216 F.3d 109 (D.C. Cir. 2000)
Detroit Typographical Union No. 18, et al.,Petitionersv.National Labor Relations Board, RespondentDetroit News, Inc., et al., Intervenors
Nos. 98-1599, 99-1111, 99-1112, 99-1163, 99-1180
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2000Decided July 7, 2000

[Copyrighted Material Omitted]
On Petitions for Review and Cross Applications For Enforcement of Orders of the National Labor Relations Board
James B. Coppess argued the cause for the Union petitioners.  With him on the briefs were Samuel C. McKnight,  Duane F. Ice, John G. Adam, and Richard Rosenblatt.
Jeremy P. Sherman argued the cause for the Employer  petitioners.  With him on the briefs was Joshua L. Ditelberg.
Sharon I. Block, Attorney, National Labor Relations  Board, argued the cause for respondent.  With her on the  brief were Leonard R. Page, General Counsel, Linda Sher,  Associate General Counsel, Aileen A. Armstrong, Deputy  Associate General Counsel, and Charles Donnelly, Supervisory Attorney.  John D. Burgoyne, Deputy Associate General  Counsel, entered an appearance.
James B. Coppess argued the cause for the Union intervenors.  With him on the brief were Samuel C. McKnight,  Duane F. Ice, John G. Adam, and Barbara Camens.
Jeremy P. Sherman and Joshua L. Ditelberg filed the brief  for the Employer intervenors.
Before:  Silberman and Sentelle, Circuit Judges, and  Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge:


1
Two groups of petitioners challenge National Labor Relations Board orders arising out of a  strike against the Detroit newspapers.  The employers challenge those portions of the Board's orders determining that  they committed unfair labor practices, see Detroit Newspaper  Agency, 326 N.L.R.B. No. 64 (1998) (Detroit I), on reconsideration, 327 N.L.R.B. No. 146 (1999) (Detroit III), and that  the strikers were unfair labor practice strikers, see Detroit  Newspaper Agency, 326 N.L.R.B. No. 65 (1998) (Detroit II),  while the unions object to the Board's determination that one  employer's unilateral implementation of a change in work assignment rules was lawful.  The employers' petition for  review is granted;  the unions' is denied.

I.

2
From July 1995 through February 1997, employees went  on strike against Detroit's two major newspapers--petitioners The Detroit News, Inc. (the News) and The Detroit Free  Press, Inc. (Free Press)--and a joint endeavor created by the  papers under a partnership agreement signed in 1986, petitioner Detroit News Agency (DNA).  Each paper is responsible for its news and editorial operations, but many other  functions, such as circulation, marketing and some labor  relations, are handled by DNA.  The employees of these  three companies are represented by 12 unions each representing a separate bargaining unit of the papers or DNA;petitioners are six of these unions which compose the Metropolitan Council of Newspaper Unions (the Council).  Two of  the unions in the Council are particularly important to this  case:  the Detroit Typographical Union No. 18 (DTU), representing composing room employees of DNA, and the Newspaper Guild of Detroit, representing editorial employees at the  News.1


3
Each newspaper and DNA is responsible for its own labor  negotiations.  During bargaining in 1992, noneconomic issues  were negotiated between DNA and each individual union, but  economic issues were handled by DNA and the Council.Detroit I, 326 N.L.R.B. No. 64 at 34.  When the 1992  agreements were about to expire (on April 30, 1995) and the  parties began to discuss the next round of collective bargaining, DNA initially declined to accept the joint bargaining  format, insisting instead on bargaining with each union separately.  Agreements were eventually concluded with the  skilled-trades unions, but negotiations on a unit basis with  members of the Council ran past the 1992 agreements' expiration date, resulting in those agreements being extended  day-by-day.  See id. at 2, 34.


4
To expedite matters DNA tentatively agreed to engage in  joint economic bargaining if progress could be made on  noneconomic issues (the "two-stage bargaining agreement").DNA continued to discuss economic issues with the individual  unions, however, and as negotiations lagged DNA set June 30  as a deadline for their conclusion. (DNA frequently referred to its June 30 deadline in subsequent communications with  the Council and its member unions.)  The Council then  requested that DNA formally agree in writing to two-stage  bargaining;  DNA declined to do so but again expressed its  tentative agreement if individual negotiations over noneconomics could be finished by June 30.  Negotiations between DNA and individual unions went past this deadline and  were halted by the strike on July 13.  See id. at 2.


