Electrical Workers IBEW Local 3 (Cablevision)

National Labor Relations Board - Board Decisions

Sep 29, 1993

312 N.L.R.B. 487 (N.L.R.B. 1993)

487
312 NLRB No. 86
ELECTRICAL WORKERS IBEW LOCAL 3 (CABLEVISION)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In view of the evidence that union agents were present on the
picket line when the acts of misconduct occurred, Chairman Ste-
phens and Member Devaney find it unnecessary to pass on the
judge’s reliance on Avis Rent-a-Car System, 280 NLRB 580 fn. 3
(1986). See Member Devaney’s concurring and dissenting opinion in
Teamsters Local 812 (Pepsi-Cola Newburgh), 304 NLRB 111
(1991).
The judge incorrectly found that union organizer Jeff Mansmann
conceded that a particular statement was not contained in his pretrial
affidavit. It was employee Mario Linton who made this concession
during cross-examination. We correct the judge’s apparently inad-
vertent error, which does not affect our disposition of this case.
Local 3, International Brotherhood of Electrical
Workers, AFL–CIO and Charles F. Dolan, Ca-
blevision Systems of New York City Corpora-
tion and NYC-LP Corp., a Partnership d/b/a
Cablevision of New York City. Case 2–CB–
14111
September 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 3, 1993, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1
and conclusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 3, International
Brotherhood of Electrical Workers, AFL–CIO, Bronx,
New York, its officers, agents, and representatives,
shall take the action set forth in the Order.
Larry Singer, Esq., for the General Counsel.
Norman Rothfeld, Esq., of New York, New York, for the Re-
spondent.
Larry Albert, Esq. (William Englander, P.C.), of Mineola,
New York, for the Employer.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge filed on March 18, 1992, by Charles F. Dolan, Cable-
vision Systems of New York City Corporation and NYC-LP
Corp., a Partnership d/b/a Cablevision of New York City
(Employer or Cablevision), a complaint was issued against
Local 3, International Brotherhood of Electrical Workers,
AFL–CIO (Respondent or Union) on June 24, 1992.
The complaint alleges essentially that during the course of
an organizing campaign, Respondent (a) coercively photo-
graphed employees, (b) threatened an employee with physical
harm and unspecified reprisals, (c) blocked the ingress of
employees to the Employer’s facility, and (d) hit a vehicle
driven by the Employer’s employees with an unknown ob-
ject.
Respondent’s answer to the complaint denied the material
allegations thereof, and on December 8 and 9, 1992, a hear-
ing was held before me in New York City.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses and after consid-
eration of the briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, organized prior to 1992, is a partnership
comprised of the following three partners: Charles F. Dolan;
Cablevision Systems of New York City Corporation; and
NYC-LP Corp. The Employer, having a place of business at
3746–65 Merritt Avenue, Bronx, New York, has been en-
gaged in the installation and repair of television cable line
to residential customers.
In 1992, the Employer’s annual revenue was about $60 to
$65 million. Annually, the Employer purchases supplies and
materials in the amount of at least $11 million from sources
located outside New York State, which are shipped directly
to its facilities in New York State.
Based on the above, I find that Cablevision is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
I also find that Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE FACTS
The complaint alleges and the Respondent’s answer admits
that in about January 1992, Respondent commenced organiz-
ing the employees of the Employer. It is further admitted that
beginning in January 1992 and continuing through March
1992, Respondent, through its organizers and members, dis-
tributed leaflets and handbills to the Employer’s employees
at the Employer’s facility in furtherance of its organizational
campaign.
The complaint alleges that four individuals, Joe Ippolito,
Danny McAdam, Jeff Mansmann, and Joe Proscia, are orga-
nizers and agents of Respondent. Respondent concedes that
they are its members, but otherwise denies that allegation.
Ippolito testified that the four are volunteers who offered
to help organize the employees of Cablevision. At the time,
he was unemployed and in his spare time spent ‘‘consider-
able’’ time helping in this effort. The only instructions he
was given was to tell the employees what benefits he re-
ceived as a member of Respondent.
Ippolito assumed that Proscia was in charge of the orga-
nizing effort, during which Ippolito gave the signed author-
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On December 7, 1992, Respondent’s attorney stated in a letter
to the Board agent that Van Arsdale was aware of the organizational
effort.
ization cards which he received from the Employer’s em-
ployees to Proscia. Prior to the organizing campaign, Ippolito
attended a meeting at Respondent’s office. Present were
Lance Van Arsdale, a business representative, Proscia,
McAdam, and Mansmann. Proscia asked those present if
they could speak to Cablevision’s employees in their spare
time concerning the benefits of membership in Respondent.
