Storer Communications, Inc.

National Labor Relations Board - Board Decisions

May 23, 1986

279 N.L.R.B. 1081 (N.L.R.B. 1986)

CATV SERVICE CO
CATV Service Company, Inc. a subsidiary of Storer
Communications , Inc. and International Broth-
erhood of Electricial Workers, AFL-CIO, Local
827. Case 22-13395
23 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 8 November 1985 Administrative Law Judge
D. Barry Morris issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in opposition
to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' We find it unnecessary to pass on the judge's findings concerning
Janice Mason's supervisory status
Jacqueline Young, Esq, and Marta Figueroa, Esq., for the
General Counsel.
Michael T McMenamin, Esq., and Nancy A. Noall, Esq.
(Walter, Haverfield, Buescher & Chockley), of Cleve-
land, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
D BARRY MORRIS, Administrative Law Judge. This
case was heard before me in Newark, New Jersey, on 17,
18,and 19 December 19841 and 11 February 1985. On a
charge filed on 13 August and amended on 27 Septem-
ber, a complaint was issued on 27 September alleging
that CATV Service Company, Inc., a subsidiary of
Storer Communications, Inc. (Respondent) violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act.
Respondent filed an answer denying the commission of
the alleged unfair labor practices
The parties were given full opportunity to participate,
to produce evidence, to examine and cross- examine wit-
nesses, to argue orally, and to file briefs Briefs were
filed by the General Counsel and by Respondent on 17
April 1985
' All dates refer to 1984 unless otherwise specified
1081
On the entire record of the case, including my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
Respondent, a corporation with a place of business in
Port Murray, New Jersey, is engaged in providing cable
television service. Its total annual volume of business ex-
ceeds $100,000. Respondent admits that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and I so find. In addition, I
find that International Brotherhood of Electrical Work-
ers, AFL-CIO, Local 827 (the Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act See
Ana Colon, Inc, 266 NLRB 611, 612 (1983).
11 THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues are:
1. Did Respondent assign more onerous working con-
ditions to its employee, Janice Mason, and discharge her,
in violation of the Act?
2. Was Mason a managerial employee or supervisor
and thus not entitled to the protection of the Act?
B. The Facts
1. Background
Janice Mason began her employment with Respondent
in May 1981 In early 1982 she became project manager
at the Port Murray facility. As such, she was the coordi-
nator for cable construction of the system. In January
1984 she was advised by the then system manager, Mark
Greenberg, that her title was being changed to field
survey coordinator. Mason testified that Greenberg told
her that her new position was "basically . . the same"
as her prior position with a "few omissions." She testi-
fied that Greenberg told her she would still coordinate
cable construction but that Joe Salvero, who would
become technical manager, would be handling longdrop
surveys and extensions.
Mason testified that after her title was changed to field
survey coordinator she continued to perform the six job
categories listed on the General Counsel Exhibit's 9,
which had been her responsibilities as project manager.
Although as project manager she had also been responsi-
ble for longdrop surveys and extensions, this work was
eliminated in her new position.
2 Union activity
In January 1984 a meeting of all employees in Port
Murray took place when it was announced that a peti-
tion had been filed for an election An election was held
on 1 March in which Mason voted. However, her ballot
was challenged Mason testified that she attended ap-
proximately six union meetings between January and
April and attended union organizational meetings for
several of Respondent's other systems.
279 NLRB No. 148
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Events leading to discharge
On 16 May James Robinson became system general
manager, replacing Greenberg. During May Robinson
became aware of Mason's union activities by having read
Respondent's exceptions to the Regional Director's
report on objections to the election and related papers.
On 17 July Robinson attended a meeting in Respond-
ent's area office in which each system was given a dead-
line to compile budget information for the following
year. The deadline for the Port Murray system was 24
July. Accordingly, Robinson decided that he needed in-
formation from his system's personnel by Friday, 20
July. He intended to review the material on Saturday be-
cause the area personnel , Charles Monahan, area business
manager , Richard Grace, area sales manager , and Fran-
cis Sankner , area plant manager , planned to come to the
system on Sunday, 22 July, to compile a rough draft of
the budget.
