Waterbury Community Antenna, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1977

233 N.L.R.B. 1312 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waterbury Community Antenna, Inc. and Local
Union 42, International Brotherhood of Electrical
Workers, AFL-CIO. Cases I-CA-11368 and 1-
RC-14112
December 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On October 20, 1976, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,l and conclusions2 of the Administrative Law
Judge with the additions and modifications described
below.
The Administrative Law Judge found, and we
agree, that Respondent, through Supervisor Petruzzi,
variously violated Section 8(a)(1) of the Act by giving
employees the impression that their union activities
were being kept under surveillance; soliciting em-
ployee grievances and thereby implicitly promising
to correct them; and threatening employees with
discharge, loss of benefits, and more onerous
working conditions in reprisal for their union
activities. 3
The Administrative Law Judge also found that
Respondent did not violate Section 8(a)(3) of the Act
when it discharged Ben Tabaka, the leading union
advocate among the employees, on January 9, 1976.
We disagree with this finding. The events surround-
ing Tabaka's discharge, as more fully described in
I The General Counsel 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.
2 In light of our findings herein, we do not adopt paragraph 5 of the
Administrative Law Judge's Conclusions of Law.
3 Chairman Fanning would find additional violations of Sec. 8(a)(1) in
Petruzzi's statements to employees that wages and educational benefits were
frozen until after the election.
4 A "final inspection" was made in the presence of a telephone company
employee. A "final final" inspection involved returning alone to the field to
make sure all corrections had been made.
233 NLRB No. 190
the Administrative Law Judge's Decision, are briefly
as follows:
Respondent was franchised by the appropriate
authority in Connecticut to build and operate a cable
television system. Tabaka was hired on September
26, 1974, by Respondent's general manager, John
Baker. Although he was initially hired to perform
only pole survey and the drafting work associated
with it in the Waterbury phase of the system, in
August or September 1975, when the surveying was
completed, Tabaka was assigned the additional
duties of performing a final as well as a "final final"
inspection4 to see that the cable was installed
correctly on the telephone poles used by the system.
In September 1975,5 Tabaka spoke with Petruzzi
concerning the possibility of a raise. Petruzzi told
Tabaka that it was a bad time to ask for a raise
because Baker had wanted to terminate him (Taba-
ka) when the pole survey was completed and that
Tabaka was kept on only upon Petruzzi's interces-
sion and recommendation. Shortly thereafter, in
early October, Tabaka contacted the Union 6 and, at
the request of the Union's president and assistant
business manager, James Fraser, Tabaka arranged a
meeting between the Union and Respondent's
employees to be held on October 21 at Rudi's
Restaurant. The October 21 meeting was held as
scheduled and 9 of Respondent's 12 employees
signed union authorization cards at that time.7 On
October 22, the Union made a demand on Respon-
dent for recognition which was declined by Respon-
dent on October 30.8
Shortly after the Union's demand for recognition
and continuing into early January 1976, Respondent
embarked on a course of unlawful conduct designed
to undermine the employees' support of the Union.
Of particular significance, as it relates to Tabaka's
discharge, was a meeting of employees at Ro's
Restaurant on November 28, 1975, which Tabaka
and Petruzzi both attended. The purpose of the
meeting was to discuss the pros and cons of having a
union. In the course of a discussion with Tabaka,
Petruzzi told Tabaka that his job might have lasted
longer than it was going to last if Tabaka had not
5 All dates are in 1975 unless otherwise indicated.
6 Local Union 42, International Brotherhood of Electrical Workers,
AFL-CIO, hereinafter called the Union.
7 Another employee who was not present at the meeting signed a card on
December 12.
s On October 28, the Union filed a petition for a Board election in Case
l-RC-14112. The election was subsequently conducted on January 16,
1976, and resulted in a vote of four for, and eight against, the Union. There
were no void or challenged ballots. Thereafter, the Union filed timely
objections to the election alleging as objectionable conduct the same
conduct which forms the basis of the unfair labor practice allegations in the
present case. Thus, the Regional Director, on March 25, 1976, issued an
order consolidating the cases for hearing before an Administrative Law
Judge.
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WATERBURY COMMUNITY ANTENNA
brought the Union into the picture. He also remind-
ed Tabaka that he had already persuaded Baker to
extend Tabaka's job once and that he could have
found some more work for Tabaka to do after the
final inspection was completed but, because of the
union situation, it was out of his hands. Petruzzi did
not deny having made this statement.
On Tuesday, January 6, 1976, Tabaka completed
the final inspection. Petruzzi reported this fact to
Baker, and the latter asked if Petruzzi had any other
work to assign to Tabaka; Petruzzi replied that he
did not. On January 9, 1976, before he had a chance
to complete all the chores assigned to him and just I
week before the scheduled Board election, Tabaka
was terminated. According to Respondent, the work
that was left undone by Tabaka would have taken
Tabakajust a few days more to complete.
On the basis of entire record, we are convinced that
had Tabaka not engaged in union activities he would
have been retained at least until such time as he
completed his assigned chores. Our finding in this
regard is based on Petruzzi's undenied statement
that, if Tabaka had not engaged in union activities,
he would have been retained. Indeed, in view of
Respondent's earlier decision to retain Tabaka after
the pole survey was completed, it is reasonable to
assume that, but for Tabaka's role as the leading
union advocate, he would have been retained to
perform other work at the Waterbury jobsite as well
as at the yet-to-be constructed Plymouth and/or
Middlebury jobsites which Respondent was then
contemplating. Thus, when Tabaka's discharge is
viewed in light of Respondent's change of attitude
towards Tabaka, its direct threat to discharge him for
his union activities, as well as its unlawful campaign
to undermine the Union's majority, we can only
conclude that said discharge was motivated by
Respondent's union animus. Moreover, by discharg-
ing the Union's leading adherent just I week before
the election, Respondent also sought to dissuade the
employees from supporting the Union in the upcom-
ing election. As is evident from the results of the
election, Respondent succeeded in its efforts. Ac-
cordingly, we find that Tabaka's discharge violated
Section 8(a)(3) of the Act.
While we agree with the Administrative Law
Judge, for the reasons stated by him, that the election
held on January 16, 1976, in Case I-RC-14112 must
be set aside, we disagree with his recommendation
that a second election be directed. Rather, we find
9 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
50 Joseph J. Lachniet d/b/a Honda of Haslert, 201 NLRB 855 (1973),
enfd. 490 F.2d 1382 (C.A. 6, 1974).
11 The appropriate unit consists of all technicians, technician trainees,
installers, installer trainees, construction engineer/draftsman, and construc-
tion crewmen employed by Respondent at its Waterbury, Connecticut,
facility, excluding all office clencal employees, guards, the chief technician,
and all other supervisors as defined in the Act.
that the nature and the pervasiveness of Respon-
dent's unfair labor practices, described above, have
made the holding of a fair election unlikely and that,
on balance, a bargaining order would better protect
the employees' rights.9 Thus, the unit of employees
was small, the leading union adherent was dis-
charged just before the election, and the incidents
involving solicitation of grievances and threats of
discharge, loss of benefits, and more onerous
working conditions in the event of unionization were
made to almost all, if not all, of the unit employees.10
In addition, we find, contrary to the Administrative
Law Judge, that Respondent violated Section 8(a)(5)
of the Act when it refused to bargain with the Union
and chose, instead, to embark on a course of
unlawful conduct intended to undermine the em-
ployees' support of the Union. As stated above, the
record shows that the Union had obtained signed
authorization cards from 9 of Respondent's 12
employees at the October 21 meeting. We find,
therefore, that the Union represented a majority of
Respondent's employees in an appropriate unit 1
when it requested recognition the following day,
October 22.
