Ruling Stands: No Pay Play During Impasse, p.12

By: Kelvin Childs A FEDERAL APPEALS court ruling against McClatchy Newspapers for imposing a merit pay plan at two of its dailies while at impasse with unions, stood when the U.S. Supreme Court declined to take the case.
"We are very pleased that the Supreme Court has reaffirmed the role of unions as workers' bargaining representatives over pay and other issues, not only in the newspaper industry, but in broadcasting and other industries as well, where some employers are attempting to undercut collective bargaining," said Newspaper Guild president Linda Foley.
Karole Morgan Prager, vice president and general counsel for McClatchy, said, "We're obviously disappointed that they did not hear the case," because case law is unclear on the issue. "As a practical matter," she added, "since we have contracts with the unions, this will have no impact on our operations."
In 1990, the National Labor Relations Board found that McClatchy had committed an unfair labor practice against workers at the Sacramento Bee and Modesto Bee. The collective bargaining agreement in Sacramento with the Northern California Newspaper Guild Local 52 expired in 1986, and management and the union could not agree on a new contract. The union wished to eliminate merit pay, which in the old contract applied to workers at the top of their pay grade. McClatchy wanted to make the entire pay system merit-based. Under the old contract, McClatchy had sole discretion over the merit raises, and the union could only make non-binding comments after being notified and could, if workers asked, aid in appeals.
An impasse was declared, and McClatchy implemented its final offer and began issuing merit raises without consulting the union. The union, claiming McClatchy had a duty to bargain over wages, filed NLRB charges accusing the paper of an unfair labor practice.
As the NLRB considered that claim, impasse was declared at the Modesto Bee, where merit raises were tied to annual performance reviews. McClatchy implemented its final offer and gave merit raises, prompting the union to file another NLRB charge, and to also accusing McClatchy of intimidating Modesto Bee workers because its final offer included a no-strike clause. The NLRB ruled against the Sacramento Bee on the grounds that management essentially waived the union's right to be consulted on pay. Impasse, the NLRB ruled, did not mean consent.
The labor board also ruled for the union in Modesto, a decision upheld by the U.S. D.C. Circuit Court of Appeals, which rejected the union's intimidation claim.
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