Leeds Cablevision)

National Labor Relations Board - Board Decisions

Apr 28, 1989

293 N.L.R.B. 931 (N.L.R.B. 1989)

PREMIER CABLEVISION
Masada Communications , Ltd , d/b/a Premier Ca-
blevision (formerly Masada Communications,
Inc, d/b/a Leeds Cablevision)i and Communi-
cations Workers of America , AFL-CIO, Local
10901 Case 10-CA-21870
April 28, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFr
On December 31, 1987, Administrative Law
Judge Robert A Gritta issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief, and the Union filed an answering
brief
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,2 and
conclusions, and to adopt the recommended Order
as modified 3
For the reasons set forth below, we affirm the
judge's finding that a reasonable time for bargain-
ing had not elapsed and, therefore, that the Re
spondent violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition from the Union as the
exclusive representative of its employees in the
Leeds unit
In December 1982, the Union was certified as
representative of the Leeds unit Following two
failed attempts at negotiating an initial contract
during unfair labor practice proceedings in which
the Respondent was found, among other things, to
have violated Section 8(a)(5), (3), and (1) of the
Act with respect to employees in the Leeds unit,'
i The case caption has been modified to reflect the General Counsels
amendment of the complaint at the hearing to exclude Masada Corpora
tion
On June 30 1988 Insight Communications Company L P d/b/a Pre
miere Cablevision filed a motion to intervene and motion to dismiss in
this proceeding asserting that it acquired a number of the Respondent s
cable franchises including the Leeds facility on April 4 1988 As Insight
may be a successor to the Respondent-a matter we leave to the compli
ance stage of these proceedings-we grant the intervention motion How
ever we deny the motion to dismiss as untimely and lacking in merit
2 The Respondent has excepted to some of the judge s credibility find
rags 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
2 We have modified the judge s recommended Order to exclude refer
ence to Masada Corporation
* Leeds Cablevision & Cablevision Co Case 10-CA-18838 JD-(ATL)-
63-83 (1983) and Leeds Cablevision 277 NLRB 103 (1985)
931
the Respondent and the Union agreed to conduct
simultaneous negotiations for an initial contract in
both the Leeds unit and the more recently certified
Gardendale unit and to incorporate any agreements
into one collective-bargaining agreement The par-
ties conducted 14 bargaining sessions between Feb
ruary 4 and November 7, 1985, and reached agree-
ment on 13 of 30 of the Respondent's proposed
provisions On November 7, 1985, the Respondent,
without challenge from the Union, withdrew rec
ognition in the Gardendale unit
After the withdrawal, it requested time to redraft
contract proposals to exclude mention of Garden-
dale, and it canceled bargaining sessions previously
scheduled for December 10 and 11, 1985 It was
not until February 11, 1986, following an inquiry
by the Union, that the Respondent forwarded the
revised proposals Despite the fact that nearly half
of its proposals had already been agreed to by the
parties, the Respondent presented the revised pack-
age to the Union as a newly proposed contract
The Respondent and the Union did not meet to ne-
gotiate until March 11, 1986, when, at the Re-
spondent's insistence, the Union point by point
reaffirmed its earlier agreement to various propos-
als Their next and last meeting was held on April
16, 1986, at which the Union agreed to another of
the Respondent's proposals The Respondent can-
celed the meeting scheduled the next day On May
5, 1986, after receiving a decertification petition
from the employees, the Respondent withdrew rec-
ognition from the Union in the Leeds unit
The Respondent asserts that it was privileged to
withdraw recognition in the Leeds unit because it
bargained in good faith for 14 months prior to its
withdrawal of recognition and because the employ-
ee petition evidenced the Union's loss of majority
status We reject this contention and find it signifi-
cant that no bargaining took place for a 4-month
period, between November 7, 1985, and March 11,
1986 During that period it took the Respondent
more than 3 months to complete a ministerial task,
i e , the deletion of references in its proposed con-
tract to the Gardendale unit The unexplained
delay was not alleged by the General Counsel inde-
pendently to constitute bad faith bargaining This
delay, however, as well as the Respondent's insist-
ence on the Union renegotiating previously accept
ed proposals had a deletorious affect on bargaining
the Union was not afforded an uninterrupted
period to engage in negotiations Coupling this
with the Respondent's earlier unilateral changes in
terms and conditions of employment and other fail
ures to bargain in good faith, and its discriminatory
treatment of unit employees with respect to wage
increases and their participation in Board proceed-
293 NLRB No 116
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ings , as found in prior proceedings, we find that
the policies of the Act regarding the stabilization of
the labor-management relationship have not been
met Under the circumstances of repeated break-
downs in negotiations resulting from the Respond-
ent's conduct, the Respondent was not free to rely
on its employees' expression of disaffection from
the Union 5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Masada Communications, Ltd, d/b/a
Premier Cablevision, Leeds, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified
1 Delete "and Masada Corporation," from the
recommended Order
2 Substitute the attached notice for that of the
administrative law judge
MEMBER CRACRAFT, concurring
