Cablevision Systems Development Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1319 (N.L.R.B. 1980)

CAlIl EVISI)N SYSTEMS l)EVEI.OPMFNT CO1MPANY III
Cablevision Systems Development Company, a Part-
nership and Local 25, International Brother-
hood of Electrical Workers, AFL-CIO
Atlantic Cable Television Services Corporation and
Local 25, International Brotherhood of Electri-
cal Workers, AFL-CIO. Cases 29-CA-5811
and 29-CA-5812
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBEIRS
PF NEI.O ANI) TRUESDAI E
On April 15, 1980, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Respondents filed excep-
tions and a supporting brief, and the Charging
Party filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondents, Cablevision
Systems Development Company, a Partnership,
and Atlantic Cable Television Services Corpora-
tion, Hicksville, New York, their partners, officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i Respondentl has exceplted to cerlain credibilit findings made hb the
Adminislrative L.a Judge It is the Boards, estahlished policy not to
overrule an admilslratlic lass. judge's resolutionsll ,tllh respecl t credi-
bility unless the clear preponderance of all of the rele anl etidence cotn-
vinces us that the resolutions are incorrect Standard Dre Wall Produc.
Inc., 91 NLRR 544 (1951). enfd 188 1 2d 3t 2 (3d Cir 1951) We have
carefull3 examined the record and find no basis for reversing his findings
The Respondents have requested oral argument Ihis request is herebs
denied as the record, the exceptions, and the briefs adequaelI present the
issues ad the positotils of the parties
2 In sec II.E of his Decision the Administrative aw Judge inadscrt-
ently refers to Jul) 14. 1977, as the dale that Respondents Withdrewk rec-
ognition from the Union aid refused to bargain A, he found ece here
the c.rrect date is Jule 24. 177
251 NLRB No. 176
DECISI()N
SA[I NI N 1 11 1111 C sl
Jlit I'S COHN, Administratixe l..a Judge: FThis case
was hear(l at Brooklyn New\ York. on Decnember 18 and
19. 1978., and March 5 through 9 1979. Upon charges
filed and served on August 4 1977, in Cases 29-CA-
5811 and 29 CA 5812, the Regional Director for Region
29 issued a consolidated complaint on August 24, 1978,
alleging that Cablevision Systems Development Compa-
ny, a artnership,t herein sometimes called Cablevision,
and Atlantic Cable Television Services Corporation,
herein sometimes called Atlantic, collectively called Re-
spondent, violated Section 8(a)(l) and (5) of the National
Labor Relations Act, as amended, herein called the Act,
by refusing to bargain with Local 25, International
Brotherhood of Electrical Workers, AFL-CIO, herein
called the Union or Local 25, as the collective-bargain-
ing representative of certain employees of Atlantic in an
alleged appropriate unit. Respondent filed an answer
denying the commission of unfair labor practices. The
principal issue is whether Respondent is obliged to bar-
gain with the Union as a successor employer, because it
recognized the Union and then unlawfully withdrew
such recognition.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. All
parties submitted briefs hich have been carefully con-
sidered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDIN(INS Oi F-x(I
I. rll BUSINISS 01: RESPONDIENT
Cablevision is a partnership comprising general part-
ners, Charles F. Dolan and Communications Manage-
ment Corp., and certain limited partners. It has been en-
gaged in the development, maintenance, and operation of
community television antenna systems in New York and
New Jersey. Atlantic, a New York corporation, and a
wholly owned subsidiary of Cablevision, has a principal
office in Hicksville, New York, and has been engaged
also in the development, maintenance, and operation of
community television antenna systems in New York and
New Jersey. During the calendar year preceding the is-
suance of the complaint, Cablevision and Atlantic each
had gross revenues in excess of $500,000, and both pur-
chased goods and materials in excess of $50,000 of which
goods and materials in excess of $50,000 were transport-
ed and delivered to their places of business directly from
States in the United States other than the State of New
York. The complaint alleges, and Respondent admits.
that Atlantic and Cablevision each constitute a single-in-
tegrated business enterprise for which a common labor
policy is administered by its owners and directors and
' The unopposed post-hearing ntilion iof the ieneral Coulnsel to
amend tile conlplaint ith respect to tle name ef Responden l is granted
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that both Cablevision and Atlantic are employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and I so find.
11. [Fl I.lABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
A. Background
Respondent operates a fully integrated system of cable
television on Long Island. Among other things, this in-
volves the production of programs which are transmitted
through cables erected on utility poles to the homes of
its customers. Programs are received on their television
sets after Respondent connects a receiver by a line
drawn from the nearest utility pole. In 1974 a predeces-
sor of Respondent, Sterling, subcontracted two of the
functions involved in the operation of the system to
Broadway Maintenance Corporation. These were the in-
stallation of the receiver units in the homes of the cus-
tomers including the connection from the cable on the
utility pole to the television set, and the maintenance and
service of these units thereafter as well as the lines on
the utility poles. These operations were performed by
employees classified respectively as installers and service
technicians. This subcontract with Broadway was kept
into effect until the end of 1976 when Respondent began
to have some doubts as to continuing the relationship be-
cause of its belief that Broadway was not performing up
to standard as well as some question as to Broadway's fi-
nancial ability to carry on. It was determined to continue
the relationship on a month-to-month basis, but in mid-
1977 Respondent decided to terminate the contract by
the end of June and take over the functions performed
by Broadway.
The employees of Broadway, who performed the
work of installation and service for Respondent, were
represented by Local 25 under two contracts the Union
had with Broadway.
