J D(NY7-94
Woodbury, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
RAINBOW NEWS 12 and RAINBOW NETWORK
COMMUNICATIONS, INC., subsidiaries of
RAINBOW PROGRAMMING HOLDINGS CORP.;
RAINBOW PROGRAMMING HOLDINGS CORP.;
and CABLEVISION SYSTEMS CORP.
and Case Nos. 29-CA-15978
29-CA-16094
RADIO AND TELEVISION BROADCAST ENGINEERS
UNION LOCAL 1212, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO
Case No. 29-CA-15998
ANDY HERZMAN, An Individual
Matthew T. Miklave and Shanrn Chau,
Esqs., Brookiyn, NY, for the
General Counsel.
Richarrl H. Markowitz, Esq. (Markowitz
8 Richman, Esqs.), Philadelphia,
PA, for Local 1212.
William H. Englander, P.C., Mineola,
NY, for Respondents.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge. Pursuant to a charge and amended charges
filed in September and October,1991, in Case No. 29-CA-15978 by Radio and Television
Broadcast Engineers Union Local 1212, Intentional Brotherhood of Electrical Workers, AFL-
CIO (IBEW or Union), and another charge filed on November 7,1991, in Case No. 29-CA-
16094 by the Union, and pursuant to a charge filed on September 25,1991 by Andy Herzman,
An Individual, a consolidated complaint was issued by the National Labor Relations Board
against Rainbow News 12, a subsidiary of Rainbow Programming Holdings Corp. (News 12),
and Rainbow Network Communications, Inc., a subsidiary of Rainbow Programming Holdings
Corp. (RNC), Rainbow Programming Holdings Corp. (Rainbow), and Cablevision Systems Corp.
(Cablevision). The companies involved will sometimes be referred to collectively as Respondent,
as I find, infra, that they are a single employer.
The complaint, issued on January 30,1992, alleges essentially that following the
J D(NY7-94
The complaint, issued on January 30,1992, alleges essentially that following the
commencement of a campaign by IBEW, and by 2 other unions, AFTRA and CWA, to organize
certain employees of Respondent, the company engaged in a deliberate course of action to
defeat the organization attempts of the unions.
Specific alleged activities undertaken by Respondent to achieve its goal of remaining
5 nonunion fall into 2 main categories: the layoffs of 38 employees because of their union
activities, and statements to employees, in writing and orally. The alleged statements inGude
threats of layoff if the employees selected the IBEW as their bargaining representative;
promises of wage increases if the employees rejected the IBEW as their representative;
interrogations of employees about their membership and activities in the IBEW, and about the
10 union membership and activities of other employees; the solicitation of complaints and
grievances of employees, and impliedly promising that it would resolve such complaints and
grievances; the confiscation and destruction of union literature; threats to employees of
unspecified reprisals because they testified for the IBEW in a prior Board proceeding; the
disparate enforcement and application of a rule prohibiting the posting of literature on company
15 bulletin boards; threats of plant closure, more onerous working conditions, layoff and job loss if
they selected the IBEW; informing employees that the IBEW was to blame for the lack of a pay
raise; promise of benefits if the IBEW withdrew its representation petition or if the employees
abandoned the IBEW; the solicitation of an employee petition to get rid of the IBEW, and the
promise of a wage increase if they did so; the promise to terminate an unpopular supervisor if
20 the employees abandoned the IBEW; and informing employees that it would be futile for them to
select the IBEW as their bargaining representative.
The above alleged unfair labor practices, if proven, constitute violations of the National
Labor Relations Act.
25
Respondent's answer to the complaint denied the commission of the alleged unfair labor
practices, and specifically asserted that the layoffs of the employees were economically
motivated.
30 A hearing was held before me in Brooklyn, New York, and in Manhattan on 17 days in
November and December,1992.2
Upon the evidence in this proceeding, and my observation of the demeanor of the
witnesses, and after consideration of the briefs, I make the following:
35
Findings of Fact
I. Jurisdiction
40 All the entities named herein have their offices and places of business in Woodbury
New York. News 12 and RNC are both separate partnerships. News 12 operates a 24 hour per
day regional cable television news station, and RNC provides studio technical and other
American Federation of Radio and Television Artists, AFL-CIO, and the Communications
45 Workers of America, AFL-CIO. Respondents admit that those unions, and the IBEW, are labor
organizations within the meaning of Section 2(5) of the Act.
z'The voluminous record in this case comprises 2588 pages of hearing testimony,194
exhibits, and briefs, filed by all parties, which contained a total of 333 pages.
2
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technical support services for cable television operations, programs and systems including News
12. Rainbow, a corporation, manages and operates cable television operations, programs and
systems inGuding News 12 and RNC. Cablevision, a corporation, owns and operates a cable
television system.
Respondent admits that News 12 and RNC have derived annual gross revenues in
5 excess of $100,000, and that they annually purchased and received at the Woodbury facility,
products, goods and materials valued in excess of $50,000 directly from entities located outside
New York State. Respondent further admits that News 12 and RNC are employers engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
10 The complaint alleges, and Respondent denies, that News 12, RNC, Rainbow and
Cablevision constitute a single integrated business enterprise and a single employer.
Respondent further asserts that Rainbow and Cablevision are not proper parties to this
proceeding, and accordingly denies that they are engaged in interstate commerce. In this
connection it should be noted that Cablevision has been found by the Board to be an employer
15 engaged in commerce. 251 NLRB 1319,1320 (1980). It should be further noted that the
Decision and Direction of Election issued in this matter in Case No. 21-RC-18960 found that
News 12 and RNC constituted a single integrated enterprise and a "de facto" single employer of
the employees. The Employer did not file a request for review as to that issue.