5
The News initially provided the Guild with a list of proposals for its editorial employee unit including Proposal 7, "News  Department employees who qualify as professionals within  the meaning of Federal wage and hour laws may, at their  option, apply annually to be salaried and exempt from overtime," Proposal 8, allowing the News to assign employees to  radio and television projects, and Proposal 11, which stated  "All future pay increases to bargaining unit employees will be  on the basis of merit utilizing the Company's performance  appraisal system."  See id. at 60-61 (the "overtime exemption," "radio/tv," and "merit pay" proposals, respectively).The radio/tv proposal came with some baggage.  In November 1994 the News implemented a similar proposal following a  purported impasse with the Guild;  an unfair labor practice  charge was filed with the NLRB, which ruled in the union's  favor on July 14, 1995.  In the meantime, the News had  introduced proposal 8.


6
At early bargaining sessions Guild negotiators expressed  their opinion that the overtime exemption proposal was a  subject upon which it was illegal to bargain and illegal to  agree upon according to the Guild's legal advice, and until the  News's unilateral implementation of this proposal on July 5  no counterproposal was ever made.  Id. at 61.  The Guild also  stated with respect to merit pay that the performance appraisal system was a waste of time that it wanted to get rid  of, and that it was concerned that merit pay decisions would  be corrupted by race or gender discrimination.  The News,  on the other hand, was anxious to introduce merit pay and  viewed it as a central issue.  See id.


7
On April 25, the News provided the Guild with a more  detailed merit pay proposal:  unit members making the contract's minimum salary would receive at least a one percent  salary increase, but a merit component would increase their  pay by an average of four percent from the minimum.  Salary  increases for those making more than the minimum would be  based solely on merit.  At this meeting Guild negotiators  asked numerous questions, but News negotiators admitted  that specific details had yet to be considered.  See id. at 62.


8
Two days later, the News faxed the Guild a new, more  detailed proposal:


9
All employees of The Detroit News editorial department will receive a pay increase effective on the date of ratification of the new collective bargaining agreement. No pay increase will be less than one (1) percent.  The average of all pay increases will be four (4) percent. Increases above one (1) percent will be based on the employees [sic] most recent evaluation unless the employee or his/her manager requests that another evaluation be done because the employee's performance has changed since the last evaluation.  Irrespective of any delay caused by such re-evaluation, all raises will be retroactive to the date of ratification.


10
Raises for the second and third years of the contract will be handled under the above procedure and will be effective May 1, 1996 and May 1, 1997, respectively.  The only change is that the minimum each year will be one (1)percent and the average will be three (3) percent.


11
Each year all contract minimums will increase by one (1)percent.


12
Employees of the union may grieve, but not arbitrate, the employee's evaluation or the timing or amount of the employee's pay increase.


13
News negotiators offered to meet to explain the proposal. The Guild negotiators claimed to understand it, although the ALJ found that they were uncertain whether the merit  increases were to be based on the contractual minimum  salaries or employees' actual salaries (typically higher).  See  Detroit I, 326 N.L.R.B. No. 64 at 63.  At a meeting a week  later, without inquiring into whether the new proposal was  based on actual salaries or contract minimums, Guild negotiators reported that unit members were not at all interested in  the merit proposal.  The News rejected a Guild proposal of  an across-the-board 15% pay increase.  On several occasions  after this meeting, the News characterized the Guild's treatment of the merit pay proposal that day as a rejection of the  proposal.  See id. at 62-63.  At this meeting the Guild also  reiterated its view that the overtime exemption proposal was  illegal.  See id. at 63.


14
In a flurry of letters at the end of May and beginning of  June, the News informed the Guild that it thought negotiations over merit pay were deadlocked, and the Guild responded that it disagreed;  when the News asked if the Guild were  prepared to offer counter proposals, the Guild stated that it  would be prepared to respond to all the issues on the table,  and a meeting was scheduled for June 14.  At this time the  News also sought to set a firm deadline of June 30 for the  completion of negotiations.  See id.


15
At the June 14 session the News clarified for the Guild that  merit payments would be based on actual salaries.  The  Guild's negotiator again rejected the News's suggestion that  negotiations over merit pay were deadlocked, claiming to  have come to the meeting to make counter proposals.  However, although he asked questions about the News's proposal,  no counter proposals were made, and he stated that the unit  members were adamantly opposed to merit pay.  See id. at  63-64.  Negotiations over the overtime exemption proposal  also went no further.  The Guild again expressed its view that  the proposal was illegal, though its negotiators asked questions about how exactly the proposal would work, and requested a list of employees eligible under the proposal.  They  also suggested that instead of the News determining whether  individual employees qualified under the proposal, such determinations be made by the Department of Labor.  The News replied that it did not have a list of employees and was unable  to compile one because eligibility could only be determined at  the time of each employee's application.  In response to postimplementation information requests, however, it supplied the  Guild with a list of categories of employees who might be  eligible.  The union's proposal that the Labor Department  become involved in the application process was rejected as  merely retaliatory.  See id. at 63.