According to the undisputed testimony of employ-
ee Wilson, Respondent began its course of unlawful
conduct a few days after the employees' October 21
meeting with the Union and after the Union's
request for recognition on October 22. On that date,
as found by the Administrative Law Judge, Petruzzi
solicited grievances from Wilson and also created the
impression that the employees' activities were under
surveillance by informing Wilson that he knew of the
October 21 meeting with the Union. Accordingly, we
find that, by refusing to recognize and bargain with
the Union on or after October 24, and at the same
time by engaging in the conduct herein found
violative of Section 8(a)(l) and (3) of the Act,
Respondent also violated Section 8(aX5) of the Act.
Additionally, we find that, by unilaterally granting
wage increases to unit employees on February 6,
1976, without consulting or bargaining with the
Union concerning such increases, Respondent fur-
ther violated Section 8(a)(5) of the Act. 12 Therefore,
we shall order Respondent to bargain with the Union
as of the date it embarked on a course of unlawful
conduct.' 3 Since the uncontroverted evidence shows
only that the unlawful conduct began a few days
after October 21, we shall, as indicated above, make
12 Notwithstanding this finding, however, nothing in our Decision and
Order shall be construed as requiring Respondent to rescind such a benefit.
13 Trading Port, Inc., 219 NLRB 298 (1975). Chairman Fanning would
normally date the 8(aXS) finding from October 22, the date of the demand,
but as no unfair labor practices would be left unremedied by the October 24
date, he concurs in it here.
1313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 24 the effective date of the bargaining
obligation.
THE REMEDY
Having found that Respondent unlawfully dis-
charged Ben Tabaka for engaging in union activity,
unlawfully refused to bargain with the Union, and
unlawfully interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights, we
shall order it to cease and desist from such conduct,
and to take certain affirmative action which we find
will effectuate the purposes of the Act.
Respondent must make Tabaka whole for any loss
of earnings he may have suffered from the date of his
discriminatory discharge until such time as he would
have completed the work assigned to him, 14 such
backpay to be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), and
interest as prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).1'
Inasmuch as it appears likely that Tabaka would
have been employed at Respondent's Plymouth
and/or Middlebury jobsites had he not engaged in
union activities, we deem it appropriate to require
that Respondent place him on a preferential hiring
list and offer him employment if and when Respon-
dent begins construction on said projects, such
position to be substantially equivalent to that held by
Tabaka at Waterbury prior to his discharge.
We shall also order that Respondent recognize and
bargain with the Union upon request, said order to
be effective as of October 24, 1975. Finally, we shall
order Respondent to refrain from infringing on
employees' rights in any other manner.'6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Waterbury Community Antenna, Inc., Waterbury,
Connecticut, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Creating the impression that it is engaging in
surveillance of employees' union meetings and
activities.
(b) Soliciting grievances from employees and
thereby implicitly promising to correct them in order
to dissuade employees from supporting a labor
organization.
14 Inasmuch as we cannot ascertain from the record just how long it
would have taken Tabaka to complete the work assigned to him, we leave it
to the compliance stage of the proceeding to make this determination.
i1 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
(c) Threatening employees with discharge, loss of
benefits, or more onerous working conditions for
engaging in union activities.
(d) Discharging employees for engaging in union
activities or to discourage membership in Local
Union 42, International Brotherhood of Electrical
Workers, AFL-CIO, or any other union.
(e) Unilaterally raising the wages of the unit
employees without consulting or bargaining with
Local Union 42, International Brotherhood of
Electrical Workers, AFL-CIO.
(f) Refusing to recognize and bargain in good faith
with Local Union 42, International Brotherhood of
Electrical Workers, AFL-CIO, as the exclusive
bargaining representative of the employees in the
following unit which we find is appropriate for such
purposes:
All technicians, technician trainees, installers,
installer trainees, construction engineer/
draftsman and construction crewmen em-
ployed by the Employer at its Waterbury,
Connecticut, location, excluding office clerical
employees, guards, the chief technician, and all
other supervisors as defined in the Act.
(g) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following action which is necessary to
effectuate the policies of the Act:
(a) Place employee Ben Tabaka on a preferential
hiring list and offer him employment if and when the
Employer begins construction on the Plymouth
and/or Middlebury phases of its system, such
position to be substantially similar to that which
Tabaka held at Waterbury prior to his discharge.
(b) Make Ben Tabaka whole for any loss of
earnings, in the manner set forth in the section of this
Decision entitled "The Remedy," from the date of
discharge until such time as he would have com-
pleted the duties assigned him.
(c) Upon request, bargain with Local Union 42,
International Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive bargaining representative
of the employees in the appropriate unit, as described
above, with respect to wages, rates of pay, hours of
employment, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
is See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941);
Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation,
216 NLRB 1076 (1975).
1314
WATERBURY COMMUNITY ANTENNA
timecards, personnel records and reports, and all
other records necessary or useful to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility in Waterbury, 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 representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the election in Case I-
RC-14112 be set aside and the petition in said case
be, and it hereby is, dismissed.
MEMBER MURPHY, concurring in part:
While I agree with my colleagues' finding that
Respondent variously violated Section 8(a)(X) of the
Act, for the reasons discussed below I cannot agree
with their findings that Tabaka's discharge violated
Section 8(a)(3) of the Act and that a bargaining order
is therefore necessary or appropriate.
Respondent's general manager, Baker, credibly
testified that when he hired Tabaka he told Tabaka
that his job was to last only until the pole survey was
completed. When the pole survey was completed
sometime in August or September, Baker discussed
Tabaka's scheduled termination with Tabaka's im-
mediate supervisor, Petruzzi. At this time Petruzzi
persuaded Baker to retain Tabaka until Tabaka
completed the final inspection he had been working
on. Shortly thereafter, Tabaka asked Petruzzi for a
raise. Petruzzi refused, stating that it was a bad time
to ask for a raise in light of the fact that Baker
wanted to terminate Tabaka and that he (Petruzzi)
had convinced Baker to let Tabaka stay on. It was
shortly thereafter, in early October, that Tabaka
contacted the Union.
From the above undisputed facts, it is clear that
Respondent's decision to terminate Tabaka upon
17 In the event that 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 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."
1s In finding that Tabaka would not have been discharged when he was,
the majority relies on the fact that he still had some chores to do and that he
likely would have been retained for work on the Plymouth and Middlebury
completion of the final inspection was made well
before any union activities began. This is consistent
with Respondent's position, taken at the November
17 hearing in Case l-RC-14112, that the construc-
tion engineer/draftsman position (Tabaka's job)
should not be included in the unit because the job
would be abolished in the near future upon comple-
tion of the final inspection. Indeed, Respondent's
1976 budget, prepared before Tabaka's tenure was
extended, and which made no provision for Tabaka's
salary, lends further credence to Respondent's
assertion that Tabaka was to be terminated upon
completion of the final inspection and that his
position was thereafter to be abolished. Thus, when
Baker learned that the final inspection had been
completed on January 6, he promptly ordered
Tabaka to be discharged effective January 9, the next
payday.' 8
In view of the foregoing, the General Counsel has
failed to sustain his burden of showing by a
preponderance of all the relevant credible evidence
that Tabaka's discharge was motivated by the latter's
union activities. While concededly Respondent
unlawfully threatened Tabaka with discharge during
the November 28 meeting at Ro's Restaurant, this, as
the Administrative Law Judge found, merely made
out a prima facie case for an 8(a)(3) violation which
Respondent has clearly rebutted by the foregoing
undisputed evidence. 9 Thus, I find that Tabaka's
discharge was predetermined long before the start of
any union activities and therefore did not violate
Section 8(a)(3) of the Act. Moreover, the record
strongly suggests that, in contacting the Union
shortly after being informed of the temporary nature
of his job, Tabaka merely sought to delay, if not
prevent, his inevitable discharge. It is well settled that
an employee does not immunize himself from
discharge for cause or economic reasons merely by
openly engaging in union activities.2 0
Inasmuch as I find that Tabaka's discharge was not
violative of Section 8(a)(3) of the Act, I also agree
with the Administrative Law Judge that Respon-
dent's 8(a)(l) violations alone are not so serious as to
prevent the holding of a fair second election. Having
found that Respondent had no obligation to bargain,
I find neither Respondent's refusal to bargain, nor its
subsequent granting of wage increases, to be violative
of Section 8(a)(5) of the Act. Accordingly, I would
jobs. The short answer to the latter is that Respondent had not begun work
on those jobs at the time of the hearing herein (June 1976). As for Tabaka's
unfinished chores, such were inconsequential and, more importantly, had
nothing to do with his final inspection duties alone for which his
employment had been extended (these tasks were completed within a matter
of hours by Petruzzi).