During the relevant periods herein, Respondent,
through a predecessor corporation, had a contract with
Local 3, International Brotherhood of Electrical Work-
ers, which was effective from April 1, 1975, through
March 31, 1978. It is clear that this collective-bargaining
agreement covered no employees and was not enforced
in any respect since the subcontracting to Broadway.
In the spring of 1977, Cablevision formed Atlantic as a
wholly owned subsidiary to perform eventually the oper-
ating and servicing functions of the system. Thus, Atlan-
tic was in place as an entity to employ those people who
would do the installing and the servicing functions being
performed by Broadway when the relationship with it
was terminated.
B. Facts
Richard Segall, assistant business manager of Local 25,
testified that, in addition to its collective-bargaining
agreement covering the service and maintenance of the
systems, the Union had a contract with Broadway for
construction which related to actually running the cable
from the head end to the utility poles and then from pole
to pole and street to street.
Segall stated that early in 1977 he received a telephone
call from Irwin Polinsky, general manager of Respond-
ent's Long Island operations, who informed him Re-
spondent was having problems with Broadway and
wanted to discuss them with him. Polinsky told him they
were renewing Broadway's contract only on a month-to-
month basis and were concerned with Broadway's finan-
cial instability. In addition, Polinsky said that Respond-
ent's intention was to expand the area and it wanted to
use all the Broadway employees in the event of a cancel-
lation of the contract with Broadway and a takeover by
Respondent of the functions performed by it. He indicat-
ed he wanted to talk to Segall about a contract.
In his testimony, Polinsky indicated that the contacts
he had with Segall were initiated by the latter who him-
self was concerned with the situation at Broadway. Po-
linsky also stated he reminded Segall of the existence of
Respondent's collective-bargaining agreement with Local
3 upon which they could fall back in the event the rela-
tionship with Broadway was terminated. Polinsky also
pointed out to Segall that, if necessary, there were other
sources from which Respondent could obtain employees
to do this work besides Broadway. Although Polinsky
infers Respondent was not necessarily that interested or
bound to obtain employees of Broadway, I find to the
contrary based on its actions in that regard as detailed at
a later point. It became clear that Respondent desperate-
ly required the services of the Broadway employees to
continue the operation when the subcontract was termi-
nated as of the end of June 1977.
Preliminary to any bargaining, the parties met at the
office of Local 3. Present at this meeting were Segall,
John Tatta, general manager of Cablevision and presi-
dent of Atlantic, and James O'Hara, assistant business
manager of Local 3.2 While there is some confusion in
the testimony of the participants as to the date of this
meeting, O'Hara stated that it was on June 1, 1977, and
that will suffice for our purposes. The apparent reason
for this meeting was that in the course of prior conversa-
tions with Segall over the years, whenever Segall had
expressed an interest in representing employees of Re-
spondent or its predecessor, Tatta had always maintained
that he had a contract with Local 3. The meeting was
set up so that this matter of jurisdiction could be
straightened out to Tatta's satisfaction. At this meeting
O'Hara assured Tatta that Local 25 had jurisdiction over
Long Island and that he would not raise the Local 3
contract to prevent any agreement between Local 25 and
Respondent.
Segall and Tatta were discussing a contract to cover
the installers and technicians working on Cablevision
customers but at that point still employed by Broadway.
Although it is true, as contended by Tatta, that at the
time they could not be sure which of the Broadway em-
ployees would come over to Respondent, nevertheless,
O'Hara and Tatta were old friends from the days hen the latter wa
an active member of Local 3 hereafter. while holding executive poi-
tiois in other cable television companies in New York, atta negolialed
many collecti ve-bargaining agreements with O'Hara.
CABLEVISION SYSTEMS DEVELOPMENT COMPANY 1321
the understanding was that Respondent would employ
these people and Segall would make every effort to
induce them to work for Cablevision. The point of dis-
pute concerning this meeting was that Tatta testified he
informed Segall and O'Hara there would have to be cer-
tain ground rules for contract negotiations. Firstly, he
only had a certain amount of money with which to oper-
ate and the agreements would have to reflect that situa-
tion. Principally, he stated an agreement would have to
be reached by June 24 so that he would have an eco-
nomic package in place to offer Broadway people who
would be willing to work for Respondent, and therefore
negotiations must be concluded by that date. Further
Tatta testified he told them it had to be understood that,
if an agreement could not be reached by that date, Segall
would go away and leave Respondent alone to operate
under the Local 3 contract. Both Segall and O'Hara
deny any such deadline was set, nor were they even told
about it, or that Local 25 would "disappear" if no agree-
ment was reached.
Another meeting was held among the above three par-
ticipants, this time at Respondent's office in the presence
of Polinsky, who testified he requested this meeting so
that he himself could hear Segall agree to the conditions
imposed by Tatta. Again O'Hara testified that neither
Tatta nor Polinsky told him, that, if no agreement was
reached with Local 25, the latter would disappear. I
credit the versions of Segall and O'Hara because, in the
particular circumstances, it appears inconceivable that
Segall would agree to "disappear" from negotiations
concerning a group of employees already represented by
Local 25, and further when it was clear that Local 25
and not Local 3 had geographical jurisdiction pursuant
to the mandate of their International. I also note that
O'Hara testified as he did despite his apparent longstand-
ing friendship and cordial relations with Tatta.
In any event the parties had agreed to commence bar-
gaining which they did on June 20. Segall and Polinsky
met and, using the Broadway contract still in effect with
Local 25, began discussing it section by section. Accord-
ing to Segall, Polinsky stressed the financial problems of
the Company. Segall told Polinsky that, inasmuch as
they would have to run through the whole contract from
beginning to the end, he believed he should go into
formal negotiations and he would bring in at least one
employee member to sit in on the talks.
