Cablevision Industries

National Labor Relations Board - Board Decisions

Feb 26, 1987

283 N.L.R.B. 22 (N.L.R.B. 1987)

22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cablevision Industries , Finger Lakes Division and
Communication Workers of America. Cases 3-
CA-12830 and 3-CA-13080
26 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 October 1986 Administrative Law Judge
Robert T. Snyder issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party filed
answering briefs.
The National Labor Relations Board has delegat-
ed its authority in - this proceeding to a - three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and- has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Cablevision
Industries, Finger Lakes Division, Geneva, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951)
We'have carefully examined the record and find no basis for reversing
the findings. -
Michael Cooperman , Esq., for the General Counsel.
Sheldon Rosenberg, Esq. (Rosenberg & Ufberg Esqs.), of
Scranton, Pennsylvania , for the Respondent.
Stuart M. Pohl, Esq. (Lipsitz, Green, Fahringer, Roll,
Schuller & James, Esqs. ), of Buffalo, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This
case was heard by me on 14 and 15 May 1986 at
Geneva, New York. The consolidated amended com-
plaint, which issued on 2 July 1986, alleges that Cablevi-
sion Industries, Finger Lakes Division (Respondent, the
Company, or Cablevision) failed and refused to execute a
written contract embodying an agreement arrived at
with the Communication Workers of America (the
Union or CWA) as certified bargaining agent for an ap-
propriate unit of its employees, and thereafter unilateral-
ly granted pay increases not in conformity with the
agreement and new clothing and shoe benefits, in viola-
tion of Section 8(a)(5), and (1) of the Act. The consoli-
dated amended complaint also alleges that Respondent
threatened employees with the loss of profit-sharing plan
benefits because they chose to be represented by the
Union for purposes of collective bargaining, through spe-
cific language in its profit-sharing plan coerced employ-
ees in their activities on behalf of the Union by condi-
tioning participation in the plan or being unrepresented
by any union, and told union employees they would be
granted wage increases less than they would have re-
ceived if they had not selected the Union to represent
them, in violation of Section 8(a)(1) of the Act.
In an answer filed 10 March 1986, Respondent denied
the conclusionary allegations of the consolidated amend-
ed complaint. The parties were each represented by
counsel at the hearing and were provided full opportuni-
ty to introduce relevant evidence, to examine and cross-
examine witnesses, to make opening and closing state-
ments, and to file briefs with me. The parties have filed
timely briefs which have been carefully considered.
On my observation of the witnesses, the entire record
in this proceeding, and the briefs filed herein, I make the
following
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
At all material times, Respondent, a New York State
corporation with an office and place of business in
Geneva, New York (Respondent's facility), has been en-
gaged in the business of providing cable television serv-
ices to the Finger Lakes Region of New York. Annually,
Respondent, in the course and conduct of its business op-
erations, receives gross revenues in excess of $100,000
and purchases services valued in excess of $50,000 which
are furnished to Respondent at its Geneva, New York fa-
cility directly from points outside the State of New
York. Respondent admits, and I find, that at all times
material, it has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that at all times ma-
terial the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Refusal to Execute a Written
Contract Embodying an Alleged Collective-Bargaining
Agreement and its Subsequent Unilateral Grants of
Benefits
A Stipulation for Certification Upon Consent Election
having been executed by the parties on 30 July 1984, a
representation election was conducted among Respond-
ent's employees on 5 September 1984 in a unit consisting
of all regular full-time installers, technicians, converter
control employees, construction employees, and dis-
patchers. The Union won the election by a vote of 14 to
283 NLRB No. 3
CABLEVISION INDUSTRIES 23
13 and, on 13 September 1984, was certified by the Re-
gional Director as exclusive collective-bargaining repre-
sentative of the employees in the unit described.
Collective-bargaining negotiations commenced in Oc-
tober 1984, and continued at the rate of approximately
one meeting a month until June 1985. The union-negoti-
ating team included CWA Representatives Tim Dailor
and Ron Woods and employees Jeff Stowell and Tom
Deane, with Dailor at first and then Woods, who missed
some of the earlier meetings , serving as chief spokesman.
The Cablevision negotiating team consisted of Attorney
Sheldon Rosenberg and Director of Personnel Brain
Connors, with Rosenberg acting as chief spokesman. In
response to inquiries about his authority posed by
Woods, Rosenberg explained that he was the chief nego-
tiator and the person with the authority to reach tenta-
tive agreement.
According to the uncontradicted testimony of Woods,
from time- to time during the negotiations, Rosenberg
made it clear that the only person he had to answer to at
Cablevision was Alan Gerry, its president. On occasion,
when the Union made specific proposals, Rosenberg re-
sponded that he would discuss the demand with Gerry,
and when Rosenberg rejected union demands he noted
that he had a discussion with Gerry on the matter.
Gerry was the sole incorporator of the Respondent
corporation in 1974, and at all times material to this pro-
ceeding has been the sole shareholder, director, and chief
executive officer of the Respondent primarily responsible
for all the operations of the Company. Until removed by
Gerry; by resolution he adopted on 13 March 1'986 as
sole shareholder, the other two directors of the Respond-
ent corporation were Bette Nichols, his personal secre-
tary and the corporate secretary, and John O'Neill, the
Respondent's treasurer, and chief, financial officer. On 28
February 1985 Gerry arranged by resolution for the cre-
ation of the office of chairman and chief executive offi-
cer, which would excercise all powers formally exercised
by the president. 'Gerry, previously president, was not
elected to the new post, and Roger Turner was elected
president. Another individual, Rodney Cornelius, was
elected executive vice president.
During the course of negotiations, various proposals
and counterproposals were exchanged. A union proposal
submitted on 26 February 1985 included a provision for
retention by employees of all existing benefits by provid-
ing for continuation of all -rights and privileges now ex-
isting and not specifically altered, amended, or deleted
by this agreement. This provision was not accepted by
Respondent. The Company did propose to continue the
present health, hospital, dental, and life insurance cover-
age or their equivalent.
According to Woods, the Cablevision negotiators' were
insisting on inclusion of their language in any contract to
which they would agree. Rosenberg had also stated he
was going to put all the Company's proposals together in
one package. By the meeting held in April 1985, when
Rosenberg advised that he would not be available during
May, at Woods' insistence; Rosenberg agreed to submit a
package to the Union through the mail.
A ninth negotiation session was, held on 2 May 1985,
attended by the persons previously described, . as well as
Federal Mediator Robert Bowling. According to Con-
nors' typewritten notes of this session, the Union,
through Bowling, asked for a complete contract by the
following day. When Rosenberg - advised this was not
possible, Bowling advised that the Union was prepared
to accept from the Respondent a final offer. A verbatim
transcript of the notes at this point follows:
Mr. Rosenberg advised the mediator that we would,
in fact do this, and we therefore cancelled the meet-
ing scheduled for 5/3/85. Mr. Rosenberg stated he
would return to his. office and prepare this docu-
ment. He also advised the mediator that he would
have to meet with the representatives from Cablevision
to see if this particular package was satisfactory to
them. A tentative meeting is set for Monday, 5/6/85
at 1:30 p.m. Assuming that the drafted copy is avail-
able at this time and is approved by the Cablevision
representatives, the item will be mailed to the union
and federal mediator on Tuesday. Subsequent to their
receiving this document, another date will then be'
set for a negotiation session . Mr. Rosenberg will be
out of the country during the next month, however,
his partner, Mr. Ufsberg, [sic] will be available to
come to this session . The mediator was advised that if
this is, to be our final offer, we will not change any
items in the document which is to be prepared. [Em-
phasis added.]