I agree with my colleagues and the administra
tive law judge that the Respondent unlawfully
withdrew recognition from the Union I reach this
result on the grounds that a reasonable period of
time for bargaining free from the effects of one of
the Respondent's earlier unfair labor practices had
not elapsed at the time of the Respondent's with
drawal of recognition More specifically, I find that
5 In agreeing with the General Counsels contention that a reasonable
time for bargaining has not elapsed in this case we note that she has not
specified what poor unlawful conduct other than the Respondent s fall
ure to bargain in good faith precludes a lawful withdrawal of recogni
Lion It is appropriate however for the Board to consider any postcertifi
cation unfair labor practice conduct-such as the unlawful reduction of
wage increases for all unit employees in 1983-that reasonably tends to
affect the bargaining relationship between the parties and the Union s
representative status in determining whether a reasonable period for
meaningful bargaining has passed United Supermarkets 287 NLRB 119
(1987) Federal Pacific Electric Co 215 NLRB 861 (1974) NLRB v Schill
Steel Products 480 F 2d 586 (5th Cir 1973) enfg 140 NLRB 1164 (1963)
and 144 NLRB 69 (1963) In this connection we find the instant case dis
tinguishable from Johns Manville Sales Corp 282 NLRB 182 (1986) on
which the Respondent relies In that case the Board found that an em
ployer s unilateral out of seniority layoff of three employees violated
Sec 8(a)(5) of the Act but that its withdrawal of recognition from the
union 8 months later was lawful The union had been certified in January
1982 and the parties held 25 bargaining sessions between March 1982 and
March 1983 when the withdrawal of recognition predicated on an em
ployee petition took place In finding that the unlawful unilateral change
in layoff policy did not require a finding that the withdrawal of recogni
tion was also unlawful the Board noted that 8 months had passed be
tween the events that the layoff affected only 3 of 72 employees and
that the employer had advanced a reasonable business justification for
conducting the layoff out of seniority
We are cognizant that in the instant case the unfair labor practices oc
curred well before the withdrawal of recognition However the passage
of time is not the only factor of significance in determining whether an
objectively based withdrawal has occurred in the context of labor proc
tices The Respondent committed numerous unfair labor practices since
the employees elected to be represented Moreover the unlawful conduct
was of a nature that struck at the heart of the Union s representative
status and directly affected virtually all the employees in the Leeds unit
the Respondent's October 1983 discriminatory re-
duction of wage increases for bargaining unit em-
ployees, in violation of Section 8(a)(3) and (1) of
the Act, precludes a finding that the Respondent
bargained in good faith for a reasonable period of
time prior to its May 1986 withdrawal of recogni
tion
In October 1983, the Respondent granted re
duced wage increases to all three of the employees
in the bargaining unit involved in the instant pro
ceeding 1 In September 1984, Administrative Law
Judge Philip P McLeod found that these reduced
wage increases were discriminatorily motivated, in
violation of Section 8(a)(3) and (1) of the Act 2
Judge McLeod also found that the Respondent had
engaged in bad faith bargaining with the Union
during the period August 1983-February 1984, in
violation of Section 8(a)(5) and (1) of the Act He
recommended that the Respondent be ordered to
make the unit employees whole for the wages they
lost as a result of the Respondent's discriminatorily
reduced wage increases, and to bargain in good
faith with the Union
Although the Respondent filed exceptions with
the Board to both of Judge McLeod's unfair labor
practice findings, the record in the instant case
shows that in November 1984, shortly after the is-
suance of Judge McLeod's decision, during the
pendency of its exceptions, the Respondent began
to bargain in apparent good faith with the Union
From February through October 1985, the parties
engaged in 12 generally productive bargaining ses
sions, with the Respondent apparently not employ-
ing its earlier bad-faith bargaining tactics Howev
er, there is no evidence that the Respondent volun-
tarily remedied the 8(a)(3) violations found by
Judge McLeod prior to the Board's October 31,
1985 Order affirming the judge's findings Rather,
the only evidence showing that the Respondent
remedied its discriminatory reduction of wage in-
creases is that provided by the Regional Director's
March 11, 1986 letter in which he closed the
former case noting that he was satisfied that the
Respondent was complying with the Board's
Order In the absence of any evidence to the con
trary, it appears that the Respondent remedied the
unlawful reduction-in wage increases no earlier
than March 11, 1986 Thus, the bargaining engaged
in by the parties during the period November 1984
through March 11, 1986, was conducted against the
These employees comprise the entire bargaining unit
Leeds Cablevision 277 NLRB 103 (1985)
PREMIER CABLEVISION 933
backdrop of the Respondent's still-unremedied un-
lawful reduction-in-wage increases 3
Where, as here, the Board orders an employer to
bargain in good faith with a union, such bargaining
must be conducted for at least a reasonable period
of time thereafter, without regard to actual or per-
ceived loss of majority support for the union
during that reasonable period of time 4 Moreover,
the passage of such a reasonable time for bargain
ing will be tolled by unfair labor practices which in
any manner interfere with its employees' desires for
or against union representation 5 Indeed, as a gen-