20 Prior to 1989, RNC and News 12 were wholly owned by Rainbow, through Rainbow
Programming Enterprises. On about April 10,1989, the National Broadcasting Company (NBC)
acquired a 50% equity interest in RNC, News 12, and other Rainbow subsidiaries. Rainbow now
operates as the managing partner of RNC and News 12. In addition, RNC and News 12 are
"indirectly controlled" by Cablsvision through Rainbow.
25
The hierarchical interdependence of the companies is clearly seen in their structure and
reporting network. Sharon Patrick, the president and chief operating officer of Rainbow, is a
member of the Board of Directors of Cablevision. Gregg Burton, the vice president of operations
and technical services of Rainbow, reports to Patrick. Doug Keck, the vice president and general
30 manager of RNC, reports to Burton. Margaret Albergo was hired by Patrick as the Director of
Administration and operations for News 12.
Patrick Dolan, the News Director of News 12, is a member of the Board of Directors of
Cablevision.
35
NBC and Rainbow administer their financial arrangements through an NBGRainbow
Board, which consists of officials of NBC, Rainbow, and Cablevision. RNC provides supervisory
technical services to News 12 and other Cablevision companies at no charge for such services.
However, RNC's supervisory work for other non-Cablevision companies is billed at commercial
40 rates.
Regarding supervision, in some instances, Patrick signed Cablevision personnel action
forms, approving salary increases for News 12 employees. The interrelationship of the various
companies is clearly shown in the decision to downsize and lay off News 12 employees. Thus,
45 Rainbow president Patrick made the decision to downsize; she sought recommendations from
the managers of RNC and News 12 as to which employees to lay off. The recommendation to
downsize and lay off was made to Cablevision which approved the decisions. In addition,
Patrick's recommendation for a pay raise for News 12 employees was required to be approved
by Cablevision's director of human resources. Employment actions such as hires, promotions,
3
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salary changes, and leaves of absence were recorded on Cablevision's Personnel Action
Forms.
Regarding benefits, the News 12 employees are eligible to participate in the Cablevision
pension plan, which is offered to employees throughout the Cablevision "family of companies "
,
and are also covered by Cablevision's personal leave day and vacation policies. When an
5 employee moves from one Cablevision company to another, he does not lose his pension rights.
The Board applies four criteria in determining whether separate entities constitute a
single employer: (1) interrelation of operations (2) common management (3) centralized control
of labor relations and (4) common ownership or financial control. Hydrolines, Inc., 305 NLRB
10 416, 417 (1991). None of these criteria is controlling, nor do all need to be present to warrant a
finding of single employer status. "Single employer status depends on all the circumstances of
the case and is characterized by absence of an arm's length relationship found among
unintegrated companies." NLRB V. AI Bryant, Inc., 711 F.2d 543, 551 (3d Cir.1983).
15 It appears clear that, based on the above evidence, there is an extensive interrelation of
operations between the four companies. The nature of the operations of News 12, requiring the
technical services of RNC, the management of Rainbow and the
overall supervisory hierarchy exercised by Cablevision, are all necessary in order to operate a
24 hour a day television station.
20
Management at Cablevision, Rainbow, RNC and News 12 all interact to affect the status
of the News 12 employees. This is illustrated in the decisions to lay off and the decisions
conceming benefits. The evidence thus establishes that News 12, RNC, Rainbow and
Cablevision are a single integrated business eriterprise and a single employor. rlydrnlines,
25 supra.
II. The Alleged Unfair Labor Practices
30 A. Respondent's Survey of Employee Dissatisfaction
Rainbow President Patrick testified that a few months after her January,1990 arrival at
Rainbow, she became aware that employees were dissatisfied with working conditions at News
12, and authorized a study of the situation. During August,1990, a survey of 21 News 12
35 employees was conducted, during which employees' opinions were obtained conceming a wide
variety of work related issues, such as management's attitude toward employees; training and
promotional opportunities; and effectiveness of the organization. Employees could also appraise
their supervisors.
40 In a report on the results of the survey to Patrick, it was noted that employees
complained about their low salaries. Among the improvements suggested was that the salary
structure be reviewed, and that positions be graded similar to the RNC Pay Program. It was
noted thst action be taken quickly.
45 In October,1990, management proposed the fonnation of committees to discuss and
recommend solutions to the problems revealed by the survey. A proposed time table suggested
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that by late January,1991,3 final action would have been taken on the committees'
recommendations.
A general meeting was held in late November or early December, informing the
newsroom of the results of the survey. Committees, which inGuded employees; were then
fonned.
5
In February, two committees submitted their reports to Patrick. They were the (a) work
environment committee, which was concemed with the condition of equipment and materials
used by News 12 employees, and whose report addressed the issue of low pay; and the (b)
communications committee which dealt with the areas of communication, including
10 computerization, job performance and employee structure, and compensation. Suggestions for
improvement were made by both committees. Patrick then asked Norman Fein, the News
Director of News 12 to analyze the reports and submit a plan.
Thereafter, on March 14, Fein submitted a report to Patrick, entitled "Rainbow human
15 resources initiatives." The report categorized the areas of concem set forth in the 2 committee
reports into 20 "projects", including compensation, computerization, and RNC/News 12
personnel. Each project consisted of management representatives of News 12, and most of the
projects had representatives from Cablevision, Rainbow, and RNC, where appropriate.
20 The main thrust of the project conceming compensation was to obtain information from
comparable news organizations for comparison with News 12 salary structure; staffing levels
and experience; and industry downsizing, including layoffs. That project was not completed by
April 19, as suggested in the report. A compensation survey form was prepared for 36
supervisory and non supervisory positions at News 12, 5ut there was no evidence that the
25 survey was ever completed by the suggested date of April 17.
It should be noted that although the IBEW began its campaign at this point in News 12's
self appraisal, nevertheless, Respondent's work on the initiatives and projects, set forth above,
continued. They will be discussed, infra.
30
General Counsel argues that Respondent's actions thereafter, regarding initiatives and
layoffs, were a response to the union campaigns, while Respondent asserts that its actions
taken during the campaigns reflect programs set in motion prior to the advent of the IBEW, as
set forth above.
35 g, The Unions' Campaigns and Respondent's Reaction
Sometime prior to April 15, Hardie Mintzer, an assignment manager of News 12, was
informed by his supervisor, Fein, that the technical employees were attempting to form a union.
Mintzer was asked to remain alert and "see what's happening." Fein suggested that Mintzer
40 nl the next "pizza meeting," then scheduled for April 15. Those meetings were "gripe
sessions" at which different groups of employees from different departments, but with similar
interests discuss thir common problems over pizza. The meeting was canceled.
45 By letter dated April 29, addressed to Fein at News 12, the IBEW s attomey advised that
that union had obtained signed authorization cards from a majority of employees employed by
3All dates hereafter are in 1991, unless othermrise stated.
5
JD(NYy-7-94
News 12 in a unit consisting of photographers, editors, ENG cameramen, truck operators and
graphic artists, and requested a meeting to negotiate a collective-bargaining agreement.
On May 2, the IBEW fled a petition for representation with the Board, seeking the same
unit as above. A representation hearing was held in May and June at which the IBEW amended
its petition to include additional classifcations of News 12 employees, and certain categories of
5 RNC employees. Respondent's position was that all employees involved in news gathering and
news presentation, employed by News 12 and RNC, should be inGuded within the unit. On
March 20,1992, a Decision and Direction of Election was issued.4
The Communications Between Respondent and its Employees
10 y
Respondent's representatives communicated with employees by letter and orall .
Numerous conversations occurred between them in the Summer of 1991. General Counsel has
alleged that certain communications constitute unfair labor practices of various types.
Specifically, the complaint alleges that letters written by Fein and News 12 Director of
15 Administration Albergo violated the Act, and that additional violations of the Act were committed
in the course of conversations with employees by officials Albergo, Gregg Burton, Milan
Krainchich, Louis Giamanco, Glenn Fishkin and Edmund Bortell. A statement allegedly made by
Mark Ambrico was not alleged in the complaint, but it will be discussed also. Respondent finds
nothing improper in their content or implication. Because of their number, they will be set forth
20 by supervisor and discussed.
Credibility
With respect to credibility, the testimony of the employae witnesses and company
25 officials as to specific statements and conversations was sometimes sharply contradictory of
each other, and sometimes contained subtle differences. In determining credibility in such
instances, I have made inferences based upon what I believe occurred, taking into consideration
undisputed material set forth in Respondent's letters to employees, and the reasonable
likelihood that certain statements would have been made.
30
Generally speaking, as to all these allegations, it is a violation of Section 8(a)(1) of the
Act for an employer to interfere with, restrain, or coerce employees in the exercise of their rights
to organization. However, although employers need not remain silent in the face of a union
campaign, they may not, pursuant to Section 8(c) of the Act, threaten reprisals or promise
35 benefits.
On May 10, Fein sent a letter to all News 12 employees, which informed the workers that
the IBEW had petitioned for an election, and noted that in the past, Cablevision employees had
rejected representation by the IBEW. It further stated:
40
This is an especially bad time to be mistaken about unions.
Advertising revenues are seriously below expectations, expenses
are up, and as wo have said to many of you, we are trying to
45 4The Decision found appropriate a unit essentially of all news department employees of
News 12 engaged in the gathering, preparation, and presentation of news reports, and all studio
technicians, video engineers, and master control room technicians employed by Rainbow,
excluding on-air reporters.
6
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maintain and improve News 12 against a tide of red ink. In a
weakened economy, the television industry, including cable and
news organizations in particular, have been hard hit. Channel 21
and other Local 1212 companies have laid off staff. News 12 has
not yet laid off anyone.
That quoted paragraph has been alleged as an unlawful threat of layoff if the employees
selected the IBEW as their representative. Respondent asserts that it constitutes a statement of
"economic fact" and represents protected speech, arguing in its brief that, at most, it contains an
"implied caution against what might possibly add to economic burdens during a stressful
economic period." I reject that argument.
10
An employer may ... make a prediction as to the precise effects he
believes unionization will have on his company. In such case,
however, the prediction must be carefully phrased on the basis of
objective fact to convey an employers belief as to demonstrably
15 probable consequences beyond his control. NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969).
Fein clearly tied the union's advent to the possibility that layoffs of employees may take
place. Although he noted News 12's economic condition, he made a connection between the
20 employees' desire to be represented by a union with the possibility of their layoff. The letter
suggests that unionization, by itself, could lead to layoffs, without stating any objective fact
which would support that belief. I accordingly find that the letter constitutes an unlawful threat to
lay off employees.
25 On May 13, Margaret Albergo was appointed by Patrick as the News 12 Director of
Administration. She had been an employee of Cablevision, in various capacities, since 1976. In
the letter appointing her, Patrick announced that Albergo would be responsible for organizing
and implementing "the many improvement projects now underway at News 12 and those
expected in the near future."