Rosenberg had the document prepared and submitted
it to the Union on 7 May 1985 . It is entitled "Final
Offer." In a letter dated 7 May 1985, which accompanied
the submission, Rosenberg, after stating that he was en-
closing the Company's final offer in accordance with the
Federal mediator's statement to him on 2 May that the
Union wanted a complete and final offer to take to the
employees, goes on to note that the offer is for a 3-year,
contract and contains a large increase in the first year.
That increase was described by Woods as being at least
two times the industry average and by Connors as 3-1/2
times larger than general wage increases in the, country
at that time. The proposal's 'average increase was be-
tween 16 and 17 percent in the first year and 1-1/2 per-
cent in each of the next 2 years. Connors described this
offer as being high to buy the working, clauses of the
Company's proposal. The management-rights clause in
particular, among others, appears to have been very
broad and comprehensive. In another clause, the Compa-
ny retained the right to contract out all or part of the
work performed by bargaining . unit employees. Neither
did the final offer contain a union-security or dues-
checkoff clause. Paragraph 29 entitled "`Duration" pro-
vides, in part: "This Agreement shall go into full force
and effect when it is ratified by the Union and 'the Com-
pany"
The next bargaining session was held on 20 June 1985.
Woods, Dailor, and Stowell attended for the Union,
Rosenberg and Connors attended for the Company, and
Mediator Bowling was also present . The parties were in
separate rooms. According to Woods' uncontradicted
testimony, through the mediator Woods, inquired of the
company team if there was any room for continued ne-
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gotiations or if they felt as though this was it . Bowling
and Rosenberg came into the Union's room. Rosenberg
said this was a final offer, and as far as he was con-
cerned, as the chief spokesman for the Company, negoti-
ations were concluded. Woods then signed the final offer
document and said, "[It] looks like we have agreed and
that we are prepared to put that into effect." Rosenberg
asked what he meant by that. Woods replied, "[W]ell as
far as we were concerned, you're not going to go any
further, we're willing to accept this agreement." Rosen-
berg then asked if in fact the membership was going to
have this ratified. After first disputing Rosenberg's right
to that information, the necessity of membership approv-
al and its relevance, Woods did inform Rosenberg that it
was the Union's policy to take the agreement to the
membership for ratification. Rosenberg said fine, got up,
and started out of the room. Woods asked "[W]here are
you going?" Rosenberg said, "[C]all me when you get it
ratified." Woods said, "[L]ook you've given the Union a
final offer. I signed that final offer. I'm not leaving here
without your signature on here as a final offer or a joint
signed stipulation as to what this agreement represents."
Rosenberg then agreed to sign the document. He
wrote "Tentative agreement subject to ratification by
Union membership & Co B of D" and signed his name
below. Again Rosenberg got up to leave. Woods said
"[W]ait a minute , what does this mean?" Rosenberg said,
"[I]t means exactly what it says." Woods then said,
"[W]ell, as far as I'm concerned, this is news. You've
told us all through these negotiations that you were em-
powered to sign and reach tentative agreement for the
Company and now you're saying it has to be ratified by
the Board of Directors?" Rosenberg said, "[T]hat is
Alan." Woods asked, "Alan meaning Alan Gerry, Presi-
dent of the Company?" Rosenberg said,"[Y]es." Woods
asked, "[W]ell, but why? You told me that prior to put-
ting this package together that it was your intent to meet
with - Mr. Gerry before you gave it to us. It's no differ-
ent. Why are you taking it back to Mr. Gerry." Rosen-
berg said , "[D]on't worry., That's a mere formality. I'm
going to recommend it and as far as I am concerned,
that's all that's necessary." And with that, the meeting
concluded.
Woods then explained his comment about Rosenberg
having previously mentioned taking the package to Alan
Gerry. Prior to Rosenberg sending him the final offer,
when Rosenberg said he was going to put it together, he
said he would then show it to Alan Gerry first before he
sent it to the Union to get Gerry's okay on it as a collec-
tive document. Rosenberg said that most of the items he
had discussed with President Gerry in the past, but
Gerry wanted to see them as a collective document. '
According to Woods, the meeting of 20 June 1985 was
the first time that either Rosenberg or Connors had ever
mentioned the board of directors. Although Woods was
aware of paragraph 29 of the final offer, which referred,
inter alia , to ratification by the Company as a condition
precedent to its going into full force and effect, it was
his understanding based on Rosenberg's statements
during negotiations that the reference was to Gerry's ap-
proval, and that such approval or ratification was al-
ready completed prior to submission of the final offer to
the Union.
Rosenberg did not testify at the hearing. Woods im-
pressed me as a thorough and thoughtful, person who
made every effort to be as careful and accurate as he
could be in the presentation of his narrative and in his
responses on cross-examination. I credit his attribution of
comments to Rosenberg on 20 June and earlier meetings
that Rosenberg had or would discuss the Company's pro-
posals, in particular the Company's final offer, with Alan
Gerry. To a large extent, Connors' notes- of the 2 May
negotiation session corroborate that Rosenberg planned
to obtain preliminary approval of that offer from the re-
sponsible company representatives. I infer that the key
representative ' whose approval was necessary was Gerry
and that, in conformity with Woods' testimony, Rosen-
berg did clear the proposal with Gerry.
A few days after the 20 June meeting the employees in
the bargaining- unit met and voted to reject the agree-
ment which Woods and Rosenberg had signed. Woods
telephoned Connors to inform him of the rejection. Con-
nors stated he was very disappointed, he wanted to get
the negotiations over with, and he asked what could be
done specifically to get the negotiations completed.
Woods told him about the two items which had led to
the rejection. One was the Company's proposal on sub-
contracting of their work and the second was the -ab-
sence of a payroll deduction of dues for those employees
who chose to be members of the Union. Connors asked
what was the next move. Woods said to get back to the
bargaining table. Connors said, "[L]et's do that as quick-
ly as we can, let's get a meeting and get this contract
completed."
Mediator Bowling set up another meeting for 27 June.
At this meeting, attended by the same parties as on 20
June, Woods and the other union people were in a sepa-
rate room. Woods asked the mediator to take the two
items he had previously discussed with Connors to the
management team. Rosenberg and Connors then came
back and Rosenberg said, "I've got the message from the
Mediator and the answer is no. A final offer is a final
offer, because once I give you my final offer. I don't
change my final offer."' Woods replied that he under-
stood that but "there's been a rejection and what we're
proposing is something that we feel will get the contract
ratified and accepted." Rosenberg said , "I repeat, I never
change my final offer; that's not the way I negotiate."
