Valley Cable TV Co.

National Labor Relations Board - Board Decisions

Apr 11, 1977

228 N.L.R.B. 1355 (N.L.R.B. 1977)

VALLEY CABLE TV CO. 1355
Shows, Inc., d/b/a Valley Cable TV Co . and Interna-
tional Brotherhood of Electrical Workers, Local
Union No. 126 , AFL-CIO. Case 6-CA-9175
April 11, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On January 21, 1977, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding . Thereafter , the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Shows, Inc.,
d/b/a Valley Cable TV Co., North Versailles,
Pennsylvania, its officers , agents , successors, and
assigns , shall take the action set forth in said
recommended Order , except that the attached notice
is substituted for that recommended by the Adminis-
trative Law Judge , in order to explicitly state
employees ' Section 7 rights.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc. 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice and we
intend to abide by the following.
Section 7 of the Act gives all employees these
rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To bargain collectively through represen-
tatives of their own choosing
To refuse to do any or all of these things.
WE WILL bargain collectively, upon request,
with International Brotherhood of Electrical
Workers, Local Union No. 126, AFL-CIO, as the
exclusive representative of the employees in the
appropriate unit described below and embody
any understanding reached in a signed agreement.
The appropriate bargaining unit is:
All technicians, installers, and trainees em-
ployed by the employer at its North Ver-
sailles , Pennsylvania , facility; excluding all
other employees, janitors, programmers,
chief technicians, clerical employees and
guards, professional employees and supervi-
sors as defined in the Act.
WE WILL NOT interrogate our employees about
their union membership or desires.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Section
7 of the National Labor Relations Act, as
amended.
SHOWS, INC., D/B/A
VALLEY CABLE TV Co.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: Upon a
charge filed on April 19, 1976,1 by International Brother-
hood of Electrical Workers, Local Union No. 126, AFL-
CIO (herein the Union or Charging Party), the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 6, issued a complaint and
notice of hearing against Shows , Inc., d/b/a Valley Cable
TV Company (herein the Company, Employer, or Respon-
dent) on May 27. On June 8, Respondent duly filed its
answer to the complaint.
i All dates hereinafter refer to the calendar year 1976, unless otherwise
indicated.
228 NLRB No. 182
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal issue raised by the pleadings is whether
Respondent, since on or about April 5, has failed and
refused to bargain in good faith with the Union in violation
of Section 8(a)(5) of the National Labor Relations Act, as
amended (herein the Act). Also involved are several
instances of alleged violations of Section 8(a)(1) of the Act
by Respondent's agents and supervisors.
Pursuant to due notice, a hearing was held before me in
Pittsburgh, Pennsylvania, on August 4, in which all parties
participated. Following the close of the hearing, written
briefs were received from counsel for Respondent and from
counsel for the General Counsel, which have been fully
considered.2
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS 3
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, a Pennsylvania corporation with a facility
located at North Versailles, Pennsylvania, is engaged in the
operation of a community antenna television system,
whereby it receives television signals via cable. On March
17, 1971, the Union was certified as the collective-bargain-
ing representative of employees in the following unit which
the Board found appropriate:
All technicians, installers, and trainees employed at the
Shows, Inc., d/b/a Valley Cable TV Company and
Western Penn Cablevision, North Versailles, Pennsyl-
vania location excluding all office clerical employees,
janitors, programmers, chief technician and guards,
professional employees and other supervisors as de-
fined in the Act?