Polinsky and Segall met again on June 22 at which
time William Quinn, chief engineer of Respondent's
Long Island operations and then president of Atlantic,
and Steven Meyer, an employee member of the Union,
were present at the meeting. Respondent submitted a
formal proposal containing salary figures and also a wel-
fare plan. At this point, Segall noticed for the first time
the name of Atlantic, and, when he asked about it, Po-
linsky informed him that was the Company he would be
doing business with. Segall told Polinsky it was the
custom of the Union in the cable television industry to
do business with the company who held the franchise,
that the Union had a franchise-type contract, and, if it
were dealing with a subcontractor, another form of con-
tract. Polinsky kept insisting that Atlantic was part of
Cablevision and that Segall would have nothing to
worry about.
They met again the following day on June 23 and
went over fringe benefits and the proposals and counter-
proposals on wages. During the course of this meeting
Polinsky told Segall that negotiations would have to be
concluded by 5 p.m. the next day. Segall states he pro-
tested that they may not be able to do this as there were
so many things in which they may become bogged
down, and it was difficult to negotiate under a gun. This
meeting which commenced around 10 a.m. ran until 11
p.m. during which all areas of the contract were dis-
cussed.
On Friday, June 24, the same people met again at Re-
spondent's office. The testimony of Segall and Polinsky
is to the effect that substantial progress had been made
on a complete economic package for the contract.
Indeed, Polinsky stated that, at or about 7 p.m. that eve-
ning (well beyond the 5 p.m. deadline allegedly set by
Tatta and Polinsky), he called Tatta and told him he be-
lieved there was an agreement on an economic package
and all that remained was to work out the boilerplate.
However, at this point, the parties came to the provi-
sion in the Broadway contract concerning the right of
the Union to visit with the employees at the premises.
Polinsky claimed that in his experience this right was
never set forth in the contract although he conceded
there should not be any problem of a union agent
coming in and speaking to employees. Nevertheless, he
refused to incorporate a contract provision giving the
Union the absolute right to come in without telling him.
If the Union wanted such a provision, he insisted upon
prior written notice to the Company. Segall protested
that this created an impossible situation because a prob-
lem may arise requiring immediate attention and he pro-
posed to undertake to make telephone calls before he vis-
ited the site. Polinsky also protested against a provision
contained in the Broadway contract granting the Union
the right to render assistance to other unions by taking
some of Respondent's employees in the event of some
labor problem. Segall suggested that this item might not
be legal and that the matter should be left to the attor-
neys; it was dropped at that point. However the question
of visitation remained and Polinsky was adamant about
requiring written notification.
At this point Segall told Polinsky it appeared for the
first time that he did not want a union and that perhaps
there would be no sense in continuing the discussions.
Polinsky then got up and left the room. Within a short
time, Polinsky not having returned, Segall left, leaving
Quinn and Meyer sitting there. As this apparently was
the end of the meeting, Meyer asked Quinn if jobs were
still available and specifically asked him if the wage
would be on the basis of the last offer made by Respond-
ent, with or without union representation. Quinn said
that this was a firm offer and Meyer told him he would
really be willing to come over and take a job.
The meeting ended at or about 8:30 p.m. Polinsky im-
mediately called Tatta, informed him as to what had oc-
curred, and told him that they had to be operating by
July 1 and that they just had to move ahead without
1 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 25 or Local 3. Tatta testified that Polinsky actual-
ly stated they should go ahead and do it nonunion,
"screw" Local 25 and Local 3, to which Tatta agreed.
The following day, Tatta received a telephone call from
Dolan, principal partner of Respondent, who said he had
run into Segall complaining about Polinsky's tactics, and
gave him Tatta's house phone number. When Segall
called to say that Polinsky had unreasonably broken up
the negotiations, Tatta merely replied that he was in
charge and Segall should call him. Segall then called Po-
linsky who refused to resume negotiations as there was
no more time to talk. Tatta testified that Polinsky report-
ed he had told Segall that the rules under which they
were working were violated, and he was no longer will-
ing to sit down to negotiate, and was going to proceed
nonunion.
While negotiations had been going on, Respondent
was receiving reports from its supervisors that the
Broadway employees were very concerned about their
continued employment with Broadway when the subcon-
tract was terminated, and were inquiring of Respondent's
supervisors with regard to employment with it. Thus,
when the negotiations broke up on the evening of June
24, Polinsky proceeded with plans to contact the Broad-
way people and inform them that jobs would be availa-
ble and directed Quinn to implement them.
This resulted in a meeting set up for Sunday morning,
June 26, at Atlantic's warehouse. In the interim, Segall
also encouraged Broadway employees to protect them-
selves by seeking jobs with Respondent with or without
a union contract. About 30 or 40 people, almost entirely
Broadway employees showed up. Respondent distributed
copies of the economic proposals that had been worked
out with Segall and told them that this would be the
package. Some of the Broadway employees immediately
filled out applications and others took time to consider.
Respondent offered inducements to the Broadway people
such as seniority for layoff purposes until July 10 so that
they would have precedence over new employees who
had not worked for Broadway. Operations commenced
on July 1.
In the meantime Segall had communicated with
O'Hara of Local 3 and met with him and Tatta on July 1
at which Tatta agreed to meet again with Segall on July
8.