19 See fn. 8 of the Administrative Law Judge's Decision.
a) Spalding, Division of Questor Corporation, 225 NLRB 946, 950 (1976).
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopt the Administrative Law Judge's Decision in its
entirety.
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, we
hereby notify you that:
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative 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 create the impression we are
engaging in surveillance of your union meetings
and activities.
WE WILL NOT solicit grievances from you and
thereby implicitly promise to correct them in
order to dissuade you from supporting a labor
organization.
WE WILL NOT threaten you with discharge, loss
of benefits, and/or more onerous working condi-
tions for engaging in union activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for engaging in union
activity nor discourage membership in Local
Union 42, International Brotherhood of Electrical
Workers, AFL-CIO, or any other union.
WE WILL NOT unilaterally increase the wages of
unit employees without consulting or bargaining
with Local Union 42, International Brotherhood
of Electrical Workers, AFL-CIO.
WE WILL NOT refuse to bargain with Local
Union 42 as the exclusive representative of the
employees in the following unit:
All technicians, technician trainees, instal-
lers, installer trainees, construction engi-
neer/draftsman and construction crewmen
employed by the Employer at its Waterbury,
Connecticut, location, excluding office cleri-
cal employees, guards, the chief technician,
and all other supervisors as defined in the
Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
above rights.
WE WILL give preference in hiring to employee
Benjamin Tabaka if and when we begin construc-
tion on the Plymouth and/or Middlebury phases
of our system, and WE WILL make him whole,
with interest, for loss of pay resulting from his
untimely discharge.
WE WILL, upon request, bargain with Local
Union 42 as the exclusive representative of the
employees in the above unit, and embody in a
signed written agreement any understanding
reached.
WATERBURY COMMUNITY
ANTENNA, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The petition in Case I-RC-14112 was filed on October 28,
1975.1 The hearing was held on November 17. The Acting
Regional Director's Decision and Direction of Election
was issued on December 18. An election was held in a unit
of Respondent's nonclerical employees on January 16. The
result was four votes for the Union and eight against. There
were no void or challenged ballots. The Union filed timely
objections to conduct affecting the outcome of the election.
It also, on January 20, filed the charge in Case I-CA-
11368. On March 5 the Regional Director issued a
Supplemental Decision in Case l-RC-14112 in which he
noted that the conduct alleged in seven of the eight
objections filed by the Union was identical to conduct on
the basis of which he had, on March 1, authorized the
issuance of an 8(a)(1), (3), and (5) complaint and directed
that Case I-RC-14112 be consolidated with Case I-CA-
11368 for hearing. An order consolidating the two cases
and the complaint in Case I-CA-11368 were issued on
March 25. The hearing was held on June 22, 23, 24, and 25,
1976, in Waterbury, Connecticut. The principal issue
litigated was whether Respondent violated Section 8(a)(3)
and (1) of the National Labor Relations Act, as amended,
by laying off Benjamin Tabaka on January 9 with no
prospect of reemployment. For the reasons set forth below,
I find it did not. I also find that the independent violations
of Section 8(a)(1) which Respondent did commit will not
support a conclusion that Respondent committed an
8(a)(5) violation under the doctrine laid down by the
Supreme Court in N.LR.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969).
I Dates are late 1975 or early 1976, as the case may be, unless otherwise
indicated.
1316
WATERBURY COMMUNITY ANTENNA
Upon the entire record,2 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 at
Waterbury, Connecticut, in the cable television business. It
annually grosses more than $500,000 and purchases goods
and materials valued in excess of $50,000 which are
shipped directly to it from suppliers located outside the
State of Connecticut.
II. THE UNFAIR LABOR PRACTICES
A. Facts3
Respondent is a subsidiary of Sammons Communica-
tions, Inc., headquartered in Dallas, Texas. Respondent
has franchises from the Public Utilities Control Authority
of the State of Connecticut to build and operate cable
television systems in Waterbury, Plymouth, and Middle-
bury, Connecticut. The franchises were granted in 1974.
They require that Respondent build all three in 5 years and
that it construct at least 20 percent of the total system
annually. The Waterbury phase is complete. It represents
87 percent of the entire system. Respondent has no present
plans to begin construction of the Plymouth and/or
Middlebury phases of the system.
Respondent contracted with Magnavox to construct the
Waterbury phase of the system. Magnavox, in turn,
subcontracted actual construction of the plant to Payne
Construction Company. Respondent's contract with Mag-
navox called for Magnavox to turn over to Respondent a
completed plant in operating condition. It has done so.
A cable television system plant consists of an antenna
which takes television signals out of the air, electronic
equipment which mixes the signals and feeds them into the
cable, and the cable itself which carries the signals to the
television sets which subscribe to the service. The cable is
attached to a strand, a nonelectronic line which is attached
to telephone poles. Various other electronic devices such as
amplifiers and drops which are required to get television
signals from antenna to sets are attached to the cable.
Initial work on the Waterbury phase of Respondent's
franchise was performed by Telecon, a St. Louis based
company, in early 1974. It surveyed the area and produced
strand maps, i.e., maps which indicated the telephone poles
to which the strand should be attached. John Baker,
Respondent's general manager, arrived in Waterbury in
March 1974. Payne Construction Company began the
actual work of running the strand from pole to pole and
attaching the cable and associated equipment to the strand
around November 1974. The Waterbury phase of the plant
was completed in early 1976, sometime after January 9.
(The record does not reveal precisely when the last Payne
2 The General Counsel's motion to correct the transcript is hereby
granted. My denial of his motion to add subpars. x and xi to par. 8(b) of the
complaint, a paragraph in which factual allegations of conduct claimed to
constitute independent 8(a)I) violations of the Act are set forth, is
reaffirmed. As the General Counsel's brief points out, the conduct he
complains of is encompassed by subpars. vii and ix.
workman departed the scene or Magnavox turned the plant
over to Respondent. It does indicate that the system was
extended a short distance into Naugatuck, a neighboring
community, around March. The actual construction work
in Naugatuck was apparently performed by Respondent's
own employees. Whether it was pursuant to Respondent's
contract with Magnavox is unclear.)
Waterbury was divided into five segments for construc-
tion purposes. As each segment of the plant was completed,
it was energized and Respondent began realizing revenue
from customers connected to that segment. Sales of service
to customers began on March 14, 1975. Around that time
Respondent hired its first employees other than Ben
Tabaka. During this period it also utilized the services of
subcontractors for installation work in order to avoid
building up a large staff of its own which it would have to
reduce when the initial spate of installations had been
completed. Other installers were added to Respondent's
payroll in September and October 1975. All employees
hired for ongoing jobs were told they could expect a raise
in 3 to 6 months. They were told that it might be to their
advantage if the raise came later rather than earlier on the
theory that, since they were inexperienced as cable
television installers, a longer probationary period would
give them more time to develop the skills which would
cause Respondent to keep them and lead to a larger raise.
They were also told they could anticipate an education
program under which Respondent would underwrite
schooling to increase their skills. Employees hired or
transferred into the unit in the March 1975 period received
individual raises prior to the beginning of union activity in
October. Those hired or transferred in September and
October received nothing until all employees got a raise on
February 6, 1976. While Respondent, as of the time of the
hearing, had not yet given effect to its policy of reimburs-
ing employees for television work correspondence courses
they take, it had completed the necessary paperwork to
participate in an on-the-job training program administered
by the State of Connecticut. The record does not indicate
that any employees have signed up for correspondence
courses or for the on-the-job program.