On 18 July Robinson requested that Mason furnish
him with information concerning construction projects
that were pending for 1984 and were projected for 1985.
He gave her a deadline for completing the project of 5
p.m., Friday, 20 July. He gave the same deadline to the
system's sales manager, Gloria Domkowski, the office
manager, Regina Robinson, and Salvero, the technical
manager , for the information requested of them Robin-
son's request to Mason was followed by a memorandum
dated 19 July reiterating the information he had request-
ed from her the day before. On Friday afternoon, 20
July, Mason came into Robinson's office and told him
that "she was having a hard time gathering the informa-
tion." Robinson replied, "Do the best that you can on it.
Get as much as you can together."
Mason did not meet the 5 p.m. deadline on Friday. At
approximately 7:30 that evening as Robinson was getting
ready to leave for home, he checked with Mason to see
how she was progressing. Robinson testified:
She held up a sheet of information indicating that
she was going through the information that she had.
I indicated to her to do the best that she could and
with that, upon completion, she should go ahead
and put the information underneath the door of my
secretary. I was returning the next morning and I
was going to take that information along with ev-
eryone else's and start to compile the budget proc-
ess for 1985.
On Saturday, 21 July, Robinson arrived at the office at
9 a.m. The information he requested from Mason had not
been left for him . Robinson was "quite upset" and placed
a telephone call to Mason . She was not in and he left a
recorded message on her answering machine indicating
that he needed to speak with her at once. He tried call-
ing her several times that day but was unable to reach
her. Robinson credibly testified that not having the infor-
mation from Mason severely impeded his efforts in pre-
paring the budget. He stated, "It basically put everything
into a dead heat, stopped everything cold." On discuss-
ing the matter with another system manager during the
course of the day, Robinson told the other manager that
because of the lack of information he was "extremely
upset." Robinson testified that by Saturday evening he
had made up his mind to discharge Mason.
Robinson remained working at the office until 4:30
Sunday morning and returned again at approximately
9:30 a.m. Mason came to work at approximately 7:45
Sunday morning and by the time Robinson arrived, she
had completed 80 percent of the work. When Grace ar-
rived at 11 a.m., Mason had still not completed the work
and Robinson was "furious." Robinson apologized to
Grace and Monahan and asked Mason to come to his
office. He told Mason she had 15 minutes to complete
the project and bring it to him. On Monday morning, 23
July, Robinson told his superior, Barbara Silkworth, area
vice president, that he wished to terminate Mason She
told him to contact the corporate legal department be-
cause "Mason had displayed pro-union activity and she
wanted to make sure that I consulted with them first."
The budget presentation took place on Tuesday, 24
July, and was not well received. Robinson credibly testi-
fied that he was in the meeting approximately 15 minutes
when Silkworth "threw out" his presentation. "She told
us to go back and do it again ." On 31 July Robinson ad-
vised Mason that she was terminated Robinson credibly
testified that he told her the reason for her termination
was "primarily . . . due to the lack of communication
and information in the budget process That it was very
vital and it had upset a lot of people and it delayed a
number of the reports."
III DISCUSSION AND ANALYSIS
A. Termination of Mason
Under Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S.
989, approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), the Board requires that the
General Counsel make a prima facie showing sufficient
to support the inference that protected conduct was a
motivating factor in the employer's decision. Once this is
established, the burden shifts to the employer to demon-
strate that the "same action would have taken place even
in the absence of the protected conduct."
I do not believe that the General Counsel has made a
sufficient showing that protected conduct was a motivat-
ing factor in the decision to terminate Mason . Mason at-
tended several union meetings and Robinson became
aware of her union activity soon after he became system
manager in May. Mason testified that Robinson never
discussed her union activity with her nor did he ever say
anything which gave her the impression that he held her
activities on behalf of the Union against her. I believe
that Robinson's reason for terminating Mason was her
failure to complete compiling the budget information on
time. Robinson was new to the Port Murray system and
was eager to create a favorable impression on his superi-
ors. The area personnel were due to come to his office
on Sunday morning , 22 July. Robinson desired to have
the information from his staff completed by 5 p.m.,
Friday, 20 July, so that he could work on it the follow-
ing day. The Friday deadline was imposed not only on
Mason but also on the three other key personnel as well.
