Comcast Cablevision-Taylor

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1089 (N.L.R.B. 2003)

COMCAST CABLEVISION-TAYLOR 1089
Comcast Cablevision-Taylor and Local 4100, Com-
munications Workers of America, AFL–CIO.
Cases 7–CA–42054 and 7–RC–21365
April 30, 2003
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY MEMBERS LIEBMAN, WALSH, AND ACOSTA
On August 5, 1999, the National Labor Relations
Board issued a Decision and Order in the above-entitled
proceeding, finding that the Respondent had engaged in
and was engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the National Labor
Relations Act, in that the Respondent refused to recog-
nize and bargain with the Union, and ordered that the
Respondent cease and desist and take certain affirmative
action to remedy the unfair labor practices.1
Thereafter, the Respondent petitioned the United
States Court of Appeals for the Sixth Circuit for review
of the Board’s Order and the Board filed a cross-
application for enforcement. The court, in its decision
issued on November 14, 2000, granted the Respondent’s
petition for review and denied enforcement of the
Board’s Order.2 For the reasons more fully set forth in
the court’s opinion, the court agreed with the Respon-
dent’s contention and found that the Union impermissi-
bly interfered with the election by offering to employees,
during the critical period, a free weekend trip to Chicago
(which cost the Union approximately $50 for each of the
employees who attended) on the weekend following the
election. Accordingly, the court concluded that the
Board erred in not setting aside the election held on Au-
gust 27, 1998, which was won by the Union.
By letter dated March 20, 2001, the Board notified the
parties that it accepted the court’s opinion and would
consider position statements on the Board’s further proc-
essing of the underlying representation case. Neither
party filed a position statement.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In light of the court’s opinion, the sole issue before the
Board is whether to direct a second election in the
underlying representation proceeding, Case 7–RC–
21365. The Board has reviewed the entire record in light
of the court’s decision, and has decided to reopen Case
7–RC–21365, set aside the election, revoke the certifica-
tion of representative, and direct a second election.

1 328 NLRB No. 160 (1999) (not reported in Board volumes).
2 Comcast Cablevision-Taylor v. NLRB, 232 F.3d 490 (6th Cir.
2000).
ORDER
Now, therefore, in view of the foregoing, the National
Labor Relations Board
ORDERS that the Decision and Order in Case 7–CA–
42054 is vacated.
IT IS FURTHER ORDERED, that Case 7–RC–21365 is re-
opened, the election is set aside, and the certification of
representative is revoked.
IT IS FURTHER ORDERED, that Case 7–RC–21365 is re-
manded to the Regional Director for the purpose of con-
ducting a second election as directed below.
[Direction of Second Election omitted from publica-
tion.]

MEMBER ACOSTA, concurring.
I concur with my colleagues’ Supplemental Decision,
Order and Direction of Second Election. Our decision
today is in response to a decision by the Court of Ap-
peals for the Sixth Circuit, which granted Respondent’s
petition for review and denied enforcement of the
Board’s prior Order. Our decision, however, does not
address the potential inconsistencies in Board case law
that formed the basis for the Court of Appeals’ decision
to deny enforcement. I write separately to highlight
these issues.
In the present case, Respondent Comcast Cablevision-
Taylor alleged that the Union influenced a representation
election by announcing preelection that it would provide,
on the weekend following the election, free transporta-
tion and 1 night’s lodging in Chicago to employees who
wished to attend a 2-hour meeting on cable industry is-
sues hosted by the Union’s parent organization. The
employees, who worked in Taylor, Michigan, were to be
driven to Chicago on Saturday morning; the meeting was
scheduled for Sunday at 4 p.m. The cost for the trip was
approximately $50 per employee. The Board overruled
this objection and certified the Union. Comcast subse-
quently refused to bargain. The Board held that Com-
cast’s refusal to bargain violated Section 8(a)(5) and (1)
of the Act, and ordered Comcast to bargain. The Sixth
Circuit declined to enforce this Order.
The Sixth Circuit observed that the Board previously
has determined that union-conferred benefits far less
substantial than the approximately $50 involved here
were sufficiently valuable to be found objectionable.
The Sixth Circuit, for example, cited Owens-Illinois,
Inc., 271 NLRB 1235 (1984). There, the Board set aside
an election in which the Union, on election day, had dis-
tributed to unit employees jackets worth $16 a piece.
Distribution of the jackets had not been conditioned on a
promise to vote for the Union, and only five or six em-
ployees actually had received a jacket before voting. The
338 NLRB No. 166
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
objection was sustained, however, because the vote tally
showed that their ballots could be determinative.
Our Owens-Illinois ruling likewise was cited by the
Sixth Circuit in its decision to deny enforcement of a
bargaining order in NLRB v. Schrader’s, Inc., 928 F.2d
194 (6th Cir. 1991). There, the employer objected to the
Union’s election-day distribution of hats and T-shirts, a
fact pattern that the Sixth Circuit found indistinguishable
from Owens-Illinois.1
In the present case, the Owens-Illinois ruling along
with Schrader’s once again form the basis for the Court
of Appeals’ denial of enforcement of a Board bargaining
order: “If union hats, T-shirts, and jackets are considered

1 See also Nestle Ice Cream Co. v. NLRB, 46 F.3d 578 (6th Cir.
1995) (relying in part on Owens-Illinois to deny enforcement of a bar-
gaining order).
sufficiently valuable to influence an employee’s vote,
then surely the offer of a free weekend trip to Chicago
fits within this category.” Comcast Cablevision-Taylor
v. NLRB, 232 F.3d 490, 498 (6th Cir. 2000). Our Sup-
plemental Decision, Order; and Direction of Second
Election today is based on law of the case, and does not
consider whether precedent inconsistent with Owens-
Illinois remains good law, or, for that matter, whether
Owens-Illinois remains good law.2 This confusion may
provide a basis for courts of appeals to deny enforcement
in the future. The Board should address and reconcile
case law on this issue.
2 See Broward County Health Corp., 320 NLRB 212, 213 fn. 7
(1995) (“Chairman Gould would not rely [on Owens-Illinois] because
he believes that the opinion in that case does not withstand scrutiny.”)