Rainbow News 12

National Labor Relations Board - Board Decisions

Jan 20, 1995

316 N.L.R.B. 52 (N.L.R.B. 1995)

52
316 NLRB No. 12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s finding that Rainbow
News 12, Rainbow Network Communications, Inc., Rainbow Pro-
gramming Holdings Corp., and Cablevision Systems Corp. constitute
a single employer, and to the judge’s dismissal of certain 8(a)(1) al-
legations.
2 The Respondent, the General Counsel, and the Charging Party
have excepted to some of the judge’s credibility findings. 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.
1 American Federation of Radio and Television Artists, AFL–CIO,
and the Communications Workers of America, AFL–CIO. Respond-
ents admit that those Unions, and the IBEW, are labor organizations
within the meaning of Sec. 2(5) of the Act.
Rainbow News 12 and Rainbow Network Commu-
nications, Inc., subsidiaries of Rainbow Pro-
gramming Holdings Corp.; Rainbow Program-
ming Holdings Corp.; and Cablevision Systems
Corp. and Radio and Television Broadcast En-
gineers Union Local 1212, International Broth-
erhood of Electrical Workers, AFL–CIO and
Andy Herzman. Cases 29–CA–15978, 29–CA–
16094, and 29–CA–15998
January 20, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On February 11, 1994, Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent, the General Counsel, and the Charging Party
filed exceptions and supporting briefs,1 and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and 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.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Rainbow News 12 and
Rainbow Network Communications, Inc., subsidiaries
of Rainbow Programming Holdings Corp.; Rainbow
Programming Holdings Corp.; and Cablevision Sys-
tems Corp., Woodbury, New York, their officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Matthew T. Miklave and Sharon Chau, Esqs., for the General
Counsel.
William H. Englander, P.C., of Mineola, New York, for the
Respondents.
Richard H. Markowitz, Esq. (Markowitz & Richman, Esqs.),
of Philadelphia, Pennsylvania, for Local 1212.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge and amended charges filed in September and October
1991 in Case 29–CA–15978 by Radio and Television Broad-
cast Engineers Union Local 1212, International Brotherhood
of Electrical Workers, AFL–CIO (IBEW or the Union), and
another charge filed on November 7, 1991, in Case 29–CA–
16094 by the Union, and pursuant to a charge filed on Sep-
tember 25, 1991, by Andy Herzman, an individual, a consoli-
dated complaint was issued by the National Labor Relations
Board against Rainbow News 12, a subsidiary of Rainbow
Programming Holdings Corp. (News 12), and Rainbow Net-
work Communications, Inc., a subsidiary of Rainbow Pro-
gramming Holdings Corp. (RNC), Rainbow Programming
Holdings Corp. (Rainbow), and Cablevision Systems Corp.
(Cablevision). The companies involved will sometimes be re-
ferred to collectively as Respondent, as I find, infra, that they
are a single employer.
The complaint, issued on January 30, 1992, alleges essen-
tially that following the commencement of a campaign by
IBEW, and by two other unions, AFTRA and CWA,1 to or-
ganize certain employees of Respondent, the Company en-
gaged in a deliberate course of action to defeat the organiza-
tion attempts of the unions.
Specific alleged activities undertaken by Respondent to
achieve its goal of remaining nonunion fall into two main
categories: the layoffs of 38 employees because of their
union activities and statements to employees, in writing and
orally. The alleged statements include threats of layoff if the
employees selected the IBEW as their bargaining representa-
tive; promises of wage increases if the employees rejected
the IBEW as their representative; interrogations of employees
about their membership and activities in the IBEW, and
about the union membership and activities of other employ-
ees; the solicitation of complaints and grievances of employ-
ees, and impliedly promising that it would resolve such com-
plaints and grievances; the confiscation and destruction of
union literature; threats to employees of unspecified reprisals
because they testified for the IBEW in a prior Board pro-
ceeding; the disparate enforcement and application of a rule
prohibiting the posting of literature on company bulletin
boards; threats of plant closure, more onerous working condi-
tions, layoff, and job loss if they selected the IBEW; inform-
ing employees that the IBEW was to blame for the lack of
a pay raise; promise of benefits if the IBEW withdrew its
representation petition or if the employees abandoned the
IBEW; the solicitation of an employee petition to get rid of
the IBEW, and the promise of a wage increase if they did
so; the promise to terminate an unpopular supervisor if the
employees abandoned the IBEW; and informing employees
that it would be futile for them to select the IBEW as their
bargaining representative.
The above alleged unfair labor practices, if proven, con-
stitute violations of the National Labor Relations Act.
53RAINBOW NEWS 12
2 The voluminous record in this case comprises 2588 pages of
hearing testimony, 194 exhibits and briefs, filed by all parties, which
contained a total of 333 pages.
Respondent’s answer to the complaint denied the commis-
sion of the alleged unfair labor practices, and specifically as-
serted that the layoffs of the employees were economically
motivated.
A hearing was held before me in Brooklyn, New York,
and in Manhattan on 17 days in November and December
1992.2
On the evidence in this proceeding, and my observation of
the demeanor of the witnesses, and after consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
All the entities named herein have their offices and places
of business in Woodbury, New York. News 12 and RNC are
both separate partnerships. News 12 operates a 24-hour-per-
day regional cable television news station, and RNC provides
studio technical and other technical support services for cable
television operations, programs, and systems, including News
12. Rainbow, a corporation, manages and operates cable tele-
vision operations, programs, and systems including News 12
and RNC. Cablevision, a corporation, owns and operates a
cable television system.
Respondent admits that News 12 and RNC have derived
annual gross revenues in excess of $100,000, and that they
annually purchased and received at the Woodbury facility
products, goods, and materials valued in excess of $50,000
directly from entities located outside New York State. Re-
spondent further admits that News 12 and RNC are employ-
ers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The complaint alleges, and Respondent denies, that News
12, RNC, Rainbow, and Cablevision constitute a single-inte-
grated business enterprise and a single employer. Respondent
further asserts that Rainbow and Cablevision are not proper
parties to this proceeding, and accordingly denies that they
are engaged in interstate commerce. In this connection it
should be noted that Cablevision has been found by the
Board to be an employer engaged in commerce. 251 NLRB
1319, 1320 (1980). It should be further noted that the Deci-
sion and Direction of Election issued in this matter in Case
21–RC–18960 found that News 12 and RNC constituted a
single-integrated enterprise and a ‘‘de facto’’ single employer
of the employees. The Employer did not file a request for
review as to that issue.
Prior to 1989, RNC and News 12 were wholly owned by
Rainbow, through Rainbow Programming Enterprises. On
about April 10, 1989, the National Broadcasting Company
(NBC) acquired a 50-percent equity interest in RNC, News
12, and other Rainbow subsidiaries. Rainbow now operates
as the managing partner of RNC and News 12. In addition,
RNC and News 12 are ‘‘indirectly controlled’’ by Cable-
vision through Rainbow.
The hierarchical interdependence of the companies is
clearly seen in their structure and reporting network. Sharon
Patrick, the president and chief operating officer of Rainbow,
is a member of the board of directors of Cablevision. Gregg
Burton, the vice president of operations and technical serv-
ices of Rainbow, reports to Patrick. Doug Keck, the vice
president and general manager of RNC, reports to Burton.
Margaret Albergo was hired by Patrick as the director of ad-
ministration and operations for News 12.
Patrick Dolan, the News Director of News 12, is a mem-
ber of the board of directors of Cablevision.
NBC and Rainbow administer their financial arrangements
through an NBC-Rainbow Board, which consists of officials
of NBC, Rainbow, and Cablevision. RNC provides super-
visory technical services to News 12 and other Cablevision
companies at no charge for such services. However, RNC’s
supervisory work for other non-Cablevision companies is
billed at commercial rates.
Regarding supervision, in some instances, Patrick signed
Cablevision personnel action forms, approving salary in-
creases for News 12 employees. The interrelationship of the
various companies is clearly shown in the decision to
downsize and lay off News 12 employees. Thus, Rainbow
President Patrick made the decision to downsize; she sought
recommendations from the managers of RNC and News 12
as to which employees to lay off. The recommendation to
downsize and lay off was made to Cablevision which ap-
proved the decisions. In addition, Patrick’s recommendation
for a pay raise for News 12 employees was required to be
approved by Cablevision’s director of human resources. Em-
ployment actions such as hires, promotions, salary changes,
and leaves of absence were recorded on Cablevision’s per-
sonnel action forms.
Regarding benefits, the News 12 employees are eligible to
participate in the Cablevision pension plan, which is offered
to employees throughout the Cablevision ‘‘family of compa-
nies’’ and are also covered by Cablevision’s personal leave
day and vacation policies. When an employee moves from
one Cablevision company to another, he does not lose his
pension rights.
The Board applies four criteria in determining whether
separate entities constitute a single employer: (1) interrelation
of operations, (2) common management, (3) centralized con-
trol of labor relations, and (4) common ownership or finan-
cial control. Hydrolines, Inc., 305 NLRB 416, 417 (1991).
None of these criteria is controlling, nor do all need to be
present to warrant a finding of single-employer status. ‘‘Sin-
gle employer status depends on all the circumstances of the
case and is characterized by absence of an arm’s-length rela-
tionship found among unintegrated companies.’’ NLRB v. Al
Bryant, Inc., 711 F.2d 543, 551 (3d Cir. 1983).
It appears clear that, based on the above evidence, there
is an extensive interrelation of operations between the four
companies. The nature of the operations of News 12, requir-
ing the technical services of RNC, the management of Rain-
bow and the overall supervisory hierarchy exercised by Ca-
blevision, are all necessary in order to operate a 24-hour-a-
day television station.
Management at Cablevision, Rainbow, RNC, and News 12
all interact to affect the status of the News 12 employees.
This is illustrated in the decisions to lay off and the decisions
concerning benefits. The evidence thus establishes that News
12, RNC, Rainbow, and Cablevision are a single-integrated
business enterprise and a single employer. Hydrolines, supra.
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All dates hereafter are in 1991, unless otherwise stated.
4 The decision found appropriate a unit essentially of all news de-
partment employees of News 12 engaged in the gathering, prepara-
tion, and presentation of news reports, and all studio technicians,
video engineers, and master control room technicians employed by
Rainbow, excluding on-air reporters.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Survey of Employee Dissatisfaction
Rainbow President Patrick testified that a few months after
her January 1990 arrival at Rainbow, she became aware that
employees were dissatisfied with working conditions at News
12, and authorized a study of the situation. During August
1990, a survey of 21 News 12 employees was conducted,
during which employees’ opinions were obtained concerning
a wide variety of work-related issues, such as management’s
attitude toward employees; training and promotional opportu-
nities; and effectiveness of the organization. Employees
could also appraise their supervisors.
In a report on the results of the survey to Patrick, it was
noted that employees complained about their low salaries.
Among the improvements suggested was that the salary
structure be reviewed, and that positions be graded similar to
the RNC pay program. It was noted that action be taken
quickly.
In October 1990, management proposed the formation of
committees to discuss and recommend solutions to the prob-
lems revealed by the survey. A proposed time table sug-
gested that by late January 1991,3 final action would have
been taken on the committees’ recommendations.
A general meeting was held in late November or early De-
cember, informing the newsroom of the results of the survey
committees, which included employees, were then formed.
In February, two committees submitted their reports to
Patrick. They were the (a) work environment committee,
which was concerned with the condition of equipment and
materials used by News 12 employees, and whose report ad-
dressed the issue of low pay; and the (b) communications
committee which dealt with the areas of communication, in-
cluding computerization, job performance and employee
structure, and compensation. Suggestions for improvement
were made by both committees. Patrick then asked Norman
Fein, the news director of News 12 to analyze the reports
and submit a plan.
Thereafter, on March 14, Fein submitted a report to Pat-
rick, entitled ‘‘Rainbow human resources initiatives.’’ The
report categorized the areas of concern set forth in the 2
committee reports into 20 ‘‘projects,’’ including compensa-
tion, computerization, and RNC/News 12 personnel. Each
project consisted of management representatives of News 12,
and most of the projects had representatives from Cable-
vision, Rainbow, and RNC, where appropriate.
The main thrust of the project concerning compensation
was to obtain information from comparable news organiza-
tions for comparison with News 12 salary structure; staffing
levels and experience; and industry downsizing, including
layoffs. That project was not completed by April 19, as sug-
gested in the report. A compensation survey form was pre-
pared for 36 supervisory and nonsupervisory positions at
News 12, but there was no evidence that the survey was ever
completed by the suggested date of April 17.
It should be noted that although the IBEW began its cam-
paign at this point in News 12’s self-appraisal, nevertheless,
Respondent’s work on the initiatives and projects, set forth
above, continued. They will be discussed, infra.
The General Counsel argues that Respondent’s actions
thereafter, regarding initiatives and layoffs, were a response
to the union campaigns, while Respondent asserts that its ac-
tions taken during the campaigns reflect programs set in mo-
tion prior to the advent of the IBEW, as set forth above.
B. The Unions’ Campaigns and Respondent’s Reaction
Sometime prior to April 15, Hardie Mintzer, an assign-
ment manager of News 12, was informed by his supervisor,
Fein, that the technical employees were attempting to form
a union. Mintzer was asked to remain alert and ‘‘see what’s
happening.’’ Fein suggested that Mintzer cancel the next
‘‘pizza meeting’’ then scheduled for April 15. Those meet-
ings were ‘‘gripe sessions’’ at which different groups of em-
ployees from different departments, but with similar interests,
discuss their common problems over pizza. The meeting was
canceled.