Segall, Tatta, and Polinsky met on July 8. Prior to
this, Polinsky had obtained a copy of a contract between
Local 25 and Teleprompter, a competitor on Long
Island of Respondent. Apparently the wage rates in the
Teleprompter contract were lower than those offered by
Segall to Respondent and Tatta stated that he was in-
censed. Segall attempted to explain that Teleprompter
was the holder of the franchise, whereas Broadway and,
it appeared to him, Atlantic were subcontractors and the
Union had different contracts for these different entities.
Throughout the negotiations it appeared difficult for
Segall to understand or agree that Cablevision and At-
lantic were to all intents and purposes one and the same,
as he was told by Polinsky. At the hearing, Segall ex-
plained that, during the course of all the negotiations, he
had in mind a certain group of employees who were in
the service, maintenance, and a portion in the construc-
tion departments of Broadway who were servicing Re-
spondent and its customers.
Tatta and Polinsky testified that, at this brief meeting
on July 8, Tatta said that he would start bargaining from
the Teleprompter contract, but Segall replied this was
impossible because he could not get the men to take less
than what had already been tentatively agreed with Po-
linsky and, indeed, were being paid by Respondent since
July 1. Segall claimed that he had been deceived by Po-
linsky because he thought he was dealing with Atlantic
as a subcontractor and that was why he had not been
able to offer the Teleprompter contract. According to
Tatta, Segall said that he wanted a contract signed with
the terms and conditions agreed upon by Polinsky which
he would then put away and not enforce until Respond-
ent told him he could. Segall of course denied this stat-
ing he was informed by Respondent it would sign a con-
tract for Cablevision if he were willing to lay off Atlan-
tic. He replied that he could not do that because most of
his men were working for Atlantic. He would have
signed a contract with Cablevision provided it covered
the employees who had worked for Broadway. The
meeting then broke up. Whichever of these versions is
true, it establishes that the parties were still negotiating
as of this date. Segall said that on July 12 he had a call
from Polinsky who told him all bets were off and that he
could do whatever he had to do. The Union then sent
telegrams to Respondent demanding bargaining but Re-
spondent, by its attorney, denied any duty to bargain and
recommended that the Union seek a Board election.
The parties were able to stipulate that as of on or
about July 1, 1977, there were 45 installers, service tech-
nicians, and construction employees including 3 installa-
tion foremen (whom Respondent contends are supervi-
sors within the meaning of the Act), who came over to
work for Respondent from Broadway, and, in addition, 3
head end technicians were transferred by Cablevision to
Atlantic on July I whom the parties agreed belong in the
appropriate unit, plus 2 other installers, making a total of
53 employees. Of these, 48, including the 3 foremen in
dispute, were members of the Union.3
C. The Appropriate Unit
The complaint, as amended, seeks a unit of "all techni-
cians, head end technicians, 4 technician foremen, installa-
tion employees, installation foremen, construction em-
ployees, and construction foremen." At the hearing the
parties further agreed to the addition of another classifi-
cation of laboratory and converter repair technicians. 5
¢ Respondent. contending that the classifications referred to in this
group do not constitute an appropriate unit, would riot stipulate that the
53 employees (including the 3 foremen in dispute) comprise the total
number of employees in an appropriate unit However. absent other evi-
dence in the record. I find thalt the 53 employees referred to above com-
pose the employees employed by Respondent on July I i the classifica-
tions contended by the General Counsel to constitute an appropriate unit
4 As previously oted, the head end technicians f swhom there were
three were Cablevision employees, transferred to Atlantic on July I, and
agreed by the (jeneral Counsel to be appropriately included his 'as
the only classification not previously employed by Broadwa).
The two employees in this classification had been emploed by
Broadwav and came over tor Atlantic as of July 1. and had been included
Continued
CABILEVISION SYSTEMS DEVELOPMENT COMPANY 1323
Except for the foremen, whom Respondent would ex-
clude, it has no quarrel with the inclusion of these classi-
fications in the unit. Respondent does contend however,
that having subcontracted to Broadway work performed
by employees in these classifications (except head end),
and having now brought them back in house, the appro-
priate unit should now be greatly widened to include
other classifications of employees employed by Cablevi-
sion.
In considering the divergent views on the issue of ap-
propriate unit, it must be borne in mind that the employ-
ees, sought to be represented by the Union, constitute a
homogeneous group of installers and maintenance people
who possess similar skills, although obviously some clas-
sifications require a greater degree of expertise than
others, and that almost all were represented by the
Union pursuant to two collective-bargaining agreements
with Broadway. Also applicable is the general principle
that the unit sought must merely be appropriate and not
necessarily the most appropriate.
The Foreman
Respondent would exclude six foremen, three from the
installer classification and three from the technicians.
The overall supervisor of the installers was Tony Clark-
son and Charlie King was the supervisor for the service
technicians. The six foremen in question each had a
group of approximately eight to nine employees under
them. The foremen wore white shirts and employees
blue, all had the insignia of the company on the shirt. All
six foremen were represented by the Union and were
union members under the Broadway collective-bargain-
ing agreement. Although the foremen were hourly paid,
one foreman in each section additionally received a
weekly stipend of $40 while the other four foremen re-
ceived $30. The foremen worked with tools at least 30
percent of the time, on most occasions assisting the em-
ployees with their work. The foremen checked the qual-
ity and quantity of work performed by the employees as-
signed to them, and could and did tell them to redo
work improperly performed when necessary. With re-
spect to these matters the foremen reported the situations
to the supervisors, Clarkson or King as the case may be.