30
General Counsel argues that Albergo was appointed to undermine and defeat the IBEW
effort to organize the employees.
On May 24, Albergo sent a letter to News 12 employees, in which she stated that she
35 was aware of certain complaints of the employees, and that low morale may have led them to
seek union representation. She asserted that the complaints or issues she has heard could be
corrected "by working together." She further stated that employers are not required to grant the
wage requests sought by a union in negotiations, adding that often, negotiations never end in a
contract, but just "drag on and on" and "while they do, there are some big obstacles to giving
40 benefits to union people that can easily be given to non-union people." The letter ended by
asking "if the union isn't the answer, what is? I would like to discuss my ideas with you. I also
look forward to discussing yours."
Thereafter, Albergo met with virtually all News 12 employees, either singly or in small
45 groups. At times, there was a line of people outside her office waiting to see her.
In another letter dated June 3, Albergo recounted an instance where during the course of
negotiations, employees affected by the situation "got tired of being frozen out of the progress
others made, so they filed a petition with the Labor Board and threw the union out." She
7
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thanked employees for talking to her "about what needs to be changed at News 12. I wish that
those who have not yet spoken to me will do so soon." Her letter concluded by saying that "we
need to keep our lines of communication open. Let's continue to talk."
Margaret Albergo
5 Albergo testified that upon her start of work for News 12, she was briefed by company
counsel William Englander on the conduct of the Respondent's campaign. She was made aware
of the company's obligation not to violate the Act by threatening employees or promising
benefits. She further stated that she had "many, many" conversations with News 12 employees
conceming their jobs, the problems they experienced, and the News 12 operation itself. She
10 stated that her purpose in meeting with employees was to get to understand the operation and
the employees, and to leam what some of the problems were, and also to leam the employees'
complaints. She stated that she was instructed to tell the employees that she could not raise the
subject of the union, but if the employees did so, she would listen to what they had to say.
15 Albergo stated that the most frequently discussed topic as to which employees had the
most questions concemed salaries and the "pay program." She further stated that "everyone"
was aware that president Patrick was working on a comparability study, and that she (Albergo)
told them that Respondent's finances probably would be able to support that program as a long
term goal, but that nothing could be done about it in the short term.
20
Generally, Albergo denied making any threats or promises, stating that she was aware
that to do so would constitute unfair labor practices.
Employee Arthur Daley testified that he had dozens af convsrsations with Respondent's
25 officials conceming the union. The frst, with Albergo, was in mid May, when he asked her why
she was appointed to News 12. She explained that she was there to leam why there was poor
morale among the employees, and to provide a sounding board for employees to speak about
improving woricing conditions. She also told Daley that she was there to "get to the bottom of the
union thing," to leam why matters got so bad that employees tumed to a union. Daley further
30 stated that Albergo told him that Cablevision Chairman Charles Dolan would shut News 12
before he would "let a union in." Daley testified that Albergo also asked him, in another
conversation, to have other employees speak with her about their problems at News 12, and
their reasons for seeking union representation. Daley agreed to do that.
35 A couple of weeks later, according to Daley, Albergo asked him what the "feeling" was
among certain groups of employees, such as photographers, camera people, graphic artists and
editors, conceming the union, and whether those groups supported the union. He reported that
the feeling was "50-50" - which he explained by saying that the employees were willing to listen
to the union and to Respondent.
40
Daley stated that in June, Albergo told him that salaries and working conditions would
improve once the "union problem" was resolved, adding that she should not be quoted since
that would give the appearance that she was trying to b;ibe employees to vote against it.
45 Daley testified on cross examination that during his conversations with Albergo
conceming his low salary, she told him that News 12 could not afford a pay raise, but that a long
term goal would be for the company to become profitable and make improvements. He
conceded that Albergo told him that the pending union petition made it "difficult" to discuss the
matter.
8
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Albergo testified that she had a personal relationship with Daley and his wife, who
worked as Albergo's secretary at Cablevision, and for Albergo in a Gothing business she
operated. Albergo admitted that Arthur Daley confided in her about personal matters. Albergo
denied telling Daley that Dolan said he would shut News 12 if a union was selected by the
employees. She had no reason to believe that the company would Gose. She also denied
5 asking Daley to have employees see her, or for their feelings conceming the union, since there
was no dearth of employees who approached her following her written invitations of May 24 and
June 3, who readily expressed their feelings concsming the union and the News 12 operation.
Nor did she tell Daley that things would get better once the union situation was resolved, since
she knew that News 12 was not financially able to "just make things better."
10
I credit Daley's version of these conversations. He testified in a forthright manner about
the personal relationship he had with his wife and Albergo. It is unlikely that he would testify
falsely about someone who employed his wife in a private venture, and with whom he shared
confidential concems. These conversations occurred in mid to late May, apparently prior to the
15 gme that Albergo sent her letters of May 24 and June 3, and prior to the time when she began
receiving visits from employees who were allegedly eager to share their feelings conceming the
union with her.
Albergo's conversations with Daley are alleged as unlawful interrogations and solicitation
20 of employee grievances. In order to prove a violation of the Act, interrogation must be found to
be "coercive" considering all the circumstances of the conversation. Rossmore House, 269
NLRB 1176 (1984); Sunnyvale Medical Center, 277 NLRB 1217 (1985). The issue is whether
the interrogation reasonably tends to restrain, coerce, or interfere with employees' rights
guaranteed by the Act, including the background, the nature of the information sought, the
25 identity of the questioner; and the place and metiod of questioning. Another televant factor is
whether the employee was an open and active union supporter. Kellwood Co., 299 NLRB 1026
(1990).
