T.v.Cable of Savannah

National Labor Relations Board - Board Decisions

Jun 25, 1975

218 N.L.R.B. 838 (N.L.R.B. 1975)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T. V. Cable of Savannah and Local 120$ of the
International Brotherhood of Electrical Workers,
AFL-CIO. Case 10-CA-10869
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
June 25, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On March 31, 1975, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Charging Party filed excep-
tions and a supporting brief, and Respondent filed a
brief in answer to Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This case,
heard at Savannah, Georgia, on December 17, 1974,1
pursuant to an original charge filed August 16
(subsequently amended September 9), and a complaint
issued November 19, presents the question whether T. V.
Cable of Savannah 2 (herein the Respondent or Company)
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended (herein the Act), when it
discharged, on May 21, its employee, James A. McKenna.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after full consideration of
the briefs filed by counsel subsequent to the hearing, I
make the following:
Respondent is, and has been at all times material, a
corporation with its principal office and place of,business
located at Savannah, Georgia, where it is engaged in
furnishing cable television service. During the past calen-
dar year, which period is representative of all times
material, Respondent received revenues in excess of
$100,000 for such operations, and purchased and received
goods and supplies valued in excess of $50,000 directly
from suppliers located outside the State of Georgia.
I fmd, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I fmd that
at all times material, Local 1208 of the International
Brotherhood of Electrical Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As previously noted, the Respondent is engaged in
furnishing cable television service to the community of
Savannah, Georgia, and its environs. It appears that the
Company purchased the operation from a predecessor
company sometime in 1973. In 1972, the Teamsters Union
carried on an organizational campaign among the employ-
ees of the predecessor company and notified that company
on July 27, 1972, that certain employees were active on
behalf of the Teamsters. Included among such list of
employees, was one James A. McKenna, who is the alleged
discriminatee in this case. The Teamsters Union lost an
NLRB-conducted election in 1972.
In the spring of 1974, the Charging Union conducted an
organizational campaign among the Respondent's employ-
ees. In April, it filed a petition for an election with the
NLRB. Prior to the election, which was held on May 24,
the Company held several meetings with its employees in
an apparent effort to : (1) ascertain why the employees
wanted the Union to represent them, and (2) persuade the
employees to reject the Union. At such meetings, McKen-
na was one of the employees who spoke up and indicated
to the Respondent's officials that the employees sought out
the Union because of a breakdown in communication
between the employees and local management, and that it
was his opinion that the only way the employees could
better themselves was through the Union.3
McKenna was discharged by the Respondent on May
21. The General Counsel and the Charging Party contend
that the discharge was in order to discourage membership
in the Union, in violation of Section 8(a)(3) of the Act. The
Respondent asserts that the discharge was for cause; i.e.,
because McKenna falsified certain production records. We
1 All dates hereinafter refer to the calendar year 1974, unless otherwise 3 There is no allegation or contention by the General Counsel or the
in
1
i cated . Charging Party that anything stated by Respondent's officials at the
The correct name of the Company appears as amended at the hearing . meetings, or the meetings themselves, constituted a violation of the Act.
218 NLRB No. 132
T. V. CABLE OF SAVANNAH 839
come now to a consideration of the evidence relating to
this issue.
B. The Facts Concerning McKenna's Discharge
Prior to his discharge on May 21, McKenna had worked
for the Company approximately 6 years. His first job was
that of a warehouse manager , but for the last several years
he had performed the job as installer or technician. One of
the principal duties of this job was to disconnect subscri-
bers to the Company' s services if, (1) they no longer
desired the service, or (2) they failed to pay for the service.
In either case, the technician was ordered to make a
"disconnect." In such event, the technician went to the
residence of the subscriber and made the disconnect at
either the telephone pole, the grounding block (which was
normally at the place where the wires entered the
residence), or at the television set itself. The record reflects
that, of these three locations, the most proper one is at the
pole.