Although Respondent's principal witness in these mat-
ters, William Quinn, testified that the foremen meted out
discipline, it appeared that these were only oral and,
indeed, Quinn had no recollection of specific instances of
discipline imposed by the foremen. Respondent contends
that the foremen assign work, but it appears that written
work assignments for employees are made out by office
personnel who give a batch of them to each foreman,
who turns them over to the employee named. Although
Respondent introduced in evidence two instances of rec-
ommendations by Foreman Karwowski, one for promo-
tion and another for termination of an employee, both
recommendations were submitted long after July 1., 1977,
which was the time of the commencement of the oper-
ation. However it does not appear that these recommen-
by the General Counsel a service technicians Thus, the addition of this
classification title made no change to the complement of Broad'way em-
ployees who came over to Respondent
dations involved the exercise of independent judgment
by Karwowski. For example, he recommended that an
employee be terminated for having been late three times.
This is only an instance of relating a fact to the supervi-
sor from which the latter can determine whether or not
to terminate the employee. In sum, as it appears that the
assignment of work is merely performed by the foremen
as a conduit of work orders made up by office personnel:
that there is no evidence as to the ultimate affect of their
so-called oral reprimands, nor indeed evidence that such
reprimands had been rendered; that part of the day the
foremen do the same type of work as do the unit em-
ployees; that it does not appear that directions given to
employees are other than routine and do not require the
use or the exercise of independent judgment; I find that
the foremen act in effect as leadmen and do not possess
or exercise the indicia of authority required by the Act.
Accordingly the foremen are not supervisors and are ap-
propriately included in the unit herein. In this connec-
tion, it is further noted that, during the course of the bar-
gaining described above, Polinsky admits having bar-
gained for them and at one point stated, during his
review of the bargaining results up to that time, that
agreement had not been reached yet on wages for fore-
men. 6
Dispatchers
There are four dispatchers who work out of Cablevi-
sion's building. Several times a day they visit the Atlan-
tic premises, obtain a list of jobs or service calls from a
service tech foreman, return to Cablevision, and then are
in radio communication with the service techs transmit-
ting the service calls to them. In addition, they give
work information to service clericals to be checked. Dis-
patchers do not wear uniforms, do not, except on rare
occasions, go into the field, have no contact with the
technicians other than by telephone or radio, nor work
with tools as do the technicians. I find that the dispatch-
ers should therefore be excluded from the unit, as they
have no community of interest with service techs or in-
stallers.
Telephone Service Reps
The telephone service reps, as do the dispatchers,
work at the Cablevision premises under the supervision
of Charlie King who also supervises the service techs.
The service phone reps receive telephone calls from sub-
scribers who have problems and believe they need serv-
ice for their equipment. If the problem cannot be re-
solved on the telephone, the service phone rep communi-
cates with the service techs in the field who will handle
the matter by calling on the customer. Respondent
would link these telephone answering employees with
the service techs because they seek to solve the subscrib-
er's problems on the telephone and thereby avoid the ne-
cessiiy for a service tech to call on the customer. How-
ever, the fact that the telephone service rep is trained to
ask the caller a series of prepared questions, such as
whether his set is hooked to the cable, does not align
IJohn (uno r,/ Otahhomna. In . 218 NL.RB 1431 (178)
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these employees with the service techs who are field em-
ployees, physically capable of climbing telephone poles
and, beyond that, work with the tools of the trade. I find
insufficient community of interest between the telephone
service reps who are office clericals and the service
techs and would exclude the former from the unit to be
found appropriate herein. 7
The Business Office Representatives
According to Tatta, business office representatives
take calls from customers who desire installation. They
obtain all the information from the prospective customer,
then make up a work order which is turned over to the
supervisor of installers. Although the business office rep-
resentative is trained and is knowledgeable concerning
the function of installing converters and the like, they ac-
tually do not make such installations, do not use tools, or
do manual work. As Tatta explained, they just talk to the
customers on the telephone. Business office representa-
tives have little or no contact with installers nor do they
work in the field or wear uniforms as do the installers.
Moreover there is quite a disparity in wage rates. In
these circumstances, I find that the business office repre-
sentatives are office clerical employees having no com-
munity of interest with the installers or service techni-
cians, and accordingly I shall exclude them from the unit
herein.
Property Damage Employees
The property damage employee was placed in the in-
stallation department as his work arises from damage to
customers' property or premises usually caused by instal-
lation. The employee in question, currently Frank Greco,
would then go to the customers' premises and make the
necessary repairs. Respondent would include this em-
ployee in the unit as a separate category. The General
Counsel has no objection inasmuch as Greco's name is
listed as a service technician who came over on July 1 to
Respondent from Broadway. As Greco is a field employ-
ee, constantly working with installers and technicians,
and is himself a mechanic, and there being no objection
to his inclusion, I find that the property damage employ-
ee should properly be included in the unit found appro-
priate herein.
Service Clerical and Installation Clerical Employees
Respondent would include, as the service department
clerical, one employee named Mary Jane Migliore. She
was employed on July 7, 1977, as a clerical for the serv-
ice department, producing daily production records for
that department, such as making lists of service calls
completed and how many problems were resolved on
each call. Migliore worked on the premises of Atlantic,
and, in addition, kept timesheets for the service techs
who would verify them and return them to her. It ap-
pears that Migliore performs routine clerical duties, does
not work in the field, or in any manner uses tools, and I
? National Telephone Company. Inc., 219 NLRB 634 (1975), relied on
by Respondent is inapposite. In that case, the so-called customers service
representative actually made periodic visits to customers and performed
minor repairs on the equipment.
shall therefore exclude her from the unit as an office
clerical employee.
Respondent would also include, and the General
Counsel exclude, two installation clericals who took care
of production records of the installation department.
They also work at the Atlantic premises and communi-
cate occasionally by radio with the installers and if nec-
essary give them more work. As with the service cleri-
cal, the installation clericals also do routine clerical
work, keeping records on the number of completed in-
stallations, of those not completed, and in general a
record of all work performed in the installation depart-
ment. As with the others, the installation clericals do not
work in the field and have no contact other than routine
telephone or radio communication with installers, and I
shall exclude them from the unit found appropriate
herein.
The Audit Group
The audit group, consisting of three employees, makes
runs through the system to be sure there are no illegal
connections and that customers, who are only basic sub-
scribers, are not receiving more than they paid for. In
doing this these employees are in the field, climb tele-
phone poles to inspect the installations, and spend at least
5 or 6 hours of an 8-hour day doing the field work and
the balance filling out reports. However, as part of their
work which is essentially security in nature, they would
check to see whether installation or technician employ-
ees were involved in making unlawful connections. It is
clear that in such capacity they would have a conflict of
interest vis-a-vis the other employees in the unit, and ac-
cordingly I shall exclude the audit group from the unit
found appropriate herein. 8
Warehouse Employees
There are five warehouse employees who are responsi-
ble for dispensing material and storing equipment. The
warehousemen, who are lowly paid employees, spend
about 65 percent of their time organizing and dispensing
materials to installers, technicians, and construction em-
ployees. The rest of their time is spent with office sup-
plies, restocking supplies, and loading trucks as neces-
sary. They do not go into the field. These employees
were specifically excluded under the Broadway contract
with Local 25, are not sought by the Union and, as
clearly, the unit would be appropriate without their in-
clusion, I shall therefore exclude the warehouse employ-
ees from the unit herein.
Programing Employees
Respondent seeks inclusion of seven particular pro-
graming employees who are employed by Cablevision
and have never been transferred to Atlantic. The pro-
graming department is in charge of the studio, news or-
' In any case, only one of the three audit employees was transferred to
Atlantic as of July 1. 1977. The other t\ao remained on Cablevision pay-
roll and were not transferred until a considerable period of time after the
approximate July 1, 1977 date. which is crucial to a determination of the
Union's support in the unit
CABLEVISION SYSTEMS DEVELOPMENT COMPANY 1*25
ganization, community relations, acquiring outside pro-
graming, and also production such as putting on hockey
games. They work inside the studio and do not work in
the field. They have little or no contact with the install-
ers, service techs, and construction employees, and I
shall exclude them from the unit found appropriate
herein.
At the hearing Respondent also contended that certain
employees in its New Jersey subsidiaries would also
belong in an appropriate unit. As these employees work
in an area quite distant from those sought by the Union
herein and have little or no contact with one another, I
shall exclude New Jersey employees from the unit found
appropriate herein. Not only do the New Jersey employ-
ees work in a different area, but they also have separate
supervision and there is no significant interchange or
transfer of New Jersey employees with Long Island em-
ployees.
On the basis of the foregoing, I find the following to
be an appropriate unit: "All technicians, head end techni-
cians, technician foremen, installation employees, installa-
tion foremen, construction employees, construction fore-
men, laboratory and converter repair technicians, and
property damage employees employed by Atlantic at its
Hicksville, New York location, exclusive of all manageri-
al employees, business office clerical employees, service
representatives, programming employees, warehousemen,
guards and all supervisors as defined in the Act." I fur-
ther find and conclude that the foregoing constitutes a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
I have previously found that as of July 1, 1977, there
were 53 employees in the classifications described in the
appropriate unit above. The property damage employee
was included in the 53 as a technician. An overwhelming
proportion of the 53 employees were people who came
over from Broadway to commence employment with At-
lantic. Moreover, of the 53, 48 were members of the
Union as of July 1. It is clear therefore that the Union as
of that date represented a majority of the employees
found to be in the ppropriate unit.
D. The Successorship Issue
The General Counsel contends that Respondent is the
successor to the installation and service departments
maintained by Broadway and as such is obligated to rec-
ognize and bargain with the Union as the collective-bar-
gaining representative of the employees in those catego-
ries. It is well settled that an employer who acquires a
business or enterprise of another, operates it with little or
no change, and hires a sufficient number of the employ-
ees of its predecessor so that they constitute a majority
of his own employees is obligated to recognize and bar-
gain with the collective-bargaining representative of the
employees whom he has just hired.9
I find in the circumstances as set forth above, Re-
spondent became the successor of the installation and
service department of Broadway on July I when it com-
menced the operation of such departments by hiring a
I NL.R.B v Burns Internarional Securtv Service. Inc., 406 U S 272
(1972)
number of employees at Atlantic of whom the vast ma-
jority had been employed by Broadway and had been
represented by the Union herein. Actually the only dif-
ference between the situation with which we are con-
fronted herein and the classic successorship case is in the
fact that Respondent was not a purchaser of the business
but rather terminated a subcontracting relationship with
the predecessor and took those functions in-house. Even
this is not totally true since Respondent concededly did
purchase a certain amount of equipment and vehicles
from Broadway when it terminated the subcontracting
relationship.
In any case, it is not necessary that a bona fide pur-
chase arrangement be found in order to establish the
successorship doctrine. Purchasing a business is not re-
quired at all. Thus, in G. T. & E. Data Services Corpora-
lion, 194 NLRB 719 (1971), a corporation formed an-
other corporation to take over the data processing work
of the parent company, and in effect transferred employ-
ees to it who thereupon proceeded to do the same work
using the same equipment. The Board stated in that case:
"In defining and applying the 'employing industry' con-
cepts, the Board, with court approval, has aways found
that more significant weight should be attached to facts
demonstrative of 'the continued nature of the employ-
ment [of a particular group of employees involved]
rather than to the source of such employment.' The
Board has therefore held that where an allegedly 'new'
employer takes over a portion of the operation of a pred-
ecessor enterprise, and continues these operations with-
out hiatus, and with substantially the same employees, it
is, as a matter of industrial reality, the 'successor employ-
er' of the employees involved." In the instant case, Re-
spondent has recaptured from its subcontractor the func-
tions of installation and servicing of its cable television
business. There was no hiatus whatsoever, as the subcon-
tract was terminated on June 30 and Respondent imme-
diately began business on July 1. The employees taken
over from Broadway continued to do the same work
that they had been doing before, and were supervised by
the same supervisors.
There is no question that the Union was the collective-
bargaining representative of the installation and technical
employees, a fact clearly known to Respondent. While
there are some slight changes or additions to the unit
from the units described in the Union's contracts with
Broadway, the changes were basically cosmetic and
agreed upon by the parties herein.
I find no merit to Respondent's contention that the
employees taken over from Broadway were cross-trained
to perform a greater variety of work than they did at
Broadway, which militates against a finding of successor-
ship. Actually the record reveals that, at the inception of
their employment with Atlantic on July I and shortly
thereafter, these employees performed exactly the same
work and continued their duties as they did with Broad-
way without any change. Indeed, it is clear from the
record that Respondent was only too happy to have
them for otherwise they would have been unable to
properly service their existing customers or being serv-
iced with new ones. The fact that thereafter Respond-
1326 I)tECISIONS OF NATIONAL LABOR RELATIONS BO()ARD[
ent's supervisors began giving these employees additional
training does not change the result as it is clear that the
additional duties were not essentially different or re-
quired a greater knowledge or different skills.
Having found that Respondent was a successor to
Broadway as described above, I further find that Re-
spondent, as of July 1, 1977, was obligated to recognize
and bargain with the Union as the collective-bargaining
representative in the unit found appropriate herein. o
E. The Alleged Recognition and Unlawful Withdrawal
of Recognition
The General Counsel alleges that Respondent con-
ferred recognition upon the Union in mid-June 1977 and
then unlawfully withdrew recognition on June 24 during
negotiations. It thereafter met again with the Union and
finally refused to bargain after July 8.
The thrust of Respondent's contention concerning rec-
ognition and withdrawal of recognition lies in what it
characterizes as the prehire nature of the meetings and
negotiations. It points out that all discussions with the
Union occured from mid-June until June 24, all prior to
its hiring any of the Broadway or other employees for
Atlantic. Respondent asserts it had no idea then whether
any Broadway employees could actually come to work
for it and it was also seeking employees from competi-
tors where the employees would have similar experience.
However, the negotiations which occurred up to June
24, looking to a contract with the Union, were not of the
type frowned upon by the Board as unlawful prehire
contracts. The latter involve situations in which an em-
ployer has no employees nor is there a group or pool of
employees in existence with reference to whom the par-
ties are bargaining. That is not the case herein. At all
times, and I so find, Respondent was interested in obtain-
ing as many of the Broadway employees working in the
appropriate unit at Broadway, as would agree to come
over and work for it on July 1. Actually Respondent had
no alternative because, despite its protestations that it
was willing and anxious to hire experienced installers and
technicians from anywhere, there is no evidence in this
record that it was able to hire, on July 1, employees
other than those that come from Broadway plus a few
which had transferred from its own Cablevision payroll.
Moreover, the Board has held that the "pre-hire" nature
of negotiations are not objectionable where a successor-
ship is found and when the employees had already se-
lected a bargaining representative at its previous employ-
er.
Finally, the Supreme Court took cognizance of these
situations in Burns in which it stated that it would be ap-
propriate for a new employer, who plans to retain all the
employees in the predecessor's unit, to initially consult
with the employees' bargaining representative. 1I find
that Respondent's alleged uncertainty as to the identity
of the complement it was seeking is an afterthought, as it
was perfectly clear that Respondent desired and indeed
was anxious to hire the Broadway employees. Moreover,
lU N.L.R.B. Middleboro Ftre Apparatus. Inc., 590 F.2d 4 (Ist Cir
1978).
l General Electric Company, 173 NLRB 511. 513 (1968)
12 Burns, supra at 295.
by its conduct in engaging in extensive negotiations with
the Union, it extended recognition. Specific words to
that affect are not needed. :
In sum I find that Respondent extended recognition to
the Union by meeting with it and engaging in meaningful
collective-bargaining negotiations as more fully described
above. Inasmuch as the Union represented a vast major-
ity of the employees who commenced working on July 1
at Atlantic, Respondent's withdrawal of recognition and
its refusal to bargain between June 24 and July I consti-
tuted a violation of Section 8(a)(5) of the Act. Respond-
ent does not contend that negotiations reached an im-
passe on June 24.
With regard to the negotiations and bargaining, I place
no credence in the assertions of Respondent's witnesses
that the union representative, Segall, had agreed to a
deadline of June 24 at 5 p.m., at which point an agree-
ment had to be consummated or else he would "walk
away." Indeed, on that date the parties had already
agreed to an economic package and negotiations were
halted only because of Respondent's refusal to go along
with any written contract provision for union visitation
to its premises. Interestingly, after the termination of the
June 24 meeting, Polinsky informed Tatta of the events
and then they both decided to go it nonunion. However,
by that time it appeared that Respondent could be rea-
sonably assured of enlisting a goodly complement of the
Broadway employees it was seeking. Respondent con-
cedes that it heard of this through its supervisors who
had contact in the field with these employees. Moreover,
at the conclusion of the meeting on June 24, Meyer, the
employee representative at the meeting asked Quinn
whether he could obtain employment with Respondent
and Quinn assured him that he could and indeed the eco-
nomic package already agreed upon with the Union
would be implemented. Obviously this was passed on to
other employees.
