United Cable Television Corp. of Connecticut

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1332 (N.L.R.B. 1976)

1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Cable Television Corporation of Connecticut
and International Brotherhood of Electrical Work-
ers, Local 42, AFL-CIO Case 1-CA-10643
June 18, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On February 18, 1976, Administrative Law Judge
Benjamin K Blackburn issued the attached Decision
in this proceeding Thereafter, the Respondent filed
exceptions and a supporting brief 1
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent United Cable Television
Corporation of Connecticut, Plainville, Connecticut,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
CHAIRMAN MURPHY, dissenting in part
I am unable to agree with the Administrative Law
Judge's finding, adopted by my colleagues, that Re-
spondent violated Section 8(a)(1) of the Act by an-
nouncing to employees, prior to the election, a previ-
ously planned wage increase
The facts are undisputed Respondent began hir-
i On April 15 1976 the Board was administratively advised that Intern
tional Brotherhood of Electrical Workers Local 42 AFL-CIO had filed a
new petition in Case I-RC-14433 and requested withdrawal of the petition
in Case 1-RC-13744 which had been consolidated with the instant case On
April 22 1976 the Executive Secretary by direction of the Board issued an
Order Severing Cases and Permitting Withdrawal of Petition without preju
dice In light of the above we find it unnecessary to pass on the Administra
tive Law Judges recommendation that the April 15 1975 election in Case
1-RC-13744 be set aside and a second election held
On June 1 1976 Respondent filed a motion to dismiss the complaint
herein alleging that the Board s order of substantive relief has become moot
since the Union did not receive a majority of the ballots cast in the second
election held on May 2 1976 Since the Board s substantive order relates to
the violations of Sec 8(a)(1) of the Act we hereby deny Respondents mo
tion to dismiss
Ing installers in December 1974 In February 1975,
the installers complained about the absence of an au-
tomatic wage increase Respondent's general manag-
er, Dovey, acknowledged that their complaints were
meritorious He informed them that he would recom-
mend to Respondent's corporate parent, who had to
approve all wage increases, that they be given raises
Subsequently, Dovey prepared Respondent's pro-
posed fiscal 1976 budget, which would become effec-
tive in June, including therein two 25-cent-per-hour
wage increases for the installers, the first to be given
in August 2 Dovey submitted the proposed budget
prior to having any knowledge of the employees'
union activities
On April 7, 8 days before the election, Dovey, after
questions from installers concerning wage increases,
informed them that the proposed fiscal 1976 budget
which he had prepared and submitted to higher man-
agement contained wage increases for installers rang-
ing from 7 to 10 percent every 6 months Dovey also
cautioned them that the budget had yet to be ap-
proved by Respondent's corporate parent albeit he
indicated that such approval was likely
The Administrative Law Judge correctly found
that these putative wage increases had been proposed
at a time when Respondent was unaware of the
Union's campaign, and were not, therefore, improp-
erly motivated The sole issue is, thus, whether Re-
spondent acted improperly by announcing the pro-
posed wage increases prior to the election I find that
it did not
As a new business, Respondent early on, for pure-
ly economic reasons, embarked on a course leading
to the establishment of periodic wage increases for its
installers Dovey met with the installers and, in re-
sponse to their expressed dissatisfaction with the lack
of periodic wage increases, told them as early as Feb-
ruary 1975 that he would do something to satisfy
their desires Thereafter, in accordance with this
promise, Dovey in preparing his proposed budget for
the next fiscal year included two wage increases
which, in amount, were within the guidelines promul-
gated by Respondent's plant corporation 3 That bud-
get was completed by Dovey and sent to the parent
corporation before he knew about the installers'
union activity Accordingly, although the wage in-
creases were not to be effective until after the elec-
tion, it is clear that Respondent already had taken
positive concrete steps towards providing two peri-
odic wage increases for installers at a time when it
2 Guidelines from Respondents corporate parent suggested that wage in
creases be in the neighborhood of 5 to 7 percent Dovey s proposals repre
sented a slightly more than 7-1/2 percent increase and as the Administra
tive Law Judge found represented a logical increment to the installers
current rate of $3 25 an hour which was figured to the quarter of a dollar
3 See fn 2 supra
224 NLRB No 189
UNITED CABLE TELEVISION CORPORATION
had no knowledge of their interest in a union That
being the case, and in the absence of any evidence
showing that Dovey intimated that the grant or ap-
proval of the proposed increases was contingent
upon the outcome of the election, I see no reason
why the latter could not inform the employees, in
response to their questions, that he had proposed
these wage increases for them in his budget proposal
Consequently, I would find that Respondent did not
violate the Act when Dovey so advised the employ-
ees, and I would dismiss the complaint allegation
based on that incident
DECISION
STATEMENT OF THE CASE
BENJAMIN K BLACKBURN, Administrative Law Judge The
petition in Case 1-RC-13744 was filed on March 13, 1975 1
A Stipulation for Certification Upon Consent Election was
executed by the parties on March 31 and approved by the
Regional Director on April 2 The election was held on
April 15, at which time 12 of approximately 32 eligible
voters cast their ballots for Local 42 and 20 cast their bal-
lots against There were no void ballots and one challenged
ballot Local 42 filed objections on April 18
The charge in Case 1-CA-10643 was filed on April 30
On June 13 the Regional Director issued a report on objec-