The record shows that since 1971 two successive
collective-bargaining agreements have been executed cov-
ering the employees in the aforesaid unit. The first contract
was dated June 1, 1971, and ran for a 2-year term; the
second agreement ran from June 1, 1973, until May 31,
1976. The contract provided that: "Either party desiring to
change or terminate this agreement must notify the other in
writing at least 60 days prior to the expiration date.5
2 Also, following the close of the hearing, I was notified by Respondent
that , under the evidence in the case, Respondent was taking the position
that the last collective-bargaining agreement existing between the Company
and the Union had automatically renewed itself thereby obviating the
8(a)(5) allegation of the complaint. On August 31, I issued an Order to Show
Cause why the 8(aX5) allegations of the complaint should not be dismissed
Both counsel for Respondent and counsel for the General Counsel duly
responded to said Order to Show Cause By Order dated September 16, 1
issued a "Ruling on Order to Show Cause" in which it was concluded that
the 8(a)(5) allegations of the complaint should not be dismissed based on the
aforesaid contention of Respondent
3 There is no issue ofjunsdiction or of the status of the Union as a labor
organization The complaint alleges sufficient facts, which are duly admitted
in the answer of Respondent, upon which I may, and do hereby, find that
Respondent is now, and has been at all times material, an employer engaged
in commerce within the meaning of Sec. 2(6) and (7) of the Act, and that the
Union is now, and has been at all times material, a labor organization within
the meaning of Sec 2(5) of the Act
During the first quarter of the calendar year 1976, there
were four employees in the aforesaid bargaining unit:
Thomas Anderson, John Baren , Preston Birimgham, and
Dennis Damico.6 At that time, Harold Etsell, Jr., was
systems manager of Respondent, having held that position
for approximately 7 months.? Etsell testified that in
February he had a conversation with all four employees in
the unit, the purpose of which was to "know more about
them, to learn about their goals with the Company, what
training requirements might be required, and a little bit
about them personally, if possible." When Etsell raised the
question about training in his conversation with Damico,
the latter stated that he was interested but was not able to
consider that because of his concern with the "Clyde
Haidel situation."8 Etsell responded that the Haidel case
was before an arbitrator and that the Company had, at that
time, a position open for only four technicians; according-
ly, if Haidel returned , "chances are we would have to lay
him off because Clyde was senior." Damico then indicated
that he could not consider outside training at that time (the
record shows that the employee was responsible for
payment of part of the cost of such outside training), and
he "felt that the Union had shafted him once before by
laying him off in a previous situation , about a year and a
half prior to that." 9
Damico confirmed the foregoing version of the conversa-
tion between him and Etsell to the extent stated, but added
that at the conclusion thereof Etsell said that if Damico did
not want to be represented by the Union, Damico should
write a letter to the National Labor Relations Board
"telling them why I did not want to be represented." About
a week or so later, according to Damico's testimony, Etsell
"reminded me if I did want to write this letter, that I should
write it soon." 10
The record does not indicate that Damico ever wrote a
letter to the NLRB pursuant to Etsell's suggestion.
The same day, Etsell had an interview with employee
Anderson which followed substantially the format of
Etsell's discussion with Damico. It appears that the Clyde
Haidel situation was also raised in the discussion, appar-
ently by Anderson, who was interested in the status of the
employee complement should Haidel return to work. Etsell
responded that it would be most likely that Damico would
be laid off, since there were no other positions open within
the Company at that time. Anderson testified that Etsell
asked him what his thoughts were about the Union to
* Case 6-RC-5711. At that time the employer involved was not
Respondent , Respondent succeeded to the operation of the facility in
August 1973.
s See G C. Exh 3, p. 2.
6 All employees in the unit were members of the Umon pursuant to a
union-security clause in the contract.
I Prior thereto Etsell had been connected with another company.
9 It appears that Clyde Haidel was an employee who had been in some
manner terminated from active employment with the Company, and whose
case was presently pending at some stage in the grievance procedure,
apparently before an arbitrator . Damico's concern was that if the arbitrator
ruled in Haidel 's favor, Haidel would return to work, and since he had more
seniority than Danuco, the latter might be subject to layoff.
9 Testimony of Etsell.
io Testimony of Damico, which is undenied and credited. Etsell admitted
telling employee Anderson later the same day (see, infra) that, if the latter
felt the way Etsell believed him to feel, Anderson should contact the NLRB
VALLEY CABLE TV CO. 1357
which Anderson responded that he felt a union "system
will hold you back in promotion." Etsell replied that-"if I
didn't feel I wanted to be represented by a union, that I
should write a letter to the Labor Relations Board stating
so."" I find the foregoing interrogation, which took place
in the locus of the manager's office, without any assurance
against retribution, to be coercive and therefore violative of
Section 8(a)(1) of the Act.12
As in the case of Damico, Anderson never wrote a letter
to the NLRB indicating a desire to withdraw from the
Union.