16
Following the June 14 meeting, the Guild on June 16 asked  for negotiations to be delayed until some time in early July,  after its national convention in Boston which would run from  June 17 through June 24, with the Guild negotiators returning on June 26.  The News's negotiator responded on  June 20 by writing that he saw no reason to delay negotiations, and also wrote:


17
I understood prior to the last meeting that you intended to bargain on pay and overtime.  However, you made no proposals on these key subjects and I have never received any indication that you intend to bargain over them.  Unless you can assure me that you intend to modify your position on those issues, we will have no choice but to implement our last offer to you.


18
Id. at 64.  No further meetings took place before the News's  unilateral implementation of its proposals on July 5.


19
On June 28 the News released to its employees a memo  providing details about the merit pay proposal, specifically  that those employees who received an evaluation of "outstanding" or "commendable" would qualify, and some 90% of  employees could expect to receive merit pay.  The memo also  accused the Guild of being unwilling to meet.  On June 29 the  Guild repeated its earlier request for a meeting, and stated a  willingness to discuss overtime exemption.  In response, at  eight o'clock in the evening of June 30, a Friday, the News  faxed the Guild an offer to negotiate the following Monday,  July 3, at ten in the morning.  The Guild's negotiators did not  see this offer until late Monday afternoon, and when the  News's negotiators met the Guild's earlier that day on an unrelated matter, the proposed meeting was not mentioned. See id. at 64-65.


20
Two days later, July 5, the News unilaterally implemented  its proposals.  In announcing implementation to employees  the News stated that Guild negotiators had failed to appear at  meetings and had refused to bargain.  See id. at 65.  At a  post-implementation bargaining session on July 10 the Guild  continued to ask questions about the proposals, making another request for a list of overtime-exemption eligible employees (a request repeated on August 4).  It also asked that the  overtime-exemption provision contain a clause specifying that  employees working on an overtime basis would not be discriminated against on assignments, proposed a flat increase in  salaries for all employees, and again raised the possibility of  having the Labor Department issue "advisory opinions" on  the eligibility of employees for salaried status.  Over this and  the following day, the News answered some but not all of the  Guild's questions about its proposals, and rejected all of the  Guild's proposals.


21
The Council and its constituent unions began to plan a  strike prior to the News's declaration of impasse.  For instance, DNA's decision not to engage in joint bargaining,  despite its tentative agreement to do so, was mentioned  throughout June as a causus belli.  Individual unions also  held meetings in which they obtained strike authorization  from their membership.  See id. at 75.  On July 6, following  the News's declaration of impasse, the Council met and  agreed to set a strike deadline of July 13.  On July 12 the  Council met once more and agreed to the following resolution:


22
Whereas the DNA/Detroit Newspapers (including the News and Free Press) has engaged in anti-union con-duct, negotiated in bad faith and reneged on its promiseto bargain jointly on economics, the undersigned Unions hereby resolve their members employed at the DNA/Detroit Newspapers each will strike and honor each other's strike in protest of the DNA/Detroit News papers[sic] (including the News and Free Press) anti-unionconduct and unfair labor practices.


23
Id. at 76.  Testimony credited by the ALJ established that  the unfair labor practices referred to in the resolution were  the modification of DTU's jurisdiction (discussed next), implementation of the merit pay proposal, and the decision by  DNA not to engage in joint bargaining.  See id.


24
The next day the unions began a strike which would last  until February 1997 when the unions made an unconditional  offer to return to work.  The employers, however, refused to  discharge replacement workers to make room for the returning strikers, treating the strike as an economic strike. Instead, returning strikers were placed onto a preferential  hiring list.  See Detroit II, 326 N.L.R.B. No. 65 at 2-3.


25
*  *  *  *


26
The unions' petition involves negotiations between DTU  and DNA.  Petitioner DTU's relationship with the newspapers and DNA is generally governed by collective bargaining  agreements.  In 1975, however, negotiations between the  individual newspapers, on the one hand, and DTU on the  other led to the parties entering into Memoranda of Agreement in addition to collective bargaining agreements;  when  DNA came into existence, it agreed to adopt the obligations  those memoranda placed upon the newspapers.  One Memorandum of Agreement guaranteed essentially lifetime employment to certain workers, and in exchange the unit was to be  governed by a Section 10(a), entitled "work arrangements."In relevant part, Section 10(a) states "This section will describe the work arrangements of the [DTU] employee involving the use of scanners and VDT terminals when such  equipment is performing composing room work within the  jurisdiction of the Union."  See Detroit I, 326 N.L.R.B. No.  64 at 47 (emphasis added).  The section then goes on to  describe under what circumstances only unit employees may  use such equipment, and when non-unit employees may do so. See id. at 47-48.