Woods said, "[N]ever is a long time," and Rosenberg
said, "[O]h well, if there's been a prolonged strike, then I
may, but under these circumstances I never change my
final offer." Woods then said, "[L]ook, this is a first con-
tract, there's been this-rejection, what we're trying to do
is get it completed. From the Union's standpoint, this
language, this contract is totally one-sided anyway, it's
all of your proposals, the record reflects this with very
minor exceptions, and, as far as this Union is concerned,
you got the language you wanted and -we should put this
into effect with these minor changes. And I'm very seri-
ously- requesting that, you do that." Connors interrupted
and asked for a company caucus and the two left.
CABLEVISION INDUSTRIES 25
They shortly returned' and Rosenberg said, = `-`[O]kay,
we'll take your two items back to Alan to see what he
says and then we will get back to you." Woods said,
"[W]ell, look, why don't you call Alan on the phone and
talk to him about it so that we can get this wrapped up."
Rosenberg said , "Alan is in Florida , and he's out of tele-
phone contact." However, he would be back by the fol-
lowing Monday, 1 July, and they would meet with him
and Rosenberg agreed to give a call as ,to what the Com-
pany's response was. Woods said that the Union had a
meeting, scheduled for 2 July when they intended to put
the results of this meeting up to another ratification vote
and they would really appreciate his answer before then.
Rosenberg said, "[D]on't worry, I'll get back to you
Monday."
Woods did not hear from Rosenberg on either
Monday, 1 July, or Tuesday, 2 July. He was in Buffalo
on negotiations and was unsuccessful in reaching Rosen-
berg and Connors. Woods did learn on 2 July from
President Robert Flavin of Local 1170, CWA, who had
received a phone call from Connors just prior to the rati-
fication meeting, that the Company had rejected the two
items and was also unilaterally going to put the wage
portion of its proposal into effect and would only be
available to continue negotiations on other items in their
final offer.
At the union meeting on 2 July, the Union ratified the
Company's final offer. The next day Woods called Con-
nors to tell him that the contract was ratified. Woods
contacted Connors because in his experience Connors
was easier to reach then Rosenberg, who was away from
his office a lot. Connors responded, "[G]ood, that means
its over, it's completed, we can put this to bed." Connors
asked, "[W]hat was the next step." Woods said, "[J]ust
send me two signed copies of the complete document, by
Alan, Sheldon, or yourself, whoever is going to sign for
the Company. I will sign both and return one to you."
Connors asked Woods to call Sheldon (Rosenberg) for
those kind of details. Woods suggested they both call
Rosenberg and Connors agreed. When Woods was un-
successful in reaching Rosenberg by telephone he sent a
letter. In the letter, dated 8 July 1985 and addressed to
Connors, Woods confirmed their telephone conversation
of 3 July and the fact of membership ratification of the
tentative agreement on 2 July, advising that the effective
date should be I July, and requesting that two signed
copies of the agreement, to be executed by Respondent,
be returned to Woods.
Woods had no' further conversations with either Con-
nors or Rosenberg: About 14 July 1985, Woods received
a letter dated 12 July with an attachment from Rosen-
berg informing him that Rosenberg had -received a com-
munication from Cablevision's board of directors advis-
ing him that they had rejected and would not'ratify the
Company's' final offer made on' 7 May ' 1985 until the fol-
lowing changes (set forth in the attachment) to the final
offer were made and agreed upon and ratified by the
union membership and company board of directors. In
the letter Rosenberg asked Woods to let him know if and
when the membership ratifies the amended final offer.
He also advised of the Company's availability for contin-
ued negotiations and to explain the board of directors'
resolution. Attached „ to the letter were 2-1/3 pages of
changes to be made to the final offer. Among them were
changes removing the clause permitting contracting out
of all bargaining unit work from the grievance and arbi-
tration procedure; restricting job classification seniority
for purposes, among others, of layoff and recall to only
one of the three locations encompassed by the certified
bargaining unit, i.e., wherever the employee works as a
regular full-time employee; adding a right to make all
transfers of employees to other jobs and locations, now
including permanent transfers, irrespective of seniority;
severely restricting the jurisdiction of the arbitrator to
review company disciplinary actions; and adding a
fourth year to the agreement during which wages would
increase only minimally.
No further meetings were held and, ultimately, the
Union filed its initial unfair labor charge in Case 3-CA-
12830 on 6 August 1985 alleging a refusal to bargain in
good faith by the foregoing conduct.
Respondent's sole witness was Personnel Director
Connors. Attorney Rosenberg did not testify. Neither
did Alan Gerry. Connors, initially called as a witness by
the General Counsel, acknowledged that, on occasion
during the course of negotiations, he reported back to
Alan Gerry what was going on at negotiations. Connors,
also noted that at the beginning of negotiations a meeting
was held, attended by Ed Whalen, at the time Cablevi-
sion vice president and the company official to whom he
reported,1 Gerry, Rosenberg, and himself, to review the,
Company's position . Asked twice whether the Compa-
ny's proposals were formulated and discussed at this
meeting or drafted based on the outcome of the meeting,
Connors was evasive, first responding that "there was a
meeting to discuss how we would proceed" (Tr. 178)
and then responding that "Mr. Rosenberg subsequently
drafted some proposals." (Tr. 179.)
It was Connors' testimony that Gerry was informed as
to the status of negotiations not only by himself, but he
assumed Gerry was, kept apprised by his superiors, Fred
Schulte and Roger Turner, president since 28 February
1985, including about the wage package in the Compa-
ny's 7 May final offer, because "that's what they normal-
ly do." (Tr. 220.) But also according to Connors, Turner
probably was aware of the contents of the Company's
final offer but "not necessarily" Gerry. Connors also
agreed, after reviewing his notes of the negotiation meet-
ing of 27 June 1985, that he met with Gerry on 30 June
to discuss, inter alia, the state of contract negotiations.
During his telephone conversation with Ron Woods
on 3 July, when Woods told him the Company's final
offer had been ratified, Connors made no reference to
that proposal having been withdrawn. Connors also
agreed that the Company's wage package, which was
unilaterally put into effect on 2 July, had to be approved
by Gerry before it was implemented.
On his examination by Respondent's counsel, Connors
testified that during April, May, June, and July 1985,
Gerry was involved in negotiations for the purchase by
' At the time of the hearing, Connors reported to Fred Schulte, direc-
tor of operations, Whalen having left the Company in the interim.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent of cable systems located in Florida, Mary-
land, and Michigan, and more recently systems in. Penn-
sylvania and Tennessee. Those involved in the negotia-
tions for the Company have been Gerry and Rodney
Cornelius, executive vice president.
Although Connors at first claimed on redirect exami-
nation by the General Counsel that at the very first ne-
gotiation session, in October 1984 when the parties made
their, ground rules for negotiations, the Company men-
tioned that any agreement reached was subject to ratifi-
cation by a board of directors (Tr. 257), later on re-
cross-examination by Respondent's counsel, Connors, in
contradiction of his earlier claim, said that the under-
standing reached at the first meeting , was that "anything
we decided between us was tentative pending ratification
by the Company and by the employees." (Tr. 267.) This
was similar to the language which was later incorporated
as article 29 into the Company's final offer.