CATV SERVICE CO 1083
Mason conceded that as field survey coordinator she
continued to perform the six categories of work which
she had been performing previously as project manager
Although she had previously also been responsible for
longdrop surveys and extensions, those items do not in-
volve construction. Robinson requested information con-
cerning construction and Mason conceded that as field
survey coordinator she coordinated construction for the
Port Murray system.
Mason did not meet the deadline of completing the
project by 5 p.m., Friday. At 7:30 that evening Robinson
told her to "put the information underneath the door of
my secretary" so that he would have it along with ev-
eryone else's on Saturday morning When Robinson ar-
rived at the office on Saturday Mason had not left the
information nor had she left a note indicating her
progress. Robinson tried to contact her by phone but
was unable to reach her and, accordingly, was very
upset During the course of the day Robinson discussed
the matter with another system manager and mentioned
how upset he was over Mason's failure to supply the in-
formation. The record contains testimony that the man-
ager of the Monmouth County system was terminated
partially because of his failure to provide timely informa-
tion during the budget process.
I credit Robinson's testimony that by Saturday
evening he had decided to terminate Mason . His decision
was reinforced on Sunday morning when the area per-
sonnel came to review the budget and Mason had still
not completed the project. Robinson was "embarassed"
and "apologetic." Mason confirmed this in the following
testimony:
Q. In this meeting with Mr. Robinson . . . on the
morning of the 22nd when Mr. Grace and Mr.
Monahan were also present did you receive the im-
pression that Mr. Robinson was displeased with
your performance?
A. Most definitely.
Q. How did you receive that impression?
A. He seemed angry when he was speaking. He
said it in no uncertain terms He said , I am very an-
noyed that I don't have this information and it's
very important and I need it immediately.
On 31 July Robinson advised Mason that she was
being terminated. I credit his testimony that he told her
at the time of termination that it was due primarily to
her failure to provide the budget information on time.
Although he may have mentioned secondary reasons as
well, it is clear to me that he was fearful of being embar-
assed before his superiors and he was very disturbed by
the fact that Mason did not finish the project when re-
quested.
Accordingly, I find that the General Counsel has not
made a prima facie showing sufficient to support the in-
ference that protected conduct was a motivating factor
in the decision to terminate Mason. Moreover, even if
the General Counsel were deemed to have established a
prima facie case, the evidence establishes that Mason
would have been discharged even in the absence of her
union activities. Therefore, the allegations that Respond-
ent violated Section 8(a)(1) and (3) of the Act are dis-
missed.
B. Supervisory Status
Respondent contends that Mason was a supervisor
within the meaning of Section 2(11) of the Act and, ac-
cordingly, was not entitled to the protection of the Act.
Mason conceded that the General Counsel Exhibit's 9 is
an accurate description of her duties and responsibilities
as project manager . The exhibit lists six categories of
work and states that such person "supervises and directs
construction personnel." Mason testified that she contin-
ued to perform the six categories after January 1984
when her title was changed to field survey coordinator.
Indeed, Mason replied affirmatively to counsel's state-
ment that "I had gotten you to agree that in fact you do
supervise and direct construction personnel." The record
also contains evidence that Mason gave employee, Louis
Usa, "directions as to which maps to work on." Accord-
ingly, I conclude that as field survey coordinator, Mason
was a supervisor within the meaning of Section 2(11) of
the Act.2
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3 Respondent has not engaged in the unfair labor
practices alleged in the complaint
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The complaint is dismissed.
2 Respondent also maintains that Mason was a managerial employee
and thus not entitled to the protection of the Act In view of my conclu-
sion that she was a supervisor, it is unnecessary for me to decide whether
she was also a managerial employee
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses