TIME WARNER CABLE NEW YORK CITY, LLC

National Labor Relations Board - Board Decisions

Jun 22, 2018

366 NLRB No. 116 (N.L.R.B. 2018)

366 NLRB No. 116
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Time Warner Cable New York City, LLC and Local
Union No. 3, International Brotherhood of Elec-
trical Workers, AFL–CIO. Case 02–CA–126860
June 22, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On June 14, 2016, Administrative Law Judge Michael
A. Rosas issued the attached decision. The General
Counsel, the Charging Party, and the Respondent each
filed exceptions, supporting briefs, answering briefs, and
reply briefs. The General Counsel also filed a motion to
expedite decision.1
The National Labor Relations Board has delegated 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 and findings only to the extent
consistent with this Decision and Order.
The primary issue in this case is whether the Respond-
ent lawfully suspended four employees for participating
in a demonstration outside the Respondent’s facility on
April 2, 2014. The General Counsel alleges that these
suspensions violated Section 8(a)(3) and (1) of the Act.
That issue hinges on whether the demonstration, and the
employees’ participation in it, constituted protected con-
certed activity under Section 7 of the Act. For the rea-
sons explained below, and in the particular circumstances
of this case, we agree with the Respondent that the em-
ployees participated in unprotected activity and that the
Respondent was legally free to discipline them for doing
so. Accordingly, we find that their suspensions did not
violate the Act.2

1 The motion to expedite, by its terms, was rendered moot by the is-
suance of a summary order by the United States Court of Appeals for
the Second Circuit in Time Warner Cable of New York City LLC v.
IBEW, AFL–CIO, Local Union No. 3, 684 Fed. Appx. 68 (2d Cir.
2017), affirming Time Warner Cable of New York City LLC v. IBEW,
AFL–CIO, Local Union No. 3, 2016 WL 1043049 (E.D.N.Y. 2016).
On April 8, 2016, the Board denied the Respondent’s motion for sum-
mary judgment.
2 Because the parties dispute whether they have an arbitration pro-
cedure in force, and the Respondent has indicated that it would oppose
the refiling of the Union’s grievance contesting the discipline based on
the assertion that the Union earlier withdrew it with prejudice, we reject
the Respondent’s argument that the Board should defer this case to
arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971).
For reasons explained below, we affirm the judge’s finding that the
Respondent unlawfully interrogated employees who participated in the
demonstration.
I. THE SUSPENSIONS
A.
The Respondent operates a number of facilities in New
York City and New Jersey, including the one at issue
located on Paidge Avenue in Brooklyn. That facility
provides telephone and other electronic services to cus-
tomers in southern Manhattan. Its staff includes techni-
cians who make service calls and “foremen” to whom
those technicians report. The Union represents the tech-
nicians and the foremen in a single multi-facility unit.3
The parties’ most recent regional collective-bargaining
agreement expired on March 31, 2013.4
On April 1, 2014, the Respondent issued 2-day sus-
pensions to several foremen at Paidge Avenue, including
two of the alleged discriminatees in this case—Ralf An-
derson and Frank Tsavaris—for violating a new require-
ment that they carry tools at work. Anderson and Tsava-
ris informed Derek Jordan, the Union’s business agent,
of their suspensions, and also that no shop steward was
present when Anderson received his suspension. Jordan
and other union representatives then called a “safety
meeting” for unit members outside the facility for the
next morning.
Shortly before 6:30 a.m. on April 2, Jordan positioned
his car outside the facility in the middle of Paidge Ave-
nue, perpendicular to traffic. By 6:33 a.m., at Jordan’s
direction, six employees had similarly put their cars in
adjacent positions in front of the facility’s vehicular ac-
cess points, also blocking the street. The effect was to
prevent vehicles from entering the block or entering the
facility, and also to prevent the Respondent’s service
trucks from departing for work assignments. There is no
dispute that this obstruction caused a “ripple effect” of
delayed or missed service appointments for the rest of
the day.
Over the next hour, about 50 employees, many of
whom were scheduled to start work between 6:30 and 8
a.m., gathered on foot around the cars blocking the street.
During that period, Jordan and other union representa-
tives who were present handed out fliers on workplace
safety and Weingarten rights. The participating employ-
ees remained in that location until about 7:30 a.m., when
Jordan gathered the participants around him, still in the
middle of the street, and addressed them on the same

3 Although three of the four alleged discriminatees were classified
by the Respondent as “foremen,” there is no longer any contention that
they were supervisors within the meaning of the Act.
4 As the Board has already found, although the parties attempted to
negotiate a successor contract, they failed to reach a complete agree-
ment. See Local 3, IBEW (Time Warner Cable NYC), 363 NLRB No.
30 (2015).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
topics. The gathering broke up at about 8 a.m., and the
blocking cars were removed.5
Anderson, Tsavaris and the other two alleged discrim-
inatees (Diana Cabrera and Azeam Ali) were not sched-
uled to work at the time of the “safety meeting.” All
four, however, had been informed in advance that the
meeting had been scheduled and were among those who
came to the event.
The Respondent was able to identify several of the
employees who were present at the car blockage, includ-
ing the four alleged discriminatees, from video taken by
its external surveillance cameras. As further discussed
below, those employees were summoned to interviews
by management a few weeks later and questioned about
their involvement in the event. On May 22, 2014, the
Respondent issued 2-week suspensions to seven of the
employees interviewed, including the four alleged dis-
criminatees.6
B.
The Respondent initiated a grievance/arbitration pro-
ceeding against the Union for damages and other relief,
contending that the April 2 demonstration violated the
no-strike clause in the parties’ collective-bargaining
agreement, which prohibited any “cessation or stop of
work, service or employment.” The parties voluntarily
agreed to submit this question to arbitration.7
On December 12, 2014, an arbitrator found that the
Union’s “‘safety meeting’ was a pretext”; that “the man-
ner in which the meeting was conducted impeded ready
access to the Company’s Pai[d]ge Avenue facility for all

5 At some point during the blockage, the Respondent’s security of-
fice called the police, and officers came to the scene. Jordan assured
them the gathering would soon disperse, and there was no additional
police involvement.
6 The alleged discriminatees and approximately 34 other employees
also received final written warnings. The complaint does not allege
that any of these warnings was unlawful.
7 In the arbitration proceeding, the Union challenged the arbitrator’s
jurisdiction on the ground that the no-strike and arbitration clauses in
the parties’ expired collective-bargaining agreement had not been ex-
tended to the time of the April 2 demonstration. Without ruling on
whether those clauses had been extended, however, the arbitrator found
that he had independent jurisdiction, from the parties’ initial joint sub-
mission of the grievance to him, to make a binding determination of
whether the demonstration violated the terms of the no-strike clause.
The arbitrator’s determination that the parties had voluntarily agreed to
submit this specific question to arbitration was subsequently affirmed
by both the District Court and the Court of Appeals. Time Warner
Cable of New York City LLC v. IBEW, AFL–CIO, Local Union No. 3,
684 Fed. Appx. 68 (2d Cir. 2017), affirming Time Warner Cable of
New York City LLC v. IBEW, AFL–CIO, Local Union No. 3, 2016 WL
1043049 (E.D.N.Y. 2016).
While the Board intervened in that litigation in support of the Un-
ion’s contention that the no-strike and arbitration clauses had not been
extended, given that neither the arbitrator nor the reviewing courts
reached that question, we need not address it here.
employees seeking to report to work [and] effectively
and materially impeded the Company’s normal business
operations”; that “[t]he timing of the Union meeting in
order to involve bargaining unit employees and the con-
duct of this meeting until long past their scheduled start
times exacerbated the impact on the Company’s installa-
tion and service operations”; and that by this action the
Union violated the no-strike clause.8 The arbitrator’s
decision was subsequently confirmed and enforced by a
federal district court and by the United States Court of
Appeals for the Second Circuit.9
C.
In the Board proceeding, the judge discredited Busi-
ness Agent Jordan’s testimony that the April 2 gathering
was a “safety meeting.” The judge found (as did the ar-
bitrator) that Jordan “orchestrated a work stoppage by
positioning vehicles in the middle of the street and in-
structing employees to gather there in order to impede
company operations commencing with the 7 and 7:30
a.m. shifts.”
The judge also found “no credited evidence” that the
four alleged discriminatees knew beforehand that Jordan
planned a work stoppage or that the “safety meeting”
would block ingress and egress to the Respondent’s facil-
ity. The judge further found that for an hour after the
blocking cars were placed in position, employees, includ-
ing the alleged discriminatees, arrived on the scene and
mingled around and between those cars. They then con-
centrated into a smaller space on the street to hear Jordan
and other union officials speak. The employees dis-
persed only when the cars were removed.
The judge concluded that the alleged discriminatees
“went to the gathering on Paidge Street for a union meet-
ing relating to working conditions, disciplinary actions,
grievances and employees’ Weingarten rights,” and that
they “were part of the group of employees who gathered
in front of the Company’s facility after the blockade was
in place.” With respect to the gathering, however, the
judge reasoned that the employees “simply stood in the
crowd and had no involvement in constructing the vehic-
ular blockade” of the Respondent’s facility. According-
ly, in the judge’s view, the alleged discriminatees did
nothing, physically or verbally, that contributed to the
blocking of access to the facility. On this ground, he
found that the employees engaged only in concerted ac-
tivity protected under Section 7, and that their suspen-
sions by the Respondent were consequently unlawful.