Re'spondent's minutes related to company rejection of
its own proposal following union 'ratification disclose the
following: At a special meeting of the board of directors
held at the Company's headquarters in Liberty, New
York, on 8 July 1985 at 10 a.m. with Gerry, O'Neill,
Cornelius, and Nichols in attendance, a resolution was
adopted' that, for matters pertaining to the operational
activities of the Company and, in particular, any matters
involving the negotiations being conducted in regard to
the C.W.A. and Finger Lakes Division of the Company,
Roger Turner, president, and Fred Schulte, director of
operations, shall sit as members of the board of directors.
Then, at another special meeting of the board of direc-
tors held later in the day, on motion made by Turner
and seconded by Schulte, a resolution was unanimously
passed rejecting the Company's final offer because a
union official offered Dave Johnson, an, employee, a
$5000 bribe to vote for ratification of the final offer at
the Union's meeting on 2 July 1985, and because the
Company's negotiating team went beyond their author-
ity. The resolution then went on to list those changes,
previously described, which would be required to be
made, agreed upon, and ratified by the union member-
ship before the board of directors would ratify the final
offer.
Among "facts" given the board of directors, recited
early in the resolution, was one reporting that the Com-
pany's negotiating team-did not report regularly and in
detail about the offers and counteroffers made by them
and the Union in contract negotiations. Another recited
that on l July 1985 after the board of directors met, for
the purpose of examining the final offer, only discussing
the wage and fringe benefits parts of the offer, it agreed
that because there was no disagreement on the wage and
fringe benefits items, the board would unilaterally imple-
ment those elements, but would reserve the right to ex-
amine and ratify, or not ratify, the remaining details of
the final offer. A third recited that both members of the
Company's team, Rosenberg and Connors, strongly rec-
ommended that every detail of the final offer of 7 May
1985 be ratified by the, board.
Other conduct on the part of Respondent alleged as
violative of its bargaining duty includes certain unilateral
changes in wages and terms and conditions of employ-
meat which followed the Company' s refusal to execute
the final offer.
According to employees Stowell and Deane , some of
the unit employees, approximately half of them, received
a wage increase in January 1986. Neither of them re-
ceived a raise at that time. They believed the raises were
only provided to those employees who were not yet at
the top of their scale for their particular job classifica-
tion. Under cross-examination, Deane, employed since
1979, testified that if an employee was due a raise under
the Company's wage plan, it was received in January. A
review of the General Counsel's exhibit documenting
employee salary history shows that, effective 8 July
1985, each of the unit employees received- an increase
and, effective either 3 or 13 January 1986, 15 of the 26
employees received another raise.
Under article 25, entitled "Wages," of the Company's
final offer, ratified by the union members in the bargain-
ing unit on 2 July, each job position had a rate shown
for each of 3 years with three different rates shown for
each year depending on whether the employee in the po-
sition was in the first, second,, or third year on job. As
explained by Woods, without contradiction, the increase
each year would take effect for each employee in a par-
ticular position on his anniversary date in that job. Al-
though the Company did put the different increases due
employees in each position under its final offer, into
effect in or close to what would have been the first year
of the contract, near the beginning of July- 1985, it gave
further increases to certain of its employees uniformly in
January 1986, and not on their anniversary dates of em-
ployment as called for in the final offer. In the cases of
Deane, Stowell, and a few other employees, because of
their length of employment, the raises they- received in
July 1985 placed, them -immediately at the third-year-in-
job top rate, and the Company refrained from granting
the second-year increase to them in January 1986, unlike
all other employees who were not yet at the third-year
rate. By granting raises in January 1986 to 15 employees
the Company apparently continued but modified a prac-
tice predating its bargaining relationship2 and failed to
comply with the terms of its finaloffer.
Stowell and Deane also, testified to their receipt, along
with all other unit employees, in January or February
1986 of winter outerwear, jackets for use while working
for the Company, but-which they kept at their homes.
The Company had never previously supplied any work
clothes to its employees. In response to a General Coun-
sel subpoena, Connors-noted in writing that winter jack-
ets were purchased in these months for the Company's
northern system field personnel employed at ,10 different
locations, including 26, employed at Finger Lakes, at a
total cost of $6055.
Stowell also testified without contradiction that in Jan-
uary, 1986 the Company started to supply the unit em-
ployees with a boot allowance i, by giving $54 a year
toward the purchase of a pair of, work, boots; to any em-
ployee who wanted it. -
2 According to Connors, prior to 1986 the Company had a practice of
giving employees wage increases twice a year, including one in January,
but stn January 1986 this was changed to once a year in January.
CABLEVISION INDUSTRIES 27
The evidence showed that at an employee meeting
called by the Company in early November 1984, at the
office garage in Geneva near the end of the workday,
addressed by Connors and attended by another manage-
ment official, Connors asked if there were any questions
about what the Company could do for them. An uniden-
tified employee asked if the Company would supply
jackets and Connors said that he would look into it and
get back to them at a later time. At a subsequent meeting
of the employees called in January 1986, Connors, ac-
companied by another management official, said the
Company was going to supply, jackets and took down
the sizes of the employees who wrote their names on a
list.
Connors disputed the statement attributed to him by
Deane asking employees what the Company could do
for them, claiming that he asked "if there were any prob-
lems or something-like that I'd be happy to help them"
(Tr. 259), but Deane stood by it during vigorous cross-
examination, even concluding emphatically in response
to- one question asked about what he had gathered from
Connors' remark that "they had something for us." (Tr.
106.) Connors, as noted previously, was evasive and con-
tradictory in his testimony, he also testified in conclu-
sionary -form instead of reciting the substance of conver-
sations as he recalled them (see, e.g., Tr. 298-300), and I
credit Deane in his recital of this matter.
The Company's final offer contained no provisions
pursuant to which the Company agreed to provide cloth-
ing for use on the job. Neither did the Company offer
any evidence, nor does the record show, that Respond-
ent gave prior notice to or offered to bargain with the
Union about these benefits.
B. Respondent's Alleged Threats of Loss of Benefits
Independent of its alleged refusal to execute the pro-
posal ratified by the Union's members and the unilateral
changes it made in terms and conditions of employment,
Respondent is alleged to have engaged in certain other
conduct coercive' of employee, rights under Section
8(a)(1).
- At the- November meeting previously described, em-
ployee Stowell testified, Connors told the assembled em-
ployees that the contract negotiations were stalled be-
cause of the Union. He went on to say that if an employ-
ee were to-be covered by a union contract the Company
would no longer make him a participant in its profit-
sharing plan. When Stowell asked Connors to explain
this further, Connors said that the employee covered by
a union contract would retain his share in the plan and
interest on that share would continue to be added but
that the Company would no longer put yearly contribu-
tions on his behalf- into the profit-sharing plan. Deane
corroborated Stowell as to these remarks by Connors at
the November meeting.