27
The collective bargaining agreement between DNA and  DTU for the 1992-1995 term, meanwhile, had sections titled  "Jurisdiction," "Equipment Jurisdiction," and "Computer Jurisdiction," explaining, inter alia, that "all composing room  work" was within the Union's jurisdiction.  During negotiations over a successor bargaining agreement DNA proposed  modifying these jurisdictional provisions by including in the  new agreement language specifying that this jurisdiction  would be non-exclusive:  "Employees of other departments of  [DNA] as well as employees of the Detroit News and Detroit  Free Press may perform such work as is necessary."  DTU,  claiming that the ongoing Memorandum of Agreement--not  the expiring collective bargaining agreement--defined its jurisdiction, considered DNA's proposal an attempt to modify an  existing agreement,and therefore only a permissive subject  of bargaining.  It refused to bargain, and on May 11 DNA  declared impasse and implemented the proposal.


28
*  *  *  *


29
The unions filed unfair labor practice charges with the  NLRB alleging that DNA and the newspapers had violated  Sections 8(a)(5) and (1) of the National Labor Relations Act  by breaching the two-stage bargaining agreement;  by implementing the merit wage proposal and the radio/tv proposal; by abrogating DTU's jurisdiction;  and by failing to provide a  list of employees who would be eligible for overtime exemption.


30
The ALJ agreed with the unions on all but the DTU issue.  The Board generally affirmed the ALJ's opinion;  however, on  the issue of the joint bargaining agreement it found that  DNA had never clearly and unequivocally agreed to joint,  two-stage bargaining, and therefore concluded it was not an  unfair labor practice for DNA to insist on bargaining with  individual unions. See generally Detroit I, 326 N.L.R.B. No.  64.  The Board went on to observe, sua sponte, that while  negotiating rules are only a permissive subject of bargaining  and the Unions had struck in part to force agreement on such  rules, "We do not suggest that the Union's insistence on  adherence to the two-stage bargaining procedure was unlawful here."  See id. at 5.  The Board adopted the ALJ's reasoning with respect to merit pay, concluding that the  News had bargained in bad faith, preventing a good-faith  impasse on this proposal.  It then reasoned that even if the  News had bargained in good faith, its merit pay proposal was  standardless, and therefore, under the Board's rule announced in McClatchy Newspapers Inc., 321 N.L.R.B. 1386  (1996), enforced, 131 F.3d 1026 (D.C. Cir. 1997) (McClatchy  II), it could not be implemented even at impasse because it  would be destructive of employees' collective bargaining  rights.


31
An ALJ, meanwhile, had found that the employers unlawfully refused to rehire returning unfair labor practice strikers, relying on the earlier ALJ opinion as evidence of unfair  labor practices.  On the same day the underlying unfair labor  practice findings were affirmed by the Board in Detroit I, it  also affirmed the second ALJ opinion and ordered the rehiring of returning strikers.  See generally Detroit II, 326  N.L.R.B. No. 65.

II.

32
The employers challenge the unfair labor practice findings  as well as the determination that the alleged unfair labor  practices caused the strike.  The thrust of their latter argument is that the unions struck not over the purported unfair  labor practices, but to enforce the joint bargaining agreement.  Indeed, they claim, the strike was unprotected because the unions unlawfully sought to force adherence to the  joint bargaining agreement, a permissive subject of bargaining.  Moreover, according to the employers, the Board's  determination that the employers committed unfair labor  practices is not supported by substantial evidence.  The  Board's examples of the News's bad faith were unsubstantiated or trivial, and the Board ignored the unions' refusal to  bargain over key issues. They distinguish this case from  McClatchy by emphasizing the details in the News's merit  pay proposal not provided in the McClatchy proposal.  DTU's  petition claims that the News committed an unfair labor practice by making a unilateral midterm change to the ongoing Memorandum of Agreement.


33
A. Lawfulness of the Strike The employers' primary argument, which was the focus of  the Board's reconsideration order, is that the strike was  unprotected because it (unlawfully) sought to force DNA's  adherence to the two-stage bargaining agreement, which was  only a permissive subject of bargaining.  As the Board explained in Detroit III,There are certain situations in which the Board has found that a strike or other economic action in support of a proposal on a nonmandatory bargaining subject is unlawful....  These situations have involved ... a strike in furtherance of the unlawful condition that further bargaining depends on acquiescence to a demand on a nonmandatory subject.


