
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1966                       PEGASUS BROADCASTING OF SAN JUAN, INC.,                                     Petitioner,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                                     Respondent.                                 ____________________                UNION DE PERIODISTAS Y ARTES GRAFICAS Y RAMAS ANEXAS,                     AFFILIATED TO THE NEWSPAPER GUILD, AFL-CIO,                                     Intervenor.                                 ____________________                     ON PETITION FOR REVIEW AND CROSS-APPLICATION                          FOR ENFORCEMENT OF AN ORDER OF THE                            NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Radames A. Torruella with whom McConnell  Valdes was on brief  for            ____________________           _________________        petitioner.            David  A.  Fleischer, Senior  Attorney,  with  whom  Frederick  L.            ____________________                                 _____________        Feinstein,  General Counsel,  Linda Sher,  Associate  General Counsel,        _________                     __________        Aileen A.  Armstrong, Deputy  Associate General Counsel,  and National        ____________________                                          ________        Labor Relations Board were on brief for respondent.        _____________________            Ginoris Vizcarra  De Lopez-Lay and Lopez-Lay  Vizcarra & Porro  on            ______________________________     ___________________________        brief for intervenor.                                 ____________________                                    April 22, 1996                                 ____________________                      ALDRICH, Senior Circuit Judge.   This is a petition                               ____________________            to  review an  order of  the  National Labor  Relations Board            brought  by Pegasus  Broadcasting  of San  Juan, Inc.,  d/b/a            WAPA-TV  (the Company),  with the usual  cross-application by            the  Board for  enforcement of  its order.   The  Company was            charged with  violation of sections  8(a)(5) and  (1) of  the            National Labor  Relations Act  (Act), 29  U.S.C.    158(a)(5)            and (1), by withholding granting wage increases.   We enforce            the order.                                 The Unfair Practice                                 ___________________                      The Board found  that for 18 years the  Company had            granted annual  merit-based salary increases to its reporters            based  on individual  evaluation, effective  January of  each            year.  In January of 1990-92 the individual raises had varied            between 3%  and 8%.  In 1993  the Company, instead, granted a            flat 1%.  The Board chose to regard this as  a continuance of            the practice.  In  January of 1994, however, the  Company had            begun  negotiations  for   its  first  collective  bargaining            agreement  (CBA)   with  a   newly  certified  union,1   and,            allegedly believing  that to  do otherwise would  violate the            Act, it  unilaterally discontinued all merit  wage increases.            It  did not  notify the  union, nor  did it  indicate it  was                                            ____________________            1.  In  February of  1993 the  Union de  Periodistas y  Artes            Graficas y Ramas Anexas, Local 225, The Newspaper Guild, AFL-            CIO, CLC,  was certified to  represent all  of the  Company's            reporters   and  reporter-anchor  persons   employed  at  its            television facilities in Puerto Rico.                                         -2-            merely  temporarily suspending the program during bargaining.            In  May, 1994, during bargaining, the union filed the present            charge.                      If this  were a novel matter we  might have initial            sympathy  with the  Company's view  that it  was between  the            devil and the  deep blue.   It claims  to have suspended  its            annual merit increases  because awarding discretionary  merit            pay increases during bargaining seemed  to it to fall  within            the prohibition  on making changes with  respect to mandatory            bargaining  matters, in  violation of  section 8(a)(5).   See                                                                      ___            NLRB  v. Katz,  369 U.S.  736, 745-46  (1962).   Indeed, with            ____     ____            unilateral  discretion, there  would seem  room  for improper            maneuvering.   Id.  at 746-47.   However,  Katz distinguished                           ___                         ____            between  merit  increases that  are  part  of an  established            practice of granting annual merit reviews, and those that are            not,  id.  at  746, ruling  that  granting  the  latter is  a                  __            violation of the Act.   Id.  Here, the Board found  that even                                    ___            though the  amounts of  the increases were  discretionary, it            was  abandonment of  the practice  itself that  was forbidden            under the Act.   Pegasus Broadcasting of San Juan,  Inc., 317                             _______________________________________            N.L.R.B. No. 165 (July 20, 1995).                      The record adequately supports the Board's finding,            and we have no reason to disagree with it.  Rather, we are in            full accord with the recent similar case of Daily News of Los                                                        _________________            Angeles  v. NLRB, 73 F.3d 406, 410  (D.C. Cir. 1996).  See 29            _______     ____                                       ___                                         -3-            U.S.C.      158(a)(5) and  (d); Katz,  369  U.S. at  743 (any                                            ____            unilateral  change  to  a  mandatory  subject  of  bargaining            violates the  Act, despite good  faith).  We  have previously            indicated  that a perception of  the law such  as the Company            claims  to  have  had  is  incorrect.    See  General  Motors                                                     ___  _______________            Acceptance  Corp. v. NLRB, 476 F.2d 850, 854 (1st Cir. 1973).            _________________    ____            The  Company  could have  avoided  its  alleged conundrum  by            freely  offering  January  1,  1994 merit  increases  at  the            bargaining  table,  rather   than  taking  unilateral  action            without  notice to the union.   See generally  Daily News, 73                                            ___ _________  __________            F.3d 406.2  See also Eastern  Maine Medical Ctr. v. NLRB, 658                        ___ ____ ___________________________    ____            F.2d 1, 8-9 (1st Cir. 1981) (withholding wage increase).                                      The Remedy                                      __________                      Pursuant to its authority under 29 U.S.C.   160(c),            the  Board  ordered  a  multi-faceted  remedy  directing  the            Company   to,  inter   alia,  (1)   cease  and   desist  from                           ____________            unilaterally   withholding  the  merit   wage  increases  and            "interfering,  restraining or  coercing  employees" in  their            exercise of rights  guaranteed by section  7 of the  National            Labor  Relations Act, (2)  make whole each  employee "for any            loss of  earnings suffered because of  [the Company]'s having                                            ____________________            2.  We note  that Daily  News covers  individual raises.   73                              ___________            withheld such increase," with interest, to be computed during            F.3d at  413.   For  raises  across the  board,  see NLRB  v.                                                             ___ ____            Blevins Popcorn Co., 659 F.2d 1173, 1189 (D.C. Cir. 1981).            ___________________            "the  compliance stage  of  this proceeding,"3  and (3)  post            3.  Such a  bifurcated procedure is  common and has  met with            approval.  See, e.g., Holyoke Visiting Nurses Ass'n. v. NLRB,                       ___  ____  ______________________________    ____            11 F.3d 302,  308 (1st Cir. 1993).  See  also NLRB v. Rutter-                                                ___  ____ ____    _______            Rex  Mfg.  Co.,  396 U.S.  258,  260  (1969);  NLRB v.  Deena            ______________                                 ____     _____            Artware, 361 U.S. 398, 411 (1960).            _______                                         -4-            notice  of   the  violation  at  its   facilities.    Pegasus                                                                  _______            Broadcasting,  317 N.L.R.B.  No. 165,  slip  op. at  *1, 2-3.            ____________            This is, presumptively, appropriate.   The Supreme Court "has            repeatedly interpreted [  160(c)] as vesting in the Board the            primary   responsibility  and  broad   discretion  to  devise            remedies  that effectuate  the policies  of the  Act, subject            only  to limited judicial review,"  in which courts of appeal            "should not substitute their judgment  for that of the  Board            in determining how best  to undo the effects of  unfair labor            practices."  Sure-Tan,  Inc. v.  NLRB, 467  U.S. 883,  898-99                         _______________     ____            (1984).  A  Board-ordered remedy "should stand unless  it can            be shown that [it] is a patent attempt to  achieve ends other            than  those  which  can  fairly  be  said  to  effectuate the            policies of the Act."    Virginia Elec. & Power Co.  v. NLRB,                                     __________________________     ____            319 U.S. 533, 540 (1943).                      Put briefly,  it  is  the Board  --  and  union  --            position that,  the Company having committed  an unfair labor            practice by unilaterally  cancelling the merit  wage increase            program in January 1994, it is now for the Board to determine            the consequences, if any.  The Company objects, first, on the            ground  that  the  backpay  order  transgressed  the  Board's            authority, because the raises were always discretionary as to            amount  and, as  such, not  amenable to  Board determination.            This thought has been sufficiently answered by the Daily News                                                               __________                                         -5-            court.   73 F.3d at  415.  More interesting  is the Company's            next suggestion, that the wage question is now moot.                      The Company and the union completed bargaining  and            entered into  a CBA, effective September 22,  1995, that sets            wages retroactive  to January 1,  1994.  The  Company asserts            that  the CBA  contains a  so-called zipper  clause providing            that  it   comprises  "the   complete  agreement   among  the            parties."4   In this  circumstance the Company  would have us            say that the Board's ordered remedy, insofar as it relates to            lost wages from  January 1994 plus  interest, has been  taken            care of  by the CBA, rendering the order moot or, at the very            least, obviating  the need  for further backpay  proceedings.            Further proceedings  would necessarily  involve the  Board in            impermissibly  interfering with  the bargaining  process, and            altering the terms  of the CBA.   See NLRB  v. American  Ins.                                              ___ ____     ______________            Co.,  343 U.S. 395, 404 (1952); NLRB v. Insurance Agents, 361            ___                             ____    ________________            U.S. 477, 487 (1960) (section 8(d) "prevent[s] the Board from            controlling   the  settling   of  the  terms   of  collective            bargaining agreements").  See  also H.K. Porter Co.  v. NLRB,                                      ___  ____ _______________     ____            397 U.S. 99, 103-04 (1970).  The Board's short answer is that                                            ____________________            4.  The clause, submitted after oral argument upon request of            the panel, reads, in full:                      A.  This  agreement includes the complete                      agreement  among  the   parties.     This                      agreement cannot be modified, expanded or                      amended except by  a written  stipulation                      properly   signed   by   the   authorized                      representative of the parties.                                         -6-            the issue of whether or not the CBA moots the order is one of            fact, concerning events subsequent  to the Board's order, and            is not presently before us.                      We  agree with  the Board.   The CBA  succeeded the            order, and was not, and never has been, presented to it.  The            terms  are   not  of  record.     Board  counsel's  courteous            affirmative answer  to our  question about the  zipper clause            was accompanied by a statement that his answer could not bind            the Board.  Nor can we take, of our own accord, the Company's            submission of the CBA.   We, particularly, know that  we lack            the same broad right or supervisory power over the Board that            we might have over a district  court on new matter.  Cf. NLRB                                                                 ___ ____            v. Ochoa Fertilizer Corp., 368 U.S. 318, 322 (1962).  The Act               ______________________            unequivocally requires that new matter go through the Board:                      If either party shall apply  to the court                      for leave to  adduce additional  evidence                      . . . the court may order such additional                      evidence  to be  taken before  the Board,                      its member,  agent, or agency,  and to be                      made a part of the record.  The Board may                      modify its findings  as to the  facts, or                      make new findings by reason of additional                      evidence so taken and filed, and it shall                      file such modified or new findings, which                      findings  with  respect  to questions  of                      fact if supported by substantial evidence                      on the record considered as a whole shall                      be   conclusive,   and  shall   file  its                      recommendations,   if    any,   for   the                      modification  or  setting  aside  of  its                      original order.            29 U.S.C   160(e).  See also Ochoa, 368 U.S. at 322.                                ___ ____ _____                                         -7-                      Amicable  adjustment  by   parties  is  of   course            permissible, and encouraged.   See 29 C.F.R.     101.9(a) and                                           ___            101.16.   However, "parties" include  representatives of  the            Board, and  formal settlement is contingent  upon the General            Counsel's approval.  Id.     101.9, 101.13, 101.16, 102.52 et                                 ___                                   __            seq.  See NLRB v. Tennessee Packers,  Inc., 390 F.2d 787, 788            ____  ___ ____    ________________________            (6th Cir. 1968)  (collecting cases).  Here, neither the union            nor  the  Board agrees  with the  Company  that the  issue of            compliance  with the  backpay order  has been settled  by the            CBA.    This  court  is  without  jurisdiction  to  entertain            arguments  not previously presented to the Board.  See Woelke                                                               ___ ______            & Romero Framing, Inc.  v. NLRB, 456 U.S. 645,  665-66 (1982)            ______________________     ____            (court of  appeals without jurisdiction to  consider question            that   could   have   been    presented   in   petition   for            reconsideration or rehearing before the Board).  If  there is            any  question the proper course is for the Company to present            its proofs  regarding amounts in  further proceedings  before            the  Board.  29 U.S.C.   160(e).  See, e.g., Holyoke Visiting                                              ___  ____  ________________            Nurses, 11 F.3d  at 308;  Fox Painting Co.  v. NLRB, 16  F.3d            ______                    ________________     ____            115, 116 (6th Cir. 1994).  29 C.F.R.    102.52 et seq.                                                           _______                      The Company  nonetheless presses that the  Act bars            the Board in this  particular case from conducting compliance            proceedings, or otherwise implementing the order,  because it            has  now fully bargained to agreement with the union over the            very amounts the  Board would address.  In other  words, as a                                         -8-            matter of law, any compliance order would operate to alter or            impermissibly supplement  the terms of the  CBA, in violation            of   8(d) of the Act.  H.K. Porter, 397 U.S. at 103-04.  This                                   ___________            is simply not so.  The Board, in effect, found the bargaining            had not  been on  the now universally-demanded  level playing            field.   More  exactly, having  unfairly lacked  the expected            benefits  of  the   unilaterally  cancelled  merit   increase            program, the union was  required to start behind the  line of            scrimmage.   As observed in  John Zink Co.,  196 N.L.R.B. 942                                         _____________            (1972),  1972 WL 12497 at  *1, the employer  is "enjoying the            fruits  of  his  unfair  labor practices  and  gaining  undue            advantage at the bargaining table  when he bargains about the            benefits which he has already [illegally] discontinued."                      The Board's order means that the bargaining was not            free, a  matter of public, as well  as private, concern.  Cf.                                                                      ___            Phelps  Dodge Corp.  v. NLRB,  313 U.S.  177,  192-95 (1941).            ___________________     ____            What were the  consequences of  the order?   Did the  Company            change its behavior, admit,  for example, merit increases for            January  1, 1994?  We, of course,  make no suggestion, but it            is  for  the  Board, not  the  Company,  to  say whether  the            ultimate bargaining in fact  accomplished the entirety of the            Board's purpose.                      The  Company's petition is  denied, and the Board's                                                  ______            application for enforcement is granted.                                           _______                                         -9-
