

                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 &amp; 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. &amp; 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                                                                         

&amp; 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.                                                  

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