementation of the language, Marcus replied that it would permit Corporon or his secretary to answer the telephone in the newsroom or book a guest for the show 0 Meara testified that he stated that this interpretation was in accord with current practice Ducharme said the Union could accept the proposal providing it would not change present practice Marcus replied that the exam ples he had just given were not exhaustive and that the clause might be applied differently The Union then stated that it would not accept the proposal The General Counsel argues that Marcus' actions amount to a sudden shift to increase demands that were inconsistent with [Marcus ] prior explanation in order to avoid reaching an agreement with the Union I do not find that the facts are consistent with the General Coun sel s theory In this case, Marcus and the Union engaged in a brief exchange about the meaning of a company pro posal In response to the Unions statement that if the meaning were limited it would accept the proposal, Marcus hastened to explain that the language could be read in a more expansive way This is not a situation where the Company had been adamantly insisting on a provision and had explained it at length only to change its proposal once the Union seemed willing to agree Cf NLRB v Herman Sausage Co, 275 F 2d 229 233 (5th Cir 1960) Instead, Marcus expansion of his initial expla nation came during the exchange concerning the mean ing and intent of the proposed language It would hardly serve the cause of collective bargaining to limit a party s permissible explanation of its proposals to one or two sentences, the give and take of negotiations requires the ability to explore a proposal at length The General Counsel supports the allegation that WPIX refused to discuss the evaluation criteria to be em ployed by the Company under the wage proposal by the following On 1 October 1986 Marcus proposed that future movement to the top wage rates for a job title classification would be at the Company s discretion This was part of the proposal to eliminate the automatic step increases and substitute merit evaluations On 6 Feb ruary 1987 Marcus also proposed elimination of the news editor from the bargaining unit because that employee would henceforth be involved in conducting the merit evaluation for unit employees On 26 February when the Union asked what criteria would be used in merit evaluations Marcus replied that these had not yet been formulated He said the criteria would be formulated by the Company after the Union accepted the proposal to remove the news editor from the unit Even after Marcus deleted the proposal to drop news editors from the unit on 20 March 1987, he still proposed that raises to the top wage rates would be de termined by the Company, but he still did not provide any criteria for the Company's exercise of its discre tion The General Counsel urges that by proposing raises at the Company s unilateral discretion without discussing the applicable criteria, WPIX removed the highly signifi cant subject of wages from the bargaining table The evidence shows that on 26 February 1987 the Union asked what the criteria for wage increases would be under the Company s proposal, and Marcus said these had not yet been developed I can find no indication that the Union asked about the criteria again Marcus state merit that the Company would develop the criteria was thus the last word on the subject before he declared im passe on 1 April 1987 I do not find that the Union ever requested WPIX to bargain about the criteria for granting pay raises, thus I do not find that Respondent refused to discuss the eval uation criteria to be employed by the Company under the wage proposal by the following On 1 October 1986 Marcus proposed that future movement to the top wage rates for a job title classification would be at the Com pany s discretion This was part of the proposal to eliminate the automatic step increases and substitute merit evaluations On 6 February 1987 Marcus also pro posed elimination of the news editor from the bargaining unit because that employee would henceforth be in volved in conducting the merit evaluation for unit em ployees On 26 February, when the Union asked what criteria would be used in merit evaluations Marcus replied that these had not yet been formulated He said the criteria would be formulated by the Company after the Union accepted the proposal to remove the news editor from the unit Even after Marcus deleted the proposal to drop news editors from the unit on 20 March 1987, he still proposed that raises to the top wage rates would be de termined by the Company but he still did not provide any criteria for the Company s exercise of its discre tion The General Counsel urges that by proposing raises at the Company s unilateral discretion without discussing WPIX INC the applicable criteria WPIX removed the highly signifi cant subject of wages from the bargaining table The evidence shows that on 26 February 1987 the Union asked what the criteria for wage increases would be under the Company s proposal, and Marcus said these had not yet been developed I can find no indication that the Union asked about the criteria again Marcus state ment that the Company would develop the criteria was thus the last word on the subject before he declared im passe on 1 April 1987 I do not find that the Union ever requested WPIX to bargain about the criteria for granting pay raises, thus I do not find that Respondent refused to bargain on this issue 4 Declaration of impasse and unilateral changes The conclusion seems clear that there was no true im passe between the parties on 1 April 1987 when the Company declared impasse The parties began negotiations in July 1986 After four meetings, during which no wage proposal was submitted by the Company, a new company bargaining representa tive came on the scene with a new set of proposals to replace the incomplete company proposals presented ear her Thus, on 1 October 1986 the bargaining in essence began anew The parties met six times from 1 October 1986 to 30 January 1987 During these sessions the Com pany presented its new proposals on 1 October On 12 December the parties discussed the company proposal in detail and the Union offered to compromise on the griev ance procedure and sought a middle ground on the se niority issue On 16 December the parties discussed pending grievances On 13 January bargaining took place on certain leave issues On 20 January the parties dealt with medical insurance and the Union narrowed its demand on bereavement leave On 30 January the media tor was brought in and met with the parties separately Nothing in this brief summary indicates that there was a failure of the bargaining process Instead, there was ex- ploration of the parties aims and proposals offers of compromise by the Union, and a resort to the assistance of a mediator Then on 6 February 1987 the Company presented a new set of proposals containing 40 items Some of these were changes to the 20 proposals presented by Marcus on 10 October 1986 but many of these were new de mands For the most part, the new proposals did not rep resent an attempt to compromise with the Union by taking into account union concerns or demands Many of the proposals of 6 February were unfavorable to the Union and involved more retrogression in employee rights under the contract than did the proposals of 1 Oc tober 1987 Indeed Marcus candidly testified that he pre pared the WPIX proposals of 6 February based on new information he had acquired concerning the Company s needs In a sense the bargaining again began anew on 6 February The Union had new demands and new Ian guage to consider The parties met times to consider the 6 February pro posals On 6 February the new proposals were given to the Union and were discussed On 26 February the par ties met, they discussed removal of the news editor from 17 the unit, criteria for merit increases, and an asbestos problem The new medical insurance plan was finally agreed to By letter of 20 March , WPIX dropped some of its proposals and moved closer to the union position on others On 1 April the Union dropped some of its proposals and modified others, it also proposed some compromise on the subject of grievances Thus, some progress was indeed made by the parties in bringing their positions closer together each side dropped demands deemed unfavorable by the other This movement indi cater that bargaining was not exhausted and that it would not have been futile to continue collective bar gaining negotiations The Union wanted to negotiate fur ther The fact that the parties were not close on many issues does not indicate that the negotiations were dead locked it shows that that parties still had many hours of bargaining before them in order to resolve their differ ences The parties had met only three times since the new proposals of 6 February 1987 By the nature of the issues still to be resolved it was to be expected that the negotiations would be lengthy and difficult Moreover the evidence shows that parties had never bargained ex tensively about wages WPIX had proposed to change the automatic step increase system to a merit system based on employer evaluations The Union had expressed its opposition to this new system In addition the Em ployer s 2 percent wage increase offer was too low in the view of the Union But no extended discussion of wages had ever been taken place The uncontradicted testimony shows that wage discussions had been deferred by mutual agreement In fact it was not until 1 April 1987 that the Union asked for an 8 percent annual in crease Even on 1 April no bargaining took place on economic items Thus it is clear that no impasse could have been reached on the subject of wages And without an intensive discussion of wages, it would be difficult to find that any bargaining impasse had been reached Al though as Respondent points out , the Union was op posed to a system of ment increases it did have such provisions in other of its contracts Further there is no evidence that the Union had refused to discuss the Com pany s