The telephone poles to which Respondent's plant is
attached belong to Southern New England Telephone
Company. They also carry the wires of Connecticut Light
and Power Company. There are regulations, state and
Federal, which govern the manner in which wires and
cables can legally be attached to poles. Consequently,
before Payne could begin building the first segment of the
plant, poles had to be surveyed to see what had to be done
on each one to assure that Respondent's cable conformed
with the regulations. The pole survey was carried out in
conjunction with the telephone company. Initially, this
work was performed for Respondent by an employee of
Sammons named Boone. However, Boone suffered a heart
attack, whereupon Baker took on these duties himself for a
few weeks. On September 26, 1974, Baker hired Ben
Tabaka to take over Boone's duties. Baker intended and
3 1 make no findings as to two conversations with Michael Petruzzi,
Respondent's chief technician, which Richard Moffo, a witness for the
General Counsel, placed in December. Moffo's testimony about them was
so confused as to be totally unreliable.
1317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tabaka understood that Tabaka was being hired in
connection with plant construction only and that his job
would end when the work for which he was being hired
came to an end.
Respondent, of course, pays for the privilege of hanging
its cable on the telephone company's poles. The two
companies deal with each other on the basis of increments
of poles known as licenses. The Waterbury phase of
Respondent's plant consists of 33 licenses. (The Naugatuck
extension is license number 34.)
Tabaka was initially hired to do the pole survey and
drafting work associated with it. Baker gave him the title of
construction engineer/draftsman. His immediate supervi-
sor was Michael Petruzzi, Respondent's chief technician.
Petruzzi supervises all of Respondent's nonclerical employ-
ees. He reports to Baker. Tabaka and a telephone company
employee surveyed the poles together. They went from pole
to pole and noted what, if anything, had to be done to
make the pole legal when Respondent's cable was added to
it. If, for example, there was not sufficient clearance
between the wires already on the pole, they noted that one
or the other had to be moved.
Since Payne constructed the plant in segments, Tabaka
and the telephone company man were still engaged in
surveying poles after cable began to be strung. At this point
Petruzzi gave Tabaka the additional duty of final inspec-
tion, i.e., as a license was completed. Tabaka accompanied
the telephone company man on his final inspection to see
that the cable as installed conformed with the regulations.
On final inspection they frequently discovered that some
correction had to be made; for example, increasing
clearances. These observations were converted into orders
that the corrections be made. If the correction was the
responsibility of the telephone company, the telephone
company man initiated a work order. If it was the
responsibility of the power company, he let the power
company know what had to be done. If it was Respon-
dent's responsibility, Tabaka prepared an informal work
order and gave it to Payne. Tabaka also was given an
additional "final final" inspection function in this stage of
construction. Alone, he returned to the field to make sure
all corrections had been made and the plant was finally
correct.
When Tabaka was not in the field, he worked on his
drafting duties. They consisted of constantly updating
maps used in the construction process. These were,
initially, a strand map, i.e., a graphic representation of the
telephone poles which made up the route the cable was to
follow, and, ultimately, an electronics map, i.e., a graphic
representation of the cable and all the electronic devices
associated with it. The maps which Tabaka worked on
were used in the construction process. Under its contract
with Respondent, Magnavox had the responsibility for
producing the "as is," i.e., a final map showing the
completed plant in all its route and electronic details.
Sometime in August or September 1975 the question of
laying Tabaka off first came up. The pole survey had just
been completed. Baker and Petruzzi discussed Tabaka's
continued employment in light of that fact. Petruzzi
persuaded Baker to keep Tabaka on until the telephone
company final inspection was completed so that he could
finish that function. Shortly thereafter, sometime in
September, Tabaka broached the subject of a raise with
Petruzzi. Petruzzi advised him that it was a bad time to be
asking for more money. He told Tabaka that Baker had
wanted to let him go when the pole survey was finished and
that Tabaka had only been kept on because of Petruzzi's
recommendation. Shortly thereafter, in early October,
Tabaka contacted the Union.
At the request of James Fraser, president and assistant
business manager of the Union, Tabaka arranged a
meeting held at Rudi's Restaurant in Naugatuck on the
evening of October 21. At that time, 9 of Respondent's 12
nonclerical employees, including Tabaka, met with Fraser.
All nine signed cards authorizing the Union to represent
them for purposes of collective bargaining. (A 10th
employee who was not present at Rudi's that evening
signed a card on December 12.) On October 22 Fraser sent
a mailgram to Baker demanding recognition. Respondent's
counsel replied by mail on Respondent's behalf under date
of October 30. He took the position the Union did not
represent a majority of Respondent's employees in an
appropriate unit and suggested the Union file a petition for
a Board election. The Union had already done so in Case
I-RC-14112 on October 28.
Tabaka appeared with Fraser at the hearing held in
Boston in Case I-RC-14112 on November 17 and
participated in the proceedings. At that time Respondent
took the position the construction engineer/draftsman
should not be included in the unit because the job would be
abolished in the near future. In that connection, Baker
estimated Respondent would need a person in that job
classification only until "January or February." At another
point, he testified that the construction engineer/draftsman
function would cease with "final approval" of the system.
Asked to state, "based upon [his] best expectations," when
he believed Respondent would no longer need a construc-
tion engineer/draftsman, Baker replied:
It is very difficult to make projections, but we are
doing the final inspection work with the telephone
company and when that is completed, and I anticipate
around February we should have it completed.
At another point, Baker testified that he had hired Tabaka
to work with the telephone company.
Respondent also took the position in Case I-RC-14112
that Petruzzi was not a supervisor. In his Decision and
Direction of Election, issued on December 18, the Acting
Regional Director found against Respondent on both
counts. He included the job classification of construction
engineer/draftsman in the unit on the ground that Tabaka
"has a sufficient community of interest with the other
employees." The Acting Regional Director did not allude
to the fact that Tabaka's job was expected to end in early
1976. He found Petruzzi to be a supervisor within the
meaning of the Act on the grounds, inter alia, that Petruzzi
had effectively recommended the hiring of employees and
possessed authority, albeit so far unexercised, to discharge
them.
Petruzzi discussed the union situation freely with all the
employees under him in the period between receipt of
Fraser's mailgram and the election held on January 16. The
1318
WATERBURY COMMUNITY ANTENNA
earliest conversation in the record which can be dated with
any degree of certainty took place a few days after October
21. At that time David Wilson, an installer, went into
Petruzzi's office to discuss the situation. Petruzzi told
Wilson he already knew about the meeting at Rudi's with
Fraser. Wilson admitted he had been there. Petruzzi asked
Wilson what he thought the Union could do for him. In the
course of their discussion, Petruzzi said he thought he
could handle grievances more expeditiously than a steward
because of his position in the Company. In a similar
conversation in late December, when Wilson inquired
about a raise, Petruzzi told him there would be no raises
until after the union situation was resolved because
Respondent feared it would be accused of improper
conduct. Similar inquiries from other employees during
this period drew similar responses from Petruzzi. On
another occasion Petruzzi told Wilson and several other
employees (who had inquired at the Veterans Administra-
tion about a course and been referred to the State of
Connecticut) that the same situation prevailed with respect
to any educational program. Nothing would be done until
after the union question was resolved.4
The next conversation which can be placed in time with
a fair degree of accuracy occurred between the Board
hearing on November 17 and the events of November 28
detailed below. This one involved Petruzzi and an installer
named John Harris. It poses the only head-to-head
credibility conflict in the record. Harris testified Petruzzi
launched the conversation by asking him how he was going
to vote. Petruzzi denied ever asking any of the employees
how they were going to vote. Petruzzi testified candidly
about his activities during this period, admitting that he
talked to all the employees, Harris included. Harris, on the
other hand, testified Petruzzi "had asked me, in a round
about way, how I was going to vote." Therefore, I credit
Petruzzi over Harris as to this detail. The discrepancy in
their two versions of what passed between them would be
unimportant except for the fact the complaint alleges
Petruzzi "interrogated [Respondent's] employees about
their Union desires and sympathies" on numerous occa-
sions and Harris was the only witness for the General
Counsel who testified that his experience with Petruzzi was
the sort of encounter which the Board categorizes as
coercive interrogation. 5
Once again, this was a conversation initiated by the
employee. Harris told Petruzzi he was afraid he might lose
his job if the Union came in. Petruzzi tried to set his mind
at ease by explaining how that was not going to happen,
pointing out that Respondent had used subcontractors to
make installations in the beginning expressly in order to
avoid having to lay off its own men once the first rush of
orders for the new service in Waterbury had been filled. In
the course of their discussion, Petruzzi tried to point out to
Harris, as he did to other employees on other occasions,
ways in which the advent of the Union might alter the
I At some point Respondent had looked into an apprenticeship training
program administered by the State of Connecticut. Thus the freeze imposed
by Respondent on any educational benefits during this penod covered both
that on-the-job program as well as reimbursement of employees for
correspondence course expenses they incurred while trying to improve their
skills as television technicians.
