Time Warner Cable of New York City

National Labor Relations Board - Board Decisions

Mar 8, 2005

344 N.L.R.B. 361 (N.L.R.B. 2005)

TIME WARNER CABLE OF NEW YORK CITY
344 NLRB No. 36
361
Staten Island Cable LLC d/b/a Time Warner Cable of
New York City and Local Union No. 3, Interna-
tional Brotherhood of Electrical Workers, AFL–
CIO and D.M. & M. Cable Services, Inc., d/b/a
Advantage Cable. Case 29–CE–118
March 8, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 17, 2003, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
Respondents each filed exceptions and a supporting
brief. The General Counsel filed an answering brief.
Respondent Time Warner filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified.
The judge found, and we agree, that the Respondents
violated Section 8(e) of the Act by entering into a collec-
tive-bargaining agreement that included a union signa-
tory clause, and by reaffirming and giving effect to that
provision. The judge’s recommended Order would, inter
alia, require Respondent Time Warner Cable of New
York City to resume the subcontracting of work to Ad-
vantage Cable, and would also require the Respondents
to inform Advantage Cable that they have no objection to
such subcontracting. We have concluded, however, that,
in the circumstances of this case, this remedy is inappro-
priate. More specifically, we do not think it appropriate
to order Respondent Time Warner to resume the subcon-
tracting of work to Advantage Cable. The National La-
bor Relations Act requires only that Respondent Time
Warner not refuse, pursuant to an agreement with Re-
spondent Local 3, to subcontract to Advantage Cable
because Advantage is not signatory to a contract with
Local 3. Insofar as the Act is concerned, Respondent
Time Warner is free, based on other considerations, to
resume that subcontract or not. Accordingly, we have
modified the judge’s recommended Order as indicated
below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Staten
Island Cable LLC d/b/a Time Warner Cable of New
York City, its officers, agents, successors, and assigns,
and Local Union No. 3, International Brotherhood of
Electrical Workers, AFL–CIO, Flushing, New York, its
officers, agents, and representatives, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Respondent Time Warner shall notify D.M. & M.
Cable Services, Inc., d/b/a Advantage Cable in writing
that Respondent Time Warner will not refuse to subcon-
tract work to Advantage Cable because of the absence of
a collective-bargaining agreement between Advantage
Cable and Respondent Local 3.”
2. Substitute the following for paragraph 2(b).
“(b) Respondent Local 3 shall notify Respondent Time
Warner and D.M. & M. Cable Services, Inc., d/b/a Ad-
vantage Cable in writing that Respondent Local 3 will no
longer require Respondent Time Warner to subcontract
any unit work to an employer or subcontractor that has a
collective-bargaining agreement with Respondent Local
3.”
3. Substitute the attached notices for those of the ad-
ministrative law judge.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any 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 enter into, reaffirm and give effect to
Section 7(a), the union signatory subcontracting clause,
of our collective-bargaining agreement with Local Union
No. 3, International Brotherhood of Electrical Workers,
AFL–CIO.
WE WILL notify D.M. & M Cable Services, Inc., d/b/a
Advantage Cable, in writing, that we will not refuse to
subcontract work to Advantage Cable because of the
absence of a collective-bargaining agreement between
Advantage Cable and Local Union No. 3, International
Brotherhood of Electrical Workers, AFL–CIO.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD362
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT enter into, reaffirm and give effect to
Section 7(a), the union signatory subcontracting clause,
of our collective-bargaining agreement with Staten Island
Cable LLC d/b/a Time Warner Cable of New York City.
WE WILL notify Time Warner Cable and D.M. & M
Cable Services, Inc., d/b/a Advantage Cable, in writing,
that we will no longer require Time Warner to subcon-
tract any unit work to an employer or subcontractor that
has a collective-bargaining agreement with us.
TIME WARNER CABLE OF NEW YORK CITY
Nancy B. Lipin, Esq. and Nancy Riebstein, Esq., for the General
Counsel.
Norman Rothfeld, Esq., of New York, New York, for Respon-
dent, Local No. 3.
Kenneth A. Margolis, Esq. (Kauff, McClain & McGuire), of
New York, New York, for Respondent, Staten Island Cable.
Martin Gringer, Esq. (Franklin & Gringer, P.C.) of Garden
City, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn, New York, on May 28, 2003. The
Complaint alleges that Respondents entered into a collective-
bargaining agreement in violation of Section 8(e) of the Act.
Respondent Staten Island Cable denies that it has violated the
Act and asserts that the Complaint is barred by Section 10(b).
Respondent Local 3 denies that it has violated the Act and as-
serts that its acts are protected by the First Amendment. On the
entire record, including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the General
Counsel and Local 3 on July 1, 2003, I make the following1

