Leeds Cablevision, Inc. And Cablevision Co., Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1985

277 N.L.R.B. 103 (N.L.R.B. 1985)

LEEDS CABLEVISION
]Leeds Cablevision , Inc. and Cablevision Company,
Inc. and Communications Workers of America,
AFL-CIO, and its Local 10902 . Case 10-CA-
20040
31 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 28 September 1984 Administrative Law
Judge Philip P. McLeod issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified.
The judge found, among other things, that the
Respondent discriminatorily granted lower wage
increases in 1983 to its Leeds employees than to its
Cablevision employees because the former elected
to be represented by the Union. In so finding, the
judge compared evaluations given the two groups
of employees and analyzed the ratings-excellent,
good, fair, and poor-given in each performance
category. He also concluded that "bifurcation" of
the evaluation process, i.e., Chief Executive Officer
Terry Johnson's rating Leeds employees and Gen-
eral Manager Larry Castleberry's rating Cablevi-
sion employees, ran contrary to past practice and
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
2 The Respondent excepted to the judge's finding that it violated Sec.
8(a)(5) and (1) of the Act by refusing to bargain in good faith with the
Union. For the reasons set forth in the judge's decision, we affirm this
finding. In so doing we are mindful of the fact that the Respondent met
with the Union on five occasions and that it never patently refused to
bargain about wages as the Chairman points out in his dissent. However,
when the Respondent's conduct is analyzed as a series of related acts
rather than as singular, isolated incidents, it is clear that it violated the
Act In this connection the record supports the judge's conclusion that
the Respondent engaged in dilatory conduct prior to the commencement
of negotiations when it failed to respond to the Union's request for bar-
gaining and information and during negotiations when it indicated that it
would not discuss wages while the decision in Case 10-CA-18838 was
pending. After the decision issued, the Respondent insisted on continuing
its policy of giving merit increases and decided that conferring on evalua-
tion criteria for such increases would be pointless When this conduct is
viewed in light of the Respondent's giving discriminatory wage increases
to Leeds employees for 1983 and its stating that employees could achieve
their goals in ways other than through a union, it becomes readily appar-
ent that the Respondent desired only to frustrate negotiations and had no
intention of concluding a collective-bargaining agreement
103
therefore was indicative of the Respondent's intent
to discriminate against Leeds employees.
While we affirm the judge's finding that the Re-
spondent's granting lower increases to Leeds em-
ployees violated Section 8(a)(1) and (3) of the Act,
we do not rely on his rationale. In our view, bifur-
cating the responsibility for the evaluations, with-
out more, does not evidence an intent to discrimi-
nate and neither does the fact that the two evalua-
tors judged employees' conduct and performance
on somewhat different bases. Rather, we find that
granting disparate increases to employees of Leeds
and Cablevision who received substantially equiva-
lent evaluations overall, as explained below, estab-
lishes that the Respondent intended a dissimilar
result occur. As an example, Leeds technician
Bobby Freeman received a $10 weekly increase
after receiving a good overall appraisal (good in
seven categories, fair in three, and poor in one)
while his Cablevision counterpart Jimmy Godsey
received a $25.20 increase after receiving a similar
overall evaluation (good in six categories, fair in
three, and "needs improvement" in two. The
record reveals that "needs improvement" is equiva-
lent to "poor.") Disparate results among installers
are further evidenced by Cablevision installer Jeff
Martin's receipt of a $20 increase based on an over-
all appraisal equivalent to those of Freeman and
Godsey, while Leeds installer Mike Handley was
granted only a $5 increase on an evaluation objec-
tively higher than that of Martin. Additionally,
among customer service representatives at the two
facilities, Leeds employee Gloria Myers received
the lowest increase, $5 a week. She was rated ex-
cellent in one category, good in three, fair in two,
and needs improvement in two. In contrast, new
Cablevision employee Rhonda Lawson was grant-
ed a $10 increase on the basis of an evaluation in
which she received one good, six fairs, and one
needs improvement.
These disparate results are not explained simply
by Johnson's evaluation of Leeds employees and
Castleberry's evaluation of Cablevision employees.3
Johnson testified that he reviewed and approved
the evaluations and amounts of increases Cablevi-
sion employees were to receive. It is clear, there-
fore, that Johnson was fully aware of the similari-
ties in the evaluations and the disparities in recom-
mended increases, yet did not seek to conform the
two. On this basis we find that the Respondent in-
tended that Leeds employees receive substantially
2 Although Johnson generally testified he rated some appraisal catego-
ries higher than others and Castleberry rated all categories equally, this
evidence is insufficient to explain the disparity in results
277 NLRB No. 14
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lower increases than their counterparts because
they selected the Union to represent them.
The judge ordered that the Respondent grant
Leeds employees retroactive increases not less than
the average wage increases granted to Cablevision
employees. In view of our findings, we believe this
remedy to be too broad and shall direct that the
Respondent grant retroactive increases that con-
form to increases given to similarly classified Ca-
blevision employees who received comparable
evaluations.
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. Substitute 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 ret-
roactive 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."
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
Although I agree that the Respondent granted
discriminatorily lower wage increases to Leeds em-
ployees than to Cablevision employees in violation
of Section 8(a)(3) and (1), I disagree with the ma-
jority's affirming the judge's finding that the Re-
spondent further violated Section 8(a)(5) and (1) by
failing and refusing to bargain in good faith with
the Union. For the reasons set forth below, I find
that the Respondent's course of conduct evidences
lawful, hard bargaining.
The judge, in reaching his conclusion that the
Respondent engaged in surface bargaining, cites
several factors including action which he charac-
terizes as delay tactics, the discriminatorily lower
increase which is the subject of the 8(a)(3) allega-
tion, and comments made in the final bargaining
session. However, an analysis of the Respondent's
overall bargaining conduct including its conduct
concerning the negotiation of a wage package war-
rants the conclusion that the Respondent attempted
in good faith to reach an agreement. First, regard-
less of when the Respondent responded to the
Union's initial requests for information and bargain-
ing, it is clear that once negotiations got under way
on 23 March, the Respondent presented substantive
proposals and counterproposals which led ultimate-
ly to the parties' agreement on a recognition
clause, nondiscrimination policy, grievance and ar-
bitration procedure, vacations and sick leave, a no-
strike/no-lockout policy, and fringe benefits. The
parties' agreement on these substantive matters is
acknowledged in the judge's decision but accorded
little weight in his assessment of the Respondent's
course of conduct from the start of negotiations
until the fifth and final session on 5 December.