34
327 N.L.R.B. No. 146 at 95;  see also United Food & Commercial Workers Int'l Union v. NLRB, 880 F.2d 1422, 1428  (D.C. Cir. 1989)("[C]ategorizing a matter a mandatory subject  will ... authorize the union to use the economic weapons at  its disposal to back up its demands at the negotiating table.").Two-stage bargaining, contend the employers, was the "paramount" reason for the strike.  See Detroit III, 327 N.L.R.B.  No. 164 at 95 ("[A]nalysis of the legality of conduct vis-a-vis a  nonmandatory subject requires examination of the impact of  such conduct on negotiations for mandatory subjects.")


35
We think the Board permissibly ruled, however, that the  employers waived this argument by failing to raise it in a  timely fashion before the ALJ.  Though the employers' argument was presented in their exceptions from the ALJ's  decision and motion for reconsideration, the Board in Detroit  III determined it had been waived, as "[a] contention raised  for the first time in exceptions to the Board is ordinarily  untimely raised and, thus, deemed waived."  327 N.L.R.B.  No. 146 at 1 (quoting Yorkaire, Inc., 297 N.L.R.B. 401 (1989), enforced 922 F.2d 832 (3d Cir. 1990)).  The employers do not  generally challenge this procedural policy.


36
The employers do claim that the Board is, in effect, estopped from applying its policy because it decided sua sponte  the lawfulness issue in Detroit I, by saying "We do not  suggest that the Union's insistence on adherence to the two stage bargaining procedure was unlawful here."  326  N.L.R.B. No. 64 at 5.  That is an apparent mis characterization of the Board's statement.  The Board did not actually  decide the lawfulness issue in Detroit I.  Even if the Board  had analyzed the issue more extensively, that still would not  be sufficient to prevent the Board from applying its waiver  policy.  Cf. Local 900 Int'l Union of Elec., Radio and Mach.  Workers v. NLRB, 727 F.2d 1184, 1191 (D.C.Cir. 1984) (discussion of an issue by the NLRB did not necessarily prove  compliance with § 10(e) of the NLRA requiring that issues be  raised before the Board in order to obtain judicial review of  such).  Nor does the Board's resolution of the merits of the  employers' argument on reconsideration in Detroit III undermine its position;  the merits discussion was merely an alternative holding to its determination that the argument had  been waived.  Cf. Burkhart v. WMATA, 112 F.3d 1207, 1215  (D.C.Cir. 1997) (district court's discussion of an alternative  ground for its decision did not undercut its ruling that  appellant's claim was untimely raised).2


37
B. Merit Pay We begin our discussion of this subject with the Board's  determination that the News's implementation of its merit  pay proposal runs afoul of McClatchy because we think that  legal issue pervades the Board's analysis of the parties' merit  pay negotiations.  In McClatchy the Board confronted the  implementation of an employer's merit pay proposal which  would have set salaries strictly on the basis of "merit" as  determined by the employer;  no objective procedures or  standards at all were proposed--there was nothing but a "discretionary cloud."  See McClatchy II, 131 F.3d at 1032.Under such circumstances, we noted on review, the employer  had essentially "de-collectivized" bargaining and prevented  the union from knowing what it would be bargaining against  in the future;  we therefore held this justified a Board-created  exemption to the general rule that employers may implement  their last, best offer following impasse.  See id. at 1032-33.


38
Although we had previously in NLRB v. McClatchy Newspapers, Inc, 964 F.2d 1153 (D.C. Cir. 1992) (McClatchy I),  remanded for a fuller explanation of the contours of the  Board's McClatchy doctrine, in McClatchy II we recognized  the Board could legitimately proceed case-by-case to develop  the boundaries of the doctrine.  See 131 F.2d at 1035.  That  did not mean, however, that the Board could simply brandish  McClatchy, without any real explanation, to prevent an employer from ever implementing a merit pay proposal after  impasse.  After all, as we recognized in McClatchy I, the  Supreme Court has squarely held that merit pay is a mandatory subject of bargaining, see McClatchy I, 964 F.2d at 1162,  citing NLRB v. Katz, 369 U.S. 736, 745 (1962), and if the  Board is to treat it differently from other such subjects with  respect to post-impasse implementation it must carefully justify its course.