tions in Case 1-RC-13744 He noted that two of the
Charging Party's five objections had been withdrawn, that
the other three cited conduct claimed to be unfair labor
practices in the charge in Case 1-CA-10643, and that he
had authorized complaint Since the issues in the two cases
are the same, he deemed it appropriate that they be re
solved jointly after a hearing The two cases were consoli-
dated for hearing and a complaint issued in Case 1-CA-
10643 on June 19 The hearing was held on October 16 in
Hartford, Connecticut The issues litigated were whether
Respondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, in various ways during the
campaign which preceded the April 15 election For the
reasons set forth below, I find that it committed some, but
not all, of the violations alleged
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
briefs, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a Connecticut corporation, is engaged in
the cable television business in Plainville, Connecticut Its
1975 gross revenue, as projected when the complaint was
issued, exceeded $100,000 In the same period, by the same
projection, it received materials valued in excess of $50,000
directly from points outside the State of Connecticut
1 Dates are 1975 unless otherwise indicated
II THE UNFAIR LABOR PRACTICES
A Facts
1333
Respondent is a subsidiary of United Cable Television
Corporation, a nationwide operation headquartered in Tul-
sa, Oklahoma Fifty percent of its stock is owned by the
parent corporation and 50 percent by local investors it
began operations in late 1974 by attaching cables to tele-
phone poles and soliciting television owners to buy its ser-
vice Employees who hook up customers' sets to the cables
on the telephone poles are known as installers In anticipa-
tion of sales to come, Respondent began hiring installers in
early December at $3 25 an hour The first installers hired
began training on December 9, 1974 They were told the
parent company's bonus policy would apply to them Un-
der that policy, installers receive a bonus for each installa-
tion over six on any given day Respondent made its first
installation for a customer on January 9 By that time, Re-
spondent had 15 installers in its employ
Officials of Respondent met frequently with the instal-
lers as a group from the outset At such a meeting held
around February 24, a misunderstanding about the instal-
lers' pay surfaced Employees complained that they were
underpaid, especially in view of the fact that they were
unable to make more than six installations a day In the
course of the discussion, they indicated they expected auto-
matic pay raises of 25 cents an hour after 90 days James
Dovey Respondent's general manager, told them they had
misunderstood what had been told them at the time they
were hired He said references to 90 days had related to
probation, not raises He said there would be no automatic
raises because Tulsa had to approve all increases in pay
He conceded there was merit to their complaint He said he
would check with Tulsa about raises He suggested a more
equitable bonus plan as a possible solution He solicited
the employees ideas Following the meeting, several of the
installers gave Dovey their written suggestions They read
SUGGESTED INSTALLER WAGE MODIFICATION
1 A merit wage system based on quarterly evalua-
tion, including automatic `cost of living" increases
2 A bi-monthly incentive plan with a variety of
categories, i e quality of work, quantity of work, call
back percentage etc, providing a reasonable opportu-
nity of attainment for each installer based on their
performance in each category
A day or two later, around February 26, Respondent
instituted a new bonus plan It announced 2 that in each
2 My finding that this change and the subsequent teams modification in
the bonus were announced to the installers before bonuses showed up in
paychecks is based on the record as a whole The installers were pushing for
a change before union activity began Respondent s payroll system required
that winners be determined 2 weeks before the checks were distributed The
testimony of General Counsels witness as to when winners were first an
nounced from which he would have me infer that this was also the earliest
the new plan was revealed is vague Keeping the competition a secret for
2 1/2 weeks would have served no useful purpose Bonuses are irtended to
induce employees to work harder I credit the testimony of Dovey that the
word was passed to the installers by Installation Manager Terry Reaviel as
soon as Dovey decided on the new plan I also credit his testimony that he
decided to modify it when the fact he had overlooked two man teams was
Continued
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay period the installer with the best record would receive
$25, the second best, $20, and so on down the line. (The
record is unclear as to whether the top five or the top four
installers were to receive bonuses.) Since the plan was an-
nounced in the middle of the second week of Respondent's
2-week payroll period, the initial bonuses were based on
work done during the balance of that week plus the follow-
ing 2 weeks, ending March 15. Respondent utilizes its par-
ent company's centralized payroll system. Consequently,
the first bonuses earned under the new plan were included
in paychecks received by employees on March 31. The
winners were announced.3
Respondent's fiscal year runs from June 1 through May
31. Local managers like Dovey are required to submit pro-
posed budgets for approval by the parent company well in
advance of the beginning of a new fiscal year. Dovey's
deadline for getting his fiscal 1976 proposals in the mail
was Friday, March 7. Dovey worked on his budget prior to
that date. Guidelines furnished to him by the parent com-
pany indicated that proposed raises should be in the neigh-
borhood of 5 to 7 percent. Dovey included two 25-cent-an-
hour raises for installers in his proposal. The first was pro-
jected for August, the second for February 1976. Thus,
Dovey's budget envisioned an hourly rate of $3.75 for in-
stallers by the latter date. Dovey placed his proposed bud-
get for fiscal 1976 in the mail on March 7.