Despite this, Respondent meet again with the Union
on July I and 8. By this time however, Atlantic was al-
ready in operation with the Broadway employees. At
that point, Respondent offered to resume negotiations
with the Union but only on the basis of the Telepromp-
ter contract as a starting point. Since the Union had al-
ready negotiated an economic package that was better
than the Teleprompter agreement, and the employees it
represented were already working on the basis of that
negotiated package, it is not difficult to see why the
Union could not agree on that basis. Finally it should be
noted that, at all times during the course of negotiations,
the Union made it clear to the Broadway employees that
they should protect themselves by seeking employment
with Respondent even though a collective-bargaining
agreement was not forthcoming. Presumably, as witness
the conversation between Meyer and Quinn just related
above, Respondent was aware of this and could risk its
nonunion decison.
Accordingly, I find that Respondent recognized and
bargained with the Union on July I and 8 and violated
Section 8(a)(5) of the Act by reason of its unlawful with-
':' See Broadmoor Lumber Comnpany, 227 NLRB 1123 (1977)
CABI.EVISION SYSITEMS DEVEL()OPMENI' COMPANY 1327
drawl of recognition of the Union thereafter and refusal
to bargain with the Union as the majority representative
of the employees in the unit found appropriate.
IV. HIE I FFECI O THE UNFAIR LABOR PRACTICES
UPON COMMLR t E
The activities of Respondent. set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce amoung the several States and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce.
V. REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent, as a successor employ-
er, violated Section 8(a)(5) and (1) of the Act by failing
and refusing to bargain with the Union as the collective-
bargaining representative of the employees in the unit
found appropriate herein, and moreover that Respondent
unlawfully withdrew recognition of the Union after
having recognized and bargaining with it, I recommend
that Respondent be ordered to recognize and bargain in
good faith with the Union.
CONCLUSIONS OF LAW
1. Respondents Cablevision and Atlantic are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the
Act, by refusing to bargain after June 24 and again after
July 8, 1977, collectively in good faith with the Union as
the exclusive bargaining representative of the employees
in the unit found appropriate herein.
4. The Union has been, and continues to be, the collec-
tive-bargaining representative of a majority of the em-
ployees in the following appropriate bargaining unit: all
technicians, head end technicians, technician foremen, in-
stallation employees, installation foremen, construction
employees, construction foremen, laboratory and con-
verter technicians, and property damage employees em-
ployed by Respondent Atlantic at its Hicksville, New
York, location, excluding all managerial employees, busi-
ness office clerical employees, service representatives,
programming employees, warehousemen, guards, and all
supervisors as defined in the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(5) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 4
The Respondents Cablevision Systems Development
Company, a Partnership, and Atlantic Cable Television
Services Corporation, Hicksville, New York, their part-
ners, officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to
wages, hours, and other terms and conditions of employ-
ment with Local 25, International Brotherhood of Elec-
trical Workers, AFL-CIO, as the exclusive bargaining
representative of its employees in the following appropri-
ate unit: all technicians, head end technicians, technician
foremen, installation employees, installation foremen,
construction employees, construction foremen, labora-
tory and converter technicians, and property damage
employees employed by Respondent Atlantic at its
Hicksville, New York, location, excluding all managerial
employees, business office clerical employees, service
representatives, programming employees, warehousemen,
guards, and all supervisors as defined in the Act.
(b) In any like or related manner interfering with. re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain with the above-named Union
as the exclusive representative of the employees in the
unit defined above with respect to wages, hours, and
other terms and conditions of employment, and, if agree-
ment is reached, embody it in a signed contract.
(b) Post at their facilities in Hicksville and Jericho,
New York, copies of the attached notice marked "Ap-
pendix."' 5 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondent, 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 Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
h4 In the eent no exceptions are filed a, pros ided b Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board. he
findings, conclusions. and recommended Order herein shall, as prolided
in Sec 102 48 of the Rules and Regulations. be adopted b the Board and
become its fildings. conclusions. and Order, and all objections thereto
shall be deemed aled for all purposcs
In the eent that this Order is enfoirced h a Judgmellt f a United
States Coirt of Appeals,. Ihe words n the notice reading Posted y
Order f the National Lahor Relations Board" shall read "Posted Pursu-
anlt to a Judgment of the United States (url ff Appeals Enforcing an
Order of the Nalonal Labor Relations Board"
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPI.OY EES
POSTED BY ()ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we have violated the National Labor Relations Act,
as amended, and we have been ordered to post this
notice.
WE WILL NOT refuse to bargain collectively with
respect to rates of pay, wages, hours, and other
terms and conditions of employment with Local 25,
International Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
The appropriate unit is:
All technicians, head end technicians, technician
foremen, installation employees, installation fore-
men, construction employees, construction fore-
men, laboratory and converter technicians and
property damage employees employed by Re-
spondent Atlantic at its Hicksville, New York lo-
cation, excluding all managerial employees, busi-
ness office clerical employees, service representa-
tives, programming employees, warehousemen,
guards and all supervisors as defined in the Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights under Section 7 of the
Act.
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative of our
employees in the appropriate unit described above
with respect to wages, hours, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
CABLEVISION SYSTEMS DEVELOPMENT
COMPANY, A PARTNERSHIP, AND AAN-
TIC CABL.E TELEVISION SERVICES CORPO-
RATION