39
Instead, the Board treated this case as if it were on all  fours with McClatchy.  See Detroit I, 326 N.L.R.B. No. 64 at  7.  We think that was quite unreasonable (arbitrary and  capricious).  McClatchy presented an unusual situation where  an employer provided no details at all of its merit pay plan.Here, on the other hand, the News's proposal stated that  raises would average four percent in the first year of the  contract, and three percent in the second and third years. Merit pay determinations would be based on the annual  employee evaluation process (the evaluation forms for which  consumed over 100 pages in the joint appendix) and would be  effective on fixed dates.  Employees would also be permitted  to contest the size of their raises using grievance procedures. To be sure, the employer's proposal carried a good deal of  discretion.  It did not foreclose the possibility that an employee would get a merit pay increase without achieving the top performance rating.3  But any merit pay system inherently  carries much employer discretion which, of course, is why  unions resist them.  In sum, we reject the Board's blithe  extension of McClatchy to this case as unreasoned and unreasonable.4


40
Purportedly without regard to McClatchy, the Board found  that the News had bargained in bad faith regarding its merit  pay proposal (and its overtime proposal discussed infra), and  therefore it never reached a valid impasse justifying imposition of its overall proposal.  This is a difficult question on  review only because the Board's finding of bad faith negotiation is, like any question of fact (really a mixed question),  entitled to a good deal of deference.  See NLRB v. Cau thorne, 691 F.2d 1023, 1026 n.5 (D.C. Cir. 1982).  We conclude, nevertheless, that the Board's finding cannot stand  because it is infected with the legal error we have just  discussed, and it is otherwise not supported by substantial  evidence on the record as a whole.


41
The Guild was initially presented with the News's final  merit pay proposal on April 27.  The extant bargaining  agreements expired on April 30, yet negotiations continued  for an additional two months.  The Guild made no counterproposals at the negotiation session on June 14, nor did it send anything to the News in the three week interim between  this meeting and the July 5 implementation,5 although it had been told that June 30 was the News's bargaining dead line. With the exception of a proposal for an across-the-board pay  increase made on May 3 the Guild does not appear to have  done anything at these negotiation sessions but ask questions. The truth of the matter, which the record clearly reveals, is  that the Guild's unit was unalterably opposed to the merit pay  proposal from the outset and continuing up to the employer's  implementation--not to the details but to the very concept. There was no evidence that the Guild was prepared to engage  in real negotiations on the employer's proposals.


42
The Board found that the News had "repeatedly obfuscated  and withheld details about its merit pay proposal, which  details were relevant and necessary to the Guild's understanding of the proposal and to the formulation of a bargaining response."  Detroit I, 326 N.L.R.B. No. 64 at 7.  And the  ALJ whose recommended findings the Board accepted determined that the Guild could not gain an understanding of the  merit pay proposal's "cost, timing, criteria and procedures,"  and therefore could not "bargain intelligently" about the  proposal.  See id. at 71-72.  But the essence of discretion-the News at one point characterized its merit pay determinations as "not rote," see id. at 66--implies that the employer  will not be pinned down ex ante as to precisely how its  discretion will be exercised.  Management's decision to propose a discretionary merit pay system--and to insist on  retaining legitimate bounds of discretion--cannot (except for  the limited McClatchy exception) be treated differently than  other mandatory subjects of bargaining;  it cannot be "vetoed" by the Board.  See NLRB v. Insurance Agents' Int'l  Union, 361 U.S. 477, 487 (1960).  The union's questions as to  these criteria and procedures were obviously designed to  narrow the zone of discretion the employer wished to preserve.  That answers satisfactory to the union or the Board  were not forthcoming is simply another way to say that the  proposal carried insufficient details to pass the McClatchy  test, and we have already rejected the Board's reasoning in  that respect.


43
The Board fixed upon the News's failure to make clear  early on that salary increases, under the merit plan, would be  based on actual, not nominal, contract minimum salaries.


44
This seems to us to be a wholly insignificant bit of evidence. Once the News had sent its final merit pay proposal to the  Guild its negotiator offered to meet with his Guild counterpart to explain it.  The Guild negotiator responded, however,  that he already understood it.  Similarly, when the negotiators met a week later no clarification was sought on this  point.  The problem, according to the Guild, was that the  News did not "understand" the employees' dislike of the very  concept.  The Guild was informed that actual salaries would  be used at the June 14 meeting, a full three weeks before  impasse was declared.  We cannot see how this sequence of  events hints at the News's bad faith, nor how the Guild's not  knowing this particular detail until three weeks before impasse hindered its ability to negotiate.


45
The Board also relied on the News's failure to provide the  Guild with other crucial information and provision of such  information directly to unit employees.  It found the News  "refused to provide the Guild with information as to how  much money it proposed putting in the merit pay pool."  See  Detroit I, 326 N.L.R.B. No. 64 at 7.  This is simply wrong; the News responded to the Guild's negotiator's June 14  inquiry by telling him to apply the 4% average raise to  payroll information in the Guild's possession.  The Board also  thought a series of memoranda given unit employees immediately before and after implementation, which stated that  merit increases would be given to those receiving an evaluation of "outstanding" or "commendable," and that 80 to 90%  of employees would or had received merit pay, was evidence  of bad faith, because such information had not previously  been furnished to the Guild.  But the News's proposal stated  that merit pay would be based on the evaluations, and the  evaluation forms state "A[n employee] whose overall performance rating is outstanding or commendable is eligible for a  merit increase."  The Guild had copies of these forms, and  knowledge of how unit employees had been rated.6