Regarding wages the record reveals that the Re-
spondent never patently or otherwise refused to
bargain but simply disagreed with the Union's pro-
posed increases and counterproposed to continue
granting increases based on merit. On 2 June it in-
dicated that it was unwilling to discuss wages at
that time because no decision had yet issued in an
unfair labor practice case which both parties under-
stood would significantly impact on any proposed
wage structure. Finally, it indicated that it was
amenable to conferring with the Union on the de-
velopment of performance standards and evaluation
criteria. Its subsequent reluctance to confer on
evaluation standards was based on the fact that its
planned expansion of operations and service ren-
dered formulation of criteria impractical. In short,
the record establishes that the Respondent bar-
gained about wages and that the parties found each
other's wage proposals unacceptable. There is no
requirement in the Act that the parties agree, only
that they make good-faith efforts to do so. Nothing
about the conduct described above warrants a find-
ing of bad faith on the Respondent's part.' Addi-
tionally, the 1983 wage increases granted Leeds
employees, although found to be discriminatory, do
not evidence an unwillingness to bargain to con-
tract or an intent to stymie negotiations.
The same is true of the comments made at the
final bargaining session that Union Negotiator
Norma Powell should admit the Union had no
strength and that "there's other ways besides a
union" for employees to accomplish their objec-
tives. The judge recognized that "negotiations
sometimes become heated and occasionally become
overheated" and noted that the "Respondent's
emotional outbursts in this case were not altogether
unprovoked." Nevertheless, he relied on the state-
ments in concluding that the Respondent refused to
bargain in good faith. The record discloses that
Powell sparked the exchange of insults by accusing
the Respondent's negotiator, its attorney, of "rip-
ping off" his client. It is error to conclude that
i It is not the role of this Board to evaluate the reasonableness of par-
ties' proposals at the negotiating table
LEEDS CABLEVISION
these comments made in the heat of argument and
provoked as they were accurately reflect the char-
acter of the Respondent's approach to negotiations.
For all the foregoing reasons, I would reverse
the judge's finding that the Respondent failed and
refused to bargain in good faith in violation of Sec-
tion 8(a)(5) and (1) and modify his recommended
Order.
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.
WE WILL NOT grant employees of Leeds Cable-
vision, Inc. wage increases less than we grant to
employees of Cablevision Company, Inc. because
Leeds employees have selected the Communica-
tions Workers of America, AFL-CIO, Local
10902, as their collective-bargaining representative.
WE WILL NOT fail and refuse to bargain in good
faith with the above Union as the exclusive bar-
gaining representative of Leeds employees.
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 make whole employees of Leeds Ca-
blevision, Inc. for any loss of earnings or benefits
they may have suffered by reason of the discrimi-
nation against them by granting them wage in-
creases retroactive to October 1983 not less than
the wage increases granted to similarly classified
employees of Cablevision Company, Inc. who re-
ceived comparable overall evaluations, with appro-
priate interest.
WE WILL, on request, bargain collectively in
good faith with Communications Workers of
America, AFL-CIO, Local 10902, as the exclusive
bargaining representative of our employees at our
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.
LEEDS CABLEVISION, INC. AND CA-
BLEVISION COMPANY, INC.
Sharon E. Howard, Esq., for the General Counsel.
105
Donald W. Davis, Esq. (Davis & Howland), of Birming-
ham, Alabama, and John A. Wilmer, Esq. (Bell, Rich-
ardson, Herrington, Sparkman & Shepard), of Hunts-
ville, Alabama, for the Respondent.
John L. Quinn, Esq., of Birmingham, Alabama, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. This
case was heard by me on May 16 and 17 and June 19
and 20, 1984, in Birmingham, Alabama. It originated
from a charge filed on February 27, 1984, by Communi-
cations Workers of America, AFL-CIO against Leeds
Cablevision, Inc. and Cablevision Company, Inc. (collec-
tively called Respondent). On March 30, 1984, a com-
plaint and notice of hearing was issued. The complaint
was subsequently amended on April 5 and on May 16,
1984. The complaint , as amended , alleges that Leeds and
Cablevision, both of which provide cable television serv-
ices to retail customers , are a single integrated business
enterprise and a single employer within the meaning of
the National Labor Relations Act. The complaint alleges
that Respondent violated Section 8(a)(1), (3), and (5) of
the Act by granting Leeds employees a smaller wage in-
crease than was granted to Cablevision employees be-
cause Leeds employees elected Communications Work-
ers of America, AFL-CIO, Local 10902 (the Union) as
their collective-bargaining representative and by failing
and refusing to bargain collectively with the Union with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment of Leeds em-
ployees.
In its answer to the complaint, Respondent admitted
certain allegations, including the filing and serving of the
charge, the status of Leeds and Cablevison as a single
employer within the meaning of the Act, and the status
of the Union as a labor organization within the meaning
of the Act. Respondent denied having engaged in any
conduct which would constitute an unfair labor practice
within the meaning of the Act.
At the trial all parties were represented and afforded
full opportunity to be heard, to examine and cross-exam-
ine witnesses , and to introduce evidence. Following the
close of the trial, the General Counsel, the Charging
Party, and Respondent filed timely briefs with me which
have been duly considered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
At the time of the events material to this case, both
Leeds and Cablevision were Alabama corporations with
offices and facilities located in small towns surrounding
metropolitan Birmingham , Alabama. Both provide cable
television services to retail customers . Both derive gross
revenues in excess of $100,000 annually, and both pur-
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chase in excess of $5000 annually directly from suppliers
located outside the State of Alabama.
Leeds and Cablevision have been for some time, and
continue to be, affiliated' business enterprises with
common officers, ownership, management , and control
of labor relations. They have provided services to and
interchanged personnel with each other. Leeds officially
merged with Cablevision in November 1983, and Cable-
vision, in turn, merged with Masada Communications,
Inc. shortly thereafter. The complaint alleges, Respond-
ent admits, and I find that Leeds and Cablevision are a
single integrated business enterprise, and that Respondent
is, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
H. LABOR ORGANIZATION
Communications Workers of America, AFL-CIO,
Local 10902 is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In Cases 10-RC-12658 and 10-RC-12668, the Union
sought to represent separate bargaining units of employ-
ees at Cablevision and Leeds, respectively. Pursuant to
decisions and directions of election, elections were con-
ducted among employees at the two facilities. At Cable-
vision, the majority of eligible voters voted against union
representation. At Leeds, all three of the eligible voters
voted in favor of the Union. The results were certified,
and on December 14, 1982, the Union was certified as
the exclusive bargaining representative of the Leeds em-
ployees.
On February 6, 1983,1 the Union filed a charge with
the Board against Respondent in Case 10-CA-18838. On
May 4, a complaint and notice of hearing was issued al-
leging, inter alia, that Respondent violated Section
8(a)(1), (3), and (5) of the Act by unilaterally discontinu-
ing its past practice of conducting job evaluations and
granting wages increases to Leeds employees because
they selected the Union as their collective-bargaining
representative. The complaint also alleged that Respond-
ent unilaterally discontinued Christmas bonuses and a
Christmas party for the same reason. Finally, the com-
plaint alleged that Respondent violated Section 8(a)(1)
and (4) of the Act by refusing to allow Leeds employee
Gloria Myers to work overtime because she had given
testimony to the Board. On May 19, a hearing was held
regarding those allegations before Administrative Law
Judge Lawrence W. Cullen. On July 25, Judge Cullen
issued his decision in which he found merit to each of
the allegations described above. With respect to the find-
ing that Respondent had unilaterally and discriminatorily
discontinued its past practice of conducting job evalua-
tions and granting wage increases to Leeds employees
because they had selected the Union as their collective-
bargaining representative, Judge Cullen found:
1 All dates refer to 1983 unless otherwise indicated
The appropriate remedy for Respondent's discrimi-
nation against its employees at the Leeds facility
with respect to the denial of employee evaluations
and raises is to evaluate said employees and grant
them wage increases as it has its employees at its
Cablevision facility until such time as a different
procedure is bargained with the Union.