No materials were distributed at that meeting, and no strat-
egy was discussed. Ippolito stated that Van Arsdale said
nothing at that meeting. However, Van Arsdale was aware of
the organizational effort.1
Thereafter, about six more meetings were held in the same
place, with Van Arsdale perhaps attending one of those ses-
sions.
On June 9, 1992, Van Arsdale submitted to the executive
board of Respondent a request that Mansmann and two other
members of Respondent ‘‘be reimbursed for expenses in-
curred from 1/30/92 through 4/29/92, while serving on the
Cablevision Organizing Committee.’’ Other, similar requests
were received in evidence, but they apparently relate to ac-
tivities which occurred after the dates at issue here.
Several employees of the Employer testified that they were
spoken to by Ippolito, Mansmann, and McAdam during the
course of the organizing campaign. Such conversations took
place beginning in January 1992. Thus, in January or Feb-
ruary 1992, service technician Primitivo Gonzalez spoke with
Ippolito and Mansmann, at a jobsite, about the Respondent.
They told Gonzalez how the Union could benefit the employ-
ees, and they asked him to sign a card for Respondent.
Service technician Lester Mahon stated that in early Feb-
ruary 1992, as he was leaving the Employer’s facility driving
a Cablevision truck, he was followed by a car, from which
Mansmann alighted, gave him a card which said that he was
with the Union, and said that he was attempting to organize
the Employer’s technicians. That evening, as Mahon was
leaving the Employer’s facility in his own car, he was mo-
tioned to stop by Ippolito, who introduced himself as being
with the Union, and also said that he was attempting to orga-
nize Cablevision’s employees.
Mahon stated that he had numerous discussions with
Mansmann concerning the Union. On one occasion,
Mansmann told him that the Union was good, had many ben-
efits, and (that organization of the Employer) was ‘‘inevi-
table.’’ He asked Mahon to sign a card, and also help him
by having his coworkers sign cards, and suggested that if he
did so, the Union could possibly reward him with a position
as shop steward.
Installation and repair technician John Fernandes testified
that his first contact with Respondent was in late February
1992, when Ippolito and Mansmann told him that they were
trying to organize the Employer, and were there to represent
the employees of Cablevision. They proffered literature to
Fernandes and asked him to sign a card for Respondent.
Fernandes stated that several, similar conversations took
place. On one occasion, Fernandes was stopped at a traffic
light when Mansmann leaned out of his car, offered him lit-
erature, and told him that ‘‘we are here to do the best for
you.’’ Fernandes refused to accept the literature.
Fernandes was also approached by McAdam outside the
warehouse in late February or early March. McAdam told
him that he was there to organize the employees of Cable-
vision. He asked Fernandes what he was earning, and he dis-
cussed what his pay might be if he was represented by Re-
spondent. Mansmann also took part in this conversation.
Service technician James Wilson testified that in February
and March 1992, he spoke with Ippolito and McAdam re-
garding joining Respondent.
Service technician Mario Linton first spoke with Ippolito
and Mansmann in February 1992. At that time, he was driv-
ing a vehicle and was waved over. Ippolito said that he
wanted to represent the employees so that they may receive
better working conditions. He explained Respondent’s bene-
fits, and asked him to sign a card. Linton replied that he had
to think the matter over. Thereafter, when he arrived at work
during February and March, he spoke with Ippolito and
Mansmann about two or three times per week outside the
warehouse, at which times they asked if he would sign a
card. Linton refused, saying that he had to do more ‘‘re-
search’’ into the situation.
Technician Kerry Mangum testified that in early 1992,
Mansmann asked him to sign a card for Respondent.
Mangum refused. Thereafter, Mansmann approached him two
or three more times, each time making the same request, and
telling him that other employees signed cards. Mangum again
refused. On one other occasion, Mansmann followed
Mangum’s truck as he left the warehouse. When they
stopped their vehicles, Mansmann spoke about the Union.
Additionally, Mansmann and another individual invited
Mangum to have breakfast but he refused, saying that he was
too busy.
A. Barry Monopoli
Barry Monopoli was an installation and repair foreman in
early February 1992. At that time, he was told by Ippolito
that Respondent was attempting to have employees of the
Employer sign cards for the Union. Thereafter, Monopoli
saw Ippolito and Mansmann at the warehouse nearly every
day, during which time he was continually asked to join the
Union. Monopoli told Ippolito that he was not interested in
union membership. Monopoli stated that he was told by
Ippolito or Mansmann several times that he had no choice—
it was ‘‘inevitable’’—that half the employees already signed,
and that if he did not sign a card, some employees would
be forced into lower paying jobs, and that he would ‘‘regret’’
it.