On Sunday, March 9, Local 42 sent Dovey a mailgram
in which it claimed to represent a majority of the installers
and demanded recognition. Dovey received it the next
day 4 He immediately telephoned Tulsa. He was instructed
to do nothing until he was served with a petition for a
Labor Board election. Dovey received a copy of the peti-
tion in Case 1-RC-13744 in the ordinary course of Board
business a day or two after it was filed in the Regional
Office on March 13. He telephoned Tulsa again. He was
told to get a lawyer. He did so. With the help of counsel, he
mapped out Respondent's campaign to present its views to
the installers as to why they should not vote for Local 42 in
the Board election held on April 15. Pursuant to this plan,
Dovey held meetings with the employees on March 25 and
April 7 and 11 in which he presented Respondent's argu-
ments.
Before any of these meetings were held, during the first
full pay period in which the new bonus plan was in effect,
employees pointed out that the system was inequitable be-
cause it contained no provision for teams of two installers.
Dovey agreed. Consequently, around March 16 Respon-
dent modified the plan to give bonuses to teams. Team
bonuses were first included in paychecks received by in-
stallers on April 15.
called to his attention I attach no significance to the fact that Respondent
failed to call Reaviel to corroborate Dovey as to when the changes were
announced
3 The date on which Respondent announced the names of the first bonus
winners is not clear in the record I gather it was at or shortly after the close
of the pay period in which they were earned In any event, it was no earlier
than March 15 and no later than March 31
4I do not credit the testimony of Erben Cook and Charles Richardson,
witnesses for the General Counsel, that Dovey announced at a meeting held
on March 7 he was aware Local 42 was conducting an organizational cam-
paign among the employees I credit the testimony of Dovey that the extent
On March 25 Dovey read verbatim a speech which he
had prepared himself and which had not received prior
approval of his counsel. It included this passage:
The law says that if union employees go on strike for
any economic reason-wages, benefits, anything of
that nature, the company has the right to terminate its
workers and replace them with other full-time employ-
ees.
On April 7 Dovey spoke from notes prepared in ad-
vance. He started by inviting the employees to talk with
him about problem areas in lieu of his making a speech. As
he had anticipated, based on his awareness that the em-
ployees' unhappiness over wages underlay their desire for
union representation, he got a question in that area. In
response, he explained how the annual budget system
works, told the employees that the proposal he had submit-
ted for fiscal 1976 called for increases ranging from 7 to 10
percent every 6 months, cautioned them that his recom-
mendation did not guarantee them a raise because the last
word was up to Tulsa, and indicated that approval was
likely. He made the point that this recommendation was
designed as a cost-of-living adjustment only and that, pur-
suant to company policy, individuals might receive merit
increases in addition based on the quality and quantity of
their work. Pending Tulsa's decision on his recommenda-
tion, he said, Respondent would follow through with the
new bonus system it had initiated as a result of employees'
written requests.
The subject of grievances also came up. Dovey said that
Respondent already had a grievance procedure in the par-
ent company's policy manual. The employees, who had not
previously been informed such a document existed, asked
if they could see it. Dovey said they could. Following the
meeting, he posted on the bulletin board a copy of the
parent company's "policy" relating to "employee griev-
ances."
Nothing occurred at the April 11 meeting which the
General Counsel claims violated the Act.
Finally, at a meeting which was not specifically designed
as part of Respondent's election campaign, but which was
one of the frequent but irregular meetings held prior to the
election for general purposes, an event occurred which the
General Counsel does contend was violative. The com-
plaint places this meeting on or about March 25, but it is
clear that it did not occur at the meeting where Dovey read
his speech. The record is unclear as to precisely when it did
take place. The only thing that can be said with certainty is
that it was held after Respondent knew it faced an election
and before the election was held.
On this occasion, Dovey introduced John Kauzlarich,
Respondent's newly hired sales manager, to the assembled
installers and instigated a dialogue between them about
how the work of the salesmen supervised by Kauzlarich
affected the installers and vice versa. The installers were
invited to tell Kauzlarich what their salesmen-related prob-
lems were so that Kauzlarich could deal with them. The
of his knowledge of union activity among Respondent's employees prior to
March 10 came from "discussions" he had heard of "unions being
interested in our system "
UNITED CABLE TELEVISION CORPORATION 1335
installers raised such items as salesmen who fail to tell the
customer that a hole has to be cut in his house or that a line
can be run from the cable on the telephone pole to his
television set The dialogue was bilateral, with Kauzlarch
also pointing out ways in which the installers should con-
duct themselves so as to avoid making problems for sales-
men
B Analysis and Conclusions
The complaint contains six separate allegations of
8(a)(1) violations Taken in the order in which they appear
in the recital of the facts above rather than the order in
which they are set forth in the complaint, they involve the
new bonus plan, Dovey's statement on March 25 that Re-
spondent has a right to terminate economic strikers,
Dovey's statement on April 4 that he had recommended a
raise of 7 to 10 percent for the installers, the posting of the
grievance procedure following the April 4 meeting, and the
Kauzlanch meeting
1 The bonus
Two allegations involve the bonus The first is that "Re-
spondent paid bonuses to employees in order to dis-
suade them from supporting the Union " The second is
that Respondent "announced to employees that [it] had
amended its bonus plan to include team bonuses in addi-
tion to individual bonuses, in order to dissuade employees
from supporting the Union Both events are pleaded as
having occurred "[o]n or about March 28, 1975," an ob-
vious but understandable variance in light of the way the
proof came in What is at issue are the fact that installers