8 On November 30, 2015, the arbitrator issued a final award of over
$19,000 in damages to the Respondent, payable by the Union.
9 See fn. 7.
TIME WARNER CABLE NEW YORK CITY, LLC 3
D.
For the following reasons, we disagree with the
judge’s analysis. It is well established that “employees
who engage in conduct that is unlawful, either under the
Act or for reasons extrinsic to it, or who pursue ends or
employ means that are incompatible with the Act, are
engaged in unprotected activity, and thus can be dis-
charged therefor.” Correctional Medical Services, 349
NLRB 1198, 1201 (2007), rev. granted on other grounds
sub nom. Civil Service Employees Assn., Local 1000,
AFSCME v. NLRB, 569 F.3d 88 (2d Cir. 2009). One
example of such unprotected conduct is participation in a
group action that violates a no-strike clause. See Mastro
Plastics Corp. v. NLRB, 350 U.S. 270, 280 (1956).10
As described above, the parties voluntarily agreed to
submit to an arbitrator the question whether the events of
April 2 violated the terms of the no-strike clause. The
arbitrator found that the Union, by blocking the entrances
to the Respondent’s facility during the April 2 demon-
stration in a manner that “impeded ready access” and
“effectively and materially impeded the Company’s
normal business operations,” violated the terms of the
parties’ no-strike clause, which was not limited to simply
withholding one’s labor when scheduled to work. The
district and appellate courts subsequently confirmed and
enforced that decision in a proceeding in which the
Board intervened.11

10 There are potential exceptions to this basic rule, such as where
employees violate a no-strike clause to protest their employer’s serious
unfair labor practices. See Mastro Plastics, supra, 350 U.S. at 280–
282; Arlan’s Department Store of Michigan, 133 NLRB 802 (1961).
But no exception is implicated by the present case.
We also observe that employees engage in unprotected misconduct
when they block access to their employer’s facility. E.g., International
Brotherhood of Electrical Workers Local 98 (Tri-M Group), 350 NLRB
1104, 1107–1108 (2007), enfd. 317 Fed.Appx. 269 (3d Cir. 2009), and
authorities cited therein; Tube Craft, 287 NLRB 491, 492–493 (1987).
Cf. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 256 (1939)
(where employees occupied employer’s buildings “in order to prevent
their use by the employer in a lawful manner . . . they took a position
outside the protection of the statute”). This is true even where a block-
age does not involve actual violence, or is brief in time. Tri-M Group,
supra, 350 NLRB at 1107–1108; Metal Polishers Local 67, 200 NLRB
335, 336 fn. 10 (1972); Longshoremen & Warehousemen Local 6 (Sun-
set Line & Twine), 79 NLRB 1487, 1506 (1948). But given the arbitra-
tor’s and the courts’ findings that the April 2 demonstration violated the
parties’ no-strike clause, as explained below, we need not rely on these
cases here.
11 The Second Circuit, in rejecting the Union’s argument that the
April 2 demonstration did not violate the terms of the no-strike clause
and confirming the arbitrator’s decision, noted that “[t]he arbitrator
found . . . that union members were not in fact orderly because they had
blocked vehicular access to Time Warner’s facility.” Time Warner
Cable of New York City v. IBEW Local. 3, supra, 684 Fed Appx. at 71–
72 (2d Cir. 2017), quoting Tri-M Group, supra, 350 NLRB at 1107.
Given the particular procedural history of this matter,
we treat it as established that the April 2 demonstration
violated the parties’ no-strike clause. Thus, the demon-
stration never was protected by the Act. It follows that
employees who participated in that demonstration, re-
gardless of the nature of their participation, were them-
selves engaged in unprotected activity and were subject
to discipline.12
On the facts presented here we find, contrary to the
judge, that the alleged discriminatees in this case were
among the participants in the April 2 demonstration. The
judge reasoned that the alleged discriminatees “simply
stood in the crowd” and did nothing to contribute to the
blockage. This line of reasoning assumes that the em-
ployees’ mere participation in the demonstration could
not have subjected them to discipline. But that assump-
tion is incorrect in the circumstances of this case.13
The record shows that the employees became aware,
no later than their arrival at the Respondent’s facility,
that the Union’s arrangement of cars in the street was
blocking access to the facility, as well as the street ad-
joining it. Further, it was clear that other employees had
joined the blockage by gathering closely among and
around those cars.14 The alleged discriminatees then
joined that gathering and similarly milled among the
blocking cars. They remained in that strategic location

12 Contrary to our dissenting colleague’s assertion, this conclusion is
not premised on a finding that “a no-strike clause was in effect” on
April 2 by virtue of a previous agreement by the parties to extend, in
whole or in part, their collective-bargaining agreement. Rather, we are
simply acknowledging that we do not write on a clean slate in this case.
The parties themselves specifically asked the arbitrator to determine
whether the April 2 demonstration violated the terms of the no-strike
clause. We merely follow the arbitrator’s determination, later enforced
by the reviewing courts, that the demonstration did violate that no-
strike clause, which means it never enjoyed the protection of the Act.
While the Board is not bound by the arbitrator’s determination, as our
dissenting colleague emphasizes, we are not barred from holding the
parties to it in the particular circumstances of this case.
We also observe that the Respondent’s argument that the four al-
leged discriminatees’ actions were unprotected is similarly based on
their having “aided and abetted” the mass blockage of access to the
Respondent’s facility, thereby violating the parties’ no-strike clause.
The Respondent does not contend that the alleged discriminatees were
strikers as a matter of Board law. By the same token, our adoption of
the arbitrator’s and the courts’ finding that the blockage violated the
no-strike clause and was therefore unprotected is not a finding that
these four employees were strikers.
13 As a result, we need not pass on the question whether the Re-
spondent lawfully could have disciplined the employees even in the
absence of their participation in the April 2 demonstration. Likewise,
we find it unnecessary to rely on the judge’s distinction between “ac-
tive” and “passive” participation, or the cases he cites involving an
employee’s loss of protection due to his own misconduct.
14 It is thus irrelevant that, as the judge found, the alleged discrimi-
natees were not shown to have known the nature of the Union’s unpro-
tected demonstration before they arrived at the scene.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
with the other participating employees until the termina-
tion of the demonstration, which lasted 90 minutes. In
these circumstances, we have little trouble finding that
the alleged discriminatees participated in the Union’s
unprotected demonstration, thereby exposing themselves
to discipline.15
The General Counsel, as did the judge, emphasizes
that the initial blockage of access to the Respondent’s
facility was imposed by Business Agent Jordan and the
drivers of the blocking cars, that the alleged discrimi-
natees arrived after the cars were in place, and that none
of the alleged discriminatees was shown to have engaged
in any violent or disruptive action. He further attempts
to distinguish the alleged discriminatees’ actions from
the direct, face-to-face blocking of access that occurred
in some other cases in which the Board found that em-
ployees’ misconduct deprived them of the Act’s protec-
tion while they were initially engaged in protected activi-
ty.16 These arguments, however, fail to come to terms
with the fact that the alleged discriminatees made them-
selves part of what was—in the particular circumstances
of this case—an unprotected demonstration and were
disciplined for that reason. Whether the alleged discrim-
inatees initiated that demonstration, whether they acted
peacefully, and whether their participation was necessary
to effectively block access to the facility, is all beside the
point. What matters, rather, is that the employees were
not mere bystanders and that the activity for which they
were disciplined—participation in a demonstration that,
because it violated the no-strike clause, was never pro-
tected—was not itself protected concerted activity under
the Act.17