eral rule, even prior unfair labor practices preclude
an employer from questioning the majority status
of a union while those unfair labor practices remain
unremedied 6
Here, the Respondent discriminatorily reduced
the wage increases of all unit employees in October
1983 There is no evidence that the Respondent
remedied this unfair labor practice until March
1986 Thus, most of the bargaining engaged in by
the Respondent following Judge McLeod's Sep-
tember 1984 recommended bargaining Order oc-
curred in the context of the Respondent's unreme
died discriminatory reduction in wage increases for
unit employees
In my view, the effects of this unremedied unfair
labor practice were reasonably such as to cause
employee disaffection and erosion of support for
the Union while it was attempting to bargain with
the Respondent following Judge McLeod's recom
mended bargaining and make-whole Order It
thereby undermined the Union's status as bargain-
ing representative, and precludes afinding of good
faith bargaining on the part of the Respondent
while this unfair labor practice remained unreme-
8 Even though the only record evidence on this question indicates that
as late as mid March 1986 the Respondent was still in the process of
complying with inter alia the Boards October 31 1985 make whole
Order I note that even if I were to assume that the Respondent ultimate
ly completed its make whole remedy for the unlawful reduction in wage
increases as early as mid November 1985 within just a few weeks of the
Board s decision affirming that unfair labor practice finding I would
reach the same conclusion For even under this generous assumption
prior to the Respondents May 5 1986 withdrawal of recognition there
were still at most only 5 months of bargaining and more significantly
only two bargaining sessions (one in March the other in April) conduct
ed free of the effects of the Respondent s earlier unfair labor practices In
this context I note particularly that the March session was devoted en
tirely to review and affirmation of previously agreed upon proposals and
that at the April session agreement was reached on everything except
wages and insurance
* NLRB v Warren Co 350 US 107 112 (1955) Frank Bros. Co V
NLRB 321 US 702 705-706 (1944) Poole Foundry & Machine Co 95
NLRB 34 1950 enfd 192 F 2d 740 (4th Cir 1951)
° See Brennan s Cadillac Inc 231 NLRB 225 227 (1977)
6 King Radio Corp 208 NLRB 578 583 (1974) enfd 510 F 2d 1154
(10th Cir 1975) The nature of the unremedied unfair labor practice is a
factor to be considered in the application of this general rule Taft Broad
casting Co 201 NLRB 801 (1973)
died 7 Under these circumstances, the Respondent
is therefore precluded from relying on the employ-
ees' expression of disaffection for the Union as a le
gitimate basis for withdrawing recognition 8
For these reasons, I find that the Respondent un
lawfully withdrew recognition from the Union 9
7 See Rocky Mountain Hospital 289 NLRB 1347 (1988) Tyson s Foods
187 NLRB 525 530-531 (1970)
8 See Rocky Mountain Hospital supra United Supermarkets 287 NLRB
119 (1987) enfd 862 F 2d 549 (5th Or 1989) UARCO Inc 283 NLRB
298 (1987) C & C Plywood Corp 163 NLRB 1022 (1967) enfd 413 F 2d
112 (9th Cir 1969) See also Achilles Construction Co 283 NLRB 87
(1987) (arguendo discussion) Rays Liquor Store 234 NLRB 1136 (1978)
See generally Abbey Medical/Abbey Rents 264 NLRB 969 977 (1982)
enfd 709 F 2d 1514 (9th Cir 1983)
9 In light of these considerations I find it unnecessary to pass on my
colleagues determination that the Respondent caused repeated break
downs in the negotiations between the parties
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 ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT refuse to bargain in good faith
with the Union by withdrawing recognition from
the Union before a reasonable period of time for
collective bargaining, free of the effects of our
prior unfair labor practices, has elapsed
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act
WE WILL regard the Union as the exclusive rep-
resentative of our employees
WE WILL continue to bargain collectively in
good faith with the Union for an additional 8
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
months from the commencement of bargaining pur
suant hereto
MASADA COMMUNICATIONS, LTD ,
D/B/A PREMIER CABLEVISION (FOR-
MERLY MASADA COMMUNICATIONS,
INC, D/B/A LEEDS CABLEVISION)
Virginia L Jordan Esq for the General Counsel
John L Quinn, District Counsel, of Birmingham, Ala
bama, for the Union
Richard F Kane Esq (Blakeney Alexander & Machen),
of Charlotte, North Carolina
DECISION
STATEMENT OF THE CASE
ROBERT A GRITTA, Administrative Law Judge This
case was tried before me on 17 March 1987 in Birming
ham, Alabama, based on a charge filed by the Commune
cations Workers of America (the Union) on 7 July 1986
and a complaint issued by the Regional Director for
Region 10 of the National Labor Relations Board on 16
December 1986 ' The complaint alleges that Masada
Communications Ltd, d/b/a Premier Cablevision (Re
spondent) violated Section 8(a)(1) and (5) of the Act by
withdrawing recognition of the Union as the exclusive
representative of its employees Respondents timely
answer denies the commission of any unfair labor prac
tices
All parties hereto were afforded full opportunity to be
heard, to examine and cross examine witnesses to intro
duce evidence, and to argue orally Briefs were submit
ted by the General Counsel, Respondent, and the Charg
ing Party All briefs were duly considered
On the entire record in this case and from my observa
tion of the witnesses and their demeanor on the witness
stand and on substantive, reliable evidence considered
along with the consistency and inherent probability of
testimony I make the following
FINDINGS OF FACT
I JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges Respondent admits, and I find
that Masada Corporation is an Alabama corporation en
gaged in management of Masada Communications Ltd
d/b/a Premier Cablevision which provides cable televi
sion services to retail customers in Leeds Alabama Ju
nsdiction is not in issue Respondent, in the past 12
months in the course and conduct of its business oper
ation, had a gross volume of sales in excess of $100 000
and purchased and received at its Leeds Alabama facilt
ty goods and materials valued in excess of $5000 directly
from suppliers located outside the State of Alabama I
conclude and find that Respondent is an employer en
gaged in commerce and in operations affecting com
I The style of the case was amended at the hearing
merce within the meaning of Section 2(2), (6) and (7) of
the Act
The complaint alleges, Respondent admits, and I con
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act
II BACKGROUND
There is little if any factual dispute between the par
ties Respondent historically operated two cable TV
companies in the metropolitan Birmingham, Alabama
area, the Leeds unit in Leeds, Alabama, and the Garden
dale unit encompassing Gardendale, Pelham and Truss
ville, Alabama Communications Workers of America
Local 3902 (formerly Local 10902) petitioned for an
election in the Leeds unit and won the election held 29
October 1982 The following month Respondent with
held wage evaluations and increases from the Leeds em
ployees The Board certified Local 3902 as the exclusive
representative of Leeds employees on 14 December
1982 During December Respondent withheld the annual
Christmas party and Christmas bonus from the Leeds
employees On 6 February 1983 the Union filed an unfair
labor practice charge Case 10-CA-18838 The parties
met for the first negotiation session on 23 March 1983,
the second and third meetings were held 27 April and 2
June 1983 Administrative Law Judge Cullen issued his
decision in Case 10-CA-18838 on 25 July 1983 including
the following recommended Order
1 Cease and desist from
(a) Instituting unilateral changes in the terms and
conditions of employment of its employees without
bargaining concerning them with the Communica
tions Workers of America AFL-CIO Local 10902
as the exclusive collective bargaining representative
of its employees in the unit described above
(b) [D]iscnminateng against its employees because
of their engagement in union activities,
(c) [D]iscriminating against its employees because
of their participation in proceedings before the Na
tional Labor Relations Board
(d) [I]n any like or related manner interfering
with restraining, or coercing its employees in the
exercise of their rights under Section 7 of the Act
2 Take the following affirmative actions de
signed to effectuate the policies of the Act
(a) Reinstitute its established practice of proved
ing its employees at its Leeds facility a Christmas
bonus and Christmas party until a change in said
terms and conditions of employment has been bar
gained with the Union,
(b) Reinstitute its established practice of evaluat
ing and granting wage increases to its employees at
its Leeds facility
(c) [R]einstitute its practice of permitting Gloria
Myers to work overtime as required
(d) [M]ake whole the employees for all loss of
earnings and benefits with interest, incurred by
them as a result of Respondents unfair labor prac
tices as found herein,
PREMIER CABLEVISION 935
(e) [C]orrect its records to reflect its compliance
with the terms of this Order as set out above,
(f) [P]reserve and upon request, make available to
the Board or its agents for examination and copy
ing, all payroll records social security payment
records, time cards personnel records, and reports,
and all other records necessary to analyze the
amount of backpay or benefits due under the terms
of this recommended Order
A fourth and fifth negotiating meeting was held 10
October 1983 and 4 November 1983 The sixth and final
meeting was held 5 December 1983 From 5 December
1983 to 15 November 1984 the Union made no further
bargaining demands on Respondent due to it intent and
filing of an unfair labor practice charge against Respond
ent On 27 February the Union filed an an unfair labor
practice charge in Case 10-CA-20040 A Board conduct
ed election was held 19 September 1984 in the Garden
dale unit Administrative Law Judge McLeod issued his
decision in Case 10-CA-20040 on 28 September 1984
with the following Order
1 Cease and desist from
(a) Granting employees of Leeds Cablevision
wage increases less than it grants to employees of
Cablevision Company because Leeds employees
have selected the Union as their collective bargain
ing representative
(b) Failing and refusing to bargain in good faith
with the Union as the exclusive bargaining repre
sentative of Leeds employees
(c) In any like or related manner , interfering
with restraining , or coercing employees in the exer
cise of rights guaranteed them in Section 7 of the
Act
2 Take the following affirmative action neces
sary to effectuate the purposes and policies of the
Act
(a) Make whole employees of Leeds Cablevision,
Inc , for any loss of earnings or benefits they may
have suffered by reason of the discrimination
against them by granting them wage increases retro
active to October 1983 not less than the average
wage increases granted to employees of Cablevision
Company, with appropriate interest
(b) Upon request bargain collectively in good
faith with Communications Workers of America
AFL-CIO, Local 10902, as the exclusive bargaining
representative of Respondents employees at its
Leeds Alabama facility concerning rates of pay,
hours of employment, and other terms and condi
tions of employment and, if an agreement is
reached , embody such agreement in a written col