No exceptions were filed to Judge Cullen's decision.
Accordingly, on August 30 the Board issued an Order
adopting that decision.
B. The Bargaining Relationship
Following certification on December 14, 1982, the
Union sent Respondent a letter on December 16 request-
ing bargaining regarding the Leeds employees. This
letter also requested that Respondent furnish the Union
with various information. Respondent did not answer
this letter.
Instead, by letter dated February 24, Respondent's
counsel informed the Union that Respondent was consid-
ering closing the Leeds facility and dissolving the corpo-
ration. On behalf of Respondent, counsel offered to meet
with the Union for the purpose of discussing the possible
closure and the effects it might have on employees.
On February 28, 1983, the Union sent Respondent an-
other letter requesting bargaining. Again there was no
response from Respondent.
On March 9 the Union sent yet a third letter to Re-
spondent requesting the commencement of bargaining. In
response to this third request, Respondent's counsel tele-
phoned Union Representative Norma Powell, and the
two agreed to a meeting.
All the negotiating sessions between Respondent and
the Union took place at the office of Respondent's coun-
sel. The Union's primary spokesperson throughout these
meetings was Powell. Respondent was represented by
counsel and Leeds' chief executive officer Terry John-
son.
At the first negotiating meeting held on March 23, Re-
spondent informed the Union that it did not respond to
the Union's earlier requests for bargaining and had no
obligation to meet with Powell since the request for bar-
gaining had been received from Powell, who is em-
ployed by the Union's parent International organization,
rather than from Local 10902 itself. Powell reminded
Respondent's counsel that she had represented Local
10902 during the organizing campaign, throughout the
representation case proceeding, and in the processing of
Case 10-CA-18838, which was then pending investiga-
tion.
Respondent then gave Powell a written cost analysis
which it reported showed that almost $20,000 could be
saved annually by closing the Leeds facility and having
the work performed from one of the facilities staffed by
Cablevision employees. Respondent then gave the Union
a written proposal which provided that if the Leeds fa-
cility was closed, its employees would be offered em-
ployment by Cablevision at the same wage rates and
with the same benefits they were then receiving. Powell
told Respondent she knew that business in the Leeds
LEEDS CABLEVISION 107
area was growing rather than decreasing and there was
no reason to close the Leeds facility. Powell also stated
that after receiving counsel's earlier letter, she had con-
tacted the Leeds city council and had been told that they
had received no notification Respondent was considering
closing that facility. Powell also told Respondent that
she had not yet received any of the information she had
requested with her initial bargaining request. The meet-
ing ended.
On the following day, March 24, the Union sent a
letter to Respondent containing a written proposal that
the parties first negotiate a collective-bargaining agree-
ment with regard to the Leeds employees and that they
then consider the issue of the Company's proposal to
close the Leeds facility. In a separate letter also dated
March 24, Powell requested bargaining with Respondent
specifically on behalf of "Communications Workers of
America, AFL-CIO, Local 10902." In the letter, Powell
also renewed her request for information.
By letter dated March 30, Respondent' s counsel re-
quested the Union to submit an initial contract proposal
in order to commence substantive contract negotiations.
By letter dated April 5, Respondent supplied the Union
with the information which it had earlier requested.
Thereafter, a bargaining meeting was scheduled for April
27.
At the second bargaining meeting held on April 27,
Powell presented Respondent with a written contract
proposal on behalf of the Union.'The meeting was then
devoted to the parties reviewing this proposal. Within
this proposal is a section captioned "wages," which
simply provides for "a substantial wage increase." When
Respondent questioned Powell what this meant, Powell
replied that the Union wanted a wage increase of 65
cents per hour per employee.
By letter dated and hand delivered on May 16, Re-
spondent presented the Union with its contract proposal.
This proposed contract contains , inter alia , a recognition
clause, a nondiscrimination clause, a management-rights
clause, a no-strike/no-lockout clause, a clause providing
that employees could be discharged only for "good
cause," a grievance and arbitration procedure, a seniority
clause dealing with layoffs and recalls, and various
clauses dealing with vacations and other fringe benefits.
Regaiding wages, Respondent's proposed contract pro-
vided: "The wage rates currently in effect shall remain in
effect during the life of this agreement ." Respondent's
proposed contract was for 1 year.
On June 2, Respondent and the Union held their third
bargaining session. At this meeting, the Union presented
Respondent with a document which listed each article of
Respondent's contract proposal and expressed its accept-
ance, rejection, or proposed modification. From that
time on, Respondent's contract proposal served as a basis
for negotiations. The Union also presented Respondent
with written counterproposals to various sections of the
proposed contract. The parties then reviewed in-detail
the Union's written counterproposals. One of the coun-
terproposals again called for a "substantial wage in-
crease." Respondent's counsel, who testified as a witness
for Respondent in this proceeding, admitted that when
the Union attempted to discuss a wage increase for em-
ployees, he informed the Union that Respondent was not
willing to discuss wages until a decision had been ren-
dered by Judge Cullen in Case 10-CA-18838. Davis tes-
tified as follows:
Q. (By Ms. Howard) Isn't it correct that at the
June 2 meeting you took the position that you
couldn't offer any wage increase because of the
ULP hearing that had taken place? Isn't that cor-
rect?
A. (By Mr. Davis) That's essentially correct. We
took the position that we wanted to see what the
outcome of that was because that might require that
the employer grant a wage increase and we didn't
know what that would be, if it occurred. And it
was difficult to take a position on wages at that
time not knowing that.
As of June 2, we did state essentially that we
weren't in a position to make an offer on wages
until we saw what the ALJ's Decision said.
At the conclusion of the June 2 meeting, Respondent's
counsel agreed to review the Union's proposed modifica-
tions of Respondent's proposed contract and to then get
back in touch with the Union.
On June 27 Powell telephoned Davis to determine Re-
spondent's position regarding those proposed modifica-
tions. Davis informed Powell that Respondent was not
willing to accept any of the proposed modifications.
Powell stated in response, "I guess we're at an impasse."
Davis replied, "I guess we are." Powell then told Davis
that she would get back in touch with him at a later
date.
As indicated above, the judge issued his decision in
Case 10-CA- 18838 on July 25. No exceptions were
taken to that decision, and a Board order issued adopting
the decision on August 30. The Union, however, did not
request another bargaining meeting with Respondent
until October.