15 We reject the contention of the General Counsel and the Union
that the Respondent’s discipline of the alleged discriminatees should be
analyzed, and found unlawful, under the framework established in
NLRB v. Burnup & Sims, 379 U.S. 21 (1964). That analytical frame-
work applies where an employer mistakenly disciplines employees for
misconduct that purportedly occurred in the course of their protected
activity and the employer’s mistake was of fact, not of law. Three D,
LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB 308, 313 fn.
20 (2014), affd. 629 Fed. Appx. 33 (2d Cir. 2015). Those circumstanc-
es are absent here. Employees are protected under Burnup & Sims only
where they are shown not to have committed the purported misconduct
for which they were disciplined.
16 See, e.g., Unite Here! Local 5 (Aqua-Aston Hospitality, LLC,
d/b/a Waikiki Beach Hotel and Hotel Renew), 365 NLRB No. 169
(2017), and authorities cited therein.
17 That fact distinguishes this case from Altorfer Machinery Co., 332
NLRB 130 (2000), and Detroit Newspapers, 342 NLRB 223 (2004),
cited by our dissenting colleague. In both of those cases, employees
were engaged in a lawful strike and lawful strike activities, and some
employees were found not to have lost statutory protection simply by
being present on occasions when other strikers committed individual
acts of misconduct. Here, by contrast, the group activity was unpro-
tected from the outset, the alleged discriminatees deliberately joined it,
and they were disciplined accordingly.
We therefore conclude that the Respondent did not vi-
olate the Act by suspending the employees.
II. THE INTERROGATIONS
As noted above, the Respondent summoned the em-
ployees whom it had identified by video as being present
at the April 2 event to investigatory interviews. In these
interviews, the employees were asked a series of ques-
tions from a prepared script. The questions included:
“Who told you about this gathering?”; “When did you
receive notification of the gathering?”; “How was this
event communicated to you?”; and, “What were you told
about the reason for the protest?” Employees were also
asked whether they had “reviewed the CBA,” and wheth-
er they were familiar with its no-strike clause, which the
Respondent read aloud to them.
If an employee said she was not told about the event or
asked to participate, she was asked in addition, “[w]hy
did you remain outside?” Employees who were not
scheduled to work at the time of the incident (including
the four alleged discriminatees) were also asked, “Why
did you come to work? Did anyone in management di-
rect you to come to work?” The foremen and the steward
who had been suspended on April 1 were similarly asked
why they had “come to work.”18 The judge found all of
the above questions unlawfully coercive.
The Respondent was investigating a demonstration at
its facility which, as has been established, was unprotect-
ed. The Respondent therefore had the right to inquire
about the employees’ and the Union’s participation in
that event to a greater extent than if no unprotected con-
duct had occurred or if it were interviewing employees
who clearly were only bystanders.19 That inquiry, how-
ever, also had the potential to intrude into protected em-
ployee activity. The Respondent’s inquiry was accord-
ingly required to focus closely on the unprotected mis-
conduct and to minimize intrusion into Section 7 activi-
ty.20
Moreover, the Respondent, through its video, had al-
ready established specifically what had happened, and it
had identified by the same means many of the employees
who participated in the event. There was therefore no
need for the Respondent to inquire into the activity of
any employees prior to the event, except (as the judge
recognized) specifically to identify the additional indi-

18 The Respondent confirmed at the hearing that the question “Why
did you come to work?” meant “Why did you come to the area of the
Paidge Avenue location?”
19 E.g., St. Francis Regional Medical Center, 363 NLRB No. 69, slip
op. at fn. 2 (2015); Fresh & Easy Neighborhood Market, 361 NLRB
151. 159 (2014); Alton Box Board Co., 155 NLRB 1025, 1041 (1965).
20 Id.
TIME WARNER CABLE NEW YORK CITY, LLC 5
viduals who were actual participants in the demonstra-
tion.21
In this light, the judge was correct that at least three of
the Respondent’s questions—“Who told you about this
gathering?” “When did you receive notification of the
gathering?” “How was this event communicated to
you?”—were unlawfully coercive under Section 8(a)(1).
These questions intruded into Section 7 communications
between employees without directly seeking identifica-
tion of other individuals who were present at and partici-
pated in the unlawful demonstration. Because the reme-
dy for the additional questions posed by the Respondent
that the judge found unlawful – a cease-and-desist prohi-
bition of such questions, included in the notice-posting –
would be essentially cumulative of the remedy for the
questions we have found unlawful, we need not reach the
legality of those additional questions.
ORDER
IT IS ORDERED that the Respondent, Time Warner Ca-
ble New York City, LLC, New York, New York, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Brooklyn, New York, copies of the attached
notice marked “Appendix.”22 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-

21 There are no exceptions to the judge’s findings that the Respond-
ent could lawfully inquire as to “the perpetrators of the vehicular
blockade,” and could ask questions to confirm “the employee’s pres-
ence in front of the facility on April 2, their arrival time, how they got
there, whether they drove a company vehicle, and where they parked.”
22 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 2, 2014.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. June 22, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER PEARCE, dissenting in part.
I disagree with my colleagues’ decision to reverse the
judge and dismiss the complaint allegation that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
suspending employees Ralf Anderson, Frank Tsavaris,
Diana Cabrera, and Azeam Ali for 2 weeks each. The
four employees were clearly engaged in protected con-
duct when attending a union meeting on April 2, 2014,
concerning the Respondent’s discipline and change in
work rules. And simply put, the four employees did not
commit the acts of which they were accused, i.e., insti-
gating and participating in an illegal work stoppage in
violation of a collective-bargaining agreement no-strike
clause and interfering with ingress to and egress from the
Respondent’s facility.
Contrary to the conclusion of my colleagues, the em-
ployees did not act in violation of a no-strike clause be-
cause the contract containing that no-strike clause had
expired. In fact, the Board previously held that these
very parties had not agreed to a successor contract by the
time of the events in question. See Electrical Workers
IBEW Local 3 (Time Warner Cable), 363 NLRB No. 30,
slip op. at 16 (2015). It is well-settled that a no-strike
clause does not survive an expired contract. See Lincoln
Lutheran of Racine, 362 NLRB No. 188, slip op. at 3–4
(2015). Even if sincerely held, the Respondent’s mistak-
en belief—that on April 2, there was in effect a valid
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
collective-bargaining agreement containing a no-strike
clause—does not insulate it from liability. See NLRB v.
Burnup and Sims, Inc., 379 U.S. 21, 23–24 (1964) (“A
protected activity acquires a precarious status if innocent
employees can be discharged while engaging in it, even
though the employer acts in good faith.”)
My colleagues nevertheless treat it as established—for
purposes of evaluating the legality of the four suspen-
sions at issue here—that the April 2 gathering violated
the parties’ no-strike clause based on an arbitration deci-
sion that awarded the Respondent damages caused by the
Union’s April 2 conduct. I respectfully disagree. In the
first place, the arbitrator’s decision that was confirmed
by the district court was not premised on the existence of
a collective-bargaining agreement containing a no-strike
clause. Rather, as the district court explained, the arbi-
trator merely assumed for purposes of that specific arbi-
tration that a no-strike clause was in effect, and the arbi-
trator was entitled to do so because the parties had spe-
cifically agreed to arbitrate (via a separate agreement) the
question whether the no-strike clause had been breached
by the union. And the district court enforced the award
on the basis of that specific agreement to arbitrate the
Union’s liability, not on the basis of a collective-
bargaining agreement containing a no-strike clause. See
Time Warner Cable of New York City LLC v. IBEW,
AFL–CIO, Local Union No. 3, 170 F.Supp.3d 392, 399,
418–419 (E.D.N.Y. 2016), affd. 684 Fed.Appx. 68 (2d
Cir. 2017).1
The district court’s decision also makes clear that the
Board and the arbitrator were free to reach their own
separate and even “inconsistent[]” conclusions. Id. at
399, 418–419.2 And the arbitrator simply did not address

1 See also id. at 418 (emphasis added in part):
Under the magic of the broad federal arbitration statute, an arbitration
may be specifically authorized by the parties to decide whether a non-
operative no-strike clause has been violated, and to assess damages.
For the purposes of the specific arbitration, the no-strike clause in the
CBA, as well as the CBA itself, could be assumed to be operative by
the arbitrator.
2 See also id. at 418:
According to Local 3 and the NLRB, the arbitrator’s decision is unen-
forceable as against public policy because it is based on a no-strike
provision included in a CBA that the NLRB concluded was not opera-
tive. ***
Giving full effect to the NLRB’s decision does not divest the arbitrator
of jurisdiction. The separate, free-standing, valid, specific arbitration
agreement expressly granted the arbitrator the authority to decide the
dispute “as if there were a more general agreement not to strike.”
***The arbitrator was not tasked with determining whether the CBA
was valid. Neither of the two relevant NLRB proceedings have pre-
the legality of the suspensions. Indeed, the district court
noted that the case involving the four discriminatees is a
different case involving different parties and a different
issue before a different adjudicatory authority. Id. at
418. In short, it is my colleagues, not me, who are at-
tempting to wipe the slate clean of both the Board’s prior
holding—that the parties had not reached a successor
collective-bargaining agreement at the time of the events
in question—and the district court’s acknowledgement
that the Board and the arbitrator were free to reach in-
consistent conclusions regarding whether a no-strike
clause was in effect at the time of the events in question.
Nor were the four employees guilty of the other
charged misconduct. To be sure vehicles were parked in
the middle of the street in front of the Respondent’s facil-
ity in such a manner as to block ingress and egress.
However, that conduct is not fairly chargeable to the four
employees. It is undisputed that they did not park the
vehicles that obstructed the Respondent’s operations,
request that the vehicles be parked in that location, or
even know the vehicles would be situated there when
they learned of the union’s meeting. Nor did they con-
tribute to the obstruction. As the judge found, the four
employees were passive participants whom the Respond-
ent knew “simply stood in the crowd and had no in-
volvement in constructing the vehicular blockade of the
[Respondent]’s facility and operations.” Cf., Altorfer
Machinery Co., 332 NLRB 130, 132, 141–142, 148
(2000) (disciplined employee’s mere presence at scene of
misconduct does not establish that the employee was
guilty of engaging in the statutorily-recognized miscon-
duct that actually did occur that day); Detroit Newspa-
pers, 342 NLRB 223, 230–231 (2004) (though present at
the scene, discharged employee was not guilty of the
charged misconduct). Therefore, I agree with the judge
that the Respondent unlawfully suspended employees