By letter dated April 29, addressed to Fein at News 12,
the IBEW’s attorney advised that that Union had obtained
signed authorization cards from a majority of employees em-
ployed by News 12 in a unit consisting of photographers,
editors, ENG cameramen, truck operators, and graphic artists,
and requested a meeting to negotiate a collective-bargaining
agreement.
On May 2, the IBEW filed a petition for representation
with the Board, seeking the same unit as above. A represen-
tation hearing was held in May and June at which the IBEW
amended its petition to include additional classifications of
News 12 employees, and certain categories of RNC employ-
ees. Respondent’s position was that all employees involved
in news gathering and news presentation, employed by News
12 and RNC, should be included within the unit. On March
20, 1992, a Decision and Direction of Election was issued.4
1. The communications between Respondent and
its employees
Respondent’s representatives communicated with employ-
ees by letter and orally. Numerous conversations occurred
between them in the summer of 1991. The General Counsel
has alleged that certain communications constitute unfair
labor practices of various types. Specifically, the complaint
alleges that letters written by Fein and News 12 Director of
Administration Albergo violated the Act, and that additional
violations of the Act were committed in the course of con-
versations with employees by officials Albergo, Gregg Bur-
ton, Milan Krainchich, Louis Giamanco, Glenn Fishkin, and
Edmund Bortell. A statement allegedly made by Mark
Ambrico was not alleged in the complaint, but it will be dis-
cussed also. Respondent finds nothing improper in their con-
tent or implication. Because of their number, they will be set
forth by supervisor and discussed.
2. Credibility
With respect to credibility, the testimony of the employee
witnesses and company officials as to specific statements and
conversations was sometimes sharply contradictory of each
55RAINBOW NEWS 12
other, and sometimes contained subtle differences. In deter-
mining credibility in such instances, I have made inferences
based on what I believe occurred, taking into consideration
undisputed material set forth in Respondent’s letters to em-
ployees, and the reasonable likelihood that certain statements
would have been made.
Generally speaking, as to all these allegations, it is a viola-
tion of Section 8(a)(1) of the Act for an employer to interfere
with, restrain, or coerce employees in the exercise of their
rights to organization. However, although employers need
not remain silent in the face of a union campaign, they may
not, pursuant to Section 8(c) of the Act, threaten reprisals or
promise benefits.
On May 10, Fein sent a letter to all News 12 employees,
which informed the workers that the IBEW had petitioned
for an election, and noted that in the past, Cablevision em-
ployees had rejected representation by the IBEW. It further
stated:
This is an especially bad time to be mistaken about
unions. Advertising revenues are seriously below expec-
tations, expenses are up, and as we have said to many
of you, we are trying to maintain and improve News
12 against a tide of red ink. In a weakened economy,
the television industry, including cable and news orga-
nizations in particular, have been hard hit. Channel 21
and other Local 1212 companies have laid off staff.
News 12 has not yet laid off anyone.
That quoted paragraph has been alleged as an unlawful
threat of layoff if the employees selected the IBEW as their
representative. Respondent asserts that it constitutes a state-
ment of ‘‘economic fact’’ and represents protected speech,
arguing in its brief that, at most, it contains an ‘‘implied cau-
tion against what might possibly add to economic burdens
during a stressful economic period.’’ I reject that argument.
An employer may . . . make a prediction as to the pre-
cise effects he believes unionization will have on his
company. In such case, however, the prediction must be
carefully phrased on the basis of objective fact to con-
vey an employer’s belief as to demonstrably probable
consequences beyond his control. [NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969).]
Fein clearly tied the Union’s advent to the possibility that
layoffs of employees may take place. Although he noted
News 12’s economic condition, he made a connection be-
tween the employees’ desire to be represented by a union
with the possibility of their layoff. The letter suggests that
unionization, by itself, could lead to layoffs, without stating
any objective fact which would support that belief. I accord-
ingly find that the letter constitutes an unlawful threat to lay
off employees.
On May 13, Margaret Albergo was appointed by Patrick
as the News 12 director of administration. She had been an
employee of Cablevision, in various capacities, since 1976.
In the letter appointing her, Patrick announced that Albergo
would be responsible for organizing and implementing ‘‘the
many improvement projects now underway at News 12 and
those expected in the near future.’’
The General Counsel argues that Albergo was appointed to
undermine and defeat the IBEW effort to organize the em-
ployees.
On May 24, Albergo sent a letter to News 12 employees,
in which she stated that she was aware of certain complaints
of the employees, and that low morale may have led them
to seek union representation. She asserted that the complaints
or issues she has heard could be corrected ‘‘by working to-
gether.’’ She further stated that employers are not required
to grant the wage requests sought by a union in negotiations,
adding that often, negotiations never end in a contract, but
just ‘‘drag on and on’’ and ‘‘while they do, there are some
big obstacles to giving benefits to union people that can eas-
ily be given to non-union people.’’ The letter ended by ask-
ing ‘‘if the union isn’t the answer, what is? I would like to
discuss my ideas with you. I also look forward to discussing
yours.’’
Thereafter, Albergo met with virtually all News 12 em-
ployees, either singly or in small groups. At times, there was
a line of people outside her office waiting to see her.
In another letter dated June 3, Albergo recounted an in-
stance where during the course of negotiations, employees
affected by the situation ‘‘got tired of being frozen out of the
progress others made, so they filed a petition with the Labor
Board and threw the union out.’’ She thanked employees for
talking to her ‘‘about what needs to be changed at News 12.
I wish that those who have not yet spoken to me will do so
soon.’’ Her letter concluded by saying that ‘‘we need to keep
our lines of communication open. Let’s continue to talk.’’
a. Margaret Albergo
Albergo testified that upon her start of work for News 12,
she was briefed by company counsel, William Englander, on
the conduct of the Respondent’s campaign. She was made
aware of the Company’s obligation not to violate the Act by
threatening employees or promising benefits. She further stat-
ed that she had ‘‘many, many’’ conversations with News 12
employees concerning their jobs, the problems they experi-
enced, and the News 12 operation itself. She stated that her
purpose in meeting with employees was to get to understand
the operation and the employees, and to learn what some of
the problems were, and also to learn the employees’ com-
plaints. She stated that she was instructed to tell the employ-
ees that she could not raise the subject of the Union, but if
the employees did so, she would listen to what they had to
say.
Albergo stated that the most frequently discussed topic as
to which employees had the most questions concerned sala-
ries and the ‘‘pay program.’’ She further stated that ‘‘every-
one’’ was aware that President Patrick was working on a
comparability study, and that she told them that Respond-
ent’s finances probably would be able to support that pro-
gram as a long-term goal, but that nothing could be done
about it in the short term.
Generally, Albergo denied making any threats or promises,
stating that she was aware that to do so would constitute un-
fair labor practices.
Employee Arthur Daley testified that he had dozens of
conversations with Respondent’s officials concerning the
Union. The first, with Albergo, was in mid-May, when he
asked her why she was appointed to News 12. She explained
that she was there to learn why there was poor morale
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
among the employees, and to provide a sounding board for
employees to speak about improving working conditions. She
also told Daley that she was there to ‘‘get to the bottom of
the union thing,’’ to learn why matters got so bad that em-
ployees turned to a union. Daley further stated that Albergo
told him that Cablevision Chairman Charles Dolan would
shut News 12 before he would ‘‘let a union in.’’ Daley testi-
fied that Albergo also asked him, in another conversation, to
have other employees speak with her about their problems at
News 12, and their reasons for seeking union representation.
Daley agreed to do that.
A couple of weeks later, according to Daley, Albergo
asked him what the ‘‘feeling’’ was among certain groups of
employees, such as photographers, camera people, graphic
artists and editors, concerning the Union, and whether those
groups supported the Union. He reported that the feeling was
‘‘50–50’’—which he explained by saying that the employees
were willing to listen to the Union and to Respondent.
Daley stated that in June, Albergo told him that salaries
and working conditions would improve once the ‘‘union
problem’’ was resolved, adding that she should not be quoted
since that would give the appearance that she was trying to
bribe employees to vote against it.
Daley testified on cross-examination that during his con-
versations with Albergo concerning his low salary, she told
him that News 12 could not afford a pay raise, but that a
long-term goal would be for the Company to become profit-
able and make improvements. He conceded that Albergo told
him that the pending union petition made it ‘‘difficult’’ to
discuss the matter.
Albergo testified that she had a personal relationship with
Daley and his wife, who worked as Albergo’s secretary at
Cablevision, and for Albergo in a clothing business she oper-
ated. Albergo admitted that Arthur Daley confided in her
about personal matters. Albergo denied telling Daley that
Dolan said he would shut News 12 if a union was selected
by the employees. She had no reason to believe that the
Company would close. She also denied asking Daley to have
employees see her, or for their feelings concerning the
Union, since there was no dearth of employees who ap-
proached her following her written invitations of May 24 and
June 3, who readily expressed their feelings concerning the
Union and the News 12 operation. Nor did she tell Daley
that things would get better once the union situation was re-
solved, since she knew that News 12 was not financially able
to ‘‘just make things better.’’
I credit Daley’s version of these conversations. He testified
in a forthright manner about the personal relationship he had
with his wife and Albergo. It is unlikely that he would testify
falsely about someone who employed his wife in a private
venture, and with whom he shared confidential concerns.
These conversations occurred in mid- to late May, apparently
prior to the time that Albergo sent her letters of May 24 and
June 3, and prior to the time when she began receiving visits
from employees who were allegedly eager to share their feel-
ings concerning the Union with her.
Albergo’s conversations with Daley are alleged as unlaw-
ful interrogations and solicitation of employee grievances. In
order to prove a violation of the Act, interrogation must be
found to be ‘‘coercive’’ considering all the circumstances of
the conversation. Rossmore House, 269 NLRB 1176 (1984);
Sunnyvale Medical Center, 277 NLRB 1217 (1985). The
issue is whether the interrogation reasonably tends to re-
strain, coerce, or interfere with employees’ rights guaranteed
by the Act, including the background, the nature of the infor-
mation sought, the identity of the questioner, and the place
and method of questioning. Another relevant factor is wheth-
er the employee was an open and active union supporter.
Kellwood Co., 299 NLRB 1026 (1990).
Albergo’s interrogation of Daley consists of her asking
him how others felt about the Union, and whether they sup-
ported the Union. It is improper to inquire about the union
sentiments of others. This interrogation of an individual who
was not an open union supporter took place in the office of
a high Respondent official. Although Daley may have been
in Albergo’s office to discuss personal matters, in a friendly
and low-keyed manner, nevertheless, Albergo’s use of her
close relationship with Daley was designed to discover the
extent of union organization among the employees and to im-
press on them the seriousness of the situation. Crown Cork
& Seal Co., 308 NLRB 445, 452 (1992). In this regard, I ac-
cordingly find that Albergo’s interrogation of Daley violates
Section 8(a)(1) of the Act. I also find that her request of
Daley to have other employees visit her to learn their reasons
for seeking union representation similarly violates the Act. In
this regard, I find that Albergo’s quotation of Dolan that he
would shut News 12 before he would let a union in con-
stitutes an unlawful threat to close the facility in the event
of unionization. I do not find that Albergo solicited Daley’s
grievances.
Employee Robert Johnson testified that in May or June,
Albergo asked him to speak with her in her office. After dis-
cussing their backgrounds, Albergo asked her what he
thought of ‘‘this union thing.’’ Johnson was uncomfortable
with the question since he knew of the Company’s position
opposing the Union, and he accordingly spoke of problems
at News 12, including his dissatisfaction with management
and his low salary.
Albergo discussed Cablevision’s history with unions, and
noted that she was hired to have the operation run smoothly,
and ‘‘hopefully avoid the union situation.’’ She told Johnson
that Dolan was ‘‘infuriated’’ with the management of News
12, and with the fact that employees sought union representa-
tion.
Johnson further testified that about 1 week later, she called
him into her office, and asked what he thought of Fein’s let-
ter of May 10, set forth above. That question is alleged as
an unlawful interrogation. Johnson replied that he and others
believed that the letter was heavy handed and improper.
Albergo answered that the Union would not be good for him,
adding that she has been talking to ‘‘people’’ and formulat-
ing a plan to ‘‘make things right.’’ Albergo also showed him
other letters and asked his opinion of them.
Albergo denied asking Johnson about the Union, or asking
what he thought of Respondent’s letters to employees.
I credit Johnson’s version of these conversations. In her
May 24 letter to employees, Albergo invited employees to
discuss matters with her in her office. The letter suggested
that low morale may have driven employees to seek union
representation, and that there may be an alternative to a
union shop. It is clear that Albergo’s invitation was not sim-
ply to engage in idle chat. She sought to learn why employ-
ees went to the Union. Accordingly, it is likely, and I find
that Albergo asked Johnson what she thought of the ‘‘union
57RAINBOW NEWS 12
thing,’’ and his opinion of the Fein letter, which I have
found is itself an unlawful threat. Such a question constitutes
unlawful interrogation about Johnson’s union sentiments.
b. The allegedly unlawful memoranda
In addition to the letter of May 10, set forth above, which
has been alleged as a violation, three other memoranda,
issued at about this time by Albergo to all News 12 employ-
ees, are also so alleged.
Albergo’s letter of June 26 advised the employees that the
representation hearing had closed, and criticized the IBEW
for publicly distributing a hearing exhibit containing salary
information. She stated: ‘‘What are they proving? Each indi-
vidual knows what he/she’s earning and the Company knows
that something has to be done about it.’’