first earned bonuses as of March 15 and the fact that Re-
spondent announced the team modification around March
16 when weighed against the fact both events occurred in
the period between the filing of the petition and the hold-
ing of the election in Case 1-RC-13744
The General Counsel recognizes in his brief the essential
difference between the two bonus allegations In the sec-
tion devoted to the change from the old to the new plan, he
states
The Respondent took advantage of the situation
to announce to the employees, right in the middle of
the critical period [i e , between the filing of the peti-
tion on March 13 and the holding of the election on
April 15], that bonuses had, for the first time, been
earned It could have simply paid the bonuses
out, without any accompanying fanfare, but this
would not have served its purpose [Emphasis sup-
plied, reference to transcript omitted ]
In the section devoted to the modification of the new plan
he states
In response to [employee] complaints [that team em-
ployees could not earn bonuses], Dovey immediately
developed and implemented a change in the existing
bonus plan so that two-man teams could now earn
bonuses And he quickly made sure that the
change was announced to the employees All of
this, in fact, was accomplished during the critical peri-
od [Reference to transcript omitted ]
In the first instance, the gravamen of the complaint is that
employees were made aware they were about to collect
some money from an existing benefit, in the second, it is
that employees were made aware a new benefit was being
created
The General Counsel's emphasis that each of these
events occurred during the critical period considered by
the Board in representation cases is a reflection of the fact
that whether a second election should be held is also an
issue here In fact, two of the three cases the General
Counsel cites in these portions of his brief-Material Han
dung Equipment Division of FMC Corporation, 217 NLRB
12 (1975), and Essex International, Inc 216 NLRB 575
(1975)-are representation caces in which the setting aside
of an election was the only issue Nevertheless, the princi-
ples for which these cases stand control the bonus issue
whether viewed as an unfair labor practice or as an objec-
tion to an election
The crucial question is whether Respondent did what it
did in order to influence the installers in the upcoming
election The General Counsel does not contend it changed
from the old to the new bonus plan for that reason because
that benefit was conferred well before there was reason for
Respondent to think it was about to face an election Thus
the General Counsel relies on the two things Respondent
did do with respect to the bonus after the petition was filed
As the Board made clear in Essex, conferring a benefit at a
time an election is known to be imminent is not a per se
violation Rather, "in the absence of a showing that the
timing of the announcement was governed by factors other
than the pendency of the election, the Board will regard
such timing as calculated to influence the employees in
their choice of a bargaining representative As a gen-
eral rule, an employer, in deciding whether to grant bene-
fits while a representation election is pending, should de-
cide that question as it would if a union were not in the
picture " 216 NLRB at 576
Here, Respondent's conduct meets that test of legality in
both instances Since it had created the new bonus plan
before the Union entered the picture, it could not abolish it
after without running the risk of committing an unfair la-
bor practice by terminating a benefit Failing to pay bonus-
es earned under the new plan would have effectively termi-
nated it Paying the winners and announcing their names
go hand in hand Since Respondent would have an-
nounced the winners in any event, it was not required to
keep the names secret Similarly, the modification was
made in an effort to correct an obvious inequity It, too,
would have been made in any event because it was the
inevitable next step in in the chain of events set in motion
when Respondent adopted the new plan Not to have made
it because the Union had entered the picture would, once
again, have been an unfair labor practice
The General Counsel's third case-Shelby Williams of
Tennessee, Inc, 165 NLRB 737 (1967)-does not require a
different result There, the employer was found to have
violated Section 8(a)(1) by announcing a general wage in-
crease at the culmination of the union s organizing cam-
paign The crucial finding was one of motive, thus
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although there were economic motivations for the in-
crease, [the employer's general manager] sought in his
announcement to hinder future organizational efforts
of the Union
The fact that each of the events during the critical period
complained of by the General Counsel flowed from a bene-
fit conferred before the Union entered the picture pre-
cludes a similar finding here
I find, therefore, Respondent has not violated Section
8(a)(1) of the Act by paying bonuses to employees or by
announcing to employees that it had amended its bonus
plan to include team bonuses
2 The threat
This issue turns on Dovey's inept use of the phrase "right
to terminate" in the sentence from his March 25 speech set
forth in the section entitled "Facts" above The General
Counsel contends Respondent violated Section 8(a)(1)
when Dovey spoke the sentence because he misstated the
law with respect to the rights of economic strikers, citing,
among other cases, Hicks-Ponder Co, A Division of Blue
Bell, Inc, 186 NLRB 712 (1970), affd 458 F 2d 19 (C A 5,
1972), and George Webel d/b/a Webel Feed Mills & Pike
Transit Company, 217 NLRB 815 (1975) Respondent's
principal argument is that the sentence, when taken in con-
text, does not misstate the law
In this respect, Respondent's argument is two-pronged,
since it argues on the basis of both a narrow and a broad
context The narrow context is the paragraph in which the
sentence appears in the speech, thus
In a paragraph which otherwise explains the law in a
perfectly proper manner, the use of the word "termi-
nate" is not a material misrepresentation of the rights
of the employer
The paragraph reads as follows
If the union calls a strike at our system, can you lose
your j ob'9 Yes The law specifically states that a com-
pany can hire new employees to replace economic
strikers This means that there may be no jobs for the
strikers after the strike is over Let me explain this to
you a little further The law says that if union employ-
ees go on strike for any economic reason-wages, ben-