clusive effect on the narrow, separate dispute that the parties in the in-
stant case specifically submitted to arbitration:
THE COURT: [T]here may be inconsistencies in the deci-
sions, but that is not a reason for my denying the enforceabil-
ity of . . . a separate decision on your part to go forward with
an arbitration as if there were a contract, CBA, that you had
signed.
[. . .]
[T]he fact that another adjudicatory authority is making a de-
cision involving different personnel, different parties, four
workers, different from the one that the arbitrator decided, it
does not bother me at all. I do not see any collateral estoppel
problem.
***
The award of the arbitrator for money damages based on the specific
agreement to arbitrate does not violate public policy. It can be en-
forced with no disrespect for the NLRB decision.
TIME WARNER CABLE NEW YORK CITY, LLC 7
Anderson, Tsavaris, Cabrera, and Ali for their attendance
at the union meeting.
Accordingly, as to this issue, I respectfully dissent.
Dated, Washington, D.C. June 22, 2018
______________________________________
Mark Gaston Pearce, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
TIME WARNER CABLE NEW YORK CITY, LLC
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-126860 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, SE., Washington, D.C. 20570, or
by calling (202) 273–1940.
Allen M. Rose and Joseph Luhrs, Esqs., for the General Coun-
sel.
Kenneth A. Margolis, Esq. (Kauff McGuire & Margolis, LLP),
of New York, New York, and Kevin M. Smith, Esq. (Time
Warner Cable), of New York, New York, for the Respond-
ent.
Robert T. McGovern, Esq. (Archer, Byington, Glennon & Lev-
ine, LLP), of Melville, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
arises out of union strike activity that occurred in front of Time
Warner Cable New York City, LLC’s (the Company) facility at
Paidge Avenue in Brooklyn, New York, during the morning of
April 2, 2014.1 During its subsequent investigation, the Com-
pany questioned employees regarding their participation in the
work stoppage and disciplined numerous employees. Most
employees who were present received final warning letters.
However, seven employees deemed to have engaged in the
most serious misconduct received 2-week suspensions. Three
were suspended because they engaged in active misconduct by
constructing a vehicular blockade of company operations. The
other four employees—Diana Cabrera, Azeam Ali, Ralf Ander-
son and Frank Tsavaris—were suspended because they were
off duty at the time and had no legitimate reason to be at that
location.
This case was tried in New York, New York, on April 11–
13, 2016. Local Union No. 3 International Brotherhood of Elec-
trical Workers AFL–CIO (the Union or Charging Party) filed
and served the charge and amended charge on April 18 and
August 19, 2014, respectively, and the General Counsel issued
the second amended complaint on March 31, 2016. The com-
plaint alleges that the Company’s questioning of employees
following the strike constituted coercive interrogation in viola-
tion of Section 8(a)(1) of the National Labor Relations Act2 and
that its suspensions of Cabrera, Ali, Anderson, and Tsavaris
unlawfully discriminated against them in violation of Section
8(a)(3) because they engaged in protected union activity initiat-
ed by the Union.
The Company alleges that the four discriminatees did not
engage in protected conduct because (1) at the time of the
events in question, their actions contravened the no-strike provi-
sion in a collective-bargaining agreement (CBA), and (2) they
participated in mass picketing that interfered with ingress to
and egress from the Company’s facility.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Party and the Company, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a domestic limited liability company, is en-
gaged in providing cable television, telephone and high speed

1 All dates are 2014 unless otherwise indicated.
2 29 U.S.C. §§ 158(a)(1), et seq.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
internet services at its facility in Brooklyn, New York, where it
annually derives gross revenues in excess of $100,000 and
purchases and receives goods, supplies, and utilities valued in
excess of $5000 directly from suppliers outside the State of
New York. The Company admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations
The Company operates six divisions in the New York City
metropolitan area: Northern Manhattan, Southern Manhattan,
Brooklyn, Queens and Staten Island, New York, and Bergen
County, New Jersey (collectively referred to as the six facilities
or divisions). The Southern Manhattan Division, headquartered
in an expansive facility located on Paidge Avenue in Brooklyn
(the facility), provides service (television, internet, security, and
telephone) to all of the Company’s residential and commercial
customers in Manhattan south of 86th Street. It houses dispatch,
communications, technical operations (installation, service, and
repair), construction, and survey and design personnel and
equipment. The facility encompasses executive offices, an
indoor garage, outside parking areas, a staff of over 600 (in-
cluding various kinds of technicians, foremen, and managers) as
well as a fleet of company vehicles. The facility is next door
to a New York City Fire Department annex that houses large
emergency vehicles.
B. The Collective-Bargaining Relationship With The Union
The Union has represented company employees at the six fa-
cilities for over 10 years. CBAs reached between the Company
and Union in 2005 and 2009 were each accompanied by Riders
specific to each facility and preceded by a comprehensive
memorandum of agreement (MOU). The 2009 CBA expired on
March 31, 2013. It contained, in pertinent part, a no-strike
clause at section 31: “There shall be no cessation or stoppage of
work, service or employment on the part of or the instance of
either party, during the term of this agreement.”
On January 3, 2013, prior to the commencement of bargain-
ing over a successor CBA, a bargaining unit employee at one of
the six locations filed a decertification petition with Region 22
seeking to decertify the Union as the collective-bargaining
representative of employees at that facility. After a hearing, the
Regional Director for Region 22 dismissed the petition on the
ground that the most appropriate unit in the decertification con-
text should have been a multi-location unit consisting of the six
facilities. The Company did not contest that decision and sub-
sequently agreed with the Union that all six facilities would be
treated as one single bargaining unit.
C. Negotiations for a Successor Agreement
Thereafter, bargaining resumed and the parties executed an
MOU on March 28, 2013 summarizing agreed-upon changes to
the expiring CBA for all six facilities. The introduction stated
that “the full text of the applicable changes will be incorporated
in a new Collective Bargaining Agreement which shall become
effective, upon ratification by the Union membership, sched-
uled for April 4, 2013.”3 The new CBAs were to be effective
from April 1, 2013 to March 31, 2017. The employees at the six
facilities ratified the MOUs in a single vote. There was no sepa-
rate ratification vote, however, regarding the terms and condi-
tions contained in the previous location specific Riders. The
2009–2013 Riders addressed standby procedures at all six facil-
ities, but also included additional issues specific to four facili-
ties: Staten Island facility—vacation, temporary employees and
work performed by classification; Bergen facility—bargaining
unit work, sick days, work schedules, journeyman and other
designations; Northern Manhattan—double compensation for
overtime work on weekends; Southern Manhattan—elimination
of certain service and maintenance work, and dispatch depart-
ment function.
Although the parties had not yet integrated the substance of
the agreement embodied in the MOU into the standard CBA
format covering employees at all six facilities, the Company
implemented several changes contained in the MOU as of April
1, 2013. They included wages and increases in payments to the
Union’s annuity fund.
On May 14, 2013, the Company provided the Union with a
draft of a successor CBA. The draft incorporated the identical
provisions of the expired CBA, along with the changes set forth
in the MOU provisions the six locations. None of identical
provisions, which included the no-strike clause, were discussed
during negotiations. Missing, however, were the facility specif-
ic Riders that accompanied previous CBAs.
On July 8, 2013, the Union informed the Company that the
draft omitted the Riders and language pertaining to bonuses for
electrical engineering degrees. After an exchange of communi-
cations disagreeing over whether the parties agreed to include
these provisions in the successor agreement, the parties met
again on September 9, 2013. The Company continued to main-
tain that it would not agree to include the Riders in the succes-
sor agreement. On that basis, the Union refused the Company’s
demand that it execute the draft successor agreement. After
further negotiations in February and March 2014, the Company
proposed revised versions of several Riders in a new successor
contract. Several communications followed regarding the Com-
pany’s omission of the electrical engineers provision and the
Southern Manhattan Rider.
On March 31, after concluding that the Union would not sign
any of the proposed CBAs sent to it by the Company, the Com-
pany filed an unfair labor practice charge alleging, pursuant to
H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941), that the Union
failed to execute a written agreement embodying the MOA.4
In a decision and recommended order, issued April 28, 2015,
and adopted by the Board on October 29, 2015, Judge Steven
Fish concluded that the Union did not violate Section 8(b)(3)
by refusing to execute the successor CBA. He based that deci-