lective bargaining agreement
(c) Preserve , and upon request , make available to
the Board or its agents for examination and copy
ing, all payroll records , social security payment
records , timecards , personnel records , and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(d) Post at its facility located in Leeds, Alabama,
copies of the attached notice marked Appendix "s
Copies of said notices, on forms provided by the
Regional Director for Region 10, after being duly
signed by Respondents representative, shall be
posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by Respond
ent to ensure that said notices are not altered, de
faced, or covered by any other material
(e) Notify the Regional director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith
The International Communications Workers of Amer
ica was certified as the exclusive representative of the
Gardendale bargaining unit on 7 November 1984 The
first negotiating meeting for the Gardendale unit was
held 4 February 1985 and the parties agreed to simulta
neously continue bargaining for the Leeds unit with any
agreements reached to be reduced to a writing in a single
contract for both units From 19 February 1985 through
11 October 1985 11 additional negotiating meetings were
held On 31 October 1985 the Board issued its decision in
Case 10-CA-20040 adopting Judge McLeod s recom
mended Order with a limited modification 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Leeds Cablevision, Inc, and Cablevision
Company Inc, Leeds Alabama, its officers agents
successors, and assigns , shall take the action set
forth in the Order as modified
1 Subsitute the following for paragraph 2(a)
(a) Make whole employees of Leeds Cablevi
sion Inc for any loss of earnings or benefits they
may have suffered by reason of the discrimination
against them by granting them wage increases retro
active to October 1983 not less than the wage in
creases granted to similarly classified employees of
Cablevision Company, Inc, who received compara
ble overall evaluations with appropriate interest
The parties met for the 13th and 14th negotiating
meetings on 6 and 7 November 1985 On 15 November
1985 Respondent notified the Union that it was with
drawing recognition of the Union in the Gardendale unit
Respondent subsequently canceled negotiating meetings
set for 10 and 11 December 1985 to have time to redraft
contract proposals to delete all reference to the Garden
dale unit and because of counsels schedule conflicts
Several agreements between the parties on contract fan
guage occurred in the first 14 negotiating meetings (4
February to 7 November 1985) On 12 February 1986
2 Leeds Cablevision 277 NLRB 103 (1985) Case 10-CA-20040 is pres
ently before the 11th circuit for enforcement and appeal
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent submitted redrafts of its original proposal
including the prior agreements on language The 15th ne
gotiating meeting was held 11 March 1986 This same
day the Regional Office issued its closed case letter for
Case 10-CA-20040 The 16th meeting was held 16 April
1986 On 5 May 1986 Respondent notified the Union that
it was withdrawing recognition of the Union in the
Leeds unit The Union on 7 July 1986 filed the instant
charge with the Regional Office The Regional Office on
11 September 1986 notified the Union it was refusing to
issue complaint in the instant case, Case 10-CA-21870
The Union appealed the Regional Office decision to the
General Counsel in Washington, D C, and sometime
thereafter the Regional Office was reversed and a com
plaint issued in the instant case on 16 December 1986
III THE ALLEGED UNFAIR LABOR PRACTICE
James E Presley testified he is employed by Respond
ent and is also independent vice president of Local 3902
His official union duties include the handling of griev
ances and negotiation of contracts Presley was involved
in the Leeds unit bargaining which occurred in 1985 and
1986 Presley Norma Powell, executive vice president,
John Quinn district counsel for Communications Work
ers of America, and Rick Glenn, president of Local 3902,
attended the 11 March 1986 negotiation meeting on
behalf of the Union Attorney Kane and Joe Gibbs, fi
nance director, represented the Respondent at the meet
ing Federal Mediation had a representative in attend
ance also The meeting began at 11 45 a in with the the
first 1 1/2 hours devoted to discussion of terminated em
ployees The remaining 2 hours of the meeting focused
on agreements of articles contained in Respondents re
draft contract proposal Respondents contract proposal
is comprised of 30 separate articles Agreement was
reached at the meeting on the following articles II-re
sponsible union company relationship III-management
rights V-bulletin boards VI-health and safety VII-
nondiscrimination, X-union representation, XI-dis
charges supensions and demotions XIII Federal and
state laws, XIV-new and reclassified jobs XVI-travel
time travel conditions, and expenses XVIII-workforce
adjustment XX-cable service and XXV-gender The
meeting ended with the parties agreeing to next meet on
16 and 17 April Presley and Powell attended the 16
Apnl meeting for the Union and Attorney Kane and Joe
Gibbs attended for the Respondent The meeting began
about 11 30 a m with a recap of the agreements from the
March meeting and designating those articles still open
Powell then went through the open articles one by one
stating the Unions agreement to each article as pro
posed The parties agreed to the following articles I-
recognition, IV-strikes and lockouts, VIII-union rep
resentation and activities, XII-bargaining unit work,
XV-tranfers XVII-leaves of absence, XIX-length of
service XXII-hours and conditions XXIII-vacations,
XXIV-sickness and accident, XXVI-absence from
duties, XXIX-completeness of contract, and XXX-du