On October 10, Respondent and the Union held their
fourth bargaining meeting. At this session, the parties re-
viewed and discussed each of the provisions of Respond-
ent's contract proposal and the Union's proposed modifi-
cations which had not previously been agreed on. As
Powell described that meeting:
There were several tentative agreements made on
that particular day. Some in regard to the language
that the union had submitted that were modified
from the company's contract, and some words that
we agreed, on that particular day, to change or
adjust.
The parties then discussed wages once more. The Union
presented a written cost analysis of employee wages to
Respondent and a written proposal providing employees
a wage increase of 35 cents per hour (or $15.17 per
week). According to Powell, whom I credit, Respondent
continued the earlier position taken in its initial contract
proposal that employees not be given any wage increase
pursuant to the contract. Johnson offered to continue to
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evaluate and give employees raises as Respondent
deemed appropriate as it had in the past. The Union then
expressed an interest in trying to set up specific and de-
finable evaluation standards for employees. Johnson ex-
pressed an interest in that possibility, and informed the
Union that he would discuss that with them further at a
later date. Later, however, Johnson took the position
that such standards could not be established.
Between October 26 and 31, Respondent conducted
job performance evaluations for both Cablevision and
Leeds employees. Cablevision General Manager Larry
Castlberry evaluated the Cablevision employees and
granted them wage increases based on their performance
from October/November 1982 to October/November
1983. Johnson evaluated the Leeds employees, preparing
two sets of evaluations: one for the period from
October/November 1981 to October/November 1982
and a second for the period from October/November
1982 to October/November 1983. Pursuant to the make-
whole remedy in Case 10-CA-18838, Leeds employees
were given a retroactive wage increase for the period
from October/November 1981 to October/November
1982 equal to an average of the increases granted to Ca-
blevision employees for that same period. The average
wage increases given to Cablevision employees for that
period was $9.55 per week. Thus, Leeds employees were
granted a $10-per-week wage increase as a part of the
make-whole remedy ordered by Judge Cullen. For the
October/November 1982 to October/November 1983
period, Cablevision employees evaluated by Castleberry
received wage increases from $10 to $35 per week;
Leeds employees evaluated by Johnson received raises of
$5 and $10 per week. These raises are discussed in great-
er detail below.
On November 4, the parties held their fifth bargaining
meeting. At this meeting, Respondent and the Union
once again reviewed and discussed the remaining con-
tract articles upon which there had been no agreement.
The Union capitulated and agreed to accept several con-
tract provisions contained in Respondent's initial con-
tract proposal. Respondent then informed the Union that
it had given wage increases for 1982 and 1983^to the
Leeds employees pursuant to the decision in Case 10-
CA-18838 and that it had also granted 1983 wage in-
creases to the Cablevision employees. Powell objected,
stating that Respondent had not negotiated these raises
with the Union or even mentioned to the Union the fact
that it was going to grant the raises. Respondent's coun-
sel stated that Respondent had been required to grant the
raises by the Board Order in Case 10-CA-18838. Powell
then objected to the size of the raises for Leeds employ-
ees. Johnson stated to Powell that Myers' raise was low
because her attitude was "terrible," that Handley's was
low because he did "sloppy work," and that Freeman
got what he did because he was a "good employee."
Powell again objected, stating that Respondent had
never had any problem with Myers before the union ac-
tivity. Powell stated that the Leeds employees deserved
better than what they had gotten. Johnson replied that
they had gotten what they deserved.
- On November 17, Powell telephoned Respondent's
counsel. At the time of her call, only two contract provi-
sions were still in dispute: wage rates for employees and
union-dues checkoff. Powell informed Davis that if Re-
spondent would agree to give Gloria Myers an additional
$5-per-week raise, Powell would recommend to the
Leeds employees that they accept the contract as it then
existed . Davis told Powell that he did not think Re-
spondent would agree to do this, but that he would
check with Johnson. On November 21, Davis informed
Powell that Johnson would not agree to give Myers the
additional increase. Respondent offered no counterpro-
posal.
On December 5, Respondent and the Union held their
sixth and final bargaining meeting. Testimony of the var-
ious witnesses regarding what took place at this meeting
is, with only minor exception, consistent. Powell testified
that at the beginning of this meeting, the Union and Re-
spondent again reviewed and discussed certain articles of
the proposed contract. One of the articles discussed re-
lated to wages. Powell informed Respondent that the
Union was still seeking a 35-cent-per-hour wage increase
and that the wage increases it had already granted to em-
ployees would be considered a part of the requested in-
crease. Respondent's counsel objected to the Union's
proposal, stating that the Union was trying to add an ad-
ditional proposal to the discussion. Davis noted that
during their last conversation the Union was seeking
only 12.5 cents per hour more for Gloria Myers. Powell
replied that if Respondent would put that amount into a
contract, she would recommend it to employees. Re-
spondent objected and stated that if there was a contract
it would reflect no wage increase. Instead, Respondent
offered once more to continue its past practice of evalu-
ating and giving wage increases to employees as Re-
spondent deemed appropriate. Employee Bobby Free-
man, who was on the Union's negotiating comnuttee,
then pointed out to Johnson that one employee at Cable-
vision had received a raise of $1 per hour and another
employee there had received 75 cents per hour, while
Freeman had received only 25 cents per hour. Freeman
told Johnson he did not think this was fair, particularly
in view of the fact that he had trained one of these two
people. According to Powell, Johnson lowered his eyes
and did not respond. Powell then stated that the employ-
ees at Leeds were entitled to a decent wage in view of
the skills and job abilities they had. Powell asked John-
son, "How many poles have you climbed lately, and
how many cables have you installed?" Johnson lost con-
trol of his temper, rose out of his chair, leaned across the
table toward Powell, and shook his index finger vigor-
ously in her face, saying, "Don't you say that to me,
Norma. I've installed many poles in my lifetime when I
first started out building my company. I worked then for
a dollar and 25 cents and these people are going to have
to come up like I did." Powell replied that that might be
so, but that wage rates had changed in 20 years. I credit
Powell that, at that point, Respondent's counsel stated to
Powell, "Norma, why don't ya'il just admit that you
don't have any strength out there and leave these em-
ployees alone?" Powell retorted, "Why don't you tell
your client that you're ripping him off." Davis then
jumped out of his chair yelling, "Get out of my office
LEEDS CABLEVISION 109
before I knock you out, you fat lady. I'll do you like I
did those people in Vietnam. Get out of my office so my
client can talk to his employee." Powell immediately left.
In describing this same meeting, employee Freeman
testified that in response to his questions directed to
Johnson about why certain employees at Cablevision re-
ceived a larger raise than Freeman received, Johnson
stated that one of the two employees had a larger service
area to cover than did Freeman. According to Freeman,
during this meeting Powell stated to Respondent,
"You're not offering us a contract." Respondent's coun-
sel replied, "Yes, we are offering you a contract."