In her letter of July 10, Albergo noted that employees
have asked the following questions while awaiting the
Board’s Decision and Direction of Election. The letter stated,
in relevant part:
Why won’t the company make us an offer to keep
the union out? I asked legal counsel and I was told that
it would be unlawful for the company to do that. . . .
An employer’s promise or grant of benefits violates
Section 8(a)(1) and constitutes interference if made for
the purpose of inducing employees to vote against the
union.
As an example, the company would violate the law
if it announced a new improved wage and salary pro-
gram at this time.
What if the union no longer had any support and de-
cided it did not want to go through with the election?
Suppose the union just went away . . . changes in ben-
efits could be made. Also, if there is no election, the
News 12 and Studio Operations staff could ask Local
1212 (or any other union) to return at any time and pe-
tition for an election.
. . . .
What if the union wins the election? . . . No basic
changes could be made unless both the company and
Local 1212 were in agreement—no agreement, no
changes. Local 1212 would become the exclusive bar-
gaining representative so that there could be no individ-
ual negotiations, arrangements or rewards without union
approval. Of course, employees not involved in the
Labor Board election would be free of those restric-
tions.
. . . .
At the end of a year, there are procedures for you
to seek an election to get rid of the union but it’s quite
a hassle . . . .
. . . .
The information in this letter should help each of us
to make an informed choice. As the decision whether
to support Local 1212 impacts on all of us, we should
not allow it to be made for us by anyone else.
Both the above letters are alleged as unlawful promises of
a wage increase if the employees rejected the IBEW as their
bargaining representative. The June 26 letter’s reference that
the Employer knows something has to be done about its em-
ployees’ wages is a vague reference that Respondent was
aware, as indeed it was, that employees had complained
about their low wages. As such, the statement was not a
promise of benefit tied to the Union’s defeat. The July 10
letter constituted a lawful explanation of an employer’s rights
and responsibilities once a union petition is filed. Fern Ter-
race Lodge, 297 NLRB 8 (1989). It did not promise that
wage increases would be given, and even if such could be
implied, it did not connect such action to the defeat of the
union. Sunnyvale Medical Clinic, 277 NLRB 1217, 1223
(1985).
On July 25, Albergo sent a letter, noting that ‘‘serious fi-
nancial difficulties are being experienced at most television
news operations. These troubles have been brought on by es-
calating costs and decreasing advertising revenues in the
present economic environment.’’ The letter further states:
We have been impacted by the same problems. Up
to now we had hoped it would not be necessary to take
any of the cost-cutting actions other companies have
taken. Regretfully, that no longer holds.
Downsizing, reorganizing, and consolidating oper-
ations with existing facilities, wherever located within
the Cablevision family, are steps we can take.
The letter further noted that various other networks and
television stations had announced plans to close certain city
bureaus, reduce staff, eliminate jobs, and reduce salaries.
Twenty one pages of news articles and press releases were
attached to the letter.
That letter is alleged as an unlawful threat of job loss be-
cause employees sought union representation.
Albergo’s explanation of that letter was that it constituted
notice to News 12 employees that layoffs would occur for
financial reasons, and to reassure advertisers and the news
media that News 12’s response to economic pressures was
the same as other news organizations.
In Sheraton Hotel Waterbury, 312 NLRB 304, 339 (1993),
the employer, prior to a Board election, distributed flyers
with the heading ‘‘IS THIS UNION JOB SECURITY? . . .
DON’T LET THIS HAPPEN HERE!’’ together with two
newspaper articles detailing the closings of two area hotels
for financial reasons. The Board found that nothing in the ar-
ticles suggested that unionization played a part in the hotels’
closings. Similarly, Albergo’s letter and attachments do not
suggest that Respondent would lay off employees if the
IBEW represented the employees. ‘‘Respondent has the right
to give employees information with respect to industry con-
ditions, and was merely stating ‘economic reality’ by inform-
ing employees of these events.’’ EDP Medical Computer
Systems, 284 NLRB 1232, 1264 (1987). I have found, infra,
that 1 month prior to the issuance of this letter, Respondent
lawfully decided to lay off employees. I accordingly find no
violation in Albergo’s letter.
c. Albergo’s further conversations with employees
Employee Johnson further testified that at a meeting with
Albergo, she showed him the July 25 letter containing the
newspaper articles, told him that Cablevision assembled a
‘‘team of attorneys’’ and put an ‘‘unlimited’’ budget on mak-
ing sure that the union was not successful; and that ‘‘heads
would roll.’’ They also discussed various scenarios which
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would cause employees to drop their interest in the IBEW,
such as: terminate Fein, employees ‘‘drop’’ the petition and
give Respondent time to make a salary offer, and if the offer
was not acceptable, ‘‘re-petition’’ the Union, and continue
the union campaign as before.
Johnson replied that the employees had no confidence in
management, and that since nothing had been done since the
time that Albergo was appointed, they did not believe that
anything positive would occur thereafter. This apparently re-
ferred to Johnson’s awareness of the committees formed in
1990 to suggest improvements in News 12 operations, and
the fact that he did not see all the improvements imme-
diately. He said that he would tell the employees of the offer.
Johnson testified on cross-examination that he spoke with
Albergo in the hope that she would remedy the complaints
he had. She told him that she was not permitted to bring up
the topic of unions, but that if he wanted to discuss it, that
would be all right. He stated that, in an attempt to ‘‘pres-
sure’’ her, he told her that if she wanted to avoid the Union
she would have to make changes quickly, and that if changes
were not made, he would vote for the Union. Albergo replied
that she was there to do something about these problems.
This conversation has been alleged as an unlawful promise
to get rid of an unpopular supervisor if the employees aban-
doned the IBEW’s organizing drive, and the solicitation of
an employee petition to get rid of the IBEW, and a promise
of a wage increase if they did so.
Albergo denied making the offer of terminating Fein, or
a salary offer, as testified by Johnson. She testified that she
knew that she could not offer the employees anything, and
that such an offer would be ludicrous: the employees would
be taking the entire risk simply on the employer’s promise.
Similarly, Albergo denied saying that heads would roll.
I credit Johnson’s version of the conversation, but never-
theless find no violation. There was an active give and take
in this conversation, with Albergo properly prefacing the
conversation by telling Johnson that she could not discuss
the Union. Johnson apparently then discussed his complaints,
which included pay and his dissatisfaction with Fein, which
had been the subject of his discussion with her in May or
June, supra. McDonald Land & Mining, 301 NLRB 463
(1991). It is not clear who offered the scenario set forth
above, but Johnson stated that he sought to ‘‘pressure’’
Albergo into quickly making the changes he sought. Based
on these factors, I cannot find that the General Counsel has
established that Albergo made any improper promises or so-
licitations.
Employee Frederick Helm testified that he spoke with
Albergo in her office. Albergo told him that management
was aware of, and wanted to address the problems at News
12, such as salary. Helm was unsure who brought up the
topic of unions. Albergo told him that the Employer could
not make any salary adjustments or other changes then be-
cause a petition was pending. Albergo also told him that if
a union election was conducted, the Union would represent
the employees for 1 year, with no guarantee that agreement
would be reached on a contract. Albergo then explained that
the employees could ask the Union to withdraw its petition,
and that, after doing so, the Employer could deal with the
employees, could correct the problems, and if the Employer
did not make satisfactory changes, the employees could im-
mediately ‘‘re-petition’’ the Union.
Helm further testified that Albergo asked about his career
goals. He said that he would like to produce commercials.
Albergo then gave him the name of someone to call at
Cablevision’s creative services department. This has been al-
leged as an unlawful solicitation of grievances.
Albergo testified that Helm asked her how the collective-
bargaining process worked. He also asked what would hap-
pen if employees did not want the union. She told him to
communicate that to the Union. Albergo denied saying that
if the employees asked the Union to withdraw its petition,
management and the employees could work things out. He
asked whether if the employees did so, could the Employer
do something about salaries and other problems. Albergo ex-
plained that if the petition was removed, the Employer ‘‘had
a different circumstance in which to deal,’’ but in any event
News 12 was financially unable to improve salaries at this
time—but hopefully it could do so in the future.
Albergo testified that Helm brought up the topic of a ca-
reer move. Albergo told him to check the job postings, and
also gave him the names of people in the areas that he was
interested in.
I cannot find a violation in Albergo’s conversation with
Helm. Even accepting Helm’s version of the conversation,
Albergo properly set forth Respondent’s legal obligations
once a petition was filed. Although Albergo mentioned that
employees could ask the Union to withdraw its petition, it
is unclear as to who raised that question. Nevertheless, this
comment came in the context of Albergo’s explanation of
representation procedures. I also cannot find that Albergo’s
inquiry to Helm as to his career goals and the suggestion of
people to call who might assist him, constituted an illegal so-
licitation of grievances. This was not a grievance that the
employer remedied. This was not a grievance at all. It was
a proper inquiry as to Helm’s future plans in the industry.
There is no prohibition against an employer official asking
an employee a question about his career interests. Albergo
did nothing further than suggesting who he might call. She
did not take any action to grant him any benefits.
David Stringer, a satellite truck operator, testified that in
the summer of 1991, Albergo told him that she was ap-
pointed to work at News 12 to address some of the problems
that had ‘‘built up’’ over time. Albergo then asked if Stringer
had any particular problems. Stringer mentioned pay, and
other matters. Albergo replied that the Employer was work-
ing on a package which would include a salary adjustment,
but that she could not discuss it at that time because of the
‘‘ongoing situation.’’ In the past, Stringer had complained to
management about his not being compensated for extra work
he performed.
Albergo testified that Stringer initiated this conversation
with her, in which he raised the topic of pay. She did not
ask him what his problems were. Albergo denied telling him
that the Employer has a pay package which she could not
discuss at that time. She stated that she told him that she was
listening to what he was saying, but that News 12 did not
have the money, and she could not get into a ‘‘detailed con-
versation’’ with him. I find, as alleged, that this constitutes
an unlawful promise of a wage increase. It constitutes a
‘‘teasing promise of an unspecified wage increase in viola-
tion of Section 8(a)(1) of the Act.’’ Family Foods, 300
NLRB 649, 662 (1990); Fontaine Body & Hoist Co., 302
NLRB 863, 869 (1991).
59RAINBOW NEWS 12
Stringer was subpoenaed by the IBEW to appear at the
representation hearing. He told Albergo that he had been
subpoenaed, and had to go to the hearing. Albergo then told
him that in an automobile accident case, a party will ask a
witness who is most favorable to its side to attend the pro-
ceeding. Albergo denied making the car analogy. The com-
plaint alleges that Albergo thus threatened Stringer with un-
specified reprisals because he expected to testify for the
IBEW. I disagree. No threat was made. At most, this testi-
mony proves that News 12 knew that Stringer, who did not
testify at the representation hearing, supported the IBEW’s
cause.
d. The removal of union literature
Stringer also testified that while at the Respondent’s facil-
ity, he saw Albergo removing a union letter from a bulletin
board. Albergo told Stringer then that the IBEW could not
use company resources. Stringer noted that the letter was on
union letterhead. Albergo then said that ‘‘you can’t be doing
this on company time,’’ to which Stringer replied that ‘‘we
have breaks.’’
The evidence establishes that notices of all kinds, includ-
ing notices of parties, vehicles for sale, and company memos,
have been posted on company bulletin boards.
This has been alleged as an unlawful, disparate enforce-
ment, and application of a rule prohibiting the posting of
union literature on company bulletin boards, while permitting
the posting of nonunion literature.
Albergo denied removing any union literature from com-
pany bulletin boards, or speaking to him about that topic.
However, she did state that she once saw Stringer leave the
copy machine with a stack of papers bearing the union logo.
She told him that he could not use the company copy ma-
chine to copy union literature. He said, ‘‘[O]kay.’’ Nothing
further happened regarding that incident.
I credit Albergo’s denial that she removed a union notice
from the bulletin board. Stringer’s testimony that Albergo
told him that the Union cannot use company resources, and
that he could not do this on company time does not logically
seem to relate to Albergo’s removal of a union notice. No
company resources were being used in the posting of the no-
tice, and Stringer did not testify that Albergo saw him doing
anything on company time. Rather, Albergo’s testimony that
she warned Stringer not to use company resources in copying
union literature was more likely the reason for Albergo’s
comment. In addition, Stringer’s admission that he was told
that he should not be doing something on company time
probably refers to his copying the union materials. Stringer’s
admitted reply, that ‘‘we have breaks,’’ confirms that this is
the proper interpretation to be given to this incident. More-
over, there has been substantial testimony that union notices
remained on bulletin boards without being removed. I ac-
cordingly find no merit to this allegation.
It was also admitted that Respondent Attorney Charles
Forma removed union letters from employee mailboxes and
destroyed them. At that time, company memos and personal
messages had been permitted to be placed in employee mail-
boxes. Forma was immediately reprimanded by higher man-
agement for this action.
This has been alleged as the disparate enforcement and ap-
plication of a rule prohibiting the distribution of union lit-
erature, by confiscating and destroying prounion literature.
There had been no restriction on the use of the mailboxes
prior to the union campaign, and Respondent’s agent altered
this policy by the confiscation of union literature from em-
ployee mailboxes. This conduct violated employees’ rights to
obtain union-related information. Bon Marche, 308 NLRB
184, 199 (1992); Filene’s Basement Store, 299 NLRB 183,
209 (1990).
e. Albergo’s further conversations with employees
Thomas Rizzuto testified that Albergo asked him to see
her in her office in May 1991. She raised the subject of
unions by telling him that the Union is not a ‘‘cure all’’ for
all the problems at News 12. She added that management
knows that it made mistakes and was willing to rectify them.