5 I have not overlooked the fact that Wilson began his recital of his
situation. He pointed out that installers went to lunch in
their trucks. If the Union came in, he said, they might have
to bring their trucks back to the shop and park them before
they went to lunch. Also, he said, they might have to start
punching a timeclock, something they were not currently
doing.
On the morning of November 28 Petruzzi distributed
paychecks in the technicians' room. He started to talk to
the assembled installers about the Union. Tabaka, working
in his adjacent office, heard what was going on. He came
into the tech room and took strong exception to what
Petruzzi was doing, saying that nobody should be discuss-
ing the Union, whether pro or con, on company time.
Petruzzi suggested that they all get together that evening to
debate the matter. He asked that Fraser be invited to
present the prounion view. That evening, after the installers
had come back to the shop and knocked off for the day,
they proceeded as a group, using several cars, to Ro's
Restaurant in Waterbury. Petruzzi was among them. So
was Tabaka. Fraser did not show up. From approximately
6 o'clock that evening until 9 Petruzzi answered questions
about the Union and debated its pros and cons with 11 of
Respondent's 12 nonclerical employees. The debate was
principally with Tabaka. In the course of the evening,
Petruzzi voiced the arguments against the Union which he
relied on throughout the preelection period. His theme was
that once a union contract was negotiated the employees
would have to live up to it. In some ways it would benefit
them. For instance, they would know precisely when they
were going to get raises and how much they would be.
Without a contract, on the other hand, merit raises in
greater amounts at Respondent's discretion might be a
greater benefit to highly productive employees. By the
same token, low producers would be jeopardized if the
contract provided for a quota system which required
installers to make a minimum number of hookups per day.
A contract, on the other hand, would mean greater job
security for good producers. Other provisions might bring
an end to such privileges as using trucks to go to lunch or
stopping by banks on company time to cash paychecks. A
provision about hours of work might force Respondent to
install a timeclock, thus ending Respondent's lenient policy
with respect to hours. Any educational program Respon-
dent put into effect, Petruzzi pointed out, would also be
governed by the terms of the contract. He told the
employees their wages and other conditions were good. He
said they had not given the Company a fair chance and
urged them to hold off for a year before deciding whether
they needed a union.
At one point during the evening Petruzzi and Tabaka got
into a dispute over Tabaka's role in the union campaign.
Petruzzi told Tabaka that his job might have lasted longer
than it was going to if Tabaka had not brought the Union
into the picture. He reminded Tabaka he had already
persuaded Baker to extend Tabaka's job once. He said he
conversation with Petruzzi in October by saying, "I can't remember how the
conversation began. I remember Michael asking me about the union. He
said he knew there was a meeting ... ." In view of Wilson's subsequent
admission that he initiated the conversation, I have deliberately not found
above that Petruzzi started off his remarks with a query about Wilson's or
other employees' union desires and sympathies.
1319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have found some more work for Tabaka to do after
the final inspection with the telephone company was
complete. He said, now that the Union was on the scene,
the matter was out of his hands. 6
In early January, not long before the election, Petruzzi
talked in the tech room with a group of installers. On this
occasion he contrasted the wages Respondent's employees
were receiving with those of the employees of a unionized
cable television company. He said a union contract would
benefit installers who were low producers and hamper
those who were high producers and did quality work.
During the last months of his employment, Tabaka
worked with a telephone company engineer named Dennis
Sullivan. On Tuesday, January 6, when Sullivan and
Tabaka returned to Respondent's office from a field trip,
Sullivan told Petruzzi he and Tabaka had just finished the
telephone company final inspection. Petruzzi reported this
fact to Baker. Baker asked Petruzzi if he had any work of
consequence for Tabaka to do. Petruzzi said no. Baker
decided to terminate Tabaka effective Friday, January 9,
the next payday. To that end, he immediately contacted his
home office in Dallas and had Tabaka's final checks
prepared.
On Friday morning, Baker's secretary gave Tabaka two
checks instead of the usual one. When Tabaka asked her
what was going on, she took both checks back without
explanation. That afternoon, Tabaka made an appoint-
ment with Robert Payne, owner of Payne Construction
Company, to look at some poles the following Tuesday
which still needed work. (All Payne Construction Compa-
ny people other than Robert Payne had left the job by this
time. Robert was still cleaning up the last corrections.) A
few minutes later Baker called Tabaka into his office. He
told Tabaka he was letting him go because the telephone
company final inspection was complete. Tabaka agreed
that it was but pointed out that he still had other work to
do. He told Baker about his appointment with Robert
Payne the next week. He told Baker about a similar
appointment with the Connecticut Department of Trans-
portation. (This involved a situation where Respondent's
cable conflicted with a traffic light, a minor element of
Tabaka's duties.) He reminded Baker that all his map work
was not caught up. Baker reminded Tabaka he had told
Tabaka at the hearing in Boston on November 17 he was
going to lay Tabaka off when the telephone company final
inspection was done, an event he had anticipated would
occur early in 1976. Baker gave Tabaka his checks and a
termination slip. It indicated that he was being laid off for
lack of work. Under remarks it read, "Job of make ready &
survey completed."
Tabaka acted as the Union's observer at the election held
on January 16. He voted without being challenged. So did
all nine of the other employees who had signed authoriza-
tion cards for the Union.
6 This paragraph is a synthesis of the testimony of all of the witnesses
who testified on the point-Tabaka, Wilson, Moffo, and Remo Cenicolla
for the General Counsel, Petruzzi for Respondent. None claimed to quote
Petruzzi in haec verba. Petruzzi's version, couched in defensive terms, gives, I
think, the flavor of what was said. Petruzzi testified:
I told him that I was sorry that it was going to happen but that
his job was terminating and that because of the very unique situation
Petruzzi himself took on most of the chores which
Tabaka left undone, such as updating the maps. (On
Petruzzi's instructions, Tabaka had turned over his "final
final" inspection work to Jack Reed, a Magnavox represen-
tative, sometime between January 6 and 9.)
B. Analysis and Conclusions
I. The layoff of Tabaka
The issue posed by the layoff of Ben Tabaka is whether,
but for his union activities, he would have worked beyond
January 9. It is a close one.
The General Counsel's principal position is that Tabaka
was laid off as the culmination of a long-term plot by
Respondent to win the election held on January 16. In the
General Counsel's view, Respondent determined, as soon
as it became aware the Union was organizing its employ-
ees, that it would coerce its employees into voting against
the Union by getting rid of Tabaka. It planted a false
ostensible reason by announcing at the representation case
hearing on November 17 that Tabaka would be laid off as
soon as the telephone company final inspection was
complete, contrived in some unexplained manner to cause
that to happen on January 6, and gave the Union's chance
of winning the election the coup de grace by getting rid of
its leader and most ardent supporter just I week before
employees went to the polls. An essential part of this theory
as explicated in the General Counsel's brief is that Tabaka
was not hired for the construction phase only but, rather,
held a position with no contemplated termination date
until Baker testified in Case I-RC-14112 on November 17.
Since the record will not support such a finding, the
General Counsel's primary position need not detain us
long.