Powell responded, "You're not offering us a contract
that these people can live with." It was then that Powell
made the statement to Johnson about his not having
climbed a pole or strung wire for a considerable period
of tierce. Powell also stated, in essence , that Johnson did
not know what it was like to work for the amount of
money that Leeds employees received. It was then that
Johnson lost his temper. Freeman testified that when
Johnson lost his temper and shouted at Powell, in addi-
tion to his other remarks, Johnson made the statement
that no one was going to tell him how to run his compa-
ny. Freeman also testified that after Powell left Davis'
office, Freeman rose and went over to Johnson. Freeman
told Johnson that he did not blame Johnson for wanting
to run his company by himself, but that Freeman
thought the employees "deserved better than we were
getting." According to Freeman, whom I credit, Johnson
replied, "Well, there's other ways besides a union."
Johnson testified about what took place at this meet-
ing, as did Respondent's counsel and counsel's secretary.
Their testimony tended to corroborate and expound
upon that of Powell and Freeman rather than contradict
it, except as specifically noted. Respondent' s counsel ad-
mitted stating to Powell in response to Powell's assertion
that he was "ripping off' his client:
You'd better be damned glad you're a woman, be-
cause if you weren't, I would have long ago forgot-
ten that I wasn't where I was 14 years ago running
a unit of Vietnamese Rangers through the rice pad-
dies south of Saigon. Fat lady, get the hell out of
my office.
Johnson's testimony about this meeting was very brief.
Johnson admitted that there were many things about the
meeting he did not recall. Johnson, however, denied the
statement attributed to him by Freeman at the end of the
meeting , "Well, there are other ways besides a union."
Respondent' s counsel testified that as Powell left the
conference room, he, Johnson, and Freeman also left the
room and entered the passageway between the confer-
ence room and the reception area in his office. Davis tes-
tified he heard Freeman say to Johnson, "Terry, I'm
sorry, we deserve better than this." Davis then testified,
"Al that point I was following Norma [Powell] as she
went out the door. She was shouting at me and I was
shouting at her and I didn't hear anything else that was
said between Terry [Johnson] and Bobby [Freeman]."
Counsel's secretary, Joyce Whitten, testified that as
Powell left counsel's office, Davis followed. According
to her, Johnson and Freeman then stepped out of the
conference room and stood "almost in front of my desk."
Whitten testified that Freeman then told Johnson, "I'm
sorry all this has happened." Johnson replied, "I am, too.
And I'm sorry we couldn't work this matter out."
The purpose of Davis' and Whitten's testimony is ap-
parently to provide corroboration to Johnson's denial of
the statement attributed to him by Freeman. Respondent
would argue that it shows Johnson could not have made
this statement without it being witnessed either by Davis
or Whitten. I reject this argument. According to Free-
man's testimony , when Powell left the conference room
and Davis followed, it was then that Freeman walked
over to Johnson and initiated the conversation. It is ap-
parent from Freeman's testimony that the conversation
he had with Johnson and the statement he attributes to
Johnson were made while Freeman and Johnson were
still in the conference room where the bargaining session
was being held, and I so find. Freeman impressed me as
being completely trustworthy and candid. It was clear
from Davis' testimony that any number of things might
have been said between Freeman and Johnson which
Davis could not have heard since Davis followed Powell
out of his office. Johnson's testimony about the Decem-
ber 5 meeting was sketchy at best, and Johnson admitted
many things were said that he did not remember. Whit-
ten, on the other hand, was too positive, too definite, and
too assertive in her testimony. I was left with the distinct
impression that Whitten was trying a little too hard to be
helpful to her employer who, in turn, was representing
Respondent. Of all the witnesses who testified about this
alleged remark by Johnson, Freeman impressed me as
the most straightforward and candid, and I credit his tes-
timony in its entirety.
C. The Evaluations of Leeds Employees
Certain findings of the judge in Case 10-CA-18838 are
relevant to a consideration of the evaluations performed
on Leeds employees in October 1983. I take judicial
notice of those facts from the judge's decision in that
earlier proceeding. More specifically, I note that the
judge found a common control of labor relations over
both Cablevision and Leeds employees by Cablevision
General Manager Larry Castleberry. In making this find-
ing, the judge relied not only on an identical overtime
policy established for both Cablevision and Leeds em-
ployees by Castleberry but also on the fact that it was
Castleberry who approved timecards and signed payroll
checks for Leeds employees. Elsewhere in that decision,
the judge considered and discussed "employee evalua-
tions and pay raises." He found that in the past it was
Johnson who decided whether employees would be
given raises. When a decision was made to do so in early
1982, "Johnson testified that . . . he and Cablevision
General Manager Larry Castleberry "reviewed every-
body's salaries." The decision continues:
Johnson testified that in the spring of 1982 he and
Castleberry decided that in order to improve com-
munications with the employees of Cablevision and
Leeds salary reviews would be initiated with each
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee of Leeds and Cablevision on a 6-month
basis commencing in November (1982).
Johnson testified that this policy was to apply to
both Cablevision and Leeds employees. In Novem-
ber 1982 Johnson reviewed all the employees of Ca-
blevision and all but two or three received raises.
He did not review the employees at Leeds.
Thus, although it was Johnson who reviewed all of
the Cablevision employees in November 1982, he did not
do so in October 1983. Instead , Castleberry evaluated
Cablevision employees while Johnson evaluated Leeds
employees. Johnson testified that he evaluated Leeds em-
ployees rather than Castleberry because Castleberry was
not actually general manager of Leeds and because he
felt a personal obligation to evaluate Leeds employees
for 1982 pursuant to the judge' s decision discussed
above. I am not convinced by Johnson's purported ex-
planation. The decision in Case 10-CA-18838 shows
quite clearly that Castleberry exercised substantial day-
to-day control over Leeds employees, including approv-
ing timecards and signing payroll checks. Gloria Myers,
whom I credit, testified that for about the last 3 years
Johnson visited the Leeds facility only once or twice a
year. Leeds employees looked to Castleberry for day-to-
day supervision and control. Johnson himself admitted
that he received input from Castleberry before he was
able to evaluate the Leeds employees. A comparison of
evaluations performed by Castleberry on Cablevision em-
ployees and by Johnson on Leeds employees reflects that
Johnson applied a different standard than that applied by
Castleberry and judged the Leeds employees more
harshly than Castleberry judged Cablevision employees.
1. Gloria Myers
Gloria Myers has been employed by Leeds since Feb-
ruary 1979. Her job duties include writing orders for
new installations, taking service requests, scheduling and
packaging orders, and processing customer payments.
Prior to the November 1983 merger of Leeds into Cable-
vision, Myers was also responsible for the preparation of
Leeds' payroll, preparation of a quarterly tax report, and
the payment of bills. Since she has been relieved of these
latter duties, Myers is now considered a customer service
representative. Myers is one of Respondent's most senior
employees. Prior to October 1983, when her raise
amounted to only $5 per week, raises had always ranged
from $10 to $20 per week.