efits, anything of that nature, the company has the
right to terminate its workers and replace them with
other full-time employees When and if the strike is
ended, the worker who has taken your place has first
hold on that position The company is not obligated to
create a job opening for you Consequently, the possi-
bility of you losing your job in the event of a strike in
this system is real I needn't remind you of the unem
ployment situation in New Britain I say this because
regardless of what happens, this company does not
intend to stop any phase of the business strictly to
accommodate striking workers
As to the broad context on which Respondent relies, its
brief reads
In fact, the entire context of Mr Dovey's comments
is even broader than the March 25 speech In his two
subsequent campaign speeches he made reference to
the same issue
The notes from which Dovey spoke on April 7 contain this
section
3 Security-emphasize only company can provide
it No way union can guarantee it Must negotiate in
good faith on both sides, but company does not have
to accept Union demands -*You can be replaced le-
gally & permanently if you strike due to economic con
sideration [Emphasis Dovey's, including the star ]
The notes from which he spoke on April I1 read
3 If satisfactory agreement cannot be reached, the
alternatives are
-ignore the situation
-or strike
If you strike, for economic reasons, (wages, benefits,
etc) the company, can by law-replace you with a
perment [sic] employee [Emphasis Dovey's ]
Respondent's argument continues
Thus on three separate occasions the law was prop-
erly conveyed in the context of "permanent replace-
ment" language An inappropriate use of the word
"terminate," bracketed by clarifying language, in the
first of the three speeches, is too insignificant to re-
quire a new election If indeed there was a technical
violation, it was corrected by Mr Dovey himself on
two subsequent dates Furthermore, the union had
more than two weeks to correct any misimpressions if
it thought it was necessary
Respondent's other argument is, in essence, that no vio-
lation occurred because there was no threat This argument
is also two-pronged 1 he first is that the employees were
left with a lawful impression 5 The second is that "Respon-
dent clearly dealt only with an exposition of its legal rights
5 The testimony of three of General Counsels witnesses which Respon
dent relies on at this point in its brief to support this position does not do so
Cook testified
Q (By Mr Clemow)-Dovey pointed out that in a union situation a
strike is a very good possibility and that if there was a strike the law
permits the company to hire replacements and there is no obligation to
hire us back when the strike is over
Is that still your recollection of what Mr Dovey said9
A Yes sir
Richardson testified
He read from a prepared text at this meeting and stated that if there
were a union organization and they could not arrive at an agreement
with the union that there would be a strike and that he could legally
replace every one of us
Is that still your recollection?
A I know he said that Yes
James Gerard testified
Q (By Mr Clemow) During the course of the employee meetings
about the union Dovey indicated that the coming of a union could
result in a strike and if there was a strike he could lawfully replace
employees on strike
Is that still your recollection of what he said?
A I still agree with that statement
None of this suggests the employees under.Stood the important modification
to an employers right permanently to replace economic strikers created by
the Boards decision in The Laidlaw Corporation 171 NLRB 1366 (1968)
UNITED CABLE TELEVISION CORPORATION 1337
There was no implied or express suggestion that such
things would take place " Respondent's argument
concludes
Consequently, since no threat was conveyed, it is
difficult to establish an 8(a)(1) violation, under the
rule of the Rollins decision [N L R B v Rollins Tele-
casting, Inc, 494 F 2d 80 (C A 2, 1974) 1 The very
worst that occurred was an inadvertent misrepresenta-
tion of the law in the area As mentioned above, any
misunderstanding was corrected in the same speech
and in two subsequent talks But more important,
even under the Board's own decisions on "laboratory
conditions," an election is not set aside because of
inaccuracies or misrepresentations unless the issue is
significant enough so that voters are likely to be influ-
enced by it, the misrepresentation is substantial or ma-
terial, and the incident occurs so close to the election
that the union has no opportunity to reply Hollywood
Ceramics Co, Inc, 140 NLRB 221, 51 LRRM 1600
(1962) requiring substantial departure from truth, in-
adequate reply time, reasonable expectation of sub-
stantial impact on election, and more than just inartis-
tic or vague wording of statements on issue, S S
Kresge Co, 159 NLRB 256, 62 LRRM 1248 (1966),
finding misrepresentation of state right-to-work law to
be immaterial
The testimony I have set forth in footnote 5 above re-
futes the argument that employees were left with a lawful
impression It requires a finding that they were left with the
impression that, once they were permanently replaced in
the course of an economic strike, their jobs would be gone
forever Whether Respondent prevails on this issue because
it `clearly dealt only with an exposition of its legal rights"
turns on whether or not what Dovey said expressed its
legal rights Thus, in the final analysis the question comes
down to Respondent's principal argument-does the sen
tence which is the gravamen of this allegation of the com-
plaint, when taken in context, narrow or broad, properly
state the law with respect to the right of an employer per-
manently to replace economic strikers? It clearly does not
In fact, the whole thrust of Dovey's message, on all three
occasions when his only purpose in meeting with the instal-
lers was to persuade them to vote against the Union, was
that Respondent had the right to find others to take their
places permanently if they struck over wages, benefits, etc,
and this right could cost them their jobs Whether the con-
text is the narrow one of the March 25 speech only or the
broad context of the March 25 speech modified by howev
er Dovey actually phrased the same point on April 7 and
again on April 11, the obvious illegality of the sentence at
issue is enhanced rather than ameliorated by the context in
which it was spoken I find, therefore, that Respondent
violated Section 8(a)(1) of the Act by threatening employ-
ees with discharge in order to dissuade them from support-