46
The Board also regarded the News's proposed scheduling  of bargaining sessions on dates in June when it purportedly  knew the Guild to be unavailable because of a convention as  showing bad faith.  We think that inference is unsupportable. The Guild on June 16 requested a delay in negotiations  because of unstated "prior commitments."  The News's negotiator responded "I cannot imagine what 'prior commitments'  you have that are more important than these negotiations,"  and requested a meeting "for the next few days," which would  be during the convention.  See Detroit I, 326 N.L.R.B. No. 64  at 64.  The ALJ found that the News must have known that  the prior commitment was the convention because postings on  a bulletin board at the News had announced it, and because a  News memo sent the following week to employees criticized  Guild negotiators for attending the convention instead of  negotiating.  See id.  What the News knew a week later is  not powerful evidence of what it knew a week earlier--it may  have discovered, in response to its request for a meeting, that  the Guild's negotiators were all out of town.7  Even if the  News's negotiator had known that which the union negotiators were apparently unwilling to say--the latter wished to  attend the convention--the worst interpretation that could be  placed on the employer's gambit is that it was seeking to  pressure the union negotiators to either admit the reasons for  wanting a delay or to offer an early negotiating session.


47
As we noted after the convention the News, in response to  a subsequent Guild request for a meeting, faxed a proposal on  a Friday night for a meeting the following Monday morning-one day before a national holiday and two days before the declaration of impasse and unilateral implementation.  The  ALJ's opinion emphasizes this event as infecting the entire  negotiating process:  the News, according to the ALJ, essentially prevented the Guild from meeting to engage in negotiations which might have broken the deadlock that seemingly  developed at the June 14 meeting, after which the Guild's  negotiators signaled their desire to engage in further negotiations.  Again, we think this inference is unsupportable.  It is  obvious that lawyers on both sides were maneuvering and the  News was delivering the Guild a last clear chance.  But  convention or not, holiday or not, if the Guild really had  wished to bargain on merit pay they had plenty of time to  indicate that to the News.  Asking questions was not enough.Cf. Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 233  (D.C. Cir. 1996) (concluding impasse was valid where "not a  single one of the Union's statements ... actually committed  the Union to a new position or contained any specific proposals").


48
The Board nevertheless asserts that the parties had not  reached a good-faith impasse for another reason.  The ALJ  found that the unremedied unfair labor practice associated  with the radio/tv proposal prevented the News from declaring  impasse because it "necessarily tended to adversely affect the  bargaining atmosphere and relationship between the parties,"  see Detroit I, 326 N.L.R.B. No. 64 at 72 (emphasis added),  and the Board adopted this conclusion.  See id. at 7 n. 17.Before us the Board apparently argues that only negotiations  over the radio/tv proposal alone itself were affected, but that  deadlock over this proposal was sufficient to prevent a good faith impasse.


49
While it is sometimes true that unremedied unfair labor  practices have this effect, see, e.g., Alwin Mfg. Co. v. NLRB,  192 F.3d 133 (D.C. Cir. 1999), that is not necessarily the case. In Cauthorne, "we reject[ed] any presumption that an employer's unfair labor practice automatically precludes the  possibility of meaningful negotiations and prevents the parties from reaching a good faith impasse."  691 F.2d at 1025;see also Alwin Mfg., 192 F.3d at 137-38.  The ALJ and the  Board, by failing to rely on any evidence demonstrating how the unfair labor practice affected negotiations in this case,  seem to have applied such a presumption.  That is especially  problematic here because the ALJ's account of negotiations  suggests the radio/tv proposal was relatively unimportant  compared to the merit pay and overtime exemption proposals; implementation of this proposal was not even mentioned by  the ALJ in his discussion of strike causation.  See Detroit I,  326 N.L.R.B. No. 64 at 77;  see also Teamsters Local Union  No. 639 v. NLRB, 924 F.2d 1078, 1083 (D.C. Cir. 1991) (to  determine whether there is a valid impasse the Board "considers a number of factors, including ... the importance of  the issue or issues as to which there is disagreement").  We  therefore conclude there is not substantial evidence to support the Board's determination that the unremedied unfair  labor practice prevented the News from declaring impasse.

C. Overtime Exemption

50
The Board's decision that the News committed an unfair  labor practice by failing to respond to the Guild's overtime  exemption information request rested on pure conjecture, and  is therefore not supported by any--let alone substantial-evidence.  Throughout negotiations the Guild repeatedly requested a list of employees eligible to take salaried status  under the overtime exemption proposal.  The News repeatedly responded that it could not compile such a list because it  would not be able to determine eligibility until an employee  actually applied.  Instead, in response to post-implementation  information requests it provided the Guild with a list of  categories of employees who might be eligible.