According to a composite of testimony by Stowell and
Deane, at another employee meeting called by the Com-
pany in the first or second week of December 1985, ad-
dressed this time by Alan Gerry and also attended by
Connors and another management official, Gerry men-
tioned that it had been quite a while since he had been
up to talk to them.3 He said he had to be careful what
he said because he did not want any problems with the
Union and any lawsuit. He was there against the wishes
of the company attorney but he wanted to come up and
talk to them anyway, face to face, and have an informa-
tional-type meeting. Stowell could not recall specific re-
marks, but Deane said Gerry talked of the 5-percent in-
crease that other people in the Company were getting
versus the 1-1/2 percent that they, the unit employees,
were not getting because of the Union. After Gerry's
general remarks, Deane, in a group with other employ-
ees, asked Gerry about the profit-sharing plan. Gerry
said that once, a long time ago, he wrote a clause in the
profit-sharing plan that if anyone was represented by a
union-type situation he could not have them be a partici-
pant in the plan.
The Cablevision Industries profit-sharing plan and
trust, in full force and effect at all times material to this
proceeding, in article 3.1 entitled "Eligibility" provides:
"Members of a collective bargaining unit will not be eli-
gible for participation in this Plan."
According to Stowell, at the company meeting held
early in January 1986, Connors repeated his earlier re-
marks about the profit-sharing plan, saying that "if
you're covered by a union contract you will not be a
participant in the plan." The other company official,
who was probably Schulte, read figures from a piece of
paper he was holding, comparing the 5-percent raise the
rest of the employees in the Company were getting with'
the 1-1/2 percent listed in the Company's final offer.
This official said the average employee would be losing
around $530. He also said, "[I]f you're not a participant
in the profit sharing plan you would lose approximately
eight hundred and some dollars a year because you're
part of a contract in the Union."
Connors acknowleged that he spoke with the employ-
ees in the bargaining unit concerning the profit-sharing
plan. At first recalling his remarks as having been made
shortly after the bargaining session of 27 June 1985, after
being refreshed that they probably occurred at the meet-
ing at which there was a discussion of jackets and/or
boots, Connors then said he dealt with the plan at em-
ployee meetings in November 1985 and January 1986. It
was Connors' testimony that the subject came up for the
very first time during the course of the negotiations by
way of a question by one of the employees. He was
asked what the status of the profit-sharing plan was with
the contract, and he told the employees at that time that
it had never been brought up, that it was not part of the
package, that it had not been incorporated into the pro-
posed contract being negotiated, and that the way it
stood anybody in the bargaining unit would not be re-
ceiving future profit-sharing contributions. They would
not lose any moneys that were in the plan for them and
the accrued interest that their shares were earning would
be given to them. Although Connors agreed there was
further discussion following his remark, his testimony
here was vague. Connors further testified that at the Jan-
8 Gerry came to the Finger Lakes Division only a couple of times a
year
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
uary 1986 meeting , a similar question from an employee
elicited a similar response . When asked if he had made
any reference to the profit-sharing plan article which ex-
cludes bargaining unit employees from coverage, Con-
nors said he did not know whether he had, he did not
remember, he was aware of that article at the time, but
he did not feel it was necessary to do so because the sub-
ject matter had never been raised in the negotiations.
Connors-also testified that the company meeting called
among employees in January 1986 was held after raises
to some employees in the unit, as well as to other em-
ployees, had been received. According to Connors, one
of the unit employees present said he understood that
some of the other employees received a 5-percent in-
crease if they had been at maximum status on their step
on their scale. Connors explained that this in fact did
happen; the other employees of the Company did receive
a 5-percent adjusted wage increase. Another employee
asked what would happen if the contract was in effect
and Connors said that there was no provision for the 5-
percent increase in the contract. The first year there was
a very large increase ; the second year of the contract
called for a 1-1/2-percent increase.
I credit the employee witnesses, Stowell and Deane,
who corroborated each other that Connors, in Novem-
ber 1985 and January 1986, told employees that if they
were covered by a union contract they would lose their
continued participation in the Company's profit-sharing
plan. Gerry did not testify. Accordingly, the remarks at-
tributed to him by Deane at a December 1985 meeting,
in which Gerry referred to the clause excluding members
of a collective-bargaining unit from participation in the
profit-sharing plan, are credited. They show that the
basis for Connors' and the other company official's re-
marks dealing with the unit employees' exclusion from
further participation in the plan made at both the No-
vember 1985 and January 1986 meetings was the plan's
written prohibition and not the alleged failure of the
union negotiators to raise the issue of continued cover-
age during the negotiation sessions . Connors, in particu-
lar, who at first failed to deal with the anomaly that the
Company offered and granted certain benefits, jackets,
and a work shoe allowance, not provided for in the
Company's final offer, while it refused to continue par-
ticipation in the profit-sharing plan allegedly because it
was not included in the final offer, finally relied on the
plan's written exclusion for the Company's announce-
ments at the three employee meetings that employees
would no longer be receiving the plan's benefits. (Tr.
314, LL. 13-17.)
It is also clear, and I find, contrary to Connors' inter-
pretation, that the company spokesmen at the January
1986 meeting in particular, independent of employee
questions, contrasted the minimal increases unit employ-
ees would receive under, the Company' s final , offer with
the more generous increases nonunit employees not rep-
resented by the union were then being granted. The re-
marks attributed to Gerry at the December meeting, and
to the company official at the January 1986 meeting,
who graphically portrayed the financial losses unit em-
ployees were incurring by adhering to the Union
through the negotiations and its breakdown since July
1985, reinforce my findings in this regard.
C. Analysis and Conclusions
Dealing first with the Company's alleged refusal to
bargain, the basic issue in this case is whether the parties
had arrived at a collective-bargaining agreement when
the union membership ratified the Company's final offer
on 2 July 1985 before the Company had removed any
portion of its offer from the bargaining table. So long as
the Company's offer remained outstanding, the Union's
acceptance of it, evidenced by the 2 July ratification by
its membership, would, under normal principles of con-
tract law applicable here, ripen into a fully enforceable
agreement , provided the Company's offer was not sub-
ject to any condition subsequent of which the respective
parties had notice. The condition subsequent which, Re-
spondent urges, forstalled agreement was the known re-
quirement that the Company's offer was subject to ap-
proval by its board of directors. Respondent argues that
once that board rejected the tentative accord, agreement
was not achieved and the Company could insist on union
acquiescence with changes in certain paragraphs of the
offer contained in the board's resolution of 8 July -1985.
The Union having refused to agree to the changes insist-
ed upon, Respondent finally argues it has not violated its
duty to bargain.
The General Counsel and the Union counter Respond-
ent's defense by urging that the actions of the Company's
negotiators bound Respondent to the terms of its final
offer by evidence that the Union's negotiators were led
to believe by the Company's negotiators that final ap-
proval of the terms of the final offer had been obtained
from the necessary company principal and, accordingly,
that the negotiators' approval thus' represented final ap-
proval of the agreement.
These countervailing contentions thus place in issue
whether the Company's negotiators bound Respondent
under the doctrine of apparent authority. Notwithstand-
ing prior reservations by Attorney Rosenberg of the
right of Respondent's board of directors-in reality Re-
spondent's chief executive officer and chairman, Alan
Gerry-to approve and ratify any tentative agreement
reached by Rosenberg, Rosenberg and Connors did
manifest by their actions that such approval had indeed
been obtained when Rosenberg executed the agreement.