The record reflects that Etsell had a conversation with
employee Donald Ireland in February in which the latter
expressed a dislike of unions, in general . At that time,
Ireland was classified as a studio operator, which was not
within the bargaining unit. Again in March, Etsell had a
conversation with Ireland in which the former inquired
whether Ireland would "consider taking on the responsibil-
ity of being a regular part- time installer" (which was a
classification within the unit). At that time Etsell noted that
Ireland would have to join the Union to become a regular
part-time installer . Ireland responded that although he did
not like unions, "I wouldjoin though if I had to , to assume
this working responsibility." 13
B. The Alleged 8(a)(5) Violation
On March 31, Respondent filed a petition for an election
with the NLRB. 14 In such petition, Respondent asserted
that there were five employees in the unit-the four
employees named above, plus Ireland. Filed concomitantly
with the petition was a letter addressed to the Board signed
by Etsell which presumably formed the basis for the
Company's doubt of the Union's majority status since, in
the letter , Etsell refers specifically to his conversations with
Anderson, Damico, and Ireland, above described.
On June 1, the Regional Director for Region 6 dismissed
Respondent's petition because of the issuance of the
instant complaint. Such dismissal was affirmed by a ruling
of the Board on July 8.
Also, on March 31, Respondent wrote a letter to the
Union in which it notified the latter that Respondent
wished to terminate the agreement with the Union. This
letter was hand-delivered to the Union on April 2.
On April 5 the Union notified the Company by letter of
its desire to meet for the purpose of negotiating wages and
conditions of employment. Respondent never replied to
that letter, and no negotiations have been held.
11 Credited testimony of Anderson. Etsell denied interrogating any of the
employees as to their opinion of the Union Such denial is not credited In
addition to demeanor considerations, it would seem quite likely and
reasonable that in the context of a conversation in which the subject of the
Union arose in one way or another, Etsell might very well wish to pinpoint
an employee's views, since it appears that any employee who expressed
dissatisfaction with the Union was promptly informed by Etsell of his right
to pursue the matter further with the NLRB.
12 See, e. g., Bonnie Bourne, d/b/a Bourne Co. v N L R B, 332 F 2d 47
(C.A 2, 1964), NLRB v. Cameo, Inc, 340 F 2d 803 (C.A 5, 1965) The
fact the question may have been raised in a relaxed or casual atmosphere
does not exculpate its coerciveness (see Hanes Hosiery, Inc, 219 NLRB 338
(1975)), nor does the fact that the union issue may have been raised by the
employee provide a defense to the employer's statements (H L Meyer
Analysis and Concluding Findings
The applicable legal principles governing the resolution
of this issue were succinctly set forth by the Board in the
recent case of Burns International Security Services, Inc., 15
as follows:
In determining whether Respondent's withdrawal of
recognition violated the Act, the General Counsel in his
brief correctly noted the pertinent standards by which
the Board determines whether an employer's withdraw-
al of recognition from an incumbent union is permissi-
ble. Under these rules, as set out in the Board's decision
in Celanese Corporation of America, a certified union,
upon the expiration of the first year following its
certification, enjoys a rebuttable presumption that its
majority representative status continues. The presump-
tion also continues to apply after the expiration of a
collective-bargaining agreement. Furthermore, the exis-
tence of a prior contract is sufficient to raise a dual
presumption of majority, first that the union had a
majority status when the contract was executed, and
second that the majority continued at least through the
life of the contract. These presumptions may be
rebutted, however, by evidence establishing that the
union no longer enjoys majority representative status.
Also, even without such a showing of a loss of majority,
an employer may refuse to bargain if he relies on a
reasonably based doubt as to the continued majority
status of the union. As to a reasonably based doubt,
two prerequisites for sustaining that defense are that
the asserted doubt must be based on objective consider-
ations and such doubt must be raised in a context free
of unfair labor practices.