proposal for such a system Although Respondents brief faults the Union for not having accepted company proposals during the course of bargaining it is clear that the Union could not be re quired to compromise its own demands where the Em ployer felt free to keep adding new proposals to the table The Union would then be withdrawing or modify mg its demands only to be faced with the later addition of more company proposals In such an instance the give and take of collective bargaining would be meaning less because it would involve no mutual give and take only the Union would be giving And the Union would have no way of gauging what the Company s basic needs were in order to offer a compromise in these areas be cause, faced with an incomplete and ever changing set of demands, the Union could never be sure what company proposals were of paramount importance in reaching a contract At the end of the 1 April bargaining session the par ties discussed when to negotiate further Marcus wanted 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to meet the next day, but when it was clear that Du charme could not meet until 2 April Marcus declared impasse and said WPIX would implement its last offer Apparently Marcus was willing to negotiate further with the Union but unwilling to wait 3 weeks to do so and for that reason he declared an impasse This was in the face of Ducharme s statement that the Union was pre pared to meet and to move on its demands Respond ent s brief intimates that the Union was not willing to meet as often as the Company wished and that this un willingness was the cause of an impasse being reached It is true that the negotiations were protracted Some delays in meeting were because the Company and the Respondent changed their chief spokesmen in the negoti ations One delay was due to a Union s spokesman s ill ness Some delay was caused by the unavailability of the mediator It would be useless and wasteful to recite all the facts in detail The Union has not been charged with refusing to bargain in the instant case The Union did not refuse to meet with WPIX and it did not refuse to sched ule new dates for negotiations nor did it abruptly cancel meetings with no apparent justifications Marcus was piqued that on I April Ducharme states that his next available date was 21 April A delay of 3 weeks is not unreasonable See Gulf States Mfgrs, 287 NLRB 26 (1987) I conclude that no impasse existed in the collective bargaining negotiations between Respondent and the Union when Respondent declared impasse on 1 April 1987 See Powell Electrical Mfg Co, 287 NLRB 969 (1987) ( The parties had yet to bargain exhaustively over core economic issues The relatively limited discussions engaged in do not provide a basis for Respondents al leged belief that further bargaining would ha% a been futile ) Towne Plaza Hotel, 258 NLRB 69, 78 (1981) (recent union concession and expression of willingness by union to consider employers proposals show no impasse existed) Henry Miller Spring Co 273 NLRB 472 (1984) (no impasse based on continuous negotiations involving concessions and agreements and a final lengthy session during which some items were settled) SGS Control Services 275 NLRB 984 (1985) (recent concessions and statement that differences could be worked out show no impasse was reached) In addition to my conclusion that the parties had not bargained to impasse on 1 April 1987, I note that I found above that beginning 1 October 1986, and continuing until after 1 April 1987, the Company admittedly was not paying required wage step increases to employees This unilateral change was an unfair labor practice and an absence of good faith by WPIX, and thus no lawful impasse could be reached while it persisted NLRB v Katz 369 U S 736, 747 (1962) Respondent citing Eagle Express Co 273 NLRB 501 (1984), argues that its failure to abide by the contract did not contribute to a deadlock between the parties Respondent seems to argue that the Union did not care about the failure to pay step in creases I note that the Union pressed its claim to the in creases immediately and fully it asked Marcus about them on 1 October 1986, and then it secured the Compa ny's waiver of the intermediate grievance step and filed for arbitration Eagle Express is not applicable to the case at bar In Eagle Express the administrative law judge found that an almost bankrupt employer which reduced wages unilaterally in the face of the union s technique of discussing the wage issue interminably rather than engag ing in negotiations designed to reach agreement was privileged later to declare impasse despite the earlier un lawful unilateral action In adopting the judge s finding in Eagle Express, the Board panel noted that the unilater ally reduced wages were discussed in the negotiations between the parties In the instant case, Respondent uni laterally failed to pay the step increase before it present ed its wage proposal to the Union and Respondent did not engage in extensive bargaining on its wage proposal or other economic items these were