The Board has recently enunciated the governing prin-
ciples in the following language:
It is well established that a principal may limit its
agent's negotiating authority by affirmative, clear,
and timely notice to the other party that any tenta-
tive agreement is contingent upon subsequent ratifi-
cation. E.g., University of Bridgeport, 229 NLRB
1074 (1977); Aptos Seascape Corp., 194, NLRB 540
(1971). An agent whose authority depends upon
such a contingency may have the apparent author-
ity, however, to convey its satisfaction. Walnut Hill
Convalescent Center, 260 NLRB 258 (1982).
Ben Franklin National Bank, 278 NLRB 986 fn. 2 (1986).
CABLEVISION INDUSTRIES 29
How may an agent become clothed with apparent au-
thority? "Apparent authority results when the principal
does something or permits the agent to do something
which reasonably leads another to believe that the agent
had the authority he purported to have." Hawaiian Para-
dise Park Corp. v. Friendly Broadcasting Co., 414 F.2d
750, 756 (9th Cir. 1969).
Applying these principles to the facts found herein, I
conclude that under the circumstances of this case
Rosenberg had the apparent authority to convey the
Company's final offer, which was not withdrawn before
the union membership subsequently ratified it, thereby
resulting in a binding agreement.
Preliminarily, I conclude that the principal for Re-
spondent, on whose behalf Rosenberg and Connors were
employed as agents to negotiate the collective-bargaining
agreement, was Alan Gerry and not the board of direc-
tors. The evidence is convincing that it, was Gerry who
controlled and determined the company positions in bar-
gaining and whose approval was necessary before an
agreement could be obtained. Rosenberg clarified his use
of the term "Company" at the first bargaining session
and in the company offer a number of times, most'signifi-
cantly at the 20 June session when Woods, sought such
clarification. The "Company" in article 29 and the "Co
B of D" written in by Rosenberg above his signature on
the Company's 7 May 1985 proposal in June both meant
Gerry, the sole shareholder and chief operating officer.
Neither Nichols nor O'Neill, the other two company di-
rectors until their removal by, Gerry in March 1986,
seemingly played any role in the preparation, of the Com-
pany's -proposals or negotiating posture or strategy. Al-
though Roger Turner was .elected president on 28 Febru-
ary 1985, Gerry, then as chairman, retained all the
powers he previously exercised as president, and was
clearly the decisive figure in Respondent's decision-
making process, which Rosenberg repeatedly acknowl-
edged.
I further conclude that Rosenberg, by his statements
and conduct during the bargaining sessions , as well as
Connors in his conversations with Woods, reasonably led
Woods and the other union representatives to believe
that Rosenberg had the authority from Gerry to con-
clude the agreement by, submission of the Company's
final offer. Woods, whose testimony has been credited,
reported that Rosenberg, who did not_ testify, told him
from time to time he had discussed various union de-
mands with Gerry. Connors testified that Gerry partici-
pated in the meeting at which company- proposals were
first discussed and personally approved the, wage portion
of the Company's final offer, which was unilaterally im-
plemented in early July 1985. Connors ' also briefed
Gerry periodically and, significantly, met with him on 30
June to discuss recent developments with the Union.
Connors also regularly reported on the negotiations to
his immediate superiors, Turner and Schulte, who, in
turn,' would have kept Gerry apprised as' they would
"normally do." Woods also testified credibly and with-
out contradiction that at the 2 May 1985 b argaining ses-
sion Rosenberg informed him' that he would obtain
Gerry's prior approval of the Company's final offer as a
collective document before forwarding it to the Union.
Connors' own bargaining notes essentially corroborate
this conversation by referring to "Cablevision representa-
tives" whose prior approval was a condition of the com-
pany package being forwarded to the Union and the
Federal mediator. When, at the 20 June 1985 - meeting,
Rosenberg acknowledged that he had expressed such an
intent to Woods and then assured Woods there was no
problem in obtaining Gerry's approval; Woods acted rea-
sonably in expressing on the record his understanding
that -Gerry's approval or ratification was already com-
pleted prior to Rosen berg's submission of the final offer
to the Union.
Against this array of testimony, Respondent's counsel
would have the `Board believe that, because Gerry was
involved in personally negotiating acquisitions of new
out-of-state cable operations, he had no time to review
the Company's offer prior to 8 July 1985. I am not pre-
pared to so find. At their 20 June 1985 session Rosenberg
did not dispute Woods' attributing 'to 'him a statement
that he had intended to meet with Gerry before giving
the final offer to the Union. Neither did Connors or
Rosenberg in subsequent' conversations with Woods
convey any sense that the Company had either with-
drawn or changed any provision of its offer. At the 27
June session , Rosenberg finally said he would take the
two items involving ' subcontracting and dues checkoff
back to Gerry; Rosenberg said nothing about the Com-
pany's reexamination or rejection of any other portion of
its final offer. None of these conversations would have
led Woods to believe that Gerry had not been, or would
not continue to be, available to review the agents' con-
duct at the bargaining table. By seeking to create a factu-
al ambiguity at the hearing as to the authority of its ne-
gotiators to reach agreement because of a supposed in-
ability of Respondent's principal to timely consult its
agents, which it failed to raise during the material evi-
dentiary interchanges between the parties, Respondent's
defense must fail. Absent clear notice to the contrary,
Rosenberg, as agent, must be deemed to have had appar-
ent authority to bind his principal to the terms of the
Company's final offer. See University of Bridgeport , supra.
Apart from the foregoing, all of the circumstances sur-
rounding Respondent's withdrawal from the tentative
agreement its negotiators had reached are convincing
that permitting Gerry to disapprove the agreement
would undermine collective bargaining , and permit Re-
spondent to effectively undermine the Union's support
and destroy its majority status.4 Although Respondent
admittedly obtained the contract language it wanted at
the cost of a large first-year increase in wages, it subse-
quently reneged on putting the language into effect but
unilaterally granted the onerous increases and other
fringe benefits and then, in January 1986, pointedly con-
trasted the extremely limited second-year contract in-
4 See, e.g , NLRB v. F Strauss & Sons, 536 F.2d 60, 64 (5th Cir 1976)
"Finally, withdrawal by the employer of contract proposals tentatively
agreed to by both the employer and the Union in earlier bargaining ses-
sions, without good cause, is evidence of a lack of good faith bargaining
by the employer in violation of § 8(a)(5) of the Act " See also Industrial
Wire Products Corp., 177 NLRB 328, '333-334 (1969), enfd 455 F 2d 673
(9th Cir 1972); NLRB v. ' Alterman Transport Lines, 587 F 2d 212, 221
(5th Cir 1979)
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
creases it granted only in part with the more generous
percentage increases it distributed to all of the nonunion
complement . In its 8 July 1985 resolution , Respondent's
board of directors not only reneged on its negotiators'
prior agreement , but it retrogressed to proposals which
were substantially more onerous than the ones it had in-
sisted on since early in the negotiation process, from re-
stricting and limiting resort to arbitration and seniority
rights in significant areas to adding a fourth contract
year at nominal increases . Respondent could have rea-
sonably anticipated union rejection of these changes and
the resulting encouragement of employee dissatisfaction
with the Union 's bargaining role which these company
actions would induce . Even the reasons the board of di-
rectors advanced for rejecting the tentative agreement
evidence a lack of legitimacy . Reliance was placed on a
claim of a bribe for the vote of a single employee at the
Union 's ratification meeting and the company negotiating
team having exceeded its authority . At the hearing, and
in its briefthe Respondent did not assert or argue either
ground in its defense to the complaint. The first would
appear to be irrelevant to the issues framed at trial and
there is, no claim that the company negotiators ever
made the Union aware of any limitation on their author-
ity to enter a tentative agreement.