The form which Baker filled in and sent to Dallas on
September 26, 1974, when he hired Tabaka is in evidence
as Respondent's Exhibit 3. In the remarks section Baker
wrote "to do pole survey with telco [telephone company]
permit work & drafting." "To do pole survey with telco" is
written above "permit work & drafting." There is ample
space after "telco" for Baker to have continued on with
"permit etc." after a comma if Baker had intended to
indicate that Tabaka was being hired for three discrete
chores, namely, surveying poles with the telephone compa-
ny, "permit work," and "drafting." There is no comma
after "telco." The second line, therefore, is properly read as
modifying the first. Permit work and drafting were both
part of the basic job for which Tabaka was hired, working
with the telephone company in the pole survey.
This interpretation comports with Baker's testimony as
to his reason for hiring Tabaka. I found Baker to be a
generally credible witness. It does not disagree with
Tabaka's testimony as to the circumstances surrounding
his hire, although in that portion of his testimony, as well as
that we had there was nothing I could do to prolong it. We were under
an unusual set of circumstances I guess we still are and I don't pretend
to understand them but-
JUDGE BLACKBURN: Are you referring to the Union situation Mr.
Petruzzi?
THE WITNESS: Yes.
1320
WATERBURY COMMUNITY ANTENNA
other areas, I found Tabaka to be somewhat less than a
totally reliable witness. His strained efforts to put the best
possible gloss on all his testimony has caused me, for
instance, to find, despite his account of what happened on
September 26, 1974, that "Tabaka understood . . . [he]
was being hired in connection with plant construction
only." More importantly, there is no attempt in the record
to explain what "permit work" means as used in Respon-
dent's Exhibit 3. In his brief, the General Counsel equates
"permit" with "license" and spins out a theory that
"license" as used in the record means an approval granted
by the telephone company to Respondent to begin
servicing customers. Therefore, the General Counsel
reasons, "permit work" means something more than "pole
survey" since "permits" would not be granted until the
cable was completely ready. There is no basis in the record
for such a reading of Respondent's Exhibit 3. Even if
"permit" as used by Baker is a synonym for "license" (and
it may well be), it is clear in the record that "license," as
used by Respondent and the telephone company in their
dealings with each other, means nothing more than a
geographical grouping of telephone poles for which the
latter billed the former. If "permit work" in Respondent's
Exhibit 3 is a reference to Tabaka working on telephone
company licenses, it merely strengthens the conclusion that
Baker was noting the fact Tabaka was hired to do both
field and office work associated with the pole survey.
The General Counsel has failed to prove sufficient facts
to support his pretext approach. However, it is clear from
Petruzzi's testimony set forth in footnote 6 above that
Tabaka's intervening union activities caused Respondent
to treat him differently in January than it did in August or
September. When, on the latter occasion, the end of
Tabaka's job loomed, Petruzzi found more work for him to
do and Baker agreed. In January, when the event occurred
which marked the end of the job Tabaka had been hired to
do, as modified by the reprieve granted to him in August or
September, Petruzzi could have found some work which
would have at least postponed the moment of his
termination, and Baker, once again, could have agreed.
Because of Tabaka's union activities, they did not do so.
Legally, then, the ultimate issue posed is whether they were
under an obligation to do so. That question turns first on
whether the General Counsel has proved by a preponder-
ance of the evidence that Petruzzi and Baker would have
done what they could have done if Tabaka had not
engaged in union activities. In Board jargon, has the
General Counsel proved Respondent would not have laid
off Tabaka on January 9 but for his union activities?
There is no dispute that Tabaka left some unfinished
chores when he departed. The basic disagreement between
the General Counsel and Respondent concerns how
extensive and important they were. The General Counsel
contends there was so much that Tabaka would never have
been terminated or, at worst, would have continued to
work beyond January 9 for an indefinite period. Respon-
dent argues that, at best, Tabaka would have cleaned up
everything in just a few days. Respondent clearly has the
better of this dispute.
The General Counsel lays great stress on the fact
corrections still remained to be made even though the
telephone company final inspection had been completed.
As part of his "final final" inspection responsibility,
Tabaka would have made sure these last corrections were
taken care of if he had stayed on. However, there was only
a handful of such corrections left. This is clear from the
fact that only the owner of the construction company,
Robert Payne, was still on the scene as of January 9. Given
the magnitude of the system which had been built, this
chore was infinitesimal.
The General Counsel also relies on the fact that work on
license 34, the Naugatuck extension, did not begin until
after Tabaka left. This area fell within a franchise granted
to a competitor of Respondent named Valley Cable
Company. Respondent asked the Public Utilities Control
Authority to transfer this part of Valley Cable's franchise
to it on March 1. The authority approved on March 16.
Thus, when Tabaka left, Respondent did not know
(although it may have anticipated) that this additional pole
survey/telephone company final inspection work lay in its
future. Moreover, the magnitude of the extension reduces
this potential work for Tabaka to scale. The Waterbury
phase of Respondent's system is 252 miles long. The cable
hangs from between 13,000 and 14,000 poles. (Licenses 1
through 33 comprised some 400 poles each, give or take a
few depending on the configuration of the ground
traversed by the poles.) The Naugatuck extension is on the
order of a few city blocks long. (License 34 is comprised of
fewer than 20 telephone poles.)
The General Counsel also stresses an anticipation of
future construction argument when he relies on the fact
that Respondent has yet to build in Plymouth and/or
Middlebury. The fact that, as of January 9, Respondent
had no immediate plans for beginning on those franchises
is uncontroverted. Whether, as General Counsel suggests,
this in some way places Respondent in violation of the
terms of the franchises granted by the State of Connecticut
misses the point. There was no pole survey/telephone
company final inspection work immediately available for
Tabaka in either of those areas.
The General Counsel also relies on Tabaka's capacity for
what is described in the record as design or layout work.
This involves planning cable television installations in, for
example, apartment houses. Whether and to what extent
Respondent called on Tabaka to do this kind of work is a
matter of sharp dispute. It is one which need not be
resolved. At best, the amount of this work was also
infinitesimal.
The General Counsel also relies on the fact Petruzzi told
Tabaka, shortly before he was laid off, to check paperwork
from the telephone company to make sure Respondent had
not been billed twice for work performed by the telephone
company which was chargeable to Respondent. Tabaka
had not yet completed this chore. Regardless of whether it
encompassed all 33 licenses, as the General Counsel
contends, or only one, as Respondent contends, it was not
part of the construction phase work for which Tabaka was
hired.
Finally, the General Counsel leans hardest on Tabaka's
map work as the area in which he still had most to do.
Tabaka testified that the work he left behind of this type
would have taken him months to complete even if he
1321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turned his hand to nothing else in that period. Petruzzi
testified that he actually did what had to be done in a
matter of a few hours after Tabaka left. I credit Petruzzi
over Tabaka. Even if I did not, I would still reach the same
result. Tabaka's map work was only incidental to and not
an inseparable part of his role as Respondent's liaison man
with the telephone company. The construction phase part
of Respondent's operations for which Tabaka had been
hired ended with the conclusion of the telephone company
final inspection. The fact that some maps still had to be
updated did not render that event any less significant than
did the fact Payne Construction Company still had some
errors to correct or the fact Tabaka still had some bills to
check.
In the final analysis, the "but for" question comes down
to whether there is any significant difference between
August/September and January other than Tabaka's
intervening union activities. There obviously is. When
Petruzzi persuaded Baker to let Tabaka stay on beyond
completion of the pole survey, Tabaka continued on
construction phase work which required him to continue
working with the telephone company's representative.
Thus, keeping Tabaka at that point was a logical extension
of the job for which he had been hired. It made business
sense even though Baker had not planned to keep Tabaka
beyond the end of the pole survey until Petruzzi persuaded
him. Baker's original timetable is established by the fact,
uncontroverted by the General Counsel, that Baker's 1975
budget did not provide for Tabaka's wages beyond July
and his 1976 budget, prepared before he decided to extend
Tabaka's tenure, did not provide for him at all. Also,
Baker's desire to get Tabaka off the payroll as soon as
possible in January has a sound business foundation.