3 The summary of changes included provisions addressing: the term
of agreement; subcontracting and contracting out work; telephony
deleted; workweeks, hours and shifts; overtime; holidays; annuity pay-
ments; social security contributions; education fund; wages rates and
premium pay; journeymen rights; work performed by nonjourneymen;
and payroll savings plan deleted.
4 The Union also filed an 8(a)(5) and (1) charge arising out of the
same transaction but that charge was dismissed by the Region.
TIME WARNER CABLE NEW YORK CITY, LLC 9
sion on the insufficiency of evidence demonstrating that the
parties reached a “meeting of the minds” on all substantive
issues, or that the documents submitted by the Company to the
Union for execution accurately incorporated any such agree-
ment. Electrical Workers IBEW Local 3 (Time Warner Cable),
363 NLRB No. 30, slip op. at 16 (2015).
In denying the Company’s motion to reopen the record to
admit posthearing evidence of grievances filed by the Union,
which allegedly constituted admissions that the Union unlaw-
fully refused to execute an agreed-upon contract, the Board
noted:
The Charging Party contends that this evidence demonstrates
that the [Company] unlawfully refused to execute an agreed-
upon contract. Contrary to the [Company’s] contention, the
[Union’s] posthearing conduct shows only that the [Compa-
ny] mistakenly believed that the parties had reached agree-
ment on March 28, 2013. It does not bear on the relevant
question of whether the parties reached a meeting of the
minds regarding all material terms of their successor contract.
The Board provided further clarification as to why the Union
did not violate Section 8(b)(3) of the Act by refusing to exe-
cute the successor CBA:
[W]e find it unnecessary to pass on the judge’s finding that
the Charging Party’s inclusion of the South Manhattan Rider
in the copy of the contract it attached to its Federal district
court complaint alleging a violation of the contractual no-
strike clause constituted an admission that the Rider was part
of the parties’ agreement.
D. Foremen Are Disciplined
On April 1, 1 day after it filed unfair labor practices against
the Union, the Company issued 2-day suspensions to several
foremen, including Anderson and Tsavaris, for refusing a com-
pany directive requiring them to take tools home at the end of
their shifts. The directive was the subject of the grievance pro-
cess set forth in the expired CBA. In addition, Phil Papale, a
shop steward, was suspended for conduct while representing a
foreman during the grievance process.
Shortly after their suspensions, Anderson and Tsavaris in-
formed Derek Jordan, their union representative. Anderson also
informed Jordan that a shop steward was not present when he
was issued the suspension.5 Jordan and other union representa-
tives responded by calling for bargaining unit members to at-
tend a “safety meeting” outside the facility the next morning.6
E. The Union Disrupts Company Operations On April 2
On a typical day in 2014, between 6:30 and 8 a.m. approxi-
mately 150 field technicians drove their personal vehicles to

5 GC Exh. 31, 33.
6 Cabrera testified that the Union announced the “safety meeting”
the previous day on social media. (Tr. 165.), while Tsavaris testified
that he was notified about the meeting in an early morning call from his
shop steward on April 2. (Tr. 189–190.) I found it peculiar that the 4
discriminatees would travel to Paidge Avenue on their day off for a
safety meeting. Nevertheless, there is insufficient credible evidence to
conclude that any of them knew beforehand that the Union planned a
work stoppage.
work, parked on a lot adjacent to the Paidge Avenue facility,
entered the facility to receive assignments from their foremen,
and then drove designated company vehicles out of the facility
to customer service locations. In addition to dispatching vehi-
cles from the warehouse and repairing them there, the Company
also receives shipments of equipment and supplies at the facili-
ty.
As depicted by the Company’s closed-circuit security camera
video, at about 6:23 a.m. on April 2, 2014, Jordan arrived in
front of the facility for the purpose of initiating a work stoppage
or strike. Although there were available parking spots along the
curb, he parked his vehicle perpendicular to the direction of
traffic in the middle of Paidge Avenue.7 Shortly thereafter,
Jordan directed several Company employees to move their
vehicles from parking spots and position them in similar fash-
ion, perpendicular to traffic, in the middle of the street.8 Over
the next 10 minutes, six more vehicles parked in the middle of
Paidge Avenue. The result was that, by 6:33 a.m., vehicles
could no longer access or exit from the facility, including the
main entrance, garage entrance and employee parking lot.9
By 7 a.m., about 50 employees gathered in between the vehi-
cles positioned in the middle of the street. As they congregated,
union representatives handed them fliers regarding work safety
and Weingarten rights to representation during disciplinary
interviews.10 At about 7:30 a.m. Jordan motioned employees to
gather around him in the middle of the street. He then proceed-
ed to address employee safety concerns relating to the absence
of their suspended foreman, as well as their Weingarten rights.
The gathering broke up at about 8 a.m. and Paidge Avenue was
reopened to vehicular traffic.11
Gregg Cory, the Company’s area vice president for Southern
Manhattan, was apprised immediately about the vehicles
parked in the middle of the street. Cory called the Company’s
security office, which in turn called the police department. Po-
lice officers responded shortly thereafter and spoke with Jor-
dan. He assured them that the crowd would soon disperse.
As a result of the impeded access to the facility, approxi-
mately 77 technicians on the 7 and 7:30 a.m. shifts were unable
to access the facility or company vehicles in the adjacent park-
ing lot. This further resulted in a half hour or a 1-hour delay
(depending on the shift) before technicians’ could leave the
facility in order to make scheduled appointments. The disrup-

7 Jordan’s denial that he precipitated a “job action” and merely con-
vened a “safety meeting” in order “to get the workers to go back to
work or to go to work,” was not credible. Responding to the previous
day’s suspension of the foremen, he orchestrated a work stoppage by
positioning vehicles in the middle of the street and instructing employ-
ees to gather there in order to impede company operations commencing
with the 7 and 7:30 a.m. shifts. (Tr. 367–368, 370–371, 389–390).
8 GC Exh. 20.
9 GC Exh. 23A-B.
10 Referring to the Supreme Court’s decision in NLRB v. J.
Weingarten, Inc. 420 U.S. 251 (1975) affirming employees’ rights to
union representation at investigatory interviews.
11 It is undisputed that Paidge Street was completely blocked off and
a back-alley exit, which Corey used to return into the facility, was not
previously used as an entrance by employees arriving for work or while
working. (Tr. 229, 235–240, 248–249, 265–273, 384; GC Exh. 19–20,
23, 29; R. Exh. 6–7, 9–10.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
tion caused a ripple effect of delayed or missed appointments
throughout the day.
Cabrera, Ali, Anderson, and Tsavaris were not scheduled to
work at the time, but decided to attend the event. All were
aware that the Union called a “safety meeting.” Anderson ar-
rived early after driving 55 miles from his home to Paidge Av-
enue, parked and took a nap. Ali also drove his vehicle from
Suffolk County and even picked up a coworker to attend the
meeting. Diana Cabrera learned about the event on social media
and, although she usually commuted to work by train or taxi,
she was given a ride to the event by a coworker.12
The gathering dispersed at approximately 8 a.m., enabling
technicians on the 7 and 7:30 a.m. shifts to report to work and
begin their shifts.
F. The District Court Action
In April 2014, the Company also sought injunctive relief in
the United States District Court for the Eastern District of New
York pursuant to Section 301 of the Labor Management Rela-
tions Act. The suit alleged the Union’s violation of the no-strike
clause in the contract in September 2013, March and April 2,
2014. After a 3-day hearing, Judge Jack Weinstein found that
two of the incidents described in the complaint constituted a
strike in violation of the no-strike clause:
That was not a safety meeting . . . They blocked ingress and
egress to that plant. There was a substantial delay in starting
operations that day. I’m holding it was a strike. I don’t want to
get involved in any euphemisms.
Nevertheless, Judge Weinstein dismissed the petition on
May 5, on the ground that the disputes involved were subject to
arbitration, were in the process of being arbitrated and there
was no evidence or likelihood of further violations of the no-
strike clauses.
G. Arbitration Brought By The Company
On April 17, the Company initiated an arbitration proceeding
against the Union seeking damages and other relief for the
events on April 2. After three sessions, Arbitrator Daniel Brent
found:
That the convocation of this “safety meeting” was a pretext to
communicate to the Company the Union’s dissatisfaction
about requiring Foremen to carry tools is not simply a justifi-
able conclusion; it is the only reasonable conclusion. . . .