Finally, two officials who previously had no formal
role in the negotiations were added on 8 July 1985 to
Respondent's board for the sole purpose of reviewing the
final offer in what appears to have been an attempt to
insulate Gerry from the consequences of company rejec-
tion of its final offer . Connors' credible testimony about
his regular consultations with and reports to these two
officials, Turner and Schulte , during negotiations also
conflicts with the factual claim made in the resolution of
this special meeting that the company negotiating team
failed to report regularly as to the progress of the negoti-
ations.
As noted by the Board under similar circumstances, to
fail to find that Rosenberg as agent had the apparent au-
thority to bind Gerry as his principal to the terms of the
Company 's final offer "would effectively mean that an
undisputed negotiator for the Respondent had, made a
comprehensive , unconditional final contract offer in bad
faith, without any intention to be bound thereby." Ben
Franklin National Bank, supra.
Accordingly , I conclude as alleged that the parties
reached full and complete agreement with respect to
terms and conditions of employment of the unit employ-
ees, embodied in the Company 's final offer, when the
union membership ratified that offer on 2 July 1985.5
The Union continued to remain the certified bargain-
ing representative of the unit employees after Respond-
ent reneged on its own final offer in violation of its obli-
gation under the Act. The certification year could not
terminate while that agreement remained unexecuted and
5 Although the complaint alleges that agreement was reached about 20
June 1985, rather than 2 July 1985 as I have concluded herein, that dis-
crepancy is not a material deviation between the complaint and the
proofs, Respondent has not objected and, most important , Respondent is
on notice that the union membership 's ratification and Woods' subsequent
request for execution of the agreement are key elements in the General
Counsel 's claim of a refusal to bargain
rejected . Neither has Respondent claimed in this pro-
ceeding that the Union has lost its majority support al-
though there was a hint that such a claim might be ad-
vanced. (See Tr . 225.) Such a claim , of course , would be
unavailing given the Company's refusal to bargain. Thus,
when the Company granted wage increases to unit em-
ployees in early January 1986, not in conformity with
the terms of the agreement by which I have concluded it
was bound , and granted clothing benefits and shoe al-
lowances to the unit employees in January and February
1986, all without prior notice to, or consultation with,
the Union, Respondent committed further violations of
its bargaining duty under Section 8(a)(5) and (1) of the
Act. It is no defense to these acts to claim, as the Com-
pany does, that the jackets were purchased for all of its
northern system field personnel -or that it was an employ-
ee inquiry which instigated their purchase and distribu-
tion . Respondent owed a duty not to undermine the
Union's status as exclusive bargaining agent by continu-
ing to negotiate with it on items which were not part of
its final offer.
Respondent also restrained and coerced its employees
in their activities on behalf of the Union in violation of
Section 8(a)(1) of the Act by threatening them with the
loss of continued participation in the Company 's profit-
sharing plan because they had chosen the Union to rep-
resent them in collective bargaining and were- seeking a
union contract, and by maintaining language in its profit-
sharing plan which precludes , on its face, participation
by "members of a collective-bargaining unit." Precision
Founders, 278 NLRB 544 (1986); Niagara Wire, 240
NLRB 1326, 1327-1328 (1979). As noted, the plan re-
striction , conditioning eligibility on the unrepresented
status of employees , was relied on in remarks to employ-
ees in November 1985 and January 1986 and was publi-
cized by Gerry himself at a December 1985 meeting at
which, on one of his rare visits to the Company's
Geneva facility , Gerry also stressed the contrast in' salary
increases between the generous 5-percent increases being
granted nonunit employees and the much lower 1-1/2-
percent contract increase contained in the Company's
final proposal not yet in place because of the breakdown
in negotiations.
This emphasis on the losses in salary the employees
were suffering because of their union adherence was also
stressed in the Company's January 1986 meeting when
figures were presented to them so the employees could
see clearly ' how much their union affiliation was costing
them . Such comments interfered with the employees'
rights to select and retain the Union as their collective-
bargaining representative under Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Cablevision Industries, Finger
Lakes Division, is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Communication Workers of America is a labor or-
ganization within the meaning of Section 2(5) of the Act.
CABLEVISION INDUSTRIES
3. On 13 September 1984 the Union'was certified"is
the exclusive bargaining representative of the employees
employed in - the 'following described unit ' appropriate for
the purposes of collective bargaining:
All regular full-time-installers, technicians, convert-
er control employees, construction employees and
dispatchers employed by the Employer at R.D.2,
Route 5 and 20, Geneva, New York, and 5585 Buf-
falo Extension, Canandaigua, New York and 515
No. Main Street,- Newark, New-York; excluding all-
engineers, customer service representatives, outside
sales employees, clerical employees, and profession-
al employees, guards and supervisors-as defined in
the Act, and all other employees of the Employer.
4. On 2 July 1985 Respondent and the Union reached
agreement on the terms of a collective-bargaining agree-
ment covering the terms and conditions of employment
of the employees of Respondent in the above-described
bargaining unit.
5. As a consequence of the agreement reached by the
parties, Respondent incurred the statutory obligation to
execute a written contract incorporating that agreement
but, since about 12 July 1985 and at all times thereafter,
has failed and refused to do so. -
6. By refusing since about 12 July 1985 to execute the
written contract incorporating the agreement reached be-
tween it and the Union, Respondent has failed and re-
fused to bargain collectively and in good faith with the
certified representative of its employees, and thereby has
engaged in, and is engaging in, unfair labor practices
within the meaning of Sections 8(a)(1) and (5) and 8(d)
of the Act.
7. By granting pay increases to unit employees about 7
January 1986 not calculated in accordance with the
terms of the agreement reached with the Union, by
granting a new benefit to unit employees consisting of a
winter jacket in January and February 1986, and by
granting another new benefit to unit employees consist-
ing of an allowance for the purchase of work boots in
January 1986, all granted without prior notice to the
Union and without having afforded the Union an oppor-
tunity to negotiate and bargain with respect to such ben-
efits and their effects on the unit'employees, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning-of Section 8(a)(1) and (5) of the Act.