Albergo then said that News 12 has a ‘‘package’’ for the em-
ployees, but that she could not elaborate on it because to do
so would violate the labor law. She mentioned that prior to
her arrival at News 12, the Employer had begun to work on
pay comparisons with similar jobs in other markets, and a
long range goal was to raise salaries. They then spoke about
other matters, and Rizzuto volunteered that he was subpoe-
naed by the Union to attend the representation hearing.
Albergo then told him that he did not have to appear if he
did not want to.
Two weeks later, Rizzuto asked Albergo, why, if News 12
was willing to make changes in their behalf, why was it op-
posed to union representation or a contract. Albergo replied
that management was opposed to ‘‘third party intervention.’’
Albergo testified that Rizzuto initiated conversations about
the Union, and often complained to her about his low salary,
and his belief that management would not remedy that prob-
lem unless it was forced to do so by a union. Albergo told
him that News 12 could not afford to give him any salary
increases at that time, but that a long range goal, when af-
fordable, was to improve salaries and correct technical and
space problems. She conceded that he asked that if the em-
ployer would make these changes eventually, why not have
a union contract to memorialize those matters. Albergo re-
plied that those matters had to be negotiated between the
Union and management. Albergo specifically denied raising
the subject of unions with Rizzuto. Albergo denied telling
Rizzuto that he did not have to attend the hearing.
I credit Rizzuto’s testimony. Based on Albergo’s version
of the conversation, it appears likely that she would have re-
sponded more positively, as testified by Rizzuto, to his chal-
lenge that Respondent would take no action unless forced to
do so by the IBEW. Albergo clearly solicited Rizzuto’s
grievances and then impliedly promised to rectify them by
telling him that the employer wanted to resolve its mistakes,
and that it has a ‘‘package.’’ This constituted an implied
promise to rectify the grievances the employees had concern-
ing their pay. Escada (USA), Inc., 304 NLRB 845, 850
(1991). Albergo’s statement concerning Rizzuto’s compliance
with the subpoena has been alleged as a threat of unspecified
reprisals because he was testifying for the IBEW. This alle-
gation has not been established. She was not urging that he
disobey the subpoena, and no further discussion was had on
the matter.
Employee Richard Shepard testified that in the summer of
1991, Albergo asked him if he wanted to talk to her. He
agreed. Albergo asked him how things were going. He asked
if she meant the union situation. She said, ‘‘[Y]yes.’’
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shepard told her that big changes were needed, and if the
Employer did not do it, then the employees would have to
accomplish it. He then mentioned his complaints: salary, and
the lack of well defined job descriptions. Albergo replied that
a union could not guarantee that his concerns would be rem-
edied, or that wages would rise. She added that management
was trying to ‘‘make things better’’ and ‘‘try to smooth
things out.’’ She also said that as long as a union ‘‘situa-
tion’’ is pending, the employer could not make any offers to
change the way things currently are. Shepard asked why he
should believe that management is trying to make things bet-
ter. Albergo responded that he should give her a chance.
Albergo testified that Shepard came to see her. She does
not recall if she asked him how things were going. He raised
the subjects of unions and pay. In response to his complaint
about low pay, Albergo told him that News 12 could not af-
ford to do anything about salaries at that time, but that salary
improvement was a long range goal, and in any event, they
could not get into a detailed conversation about it.
This conversation is alleged as, and I find, that it con-
stitutes improper interrogation. Albergo invited Shepard into
her office in order to provide a forum to discuss the Union.
I do not credit her testimony that he asked to see her. She
clearly sought out employees shortly after her hire in order
to learn what problems they had, and to see what she could
do about them. An unlawful interrogation may also take
place, as here, where Shepard raised the issue of the Union.
He simply anticipated the purpose of the meeting. Albergo’s
question of him as to how things were going merely pro-
vided Albergo’s opening to discuss the union matter.
Employees James Bono and Nick Somma went to
Albergo’s office in early June 1991 to discuss their unhappi-
ness with working conditions at News 12, and to attempt to
remedy those problems. They specifically told Albergo that
salaries were a problem. Albergo replied that Patrick was
looking through the Company for $1 million for raises for
everyone across the board, and that she was a person who
could get things done. Albergo then told the men that she
was personally opposed to the Union, and told them that one
way to get rid of the Union was to sign a petition. She also
told them that because Cablevision was an ‘‘entrepreneurial’’
company, if a union came in, it would be very difficult for
Dolan to begin new projects. Later that month, Albergo told
Bono that he could get rid of the Union by signing a peti-
tion.
Albergo testified that Bono raised the issue of pay when
she met with him and Somma. She told them that was a long
range goal, but that News 12 could not afford it. She also
refused to conduct a detailed conversation with him about it
while the petition was pending. She denied saying that Pat-
rick was looking for $1 million, or suggesting that they sign
a petition to get rid of the Union. However, she did concede
that Bono told her that certain RNC employees were opposed
to the Union, and asked her what they could do. She told
them to communicate their views to the Union. Bono asked
if those workers should sign a petition, and Albergo replied
that if that is the way they think they should do it, then they
should do it that way, but otherwise she did not know. She
also denied making the remark about Dolan.
I credit Albergo’s testimony. In this instance, Bono and
Somma admittedly visited Albergo, raised the issue of pay
with her, and sought ‘‘remedies’’ for their low pay. There
was nothing improper in Albergo telling them that she was
opposed to the Union. I cannot find that Albergo told the
men that Patrick was looking for $1 million for raises for ev-
eryone across the board, as that figure were implausible
given Respondent’s financial condition. I similarly find im-
probable Albergo’s alleged quote of Dolan that since Cable-
vision was an entrepreneurial company, he would find it dif-
ficult to begin new projects. It is likely that the men engaged
in a vigorous discussion concerning the Union, seeking ways
in which Albergo could ‘‘remedy’’ the problem of low sala-
ries and working conditions, and I find that in this context
the question of the elimination of the Union was discussed.
I find that Albergo did not suggest or encourage that the men
file a decertification petition. Ernst Home Centers, 308
NLRB 848 (1992). Providing employees, in response to their
questions, with general information concerning the filing of
petitions does not constitute a violation of the Act. Lee Lum-
ber & Building Material, 306 NLRB 408, 410 (1992).
Employee Gerard Kaufold testified that in June 1991, he
met with Albergo in order to seek her help in obtaining a
position as an ENG microwave truck operator. She later ar-
ranged that he obtain training for that position. As he left the
meeting, Albergo asked him how he felt about the Union and
inquired as to the attitude of the studio employees. Kaufold
told her that he had many things to consider and many ques-
tions needed answers. Albergo asked him what the questions
were, and offered to answer them. Kaufold answered vaguely
that the employees had not yet decided what to do. Albergo
replied that unions are not as strong as they used to be, and
compared them to a disease that spreads from department to
department, adding that unions were the ‘‘last thing’’ Re-
spondent’s owner would ‘‘stand for.’’ She concluded by say-
ing that it was time to make some changes if the lines of
communication between management and the studio techni-
cians were opened.
Albergo denied asking him his attitude toward the Union
or the attitudes of others. However, she conceded that he
asked her what she personally thought about unions, and she
replied that she did not believe that unionization was in the
best interest of the Company or its employees.
I credit Kaufold. It is unlikely that given Kaufold’s hesi-
tance about responding to questions concerning the Union,
that he would have inquired about Albergo’s personal feel-
ings about unions. Moreover, the Company’s attitude in op-
position to the union campaign was well known. He credibly
testified that after he gave a vague answer to her first ques-
tion, she pressed him further. I accordingly find that
Albergo’s questioning of Kaufold constituted unlawful inter-
rogation concerning his and other’s attitudes toward the
Union. However, I find that her statement that unions were
the last thing Respondent would stand for is too vague to
constitute a violation.
3. The crew meetings
In the summer of 1991, separate meetings were held with
the three RNC crews. Albergo, Gregg Burton, a vice presi-
dent of Rainbow, and Douglas Keck, a vice president of
RNC, attended in behalf of management.
Employee Bono asked Burton why it took so long for
management to visit the crew, and inquired as to why it took
the ‘‘union situation’’ for the Company to show such an in-
terest in them. Employee Gerard Kaufold testified that Bur-
61RAINBOW NEWS 12
5 Kaufold’s initial testimony that Albergo did not say anything re-
garding pay at this meeting does not significantly affect his credibil-
ity.
ton told the members of the B crew that he realized that the
crew had been neglected, but now he sought to focus atten-
tion on them, and that he was listening now to any com-
plaints they had.
Kaufold stated that Albergo said that Respondent was op-
posed to a union, and that the workers should trust manage-
ment, and give it a chance. She added that the Company was
reviewing other news organizations in comparable markets
with a view towards learning how their pay programs were
structured, adding that Respondent was looking into alternate
pay programs for the crews.5 According to Bono, Albergo
said that if the editors and other groups had not contacted
the Union, the Employer would be able to give them raises,
but because the Union was contacted, such raises could not
be given since it was illegal to do so.
Kaufold further stated that employees then asked whether,
if the workers believed that they were ‘‘too far’’ into the
union process, they could halt the union organizing drive.
Albergo replied that if they did not want the Union they
could sign a petition to get rid of it, and after having re-
viewed what management had to offer, they could continue
with the union effort.
At the C crew meeting, the same management representa-
tives were present. Kaufold testified that Albergo was asked
why Respondent was opposed to union representation of its
employees. He also stated that Albergo noted that she was
not permitted to mention specific items, but that Respondent
was looking at sources to fund a new pay program, and that
the employees should give management an opportunity to
make an offer to them. Employee Stephen Rizza testified that
Albergo said that Respondent understood that there were
‘‘problems’’ but it could not do anything then because a peti-
tion had been filed. Rizza asked why it took a ‘‘union
threat’’ for the employer to realize that there was a problem.
Albergo replied that the Union has been successful for him
already because management was meeting with them that
day.
Employee Michael Messina testified that at the meeting
employees said that they deserved higher pay, and they also
spoke about poor working conditions, such as the unavail-
ability of overtime. Albergo said that ‘‘things’’ were not
going to get better if the employees ‘‘continued to petition
for the union.’’ She added that if the employees reject the
Union, it would be illegal for her to say that matters would
improve. Burton added that the employees should not assume
that things will get better if a union was involved. He men-
tioned that Respondent’s employees at Floral Park were in-
volved in a union organizing drive, and when the union lost
the election, certain employees were promoted and received
pay raises.
Employee Lisa Angelini testified that Burton initiated a re-
mark that he would like to make an offer to the employees
but that he could not do so until the ‘‘union thing’’ was
over. Burton asked for a ‘‘chance to make things right,’’ stat-
ing that he knew there were problems with salaries and
equipment. Angelini stated that Albergo, without any ques-
tions being asked of her, mentioned that if a union represents
the employees, their salaries could go up, down, or sideways,
there was no guarantee that their salaries would increase, and
that if a union represented the workers and management was
‘‘forced’’ to pay more, there could be layoffs. She further
said that the employees could ask the union to leave.
Employee Stephen Rizza testified that at the C crew meet-
ing, official Keck said that Dolan liked News 12, but that
Cablevision subscribers would not cancel their subscriptions
if News 12 was taken off the air. It should be noted that
Rizza’s pretrial affidavit contained no mention of Dolan’s
liking News 12.
Employee Thomas Bowler testified that Burton told the
employees that he knew that there were problems at News
12, and that he would like to address them and try to resolve
them, but since a union election was pending, he could not
address any of those problems at this time.
Certain employees were more vocal than others at the
meeting. For example, employee Bono was described as
being very active and inquisitive, Rizza was described by
employees as very active, and ‘‘desperately’’ trying to learn
why management was opposed to a union. He also stood and
waved his arms at one point. In fact, Employer official,
Giamanco, testified that after Albergo or Burton told the em-
ployees that News 12 had no money for raises, Rizza stated
that the salaries are terrible, he did not believe that the Em-
ployer would ever give more money, and the Employer thus
left the employees with ‘‘no choice.’’
Albergo testified that at the meetings she told the crew-
members that she was News 12’s representative who stood
ready to answer any questions about News 12. Essentially
she denied raising the topic of union or pay, stating that em-
ployees raised those issues. She further testified that Kaufold
asked her how to proceed if the employees believed that they
were no longer interested in it. She answered that she did not
know the procedure, but that they should communicate their
feelings to the Union. She denied saying that employees
could petition to get rid of the Union. In this connection it
should be noted that Employer official, Keck, testified that
Albergo said that since a petition brought in a union, a peti-
tion could remove it, but that was up to the employees, if
they wanted to take such action. She told the employees that
management recognized that some job classifications were
below ‘‘market value,’’ and that Patrick was doing a com-
parability study, but that News 12 did not have the financial
ability to implement such a plan, which was a long-term
goal. She also told them that since a petition was pending,
she could not discuss it further. She further denied mention-
ing layoffs or the possibility thereof.
Burton testified that the purpose of the crew meetings was
to answer their questions concerning pay. In response to a
question about pay, he told the assembled crew employees
that management was aware that there were problems with
pay and equipment, and that those problems were being
‘‘worked on.’’ He asked the workers to be patient, and urged
them to trust him, and assured them that things would get
better. Burton further told them that since a union petition
had been filed, he could not give specific details about what
the Company’s plans were, if any, because he was not per-
mitted to ‘‘influence’’ the employees either way. Neverthe-
less, he told them that, in a prior union effort at the RNC’s
location at Floral Park, prior to that petition having been
filed, RNC had been planning to implement a new pay pro-
gram, which was then frozen. He further told them that after
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union lost the Floral Park election, the pay program was
implemented, and since then the employees had been ‘‘very
happy.’’ He added that what occurred in Floral Park is no
‘‘guarantee’’ of what could happen at News 12.