1 Counsel for the General Counsel’s unopposed motion to correct
transcript is hereby granted. In addition, the transcript is hereby cor-
FINDINGS OF FACT
I. JURISDICTION
Respondent Staten Island Cable LLC d/b/a Time Warner
Cable of New York City, is a limited liability company located
at 100 Cable Way, Staten Island, New York, engaged in the
operation of a cable television system in Staten Island, New
York. Time Warner Cable annually purchases and receives
goods and materials valued in excess of $50,000 directly from
suppliers located outside the State of New York. I find that
Time Warner is an employer within the meaning of Section 2
(2), (6), (7), and 8(e) of the Act. D.M. & M. Cable Services,
Inc., d/b/a Advantage Cable, is a domestic corporation with its
principal office at 609 Indian Church Road, Seneca, New York
and a place of business located at 100 Cable Way, Staten Is-
land, New York. Advantage is engaged in the business of in-
stalling cable television systems. Annually Advantage pur-
chases and receives goods and materials valued in excess of
$50,0000 directly from suppliers located outside the State of
New York. I find that Advantage is an employer and a person
within the meaning of Section 2 (1), (2), and 8(e) of the Act. I
find that Respondent Local 3 is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
It is undisputed that for a number of years, beginning around
1992 or 1993, Time Warner subcontracted a portion of its cable
installation work to Advantage. About 10 or 15 employees of
Advantage performed cable installation for Time Warner.
Time Warner also subcontracted work to other companies.
Advantage did not perform any other cable installation work in
New York City.
Time Warner and Local 3 are parties to a collective-
bargaining agreement with a term from April 1, 2002 to Febru-
ary 28, 2005, covering Electronic Technicians.
Section 6 of the Time Warner–Local 3 collective-bargaining
agreement defines three types of covered work. These are Ca-
ble work, Cable Modem work and Telephony work.
Section 7 of the contract provides:
(a) The Company shall have the right to subcontract the work
referred to in Section 6 of the Agreement with companies
having agreements with the Union similar to this Agreement
and providing such subcontracting is not done for the purpose
of laying off employees.
Advantage and Local 3 were parties to successive collective-
bargaining agreements beginning in 1992 or 1993. The last
such contract had an expiration date of March 31, 2003.
On January 8, 2003 Lance Van Arsdale, business representa-
tive of Local 3, sent the following letter to Donald Rosenbaum,
the president of Advantage:2
In accordance with the collective bargaining agreement by
and between your company and the International Brotherhood

rected so that at page 12, line 18 it reads “the reporter has two copies”;
at page 17, line 7, the phrase should read “they were not successful.”
2 Rosenbaum identified himself as president of D.M. & M. Cable
Services, a corporation which operates under the names Advantage
Cable.
TIME WARNER CABLE OF NEW YORK CITY 363
of Electrical Workers, Local Union No. 3, this is to advise
you that Local Union No. 3 desires to terminate its agreement
with your company on its termination date of March 31, 2003,
and will not be renewing your contract.
Rosenbaum discussed the letter with his partner Mark
Berube, the vice president of Advantage. On January 14
Berube replied to Van Arsdale in the following letter:3
I am in receipt of your letter dated January 8, 2003 in which
you state your intention not to renew our contract. Needless
to say, I was shocked by this information inasmuch as we
have always had a good relationship with the union and I am
unaware of any reasons why Local 3 would want to take such
a position. If the union persists in this position, the resulting
loss of the Staten Island Cable work would have a devastating
economic impact on the company. It is our desire to negotiate
a new contract with Local 3. Please contact me so that we can
set up a date for negotiations for a new agreement.
I look forward to hearing from you.
Local 3 and Advantage did not meet and did not negotiate a
new collective-bargaining agreement.
At one point, Advantage vice president Berube spoke to Van
Arsdale who stated that he did not know who D.M. & M. Cable
or Advantage were. Van Arsdale requested that Berube fax
him copies of certificates of insurance and the d/b/a filing.
Berube sent copies of these documents to Van Arsdale. Berube
said that throughout the period when Advantage had a contract
with Local 3 monthly dues forms were mailed by the Union to
the Buffalo address of Advantage and monthly dues deductions
checks were sent to the Union on a D.M. & M. Cable Services
check.4 The same checks were used to make contributions to
the benefit funds on behalf of employees.
Berube stated that he did not receive any response from Van
Arsdale to his January 14 letter expressing surprise that the
collective-bargaining agreement would not be renewed. On
March 31 Berube received a message on his office answering
machine from Peter Schwab, the Time Warner director of op-
erations on Staten Island, stating that because Advantage no
longer had a union agreement, Time Warner would not be al-
lowed to subcontract to Advantage. On April 1 Berube tele-
phoned Schwab who reiterated that Time Warner could no
longer contract installation work to Advantage because Advan-
tage did not have an agreement with Local 3. Berube asked
why this was so and Schwab replied that it was due to the ar-
rangements that Time Warner has with Local 3. Schwab said
that Advantage would have 1 week to remove its vehicles and
clean out its Cable Way office. Schwab said this had nothing
to do with the quality of the work performed by Advantage “it
was just basically due to us not having a union agreement.”
Time Warner admits that on April 1 it notified Advantage
that it would no longer do business with it because it did not
have a contract with Local 3.