deferred by mutual consent to some later stage of the negotiations No find ing can here be made that the Unions dilatory tactics prevented the parties from reaching agreement on wages In Eagle Express, the Board distinguished Bedford Farm ers Cooperative, 259 NLRB 1226 (1982), in which the uni lateral action was taken before bargaining began and where additional unilateral action was taken contrary to a tentatively settled matter In the instant case, Respond ent did not take emergency action in the face of an in transigent union Here, Respondent took action without prior negotiation and without subsequent discussion of the subject The Union was faced with a fait accompli, and the Company did not permit the bargaining to go on long enough for an impasse on wages to take place Thus I find that the unilateral changes put into effect on 1 April 1987 were unlawful and in violation of Sec tion 8(a)(1) and (5) of the Act CONCLUSIONS OF LAW 1 The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act INCLUDED News editors assignment editors senior writers news writers sports specialist senior assignment desk assistants, talent coordinators graphic artists, assignment desk assistants graphics assistants production assistants and telephone clerks in the news department of WPIX TV EXCLUDED All other employees in the News Department of WPIX TV, including News Direc tor Executive Producer, Managing Editor Produc ers, Metropolitan Editor Graphics Director Busi ness Manager, administrative assistant (confidential secretary) all employees represented by other labor organizations, guards, watchmen and supervisors as defined in the Act 2 At all times material the Union has been the exclu sive representative of all employees within the appropri ate unit described above for purposes of collective bar gaining within the meaning of Section 9(a) of the Act 3 By unilaterally implementing changes in terms and conditions of employment from 9 October 1986 and again from 1 April 1987, at which time no bargaining im passe existed Respondent refused to bargain in violation of Section 8(a)(5) and (1) of the Act WPIX INC 19 4 Respondent did not engage in unfair labor practices other than those found here THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act I shall recommend that it be required to cease and desist therefrom and that it take certain affirm ative action necessary to effectuate the policies of the Act Respondent having unilaterally implemented its last offer when it unlawfully declared impasse, it must make the employees whole for loss of earnings and other bene fits from 1 April 1987 Backpay shall be computed in a manner consistent with Ogle Protection Service, 183 NLRB 682 (1970), enfd 44 F 2d 502 (6th Cir 1971), with interest as prescribed in New Horizons for the Re Larded 283 NLRB 1173 (1987) No backpay remedy is required for the failure to pay step increases from Octo ber 1986, as the parties have stipulated that these were paid shortly after 2 April 1987 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edio ORDER The Respondent, WPIX, Inc, New York, New York its officers, agents, successors , and assigns, shall 1 Cease and desist (a) Refusing to bargain with the Union, by unilaterally implementing changes in terms and conditions of em ployment, in the absence of a bargaining impasse of its employees in the appropriate unit described above (b) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make all employees whole for any losses they may have suffered as a result of Respondent's unlawful unilat eral changes in the terms and conditions of employment as of 1 April 1987 in the manner set forth in the remedy section of the decision (b) On request from the Union, revoke any unilateral changes in wages or other conditions of employment and reinstate the terms and conditions of employment that obtained before the unilateral changes 1 April 1987, pro vided that nothing shall be construed as requiring recis sion of any wage or benefit increase heretofore granted to unit employees (c) Preserve and, on request, make available to the Board or its agents for examination and copying all pay roll records, social security payment records, timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) On request, bargain collectively with the Union as the exclusive representative of all employees in the ap propriate unit described with respect to rates of pay, wages, hours, and other terms and conditions of employ ment, and, if an understanding is reached, embody such understanding in a signed agreement (e) Post at its facility copies of the attached notice marked Appendix 11 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondents authorized representa tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi al (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER ORDERED that the complaint is dis missed insofar as it alleges violations of the Act not spe cifically found 10 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses i i If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board