12 The four employees admitted to being a part of the group that
gathered in the middle of Paidge Avenue. (R. Exhs. 3–4.) As previous-
ly noted, Tsavaris and Cabrera testified that the Union called a safety
meeting for the morning of April 2 in front of the facility, while Ander-
son and Ali asserted that they inadvertently stumbled onto the scene.
Anderson’s testimony that he drove there on his day off in order to file
a grievance over his suspension was not credible. It was preposterous to
believe that he drove 55 miles from home, parked his vehicle, took a
nap and suddenly woke up to realize that he was blocked in by other
vehicles. After attending the event, he left without making any attempt
to file his grievance. (Tr. 121, 129–130, 135–142.) Ali, who lives about
40 miles from the facility, testified that he planned to drive into Man-
hattan to pick up mail, but decided to give a coworker a ride to work,
then parked and exited his vehicle because he was curious. That expla-
nation was also absurd. (Tr. 143, 146, 156–162.)
Thus, by creating a sham safety meeting that not only imped-
ed the timely arrival of bargaining unit employees for their
shifts, but also involved many employees until well after the
scheduled commencement of their shift hours, and to the ex-
tent that customers were deprived of their coveted early morn-
ing appointments and other customers were inconvenienced
by unnecessary delay in keeping scheduled service appoint-
ments throughout the day on April 2, 2014, the Union was di-
rectly and inextricably culpable . . .
On November 30, 2015, Arbitrator Brent issued a final
award and awarded the Company damages in the amount of
$19,297.96.
H. The Investigatory Interviews
After the April 2d strike, the Company launched an investi-
gation to determine the identities of employees involved in the
blockade. Employees identified through surveillance video as
having attended the work stoppage were summoned to inter-
views in mid-April. Using a standardized questionnaire, Con-
cetta Ciliberti, Mary Maldonoado, and other human resources
department managers and supervisors asked each employee
nearly two dozen questions.13 They started with preliminary
questions about tenure with the Company, assigned schedules
and to whom they reported. The employees were also asked
whether they were part of the group of employees who gathered
outside the Paidge Avenue facility on April 2, how they got to
work, whether they parked, if they arrived in a company vehi-
cle, and what time they arrived. If the employee denied being
present, he/she was shown photographs or the video indicating
otherwise.
After establishing that the employee was present at the gath-
ering, he or she was told, “It appears that Derek Jordan was
present as well.” The employee was then asked “who told” the
employee about the gathering, “when” the employee received
“notification of the gathering,” how the “event” was “commu-
nicated” to the employee, and what the employee was “told
about the reason for the protest.” Any employees professing
ignorance about the gathering and claiming not to be involved
were asked why they remained outside and if they attempted to
contact a manager or otherwise attempt to enter the facility.
Employees were then asked questions about the CBA and if
they were “familiar with the section that prohibits cessation or
stoppage of work.” Reading from the script, company managers
and supervisors recited that provision followed by standard
comments conveying the ramifications of his/her actions on
April 2:
There shall be no cessation or stoppage of work, service or
employment, on the part of, or at the insistence of either party,
during the term of this Agreement.
You understand that this rally stopped the work of the SNYC
Area for over one hour prohibiting us from meeting our ser-
vice calendar. As a result of this violation of the law and CBA
and the inability to maintain our business. Do you understand
that this action subjects you to discipline, including possible

13 R. Exh. 26–31.
TIME WARNER CABLE NEW YORK CITY, LLC 11
termination?
(If the employee asks what happens next)
We are gathering facts and you should return to work. To be
clear, you are prohibited from engaging in any work slow-
down or any other action which impacts on workflow. Any
attempts to do so will lead to further discipline, including the
possibility of immediate termination.
If you have anything else you want to share w/me please call
me or send me an email by tomorrow.
The four discriminatees, as well anyone else who was not
scheduled to work on April 2, were also asked the following
form questions:
Why did you come to work? Did anyone in management di-
rect you to come to work?
[For previously suspended employees] Why did you come to
work that day?
You understand that a suspension means that you are not to
come to work?
You understand that you were in violation of your suspension
by coming to work on April 2? Who directed you to come to
work?
Cabrera told company investigators that she drove to the fa-
cility merely to drop someone off.14 Ali also professed igno-
rance about the event, insisting he only drove to the facility in
order to drop someone off while on his way into Manhattan. He
also told them that after venturing to the gathering, he learned
that the gathering was described as a work safety meeting.15
Anderson conceded that he was present at the site, but gave no
explanation as to why he was there.16 Tsavaris stated that he
“just happened to be in the neighborhood” for “personal” rea-
sons.17
I. The Suspensions
On May 22, 2014, the Company issued 2-week suspensions
to seven employees determined to be the most culpable for the
strike, either because they had no reason to be present other
than to participate in the job action or because they engaged in
particularly egregious conduct.18 Approximately 34 employees,
all of whom were scheduled to work during the work stoppage,
received final written warnings. However, the Company over-
looked the roles played by the facility’s two shop stewards,

14 Cabrera testified differently at the hearing, explaining that she got
a ride to the facility with a coworker after learning of the “safety meet-
ing” on social media. (Tr. 165.) Given her shifting explanations, I credit
Maldonado’s denial that she told Cabrera it would constitute insubordi-
nation for her to fail to respond. (GC Exh. 15; Tr. 290–291, 303–304,
308–309.)
15 Ali’s explanation to investigators was consistent with his testimo-
ny. (GC Exh. 14; Tr. 143, 146.)
16 Anderson’s statements to Maldonado contradicted the video evi-
dence and his hearing testimony. (Tr. 285–287; R. Exh. 14; GC Exh.
16.)
17 Contrary to his vague explanation to company investigators, Tsa-
varis conceded at hearing that he was present on Paidge Avenue that
morning at Papale’s instruction. (GC Exh. 17; Tr. 189–192, 195–196.)
18 The disciplinary decisions were made by Ciliberti, Cory, and Re-
gional Vice President of Operations John Quigley. (Tr. 113–120.)
including Papale, who was among those suspended on April 1
and not scheduled to work on April 2.19
Byron Yu was on the schedule at the time of the strike and
played an active role by parking his vehicle in the middle of the
street. Joseph McGovern, had called out sick earlier that day.
David Lopez was assigned to another company facility and was
scheduled to work later that day. The remaining four employ-
ees—Ali, Cabrera, Anderson, and Tsavaris—were not sched-
uled to work that day. The corrective action forms cited four
grounds: violation of rules, safety violation, misconduct and
“other.” Their notices of discipline were virtually identical,
with minor differences in the next to last paragraph of each:
Attached is a disciplinary notice that you are being issued a
final written warning and being suspended for two weeks ef-
fective May 22, 2014 for your role in the April 2 work stop-
page in violation of the collective bargaining agreement.
On the day of the illegal strike you were not scheduled to
work, but appeared at Paidge Avenue to instigate and partici-
pate in the illegal work stoppage. You showed a complete dis-
regard for your responsibilities to the Company and our cus-
tomers, intentionally impeding service to our customers in vi-
olation of the no strike provision in the collective bargaining
agreement.
Your conduct justifies immediate termination. However, be-
cause we believe you were misled by the Union both about
engaging in this conduct and about the consequences of your
actions, we are going to give you this last chance. Your partic-
ipation in any further work stoppages or other activities to im-
pede the Company’s business in violation of the collective
bargaining agreement will lead to your immediate termina-
tion.
You should understand that your blind adherence to the Un-
ion’s unlawful directives not only put you in danger of losing
your job, but reflects very badly on you.
The Company and our customers expect more of you.20
J. Regional Director Revokes Dismissal of Union’s Charge
On January 5, 2015, the Regional Director for Region 2 dis-
missed the instant charge on the ground that the April 2nd
strike, spurred by the suspension of five foremen and the al-
leged violation of their Weingarten rights, violated the no-strike
clause of the CBA and, thus, the Act. Additionally, she opined
that the alleged unfair labor practices precipitating the April
2nd work stoppage were not sufficiently serious as to justify
overriding the no-strike clause and that the suspensions flowed
from employee misconduct during the unprotected strike. How-
ever, after Judge Fish issued the aforementioned decision on
April 28, 2015, dismissing the complaint alleging unfair labor
practices by the Union during the April 2 strike, the Regional
Director revoked the dismissal of the instant charge on May 21,

19 GC Exh. 4–7, 28.
20 The next to last paragraph in Ali’s notice added “on you as a
foreman” at the end of the sentence, while the notices issued to Ander-
son and Tsavaris added “on a foreman with your tenure with the Com-
pany.” (GC Exhs. 4–7.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
2015.
K. The Board Denies The Company’s Motion For
Summary Judgment
On February 8, 2016, the Company moved for summary
judgment dismissing the complaint allegation that it violated
Section 8(a)(3) and (1) of the Act when it suspended Diane
Cabrera for engaging in serious misconduct by participating in
“a job action led by the Charging Party.” The motion alleged
that the “job action” upon which the complaint is premised
constituted a “complete blockade” and disruption of Compa-
ny’s operations for over an hour and, thus, did not constitute
protected activity under Section 7 of the Act. The complaint
was amended by the Regional Director in order to add the three
additional employees who were also suspended – Azeam Ali,
Andersen, and Tsavaris.
The General Counsel opposed the motion on the ground that
there were genuine factual issues as to whether the four sus-
pended employees lost the protection of the Act by their con-
duct during the strike activity. On April 8, 2016, the Board
denied the Company’s Motion for Summary Judgment on the
ground that it failed to demonstrate the absence of issues of
fact.
LEGAL ANALYSIS
I. THE SUSPENSIONS
The General Counsel and Charging Party allege that the 2-
week suspensions issued to Diana Cabrera, Azeam Ali, Ralf
Anderson, and Frank Tsavaris constituted unfair labor practices
under Section 8(a)(3) and )(1) of the Act. The Company insists
that the job action was actually an unlawful mass picket and,
thus, the discriminatees engaged in misconduct by being at the
event. The Company further contends that such misconduct
rendered their activity unprotected.
NLRB v. Burnup & Sims, 379 U.S. 21 (1964), provides the
applicable legal standard in cases involving employer discipline
of employees who engage in misconduct during protected ac-
tivities. Under the Burnup & Sims test, discipline is unlawful
“if it is shown that the employee was at the time engaged in a
protected activity, that the employer knew it was such, that the
basis of the [discipline] was an alleged act of misconduct in the
course of that activity, and that the employee was not, in fact,
guilty of that misconduct.” Id. at 23.21
As orchestrated by the Union, several union officials and
company employees halted company operations at 6:33 a.m. on
April 2 by positioning seven vehicles in the street in front of the
facility. The Union announced the event as a safety meeting
and Jordan speak to employees about their Weingarten rights