Tabaka has a back injury which makes it impossible for
him to do the lifting and climbing required of installers and
the other technicians Respondent needs on an ongoing
basis to service customers, now that the plant is in
operation. The expense of Tabaka's job was associated
with the construction phase only. That expense could not
be transferred to the operational side of the ledger by
transferring Tabaka to an operational job. Therefore, the
end of the construction phase was a logical point at which
to end the expense of Tabaka's job. At that point, Petruzzi
was correct when he answered no to Baker's query about
whether there was anything of consequence left for Tabaka
to do. Thus, it does not follow that the fact Tabaka's union
activities occurred in the interim between Au-
gust/September and January is in itself enough to satisfy
the General Counsel's burden of proving that Tabaka
would have been kept on beyond January 9 but for those
activities.
I have no doubt (and I do not understand Respondent to
dispute the fact) that Baker's and Petruzzi's attitude toward
Tabaka changed as a result of his union activities. Thus,
the ultimate question is whether, the General Counsel's
failure to prove a "but for" violation notwithstanding, the
fact Petruzzi persuaded Baker to extend Tabaka's job in
August or September obligated them to do the same thing
in January. I think not. The fact that they were glad of an
opportunity to end Tabaka's employment is, under those
circumstances, coincidental only. It cannot supply the
element of motive requisite to a finding of discrimination
for union activities under the Act which is otherwise
missing.
In summary, the issue posed by the layoff of Ben Tabaka
comes down to this. An employee was hired for a definite
term which was to end at the occurrence of a particular
event, i.e., completion of the pole survey. Before that event
occurred, the term was extended until the occurrence of a
second related event, i.e., completion of the telephone
company final survey. Before the second event occurred,
the employee engaged in known union activities. When the
second event occurred, he was discharged. The employer
was glad to be able to take advantage of this opportunity to
get rid of the employee rather than extend the term a
second time. On that issue, my formal findings are as
follows:
The General Counsel has failed to prove by a preponder-
ance of the evidence on the record considered as a whole
that Tabaka would not have been laid off on January 9 but
for his union activities. Legally, Respondent was under no
obligation to extend Tabaka's tenure for a short time
beyond January 9 in order to finish up the chores he had
not completed. Therefore, the General Counsel has failed
to prove Respondent violated Section 8(a)(3) and (1) of the
Act by laying off Benjamin Tabaka on January 9, 1976,
with no prospect of reemployment for engaging in union
activities.
2. The independent 8(a)(1) allegations
The complaint contains numerous allegations of inde-
pendent violations of Section 8(a)(1) of the Act. Since
dealing with them seriatim as pleaded would increase the
length of this Decision to no purpose, I have divided them
into six discrete categories, each of which can be discussed
in terms of what I think are the proper Board criteria. I
have already dealt with the concept of "interrogation"
above at footnote 5 and that part of the text to which it is
appended. The testimony which the General Counsel relies
on for a finding that Respondent coercively interrogated its
employees more properly relates to the solicitation of
grievances concept which is pleaded as another way in
which Respondent violated the Act. I find, therefore, that
Respondent did not violate Section 8(aX)(1) by interrogating
employees about their union desires and sympathies.
Another allegation that Respondent "solicited and did
thereby attempt to induce employees to forestall their
Union organizing drive at the Waterbury facility" can also
be disposed of quickly. It is based on the fact, as found
above, that Petruzzi, in the course of his efforts to persuade
Respondent's employees to vote against the Union, said
they had not given the Company a fair chance and urged
them to hold off for a year before deciding whether they
needed a union. In the context in which this particular idea
was conveyed, I find the words which Petruzzi spoke were
not coercive and thus fell within the free speech ambit of
Section 8(c). In any event, the broad concept of violating
Section 8(aX)1) by inducing or attempting to induce
employees to abandon their support of a union falls more
properly into the categories of grievances and threats. The
four remaining categories into which the General Counsel's
8(a)(1) allegations can be divided are surveillance and the
1322
WATERBURY COMMUNITY ANTENNA
impression of surveillance, solicitation of grievances,
threats of various kinds, and raises and educational
benefits.
a. Surveillance and the impression of surveillance
The allegation that Respondent engaged in surveillance
of its employees is based on the fact Petruzzi was at Ro's
Restaurant on the evening of November 28. This was not a
union meeting in the usual sense of that term. It was a
meeting agreed to by both sides for the purpose of openly
debating the pros and cons of unionization.7 Nothing
about it even remotely resembles the situation where a
supervisor parks across the street from a union hall and
watches employees arrive for a meeting, a typical situation
in which the Board finds surveillance violations. I find,
therefore, Respondent did not violate Section 8(a)(1) of the
Act by engaging in surveillance of its employees' union
meetings and activities.
The allegation that Respondent created the impression of
surveillance is, however, another matter. It is based on
David Wilson's conversation with Petruzzi a few days after
the union meeting on October 21 when nine employees
signed authorization cards. Before Wilson could tell
Petruzzi what he had done, Petruzzi told Wilson he already
knew about the meeting. Such a statement, even in the
context of a friendly conversation initiated by the employ-
ee, conveys the message that the employer is keeping an
eye on what his employees are up to. I find, therefore,
Respondent violated Section 8(a)(l) of the Act by creating
the impression it was engaging in surveillance of its
employees' union meetings and activities.
b. Solicitation of grievances
The hard core of what Petruzzi said in his efforts to
persuade Respondent's employees to turn their backs on
the Union falls into this and the next category. The
discussions he held, whether with individuals or groups,
were couched in terms of what can the Union do for you
that Respondent cannot do better, provided you give it a
chance. In this context, the questions he posed, such as
they were, were rhetorical rather than coercive since they
were designed to get the employees to state the grievances
which had driven them to the Union in the first place, not
find out what they were up to. (He knew that already.)
Having raised the question of grievances, he implicitly
promised to do something about them when, as in his first
conversation with Wilson, he stated flatly his position with
Respondent put him in a better position than the Union to
help the employees. Whether an employer violates the Act
when he solicits grievances in the context of employees'
union activities turns on whether he promises, explicitly or
implicitly, to correct them. That test is met here. I find,
therefore, Respondent violated Section 8(aXI) of the Act
by soliciting grievances from its employees.
I The General Counsel's brief leaves me somewhat confused at this
point. At the hearing he took the position that only the meeting at Ro's was
"surveillance." In his bnef he charactenzes both the incident in the tech
room that morning and that at Ro's as captive audience meetings and relies
on both as establishing Petruzzi's purpose "to surveill [sic ] the Union
attitudes and sympathies of his employees." How an employer can engage in
surveillance at a captive audience meeting eludes me.
c. Threats
The discussions Petruzzi held with employees, whether
individually or in groups, were also couched in terms of
how Respondent might react if the Union became their
bargaining representative. Specifically, he pointed out that
Respondent might end the privilege they enjoyed of using
company trucks for personal errands, that it might change
its lenient policy about lateness by installing a timeclock,
and that it might impose a quota system under which
installers who could not make a specified number of
installations each day would suffer. Each time he made one
of these points, he was, in effect, threatening the employees
with loss of benefits and more onerous working conditions
for engaging in union activities. Similarly, the words he
spoke to Tabaka at Ro's on the evening of November 28
about Tabaka's prospects for continued employment
constituted a threat that Tabaka would lose his job for
engaging in union activities.8 Even Petruzzi's version of his
various statements to employees, a version which I credit,
makes it clear that he did not draw the careful and explicit
distinction between events beyond and events within
Respondent's control in the event it had to bargain with the
Union which has been held to make analogous statements
legal predictions rather than illegal threats. I find, there-
fore, Respondent violated Section 8(a)(1) of the Act by
threatening its employees with discharge, loss of benefits,
and more onerous working conditions for engaging in
union activities.
d. Raises and educational benefits
The following table, based on Respondent's personnel
records, indicates the date on which each of Respondent's
nonclerical employees other than Tabaka was hired or
transferred into the bargaining unit and the date on which
he received his first raise after becoming a member of the
unit:
Name
Bob Saunders
Richard l4offo
Robert Gabey
Clarence Atkinson
Mark Malawka
David Wilson
Robert Heaton
Remo Cenicolla
Eileen Shannon
Date of Date of
hire/ first
transfer raise
3/4/75
3/24/75
2/17/75
3/13/75
9/15/75
9/15/75
9/24/75
9/25/75
10/6/75
2/6/76
9/20/75
7/1/75
8/23/75
2/6/76
2/6/76
2/6/76
2/6/76
2/6/76
I There is no inconsistency between this finding and the finding that
Tabaka's layoff did not violate the Act. The 8(aXI) issue turns on the
reasonable interpretation of the words Petruzzi spoke on November 28. The
8(aX3) issue turns on Respondent's motive for laying off Tabaka on January
9. As the General Counsel's brief correctly points out, Petruzzi's statement
to Tabaka makes out aprimafacie 8(aX3) case only, aprimafacie case which
is rebutted by other evidence in the record.