A question was raised as to the supervisory status of
Monopoli. At the time at issue, Monopoli was the Employ-
er’s installation and repair foreman. He worked at a desk in
the warehouse, where he routed and dispatched the work to
13 to 17 installation and repair technicians who reported to
him at that location for their work assignments. His duties
also included ensuring that the work was completed, and as-
sisting employees in the field if they needed help. In addi-
tion, Monopoli spent about 50 percent of his time working
with his hands with the employees. The frequency of such
work varied. At times he was in the field the whole day, and
on other days he spent 25 percent of the day at such work.
Monopoli reports to the installation and repair manager.
Monopoli, who is hourly paid, never recommended that the
Employer hire, fire, discipline, or transfer employees. He
489ELECTRICAL WORKERS IBEW LOCAL 3 (CABLEVISION)
stated that he did not know whether he possessed the author-
ity to make recommendations regarding those matters.
Monopoli further stated that he could not discipline installa-
tion and repair workers. He, as well as other experienced
technicians, on occasion, told the less experienced workers
what they were doing wrong, and he and they ‘‘guided’’
them in their work. However, of the more experienced em-
ployees, he was the only one at the location involved here
with the title of foreman. If a problem with an employee
arose, he could document it and send such documentation to
the human resources department, which investigates the mat-
ter.
Based on the above, it does not appear that Monopoli is
a statutory supervisor. There was no evidence that he pos-
sesses the authority to hire, fire, discipline, or transfer em-
ployees, or to recommend that the Employer take such ac-
tions. He never exercised any authority in such areas. The
most that can be said for any possible supervisory authority
is that, as an experienced employee, he assisted other work-
ers in the field, showing them what they did wrong. He can-
not discipline them for such wrongdoing, but can only ‘‘doc-
ument’’ any instances of problems with the workers, and
send such documentation to the human resources department.
He thus appears to be a working foreman with no statutory
supervisory responsibility.
B. The Events of March 5, 1992
In the late afternoon of March 5, a large demonstration
took place outside the Employer’s warehouses on Merritt
Avenue. One hundred to one hundred fifty demonstrators
were present. They stood on the sidewalks on both sides of
the street, in the street itself, and in front of both warehouse
entrances. Employee Primitivo Gonzalez stated that he saw
one demonstrator carrying a sign with Respondent’s logo.
Present during the demonstration were Ippolito, Mansmann,
McAdam, and Proscia. Mansmann testified that he believed
that Proscia was in charge of the demonstration that day.
At that time, Cablevision’s vans were returning from their
day’s assignments. Their routine was to drive the vehicle into
one warehouse on one side of Merritt Avenue in order to
check in their tools and convertors, and then drive across the
street into another warehouse where the van would be parked
overnight.
During this time, the demonstrators yelled at Cablevision’s
employees, attempted to hand them literature, and also threw
pamphlets into their trucks as they entered the warehouses.
About four to seven large electrical utility trucks which did
not belong to the Employer drove around the street very
slowly, as if to impede the progress of the returning Cable-
vision trucks. Cardboard was fastened to the name of the
Company on those trucks so as to prevent their identification.
Ippolito testified that those trucks were driven by members
of Respondent, and that he believed that Proscia arranged for
those workers to be present that day.
Employee Monopoli testified that one man in the group
approached him, pointed at him, and said that he would not
forget this. Employee James Wilson testified that as he drove
the Cablevision van into Merritt Avenue, he had to stop his
vehicle because the demonstrators were blocking his van.
They stood in front of the van, and did not move out of the
way despite his honking his horn. He eventually was able to
drive into the convertor warehouse, by ‘‘inching’’ up slowly
through the crowd. He experienced the same difficulty driv-
ing into the other warehouse. Employees John Fernandes
Primitivo Gonzalez, Mario Linton, Lester Mahon, and Kerry
Mangum testified to essentially the same experience driving
into the warehouses.
Employees Fernandes and Mahon testified that the dem-
onstrators who stood in front of the Employer’s vehicles de-
liberately dropped literature in front of them, and then slowly
bent down and picked it up, so as to break eye contact with
the driver and thereby cause the driver to stop his vehicle
until the demonstrator stood up.
Employee Wilson testified that as he and other Cable-
vision employees left the second warehouse to walk to their
personal vehicles, a man approached with a camera and said
that he was going to take their pictures. Wilson said ‘‘no,’’
but the photographer took the picture anyway. Wilson then
put his hand in front of the camera lens. The photographer
then said that he would ‘‘kick [your] fucking ass.’’ He also
said that he would ‘‘catch up to’’ Wilson, find out where he
lives, and that he would see him again. Wilson’s affidavit is
not inconsistent with his above testimony. His affidavit stated
that, after being threatened by the man, he said that ‘‘if you
want to fight I am ready,’’ whereupon the photographer said
that he would fight the next time he saw Wilson.
