CABLEVISION SYSTEMS NEW YORK CITY CORPORATION, (2017)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
CSC Holdings, LLC and Cablevision Systems New York City Corporation and Andres Garcia and Paul Murray and Bernard Paez. Cases 02–CA–138301, 02–CA– 138302, and 02–CA–138303
May 11, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
On September 23, 2016, Administrative Law Judge Mindy E. Landow issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Parties filed answering briefs, and the Respondent filed reply briefs. The General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.1
The National Labor Relations Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order, and to adopt the recommended Order as modified and set forth in full below.3
The primary issue in this case is whether the judge correctly found that the Respondent violated Section 8(a)(3) and (1) of the Act by involuntarily transferring employees Andres Garcia, Paul Murray, Bernard Paez, Wayne Roberts, Ezequiel Lajara, and Mike Vetrano because of their union or suspected union activity and/or other protected concerted activity. For the reasons set forth below, we affirm the judge’s conclusion.4
1 The Respondent has requested oral argument. The request is denied as the record, exceptions, cross-exceptions, and briefs adequately present the issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. 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.
3 We shall modify the judge’s recommended Remedy and Order and substitute a new notice in accordance with our decision in Kentucky River Medical Center, 356 NLRB 6 (2010), and to conform to the judge’s findings and to the Board’s standard remedial language.
4 We affirm the judge’s finding that the allegations regarding Roberts, Lajara, and Vetrano are not time barred under Sec. 10(b). The Respondent transferred them within the 6-month period before the timely charge regarding Garcia, Paez, and Murray, and the allegations are closely related. See Redd-I, 290 NLRB 1115 (1988).
The Respondent provides cable television and communications services at various locations throughout the United States. The six discriminatees worked as outside plant (OSP) technicians at the Respondent’s Bronx, New York facility. After an unsuccessful 2012 organizing campaign at the Bronx facility by the Communications Workers of America (CWA) for separate units of OSP technicians and field service (FS) technicians, the Respondent closely monitored its employees for signs of interest in unionization, as reflected by its repeated employee questioning and numerous internal communications.
In June 2013, Supervisor Ewan Isaacs questioned discriminatee Murray about his union activity. Isaacs telephoned Murray, asked where he was working, and drove out to meet him in the field. Isaacs asked Murray “what’s up with you and the union?” Isaacs then told Murray that Executive Vice President (VP) of Field Operations Barry Monopoli believed that Murray and discriminatee Paez were “behind all of this.” Murray, who was not an open union supporter or aware of organizing at the time, replied, “I don’t know what you’re talking about.”
The Respondent also tracked union sentiments expressed by OSP technicians at meetings held by Human Resources (HR) Director Hector Reyes and HR Manager Gina Grella. In a summary of a June 2013 meeting, Reyes and Grella noted that an employee stated that “the Union is gearing up” and that many wanted to sign authorization cards. In an email to Director of Area Technical Operations Robert Kennedy, Reyes summarized a September 2013 meeting in which employees—after expressing numerous workplace concerns—stated “that they are the reason the Union is not in the Bronx and they want to be recognized and appreciated for their efforts.” Reyes’ summary was circulated to multiple managers, including Senior VP of HR Paul Hilber, VP of Technical Operations Lou Riley, and Senior VP of Network Management Operations Pragash Pillai.
Some of the discriminatees openly questioned the Respondent’s changes to terms and conditions of employment. In late 2013 and early 2014,5 the Respondent announced that it would cease contributing to the Cash Balance Pension Plan and change the manner in which overtime would be calculated. Discriminatees Murray,
We find it unnecessary to pass on the General Counsel’s crossexception to the judge’s failure to find that the Respondent independently violated Sec. 8(a)(1) by involuntarily transferring Garcia, Murray, and Paez. An independent 8(a)(1) violation would be cumulative of the 8(a)(3) finding and would not materially affect the remedy.
5 All subsequent dates are in 2014 unless otherwise indicated.
365 NLRB No. 68
Paez, and Garcia discussed these changes among themselves. And at team meetings in March and April, Garcia questioned Executive VP of HR Sandy Kappell at length about the elimination of the pension plan benefit and Murray raised similar concerns to the OSP supervisors.
The Respondent responded to the threat of unionization with mandatory “union awareness” meetings for supervisory and managerial personnel, internal communications, and employee meetings where unionization was discussed. On March 12, Executive VP of Operations Rob Comstock sent an email to the Respondent’s official Kristin Dolan and Kappell entitled: “Union Activity—Update,” reporting, in relevant part, that:
[E]mployee mentions of reengaging the union were picked up by management this week and, this morning, “we need the IBEW now” was found written on a whiteboard in the break room. . . . My sense is that the threat is real, coming primarily from a portion of the OSP techs who are the most long tenured employees.
. . . Although concerned, Barry [Monopoli] does not feel a union vote would be successful at this point.
That same day, Director of Area Technical Operations Kennedy held a meeting with the OSP technicians in which he stated, “we need to discuss the elephant in the room” as he pointed to the whiteboard bearing prounion messages. Discriminatee Lajara admitted to writing “IBEW” on the whiteboard and explained that he was interested in organizing partly based on safety concerns regarding the assignment of electrical work that the OSP technicians were not certified to perform. Discriminatee Vetrano spoke up in support of Lajara. Kennedy stated that he would “look into” the matter and “develop a procedure,” and, as they were leaving the meeting, Kennedy asked discriminatee Murray, “What can I do better?” On March 31, Kennedy emailed VP of Technical Operations Riley regarding a meeting that he and HR Manager Grella held with four of the OSP technicians, including discriminatee Garcia, reporting in relevant part that an employee
stated that this group was instrumental in keeping the CWA out. They stuck out their necks to tell the F/S techs that the company offered a lot of benefits that are better than the CWA. Now we are taking these benefits away one at a time.
. . . .
Claimed that the group is ready to go to war. They said CWA is not for them but the group is ready to go across the river to Local 3 IBEW.
6 The discriminatees were all long-tenured employees.
Murray separately told his supervisor that he intended to contact IBEW Local 3.
In early April, the Respondent held numerous meetings and conference calls with the OSP supervisors regarding employees’ union activities. At an April 3 meeting, Kennedy asked the supervisors whether they had “heard anything or seen anything” and one supervisor reported that employee Nicasuis (Nick) Felix was “going around and asking guys if they want to join a union.” Later that same day, Executive VP of Field Operations Monopoli held a conference call regarding the Union. At a meeting the next morning led by Reyes, Grella, Kennedy, and Monopoli, the supervisors received an “awareness letter” describing the “dos and don’ts regarding the union” and a letter from Comstock urging employees not to sign authorization cards. The supervisors were instructed to distribute Comstock’s letter to employees and report their reactions. Grella, Reyes, Monopoli and other managers held followup meetings with the supervisors later in the day.
Also on April 4, Director of OSP Operations Alex Torres held a meeting with OSP supervisors in which he went through a list of the OSP technicians and asked the supervisors whether each employee would vote yes, no, or was on the fence regarding unionization. The sentiment of each employee was charted, using baseballthemed code words. The list reflects that the prounion employees outnumbered the procompany employees and employees who were on the fence, with 27 prounion employees (listed as Boston Red Sox) versus 9 procompany employees (listed as Yankees) and 16 on the fence employees (listed as Mets). All six discriminatees were identified as prounion/Boston Red Sox.
The Respondent similarly monitored its FS technicians for signs of interest in unionization. For example, in a November 2013 email...
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