At all times material herein, McKenna had an infirmity
in one of his legs which made the climbing of a telephone
pole difficult. Indeed, he carried a wooden ladder with him
to climb the poles since he could not wear spikes. However,
it does not appear from the record that this infirmity
seriously impaired McKenna's performance as an employ-
ee. His supervisor, Eichenlaub, testified that neither
McKenna nor an employee named Riggs (who performed
the work in the same manner as McKenna) was less
productive than the other installers. In any event, prod-
uctivity was not a factor in McKenna's discharge; rather, it
was because of an alleged falsification of records concern-
ing two residences which were assigned to McKenna to be
disconnected, which he "signed off' as being disconnected,
but where the service was not, in fact, disengaged.
Thus, it appears that on April 22 McKenna was assigned
to disconnect the service at the residences of C. L. Phillips,
2413 Mississippi Avenue, Savannah, Georgia, and Jack
Paul, 21-C Chatham City Apartments, Garden City,
Georgia, among others. The evidence shows that McKenna
signed the work order as having been performed, and that
he left a door tag at each residence.4 McKenna testified
that on this day he was working with a fellow employee,
Gary Coursey, and that it was, in fact, Coursey who made
the disconnects at the respective telephone poles in both
instances.
However, the record shows that the "disconnects" were
not, in fact, made at that time. C. L. Phillips testified that
he telephoned the Company on May 3 to ascertain the
status of his account. He was advised by an office girl to
whom he spoke that his service had been disconnected.
4 A "door tag" is a notification which is affixed by the serviceman to the
customer 's front door notifying the customer that a disconnection has been
made by the serviceman in the customer 's absence.
5 Phillips' testimony is corroborated in its essential respects by that of
Mary Smith, the Company's office clerk. Additionally, she testified that,
following her telephone conversation with Phillips , she had the information
verified and learned that the residence had not been, in fact, disconnected.
She notified General Manager Weaver of this incident which was pursuant
to his general instructions to be notified of all such occurrences.
6 It appears that the previous year the Company had undertaken a
general audit of the facilities which involved an on-the-scene survey, i.e., a
house-to-house inspection, to ascertain the number of customers utilizing
Phillips responded, sardonically, that he wished the
Company would leave it disconnected because he was
getting better reception than ever before. Later that day, he
went to the office of the Company and paid for his service
which was 2 months in arrears. Phillips denied that anyone
had left a "door tag" at his residence indicating that the
service had been disconnected.5
General Manager Weaver testified that, following the
report of Mrs. Smith concerning the Phillips' case, he
determined that a general survey should be made of
disconnects for purposes of verification.6 Weaver instruct-
ed Mrs. Smith to pull 10 orders from each man that worked
the previous month on the "nonpaid disconnect cycle."
According to Weaver's testimony, he instructed Smith to
have the names and addresses listed on a separate sheet so
that he would not know the name of the technician who
performed any particular job. He then, along with two
other employees of the Company, worked one Saturday
verifying the addresses to see whether or not the service
was connected or disconnected. Following that, he had the
records checked to see whether any of those marked
"disconnected" had been, in the meanwhile, reconnected
so as not to unfairly accuse a serviceman who had
originally signed a work order as "disconnected." The
results of such an audit revealed only three names, viz,
Phillips, Paul, and another customer whom Coursey had
serviced.?
McKenna was terminated by Weaver on May 21 after
McKenna was unable to explain the circumstances
regarding the Phillips and Paul disconnects. According to
Weaver's testimony, McKenna did not remember them at
all, which was understandable with as much work as was
done in a month's time. Weaver gave McKenna the option
of resigning or taking a discharge, and McKenna chose the
latter.
C. Analysis and Concluding Findings
The record shows that at all times material Respondent
had in force and effect a rule which stated as follows:
"An employee performing a paper work (falsifying)
disconnect will be subject to immediate dismissal for
cause." 8
The record further shows that Respondent made known
to the employees at regular intervals the existence of such
rule, particularly following the results of the audit
hereinabove referred to. McKenna indicated his awareness
of the rule; i.e., "I think it was told to us that we would be
dismissed if we didn't disconnect them when we were
supposed to ... I've been hearing that every since 1968."
the service without paying for it (another term used in the industry for such
"customers" is "poachers"). From a technical point of view, this is actually
the only procedure which can be utilized in order to make such a
determination since there is no technology from which it can be learned
electronically . The audit revealed that there were a substantial number of
persons who were utilizing the Company's services without paying for them,
to the obvious economic detriment of the Company. '
7 Coursey left the Respondent's employment about a week or two prior
to McKenna's discharge on May 21. He was not called as a witness in this
proceeding.