Employee John Fernandes testified that after he parked his
Cablevision truck, Ippolito and Mansmann called his name
out. Another man took his photograph from outside the ware-
house door, while Ippolito, Mansmann, and McAdam were
standing nearby. Fernandes stated that McAdam told him that
he was the ‘‘hardest nut to crack,’’ and asked him questions
concerning his tenure with the Employer. McAdam then told
him to sign a card, saying that ‘‘we are gonna get in regard-
less.’’ McAdam also told Fernandes that ‘‘we’ll remember
the guys who sign the cards [and] we’ll definitely remember
the guys who don’t sign.’’
Employee Mario Linton testified that when he pulled into
the Cablevision warehouse his photograph was taken, and
when he got out of his truck and approached the sidewalk
to look at the demonstrators his picture was taken again.
Linton also stated that when he was inside the warehouse he
heard loud banging on the closed warehouse door. He went
outside and protested to Mansmann, asking if this was the
way they expected the Cablevision employees to be im-
pressed with Respondent. Mansmann replied that they had to
make their point one way or another, and that ‘‘we’’ would
represent the Employer’s employees ‘‘whether you want to
or not.’’ Mansmann conceded that this last statement was not
contained in his pretrial affidavit.
Employee Mahon testified that after parking his Cable-
vision vehicle in the warehouse, he used the radio in his
truck to tell the other drivers to ‘‘stand by’’ and not bring
their vehicles in until the Employer obtained some control of
the situation. A plan was then developed whereby Mahon
and other employees would ‘‘escort’’ the trucks into the
warehouse, direct traffic, and stand in front of a utility truck
so that Cablevision vehicles could proceed into the ware-
house. At that point, the Cablevision drivers were informed
that they should proceed into Merritt Avenue, and the plan
was put into effect. I reject Respondent’s argument that the
Employer was responsible for any delay encountered by its
vans entering the warehouses because of this plan. This pro-
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cedure was put into place so that the trucks could proceed
to the warehouses with as little delay as possible.
C. The Alleged Accident
Employee Primitivo Gonzalez testified that on attempting
to drive into the second warehouse, demonstrators banged on
his truck and blocked his entry, throwing literature and curs-
ing him. He eventually was able to drive into the warehouse.
When he emerged from the van, someone told him to ‘‘come
out’’ as they were ‘‘going to kick your ass.’’ Gonzalez, feel-
ing threatened, then picked up a pipe, and standing inside the
warehouse, said that he would kill the first ‘‘motherfucker’’
who approaches. His picture was then taken by a demonstra-
tor who told Gonzalez that he took a picture of him and that
he should ‘‘watch [his] back.’’ Employees Mahon and Wil-
son corroborated Gonzalez’ testimony that demonstrators
struck the van.
Respondent asserts that the striking of Gonzalez’ van was
justified because his van had hit Respondent’s member Hec-
tor Vasquez.
Vasquez testified that he stood on the sidewalk, to the side
of the warehouse entrance when Gonzalez drove into him.
Vasquez absorbed the impact of the crash with his hands and
then moved backwards, grasping a wall 3 feet behind him.
Vasquez went to work that evening, working a full shift until
6 a.m. He went home and awakened in pain, and visited a
hospital, explaining his problem as being that with his thigh
and ankle. At the hearing, however, he stated that he has
since had problems with his left knee and right shoulder.
Vasquez did not file a police report notwithstanding that the
police were present at the warehouse when the accident oc-
curred. Nor did he bring suit against or submit a bill for
medical expenses to the Employer or Gonzalez.
Gonzalez denied hitting anyone with his van. Employees
Fernandes and Mahon, who were in the vicinity of the inci-
dent, denied that Gonzalez hit anyone. I cannot credit
Vasquez’ testimony. In addition to the above inconsistent tes-
timony about what part of his body was injured, he first tes-
tified that he awoke with pain and went to the hospital about
2:30 p.m., but when shown the medical report he conceded
that he actually arrived there much later, and was seen by
a doctor at 8:40 p.m.
D. Respondent’s Version of its Actions on March 5
Mansmann testified that on March 5 he engaged in his
usual conversations with Cablevision’s employees, informing
them of the benefits that Respondent offers, and attempting
to convince them to join it. In accomplishing that task he and
others tried to hand literature to employees as they walked
between the warehouses. Mansmann denied trying to stop or
slow the Employer’s vehicles so that they would accept lit-
erature. He also denied telling any employee that Respondent
would represent them whether they liked it or not.
