Cincinnati Newspaper Guild, Local 9 v. N.L.R.B.

• Decision Date: 12 July 1991
• Docket Number: CL,No. 90-1429,AFL-CI,P,90-1429
• Citation: 938 F.2d 284
• Parties: 137 L.R.R.M. (BNA) 2838, 291 U.S.App.D.C. 19, 60 USLW 2107, 119 Lab.Cas. P 10,856 The CINCINNATI NEWSPAPER GUILD, LOCAL 9, The Newspaper Guild,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 284

938 F.2d 284

137 L.R.R.M. (BNA) 2838, 291 U.S.App.D.C.

19, 60 USLW 2107,

119 Lab.Cas. P 10,856

The CINCINNATI NEWSPAPER GUILD, LOCAL 9, The Newspaper Guild, AFL-CIO, CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 90-1429.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 25, 1991.

Decided July 12, 1991.

Petition for Review of an Order of the National Labor Relations Board.

David Jonathan Cohen, with whom David S. Barr was on the brief, Washington, D.C., for petitioner.

Linda Dreeben, Attorney, NLRB, with whom Aileen A. Armstrong, Deputy Associate General Counsel, NLRB, was on the brief, Washington, D.C., for respondent. Peter Winkler and Robert F. Mace, Attorneys, NLRB, also entered an appearance, Washington, D.C., for respondent.

Before MIKVA, Chief Judge, and D.H. GINSBURG, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The National Labor Relations Board held that the Cincinnati Enquirer did not, by insisting upon unilateral control over wage increases, refuse to bargain in good faith with the Cincinnati Newspaper Guild, Local 9. The Cincinnati Enquirer, Inc., 298 N.L.R.B. No. 41 (Apr. 24, 1990). As we conclude that the Board's decision was supported by substantial evidence and was consistent with the relevant Board and judicial precedents, we deny the Guild's petition for review.

I. BACKGROUND

The Guild was certified as the bargaining representative of the Enquirer's editorial division employees after winning a Board-conducted election in December 1984. Previously, the employees had been represented by the Enquirer Editorial Employees Professional Association.

The last collective bargaining agreement between the Association and the Enquirer, which expired in February 1984, divided the bargaining unit employees among six classifications, each of which was in turn subdivided into several experience ratings. That agreement set out the minimum salary for each experience rating within each classification, and provided for annual increases in the minimum salary for each rating. (The Employer could give an individual employee a merit increase, above the applicable minimum, on its own initiative.) The agreement also included a union security clause, a no-strike clause, and a four-step grievance procedure culminating in arbitration.

When the Guild began bargaining with the Enquirer in April 1985, the Union proposed to retain the system of wage scales and job classifications. The Employer countered by proposing to eliminate wage scales and classifications, and to substitute a system of increases based exclusively upon merit, with no specified minima for new hires. The Enquirer also proposed to drop the arbitration provision, but to keep the no-strike clause.

The Guild and the Enquirer met regularly for bargaining sessions, but both sides adhered to the positions outlined above. In May 1986, the Employer finally stopped insisting upon a no-strike clause, but it continued its firm stand in favor of a merit increase system and against arbitration.

In June 1986, the Guild filed an unfair labor practice charge claiming that the Enquirer's positions on wages, arbitration, and the no-strike clause constituted surface bargaining in violation of National Labor Relations Act Secs. 8(a)(1) (employer interference with employees' right, inter alia, "to bargain collectively through representatives of their own choosing") and 8(a)(5) (employer "refus[al] to bargain collectively with the representatives of his employees"). 29 U.S.C. Secs. 158(a)(1), (5). See Sec. 8(d), 29 U.S.C. Sec. 158(d) (collective bargaining obligation includes requirement to bargain in good faith). The Regional Director of the NLRB first issued but then withdrew an unfair labor practice complaint. Upon the Guild's appeal, the General Counsel remanded the case to the Regional Director to reissue a complaint applying only to "the Employer's bargaining position pertaining to a merit wage system without minimum wages." In September 1987, the Regional Director issued a new complaint charging that the Enquirer had engaged in an unfair labor practice by insisting from April 1985 to the date of the complaint, "that the Union agree to a merit wage system with no minimum wage rates, administered exclusively by [the Employer]," and by insisting, from May 1985 to May 1986, "on a no-strike clause and no-arbitration clause in any collective bargaining agreement."

After a hearing, an Administrative Law Judge found that the Enquirer had not refused to bargain in good faith. At the beginning of the hearing, the ALJ struck the allegation that the Enquirer had violated the Act by insisting upon a no-strike clause in conjunction with a no-arbitration clause; in his view, the General Counsel had authorized the Regional Director to file a charge based solely upon the Employer's merit wage position. The ALJ then found that the Enquirer had indeed insisted upon unilateral control of wages, but he held, on the authority of NLRB v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952), that the Enquirer's bargaining position could not constitute a per se violation of the act. Although insistence upon a merit wage system in conjunction with a no-strike clause and no arbitration provision might be evidence of bad faith bargaining, he reasoned, an unfair labor practice finding requires some additional and independent evidence of bad faith.

The Board affirmed the ALJ's ultimate decision that the Employer did not commit an unfair labor practice, but slightly modified some of the ALJ's findings and reasoning. In the Board's view, the complaint rested upon

[t]he General Counsel's theory ... that the [Enquirer's] insistence on its proposal for unilateral control of merit pay without reference to minimum wage standards, viewed in the context of its proposal that there be no arbitration of grievances and ... a no-strike clause ... constituted an insistence on unilateral control of all wages, and that this position, in and of itself, violated Section 8(a)(5).

Id., slip op. at 1-2. Because the Board discerned no evidence that the Enquirer had insisted upon unilateral control of wage reductions or of the wages of newly hired employees, it found that the Enquirer insisted upon unilateral control only of merit increases, not of all wages. Thus the General Counsel had not proved the factual predicate of her legal theory, and the Board declined to find an unfair labor practice based only upon the Employer's insistence that it control merit increases.

The Board also reversed the ALJ's decision to strike part of the complaint, holding that the issuance of a complaint is a matter within the General Counsel's unreviewable discretion. See NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987); see also Secs. 3, 10, 29 U.S.C. Secs. 153, 160. The Board found that error immaterial, however, because the General Counsel, like the Board, had interpreted the complaint to address the Enquirer's wage position in the context of the arbitration and no-strike clause positions, and was not hindered in presenting her case on that theory.

II. ANALYSIS

Because the Board has "the primary responsibility of marking out the scope of the statutory language and of the statutory duty to bargain," Ford Motor Co. v. NLRB, 441 U.S. 488, 496, 99 S.Ct. 1842, 1848, 60 L.Ed.2d 420 (1979), this court defers to the Board's "reasonably defensible" construction of that duty. Id. at 497, 99 S.Ct. at 1849. See also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). In addition, the court must uphold the Board's determination that the General Counsel has not met her burden of proving an unfair labor practice by the preponderance of the evidence, see Sec. 10(c), 29 U.S.C. Sec. 160(c), unless that determination has "no rational basis." Teamsters Local Union No. 515 v. NLRB, 906 F.2d 719, 727 (D.C.Cir.1990). This statement particularizes the general rule that the court will defer to Board findings of fact supported by "substantial evidence on the record considered as a whole." Sec. 10(f), 29 U.S.C. Sec. 160(f). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

A. The ALJ's Erroneous "Striking" of Allegations in the General Counsel's Complaint

The Guild argues at the outset that the Board erred in finding immaterial the ALJ's purporting to strike the supposed allegation of a separate unfair labor practice grounded upon the Enquirer's simultaneous insistence that there be a no-strike clause and no arbitration. According to the Guild, the ALJ (and the Board) misunderstood the unfair labor practice complaint, with the result that the ALJ improperly excluded the Guild's evidence.

We agree with the Board that the ALJ's error was harmless. The ALJ agreed that the Employer's no arbitration/no-strike position might be relevant to the charge of an unfair labor practice based upon the Enquirer's insistence that it have control over wages. The General Counsel consistently treated the Enquirer's no-strike and no-arbitration positions in conjunction with its merit wage position; she never contended that the non-wage positions constituted a refusal to bargain in good faith apart, as counsel said at the hearing, from "the context with the[ ] proposals with respect to minimum wages and merit wages." The real source of the Guild's dismay is not the ALJ's ruling but the General Counsel's theory of the case.

The Guild claims that the ALJ's erroneous ruling led him to exclude evidence related to the Employer's no-strike and no-arbitration positions, but the Union does not point to anything in particular that was excluded. In making his ruling, the...