3 All the events discussed in this decision took place in 2003 unless
otherwise indicated.
4 Seneca is near Buffalo, New York.
Donald Rosenbaum testified without contradiction that the
last time Advantage performed cable installation work on
Staten Island for Time Warner was March 29.
Time Warner admits, and there is no contradictory testimony
or evidence on the record, that on April 4 Local 3 notified Time
Warner that if Time Warner did business with Advantage, Lo-
cal 3 would initiate a grievance and arbitration against Time
Warner pursuant to Section 7 of their collective-bargaining
agreement.
Howard Szarfarc, the senior vice president of Time Warner
Cable, testified that on April 4 he was party to a conference call
with Local 3 representatives Van Arsdale and Chris Erickson,
Local 3 attorney Rothfeld and Time Warner attorneys Margolis
and Kathy Scott. During this call, Szarfarc informed Local 3
that Time Warner might voluntarily cease giving effect to the
clause of their collective-bargaining agreement that prohibited
subcontracting to companies that did not have a contract with
Local 3 and once again give work to Advantage. Van Arsdale
said he would strongly object if Time Warner were to give
work to Advantage. Van Arsdale said Local 3 would initiate a
grievance and arbitration against Time Warner to enforce the
contract in the event that Time Warner gave work to Advan-
tage.
Advantage Cable filed a charge on April 9 alleging that Time
Warner and Local 3 violated Section 8(e) of the Act by entering
into a collective-bargaining agreement in which Time Warner
agreed not to do business with another employer or person.
On May 7 United States District Judge Nina Gershon issued
a preliminary injunction under Section 10(l) of the Act enjoin-
ing and restraining Time Warner and Local 3 from giving force
or effect to Section 7 of their current collective-bargaining
agreement.
Rosenbaum testified, without contradiction by any other evi-
dence, about the relations between Time Warner and Advan-
tage in 2002 and 2003. Rosenbaum’s primary contact at Time
Warner was director of operations Schwab. Rosenbaum at-
tended monthly subcontractor meetings at Time Warner which
were conducted by Schwab to discuss installations, contract
negotiations and pricing. Other Time Warner employees at-
tended the monthly meetings including Brian Kelly a vice
president and general manager for Time Warner on Staten Is-
land, Ralph Santiago the installation supervisor, and Vinnie
Uliano the general foreman. At the September and October
2002 meetings Schwab and Kelly informed the subcontractors
that Time Warner would not renew their contracts unless they
had a collective-bargaining agreement with Local 3.
Rosenbaum identified two documents as the written agendas
distributed by Time Warner at the September 12 and October
10, 2002 subcontractor meetings. These agendas state that the
contracts between various subcontractors, including Advantage,
end in December or the fourth quarter of 2002 and say, “For the
record, we will not negotiate a contract with any Installation
Contractor until they have a signed a new agreement (sic) with
Local 3 beyond March of 2003.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD364
Discussion and Conclusions
There are no issues of credibility in this case. None of the
testimony in the record was contradicted by any other testi-
mony or evidence.5
It is clear that Section 7(a) of the Time Warner–Local 3 col-
lective-bargaining agreement prohibits Time Warner from sub-
contracting work to Advantage because Advantage does not
have a similar collective-bargaining agreement with Local 3.
The record evidence establishes that Time Warner ceased sub-
contracting work to Advantage on March 29 because Advan-
tage would no longer be a signatory to a contract with Local 3.
The purpose of Section 8(e) was explained by the Supreme
Court in National Woodwork Mfrs. Assn. v. NLRB, 386 U.S.
612 (1967). The Court held that Congress meant to prohibit
secondary objectives that were not designed to preserve work
traditionally done by the primary employer’s employees. 386
U.S. at 641–642. In this case, Section 7(a) of the collective-
bargaining agreement violates the prohibition of Section 8(e) of
the Act because the “employer ceases or refrains or agrees to
cease or refrain from . . . doing business with any other person.
. . . ” The secondary objective is made out by the fact that the
Time Warner contract is addressed to the labor relations of
Advantage and its lack of an agreement with Local 3. There is
absolutely no testimony or other competent evidence in the
record that Section 7(a) had a motive of preserving work for the
unit employees of Time Warner. Section 7(a) of the contract
between Local 3 and Time Warner is “tactically calculated to
satisfy union objectives elsewhere” and is not “addressed to the
labor relations of the contracting employer”. 386 U.S. at 644–
645. As the Board said in Chicago Dining Room Employees
(Clubmen, Inc.), 248 NLRB 604, 606 (1980), “It is well settled
that contract clauses which purport to limit . . . subcontracting
to employers who are signatories to union contracts, so-called
union signatory clauses, are proscribed by Section 8(e).” foot-
note omitted
Thus, I find that Section 7(a) of the collective-bargaining
agreement violates Section 8(e) of the Act.
The facts recited above establish that at various times within
the 6 months before the filing of the Charge herein on April 9,
2003 both Local 3 and Time Warner reaffirmed and gave effect
to the unlawful provision of their collective-bargaining agree-
ment. Time Warner ceased subcontracting work to Advantage
on March 29. On March 31 and April 1 Schwab told Berube
that Time Warner would no longer subcontract installation
work to Advantage because it did not have an agreement with
Local 3. On April 4 Van Arsdale told Szarfarc and other repre-
sentatives of Time Warner that he would strongly object if
Time Warner were to resume giving work to Advantage and
that Local 3 would initiate a grievance and arbitration to en-
force the unlawful provisions of Section 7(a) of the collective-
bargaining agreement. These actions satisfy the statutory lan-
guage that it shall be “an unfair labor practice for any labor
organization and any employer to enter into any contract or
agreement, express or implied” that violates the prohibitions of
Section 8(e). Dan McKinney Co., 137 NLRB 649, 654 (1962).