Mansmann conceded that the utility trucks were driving very
slowly, but explained that they were doing so because the
street was congested, there being 50 or more people blocking
traffic, slowing the progress of the trucks.
Respondent member Vasquez testified that he spoke with
the Employer’s employees as they drove slowly on Merritt
Avenue. At such times he offered Respondent’s literature. If
they refused to accept it he walked away.
III. ANALYSIS AND DISCUSSION
A. The Question of Agency
The complaint alleges that Ippolito, McAdam, Mansmann,
and Proscia are organizers and agents of the Respondent, and
accordingly that Respondent is responsible for their actions.
Respondent admits that it began organizing the Employer’s
employees in January 1992, and that from that month
through March 1992, it distributed leaflets and handbills to
the employees through its organizers and members, in fur-
therance of its organizational campaign.
However, Respondent denies that Ippolito, McAdam,
Mansmann, and Proscia are its organizers and agents, and de-
nies any responsibility for the incidents which occurred on
March 5, 1992.
Respondent argues that assuming the truth of the allega-
tions concerning improper activities engaged in at the Em-
ployer’s premises, there is no evidence that such acts were
authorized or ratified by the Respondent.
Section 2(13) of the Act provides that:
[I]n determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
Accordingly, it is not necessary for a finding of agency,
that the acts engaged in were authorized or ratified by Re-
spondent. In other words, ‘‘common law rules of agency
govern.’’ NLRB v. Electrical Workers IBEW Local 3 (New
York Telephone), 467 F.2d 1158, 1159 (2d Cir. 1972).
Authority may be actual or apparent. Either type of author-
ity may be created either expressly or by implication. Here,
Ippolito, Mansmann, McAdam, and Proscia had actual, ex-
press authority to engage in organizing activity at the Em-
ployer’s premises. Thus, Official Van Arsdale asked them to
organize the Employer’s employees and he knew of their or-
ganizational activities. He authorized payment for the ex-
penses of the ‘‘Cablevision Organizing Committee.’’
‘‘Actual authority refers to the power of an agent to act
on his principal’s behalf when that power is created by the
principal’s manifestation to him.’’ Communications Workers
Local 9431 (Pacific Bell), 304 NLRB 446 fn. 4 (1991).
In Bio-Medical of Puerto Rico, 269 NLRB 827, 828
(1984), the Board stated:
A principal is responsible for its agents’ conduct if such
action is done in furtherance of the principal’s interest
and is within the general scope of authority attributed
to the agent, even if the principal did not authorize the
particular act. In other words, it is enough if the prin-
cipal empowered the agent to represent the principal
within the general area in which the agent has acted.
Respondent concedes that during the time at issue, specifi-
cally on March 5, 1992, it was engaged in an organizing
campaign among the employees of the Employer. It further
admits that at that time, through its organizers and members,
it distributed leaflets and handbills to such employees in fur-
therance of its campaign.
Ippolito, McAdam, Mansmann, and Proscia appear to have
been the most actively involved members of Respondent in
491ELECTRICAL WORKERS IBEW LOCAL 3 (CABLEVISION)
the organizing campaign. Thus, they attended seven meetings
in a group which has been called the Cablevision Organizing
Committee by Respondent Official Lance Van Arsdale. Van
Arsdale attended two of those meetings. Mansmann was paid
by Respondent for the expenses he incurred in connection
with the campaign.
All four men were present at the March 5 demonstration.
Proscia was identified as the individual in charge, and the
person who arranged for the massive number of people, and
for the utility trucks, to be present. Proscia and the other
three individuals were not employees of the Employer, and
were thus viewed by the employees of Cablevision, as out-
siders. Although they were not officials of Respondent, nev-
ertheless, they were authorized to organize the Employer’s
employees.
Respondent argues that its conduct in relation to the four
men consisted only of requesting that they organize
Cablevision’s employees and asking them to speak to them
concerning Respondent’s benefits. Indeed, there was evi-
dence that some of the organizers did distribute literature and
explain Respondent’s benefits to employees.
However, the question here, with respect to the March 5
demonstration, is whether the four men possessed authority
to act for Respondent. There is no question here that they
did. There is no evidence that any official of Respondent
participated in the organizing campaign at Cablevision. Rath-
er, the organizing was conducted for the most part by
Ippolito, Mansmann, McAdam, and Proscia. This lends sup-
port to a finding that Respondent held out the four individ-
uals as its representatives for the conduct of the organizing
campaign.