21 The Company’s reliance on Wright Line, 251 NLR.B 1083 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), is misplaced. It
would have been appropriate if the Company had also disciplined the
discriminatees for reasons unrelated to the allegedly protected activity,
which is not the case. Wright Line, 251 NLRB at 20–21); Transporta-
tion Management Corp., 462 U.S. at 401–402 (“dual motive” analysis
applicable where the protected conduct is shown to be a motivating
factor in the discipline, in which case the burden shifts to the employer
to demonstrate that the “same action would have taken place even in
the absence of the protected conduct”).
and the need to be careful in the field due to the unavailability
of suspended foremen. However, the blockade orchestrated by
the Union clearly amounted to a work stoppage or strike that
lasted nearly 90 minutes and service appointments by techni-
cians were delayed by either a half hour or a full hour. The four
discriminatees were part of the group of employees who gath-
ered in front of the Company’s facility after the blockade was
in place. All four went there at the behest of the Union.
A. The No-Strike Clause
Attendance by the four discriminatees at a Union event, in-
cluding a work stoppage, discussing and/or protesting the
Company’s discipline of foremen and alleged violation of some
of their Weingarten rights clearly constituted protected concert-
ed activity. See Mushroom Transportation Co. v. NLRB, 330
F.2d 683, 685 (3d Cir. 1964) (activity relating to group action
in the interest of the employees). However, that conduct lost its
protection if it violated an extant no-strike prohibition incorpo-
rated into the terms and conditions of their employment. That,
in turn, requires an initial determination as to whether the no-
strike clause in the expired CBA still applied to unit members
as of April 2.
The Board’s decision in IBEW Local 3 (Time Warner Cable)
serves as the law of the case on the issue of whether there was
an agreement between the parties regarding the expired CBA
by virtue of the MOU entered into by the parties: there was no
meeting of the minds as to significant portions of the agreement
(the inclusion of local Riders) and thus, the parties did not
agree to all of the material terms of a successor CBA.22 See,
e.g., Great Lakes Chemical Corp., 300 NLRB 1024, 1025 fn. 3
(1990), enfd. 967 F.2d 624 (D.C. Cir. 1992), and cases cited
therein (generally, a finding necessary to support the judgment
in a prior proceeding bars relitigation on that issue in a subse-
quent proceeding involving the same parties.”)
It is the MOU and not the inability to agree to a successor
CBA, which is dispositive with respect to the applicability of
the no-strike clause to the events of April 2. The no-strike
clause was among the numerous provisions of the expired CBA
that were to carry over to the successor CBA but were not men-
tioned in the MOU. Its incorporation by reference in the MOU
is evidenced by the introduction: ‘[T]he changes summarized
below were agreed upon relative to the [CBA] which will ex-
pire on March 31, 2013 and that the full text of the applicable
changes will be incorporated in a new [CBA] which shall be-