ration of contract
Following Powell's recap of open articles and designa
Lion of those articles now agreed on Presley presented a
handwritten proposal to Kane and Gibbs covering IX-
grievances XXI-holidays XXVII-insurance and
XXVIII-wages Kane and Gibbs said they would have
to study the proposal and get back to the Union No fur
ther negotiations took place that day but the following
day was set as the next meeting The following morning
Presley, Powell and the Federal mediator met at the
hotel and waited for Kane and Gibbs Neither Kane nor
Gibbs appeared for the meeting
Norma Powell testified she is administrative assistant
to vice president of District 3 (formerly District 10) She
supervises the union staff and is responsible for all labor
relations in a five state area, including Alabama Powell
did not attend negotiations in 1985 but did attend in
1986 At the end of the 11 March 1986 meeting the par
ties agreed to meet again on 16 and 17 April On 16
April Powell, as spokesperson for the Union, agreed to
open articles as proposed by the Respondent with the ex
ception of XXVIII-wages XXVII-insurance and
XXI-holidays Shortly, thereafter, Powell agreed to ar
ticle XXI holidays as proposed by the Respondent The
Union proposed changing the maximum wage for com
pany service representative from $5 50 to $7 because the
present position was paying over $6 Powell had thought
the position presently was paying $6 95 when in fact it
was $6 33 The Union then changed their wage proposal
for the maximum to $6 50 The Union did not propose
any other wage changes in the Company s wage propos
al The Union s prior counterproposal on XXVII-insur
ance was for a $100 deductible that was the deductible
currently being paid by employees No further changes
in insurance were proposed The only other open article
was IX-grievances which we agreed to accept if the
wages and insurance were agreed to Kane and Gibbs
left the meeting room to caucus but later Kane came
back to the meeting room and stated to Powell do you
know that our proposal is a meet proposal? Powell re
sponded affirmatively Although no further negotiations
took place that day the following day at 9 a m was set
for a meeting The evening of 16 April Powell received
word to call Gibbs at 7 am on the 17 April Powell
spoke with Gibbs about 7 30 a in on the 17 April Gibbs
stated, Norma I didn t realize that we were so close I
have not yet explained this to my people at all and I
need time to explain it to them Powell asked how
much time do you need? Gibbs replied about a week
Powell said, okay because the International convention
is next week and that will give me time to go out there
Powell added about the 28th ' Gibbs said, yes Sub
sequently, Powell was unsuccessful in getting Gibbs to
return phone calls and the parties did not meet on 28
April On 30 April Powell again called Gibbs and left
word for him to return her call Gibbs did not return
Powell s call
Joe Gibbs, secretary treasurer of Masada Corporation,
testified that the corporation managers the partnership,
Masada Communications Ltd In addition Gibbs is the
general partner in Masada Communications, Ltd, which
is now the operating entity of the cablevision facilities
Gibbs became a stockholder in the predecessor operating
entity, Masada Communications, Inc, in April 1984 Sub
Sequent to the formation of the partnership, Masada
PREMIER CABLEVISION
Communication , Ltd , the three partners decided to
change counsel and become more involved in labor rela
tions After Judge McLeod s decision and the election in
the Gardendale unit , the partners decided to start afresh
with the collective bargaining and selected Gibbs to
head up the bargaining team Gibbs began the bargaining
for Respondent that commenced on 4 February 1985
supported by new counsel , Richard Kane
Gibbs was present for the 16 April 1986 meeting At
the meeting the Union made proposals on wages and in
surance and further proposed that if the wage and insur
ance were accepted the remaining open company pro
posals would be accepted by the Union Gibbs testified,
I had to then reflect on if we did that , what was it
going to do with these other articles that would then be
accepted And so we wanted to take time to look at the
specifics of these proposals and see what effect it would
have in the contract The Union s wage proposal affect
ed only one of the three employees at the Leeds facility,
the customer service representative That employee was
already receiving more than the company wage proposal
dictated due to a prior court Order Gibbs explained that
albeit only 1 Leeds employee was affected by the pro
posed wage , the information has a way of leaking to the
other 35 or 40 employees in other Birmingham facilities
In addition to the difference in deductible of $100 and
$200 the Company s proposal included changing the
medical package to a preadmission approval prior to en
tering the hospital The insurance carrier had previously
given a bid to the Company whereby substantial dollars
could be saved if the deductible ($ 100) was increased and
a preadmission approval by a doctor was required When
first proposed the Union rejected the insurance proposal
After the 16 April meeting adjourned , Gibbs attempted
to phone Powell He was not able to reach her until the
next morning Gibbs told Powell that he needed time to
look at the cost of the insurance proposal and suggested
that the meeting , previously set for that day be canceled
Gibbs testified In that discussion , I told her that be
cause of all the articles that they accepted , it appeared
that we were almost there,' or something like that
However , I still needed time to discuss with my partners
the wage proposal and I needed time to see what the in
surance proposal was going to do to us " Powell asked