Thus, even before March 5, the four individuals played
leading roles in the organizing drive. Employees Fernandes,
Gonzalez, Linton, Mahon, and Monopoli were spoken to by
Ippolito and Mansmann. Fernandes and employee Wilson
were spoken to by McAdam. Although there was no evi-
dence that Proscia played any role in the campaign prior to
the demonstration, other than his presence at the meetings
with Van Arsdale and the other three individuals, there was
ample evidence that he arranged for the massive demonstra-
tion which occurred on March 5.
Accordingly, in the absence of any respondent official who
the Cablevision employees could look to as being Respond-
ent’s representative in the conduct of the organizing drive,
those employees were left with the impression that Ippolito,
Mansmann, McAdam, and Proscia were Respondent’s rep-
resentatives at the scene. This impression was supported by
the comments made by the organizers, which implied a close
connection between them and Respondent. Thus, Ippolito
told employee Mahon that he was ‘‘with the Union,’’ and
Mansmann suggested to him that if he solicited his cowork-
ers to sign cards, Respondent might reward him with a posi-
tion as shop steward. Also, employee Fernandes was told by
Mansmann that ‘‘we are here to do the best for you.’’
Thus, Respondent clothed the four individuals with the au-
thority to be the lead spokesmen for the conduct of the orga-
nizing campaign. They acted in behalf of Respondent when
they, without the participation or presence of a respondent
official, engaged in organizing activities in behalf of the Ca-
blevision employees. By the activities of Ippolito,
Mansmann, and McAdam prior to March 5, the Cablevision
employees could reasonably believe that those individuals
possessed the authority to act in behalf of Respondent in the
conduct of the organizational campaign.
In addition, a picket sign bearing Respondent’s logo was
carried by at least one individual, as testified by Gonzalez.
For all the above reasons, I find and conclude that
Ippolito, Mansmann, McAdam, and Proscia are agents of Re-
spondent.
A finding that the four men are agents of Respondent does
not answer the main question posed by the complaint. Were
they also agents of Respondent and acting on its behalf on
March 5, at the time of the incidents alleged to constitute un-
fair labor practices. And if so, were the acts committed by
others on that day attributable to them, and therefore to Re-
spondent.
The presence of Ippolito, Mansmann, McAdam, and
Proscia at the demonstration on March 5 constituted a con-
tinuation of their activities on Respondent’s behalf.
On March 5, organizing activity continued. Employees
were asked to sign cards, and literature was proffered. That
day, McAdam told employee Fernandes that ‘‘we are gonna
get in regardless,’’ and that ‘‘we’ll definitely remember the
guys who don’t sign.’’ Similarly, Mansmann’s explanation to
employee Linton as to how Respondent expected the support
of employees it seemingly was abusing was that ‘‘we’ve got
to make our point’’ or ‘‘we’ve got to get our point across
some way or another,’’ and ‘‘we’re gonna represent you
whether you want to or not.’’
Accordingly, the above statements referred to ‘‘union-
sponsored’’ reasons for the massive demonstration on March
5, ‘‘as opposed to simply their individual efforts alone.’’ Pa-
cific Bell, supra.
In Woodworkers (Central Veneer), 131 NLRB 189 (1961),
factually similar to the situation here, the Board found agen-
cy status to exist where a member of a union, Stringer, was
approached by employees of Central, and asked how to form
a union. Stringer offered to organize the employees. Union
Official Gorman instructed Stringer in the procedure to be
followed and gave him authorization cards. Stringer, who
was not an employee of Central, solicited such employees,
and gave the signed cards to the union, which filed a peti-
tion. The Board found the union responsible for a threat
made by Stringer in the course of his organizing activity.
The Board held as follows:
[W]e conclude that when Respondent, acting through
Gorman, accepted [Stringer’s] offer, instructed him in
the procedures to be followed, procured the cards for
him, and accepted the fruits of his efforts by filing a
petition based on the signed cards he secured, it made
him its agent for the purpose of organizing Central’s
employees. . . . We find, accordingly, that Respondent
was responsible for Stringer’s conduct in furtherance of
that organizational purpose, whether or not that specific
conduct was authorized or ratified. [131 NLRB at 190.]
B. The Violations of the Act
1. Unspecified reprisals
The complaint alleges that McAdam threatened employees
with unspecified reprisals for refusing to sign authorization
cards for Respondent.
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As set forth above, on March 5, employee Fernandes was
told by McAdam that ‘‘we’ll remember the guys who sign
the cards [and] we’ll definitely remember the guys who don’t
sign.’’ This comment was made after McAdam called him
the ‘‘hardest nut to crack,’’ and asked him to sign a card.