Respondent here offered no evidence establishing that
the Union no longer enjoyed majority representative status.
Rather, as in Burns, Respondent filed its RM petition
relying on an alleged good-faith doubt based on the
conversations of its manager with three employees, as set
forth above. I find, as did the Board in Burns, that such
evidence is insufficient to sustain the Respondent's burden.
Thus, in Burns, Respondent alleged that it had received
"various oral complaints and criticisms about this union,"
but Respondent offered no evidence to substantiate
whether employees desired abandoning the Union...." 16
Here, two of the employees to whom Respondent's
manager suggested that they take the minimum effort of
writing to the NLRB concerning their feelings about the
Union, failed to do so. Nor is there any evidence that either
Company, Inc, 177 NLRB 565, 566 (1969)). Unlike the situation in Bomber
Bait Company, Inc, 210 NLRB 673 (1974), relied on by Respondent, the
conversations here took place here at the behest of management, in the
privacy of the manager's office, without the presence of other persons in
order to provide confidentiality Accordingly, it would hardly be justifiable
to dismiss the allegation based on lack of corroboration
13 Testimony of Ireland. The record reflects that on or about April 5,
Ireland did become a part- time installer , and made application to join the
Union.
14 Case 6-RM-545; G.C. Exh. 6(a).
15 225 NLRB 271, 272 (1976), see also North American Manufacturing
Company, 224 NLRB 1252 (1976)
16 Burns International Security Services, Inc, supra at 273
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees took up their dissatisfactions with the
Union, or made any effort to withdraw from the Union.
Thus , here as in Burns, "it is significant that there is no
evidence that the employees' dissatisfaction had caused
them to desire that the Union no longer represent them.
Criticism of the Union cannot be equated with repudiation
of it." 17
Furthermore, here, as in Burns, "Respondent made no
effort before refusing to bargain on [April 5] to determine
to what extent dissatisfaction with the Union had caused
employees to desire that the Union not represent them." 18
Finally, since it has been found that the manager of
Respondent engaged in coercive interrogation of employ-
ees in February, it cannot be said that the doubt of
majority status was raised in a context entirely free of
unfair labor practices.19
Accordingly, I find and conclude that at all times since
on or about April 5, Respondent has failed and refused to
bargain in good faith with the Union as the collective-
bargaining representative of its employees in the appropri-
ate unit.
C. Additional Allegations of Violations of Section
8(a)(1) of the Act
1. The Anderson-Haydt interview
On or about January 20, Respondent's Regional manag-
er, Earl Haydt, interviewed the four unit employees at the
North Versailles facility. Haydt testified that the purpose of
the interviews was to learn more about the men and their
needs in order to assist them and the Company in training
programs and other personnel functions. To assist him in
conducting the interviews, Haydt used the Company's
"Employee Evaluation" form, but insisted that he did not
consider the interviews as an evaluation since that was the
local manager's job.
Employee Thomas Anderson testified that during the
course of the interview, Haydt asked him what he thought
of the Union. Anderson responded that he personally
thought that the Union "held him back" as far as
promotion was concerned in view of the seniority system
extant. Haydt acknowledged broaching the subject of the
Union's presence in the facility, but denied interrogating
Anderson in the manner which the latter testified. Haydt
stated:
... As a preface to this particular type of thing,
when you ask a man to talk about themselves, as we
were doing here, I merely asked them, because of their
affiliation with an organization do they have any
sensitivity in talking to me about this and about
themselves, and of course, the answer was simply no.
Although the credibility issue here has been a difficult
one, I am inclined to credit Anderson whose testimony was
forthright and candid, and who was testifying while still an
17 Ibid
16 Ibid (at 273)
19 See Burns, supra
20 See , eg, Georgia Rug Mill, 131 NLRB 1304, 1305 (1961), enfd as
modified 308 F 2d 89 (CA 5, 1962), Astrosystems, Inc, 203 NLRB 49
(1973); Federal Envelope Company, 147 NLRB 1030, 1036 (1964)
employee against the regional manager of Respondent.20
Under the precedents, and for the reasons stated in
footnote 12, supra, I find the interrogation to be coercive in
violation of Section 8(a)(1) of the Act.