Albergo's interrogation of Daley consists of her asking him how others felt about the
30 union, and whether they supported the union. It is improper to inquire about the union
sentiments of others. This interrogation of an individual who was not an open union supporter
took place in the office of a high Respondent official. Although Daley may have been in
Albergo's office to discuss personal matters, in a friendly and low keyed manner, nevertheless,
Albergo's use of her Gose relationship with Daley was designed to discover the extent of union
35 organization among the employees and to impress upon them the seriousness of the situation.
Crnwn Cork & Sea/ Co., 308 NLRB 445, 452 (1992). In this regard, I accordingly find that
Albergo's interrogation of Daley violates Section 8(a)(1) of the Act. I also find that her request of
Daley to have other employees visit her to leam their reasons for seeking union representation
similarly violates the Act. In this regard, I fnd that Albergo's quotation of Dolan that he would
40 shut News 12 before he would let a union in constitutes an unlawful threat to Gose the facility in
the event of unionization. I do not fnd that Albergo soliGted Daley's grievances.
Employee Robert Johnson testified that in May or June, Albergo asked him to speak with
her in her office. After discussing their baGcgrounds, Albergo askcd her what he thought of "this
45 union thing." Johnson was uncomfortable with the question since he knew of the company's
position opposing the union, and he accordingly spoke of problems at News 12, inGuding his
dissatisfaction with management, and his low salary.
Albergo discussed Cablevision's history with unions, and noted that she was hired to
9
JD(N1-7-94
have the operation run smoothly, and "hopefully avoid the union situation." She told Johnson
that Dolan was "infuriated" with the management of News 12, and with the fact that employees
sought union representation.
Johnson further testified that about 1 week later, she called him into her office, and
asked what he thought of Fein's letter of May 10, set forth above. That question is alleged as an
5 unlawful interrogation. Johnson replied that he and others believed that the letter was heavy
handed and improper. Albergo answered that the union would not be good for him, adding that
she has been talking to "people" and formulating a plan to "make things right." Albergo also
showed him other letters and asked his opinion of them.
10 Albergo denied asking Johnson about the union, or asking what he thought of
Respondent's letters to employees.
I credit Johnson's version of these conversations. In her May 24 letter to employees ,
Albergo invited employees to discuss matters with her in her office. The letter suggested that
15 low morale may have driven employees to seek union representation, and that there may be an
altemative to a union shop. It is clear that Albergo's invitation was not simply to engage in idle
chat. She sought to leam why employees went to the union. Accordingly, it is likely, and I find
that Albergo asked Johnson what she thought of the "union thing," and his opinion of the Fein
letter, which I have found is itself an unlawful threat. Such a question constitutes unlawful
20 interrogation about Johnson's union sentiments.
The Allegedly Unlawful Memoranda
In addition to the lettsr of Moy '50, set forth above, which has been s!leged as a violstion,
25 3 other memoranda, issued at about this time by Albergo to all News 12 employees, are also so
alleged.
Albergo's letter of June 26 advised the employees that the representation hearing had
closed, and criticized the IBEW for publicly distributing a hearing exhibit containing salary
30 information. She stated: "What are they proving? Each individual knows what he/she's eaming
and the Company knows that something has to be done about it."
In her letter of July 10, Albergo noted that employees have asked the following questions
while awaiting the Board's Decision and Direction of Election. The letter stated, in relevant part:
35
Why won't the company make us an offer to keep the union out? I
asked legal counsel and I was told that it would be unlawful for the
company to do that... An employers promise or grant of benefts
violates Section 8(a)(1) and constitutes interterence if made for the
40 purpose of inducing employees to vote against the union.
As an example, the company would violate the law if it announced
a new improved wage and salary program at this time.
... What if the union no longer had any support and decided it did
not want to go through with the election? Suppose the union just
45 went away ... changes in benefts could be made. Also, if there is
no election, the News 12 and Studio Operations staff could ask
Local 1212 (or any other union) to retum at any time and petition
for an election.
10
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What if the union wins the election? ... No basic changes could be
made unless both the company and Local 1212 were in agreement
~ no agreement, no changes. Local 1212 would become the
exclusive bargaining representative so that there could be no
individual negotiations, arrangements or rewards without union
approval. Of course, employees not involved in the Labor Board
5 election would be free of those restrictions.
At the end of a year, there are procedures for you to seek an
election to get rid of the union but it's quite a hassle ...
10 The information in this letter should help each of us to make an
informed choice. As the decision whether to support Local 1212
impacts on all of us, we should not allow it to be made for us by
anyone else.
15 Both the above letters are alleged as unlawful promises of a wage increase if the
employees rejected the IBEW as their bargaining representative. The June 26 letters reference
that the employer knows something has to be done about its employees' wages
is a vague reference that Respondent was aware, as indeed it was, that employees had
complained about their low wages. As such, the statement was not a promise of benefit tied to
20 the union's defeat. The July 10 letter constituted a lawful explanation of an employers rights and
responsibilities once a union petition is filed. Fem Temace Lodge, 297 NLRB 8 (1989). It did not
promise that wage increases would be given, and even if such could be implied; it did not
connect such action to the defeat of the union. Sunnyvale Medical Clinic, 277 NLRB 1217,1223
(1985).