5 Arguments of counsel cannot take the place of competent sworn
testimony or properly admitted record evidence.
CONCLUSION OF LAW
By entering into Section 7(a) of their collective-bargaining
agreement and by reaffirming and giving effect to Section 7(a),
Respondent Time Warner and Respondent Local 3 violated
Section 8 (e) of the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondents must cease and desist from enforcing Sec-
tion 7(a) of their collective-bargaining agreement. Local 3
must inform Time Warner and Advantage that it has no objec-
tion to the subcontracting of installation work to Advantage.
Time Warner must inform Advantage that it has no objection to
subcontracting work to it and Time Warner must resume sub-
contracting to Advantage.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Staten Island Cable LLC d/b/a Time War-
ner Cable of New York City, Staten Island, New York, its offi-
cers, agents, successors, and assigns, and the Respondent Local
Union No. 3, International Brotherhood of Electrical Workers,
AFL–CIO, Flushing, New York, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Entering into, reaffirming and giving effect to Section
7(a) of their collective-bargaining agreement.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Respondent Time Warner shall inform D.M. & M. Cable
Services, Inc., d/b/a Advantage Cable that it has no objection to
subcontracting work to it and Time Warner shall resume sub-
contracting work to Advantage.
(b) Respondent Local 3 shall inform Time Warner and D.M.
& M. Cable Services, Inc., d/b/a Advantage Cable, that it has
no objection to the subcontracting of work by Time Warner to
Advantage.
(c) Within 14 days after service by the Region, Respondents
shall post at their respective facilities in Staten Island, New
York and union office in Flushing, New York, copies of the
attached notices marked “Appendix A and Appendix B.”7 Cop-
ies of the notices, on forms provided by the Regional Director
for Region 29, after being signed by the Respondents’ author-
ized representatives, shall be posted by the Respondents imme-

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
7 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.”
TIME WARNER CABLE OF NEW YORK CITY 365
diately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees and members are customarily posted. Reasonable steps
shall be taken by the Respondents 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 Re-
spondent Time Warner has gone out of business or closed the
facility involved in these proceedings, the Respondents shall
duplicate and mail, at their own expense, a copy of the notices
to all current employees and former employees employed by
the Respondent Time Warner at any time since March 29,
2003.
(d) Within 21 days after service by the Region, both Re-
spondents shall file with the Regional Director a sworn certifi-
cation of a responsible official on a form provided by the Re-
gion attesting to the steps that the Respondents have taken to
comply.