1323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Wolff 8/15/75 2/6/76
John Harris 3/31/75 10/6/75
Saunders and Shannon were transferred into the unit from
other jobs. Each received a raise at that time. The other
nine were new hires. Each received his first raise within the
3-to-6-month period of the policy Respondent explained to
its employees when they were hired. Thus, the record
reveals, Respondent did not deviate from its policy because
of its employees' union activities.
Similarly, there is no indication in the record that
Respondent actually deviated from its policy with respect
to educational benefits. Employees were told at time of hire
Respondent would put into effect sometime in the future a
program of paying the cost of correspondence courses
because that was the policy of Sammons, its parent
corporation. However, no announcement was made that
such a policy was in effect and no employee had signed up
for a course before the union organizing campaign began.
Similarly, the on-the-job training program had not yet been
implemented.9 Therefore, Respondent did not violate the
Act by withholding from employees either their initial
raises or educational benefits.
The second aspect of these allegations of the complaint
concerns what Petruzzi said to the employees. In both
areas, he consistently told employees who inquired that
wages and educational benefits were frozen until after the
election because Respondent did not want to be accused of
bribing them to vote against the Union. Both raises and
educational benefits lay within the discretion of Respon-
dent. If it had granted raises in December to employees
hired in September and if it had put educational benefits
into effect at any time during the preelection period, there
would have been no objective evidence excusing the
timing. Therefore, under the principle laid down in The
Singer Company, Friden Division, 199 NLRB 1195 (1972),
Respondent could legally freeze both benefits until after
the election in order to avoid being accused of illegal
conduct, and Petruzzi could legally tell employees they had
been frozen for that reason so long as he did not place the
onus on the Union. There is nothing in the record to
indicate that he did.
Finally, the General Counsel contends Respondent
violated the Act by granting all employees a raise on
February 6 as a reward for rejecting the Union. There is no
evidence to justify such a finding as to Respondent's
motive. I find, therefore, Respondent did not violate
Section 8(a)(1) of the Act by any of its conduct relating to
raises and educational benefits for its employees.
3. Section 8(a)(5)
As of October 22, the date the Union demanded
recognition from Respondent, it represented 9 of Respon-
dent's 12 nonclerical employees. The unit in which the
Union demanded recognition was found to be an appropri-
ate one in Case I-RC-14112. Therefore, whether Respon-
dent violated Section 8(a)(5) and (I) of the Act by refusing
to recognize and bargain with the Union on and after
9 I credit the testimony of Petruzzi that the State of Connecticut, not
Respondent, decided to postpone this program until after the election
October 22 turns on whether, under Gissel, supra, the Board
should take into consideration the extensiveness of Re-
spondent's unfair labor practices in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future to find that the possibility of
erasing the effects of those practices and of ensuring a fair
rerun by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed through
authorization cards would, on balance, be better protected
by a bargaining order.
Something turned the Union's 9-3 majority as of
October 22 (10-2 as of December 12) into a 4-8 minority
by January 16. If that something was Petruzzi's solicitation
of grievances and threats, then the unfair labor practices
Respondent committed had an effect on past election
conditions sufficient to justify a bargaining order here.
However, past effect alone is not enough since it must be
weighed along with the likelihood of the unfair labor
practices recurring in the future. Baker and Petruzzi are the
only supervisors of Respondent's unit employees and thus
the only persons in a position to commit the sort of words-
spoken unfair labor practices found herein. Baker did
nothing to interfere with the rights of the employees in the
period prior to the January 16 election. As that portion of
Petruzzi's testimony quoted in footnote 6 above demons-
trates, Petruzzi was uninformed at that time about his role
as a firstline supervisor. Having been thoroughly educated
by his role as a witness in this proceeding, he is unlikely to
make the same mistakes twice.
If, as I suspect, the something that turned the Union's
majority into a minority was the layoff of Ben Tabaka, the
8(a)(l) violations I have found did not even have a
deleterious effect on past election conditions. There is, of
course, no way to determine now what caused the
employees to change their minds when they went to the
poll. The only meaningful test that can be applied at this
point is the possibility of erasing the effects of Respon-
dent's unfair labor practices by traditional remedies. If
Tabaka's layoff were a violation of the Act, the answer
would be easy. Discharge of a leader of a union organizing
campaign is consistently held to be so serious that not even
the traditional remedy of restoring him to his rightful place
is sufficient to erase the lingering shock of his departure.
Where the only unfair labor practices committed consist
solely of words spoken by supervisors to employees, the
result turns on the magnitude of the messages conveyed
and the rank of the supervisor conveying it. Here, Petruzzi
was not a high level executive rushed to the scene from
some distant home office to mount an all-out campaign to
beat the Union but an individual with whom the employees
talked every day. He did not threaten to close the plant or
to take other actions equally drastic. He threatened to
make installers stop going to lunch or to the bank in their
company trucks and to insist on a day's work for a day's
pay. His threat to Tabaka was not a threat to get rid of an
employee who had every reason to anticipate working for
Respondent as long as he wanted to but rather a threat not
to repeat a favor once extended to one whose job was
coming to an end in any event. The manner in which he
because the Union, if it became the bargaining representative of Respon-
dent's employees, would have an interest in the apprenticeship program.
1324
WATERBURY COMMUNITY ANTENNA
created the impression of surveillance and solicited
grievances was so unintimidating that it was coercive only
in the most technical sense. True, he conveyed his illegal
messages to substantially all of the employees in the unit.
But if the traditional 8(a)(1) remedy of a cease-and-desist
order and a notice is not strong enough to erase the
lingering effects among such a small group of what Petruzzi
said, it has been an ineffective remedy for all the years the
Board has relied on it to effectuate the purposes of the Act.
I find, therefore, Respondent has not violated Section
8(a)5) and (1) of the Act by refusing to recognize and
bargain with the Union on and after October 22, 1975.
III. THE OBJECTIONS TO THE ELECTION
The objections to the election held in Case l-RC-14112
are the same as the allegations of unfair labor practices in
Case I-CA-1 1368. Having found merit to some of those
allegations, I recommend that the election held on January
16, 1976, be set aside and a second election conducted.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. Waterbury Community Antenna, Inc., is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union 42, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By creating the impression it was engaging in
surveillance of its employees' union meetings and activities,
by soliciting grievances from its employees, and by
threatening its employees with discharge, loss of benefits,
and more onerous working conditions for engaging in
union activities, Respondent has violated Section 8(aX)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The allegations of the complaint that Respondent
violated Section 8(aX3) and Section 8(aX5) of the Act have
not been sustained.
6. The allegations of the complaint that Respondent
violated Section 8(aXl) of the Act in ways not specifically
found herein have not been sustained.
7. All technicians, technician trainees, installers, instal-
ler trainees, construction engineer/draftsman, and con-
struction crewmen employed by Respondent at its Water-
bury, Connecticut, facility, excluding all office clerical
employees, guards, the chief technician, and all other
supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
[Recommended Order omitted from publication.]
1325