ing the Union when Dovey spoke this sentence on March
25 Hicks Ponder, supra
As to the Hollywood Ceramics aspect of Respondent's
argument, I recommend below that the election held in
Case I-RC-13744 on April 15 be set aside and a second
election held on the basis of this as well as another viola-
tion of the Act A misstatement of the law which leaves
employees with the impression that they run a greater risk
of losing their jobs than the law permits if they exercise
their right to strike is a departure from the truth so signifi-
cant that voters are obviously likely to be influenced by it
The fact that the Union might have given the employees a
correct statement of the law after Dovey spoke does not
require a different conclusion The subject is not one pecu-
liarly within the Union's sphere of knowledge There is no
objective reason why the employees should have trusted
the Union on this subject more than Respondent More
importantly, when this violation of Section 8(a)(1) is cou-
pled with the other found below, the total impact on the
"laboratory conditions" of this election is too great to
make the right of the installers to make up their own minds
about union representation without interference from any-
one turn on the question of which side had the last word
before they went to the polls
3 The promise
Like the new bonus plan, the events which raised the
probability Respondent's installers would get a 25-cent
raise in August predated Respondent's awareness it faced
an election Dovey began working on his new budget well
before he mailed it on March 7 Guidelines furnished him
by Tulsa included raises Twenty-five cents is a shade more
than 7-1/2 percent of $3 25, not significantly more than
Tulsa's suggestion, and a logical increment to a rate al-
ready figured to the quarter of a dollar There is no credi-
ble evidence Dovey knew Local 42 was on the verge of
filing a petition for an election when he mailed his propos-
al Dovey's statement on February 24 that a raise was im-
possible but a change in the bonus plan might give the
installers some immediate relief related to the current bud-
get Therefore, there is no basis for a finding that Dovey
included a raise in his budget because he learned an elec-
tion was imminent Rather, this issae turns on Dovey's mo-
tive for telling the installers about his proposal on April 7
The principle which controls this issue is the same as for
the bonus The result, however, is different The April 7
meeting was admittedly planned as an electioneering exer-
cise Dovey knew money was the installers' primary con-
cern He prepared for the meeting by making the an-
nouncement of a probable raise the first item on the
agenda He conducted the meeting in a way which got him
the inevitable question so that he could make the point he
had in mind He couched the announcement in the vague
terms of `planned for increases ranging from 7 to 10% ev-
ery 6" months rather than a precise number of cents per
hour The raise was more than 3 months off There was no
immediate business reason for telling the installers that Re
spondent had wage increases in the works for them only 8
days before the scheduled election On the contrary, the
fact that the raises had not yet been approved was a sound
business reason for not bringing up the subject, for raising
and then dashing the expectations of employees can only
serve to lower their morale Cf N L R B v Cleveland Trvst
Co, 214 F 2d 95 (CA 6, 1954) The two bonus events
during the critical period which the General Counsel has
alleged as violative flowed inevitably from a decision of
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the installers were made aware before the Union
entered the picture They knew nothing of the raise before
Dovey told them about it after the Union entered the pic-
ture It follows that his announcement of April 7 was "cal-
culated and designed to influence the employees in their
choice of a bargaining representative in the election " I
find, therefore, Respondent violated Section 8(a)(1) of the
Act by imphedly promising them a benefit in order to dis-
suade them from supporting the Union when, on April 7,
Dovey "announced to employees that the proposed budget
which Respondent had submitted to its home office for
approval included a 7% to 10% wage increase " Hineline's
Meat Plant, Inc, 193 NLRB 867 (1971)
4 The grievance procedure
The allegation in the complaint with respect to this issue
is that "Respondent, for the first time, posted its grievance
procedure on the employees' bulletin board at its
Plainville plant " The General Counsel's argument is sum-
marized thus in his brief
While the grievance procedure was established com
pany policy, it was not previously known to or ever
utilized by the employees Under these circumstances,
including the fact that the grievance procedure had
never been posted before and was (allegedly) posted in
response to an employee question raised during the
critical period, the Respondent's action must be held
to violate Section 8(a)(1) and to interfere with the elec
tion Howard Manufacturing Company, Inc, 180
NLRB 220, 225-226, Montgomery Ward and Co, In
corporated, 187 NLRB 956
Both cases are distinguishable In Howard the posting of
an old leave-of-absence policy, unknown to present em-
ployees, was found to have interfered with an election
where only two employees had availed themselves of it
over a 6-year period (The Trial Examiner also found an
8(a)(1) violation, but the Board reversed on the ground that
the 6 months' statute of limitations found in Section 10(b)
of the Act barred such a finding) The rationale of the
decision is that the employer conferred a benefit by, in
effect, creating a leave policy where "no urgent need for
the timing of the announcement of the correction has been
shown " In Ward an old call-in pay policy was applied at
the store in question after a hiatus of several years An
employee asked a question at a meeting similar to the one
held by Dovey on April 7, and the employer ordered the
policy reinstated "At similar preelection meetings subse-
quently called, [Respondent] adverted to the `call-in' bene-
fit which had been accorded the employees, while prophe-
sying in the course of [its] other remarks that employees
would get `absolutely nothing' from the Union if it won the
election " Here, the grievance policy was old in the sense
that Respondent's parent company had had it in effect for
some time It was new, however, in the more important
sense that Respondent had not been in operation very long
when the subject of a grievance procedure came up for the
first time because an installer happened to ask Dovey a