Keck testified that he told the employees at one crew
meeting that RNC was working to resolve the problems in
the News 12 operation, but that there were then no plans to
implement a pay program. Keck denied making the comment
attributed to him by Rizza concerning Dolan liking News 12.
Bortell testified that Keck mentioned that News 12 was in
bad financial shape, that Albergo explained how the union
election process worked, and that employees asked if they
could receive a raise now. Albergo replied that due to the
election petition, News 12 could not give raises that were
‘‘unusually higher’’ than previously given, and even if there
was no pending petition, News 12 was financially unable to
give any raises. At another crew meeting, Burton and
Albergo told employees that Respondent was in poor finan-
cial condition. He denied that Albergo suggested that the em-
ployees might get rid of the Union by signing a petition. He
added that Albergo repeated her statement regarding the
granting of raises. Bortell denied that Albergo said at either
meeting that if certain employees had not contacted the
Union, the employer would be able to give raises.
Louis Giamanco, the operations coordinator for RNC, tes-
tified that at one crew meeting, an employee asked if the
Union could obtain higher salaries for the workers. Albergo
replied that the Employer and the Union would negotiate,
and wages and benefits could go up, down or sideways. An
employee then asked why the Company could not give raises
now. Albergo or Burton replied that News 12 does not have
money for raises, and that it would be against the law at that
time to make any offers.
The complaint alleges that at the crew meetings, Respond-
ent unlawfully solicited grievances and promised wage raises.
Absent a previous practice of doing so, the solicitation
of grievances during an organizational campaign
accompanied by a promise expressed or implied to rem-
edy such grievances violates the Act. . . . It is the
promise, expressed or implied, to remedy the griev-
ances that constitutes the essence of the violation.
Solicitation of grievances in the midst of a union cam-
paign inherently constitutes an implied promise to rem-
edy the grievances. . . . The fact that an employer’s
representative does not make a commitment to specifi-
cally take corrective action does not abrogate the antici-
pation of improved conditions expectable for the
employees involved. [Columbus Mills, 303 NLRB 223,
227 (1991).]
I find that, even based on the testimony of Respondent’s
officials, violations of the Act have been established. First
the meetings were organized allegedly in order to answer
their employees’ questions concerning pay. Even if that were
the sole purpose, the union campaign was raised and dis-
cussed, and the issue of pay was discussed in that context.
Albergo’s admitted remarks to the employees that manage-
ment knew that certain salaries were below ‘‘market,’’ and
that Respondent’s president was doing a comparability study,
but could not afford to implement it at that time, combined
with her refusal to discuss it further because of the pending
petition, held out a tantalizing reward to employees. Family
Foods, supra. Although Albergo did not specifically promise
a pay raise, the promise was implicit in her comments to the
employees. In addition, although not specifically tied to the
Union’s defeat in the election, the connection was implicit in
her mention of the study, and accordingly constituted a
promise of benefits.
Promises of benefits by an employer during an organiza-
tional campaign have a coercive effect because employees
are not likely to miss the inference that the source of benefits
presently conferred is also the source from which future ben-
efits must flow, that may dry up if not obliged. NLRB v. Ex-
change Parts Co., 375 U.S. 405, 409 (1964). The promise
of benefits need not be specific in nature or as to the time
of its implementation, and need not be expressly conditioned
on abandonment of union support. A promise that the em-
ployer would someday better itself and offer the employees
more, was an unlawful promise of future benefits. Permanent
Label Corp., 248 NLRB 118, 131 (1980).
In DTR Industries, 311 NLRB 833 (1993), a case similar
factually to this one, the employer did a comparative wage
survey and determined that the salaries of its employees were
not competitive. Employees then complained about their
wages, and a new wage scale was announced and imple-
mented. The union then filed a petition. The employer sent
a letter to the employees, which, while reciting that it could
not lawfully making changes or promises regarding benefits,
stated that ‘‘we have started to address your concerns,’’ and
that management wanted to grow with the employees, and
pledged to continue listening to their concerns and respond-
ing as completely and as quickly as it could. The Board
found that the letter implicitly promised benefits, including
improved wages, if the union lost the election.
The respondent also answered unlawfully solicited em-
ployee wage complaints by telling employees that raises
were arranged as a result of its wage survey, but could
not be given because the Union’s campaign might make
such increases appear to be bribes. It then granted sub-
stantial wage increases to [supervisory] group leaders.
To the extent that the Respondent’s remarks during the
campaign created the impression that employees might
have received wage increases but for the Union’s pres-
ence on the scene, they constituted a violation of Sec-
tion 8(a)(1) by placing blame on the Union for its with-
holding those increases. [DTR, supra at 837.]
Similarly, in the instant case, Albergo’s admitted an-
nouncement to employees at the meetings that Respondent
was aware that certain salaries were below ‘‘market value,’’
and a comparability study was being done, but that the em-
ployer could not discuss such a program because of the
pendency of the union’s petition, constituted an unlawful im-
plicit promise of benefits.
Similarly, Burton’s admitted remarks that management was
aware of problems with pay, which were ‘‘being worked
on,’’ and his assurance to employees that things would ‘‘get
better’’ also unlawfully impliedly promised improvements.
The fact that Burton refused to give specifics about the Com-
pany’s plans because of the petition does not render his re-
marks lawful, since his recitation of what had happened at
Floral Park could be viewed by the employees here of an ex-
63RAINBOW NEWS 12
ample of what could be expected if they rejected the Union.
Thus, although he told them that what had happened at Flo-
ral Park was no ‘‘guarantee’’ of what could happen here, he
noted that the Floral Park employees were ‘‘very happy’’
with their pay raises following the Union’s election loss.
Thus, the typical employee, although being assured that what
had occurred at Floral Park was not a ‘‘guarantee’’ of what
could happen here, could nevertheless assume that although
not a guarantee, similar pay raises were likely to occur here.
I further find that the crew meetings were held for the pur-
pose of soliciting grievances from the employees. Respond-
ent argues that it had meetings with employees prior to the
advent of the IBEW at which similar matters were discussed.
For example, RNC official Keck testified that in January
1991 meetings were held to address rumors among employ-
ees that there would be a pay raise for the studio crews who
had been transferred, in the summer or fall of 1990, from the
Cablevision to the RNC payroll. At the meeting, the employ-
ees were told that News 12 could not afford to give a pay
raise. Further crew meetings were held in March 1991, at
which the employees expressed disappointment that the RNC
employees were not included in the surveys or committee re-
ports concerned with improving News 12. At the meetings,
the employees inquired as to why they were not included,
and they also discussed crew schedules.
Respondent thus contends that its meetings with employ-
ees held in the summer of 1991 are simply a continuation
of the types of meetings held previously, and accordingly no
violation may be found, even assuming grievances were so-
licited at those later meetings.
I disagree. Prior to the advent of the IBEW there had been
no formal, organized sessions of the type, addressed by top
management officials, as occurred prior thereto. The meet-
ings held in January and March 1991 were conducted by im-
mediate supervisors to answer their employees’ questions
about matters of immediate concern to them, including their
transfer from one payroll to another and its effect on their
salaries. Similarly, the March 1991 meeting was held to ex-
plain why employees were not included in the survey.
In contrast, I find that the purpose of the summer 1991
meetings was to learn why the workers wanted union rep-
resentation, and to give them an opportunity to voice their
complaints so that Respondent could assure them that they
would be rectified. These meetings were held in a formal, or-
ganized manner with top officials of Respondent, some of
whom had never met those workers. A broad range of ques-
tions was invited and answered.
The Board has held that in the absence of evidence of
an established program of grievance meetings, the hold-
ing of meetings during a union campaign at which em-
ployees are encouraged to air grievances constitutes so-
licitation of grievances and an implied promise of cor-
rective action if employees reject the union, thereby
violating Section 8(a)(1). [New Life Bakery, 301 NLRB
421, 427 (1991).]
In this connection, with respect to the solicitation of griev-
ances, Respondent further argues that individual employees’
grievances had been solicited at least since August 1990,
when the employee survey was distributed. It reasons that,
assuming grievances were solicited after the advent of the
IBEW, such solicitation constituted a permissible continu-
ation of its prior practice. I do not agree. The survey was
sent to a small group of 21 employees in a formal way. After
the survey, an organization was established whereby results
of the survey were made known, committees formed, meet-
ings held, top management would be involved, recommenda-
tions made, and remedies announced. In contrast, in the sum-
mer of 1991, all employees were encouraged to meet with
Albergo and other officials of management, and in fact
Albergo met with virtually all of them; the workers were
questioned in individual meetings with top management offi-
cials about their problems and concerns in the context of dis-
cussions concerning the Union. This represents a vast dif-
ference in the way that grievances were solicited, and in the
perception of the employees toward the way in which their
complaints would be treated.
I accordingly find and conclude that at the crew meetings,
Respondent unlawfully promised its employees wage in-
creases and solicited their grievances in violation of Section
8(a)(1) of the Act.
a. Gregg Burton
Burton is the vice president of operations and technical
services for Rainbow.
Employee Frederick Helm testified that he was asked to
meet with Burton. At the meeting, Burton explained that he
learned that no one knew who he was, and he decided to
meet with all News 12 employees and learn about the prob-
lems of the Company. Burton added that the employer is ‘‘in
a bad economy,’’ advertising revenues are down and News
12 is losing money. Burton showed him the news articles
which were attached to Albergo’s July 25 letter which men-
tioned the poor economic situation in the television news in-
dustry and layoffs at certain companies. Burton said that he
was aware that salaries were a problem, but due to the reces-
sion and other economic conditions, News 12 was losing
money and could only give salary raises if employees were
laid off. Burton asked his opinion of that approach, and
Helm agreed with it.
During the conversation, the issue of the Union was raised.
Burton asked where Helm ‘‘stood.’’ Helm replied that he
was opposed to the Union, and that the Company should be
given an opportunity to resolve the problems, and also told
Burton, however, that since he mentioned layoffs, perhaps
the Union was needed. Burton then told Helm to ‘‘get off
the fence,’’ adding that there are many vocal prounion em-
ployees who would be deciding ‘‘our’’ fate.
Employee Bowler also met with Burton pursuant to his di-
rection. Burton showed him the newspaper articles, telling
him that he wanted him to know what the current conditions
were in the television industry. Burton then asked him if he
attended the union meeting at a hotel that week. Bowler said
he had. Burton then asked him what the ‘‘mood’’ was where
he worked. Bowler replied that he did not know.
Burton admitted having individual meetings with employ-
ees in about late July 1991. He denied that employees were
required to attend the meetings. He stated that Supervisor
Milan Krainchich asked employees ‘‘if they were interested’’
in meeting him, or had any questions. Some declined the in-
vitation.
Burton testified that he held such meetings to address
questions raised regarding pay and the union election proc-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ess, and at the meetings he discussed those issues. He asked
them, as an ‘‘icebreaker,’’ how is the morale; how is the
mood; how are you feeling? Employees then told him that
they were unhappy with their salary. When asked about the
union petition, he told them that a petition got the union in,
and a petition could remove it. When asked about salaries,
he said that News 12 could not afford to pay more. Burton
denied saying that layoffs would be needed if salaries were
to be raised, but conceded mentioning layoffs, and referring
to the July 25 letter containing the newspaper articles. He
testified that he told employees to become well informed,
and to attend union meetings if they wished.
Burton denied asking employees where they stood, or tell-
ing them specifically to get off the fence. Later, he admitted
possibly telling them, in effect, to get off the fence because
of the importance of the matter, and conceded telling them
something to the effect that they should not let others deter-
mine their fate.
I credit the testimony of Helm and Bowler. It is likely,
particularly considering Burton’s admitted testimony that he
advised employees not to let others decide their fate, and in
effect to get off the fence, that he would have asked Helm
where he ‘‘stood’’ as a preliminary question. It is probable,
that when hearing Helm’s contradictory positions concerning
the Union, Burton would have urged him to decide the union
issue for himself.
I accordingly find that Burton unlawfully interrogated
Helm concerning his support of the Union. I also find that
Burton’s questions to Bowler as to whether he attended the
union meeting, and his inquiry about the ‘‘mood’’ were
clear, impermissible interrogations concerning his union ac-
tivities and the union sympathies of others. Burton’s question
of Bowler as to how the ‘‘mood’’ was, after his inquiry
about whether Bowler attended the union meeting, was a
clear reference to other employees’ attitudes concerning the
union situation. It would be unusual to ask ‘‘how is the
mood’’ as an ‘‘icebreaker’’ comment to begin a conversa-
tion, as Burton testified.
b. Milan Krainchich
Krainchich is the director of studio operations for RNC.
He supervises the studio staff as to repair and maintenance,
and schedules the crew.
Employee Jamison testified that he was in Krainchich’s of-
fice discussing his upcoming wage review, when Krainchich
showed him a copy of Fein’s May 10 letter, set forth above,
which stated that the IBEW filed a petition, referred to News
12’s poor financial condition, and noted that ‘‘News 12 has
not yet laid off anyone.’’ Krainchich asked Jamison how he
felt about the letter. Jamison replied that he was in favor of
the Union. Krainchich then told him that Charles Dolan hates
Krainchich, and was ‘‘out to get me.’’
Krainchich conceded asking employees if they received
management letters, and if they read them, and agreed that
Jamison was in his office discussing his work, but denied the
rest of the alleged conversation.