how much time was needed and that she was going to
Washington D C and would not be back until the week
of 28 April Gibbs responded a few days and maybe
we can have it by then and we 11 get back together
Gibbs then instructed his employee benefits manager to
obtain the insurance information from the carrier
On 28 and 29 April, Gibbs was in Florida working on
a project and did not return until late in the day He im
mediately left for New York On Wednesday 30 April
Gibbs called his office for messages and then tried to
return Powell s phone call but she was absent from her
office Gibbs returned to his office on Friday, 2 May
1986 Gibbs did not attempt to call Powell from his
office at that time because one of his partners informed
him that the Leeds employees had signed a petition stat
ing they did not want to be represented by the Union
anymore Gibbs was then instructed by his attorney not
to return the Union s call Gibbs did not receive the in
937
surance information while he was out of town and when
he returned from New York he saw no point in pursuing
the information further
Analysis and Conclusions
Counsel for the General Counsel does not contend,
nor does her complaint allege , that Respondent has bar
gained in bad faith within the timeframes of the instant
case Neither does the General Counsel seek a remedy of
Execution of a contract previously agreed to She con
tends simply that a reasonable time for bargaining has
not elasped and therefore Respondent is not free to en
tertain an employee petition which attacks the majority
status of the Union She would give no credence to the
negotiating sessions occurring before the Board Order of
31 October 1985
The Charging Party (the Union) wants to scrutinize
the two contract proposals of Respondent and compare
the two proposals for substantive content , consider the
time spent in redrafting the original proposal and time
lost due to the canceled meetings , to show the dilatory
and evasive tactics of Respondent
Respondent argues that if counsel for the General
Counsels theory is accepted, its effect on the employees
within the bargaining unit would be manifestly unfair
For if compliance cannot be voluntarily initiated prior to
exhaustion of all appeals , the employees can be held cap
tive by the parties to the litigation Further if the theory
is accepted then compliance could not be achieved until
even enforcement actions have been completed In such
circumstance , the decision on when employees are free
to express themselves is totally within the unbridled dis
cretion of the enforcement section of the Board-when
and if it decides to seek enforcement , a decision which
has no time restraint limits on it Respondent further
argues that all bargaining sessions are relevent from the
standpoint of their curative effect and its impact on the
bargaining that followed the Order In short , because the
parties had been bargaining extensively for 9 months
prior to the Order little if anything remained for bar
gaining that had not already been addressed
The instant case presents the circumstance of a Board
conducted election and bargaining for an initial contract
The Board rule honoring a certification for 1 year,
absent unusual circumstances was developed to provide
a reasonable period for collective bargaining to function
and thus stabilize industrial relations The Board rule
presupposes that both parties will bargain in an attempt
to reach an agreement Where , as here the certification
year is interrupted by the commission of unfair labor
practices , the Board must assess the effect of the unfair
labor practices , to both remedy such effect and to deter
mine what constitutes a reasonable period for bargaining
free of unfair labor practices Not all unfair labor prac
tices impact bargaining equally but an unfair labor praci
tice based directly on the bargaining obligation of the
parties has both a prospective and retrospective effect on
continued bargaining Thus, the Board in Glomac Plas
tics, 234 NLRB 1309 fn 4 (1978) stated
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the so called Aar Jac remedy (136 NLRB
785, 787, (1962)) is typically designed to provide an
aggrieved labor organization with 1 year s time in
which to negotiate a collective bargaining agree
ment , we do not believe the Board is powerless to
order , under proper circumstances , a complete re
newal of a certification year , even in cases where
there has been good faith bargaining in the prior
certification year Such a position takens cognizance
not only of the realities of collective bargaining ne
gatiations as well as the realities of the effect of any
bad faith bargaining in the prior year , but also more
importantly , of that policy embedded in the Act
which seeks to have the relationship between cov
ered employees and their employers determined by
the bargaining process and thus reduced to written
contract form
Respondent correctly states that In cases where the
Board issues a general bargaining order that remedy re
quires that a Respondent bargain for a reasonable length
of time The question of what is reasonable is answered
in light of all the circumstances present "
Here , following the election (but before certification)
Respondent committed a bargaining violation Immedi
ately following the certification an additional bargaining
violation occurred Six negotiation meetings were subse
quently held and Judge McLeod found that Respondent
was engaged in surface bargaining with no intent to
reach a final and binding collective bargaining agree
ment An additional certification intervened before the
Board Order in Judge McLeod s case and Respondent
initiated joint bargaining efforts for the new unit and the
Leeds unit Twelve meetings occurred before the Board
issued its Order on the bad faith bargaining Within a