In the October 1983 evaluation performed by Johnson,
for the period October 1981 to October/November 1982,
Myers was rated "fair" in only one category, i.e., "self-
motivation." She was rated "excellent" regarding her
"knowledge of job" and "good" in the six other catego-
ries in which she was rated. In the evaluation covering
the period from October/November 1982 to October/-
November 1983, Myers was again rated "fair" regarding
self-motivation and "excellent" regarding knowledge of
job. Myers was rated "good" in three other categories,
"fair" in productivity, and "needs improvement" in "atti-
tude" and "customer comments." Regarding "attitude"
Johnson added the following note: "Appearance of office
must improve." The low rating for "customer com-
ments" refers to two letters Johnson received from cus-
tomers about alleged rudeness by Myers. Johnson admit-
ted that customer service representatives are often faced
with upset and rude customers when they are calling to
complain about a failure with their equipment. Johnson
admitted that it is not unusual for frustrated customers to
complain that it is the customer service representative
who is rude. In view of this, I find it significant that
Johnson admitted actually soliciting the two letters from
customers about Myers' purported rudeness. This is sus-
pect, indeed, when Johnson had never done this before
with regard to any other employee and did so on this oc-
casion only with regard to Myers.
Cablevision customer service representative Sheila
Ray performs the same type of functions in the satellite
office in Trussville that Myers performs at Leeds. Ray,
like Myers, received an "excellent" rating in only one
category, i.e., knowledge of the job. Ray received a
rating of "good" in six categories and a rating of "fair"
in one category, i.e., productivity. In the section for
comments, Castleberry noted, "Needs work in organiz-
ing. I will work with her on this." Ray received a raise
of $20 per week compared to Myers of $5 per week.
Cablevision customer service representative Gerri
Phillips did not receive a rating of "excellent" in any cat-
egory. Phillips was rated "good" in six categories. Two
of those "good" ratings contain parenthetical comments,
however, which suggest that Phillips in fact needed some
improvement. For example, under productivity Phillips
was rated "good" but this was followed by the paren-
thetical comment, "Could be better in front office." Fur-
ther, Phillips received a rating of "fair" in the categories
of "self-motivation" and "attitude and disposition." Phil-
lips, like Ray, received a raise of $20 per week compared
to Myers of $5 per week.
Cablevision customer service representative Donna
Lawson, who was hired in February 1983, also failed to
receive an "excellent" rating in any category. Lawson
received a rating of "good" in six categories. In two
other categories, however, "self-motivation" and "pro-
ductivity," Lawson received a rating of "fair." Lawson
received a raise of $10 per week.
Customer service representative Rhonda Lawson,
hired only 2 months before the evaluation, received no
"excellent" rating. In fact, the only category in which
she received a rating of "good" was that of "timeliness."
Lawson received a rating of "fair" in every other cate-
gory but one-"productivity"-in which she was rated
"needs improvement."2 Rhonda Lawson, like Donna
Lawson, received a raise of $10 per week compared to
Myers' raise of $5 per week.
2. Michael Handley
Michael Handley was employed at Leeds as an install-
er. In the October 1983 evaluation by Johnson, Handley
was rated "poor" in two categories: "self-motivation"
and "productivity." Handley was rated "fair" in the cate-
2 Johnson testified that "needs improvement" is synonymous with
"poor "
LEEDS CABLEVISION
gory entitled "attitude and disposition ." In the remaining
categories , Handley was rated "good. " Handley received
a raise of $5 per week.
Cablevision installer Jeff Martin, hired only about 2
months before the evaluation , was rated "good" in six
categories and "fair" in three categories , including
"knowledge of the job." In the "productivity" category,
Martin was rated as "needing improvement ." In addition,
the comment was added that Martin was "not getting
work done ." Comparing the two, Handley's and Martin's
evaluations are about equal . Martin , however , received a
raise of $20 per week while Handley received a raise of
$5 per week.
3. Bobby Freeman
Bobby Freeman was hired first by Cablevision in 1980'
as an installer . After working as an installer for a little
less than a year, Freeman transferred to Leeds where he
worked continuously thereafter as a technician. As a
technician , Freeman 's primary job was to repair recep-
tion problems and outages experienced by customers.
The October 1983 evaluation conducted by Johnson
shows that Freeman was rated "good" in six categories,
including "driving record" and "customer comments."
Freeman was rated "fair" in three categories , including
"knowledge of the job," "attitude and disposition," and
"productivity ." Freeman was rated "poor" in "self-moti-
vation." Johnson testified that Freeman was an average
employee "and that was the kind of increase I gave
him." Freeman received a raise of $10 per week. Castle-
berry's evaluations note that certain employees should
receive an average ("AVG") increase while others
should receive the maximum ("MAX"). The increases to
employees who Castleberry ranked as average ranged
from $10 to $25.20 per week. The average raise given by
Castleberry to the average employee was $16.30 per
week.
Cablevision technician Gary Godsey received an eval-
uation from Castleberry in October 1983 which con-
tained a rating of "excellent" in one category , "good" in
seven categories , and "fair" in two categories. As Re-
spondent 's counsel questioned Castleberry on direct ex-
amination , he noted that an exhibit prepared by Re-
spondent and reviewed by Castleberry prior to the trial
showed that Godsey received a raise of only $10 per
week. Asked why Godsey received $10 per week, Cast-
leberry proceeded to explain why Godsey had received
such a low raise, referring specifically to items which
Godsey had left in the back of his truck "that shouldn't
have been there," the fact that Godsey was "quite often
late at work," and Godsey's "knowledge of the job." In
Godsey's evaluation, however,, Godsey was in fact rated
"good"in "knowledge of the job." Later in the trial it
was determined that Godsey had not received a raise of
$10 per week but rather had received a raise of $30 per
week. The error on Respondent's exhibit was corrected.
Castleberry's credibility, however, remains suspect.
Mark Franklin was hired in August 1982 as an installer
at Respondent's Gardendale facility. In an evaluation
performed by Castleberry in May 1983 Franklin was
rated "excellent" in two categories , "good" in five cate-
gories, "fair" in three categories , and "needs improve-
111
ment" in his driving record. Franklin was promoted to
technician at some time between this May evaluation and
the evaluation performed in October 1983. In Castle-
berry's October evaluation, Franklin was rated "fair"
both in his "appearance" and his "knowledge of the
job." Franklin was again rated as "needing improve-
ment" in his driving record. Johnson testified that the
driving record ' of technicians and installers was a critical
factor in their evaluations because their job involved
driving company equipment from location to location
and this had a direct bearing on matters such as insur-
ance costs. Franklin received a raise of $35 per week
compared to Freeman's raise of $10 per week.