Employee Kaufold also testified that Krainchich asked him
to look at the May 10 letter, and also asked what Kaufold
thought of the letter. Kaufold replied that he did not have in-
formation to make a decision. Krainchich denied asking for
Kaufold’s feelings concerning the letter.
Lisa Angelini testified that during a salary review con-
ducted by Krainchich, she asked him why she received only
the standard 6-percent raise, since her evaluation was excel-
lent. Krainchich replied that he could only give her that
amount until the ‘‘union thing is over,’’ and that her raise
was that amount because of the union situation.
Angelini testified that on separate occasions, Krainchich
showed her copies of Albergo’s letters of May 24 and June
26, set forth above, and asked her what she thought about
them. Angelini was noncommittal.
Krainchich admitted speaking to Angelini concerning her
salary review, but denied any discussion of the Union at that
time. He also denied asking her what she thought of the
union letters.
Employee Michael Messina testified that the IBEW was
contacted because the Respondent did not seem interested in
its employees. He stated that, during a conversation with
Krainchich, he was interested in hearing about what occurred
at Floral Park because it was similar to the current situation
at News 12. A conversation then began concerning Floral
Park. Krainchich told him that he would not say whether he
was for or against the Union in 1984 but that certain employ-
ees were promoted after the Union was defeated. He added
that, in his opinion, things would improve if the Union was
defeated now.
Krainchich testified that Messina asked him about the
1984 election, and he replied that he voted, but would not
reveal how he voted. Krainchich conceded saying that the
Employer believed that ‘‘it would be better without the
union,’’ but denied saying that things would be better if the
employees rejected the Union.
Thomas Bowler testified that Krainchich, who was present
with Bortell and Keck, told him that at the time of the 1984
election they let people know where they stood on the union
issue, and that people should let it be known where they
stood. Krainchich added that he could see how ‘‘we have
done’’ since then. Krainchich denied this conversation, say-
ing that he would not have made that last comment since he
resigned from the employer in 1984. However, he conceded
on cross-examination that he remained at Floral Park for 6
months after the election, and received a substantial raise be-
fore leaving.
Employee Jonathan Smilowitz became employed on June
3. He testified that in early August, Krainchich asked him
how he and others felt about the Union, and also asked him
whether he had any problems that he wished to discuss.
Smilowitz replied that he did not know how other employees
felt about the Union and had no problems.
Krainchich denied asking Smilowitz how he or others felt
about the Union. He conceded asking if he had any problems
since Smilowitz was a new employee, and he was concerned
about his training.
I credit the testimony of Jamison and Kaufold that
Krainchich showed them Fein’s letter of May 10. I have al-
ready found that that letter unlawfully threatened layoffs.
Krainchich’s inquiry of them as to what they thought of the
letter constitutes improper interrogation.
I also credit Angelini’s testimony concerning her raise.
‘‘An employer’s legal duty during a pending representational
campaign is to proceed with the granting of benefits in the
normal course of business as if the union were not on the
scene.’’ DTR Industries, supra, 311 NLRB at 836. Although
65RAINBOW NEWS 12
Angelini may have, in fact, received the proper amount of
salary increase, by telling her that her raise would be limited
to 6-percent until the union matter was resolved, and that she
received that amount because of the Union, Krainchich im-
properly informed her that Respondent was withholding a
larger increase because of the Union. 299 Lincoln Street,
Inc., 292 NLRB 172, 174 (1988).
Regarding the conversation with Messina, even accepting
Messina’s testimony, no violation is established. I find, as
testified by Krainchich, that Messina asked him about the
Floral Park election. Messina’s testimony that he was eager
to hear about it supports a finding that Messina inquired
about it. Krainchich’s factual statement that employees were
promoted after the election, and his opinion that ‘‘things’’
would improve if the Union was defeated now, are too vague
to support a finding of an improper promise of benefits. I
make the same conclusion concerning Bowler’s testimony.
I credit Smilowitz’ testimony that Krainchich asked him
how he and others felt about the Union. I have already found
that Krainchich asked others similar questions, and it is like-
ly that he asked this of Smilowitz as well. His further inquiry
made at the same time, as to whether Smilowitz had any
problems constituted an unlawful solicitation of grievances.
Family Foods, 300 NLRB 649, 663 (1990).
c. Louis Giamanco
Giamanco is the operations coordinator for RNC, who
schedules the studio crews and assists in News 12 projects.
Employee James Bono testified that in late June 1991 he
was present with other B crew employees in the crew lounge
when Giamanco entered and they discussed salary and pay
increases. Bono did not recall who brought up the subject of
raises. Giamanco told the workers that once the union issue
was settled, ‘‘it looks as though’’ everyone will be receiving
raises. Employee Michael Messina, a member of the C crew,
testified that on one occasion, Giamanco ‘‘peeked’’ into the
lounge, said that if all this union talk stops and you say no,
things are going to get better, and then left.
Employee Jamison testified that during a conversation con-
cerning the Union between him and other employees in early
July 1991 employee Steve Haldky mentioned that he was
told by another employee that an employer representative
asked that everyone sign a petition to reject the Union.
Jamison stated that Giamanco walked by at that point and
told him that they better ‘‘take that offer’’ because ‘‘it’s not
going to get any better than that.’’
Employee Andy Herzman testified that in the summer of
1991, without any preliminary statement, Giamanco told him
that Krainchich told him that when the ‘‘union thing is over’’
they could expect raises. Giamanco told him to keep this in-
formation confidential. Herzman stated that Giamanco knew
that he was a union supporter.
Giamanco denied making the statements attributed to him
by Bono and Messina. He also denied telling Jamison and
others to accept the offer of petitioning to reject the Union.
He knew of no offers by the Employer. Giamanco also de-
nied telling Herzman that he could expect a raise. He knew
that Herzman was a union supporter and tried to avoid con-
versations with him concerning the Union. He denied that
Krainchich told him that when the union matter is over, em-
ployees could expect raises.
I credit the testimony of Bono, Messina, and Herzman.
Respondent argues that Bono and Messina should not be
credited because their versions of the same incident are dif-
ferent. However, although both incidents occurred in late
June, it appears that Giamanco spoke to them at separate
times. Thus, Bono was present with other B crewmembers
when Giamanco spoke to them at length, and Messina, a C
crewmember, was present when Giamanco made a comment
into the room and then left. Neither testified that the other
was present when Giamanco made his comments.
Giamanco’s comments to them are promises of benefits. I
similarly find that Herzman’s testimony, which I credit, is an
unlawful promise of benefits. Although Giamanco testified
that he avoided conversations with Herzman because he was
a union supporter, he nevertheless had similar conversations
with Bono, Messina, and groups of employees with them.
I cannot credit Jamison’s testimony concerning
Giamanco’s comment regarding an alleged ‘‘offer.’’ First,
this testimony quotes remarks by employee Haldky who did
not testify, that an unnamed employer representative assert-
edly told an unnamed employee that everyone should sign a
petition to reject the Union. Giamanco was not even part of
that triple hearsay conversation, yet was quoted by Jamison
as saying that employees should accept that offer. This testi-
mony is simply too unreliable to credit, nor does Giamanco’s
response to Haldky’s comment logically follow.
d. Glenn Fishkin
Glenn Fishkin was the senior executive producer of News
12.
Employee Richard Shepard testified that in the summer of
1991, Fishkin asked him how he felt about what was happen-
ing with the Union. Shepard replied that he was dissatisfied
with his treatment, and that there was a need for change, al-
though he was not certain that a union was the solution.
Fishkin replied that a union could not guarantee a change,
and that it would be easier if management and the employees
work things out without a union or third party. This con-
versation is alleged as an unlawful interrogation. Fishkin de-
nied asking Shepard how he felt about the Union, testifying
that he was aware that such a question would be improper.
I credit Shepard. His response to the question of Fishkin,
a top official of News 12, is evidence that the question was
asked. Shepard gave a noncommittal answer, which might be
expected of someone in his position being asked a question
by a high employer official. The question itself was an im-
proper interrogation about Shepard’s feelings concerning the
union situation.
e. Edmund Bortell
Bortell, the operations manager for RNC, was employed
by RNC at its Floral Park location. Thereafter, in April 1991,
he was sent to the RNC facility in Woodbury in order to im-
prove its technical operation.
RNC employee Frederick Helm testified that he spoke
often with Bortell about the Union. On one occasion, Bortell
raised the subject of unions and told him that ‘‘the same
thing’’ happened in Floral Park, and when the union lost the
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Respondent attacks Helm’s credibility on the ground that this in-
cident was not contained in his pretrial affidavit. I reject this argu-
ment. Helm testified in a wholly credible manner.
election, all the employees received a ‘‘substantial’’ raise.6
This is alleged as an unlawful promise of a wage increase
if the employees rejected the IBEW. In fact, Bortell had
voted in that 1984 election, and testified that he received a
‘‘substantial’’ raise. On another occasion, Helm complained
to Bortell that his 12-percent raise was not sufficient. Bortell
replied that as he made more money, the percentage increase
would serve to increase his salary at a greater rate. Bortell
also told him that if a union was elected, the wage raises
would be negotiated ‘‘as a group,’’ and would not be based
on the individual merit of the employee.
Helm further testified that on another occasion, employee
Lisa Angelini complained that Respondent required her to
obtain replacement workers so that her job would be covered
during her wedding and honeymoon. In a voice loud enough
for Bortell to hear, Angelini added that if Respondent was
a union company, this issue would have been handled better.
Bortell then whispered to Helm that Charles Dolan would
never let a union into News 12, and that Dolan would close
it before letting a union in. This is alleged as an unlawful
threat of plant closure.
Bortell denied initiating a conversation with anyone con-
cerning the union election in Floral Park. He specifically de-
nied telling anyone that Dolan would shut the operation if
the Union was elected. He explained that he did not know
Dolan, and did not know what he would do if a union was
elected. He also denied telling anyone that wages would be
negotiated in a group, rather than individually if the Union
was elected. He stated that he did not know how a union ne-
gotiates a contract.
Employee Michael Jamison testified that Bortell ap-
proached him as he was working and asked him why he was
‘‘bucking the system?’’ Jamison asked for an explanation
and Bortell replied that if a union was elected, such things
as salaries would not change, and there would be no dif-
ference in the operation with or without a union, adding that
perhaps Jamison would be better off without a union.
Jamison then cursed at Bortell and told him to mind his own
business. This is alleged as an unlawful statement that it
would be futile for the employees to select the IBEW as their
representative.
Bortell denied speaking about the Union with Jamison, but
conceded that when he suggested a technical improvement,
Jamison told him to mind his own business, and was abusive
to Bortell.
I credit Jamison. It would be highly unusual for an em-
ployee to tell his supervisor not to bother him when the su-
pervisor recommended a work-related change. I accordingly
find that Bortell violated the Act as alleged.
Employee Lisa Angelini testified that she spoke with
Bortell about the Union on about four occasions. Angelini
was not specific, stating that Bortell mentioned negative fea-
tures about the Union, and spoke positively about Respond-
ent. Angelini told him that she was not interested in speaking
about the Union. On another occasion, Bortell brought up the
topic of the Union, saying that a similar event occurred in
Floral Park, and when the employees voted against the
Union, they all received large raises. She stated that in June,
Bortell told her that if the Union was selected, there would
be many changes, but that would not occur since Dolan
would shut the Company before the Union came in. Finally,
Bortell told her in late July 1991, just prior to her leaving
for a honeymoon, that if the Union came in many things
would change, and her job would be ‘‘greatly affected.’’ He
then told her to think about it, and to let her coworkers know
that the Union is not good.
These statements are alleged as unlawful statements that it
would be futile for employees to select the IBEW as their
representative; unlawful threats of plant closure; and the im-
position of more onerous working conditions.
Bortell testified that Angelini asked him what had hap-
pened in the Floral Park union election, and that he told her
that after the union vote, he received a raise 6 months later,
adding that the current situation is a different place, company
and operation with different financial problems, and that the
two union incidents could not be compared. He denied tell-
ing Angelini that unions were not good, or asking her to tell
other employees that. He denied the statements attributed to
him prior to her leaving for her honeymoon. He explained
that she would be away for 2 weeks, and he therefore had
no reason to believe that there would be a vote, and that the
Union would win and make changes in that period of time.
It should be noted that Bortell’s pretrial affidavit stated
that he never spoke to Angelini about any aspect of the
union campaign. In contrast, he testified that Angelini raised
the question of what had happened in the 1984 election.
Employee Thomas Bowler testified that in early July 1991
Bortell told him that he had to let people know where he
stood because things ‘‘are going to start happening around
here.’’
Employee Jonathan Smilowitz testified that Bortell initi-
ated two conversations in July and August 1991 during
which Bortell asked him how other employees felt about the
Union. Smilowitz replied that he had no information about
that. It should be noted that Smilowitz had three other con-
versations with Bortell which Smilowitz initiated, in which
he asked Bortell how the Employer handled the union cam-
paign in Floral Park, and how much time the election process
consumed. Smilowitz also asked him how the union cam-
paign was progressing at News 12.
Bortell testified that at the time of the 1984 election, he
let his views be known to the other voters. He stated that he
was fearful that if the Union won that election, the Floral
Park facility would be closed. Bortell’s pretrial affidavit stat-
ed that he did not believe that he had any specific conversa-
tion with any employees in 1991 about the possibility of
News 12 closing if the Union was selected, but that it was
possible that he told employees, in response to a question
about News 12 closing, that that was a fear he had at the
time of the 1984 election. It should be noted that he testified
that since signing the affidavit, he now believed that he defi-
nitely did not tell employees in 1991 that he harbored that
fear in 1984.