8 See Resp. Exh. 10, p. 37.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He agreed that such misconduct constituted grounds for
dismissal.
The evidence further indicates that the 'Company
consistently discharged employees who it learned had
committed such falsifications. In the period since the
Respondent purchased the operation in 1973, there were
only three individuals who fell into this category; their
names were Bargeron, Dixon, and Mills. It was the
testimony of Supervisor Eichenlaub, a witness for , the
General Counsel, that he discharged Bargeron and Dixon
for "not doing the work they claimed they were doing,"
and that he had the intention of discharging Mills.
However, in the latter case, upon examination it was
determined that Mills had not really made an error at all
since the residence he claimed he performed the work was
in fact disconnected but was later "reconnected" before a
check was made. Accordingly, Mills was not discharged
and Eichenlaub apologized to him. Thus, no employee who
was found to have committed such misconduct is still
working for the Company.
However, counsel for the General Counsel argues in his
brief that McKenna's preeminence in the union campaign
to which Respondent was opposed, plus the timing of the
discharge (3 days prior to the election) indicated the
pretextuous nature thereof. He also pointed to the
testimony of employee Ray Strip whom Weaver told
sometime prior to the election that the Company would not
have the union problem again if they got rid of the
employees who were "causing the trouble" 9
Under all circumstances, I cannot agree that counsel for
the General Counsel has sustained his burden of proof in
this case . The fact is that at all times Respondent
maintained a rule subjecting employees to discharge for
falsifying records; that McKenna was aware of such rule,
but nevertheless he signed the order which stated that the
work had been performed when, in fact, it had not. It may
be reasonably assumed from McKenna's good work record
with the Company and the lack of any evidence that he
stood to gain from such conduct that there was not an
intent on his part to defraud. However, the record shows
that the Company consistently discharged employees who
engaged in such misconduct even before the union
campaign commenced, and no employee who engaged in
9 However, on cross-examination , it was brought out that in Strap's
preheating affidavit he referred to the fact that Weaver mentioned
employees Harry Shuman , John Wesley Mills, and Howard Purvis, Jr., as
union stalwarts, making no mention of McKenna. All three of the named
individuals are presently employed at the Company.
10 Cf. Botany Worsted Mills, 4 NLRB 292, 300 (1937); Montgomery Ward
do Co. v. N.L.RB., 107 F.2d 555, 563-564 (C.A. 7, 1939).
such misconduct .- remained in the Company 's employ after
it was discovered . Thus , an essential element in an 8(a)(3)
violation is missing in this case ; i.e., "discrimination."
Discrimination means ' to treat like situations differently,
and, as pointed out, this simply did not occur here - the
Company treated all employees guilty of misconduct in the
same manner whether they were active union members or
not.10
Moreover, the fact that the Respondent may have
desired to get rid , of McKenna because of his union activity
does not necessarily make his discharge unlawful. As the
Board said in date Holt Company, 161 NLRB 1606, 1612
(19,66): "The rnere fact that an employer may desire to
terminate an employee because he engages in unwelcome
concerted , activities does not, of itself, establish the
unlawfulness of a subsequent discharge . If an employee
provides , an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would have
been terminated in any event , and the employer discharges
him for that reason, the circumstance that the employer
welcomed the opportunity to discharge does not make it
discriminatory and therefore unlawful."
See also .N.L.B.B. v. Birmingham Publishing Company,
262 F .2d 2, 9 (C.A. 5, 1958).
Accordingly, I shall recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. T. V. Cable of Savannah is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not, as alleged in the complaint,
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER11
The complaint is dismissed in its entirety.
11 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.