question at the April 7 meeting Dovey posted the relevant
page from Respondent's policy manual as the most
straightforward way of satisfying the installers' curiosity
When he did so, he did not confer a benefit on them, nor
was the posting calculated and designed to influence their
choice of a bargaining representative I find, therefore, that
Respondent did not violate Section 8(a)(1) by posting the
grievance procedure
5 The Kauzlarich meeting
The final allegation in the complaint-that Dovey solic-
ited grievances from the installers when he introduced the
new sales manager, John Kauzlarich, at a meeting and told
them `he wanted complaints about sales to be cleared up
and invited them to tell their problems to [Kauzlarich],
who would try to take care of them"-puts in issue the
nature of the meetings held prior to the election There is
no dispute that Dovey called the meetings of March 25 and
April 7 and 11 for the express purpose of electioneering for
Respondent There is also evidence, and I find, that the
subject of the Union came up at other meetings held dur
mg the critical period However, frequent meetings were an
integral part of Respondent's operation during this period
and a necessity in view of the fact it was dust starting up
(The fact that they became somewhat less frequent after
the election is attributable as much to the gaining of expe-
rience by the installers as to the end of a need felt by
Dovey to persuade them to vote against the Union) More
importantly, there is no indication that the Union or the
impending election came up in any way at the Kauzlanch
meeting Therefore, the fact that this meeting was held dur-
ing the critical period does not dispose of this issue
The difficulty here grows in large measure out of the fact
that the date on which Dovey introduced Kauzlanch to the
installers cannot be stated precisely As the following ex-
cerpt from the General Counsel's brief makes clear, his
argument leans heavily on timing
The Respondent had brought the previous Sales
Manager, McLett, to an employee meeting in January
However, although the employees continued to
complain about these problems day in and day out
, and despite the fact that the Respondent recog-
nized their concern in this area no more meetings
were held until the Union came on the scene In fact,
while Kauzlarich was hired on March 4 it was not
until some three weeks later during the height of
the Respondent's anti-union campaign, that another
grievance meeting was held Moreover, while the em-
ployees have continued to complain about their prob-
lems with the sales force no further grievance
meetings on these problems have been held since the
election
The implication is clear from all the above that the
sole purpose of the Kauzlanch meeting, held during
the critical period, was to solicit employee complaints
in an area of great concern to employees The infer-
ence for the employees to draw was that the Respon-
dent would remedy such complaints, thus making
union representation unnecessary [References to tran-
script omitted ]
On this record, a finding that Kauzlarich met the installers
UNITED CABLE TELEVISION CORPORATION 1339
on March 13 is as justified as one that he met them on or
about March 25, the date relied on by the General Coun
sel The sooner after his March 4 hire the meeting was held,
the less significance there is to the fact that the meeting was
held at all
I cannot find "that the sole purpose of the Kauzlarich
meeting was to solicit employee complaints in an area
of great concern to employees " I doubt that it was even a
purpose of the meeting To introduce the installers in a
comparatively small operation to a new executive whose
work would inevitably impinge on theirs strikes me as the
sort of thing Respondent would have done in any event
What Dovey and Kauzlarich said was the sort of thing they
would have said under any circumstances Kauzlarich's
purpose, clearly, was to find out what his salesmen were
doing wrong so that he could get them on the ball while, at
the same time, educating the installers on how their work
affected his men If, at law, what he and Dovey said
amounted to solicitation of grievances, it was inadvertent
and not intentional
Assuming for the purpose of this analysis that they did
"solicit grievances," it is equally clear that they did not
expressly promise to correct them The General Counsel
concedes as much, for his brief continues
Kauzlarich indicated as much to the employees
This indication by the Respondent to its employees
that it would look into the problems in question is
enough to create the unlawful inference that such
problems would be resolved Rotek Incorporated, 194
NLRB 453 Where, as here, the Respondent has failed
to state to employees that it is not promising any cor-
rective action and where its solicitation of grievances
takes place in an atmosphere filled with other unfair
labor practices committed by it, the Respondent's ac-
tions are clearly coercive in nature and in violation of
Section 8(a)(1) [Reference to transcript omitted]
As the witnesses who testified about this meeting generally
agreed, the problems created by the salesmen-installers di-
chotomy are implicit in the nature of the cable television
business, a matter of ongoing concern at both the manage-
ment and employee level, and are incapable of any perma-
nent solution
This issue is controlled by the principles set forth in Uar
co Incorporated, 216 NLRB 1 (1974) There, the Board
found "that Respondent at least impliedly solicited com-
plaints and grievances from the employees " It continued
Nevertheless, the Administrative Law Judge also
found, and we agree, that the Respondent's preelec
tion conduct was not coercive and that it neither vio-
lated Section 8(a)(1) of the Act nor interfered with the
freedom of choice of the employees in the election
The disposition of this case rests on the resolution
of the question whether Respondent, by its conduct
impliedly made promises of benefits to the employees,
for there is no doubt that none of Respondent's state-
ments themselves contained any such express prom-
ises As noted by the Administrative Law Judge and
by our dissenting colleague, the solicitation of griev-
ances at preelection meetings carries with it an infer-
ence that an employer is implicity promising to correct
those inequities it discovers as a result of its inquiries
Thus, the Board has found unlawful interference with
employee rights by an employer 's solicitation of griev-
ances during an organizational campaign although the
employer merely stated it would look into or review
the problem but did not commit itself to specific cor-