25 g
On July 25, Albsrgo sent a letter, noting that "serious financial difficulties are bein
experienced at most television news operations. These troubles have been brought on by
escalating costs and decreasing advertising revenues in the present economic environment."
The letter further states:
30
We have been impacted by the same problems. Up to now we had
hoped it would not be necessary to take any of the cost-cutting
actions other companies have taken. Regretfully, that no longer
holds.
35 Downsizing, reorganizing, and consolidating operations with
existing facilities, wherever located within the Cablevision family,
are steps we can take.
The letter further noted that various other networks and television stations had
40 announced plans to close certain city bureaus, reduce staff, eliminate jobs and reduce salaries.
Twenty one pages of news articles and press releases were attached to the letter.
That letter is alleged as an unlawful threat of job loss because employees sought union
representation.
45
Albergo's explanation of that letter was that it constituted notice to News 12 employees
that layoffs would occur for fnancial reasons, and to reassure advertisers and the news media
that News 12's response to economic pressures was the same as other news organizations.
11
JD(N1-7-94
In Sheraton Hotel WaterBury, 312 NLRB No. 61, JD at 68 (1993), the employer, prior to a
Board election, distributed flyers with the heading "is this union job security - don't let this
happen here" together with 2 newspaper articles detailing the Gosings of 2 area hotels for
financial reasons. The Board found that nothing in the artiGes suggested that unionization
played a part in the hotels' closings. Similarly, Albergo's letter and attachments do not suggest
that Respondent would lay off employees if the IBEW represented the employees. "Respondent
5 has the right to give employees information with respect to industry conditions, and was merely
stating 'economic reality' by informing employees of these events." EDP Medical Computer
Systems, 284 NLRB 1232,1264 (1987). I have found, infra, that one month prior to the issuance
of this letter, Respondent lawfully deGded to lay off employees. I accordingly find no violation in
Albergo's letter.
10
Albergo's Further Conversations with Employees
Employee Johnson further testified that at a meeting with Albergo, she showed him the
July 25 letter containing the newspaper articles, told him that Cablevision assembled a "team of
15 attomeys" and put an "unlimited" budget on making sure that the union was not successful; and
that "heads would roll." They also discussed various scenarios which would cause employees to
drop their interest in the IBEW, such as: terminate Fein, employees "drop" the petition and give
Respondent time to make a salary offer, and if the offer was not acceptable, "re-petition" the
union, and continue the union campaign as before.
20
Johnson replied that the employees had no confdence in management, and that since
nothing had been done since the time that Albergo was appointed, they did not believe that
anything positive would occur thereafter. This apparently referred to Johnson's awareness of
the committees formed in 1990 to suggest improvements in News 12 operations, and the fact
25 that he did not see all the improvements immediately. He said that he would tell the employees
of the offer.
Johnson testified on cross examination that he spoke with Albergo in the hope that she
would remedy the complaints he had. She told him that she was not permitted to bring up the
30 topic of unions, but that if he wanted to discuss it, that would be all right. He stated that, in an
attempt to "pressure" her, he told her that if she wanted to avoid the union she would have to
make changes quickly, and that if changes were not made, he would vote for the union. Albergo
replied that she was there to do something about these problems.
35 This conversation has been alleged as an unlawful promise to get rid of an unpopular
supervisor if the employees abandoned the IBEW s organizing drive, and the solicitation of an
employee petition to get rid of the IBEW, and a promise of a wage increase if they did so.
Albergo denied making the offer of terminating Fein, or a salary offer, as testified by
40 Johnson. She testified that she knew that she could not offer the employees anything, and that
such an offer would be ludicrous: the employees would be taking the entire risk simply on the
employers promise. Similarly, Albergo denied saying that heads would roll.
I credit Johnson's version of the conversation, but nevertheless find no violation. There
45 was an active give and take in this conversation, with Albergo properly prefacing the
conversation by telling Johnson that she could not discuss the union. Johnson apparently then
discussed his complaints, which inGuded pay and his dissatisfaction with Fein, which had been
the subject of his discussion with her in May or June, supra. McDonald Land 8 Mining, 301
NLRB 463 (1991). It is not clear who offered the scenario set forth above, but Johnson stated
12
JD(NY-7-94
that he sought to "pressure" Albergo into quickly making the changes he sought. Based upon
these factors, I cannot find that General Counsel has established that Albergo made any
improper promises or solicitations.
Employee Frederick Helm testifed that he spoke with Albergo in her office. Albergo told
him that management was aware of, and wanted to address the problems at News 12, such as
salary. Helm was unsure who brought up the topic of unions. Albergo told him that the employer
could not make any salary adjustments or other changes then because a petition was pending.
Albergo also told him that if a union election was conducted, the union would represent the
employees for 1 year, with no guarantee that agreement would be reached on a contract.
Albergo then explained that the employees could ask the union to withdraw its petition, and that
10 after doing so, the employer could deal with the employees, could correct the problems, and if
the employer did not make satisfactory changes, the employees could immediately "re-petition"
the union.
Helm further testified that Albergo asked about his career goals. He said that he would
15 like to produce commercials. Albergo then gave him the name of someone to call at
Cablevision's creative services department. This has been alleged as an unlawful solicitation of
grievances.
Albergo testified that Helm asked her how the collective-bargaining process worked. He
20 also asked what would happen if employees did not want the union. She told him to
communicate that to the union. Albergo denied saying that if the employees asked the union to
withdraw its petition, management and the employees could work things out. He asked whether
if the employees did so, could the employer do something about salaries and other problems.