month of the Board Order , Respondent withdrew recog
nition in the new unit and then took time to redraft the
joint contract proposals to delete all references to the
new unit The redrafted proposals were submitted in
February 1986 and comprised all the clause language the
parties had previously agreed to but was presented to the
Union as a complete contract proposal yet to be agreed
to clause by clause Thus, Respondent for all intents
and purposes , put the Union back to square one in nego
tiations for the Leeds unit
With the initial certification year being interrupted
twice by bad faith bargaining , an 11 month hiatus in
which no bargaining occurred and bargaining starting
anew with an additional certified unit as a joint vehicle
but ending in a cessation of bargaining due to Respond
ent s withdrawal of recognition , one has to question if
the Act 's policy has in any way been respected In my
view industrial relations between this Respondent and
the Union were not stabilized nor did collective bargain
ing function for any reasonable period of time Respond
ents argument that the effect of continued bargaining on
the employees would be mainfestly unfair overlooks or
disregards its own culpability for the delays and the need
for continued bargaining The Board requires a reasona
ble period of time for collective bargaining , free from
unfair labor practices and the effects of unfair labor prac
tices , to prevent a party from gaining an advantage from
its failure to carry out its bargaining obligation I con
elude and find that the Union has not enjoyed a reasons
ble period of time , free of the effects of the unfair labor
practices committed by Respondent , in which to bargain
collectively for an initial contract covering the employ
ees in the Leeds unit The Board historically uses the
date of certification or the date of its Order remedying
unfair labor practices occurring within the certification
year as the commencement of any reasonable period of
time for remedial barganing However , where unusual
circumstances are present , the remedial reasonable period
may be fashioned otherwise The instant case presents, to
me, such unusual circumstances Respondents so called
voluntary compliance with Judge McLeod s decision
was occasioned by a new contract proposal for a new
unit with the Leeds unit included by the parties agree
ment With the cessation of bargaining for the new unit
Respondent again presented a new , albeit a redrafted,
proposal to the Union for the Leeds unit After only
two meetings in 4 months , Respondent again ceased bar
gaining and argues, Little , if anything remained for bar
gaining which had not already been addressed ' Such an
argument , particularly when joined with the undisputed
facts surrounding Respondent 's bargaining obligation,
demonstrates clearly that the statutory policy was disre
garded to the detriment of the employees exclusive rep
resentative An additional consideration is the disruptive
effect of Respondent 's withdrawal of recognition from
the Union An appropriate remedy must therefore be
fashioned on the facts of this case and in accordance
with Board law See Dominguez Valley Hospital, 287
NLRB 149 (1987)
I think the statute and the Board law requires more
than the ordinary Accordingly , I further conclude and
find that the Union is entitled to an additional 8 months
of bargaining , to commence when the parties meet again
to continue that bargaining that stalled in April 1986
with agreement on all but two articles in the contract
proposed by Respondent
Respondents arguments that the determinations of the
General Counsel or the Regional Office are controlling is
unavailing The Board alone makes and enforces labor
policy under the statue
ADDITIONAL CONCLUSIONS OF LAW
1 Respondent, by withdrawing recognition from the
Union before a reasonable period of time for collective
bargaining free of the effects of its prior unfair labor
practices had elasped , has violated Section 8(a)(1) and (5)
of the Act
2 The unfair labor practice , described above, has a
close , intimate , and substantial relationship to trade, traf
fic, and commerce among the several States and tends to
lead to labor disputes burdening and obstructing com
merce and the free flow of commerce within the mean
Ing of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall order it to cease and desist therefrom and
PREMIER CABLEVISION
to take certain affirmative action designed to effectuate
the policies of the act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed3
ORDER
The Respondent , Masada Communications, Ltd ,
d/b/a Premier Cablevision (formerly Masada Commune
cations , Inc, d/b/a Leeds Cablevision), and Masada Cor
poration , Leeds, Alabama, its officers , agents , successors,
and assigns, shall
1 Cease and desist from
(a) Withdrawing recognition from the Union before a
reasonable period of time for collective bargaining, free
of the effects of its prior unfair labor practices, has
elasped
(b) 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
3 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
939
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Regard the Union as the exclusive representative of
its employees and continue to bargain collectively in
good faith with the Union for an additional 8 months
from the commencement of bargaining pursuant hereto
(b) Post at its facility located in Leeds, Alabama,
copies of the attached notice marked Appendix '4
Copies of the notice, on forms provided by the Regional
Director for Region 10, after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediatley 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 Respond
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
4 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
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board