8. By threatening employees in the bargaining unit de-
scribed above with the loss of profit-sharing plan benefits
because they chose to be represented by the Union for
purposes of collective bargaining, by maintaining and
continuing a provision in its profit-sharing plan and trust
conditioning- participation in the plan on being unrepre-
sented by any union, and by informing its unit employees
that they would be granted wage increases less than they
would have been granted had they not selected the
Union as their collective-bargaining representative be-
cause the agreement reached with the Union provides
for a lesser increase than would be granted to employees
employed outside the bargaining unit, Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
.' ^'f HE REMEDY
31
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be ordered to, cease and desist and to take certain af-
firmative action necessary to effectuate the purposes and
policies of the Act.
Having further found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act by, inter
alia, failing and refusing to execute a written agreement
reached, I shall recommend that Respondent be ordered
to cease and desist and to sign the agreement forthwith. I
shall also recommend,-further that Respondent be or-
dered to give effect to the terms of the agreement retro-
active to-1 July 1985, and that, the employees shall be
made whole for losses they may have suffered by reason
of the failure of Respondent to sign the agreement,6 with
interest thereon, to be computed in the manner pre-
scribed in F W. Woolworth Co., 90 NLRB 298 (1950),
plus interest as set forth in Isis, Plumbing Co., 138 NLRB
716 (1962), and Florida Steel Corp., 231 NLRB 651
(1977),
Having found that Respondent violated Section 8(a)(1)
of the Act by, inter alia, continuing ,to maintain a provi-
sion in its profit-sharing plan and trust which by its terms
unlawfully excludes from participation therein otherwise
eligible employees who are members of a collective-bar-
gaining unit, I shall recommend that Respondent be or-
dered to amend the profit-sharing- plan and trust so as to
clearly eliminate the unlawful eligibility restriction.'
On these findings of fact and conclusions of law and
on the entire record,8 I issue the following recommend-
ed9
ORDER
The Respondent, Cablevision Industries, Finger Lakes
Division, Geneva, New York, its officers, agents, succes-
sors, and assigns, shall
l.' Cease and desist from
(a) Refusing to bargain collectively and in good faith
with Communication Workers of America by declining
to execute a written agreement embodying the terms of
the contract fully agreed to on 2 July 1985, and which
covers its employees in the following appropriate unit:
6 "The Board may properly prevent the Respondents from gaming an
advantage by their unlawful conduct An order requiring ' that the em-
ployees be made whole for the unlawful repudiation of a collective bar-
gaining agreement serves this, end" NLRB v. I3MR Corp., 795 F 2d 472,
477 (5th Cir 1986)
4 The General Counsel requests a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure under the supervision of
the United States court of appeals enforcing an eventual Board order.
Absent special circumstances, which are not present here, this request is
denied See Nathan's Furniture Store, 278 NLRB 268 (1986); O. L. Willis
Inc, 278 NLRB 203 (1986)
B In an Order Correcting Record which I issued on 22 October 1986, I
ordered corrections to the record in certain limited respects.
9 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and' all objections to them shall be deemed waived for all pur-
poses
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All regular full-time installers , technicians, convert-
er control employees, construction employees and
dispatchers employed by the Employer at R:D.2,
Route 5 and 20,'Geneva, New York, and 5585 Buf-
falo Extension, Canandaigua, New York and 515
No. Main Street, Newark, New York; excluding all
engineers, customer service representatives, outside
sales employees, clerical employees, and profession-
al employees, guards and supervisors as defined in
the Act, and all other employees of the Employer.
(b) Refusing to bargain collectively and in good faith
with the Union by granting pay increases to unit employ-
ees- not calculated in accordance with the terms of the
agreement reached with the Union, and by granting new
benefits to unit employees, without prior notice to the
Union and without having afforded the Union an oppor-
tunity to negotiate and bargain with respect to such ben-
efits and their effects on the unit employees.
(c) Threatening employees in the bargaining unit with
the loss of profit-sharing plan benefits because they chose
to be represented by the Union for purposes of collective
bargaining; maintaining and continuing a provision in its
profit-sharing plan and trust which excludes from partici-
pation therein otherwise eligible employees who are
members of a collective-bargaining unit; and informing
its unit employees that they would be granted wage in-
creases less -than they would have been granted had they
not selected the Union as their collective-bargaining rep-
resentative because the agreement reached with the
Union provides for a lesser increase than would be grant-
ed to its employees employed outside the bargaining
unit.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Sign the collective-bargaining agreement contain-
ing the terms and conditions of employment agreed to
between the Respondent and the Union on 2 July 1985,
give retroactive effect to its terms and conditions, and
make, its employees whole for losses, if any, ,they may
have suffered as a result of its refusal to sign such an
agreement, in the manner , set forth above.
(b) Amend its profit-sharing plan and trust by eliminat-
ing therefrom the provision which by its terms excludes
,from participation in the plan otherwise eligible employ-
ees who are members of a collective-bargaining unit.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Geneva, Canandaigua, and Newark,
New York facilities and branches copies of the attached
notice marked "Appendix." 10 - Copies of the notice, on
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
forms provided by the Regional Director for Region 3,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR, RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post, and abide by this notice.
WE WILL NOT refuse to bargain collectively regarding
wages , hours, or other terms and conditions of employ-
ment with Communication Workers of America as the
exclusive representative of our employees in the follow-
ing unit:
All regular full-time installers, technicians, convert-
er control employees, construction employees and
dispatchers employed by the Employer at R.D.2,
Route 5 and 20, Geneva, New York, and 5585 Buf-
falo Extension, Canandaigua, New York and 515
No. Main Street, Newark, New York; excluding all
engineers, customer service representatives, outside
sales employees, clerical employees, and profession-
al employees, guards and supervisors as defined in
the Act, and all other employees of the Employer.
WE WILL NOT refuse to execute the contract with the
Union which was agreed upon on 2 July 1985.
WE WILL NOT fail and refuse to give effect to the
terms and provisions of the agreed-on contract with the
Union.
WE WILL NOT grant pay increases to unit employees
not calculated in accordance with the terms of the agree-
ment we reached with the Union, or grant new benefits
to unit employees, without prior notice to, the Union and
having afforded the Union an opportunity to negotiate
and bargain with respect to such benefits and their, ef-
fects on them.
WE WILL NOT threaten employees in, the bargaining
unit with the loss of profit-sharing plan benefits because
they chose to be represented by the Union for purposes
of collective bargaining; maintain and continue a provi-
sion in our profit-sharing plan and trust which excludes
from participation therein otherwise eligible employees
CABLEVISION INDUSTRIES 33
who are members- of a collective -bargaining unit;--and
inform our unit employees , that they would be granted
wage increases less than they would have been granted
had they not selected the Union_ as their collective-bar-
gaining representative because the agreement reached
with the Union provides for a lesser increase than would
be granted to our employees employed outside the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL sign the collective -bargaining agreement
containing the terms and conditions of employment
agreed to between us and the Union on 2 July 1985.
WE WILL give retroactive effect to its terms and con-
ditions and make- our employees whole for losses , if any,
which they may have suffered as a result of our refusal
to sign a contract , with interest.
WE WILL amend our profit-sharing plan and trust by
eliminating therefrom the provision which by its terms
excludes from participation in the plan otherwise eligible
employees who are members of a collective -bargaining
unit.
CABLEVISION INDUSTRIES, FINGER LAKES
DIVISION '