Bortell denied telling employees that Dolan would shut
News 12 if the Union was selected, and also denied asking
employees how they felt about the Union or how others felt
about the Union.
Respondent asserts that Helm and Angelini should not be
credited because they gave contradictory accounts of
Bortell’s alleged remarks concerning Dolan’s alleged plan to
67RAINBOW NEWS 12
close News 12. Respondent argues that neither testimony is
reliable because Angelini testified that no one was present
when Helm told her about Dolan’s intentions, but Helm testi-
fied that Angelini was present.
I credit the testimony of Helm and Angelini that Bortell
told them that when the Union lost the 1984 election, all the
employees received large raises. Their testimony is mutually
corroborative, and Bortell admittedly spoke to them about
that election.
However, I cannot credit their testimony concerning
Bortell’s alleged statement concerning Dolan’s intention to
close News 12. Angelini’s testimony is troubling especially
since she testified that she was reluctant to speak about the
Union around supervisors because she was afraid for her job,
yet Helm testified that she announced, with Bortell nearby,
that if Respondent were unionized, replacements would be
arranged in a more organized manner. I also find it strange
that Bortell would whisper the same threat to Helm concern-
ing Dolan, which only Helm could hear although Angelini
was present, that Bortell allegedly made openly to Angelini
the month before. I therefore credit neither Angelini nor
Helm concerning Bortell’s alleged threat that Dolan would
close News 12.
However, I find that Bortell attempted to persuade
Angelini and Helm not to support the Union. I accordingly
find that he told Helm and Angelini that after the Union’s
loss in 1984, large raises were granted, in order to induce
them to vote against it in the upcoming election. These
promises of benefits interfered with the employees’ Section
7 rights. In this connection, I find that Bortell threatened
Angelini that her job would be greatly affected if the Union
was selected by the employees. He thus sought to dissuade
her from supporting the Union.
I further find that Bortell’s questions of Smilowitz as to
how other employees felt about the Union were unlawful in-
terrogations. Although Smilowitz had initiated other con-
versations about the Union, these questions were parts of
conversations that Bortell initiated. As such, they sought in-
formation concerning the union sympathies of Smilowitz’ co-
workers, and constituted improper interrogations.
f. Mark Ambrico
Ambrico is the operations manager for RNC.
Employee Smilowitz testified that he initiated most of his
four to five conversations with Ambrico, in which he at-
tempted to learn how management was dealing with the
union situation. Ambrico replied that he did not know the an-
swers to those questions.
Smilowitz also testified that in late July or early August
1991, Ambrico initiated one or two conversations, in which
he asked Smilowitz whether the employees believed that
there were any problems. Smilowitz replied that he did not
know of any. About 1 week later, Ambrico asked him how
he felt about the Union. Smilowitz replied that he did not
know much about it, and that he was not really for or against
it.
Ambrico denied asking Smilowitz how he felt about the
Union, adding that he knew that to do so would constitute
an illegal interrogation. I credit Smilowitz’ testimony that
Ambrico asked him how he felt about the Union. Although
Ambrico had no information to give Smilowitz about the
Union, he sought to learn how Smilowitz felt about the
Union. Smilowitz’ answer was noncommittal, which is con-
sistent with his other testimony that Smilowitz sought to
learn what management was doing about the union situation.
I accordingly find that Ambrico’s question of Smilowitz vio-
lated Section 8(a)(1) of the Act.
C. The Alleged Unlawful Layoffs
There were three groups of layoffs of employees. On Au-
gust 9, 18 employees were laid off, including 8 RNC em-
ployees. On August 23, six employees, all of whom were
RNC employees, and one manager were laid off. One em-
ployee each was laid off on September 13 and 20, and on
November 13, 12 employees were laid off.
The complaint alleges that the employees were laid off be-
cause of their activities in behalf of, or support for the
IBEW, AFTRA, and CWA, and to discourage employees
from engaging in such activities.
Respondent denies that the layoffs were motivated by
union considerations, and asserts that they were effected for
economic reasons.
1. The General Counsel’s prima facie case
Section 8(a)(3) of the Act prohibits an employer from dis-
criminating against employees, by laying them off, in order
to discourage membership in a labor organization.
The General Counsel has the initial burden to prove that
union or other activity protected by the Act was a motivating
factor in an Employer’s decision to lay off employees. If the
General Counsel meets this burden and thereby makes out a
prima facie case, the Employer then has the burden to show
that it would have taken the same action—layoffs of employ-
ees—even in the absence of their protected activity. Wright
Line, 251 NLRB 1083 (1980).
The threshold issue is thus the motivation for the layoffs.
If it is found that the Employer was motivated because of
its opposition to the Union, the General Counsel will have
established a prima facie case of discrimination.
Respondent argues that, as to certain of the laid-off em-
ployees, there has been no evidence that they actually en-
gaged in activities in behalf of any union, and that accord-
ingly, it cannot be found to have violated the Act with re-
spect to those employees. The General Counsel responds that
a finding of violation may be made even as to those who
have not engaged in union activity, based upon a ‘‘mass lay-
off’’ theory, pursuant to which all employees are discrimi-
nated against as punishment for the union activities of a few
or to discourage further union activity.
The unlawful motivation required to find a violation may
be shown not only against individual employees in retaliation
for their union activities, ‘‘but also where the employer takes
adverse action against a group of employees, regardless of
their individual sentiments toward union representation, to
punish the employees as a group ‘to discourage union activ-
ity or in retaliation for the protected activity of some.’’’
Mini-Togs, Inc., 304 NLRB 664, 648 (1991); Davis Super-
markets, 306 NLRB 426 (1992). The issue in these cases is
the ‘‘employer’s motive in ordering the [layoffs] rather than
. . . the anti-union or pro-union status of particular employ-
ees.’’ Birch Run Welding & Fabricating v. NLRB, 761 F.2d
1175, 1180 (6th Cir. 1985). ‘‘The General Counsel’s burden
was to establish that the mass discharge was ordered to dis-
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In the representation hearing, the parties stipulated that Mintzer
was a statutory supervisor.
courage union activity or in retaliation for the protected ac-
tivity of some.’’ ACTIV, supra.
Here, the elements required for a prima facie finding of
unlawful motivation in the layoffs are present. Respondent
possessed knowledge, as of May 2, of the union organiza-
tional campaign of the IBEW. I also find that Respondent
possessed animus toward that effort, as demonstrated by the
violations of Section 8(a)(1) I have found above, which were
committed by it during its determined effort to defeat the
employees’ organizational efforts.
As direct evidence of the motivation for the layoffs, the
General Counsel argues that the conversation between Re-
spondent’s assignment manager, Hardie Mintzer, Albergo,
and Counsel Englander confirm that a plan was made to lay
off employees to thwart Respondent’s unionization.
Mintzer testified that following the close of the representa-
tion hearing in June 1991, at a conversation attended by him-
self, Albergo, and Attorney Englander, Englander asked
whether anyone had any ideas as to what might be done to
‘‘send a message home’’ to those employees who are orga-
nizing, or attempting to organize the Union.7 Mintzer then
suggested a ‘‘severe’’ message, such as the possibility of lay-
offs or closing News 12. Mintzer further told the others that
Dolan would turn News 12 into a ‘‘parking lot’’ before it
would be unionized. According to Mintzer, Englander
agreed.
Albergo denied attending a meeting with Mintzer and
Englander at which layoffs were discussed. Englander did
not testify. I credit Mintzer. Respondent argues that Mintzer
was biased because he was laid off by it. However, I do not
believe that he would seek to damage his reputation in the
industry by testifying falsely against a company official and
its attorney. As noted, this conversation was uncontroverted
by Englander.
As further evidence of the motive for the layoffs, the Gen-
eral Counsel relies on a memo from Burton to Patrick, out-
lining a move of the master control facility with its RNC em-
ployees from Woodbury to Floral Park, involving the layoff
of certain RNC employees. Burton noted that supervisory
and existing staff would perform the master control work on
its transfer, with no charge for the supervisory services.
However, the memo added that, in the long run, other em-
ployees from another company may be used, in which case
‘‘a fair charge may undermine economic justification’’ and
‘‘union may claim no jobs were eliminated.’’ Burton also
added that by using supervisors, News 12 would be saving
money, but such a procedure would be difficult to maintain,
and a result might be ‘‘risk of union moving to RNC.’’
The General Counsel further alleges that the layoffs which
began in August were the fulfillment of the unlawful threats
to lay off employees made to employees during the course
of the union campaign begun in April.
Based on my findings of violations of Section 8(a)(1) of
the Act including interrogations, promises of benefits, threats,
and solicitation of grievances, I find that the General Counsel
has established a prima facie case that the employees’ union
organizing activity was a motivating factor in the Respond-
ent’s decision to lay them off. Wright Line, supra.
Under Wright Line, the burden then shifts to the Respond-
ent to demonstrate that the same action would have taken
place even in the absence of the employees’ protected con-
duct.
2. The economic justification
News 12 is funded by a partnership consisting of Rainbow
and NBC, pursuant to which each contributes 50 percent and
they share 50 percent of the profits and losses.
The partnership, which began in 1988, contemplated losses
in its early years, but by 1992, a profit was projected, based
on increasing gross revenues. Thus, in 1988, a 5-year plan
showed that a nearly $5 million loss was experienced from
operations in 1988, with projections for a loss of nearly $4
million in 1989; $2 million in 1990; $468,000 in 1991, with
gross revenues of $12,557,000 that year, and gross expenses
of $15 million; a profit of over $1 million projected for
1992; and a profit of nearly $4 million projected for 1993.
NBC agreed to these projections and entered into the partner-
ship based on these figures.
In 1990, the projected budget for 1991 shows a loss of
$737,000, based on revenues of nearly $11 million. The ex-
pected revenue loss of $1.5 million for 1991, from what was
projected for that year in 1988 was due to an anticipated loss
of advertising revenues. However, 1991 expenses were set
forth as $11.5 million, down from $15 million, which was
forecast for 1991 in the 1988 budget.
A later, revised 5-year plan, prepared in early 1991
projects a deficit for 1991 of $738,000, compared to the ear-
lier 5-year plan’s deficit of $468,000. In addition, the new
5-year plan projected lower gross revenues for 1991 through
1993 than the earlier 5-year plan.
As a reaction to the declining revenues, Rainbow President
Patrick sought ways to reduce expenses, and a document was
prepared in mid-March, setting forth possible areas of non-
personnel reductions of expenses, such as not covering cer-
tain news events, which would result in a projected savings
of $105,000. This was updated 1 week later with a forecast
of savings of $187,000.
On March 27, NBC agreed to fund the partnership, but re-
tained its right to approve or disapprove the upcoming budg-
et.
A budget review meeting between NBC and Rainbow was
scheduled for April 19, and in preparation for that meeting,
NBC’s financial analyst asked the following questions: ‘‘In
light of continued ad sales softness, expected profit levels
from prior plans are significantly downgraded. What is serv-
ice doing to address revenue shortfalls? Key areas of expense
(news production, administration) continue to grow substan-
tially. This needs to be addressed—and in particular how
WNBC and News 12 can be better integrated in terms of
cost control and revenue opportunities.’’
On April 26, a reforecast in the first quarter of 1991
shows a net operating loss for the year of $1,342,000, and
on April 30, a document showing potential savings of
$358,210 was prepared. These savings included nonpersonnel
cuts as well as the release of one part-time employee, a pro-
posal that a vacant executive producer’s position not be
filled, and a reduction from 7 percent to 6 percent in the
amount of annual increases to be given to ‘‘studio man-
power.’’
69RAINBOW NEWS 12
The General Counsel correctly argues that at this point, al-
though numerous nonpersonnel reductions were ‘‘projected’’
which would result in ‘‘potential’’ savings if implemented,
there was no evidence that the actual cuts were, in fact,
made. Moreover, the executive producer’s position appears to
have been filled by Janet Alshouse who was transferred into
News 12 from another Cablevision entity in March or April,
as the acting executive producer, and promoted to executive
producer in June 1991.
The General Counsel further argues that, although a $2
million loss was projected for 1990, no action was taken to
reduce expenditures at that time. However, the partners ap-
parently anticipated that loss in establishing the partnership,
as set forth in their 5-year budget, and as noted above, the
losses were expected to diminish in following years, with an-
ticipated increases in revenues.
As set forth above, on May 2, the IBEW filed its petition.
On May 9, a document setting forth reforecasted expendi-
tures was prepared, which estimated that 1991 revenue would
be $830,000 less than forecasted 3 months earlier. Certain re-
ductions in expenses were proposed, which included freezing
the open executive producer position, which if implemented,
would have failed to bring the expected loss to the amount
budgeted, by nearly $142,000.
In mid-June, a second quarter forecast showed that the an-
nual revenue shortfall was expected to increase to
$1,105,000. It was also estimated that the 1991 operating
deficit would be $1 million, instead of the $468,000 origi-
nally forecast in the 5-year budget prepared in 1988, and the
updated $737,000 forecast in late 1990.
At about that time, a meeting was held with NBC rep-
resentatives, at which NBC inquired whether News 12 could
reduce expenditures by $500,000, and asked how News 12
could be returned to the break-even point as forecast in the
5-year budget, suggesting that NBC would consider with-
drawing from the partnership if these things were not done.
NBC also mentioned that it could not justify to its parent
General Electric the deep cuts that were taken at NBC News,
without similar reductions at News 12.