Albergo explained that if the petition was removed, the employer "had a different circumstance
25 in which to deal," but in any event News 12 was financially unable to improve salaries at this
time - but hopefully it could do so in the future.
Albergo testified that Helm brought up the topic of a career move. Albergo told him to
check the job postings, and also gave him the names of people in the areas that he was
30 interested in.
I cannot find a violation in Albergo's conversation with Helm. Even accepting Helm's
version of the conversation, Albergo properly set forth Respondent's legal obligations once a
petition was filed. Although Albergo mentioned that employees could ask the union to withdraw
35 its petition, it is unclear as to who raised that question. Nevertheless, this comment came in the
context of Albergo's explanation of representation procedures. I also cannot fnd that Albergo s
inquiry to Helm as to his career goals and the suggestion of people to call who might assist him,
constituted an illegal solicitation of grievances. This was not a grievance that the employer
remedied. This was not a grievance at all. It was a proper inquiry as to Helm's future plans in the
40 industry. There is no prohibition against an employer official asking an employee a question
about his career interests. Albergo did nothing further than suggesting who he might call. She
did not take any action to grant him any benefits.
David Stringer, a satellite truck operator, testified that in the summer of 1991, Albergo
45 told him that she was appointed to work at News 12 to address some of the problems that had
"built up" over time. Albergo then asked if Stringer had any particular problems. Stringer
mentioned pay, and other matters. Albergo replied that the employer was working on a package
which would include a salary adjustment, but that she could not discuss it at that time because
of the "ongoing situation." In the past, Stringer had complained to management about his not
13
J D(NY7-94
being compensated for extra work he performed.
Albergo testified that Stringer initiated this conversation with her, in which he raised the
topic of pay. She did not ask him what his problems were. Albergo denied telling him that the
employer has a pay package which she could not discuss at that time. She stated that she told
him that she was listening to what he was saying, but that News 12 did not have the money, and
5 she could not get into a "detailed conversation" with him. I find, as alleged, that this constitutes
an unlawful promise of a wage increase. It constitutes a "teasing promise of an unspecified
wage increase in violation of Section 8(a)(1) of the Act." Family Foods, 300 NLRB 649, 662
(1990); Fontaine Body 8 Hoist Co., 302 NLRB 863, 869 (1991).
10 Stringer was subpoenaed by the IBEW to appear at the representation hearing. He told
Albergo that he had been subpoenaed, and had to go to the hearing. Albergo then told him that
in an automobile accident case, a party will ask a witness who is most favorable to its side to
attend the proceeding. Albergo denied making the car analogy. The complaint alleges that
Albergo thus threatened Stringer with unspecifed reprisals because he expected to testify for
15 the IBEW. I disagree. No threat was made. At most, this testimony proves that News 12 knew
that Stringer, who did not testify at the representation hearing, supported the IBEW s cause.
The Removal of Union Literature
20 Stringer also testified that while at the Respondent's facility, he saw Albergo removing a
union letter from a bulletin board. Albergo told Stringer then that the IBEW could not use
company resources. Stringer noted that the letter was on union letterhead. Albergo then said
that "you can't be doing this on company time," to which Stringer replied that "we have breaks."
25 The evidence establishes that notires of all kinds, inGuding notices of parties, vehicles
for sale, and company memos, have been posted on company bulletin boards.
This has been alleged as an unlawful, disparate enforcement and application of a rule
prohibiting the posting of union literature on company bulletin boards, while permitting the
30 posting of non-union literature.
Albergo denied removing any union literature from company bulletin boards, or speaking
to him about that topic. However, she did state that she once saw Stringer leave the copy
machine with a stack of papers bearing the union logo. She told him that he could not use the
35 company copy machine to copy union literature. He said "okay." Nothing further happened
regarding that inGdent.
I credit Albergo's denial that she removed a union notice from the bulletin board.
Stringer's testimony that Albergo told him that the union cannot use company resources, and
40 that he could not do this on company time does not logically seem to relats to Albergo's removal
of a union notice. No company resources were being used in the posting of the notice, and
Stringer did not testify that Albergo saw him doing anything on company time. Rather, Albergo's
testimony that she wamed Stringer not to use company resources in copying union literature
was more likely the reason for Albergo's comment. In addition, Stringer's admission that he was
45 told that he should not be doing something on company time probably refers to his copying the
union materials. Stringers admitted reply, that "we have breaks," confirms that this is the proper
interpretation to be given to this inGdent. Moreover, there has been substantial testimony that
union notices remained on bulletin boards without being removed. I accordingly find no merit to
this allegation.
14
JD(NY)-7-94
It was also admitted that Respondent attomey Charles Forma removed union letters from
employee mailboxes, and destroyed them. At that time, company memos and personal
messages had been permitted to be placed in employee mailboxes. Forma was immediately
reprimanded by higher management for this action.
5 This has been alleged as the disparate enforcement and application of a nrle prohibiting
the distribution of union
literature, by confscating and destroying pro-union literature. There had been no restriction
upon the use of the mailboxes prior to the union campaign, and Respondent's agent altered this
policy by the confscation of union literature from employee mailboxes. This conduct violated
10 employees' rights to obtain union-related information. Bon Marehe, 308 NLRB 184,199 (1992);
Filene's Basement Store,183, 209 (1990).
Albergo's Further Conversations with Employees
15
Thomas Rizzuto testifed that Albergo asked him to see her in her office in May 1991.