51
Although it was never shown that a list of eligible employees existed--the General Counsel failed to subpoena the  purported list, see Detroit I, 326 N.L.R.B. No. 64 at 28-29  (Members Brame and Hurtgen, dissenting in part)--the ALJ  opined that "It is difficult to believe that the News entered  negotiations without having formulated its own expectation of  the scope and impact of its proposal...."  See id. at 73.  The  Board agreed, noting that it shared


52
the judge's doubts that [the News] would have made the proposal, and bargained so ardently for it, without some informed estimation of its effects.  Even if the News did not possess a list of those employees whom it believed would qualify for exemption, the Guild was entitled to whatever information Respondent News did rely on .


53
Id. at 8.


54
Such speculation is not evidence.  See, e.g., Arizona Pub.  Serv. Co. v. United States, 742 F.2d 644, 649 n.2 (D.C. Cir.  1984) ("[M]ere conjecture and abstract theorizing offered in a  vacuum are inadequate to satisfy us that the agency has  engaged in reasoned decision making.").8

D. The Unions' Petition

55
We agree with the NLRB that DNA did not commit an  unfair labor practice by unilaterally implementing a change in  its collective bargaining agreement with petitioner DTU. The Memorandum of Agreement only describes working arrangements when equipment is "performing composing room  work within the jurisdiction of the Union."  That jurisdiction  was defined not in the Memorandum of Agreement, but in the  collective bargaining agreement.  Since the collective bargaining agreement had expired DNA could propose a modification to DTU's jurisdiction, and  since DTU refused to  bargain over the proposal DNA could declare impasse and  unilaterally implement it.  This is exactly what happened, and  it does not constitute an unfair labor practice.

III.

56
The Board's discussion of strike causation was sparse, but  the ALJ's opinion suggests the purported unfair labor practices which motivated the strike were DNA's decision not to  engage in joint bargaining, its unilateral change of DTU's  jurisdiction, and the News's unilateral implementation of merit pay and its failure to comply with information requests. See Detroit I, 326 N.L.R.B. No. 64 at 77;  see also Detroit III,  327 N.L.R.B. No. 146 at 1. Having determined that the  Board's conclusion that the News committed unfair labor  practices is legally erroneous and unsupported by substantial  evidence, we, of course, reverse its subsequent order holding  the strikers to be unfair labor practice strikers.  See Alwin,  192 F.3d at 141 (A strike is an unfair labor practice strike "if  the employer's violations of the labor laws are a contributing  cause of the strike.") (internal quotation marks and citation  omitted).


57
*  *  *  *


58
The employers' petition for review is granted;  the union's  petition for review is denied.


59
So ordered.



Notes:


1
 The Guild also represents DNA's janitorial employees and the  Free Press's editorial employees.


2
 The employer's counsel at oral argument came perilously close  to insisting that it would have to prevail on this issue to win the  case.


3
 The intervenor unions stressed at oral argument post-impasse  statements by the News that various unspecified factors, such as  the need to retain particular employees, could enter into merit pay  determinations.  See, e.g., Detroit I, 326 NLRB No. 64 at 68.  This  possibility was not foreclosed by the News's proposal--it was part  of its retained discretion.


4
 As in McClatchy the Board throws in the phrase drawn from  Great Dane that implementing the merit pay proposal after impasse  was "inherently destructive" of collective bargaining.  See NLRB v.  Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967).  If that is meant  to provide an alternative rationale for the holding it will not do.


5
 It should be noted that the Guild's convention occupied only one  week of this period.


6
 The Board regarded the News's statements to employees claiming that the Guild had refused to negotiate as evidence of bad faith. See Detroit I, 326 N.L.R.B. No. 64 at 7.  Neither its order nor the  ALJ's recommendation explain why and the employer complains  that the Board was improperly restricting its free speech.  Before  us the Board apparently abandoned that line of analysis and instead  claimed that the employers were communicating to the employees  that which it refused to tell the union.  We simply do not understand this attempted transformation and therefore decline to pay  any attention to this point.


7
 Nor was there any evidence that the News's negotiator had  actually seen the bulletin board posting.


8
 The News argues that even had it compiled a list of eligible  employees, it was under no obligation to divulge it because the  Guild persisted in labeling the overtime exemption proposal as  illegal and refused to bargain over it.  Because we do not think the  Board had substantial evidence to support its finding that the News  had a list of eligible employees, we need not reach this alternate  argument.