Rainbow President Patrick testified that, at that time, the
advertising market was unexpectedly weak, and as a result,
advertising revenues were severely reduced. She noted that
even if $500,000 was eliminated from News 12’s expenses,
it still would not have reached the $468,000 operating loss
forecast in 1988 for the 1991 year.
In financial forecasting done monthly in 1991, losses for
the year were predicted at nearly $1,400,000 through June,
and were revised upward in July at $1,619,000, and in Sep-
tember, at $2,055,000 for the year. In fact, the actual operat-
ing loss for the year was $1,889,000.
In June, when the predicted loss for the year was
$1,392,000, President Patrick decided to downsize News 12.
She visited television stations in Denver, Miami, and San
Diego in order to learn how they were operating. She found
that the San Diego station, although not a 24-hour-per-day
station as News 12, was a comparable facility, which pro-
duced twice the revenues with less employees than News 12.
Patrick returned from the trip with the conviction that inas-
much as all nonpersonnel cuts had been made, personnel re-
ductions were required. As to this, the General Counsel ar-
gues that no actual nonpersonnel cuts had been made, only
possible cuts which could be made. However, those projec-
tions of expense cuts were built into the figures which never-
theless indicated the extraordinary operating losses for the
coming months.
In July and August, reports were made to Patrick by her
subordinates which contained recommendations for across
the board layoffs of staff members and management person-
nel. The first was in August, precipitated by the July forecast
of a loss of $1,619,000 for the year; the second layoff was
in September, also precipitated by an August forecasted loss
of $1,619,000; and the third layoff was in November, precip-
itated by an October forecast of a loss of $1,887,000. At the
time of the layoffs, about 150 employees were employed by
News 12. Thirty-eight employees were laid off in the three
layoff actions.
The evidence, set forth above, would appear to establish
that News 12 was justified in its decision to lay off employ-
ees in order to reduce its expenses, in view of the extraor-
dinary operating losses projected, which in fact occurred.
3. The validity of Respondent’s economic defense
The General Counsel argues that Respondent’s defense is
undermined in view of the following: NBC complained that
News 12’s administration expense was growing rapidly, but
nevertheless Albergo and her secretary were hired at a total
cost, including benefits, of about $110,000; notwithstanding
its claims of increased operating losses, and a decision to lay
off employees in June, News 12 purchased furniture for a
waiting room with a budget of about $6000, and installed a
paging system; and in October, installed two-way radios in
News 12 vehicles.
I find that the above additional expenses do not detract
from Respondent’s defense. Albergo was hired because of
Patrick’s increasing lack of confidence in News Director
Fein, and because of her commitment to pursue the initia-
tives begun before the filing of the Union’s petition, and to
pursue cost-savings measures; the furniture was in a bad state
of repair and was located in a waiting room for guests who
were to appear on News 12’s programs; the radios resulted
in lesser costs than were experienced when cellular phones
were used to communicate. The costs for these items were
relatively small.
The General Counsel further asserts that annual review
wage raises, in amounts which sometimes surpassed previous
increases, were given during the time that Respondent was
experiencing its financial difficulties. Thus, on into March
1991, Aline Lefebvre was given a 10-percent increase,
whereas she received 7 percent at the last review; in June
1991, Fred Helm received a 12-percent raise compared to a
6.14-percent raise the year before. This large increase was
explained by noting that Helm, a superior employee, on
being given this raise, was brought to the ‘‘low end’’ of the
salaries of his coworkers; in June 1991, Vincent Scaffidi was
given a raise of 8 percent compared with 7.5 percent the pre-
vious year; in July 1991, Kenneth Dickman was given an 8-
percent raise compared with a 6.9-percent increase the prior
year; and in July 1991, Patricia McCloughan was given an
8-percent raise compared with a 7.9-percent increase the
prior year. As to these raises, I do not believe that they rep-
resent an extraordinary increase over the prior year’s raises,
and specifically with respect to Helm, his nearly 100-percent
raise was adequately explained by Respondent.
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In contrast, and in support of Respondent’s theory, other
employees, including Ellen Davis, Anthony Mazza, Bruce
Fauser, Lincoln Wiese, Kevin Benjamin, Susan Vernon-
Vitale, Paul Barr, Michelle Birnbaum, and Thomas Cassidy
received smaller increases in the period March through Au-
gust 1991, than they had the prior year.
There were some new hires in the period January through
July 1991, but as to at least nine of those, they had either
been temporary or part-time employees employed in the po-
sitions cited by the General Counsel as new hires.
In a memo dated July 24, Albergo outlined savings from
the elimination of positions. She noted that there would be
an annual savings of nearly $148,000 not including benefits
or overtime from the elimination of eight RNC employees,
among whom were the most outspoken IBEW supporters:
Bono, Herzman, Kaufold, Rizza, Messina, and Busby. How-
ever, she further noted that those savings would be reduced
by the need to replace those employees with on call tem-
porary workers, in the sum of $50,000. Official Keck testi-
fied that such temporary workers were not in fact used be-
cause he developed a plan whereby positions would be con-
solidated so that fewer employees could perform additional
tasks.
There was no evidence as to when that consolidation plan
was devised. However, it should be noted that 2 weeks later,
when the employees were notified of their terminations, both
Bono and Rizza asked about the possibility of working part
time, and Burton rejected their offers. Nevertheless, it ap-
pears that in certain cases, full-time employees were replaced
by temporary workers. Thus, the savings in such layoffs was
less than if no temporaries had been hired. For example, the
shifts of laid-off reporter Burl Britt were not abolished, but
were performed by temporary reporters. However, the re-
placement of the full-time employees by temporary workers
nevertheless resulted in a savings to Respondent in full-time
positions which did not need to be filled, and in benefits
saved.
It should also be noted that, in addition to unit employees
who were laid off, management personnel were also termi-
nated. Thus, Executive Producer Fishkin was laid off, as was
Assignment Manager Mintzer. In addition, employees not in
the unit sought by the IBEW were laid off, including produc-
ers, production assistants, reporters, and writers.
On October 16, Patrick sent a memo to employees an-
nouncing a 5-percent annual review raise. She explained that
the increase would be implemented notwithstanding the
Company’s operating losses in order to maintain competitive
salaries, and as a reward for fine performance. Respondent
had a practice of granting annual review raises in varying
amounts. The General Counsel alleges that if Respondent
was in such dire financial straits, it should not have made
this wage increase. However, employees at News 12 had his-
torically complained of low wages, and Respondent acted
properly in consistently retaining its annual review raise. It
should be noted that the 5-percent increase was smaller than
had been given in prior years, and had Respondent not con-
tinued its policy of annual raises, its failure to do so may
have been the subject of an unfair labor practice charge.
Conclusions as to the Reasons for the Layoffs
The question to be determined is whether Respondent has
met its burden of proving that it would have taken the same
action, laying off the employees, even in the absence of their
union activities. I believe that it has.
Respondent’s finances were subject to ongoing and strin-
gent review and limitations by its partner, NBC. Their rela-
tionship was driven by continuous financial analysis of News
12’s operations. Prior to the filing of the petition, additional
money was required by NBC in order to operate News 12.
NBC questioned its ability to continue to fund an unprofit-
able operation. Subsequently, and still prior to the filing of
the petition, with revenues continuing to fall, Patrick author-
ized the reduction of nonpersonnel expenses, and a reduction
in the amount of annual salary review increases.
Following the filing of the petition, revenues continued to
fall dramatically, and at the time that layoffs were first con-
sidered, in June, Respondent had received a May forecast of
an annual loss of $1,342,000, nearly double that which had
been forecast in 1990. The layoff was not a massacre done
immediately on the filing of the petition. Patrick carefully as-
sessed the Company’s financial situation in view of NBC’s
continued inquiries concerning News 12’s expenses, and then
undertook visits to several stations across the country in
order to determine whether News 12 was overstaffed for its
size. Based on her visits, she determined that News 12 had
to downsize in order to maintain its financial viability. The
facts that the decision to lay off employees took place 1-1/2
months after the petition was filed lends credence to a find-
ing that they were not made precipitously in reaction to the
union campaign. Rather, it appears that the triggering events
were NBC’s repeated concern with the increasing losses ex-
perienced by News 12, and the newly received forecasts of
further massive losses.
In addition, the layoffs of Management Personnel Fishkin
and Mintzer, and the layoffs of nonunit employees along
with the layoffs of unit employees adds believability to Re-
spondent’s claims that it would have effected the layoffs of
the 38 employees even in the absence of their union activi-
ties.
I accordingly find and conclude that Respondent has met
its burden under Wright Line, and that the layoffs did not
violate Section 8(a)(3) and (1) as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Rainbow News 12, Rainbow Network
Communications, Inc., subsidiaries of Rainbow Programming
Holdings Corp., Rainbow Programming Holdings Corp, and
Cablevision Systems Corp., is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and is a single-integrated business enterprise and a sin-
gle employer.
2. Radio and Television Broadcast Engineers Union Local
1212, International Brotherhood of Electrical Workers, AFL–
CIO (IBEW), American Federation of Radio and Television
Artists, AFL–CIO and the Communications Workers of
America, AFL–CIO are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. By threatening to lay off its employees because of their
activities in behalf of, or interest in the IBEW, Respondent
violated Section 8(a)(1) of the Act.
4. By interrogating employees concerning their member-
ship in the IBEW and their union activities and sympathies,
and about the union membership, activities, and sympathies
71RAINBOW NEWS 12
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
9 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
National 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.’’
of other employees, Respondent violated Section 8(a)(1) of
the Act.
5. By promising its employees a wage increase and other
benefits if the employees rejected the IBEW as their bargain-
ing representative, Respondent violated Section 8(a)(1) of the
Act.
6. By disparately enforcing and applying a rule prohibiting
the placement of union literature in employee mailboxes,
while permitting the placement of nonunion literature, Re-
spondent violated Section 8(a)(1) of the Act.
7. By soliciting employee complaints and grievances and,
by doing so, impliedly promising its employees that it would
resolve their complaints and grievances to the employees’
satisfaction, Respondent violated Section 8(a)(1) of the Act.
8. By telling employees that it was withholding a larger
wage increase because of the IBEW, Respondent violated
Section 8(a)(1) of the Act.
9. By informing employees that it would be futile for them
to select the IBEW as their bargaining representative, Re-
spondent violated Section 8(a)(1) of the Act.
10. By threatening employees with the imposition of more
onerous working conditions if they selected the IBEW as
their bargaining representative, Respondent violated Section
8(a)(1) of the Act.
11. By threatening to close the facility if the employees
selected the IBEW as their representative, Respondent vio-
lated Section 8(a)(1) of the Act.
12. Respondent did not engage in unfair labor practices, as
alleged in the complaint, by laying off employees, and by
other alleged unfair labor practices, not found here.
13. The unfair labor practices found above constitute un-
fair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unlawful
conduct under the Act, I will recommend that it cease and
desist from engaging in such conduct in the future and af-
firmatively take such action as will dissipate the effects of
its unfair labor practices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Rainbow News 12 and Rainbow Network
Communications, Inc., subsidiaries of Rainbow Programming
Holdings Corp., Rainbow Programming Holdings Corp., and
Cablevision Systems Corp., Woodbury, New York, their offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to lay off its employees because of their
activities in behalf of, or interest in, the IBEW.
(b) Interrogating employees concerning their membership
in, and activities in behalf of, and sympathies for the IBEW,
and about the union membership, activities, and sympathies
of other employees.
(c) Promising its employees a wage increase and other
benefits if the employees rejected the IBEW as their bargain-
ing representative.
(d) Disparately enforcing and applying a rule prohibiting
the placement of union literature in employee mailboxes,
while permitting the placement of nonunion literature.
(e) Soliciting employee complaints and grievances and, by
doing so, impliedly promising its employees that it would re-
solve their complaints and grievances to the employees’ sat-
isfaction.
(f) Telling employees that it was withholding a larger
wage increase because of the IBEW.
(g) Informing employees that it would be futile for them
to select the IBEW as their bargaining representative.
(h) Threatening the imposition of more onerous working
conditions if employees selected the IBEW as their bargain-
ing representative.
(i) Threatening to close the facility if the employees se-
lected the IBEW as their representative.
(j) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facilities in Woodbury, New York, copies
of the attached notice marked ‘‘Appendix.’’9 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten to lay off our employees because
of their activities in behalf of, or interest in, the IBEW.
WE WILL NOT interrogate our employees concerning their
membership in, and activities in behalf of, and sympathies
for the IBEW, or about the union membership, activities, and
sympathies of other employees.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT promise our employees a wage increase and
other benefits if the employees reject the IBEW as their bar-
gaining representative.
WE WILL NOT disparately enforce and apply a rule prohib-
iting the placement of union literature in employee mail-
boxes, while permitting the placement of nonunion literature.
WE WILL NOT solicit employee complaints and grievances
and, by doing so, impliedly promise our employees that we
would resolve their complaints and grievances to the employ-
ees’ satisfaction.
WE WILL NOT tell our employees that we are withholding
a larger wage increase because of the IBEW.
WE WILL NOT inform our employees that it would be futile
for them to select the IBEW as their bargaining representa-
tive.
WE WILL NOT threaten our employees with the imposition
of more onerous working conditions if they selected the
IBEW as their bargaining representative.
WE WILL NOT threaten to close the facility if the employ-
ees selected the IBEW as their representative.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
RAINBOW NEWS 12 AND RAINBOW NETWORK
COMMUNICATIONS, INC., SUBSIDIARIES OF
RAINBOW PROGRAMMING HOLDINGS CORP.,
RAINBOW PROGRAMMING HOLDINGS CORP.,
AND CABLEVISION SYSTEMS CORP.