rective action , the Board reasoned that employees
would tend to anticipate improved conditions of em-
ployment which might make union representation un
necessary However , it is not the solicitation of griev-
ances itself that is coercive and violative of Section
8(a)(1), but the promise to correct grievances or a con-
current interrogation or polling about union sympa-
thies that is unlawful , the solicitation of grievances
merely raises an inference that the employer is making
such a promise, which inference is rebuttable by the
employer [ Footnotes omitted ]
The inference is rebutted here by two undisputed facts
about this meeting The most that any witness testified
Kauzlarich said about corrections was "that he would have
to meet with the people in the sales department , because he
had only heard our complaints at that point And he would
have to meet with them and see what could be done", thus
there was no promise to correct grievances The Union was
not a subject which came up, even peripherally, thus there
was no "concurrent interrogation or polling about union
sympathies "
Two cases relied on by the General Counsel are distin-
guishable on their facts In Rotek, supra, while ` [i]t is true
that nothing concrete was promised ," the foreman who
played the Dovey-Kauzlarich role "stated in so many
words that Respondent's purpose was to ascertain what
benefits to grant the employees `so that they wouldn't need
to get a union in' " Ir Flight Safety, Inc, 197 NLRB 223
(1972), one company spokesman asked employees "which
benefits they were `interested in or `wanted most,' indicat-
ing that they `would' or `probably could get more if they
`kept the Union out"' The other , while he "stressed that
he could not presently rectify or promise to rectify their
economic grievances because of the financial condi-
tion of the Company assured them that they would `be
better off dealing with him personally than to have to go
through a representative ' "
Both cases turn on the employer's expressed antiunion
reason for soliciting grievances without expressly promis-
ing to correct them, a situation not present here even if
Dovey and Kauzlarich did solicit grievances from the in
stallers when they said what they did As measured by the
Uarco criteria, the words spoken did not impliedly promise
to correct them I find , therefore, Respondent did not vio-
late Section 8(a)(1) by soliciting grievances from employees
when Dovey introduced Kauzlarich
III THE OBJECTIONS TO THE ELECTION
The three objections to the election held in Case 1-RC-
13744 on April 15 which have been referred to me are that
Dovey promised employees a wage increase, that he solic-
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ited grievances , and that, " [b]y the above and other con-
duct , the Employer interfered with the rights of its employ-
ees to select a collective bargaining representative " My
findings that Respondent committed 8(a)(1) violations by
Dovey's implied promise on April 7 and his threat on
March 25 encompass the first and third , respectively My
finding that Dovey and Kauzlarich did not solicit griev-
ances when the former introduced the latter to the instal-
lers disposes of the second I recommend that it be dis-
missed I further recommend , on the basis of the first and
third, that the election of April 15 be set aside and a second
held
Upon the foregoing findings of fact, and upon the entire
record in this proceeding , I make the following
CONCLUSIONS OF LAW
thorized representative , shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con
secutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily post-
ed Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered , defaced , or covered
by any other material
(b) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent violated Section 8(a)(1) of
the Act by paying bonuses and announcing an amendment
to its bonus plan in order to dissuade employees from sup-
porting a union , by posting its grievance procedure, and by
soliciting grievances from employees
1 United Cable Television Corporation of Connecticut
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 International Brotherhood of Electrical Workers, Lo-
cal 42, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By threatening employees with discharge and by im-
plledly promising them a benefit in order to dissuade them
from supporting a union, Respondent has violated Section
8(a)(1) of the Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
5 The allegations of the complaint that Respondent vio-
lated Section 8(a)(1) of the Act by paying bonuses and
announcing an amendment to its bonus plan in order to
dissuade employees from supporting a union, by posting its
grievance procedure , and by soliciting grievances from em-
ployees have not been sustained
Upon the basis of the foregoing findings of fact, conclu-
sions of law , and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended
ORDER6
United Cable Television Corporation of Connecticut, its
officers , agents, successors , and assigns, shall
1 Cease and desist from
(a) Threatening employees with discharge in order to
dissuade them from supporting a union
(b) Impliedly promising employees a benefit in order to
dissuade them from supporting a union
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act
2 Take the following affirmative action necessary to ef-
fectuate the policies of the Act
(a) Post at its premises in Plainville, Connecticut, copies
of the attached notice marked "Appendix " 7 Copies of
said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's au-
6 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
7 In the event that the Boards Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
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 having found , after a
hearing , that we violated Federal law during the campaign
which preceded the representation election held in April
1975, we hereby notify you that
The National Labor Relations Act gives all employees
these rights
To engage in self-organization
To form, loin , or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things
WE WILL NOT threaten you with discharge in order to
dissuade you from supporting a union
WE WILL NOT promise you benefits in order to dis-
suade you from supporting a union
WE WILL NOT, in any like or related manner, interfere
with, restrain , or coerce you in the exercise of the
above rights
All our employees are free , if they choose, to join Inter-
national Brotherhood of Electrical Workers, Local 42,
AFL-CIO , or any other labor organization
UNITED CABLE TELEVISION CORPORATION OF CON
NECTICUT