2. The April 14 meeting
On April 14, Respondent held a meeting of all unit
employees at the North Versailles facility. The apparent
occasion for the meeting was the visit to the facility of an
out-of-state executive of the Company from Denver, a Mr.
Stafford. The meeting was held during lunchtime and the
Company provided the employees with a meal. Stafford
discussed with the employees the growth of the Company
on a national and regional basis, along with new products
and systems which had been instituted 21
Following Stafford's talk, Etsell spoke. The main subject
of his talk amounted to a comparison of the benefits which
the unit employees received under the past collective-
bargaining agreement with the benefits which were ex-
tant-or would become implemented-in the Company's
nonunion facilities. Etsell conceded that some of the
provisions were very similar while "in some cases, the
Company was definitely better, and in other cases, the
Union was definitely better." Under these circumstances, it
is a reasonable inference that union employees might
conclude that, if they rejected the Union in an upcoming
election, they would benefit from some of the company
provisions which, at that time, were not available to them.
On the other hand, an employer would seem to be entitled
to point out to employees the facts concerning what
benefits are extant in a union vis-a-vis a similar nonunion
facility.22 There is no evidence that Etsell otherwise
promised some other benefits might inure to them.
Under all circumstances, I am not convinced that the
General Counsel has sustained its burden of proof on this
issue, i.e., "promising employees benefits if they rejected
the Union as their collective-bargaining representative," 23
and will therefore recommend that the complaint, to this
extent, be dismissed.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I, above,
occurring in connection with the interstate operations of
Respondent, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
III. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
21 The parent company is a nationwide concern with approximately 100
facilities scattered about the United States . Of these, approximately four or
five were union . It is not alleged in the complaint that anything stated by
Stafford at this meeting was violative of the Act
22 See, e g., Globe Shopping City, 203 NLRB 177, 181(1973).
23 Complaint at par. 7(c).
VALLEY CABLE TV CO.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following constitutes an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
All technicians, installers and trainees employed by the
Employer at its North Versailles, Pennsylvania, facility;
excluding all other employees, janitors, programmers,
chief technician, clerical employees, and guards, profes-
sional employees and supervisors as defined in the Act.
4. At all times material, the Union has been the
majority representative for purposes of collective bargain-
ing with Respondent in the aforesaid unit.
5. By refusing, since on or about April 5, 1976, to
bargain collectively in good faith with the Union as the
exclusive representative of the employees in the appropri-
ate unit, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. By coercively interrogating employees concerning
their union membership and desires, Respondent interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, in violation of
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
24 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.
ORDER 24
1359
The Respondent , Shows , Inc., d/b/a Valley Cable TV
Company , North Versailles , Pennsylvania, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with International
Brotherhood of Electrical Workers , Local Union No. 126,
AFL-CIO, as the collective-bargaining representative of its
employees in the aforesaid appropriate unit.
(b) Coercively interrogating employees concerning their
union membership and sympathies.
(c) In any like or related manner , interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request , bargain collectively with the above-
named union as the exclusive bargaining representative of
its employees in the aforesaid appropriate unit, and
embody any understanding reached in a signed agreement.
(b) Post at its North Versailles , Pennsylvania , facility,
copies of the attached notice marked "Appendix." 25
Copies of said notice , on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondent's representative , shall be posted by it immedi-
ately upon receipt thereof, in conspicuous places, including
all places where notices to employees are customarily
posted , and be maintained for a period of 60 consecutive
days . Reasonable steps shall be taken to insure that said
notices are not altered , defaced, or covered by any other
material.
(c) Notify the said Regional Director , in writing, within
20 days from the date of this Decision , what steps
Respondent has taken to comply herewith.
25 In the event the Board's Order is enforced by a Judgment of the
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."