I credit the testimony of Fernandes. McAdam did not testify,
although he was in the hearing room when Fernandes testi-
fied.
The statement, ‘‘we’ll definitely remember the guys who
don’t sign,’’ had the effect of restraining and coercing
Fernandes in his decision as to whether to exercise his Sec-
tion 7 right to join Respondent or refuse to join. It could rea-
sonably be viewed as an attempt to frighten Fernandes into
signing a card for Respondent, leaving him with the concern
that his refusal to sign a card would be ‘‘remembered’’ by
Respondent, possibly resulting in certain adverse action.
I accordingly find and conclude that Respondent, by its
agent McAdam, violated Section 8(b)(1)(A) of the Act by its
statement to Fernandes.
2. Did the demonstration constitute picketing?
As to the other alleged violations, there is no evidence that
any of the four individuals actually committed the allegedly
unlawful activities set forth in the complaint. The question
therefore becomes the responsibility of the Respondent for
the actions of the demonstrators whose identities are un-
known.
In a picketing situation, a union is responsible for the ac-
tions of its pickets, even if the picket cannot be identified.
The General Counsel argues that the demonstration
amounted to picketing. Respondent denies this. In Mine
Workers (New Beckley Mining), 304 NLRB 71, 72 (1991),
the Board held that a mass demonstration held at a motel
protesting the presence of strike replacements constituted
picketing even in the absence of picket signs.
Picket signs or placards, while serving as indicia of
picketing, are in no sense essential elements for a find-
ing that picketing occurred.
The Board noted that elements of mass picketing, such as
the large numbers of persons present, and their shouted mes-
sages, were present in the ‘‘mass activity.’’
Similarly, here the elements of picketing were also present
in the large number of demonstrators who converged on a
small area at a time when the Cablevision vehicles were due
to return to the warehouses, the presence of utility trucks
which drove slowly with an obvious intent to cause the Em-
ployer’s trucks to be delayed in arriving at their destinations,
plus the presence of at least one picket sign, and the shouted
messages of the demonstrators to the workers to sign cards
for Respondent.
Under these circumstances, I find and conclude that the
demonstrators were engaged in picketing.
3. The other alleged acts of misconduct
The complaint alleges that Respondent engaged in certain
misconduct through the actions of its organizers and mem-
bers.
When a union authorizes a picket line, ‘‘it is required
to retain control over the picketing. If a union is unwill-
ing or unable to take the necessary steps to control its
pickets, it must bear the responsibility for their mis-
conduct.’’ [Iron Workers Local 455 (Stokvis Multi-Ton),
243 NLRB 340, 343 (1979).]
This is so even where the identity of the picket who en-
gaged in the unlawful action is unknown. Avis Rent-a-Car
System, 280 NLRB 580 fn. 3 (1986). It should be noted that
Ippolito, Mansmann, McAdam, and Proscia were at the scene
of the demonstration, although they may not have been
present at the actual unlawful event.
The evidence establishes that Proscia was the person re-
sponsible for the presence of 100 to 150 demonstrators, and
4 to 7 large utility trucks at the Employer’s premises on
March 5. The large numbers of people in the street and the
fact that the utility trucks drove slowly on the street in a cir-
cle around the facility caused the Employer’s trucks to be de-
layed in entering the warehouses. In addition, the demonstra-
tors congregated in front of the warehouse entrances, pre-
venting the Employer’s vehicles from entering, until by slow-
ly inching up they were permitted to proceed into the ware-
house.
Based on these facts, I find that Respondent is responsible
for the blocking of ingress of the Employer’s employees to
the Employer’s facility in violation of Section 8(b)(1)(A) of
the Act. Teamsters Local 812 (Sound Distributing), 307
NLRB 1267 (1992); Carpenters (Reeves, Inc.), 281 NLRB
493, 497 (1986).
The evidence also establishes that photographs were taken
of the employees of the Employer by a photographer at the
scene of the demonstration. Employee Fernandes credibly
testified that the four respondent agents were about 3 feet
from the photographer, and did not stop him from taking pic-
tures.
Respondent argues that the photographs taken were mostly
of employer officials, and were made to counteract photos
being taken by such officials of the demonstration. It is true
that some photographs were taken of employer officials; nev-
ertheless, many pictures were taken of Cablevision’s rank-
and-file employees. The photos were taken in a context
which was coercive—a large demonstration involving large
numbers of shouting, cursing individuals. The intimidating
nature of the photography is clearly seen in employee Wil-
son’s refusal to have his picture taken, putting his hand in
front of the lens, and the photographer then threatening him
with physical violence.