Castleberry asserted that Franklin received such a
large raise because of his change in status from installer
to technician. Respondent, however, offered no evidence
that such a change automatically resulted in such raises
in the past. Further, Castleberry made no effort to sug-
gest what portion of Franklin's substantial raise was pur-
portedly due to this promotion and what portion was
due to merit. I find Castleberry's purported explanation
less than satisfying, particularly in view of his demon-
strated tendency to manufacture explanations at will.
Cablevision technician James Godsey also received a
substantial raise in October 1983. Castleberry's October
1983 evaluation of James Godsey reflects that he re-
ceived no "excellent" rating. Godsey received a rating of
"good" in six categories. Godsey, however, was rated
only "fair" in both "driving record" and "self-motiva-
tion." Even more significant, however, is the fact that
Godsey was rated as "needing improvement" both in his
"knowledge of the job" and "timeliness." The latter cate-
gory contained the parenthetical comment that Godsey
was "late often." James Godsey received a raise of
$25.20 per week compared to Freeman's raise of $10 per
week.
Castleberry asserted that James Godsey received the
substantial raise he did in part because Godsey was trans-
ferred to a larger area having more customers to serve. I
find it incredible that Respondent would, in effect, pro-
mote or give greater responsibility to an employee with
Godsey's work record. This in itself suggests that a dif-
ferent standard was used on Cablevision employees than
was used on Leeds employees. Moreover, Castleberry
does not attempt to suggest how much of the substantial
raise given to James Godsey was due to his increase in
responsibilities. Again I note Respondent presented no
evidence to show that assignments to larger areas have
resulted in such raises in the past. I find Castleberry's
purported explanation unbelievable, particularly in view
of Johnson's testimony that the October 1983 raises were
"merit raises."
IV. ANALYSIS AND CONCLUSIONS
The decision in Case 10-CA-18838 and the evidence
before me establish that whenever performance evalua-
tions have been conducted on Cablevision and Leeds em-
ployees in the past, Johnson has been involved in re-
viewing all employees. This practice was not followed,
however, in conducting the evaluations for Cablevision
and Leeds employees in October 1983. The reasons ad-
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vanced by Respondent for using the bifurcated system
which it employed this year do not ring true. Its argu-
ment that Castleberry was used only to review and
evaluate Cablevision employees because Castleberry was
general manager of Cablevision and not general manager
of Leeds is made to look rather specious in view of clear
evidence that it was Castleberry, not Johnson, who ef-
fectively ran the Leeds facility on a day-to-day basis. As-
suming that Johnson felt some obligation to be involved
in the review of Leeds employees pursuant to the judge's
Order in Case 10-CA-18838 because he had conducted
the evaluations of Cablevision employees in October/-
November 1982, there was, nevertheless, no reason not
to also involve Castleberry in the evaluation of Leeds
employees, particularly in view of the fact that Johnson
had to consult informally with Castleberry before he was
able to conduct the reviews. Similarly, there was no
reason for Johnson not to have been involved in con-
ducting the evaluations of Cablevision employees in Oc-
tober 1983 as he had done in the past. Respondent's spe-
cious reasons for employing a bifurcated system for the
first time in October 1983 itself suggests an unlawful
motive, i.e., that Respondent was purposely trying to
achieve bifurcated results as between the Cablevision and
Leeds employees.
The conclusion that in October 1983 Respondent was
purposely attempting to achieve disparate results in the
evaluations between Cablevision and Leeds employees is
evidenced as well by Respondent's position at the bar-
gaining table. At the June 2 bargaining meeting, the first
bargaining session at which any substantive give-and-take
took place, Respondent took the position that it was not
willing to discuss wage rates until the judge's decision
issued in Case 10-CA-18838. In addition to considering
this below, with regard to the allegation that Respondent
bargained in bad faith with the Union, I consider it as
evidence of Respondent's motive for granting a discrimi-
natory wage increase in October 1983. Regardless of
how Respondent's position at the June 2 meeting is ana-
lyzed or interpreted, the bottom line was that if Re-
spondent lost in Case 10-CA-18838 and, as a result, was
forced to make employees whole, Respondent was pre-
pared to attempt to correct what it would consider to be
an erroneous conclusion by the judge at the bargaining
table or through other indirect means. There was simply
no other reason for Respondent to be unwilling to dis-
cuss wages in negotiations with the Union until after the
judge issued his decision in that case. After the judge's
decision issued, Respondent proceeded to utilize a bifur-
cated evaluation and review system which resulted in
Leeds employees getting a wage increase substantially
less than their nonunion Cablevision counterparts. It was
no coincidence which led to this result. Rather, it was a
system created by Respondent which represented a de-
parture from past practice with the preannounced pur-
pose of granting employees less if Respondent were to
lose in Case 10-CA-18838 which resulted in different
standards being employed by Respondent's two evalua-
tors and which resulted in Leeds employees being dis-
criminated against as a result . Considering all the above,
I conclude that Respondent granted wage increases to
Leeds employees in October 1983 which were less than
the increases granted to similarly situated Cablevision
employees because Leeds employees had selected the
Union as their collective-bargaining representative. Re-
spondent thereby violated Section 8(a)(1) and (3) of the
Act. 3
Though the complaint and notice of hearing alleges
simply that Respondent failed to recognize and bargain
with the Union as the representative of Leeds employees,
it is apparent from oral argument at the trial and the
briefs of all parties herein that the issue actually is
whether Respondent engaged in bad-faith or "surface"
bargaining with the Union by going through the motions
of bargaining without any real desire or intent to reach
agreement . I find that it did, but not necessarily for the
reasons advanced by the General Counsel or the Union.
Both the General Counsel and the Union argue that
strong evidence of Respondent's bad faith is found in Re-
spondent's acrimonious, near-violent outbursts directed at
union spokesperson Norma Powell in the December 1983
bargaining session. In his brief, Respondent's counsel
himself recognizes that these outbursts were unfortunate.
I do not condone Respondent's outbursts. One must rec-
ognize, however, that negotiations sometimes become
heated and occasionally become overheated. The parties
to such negotiations, each believing strongly in his own
position, sometimes become frustrated and embittered.
Unfortunately, such feelings sometimes lead to emotional
outbursts. I note, too, that Respondent's emotional out-
bursts in this case were not altogether unprovoked. On
more than one occasion, Powell let it be known to Re-
spondent in front of Respondent's counsel that she
thought Respondent was getting poor legal advice and
being "ripped off." Accordingly, I give no particular
weight to Respondent's diatribe of Powell at the Decem-
ber meeting.