22 The Company’s reliance on district court litigation and arbitration
between the Company and the Union containing conclusions to the
contrary is unavailing. “The Board adheres to the general rule that if the
Government was not a party to the prior private litigation, it is not
barred from litigating an issue involving enforcement of Federal law
which the private plaintiff has litigated unsuccessfully.” Field Bridge
Associates, 306 NLRB 322, 322 (1992), enfd. sub nom. Service Em-
ployees Local 32B-32J v. NLRB, 982 F.2d 845 (2d Cir. 1993), cert.
denied 509 U.S. 904 (1993). As the Board noted in Teamsters Local
769, successor to Teamsters Local 390, 355 NLRB 197, 200 (2010),
this view is consistent with the “well established general principle that
the government is not bound by private litigation when the govern-
ment’s action seeks to enforce a federal statute that implicates both
public and private interests.” (quoting Herman v. South Carolina Na-
tional Bank, 140 F.3d 1413, 1425 (11th Cir. 1998).
TIME WARNER CABLE NEW YORK CITY, LLC 13
come effective upon ratification by the Union membership,
scheduled for April 4, 2013.” (emphasis supplied) The only
reasonable interpretation of that preamble is that the changes
mentioned into the MOU were being added to the language of
the expired CBA along with those provisions not mentioned.
It has long been established that an employer violates Sec-
tion 8(a)(5) when it unilaterally changes employees’ wages,
hours, and other terms and conditions of employment without
providing their bargaining representative prior notice and
meaningful opportunity to bargain about the changes. NLRB v.
Katz, 369 U.S. 736, 742–743 (1962). The Katz rule, initially
applied to newly certified unions, also extends to situations
where the parties’ agreement has expired and negotiations con-
tinue over a successor contract. In such instances, with certain
exceptions, the parties are required to continue in effect terms
and conditions of employment that are mandatory subjects of
bargaining. Litton Financial Printing Division v. NLRB, 501
U.S. 190, 198 (1991).
In Litton, the court held that no-strike clauses, arbitration
provisions and management rights clauses were mandatory
subjects of bargaining but did not survive expiration of the
contract. The court distinguished such provisions from other
terms and conditions that survived because they represented the
waiver of statutory rights that employees would otherwise en-
joy in the interest of achieving an agreement. Id. at 199.
The parties bargained over the inclusion of Riders in a suc-
cessor CBA. In the meantime, they continued to adhere to the
status quo ante, with the exception of the Company’s prompt
implementation of the wage and benefits provisions of the
MOU. This served as the Company’s quid pro quo and evi-
dence of the parties intent to continue applying certain terms
and conditions of the expired CBA, such as the no-strike
clause. See Crimptex, Inc., 211 NLRB 855, 858 (1974) (evi-
dence consistent with parties’ intention to be bound until the
final contract was executed); Granite Construction Co., 330
NLRB 205, 208 (1999) (affirmative nod evidenced an oral
agreement to extend the contract until the next bargaining ses-
sion).
The Board recently referenced the Litton principles in Lin-
coln Lutheran of Racine, 362 NLRB No. 188, slip op. at 2
(2015). In that case, the Board overruled a contrary earlier deci-
sion in Bethlehem Steel, 136 NLRB 1500 (1962) and its proge-
ny, holding that an employer’s obligation to check off union
dues constituted a mandatory subject of bargaining and, thus,
survived contract expiration. Describing its inextricable link to
wages and benefits, the Board distinguished dues checks from
no-strike clauses, arbitration and provisions and management
rights, which do not survive the contract. Id. at 3.
Litton and Lincoln Lutheran are distinguishable. Both cases
involved the expiration of CBAs and there was an absence of
evidence of subsequent intent by the parties to continue follow-
ing the contractual provisions at issue. In the instant case, how-
ever, the intention of the parties was reflected in the MOU,
which incorporated certain provisions from the expired CBA,
including the no-strike clause. The MOU constituted a clear
continuation of the waiver of employees’ rights set forth in the
expired CBA. See Provena Hosps., d/b/a Provena St. Joseph
Med. Ctr. & Illinois Nurses Ass'n, 350 NLRB 808, 812 (2007)
(finding that the waiver of a statutory right has to be explicit as
well as clear and unmistakable).
Therefore, the no-strike clause, which remained in effect on
April 2, prohibited the four discriminatees from the “cessation
or stoppage of work, service or employment on April 2. Contra-
ry to the Company’s assertion, however, the four discriminatees
did not violate the terms of the no-strike clause since they were
in a nonworking status at the time. As such, they could not be
deemed to have ceased or stopped working during the pendency
of the strike.
B. The Conduct of the Discriminatees During the Strike
Even in the absence of an applicable no-strike clause, the ac-
tivities of the four discriminatees would negate otherwise pro-
tected conduct if the Company had a reasonable belief that the
employees were engaged in misconduct and the employees did,
in fact, engage in misconduct. Medite of New Mexico, Inc. v.
NLRB, 72 F.3d 780, 790 (10th Cir. 1995) (employer’s refusal to
reinstate employees justified based on “honest belief” that they
engaged in misconduct during strike); Machinists Local 1150
(Cory Corp.), 84 NLRB. 972, 975–976 fn. 9 (1949).
The evidence reveals that the four discriminatees went to the
gathering on Paidge Street for a union meeting relating to
working conditions, disciplinary actions, grievances and em-
ployees’ Weingarten rights. Over approximately 2 weeks fol-
lowing the April 2 event, company managers and supervisors
reviewed security video revealing that the blockade of its op-
erations was fully in place by 6:33 a.m. As a result, prior to
calling in the four discriminatees for their discipli-
nary/investigatory interviews, company officials knew that they
were present during the strike, but did not cause the vehicular
blockade of company operations. The blockade was imple-
mented by union officials and other employees, and was al-
ready in place by the time the four discriminatees congregated
in the middle of Paidge Avenue. Moreover, there is no credible
evidence that any of the four discriminatees knew before arriv-
ing for the event that it would be venued in between vehicles
parked in the middle of Paidge Avenue in a manner that would
bring company operations to a halt.
Under the circumstances, the relatively passive participation
of the four discriminatees at the strike location did not consti-
tute misconduct. See Abilities & Goodwill, 241 NLRB 27, 31
(1979) (employer unlawfully discharged striking employees for
passive participation in strike); Bowman Transportation Co.,
112 NLRB 387, 388 (1955) (insufficient evidence of disci-
plined employee’s active participation in strike). Simply partic-
ipating in a picket is not grounds for discipline because it would
undo the active vs. passive test long applied by the Board. See
Newport News Shipbuilding & Dry Dock Co. v. NLRB, 738
F.2d 1404, 1408 (4th Cir. 1984) (abusive behavior does not
amount to serious strike misconduct unless it reasonably tends
to coerce or intimidate coworkers); Clear Pine Mouldings, 268
NLRB 1044, 1046 (1984) (quoting NLRB. v. W.C. McQuaide,
Inc., 552 F.2d 519, 528 (3d Cir. 1977) (misconduct has to rea-
sonably coerce or intimidate employees from exercising their
rights); Cf. Big Horn Coal Co., 309 NLRB 255, 259 (1992)
(picketing employees engaged in misconduct by actively inter-
fering with the right of nonstriking employees to continue
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
working).
The cases cited by the Company are distinguishable. In De-
troit Newspapers, 342 NLRB 223 (2004), several disciplined
employees actively intimidated and violently assaulted cowork-
ers. Id. at 233–234. However, in the case of one employee dis-
ciplined for blocking the view of a delivery truck that was
backing out of the facility, the Board concluded that the em-
ployer did not have a good faith belief that the employee en-
gaged in misconduct. Id. at 231 (surveillance video showed that
the employee was not an active participant in blocking the truck
driver’s view).
In Kohler, 128 NLRB 1062 (1960), employees participated
in a strike that lasted months and in which the participants were
actively engaged in the picket lines that blocked access to the
plant. In that case, disciplined employees positioned their bod-
ies in order to block non-striking employees from entering the
plant. Id. at 1180. In contrast, the Company knew from review-
ing security video that the four discriminatees simply stood in
the crowd and had no involvement in constructing the vehicular
blockade of the Company’s facility and operations. Under the
circumstances, the Company unlawfully suspended Diana
Cabrera, Azeam Ali, Ralf Anderson, and Frank Tsavaris in
violation of Section 8(a)(3) and (1) of the Act.
II. THE INTERROGATIONS
The complaint alleges that the Company unlawfully interro-
gated employees regarding their “union activities and sympa-
thies of other employees” in the April 2 strike. The Company
contends that its questioning of employees was lawful because
it related to employee conduct during unprotected mass picket-
ing.
Section 8(a)(1) of the Act prohibits employers from ques-
tioning employees in a manner that tends to restrain, coerce or
interfere with protected concerted activity. Rossmore House,
269 NLRB 1176, 1177 (1984). In determining whether ques-
tioning is coercive, we must examine the “totality of the cir-
cumstances.” Id. at 1178. Factors in determining whether an
interrogation is coercive include the background of the parties’
relationship, the nature of the information sought, the identity
of the questioner, the place and method of interrogation, and
the truthfulness of the reply. Bourne v. NLRB., 332 F.2d 47, 48
(2d Cir. 1964). The Bourne factors provide a framework to use
when assessing the lawfulness of employee interrogation. 800
River Rd. Operating Co. LLC v. NLRB, 784 F.3d 902, 913 (3d
Cir. 2015); see also Timsco Inc. v. NLRB, 819 F.2d 1173, 1179
(D.C. Cir. 1987) (questioning of employees about their partici-
pation in union election by company president, who previously
had little interaction with employees and espoused anti-union
views, viewed as coercive).
Employees were instructed to meet with company managers,
supervisors, and human resource staff in a conference room,
where the company officials proceeded to rattle off questions
from a prepared script. Certain questions asked of employees
were reasonably related to a legitimate investigation seeking to
identify employee misconduct, i.e., the perpetrators of the ve-
hicular blockade. These included questions seeking to confirm
the employee’s presence in front of the facility on April 2, their
arrival time, how they got there, whether they drove a company
vehicle, and where they parked.
Other questions, however, went well beyond potential em-
ployee misconduct or involvement in the vehicular blockade by
seeking to elicit employee knowledge about union activities.
Employees were asked who told them about the gathering, how
and when they learned about the gathering, and what they were
told about the reason for the protest. After extracting infor-
mation about the event, company officials tested employees on
their knowledge of the CBA, asking whether they had reviewed
it and were familiar with the no-strike clause.
The totality of the circumstances established that the ques-
tions relating to employee knowledge about the organization of
the April 2 event were coercive. The questions were asked in a
formal setting by human resource managers, supervisors, and
staff in the presence of shop stewards. Having already estab-
lished that the employee was present at the gathering on April
2, these questions revealed the possibility of potential or further
discipline based on the employee’s answers to the questions.
See Holsum De Puerto Rico, Inc., 344 NLRB 694, 710–711
(2005) (motivation for the questioning was to identify employ-
ees who were union sympathizers).
Since everyone in the interview room knew about the union-
initiated activity that transpired on April 2, questions relating to
communications and planning for the event reasonably con-
veyed the sense that the Company sought to unearth the em-
ployee’s union activities, as well as the names of other employ-
ees involved with or sympathetic to the Union. A similar coer-
cive effect resulted from the Company’s inquiry as to why the
four discriminatees, who were not scheduled to work that
morning, were at the event. See Metro-W. Ambulance Service, ,
360 NLRB No. 124, slip op. at 65 (2014) (employer policy
preventing employees from being at work when not scheduled
to work discouraged protected activities in violation of Sec.
8(a)(1).
Moreover, questions posed to employees about their
knowledge of the CBA and, in particular, the no-strike clause,
were unrelated to the determination of whether an employee
participated in the blockade. Having apprised employees that
they were being investigated and questioned in connection with
their activities on April 2, inquiries about their familiarity with
the CBA and the no-strike clause reasonably tended to chill
employees’ future union activities.
Under the circumstances, the Company interrogation of em-
ployees regarding the events of April 2 violated Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. Respondent Time Warner Cable New York City, LLC is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Local Union No. 3 International Brotherhood of Electrical
Workers AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act by
suspending employees Diana Cabrera, Azeam Ali, Ralf Ander-
son, and Frank Tsavaris on October 30, 2001, because they
engaged in protected union activity by participating in a work
stoppage on April 2, 2014.
TIME WARNER CABLE NEW YORK CITY, LLC 15
4. Respondent coercively interrogated employees regarding
the events of April 2, 2014, in violation of Section 8(a)(1) of
the Act.
5. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily suspended employ-
ees, must make them whole for any loss of earnings and other
benefits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended23
ORDER
The Respondent, Time Warner Cable New York City, LLC,
New York, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
Suspending or otherwise discriminating against employees
because they engaged in protected union activity.
Coercively interrogating any employee about union support
or union activities.
In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
Make Diana Cabrera, Azeam Ali, Ralf Anderson, and Frank
Tsavaris whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them in the man-
ner set forth in the remedy section of the decision.
Within 14 days from the date of the Board’s Order, remove
from its files any reference to the unlawful suspensions of Di-
ana Cabrera, Azeam Ali, Ralf Anderson, and Frank Tsavaris
and, within 3 days thereafter notify the employees in writing
that this has been done and that the suspensions will not be
used against them in any way.
Preserve and, within 14 days of a request, or such additional
time as the Regional Director may allow for good cause shown,
provide at a reasonable place designated by the Board or its
agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due
under the terms of this Order.

23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
Within 14 days after service by the Region, post at its facility
Brooklyn, New York, copies of the attached notice marked
“Appendix.”24 Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 2, 2014.
Sign and return to the Regional Director sufficient copies of
the notice for physical and/or electronic posting by Time Warn-
er Cable New York City, LLC, if willing, at all places or in the
same manner as notices to employees are customarily posted.
Within 21 days after service by the Region, file with the Re-
gional Director a sworn certification of a responsible official on
a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. June 14, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT suspend or otherwise discriminate against any
of you for supporting Local Union No. 3 International Brother-
hood of Electrical Workers AFL–CIO or any other union.
WE WILL NOT coercively question you about your union sup-
port or activities.

24 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make Diana Cabrera, Azeam Ali, Ralf Anderson
and Frank Tsavaris whole for any loss of earnings and other
benefits resulting from their suspension, plus interest com-
pounded daily.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful suspensions of
Diana Cabrera, Azeam Ali, Ralf Anderson, and Frank Tsavaris,
and
WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the suspensions will not
be used against them in any way.
TIME WARNER CABLE NEW YORK CITY, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-126860 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.