In addition, employee Gonzalez after driving through a
gauntlet of cursing, leaflet-throwing demonstrators, was told
to come out as they were going to beat him. He then picked
up a pipe and threatened any demonstrator who would ap-
proach him. A demonstrator then took a photograph of him
and told him to ‘‘watch [his] back.’’ This photograph, too,
was taken in an intimidating manner. It was accompanied by
a warning that Gonzalez should be concerned for his safety.
It cannot be said that the photograph or warning was justified
because of Gonzalez’ threat, because that threat was only
made after he was told to leave the warehouse to be as-
saulted.
I accordingly find and conclude that the photography was
calculated to instill fear of retribution among the employees,
and that it and the threats of physical harm violated Section
8(b)(1)(A) of the Act. Laborers Local 383 (Carter-Glogau
Labs), 260 NLRB 1340, 1343 (1982).
493ELECTRICAL WORKERS IBEW LOCAL 3 (CABLEVISION)
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
I credit the testimony of employees Gonzalez, Mahon, and
Wilson that demonstrators struck the van operated by Gon-
zalez. Respondent seems to concede that the van was struck,
in justification for his allegedly striking demonstrator
Vasquez. First, I find that Vasquez was not struck by Gon-
zalez’ vehicle. No one saw him struck. Vasquez’ testimony
that he pushed the vehicle with his hands and was thrust
backward and injured is not believable. His account of his
injuries is inconsistent with the medical evidence, and he
made no police or insurance report either at the scene or
thereafter.
I find that in the context of the events which occurred, the
striking of Gonzalez’ vehicle by the demonstrators violates
Section 8(b)(1)(A) of the Act. Sound Distributing, supra.
I accordingly find and conclude that Respondent is respon-
sible for each of the acts set forth above. By its authorization
of its agents Ippolito, Mansmann, McAdam, and Proscia to
engage in organizing activity at the Employer’s premises,
Respondent ‘‘empowered the agent to represent the principal
within the general area in which the agent has acted.’’ Bio-
Medical, supra. They had actual authority, as Respondent’s
agents, to engage in the organizing campaign. The events, set
forth above, arose out of and as a consequence of the cam-
paign. Proscia, the person in charge of the demonstration
who arranged for the presence of the large number of dem-
onstrators and utility trucks, should have known that unto-
ward events would occur with that show of force, involving
a large number of demonstrators amassed in a small area at
a time when the Cablevision drivers were returning to the
warehouses.
Respondent is responsible for the conduct of its agents, in-
cluding Proscia. Inasmuch as the demonstration may be con-
sidered picketing, as set forth above, Respondent is held ac-
countable for incidents, committed by unidentified persons,
at the scene of the picketing, particularly where, as here,
agents Ippolito, Mansmann, McAdam, and Proscia were
present at the site of the demonstration.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By blocking ingress of employees to the Employer’s fa-
cility, Respondent violated Section 8(b)(1)(A) of the Act.
4. By coercively photographing employees as they entered
and exited the Employer’s facility, Respondent violated Sec-
tion 8(b)(1)(A) of the Act.
5. By threatening employees with physical harm, Respond-
ent violated Section 8(b)(1)(A) of the Act.
6. By striking a vehicle driven by the Employer’s employ-
ees, Respondent violated Section 8(b)(1)(A) of the Act.
7. By threatening an employee with unspecified reprisals,
Respondent violated Section 8(b)(1)(A) of the Act.
8. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Local 3, International Brotherhood of
Electrical Workers, AFL–CIO, Bronx, New York, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Blocking ingress of employees to Cablevision of New
York City.
(b) Coercively photographing employees as they enter and
exit Cablevision of New York City.
(c) Threatening employees of Cablevision of New York
City with physical harm.
(d) Striking vehicles driven by employees of Cablevision
of New York City.
(e) Threatening employees of Cablevision of New York
City with unspecified reprisals.
(f) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its union office in New York, copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the notice, on
forms provided by the Regional Director for Region 2 after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Charles F. Dolan, Cablevision
Systems of New York City Corporation, and NYC-LP Corp.,
a Partnership d/b/a Cablevision of New York City, if willing,
at all places where notices to employees are customarily
posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT block ingress of employees to the facility
of Cablevision of New York City.
WE WILL NOT coercively photograph employees as they
enter and exit the facility of Cablevision of New York City.
WE WILL NOT threaten employees of Cablevision of New
York City with physical harm.
WE WILL NOT strike vehicles driven by employees of Ca-
blevision of New York City.
WE WILL NOT threaten employees of Cablevision of New
York City with unspecified reprisals.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
LOCAL 3, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL–CIO