I do find, however, that certain of Respondent's ac-
tions at the bargaining table evidenced that Respondent
had no real desire to negotiate a collective-bargaining
agreement with the Union and that Respondent took var-
ious actions in order to avoid reaching such an agree-
ment. These actions include the following: First, Re-
spondent failed to respond to the Union's first two re-
quests for bargaining . At the first negotiating meeting
held on March 23, Respondent informed the Union that
it had not responded to the requests and had no obliga-
tion to meet with Powell since the bargaining requests
had emanated from Powell rather than from Local 10902
itself. This kind of gamesmanship suggests that Respond-
ent was interested in delaying the commencement of ne-
8 Even if Respondent may be found to be in conptempt of the remedial
provisions of the Board's Order in Case 10-CA-18838 by failing to cease
and desist from granting discriminatory wage increases, it is nevertheless
appropriate for me to make a specific finding that the October 1983 wage
increase violated the Act because , in granting that increase in a discrimi-
natory manner, Respondent engaged in an independent unfair labor prac-
tice in violation of Sec 8(a)(l) and (3) of the Act If Respondent's action
is both an independent violation of the Act and in conptempt of the
Board's earlier Order, it is up to the General Counsel to decide whether
to employ one or both of the remedial avenues available to the General
Counsel. Respondent has failed to cite any authority for the proposition
that the General Counsel should be required to elect only one of alterna-
tive remedial avenues available to it Accordingly, I deny Respondent's
motion to dismiss the complaint on that ground
LEEDS CABLEVISION
gotiations as long as it could. Second, as soon as the
Union requested bargaining, Respondent immediately
countered by proposing to close the Leeds facility. Even
if Respondent could be more efficient by consolidating
some of its operations, Respondent offered no explana-
tion why the only facility which it proposed closing was
also the only facility where employees had selected the
Union to represent them. This, coupled with the fact that
Respondent has now allowed this "proposal" to fall by
the wayside, suggests that Respondent was simply en-
gaged in a tactical maneuver to subvert substantive bar-
gaining. Third, at the June 2 bargaining meeting, Re-
spondent informed the Union that it was not willing to
discuss wages until the judge issued his decision in Case
10-CA-18838. Fourth, after the judge issued his deci-
sion, Respondent refused to make any proposal regarding
wages or Respondent's evaluation system other than for
Respondent to continue as it had in the past to evaluate
employees and grant raises as Respondent, in its own dis-
cretion, saw fit. Respondent offered no evidence to show
that some objective criteria for evaluating employees
could not be established. Insistence to the point of im-
passe on retaining unfettered discretion over wage in-
creases has long been recognized as an indicia of bad
faith. Fifth, in October 1983 Respondent granted smaller
raises to Leeds employees and larger raises to Cablevi-
sion employees because Leeds employees had elected the
Union as their collective-bargaining representative. Sixth,
after granting the discriminatory wage increases in Octo-
ber 1983, Respondent refused to consider any wage in-
crease for Leeds employees beyond what it had already
granted them in a discriminatory manner. Seventh, in the
sixth and final bargaining meeting held on December 5,
Respondent's counsel Davis stated to Powell, "Norma,
why don't y'all just admit that you don't have any
strength out there and leave these employees alone?" Re-
spondent argues that throughout negotiations it was
simply engaging in hard bargaining in order to achieve
the most desirable contract it could. This statement by
Davis, however, reveals that Respondent's true purpose
was to taunt and frustrate the Union to such a point that
the Union would abandon its attempt to represent the
Leeds employees. Eighth, during that same December
meeting;, after Respondent's emotional outburst caused
the meeting to come to an abrupt end, employee Bobby
Freeman approached Johnson and told Johnson he did
not blame Johnson for wanting to run his company by
himself but that he thought the employees deserved more
than they were getting. Johnson replied, "Well, there's
other ways besides a union." This statement by Johnson,
like Davis' statement to Powell, reveals that Respond-
ent's motive was not to achieve the best agreement it
could with the Union but rather to frustrate negotiations
to such a point that employees would pick some way
other than the Union to try to improve their wages and
other working conditions. In other words, Respondent's
purpose throughout negotiations was to try to frustrate
negotiations to such a point that employees would aban-
don the Union. Johnson's own statement to Freeman, as
well as Respondent's other actions described above, evi-
denced this as Respondent's real aim throughout negotia-
tions. Accordingly, I find that by engaging in such con-
113
duct, Respondent failed to bargain in good faith with the
Union, and thereby violated Section 8(a)(1) and (5) of
the Act.
CONCLUSIONS OF LAW
1. Respondent Leeds Cablevision, inc. and Cablevision
Company, Inc. are a single integrated business enterprise
and a single employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Communications Workers of America, AFL-CIO,
Local 10902, is a labor organization within the meaning
of Section 2(5) of the Act.
3. In October 1983, Respondent granted employees of
Leeds Cablevision wage increases less than it granted to
employees of Cablevision Company because employees
of Leeds had selected the Union as their collective-bar-
gaining representative, and Respondent thereby violated
Section 8(a)(1) and (3) of the Act.
4. Throughout the negotiations which took place be-
tween the Union and Respondent after August 28, 1983,4
Respondent has failed and refused to bargain in good
faith with the Union as the exclusive bargaining repre-
sentative of Leeds employees, and Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
5. The unfair labor practices which Respondent has
been found to have engaged in, as described above, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
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 certain
unfair labor practices in violation of Section 8(a)(l), (3),
and (5) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent granted employees of
Leeds Cablevision, Inc. wage increases less than it grant-
ed to employees of Cablevision Company, Inc. because
employees of Leeds had selected the Union as their col-
lective-bargaining representative, I shall recommend that
Leeds employees be made whole by granting them wage
increases not less than the average wage increases grant-
ed to employees of Cablevision Company. All loss of
earnings and benefits shall be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest to be computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977); see generally
Isis Plumbing Co., 138 NLRB 716 (1962).
Having found that Respondent has failed and refused
to bargain in good faith with the Union, I shall recom-
4 Though Respondent 's course of bad-faith bargaining with the Union
may have commenced earlier than August 28, 1983, I am precluded by
Sec 10(b) of the Act from finding that Respondent engaged in an unfair
labor practice preceding that date Accordingly, evidence of Respond-
ent's actions prior to that date is considered as background evidence re-
flecting Respondent's course of conduct which continued throughout its
negotiations with the Union.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend that Respondent be ordered, on request, to bargain
collectively in good faith with the Union as the exclusive
bargaining representative of its employees at Leeds and,
in the event that an understanding is reached, embody
such understanding in a signed agreement, and to post
the attached notice.
On these findings of fact and conclusions of law, and
on the entire record, I issue the following recommend-
ed,"
ORDER
The Respondent, Leeds Cablevision, Inc. and Cablevi-
sion Company, Inc., Leeds, Alabama, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Granting employees of Leeds Cablevision wage in-
creases less than its grants to employees of Cablevision
Company because Leeds employees have selected the
Union as their collective-bargaining representative.
(b) Failing and refusing to bargain in good faith with
the Union as the exclusive bargaining representative of
Leeds employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary 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 suf-
fered by reason of the discrimination against them by
5 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,
granting them wage increases retroactive to October
1983 not less than the average wage increases granted to
employees of Cablevision Company, with appropriate in-
terest.
(b) On request, bargain with the Union as the exclu-
sive representative of the employees in the following ap-
propriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
(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 facility located in Leeds, Alabama,
copies of the attached notice marked "Appendix."s
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 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(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.
6 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 "