She raised the subject of unions by telling him that the union is not a "cure all" for all the
problems at News 12. She added that management knows that it made mistakes and was
willing to rectify them. Albergo then said that News 12 has a "package" for the employees, but
20 that she could not elaborate on it because to do so would violate the labor law. She mentioned
that prior to her arrival at News 12, the employer had begun to work on pay comparisons with
similar jobs in other markets, and a long range goal was to raise salaries. They then spoke
about other matters, and Rizzuto volunteered that he was subpoenaed by the union to attend
the representation hearing. Albergo then told him that he did not have to appear if he did not
25 want to.
Two weeks later, Rizzuto asked Albergo, why, if News 12 was willing to make changes in
their behalf, why was it opposed to
union representation or a contract. Albergo replied that managemerit was opposed to "third
30 party intervention."
Albergo testified that Rizzuto initiated conversations about the union, and often
complained to her about his low salary, and his belief that management would not remedy that
problem unless it was forced to do so by a union. Albergo told him that News 12 could not afford
35 to give him any salary increases at that time, but that a long range goal, when affordable, was to
improve salaries, and correct technical and space problems. She conceded that he asked that if
the employer would make these changes eventually, why not have a union contract to
memorialize those matters. Albergo replied that those matters had to be negotiated between the
union and management. Albergo specifically denied raising the subject of unions with Rizzuto.
40 Albergo denied telling Rizzuto that he did not have to attend the hearing.
I credit Rizzuto's testimony. Based upon Albergo's version of the conversation, it appears
likely that she would have responded more positively, as testifed by Rizzuto, to his challenge
that Respondent would take no action unless forced to do so by the IBEW. Albergo clearly
45 solicited Rizzuto's grievances and then impliedly promised to rectify them by telling him that the
employer wanted to resolve its mistakes, and that it has a "package." This constituted an implied
promise to rectify the grievances the employees had conceming their pay. Escada (USA), Inc.,
304 NLRB 845, 850 (1991). Albergo's statement conceming Rizzuto's compliance with the
15
JD(NY-7-94
subpoena has been alleged as a threat of unspecified reprisals because he was testifying for
the IBEW. This allegation has not been established. She was not urging that he disobey the
subpoena, and no further discussion was had on the matter.
Employee Richard Shepard testified that in the summer of 1991, Albergo asked him if he
wanted to talk to her. He agreed. Albergo asked him how things were going. He asked if she
5 meant the union situation. She said yes. Shepard told her that big changes were needed, and if
the employer did not do it, then the employees would have to accomplish it. He then mentioned
his complaints: salary, and the lack of well defined job descriptions. Albergo replied that a union
could not guarantee that his concems would be remedied, or that wages would rise. She added
that management was trying to "make things bette' and "try to smooth things out." She also
10 said that as long as a union "situation" is pending, the employer could not make any offers to
change the way things currently are. Shepard asked why he should believe that management is
trying to make things better. Albergo responded that he should give her a chance.
Albergo testified that Shepard came to see her. She does not recall if she asked him
15 how things were going. He raised the subjects of unions and pay. In response to his complaint
about low pay, Albergo told him that News 12 could not afford to do anything about salaries at
that time, but that salary improvement was a long range goal, and in any event, they could not
get into a detailed conversation about it.
20 This conversation is alleged as, and I find, that it constitutes improper interrogation.
Albergo invited Shepard into her offce in order to provide a forum to discuss the union. I do not
credit her testimony that he asked to see her. She clearly sought out employees shortly after her
hire in order to leam what problems they had, and to see what she could do about them. An
unlawful interrogation may also take place, as here, where Shepard raised the issue of the
25 union. He simply anticipated the purpose of the meeting. Albergo's question of him as to how
things were going merely provided Albergo's opening to discuss the union matter.
Employee James Bono and Nick Somma went to Albergo's office in earty June,1991 to
discuss their unhappiness with working conditions at News 12, and to attempt to remedy those
30 problems. They specifically told Albergo that salaries were a problem. Albergo replied that
Patrick was looking through the company for $1 million for raises for everyone across the board,
and that she was a person who could get things done. Albergo then told the men that she was
personally opposed to the union, and told them that one way to get rid of the union was to sign
a petition. She also told them that because Cablevision was an "entrepreneurial" company, if a
35 union came in, it would be very difficult for Dolan to begin new projects. Later that month,
Albergo told Bono that he could get rid of the union by signing a petition.
Albergo testified that Bono raised the issue of pay when she met with him and Somma.
She told them that was a long range goal, but that News 12 could not afford it. She also refused
40 to conduct a detailed conversation with him about it while the petition was pending. She denied
saying that Patrick was looking for $1 million, or suggesting that they sign a petition to get rid of
the union. However, she did concede that Bono told her that certain RNC employees were
opposed to the union, and asked her what they could do. She told them to communicate their
views to the union. Bono asked if those workers should sign a petition, and Albergo replied that
45 if that is the way they think they should do it, then they should do it that way, but otherwise she
did not know. She also denied making the remark about Dolan.
I credit Albergo's testimony. In this instance, Bono and Somma admittedly visited
Albergo, raised the issue of pay with her, and sought "remedies" for their low pay. There was
16
JD(Nl-7-94
nothing improper in Albergo telling them that she was opposed to the union. I cannot find that
Albergo told the men that Patrick was looking for $1 million for raises for everyone across the
board, as that fgure were implausible given Respondent's financial condition. I similarly find
improbable Albergo's alleged quote of Dolan that since Cablevision was an entrepreneurial
company, he would find it difficult to begin new projects. It is likely that the men engaged in a
vigorous discussion conceming the union, seeking ways in which Albergo could "remedy" the
5 problem of low salaries and woricing conditions, and I fnd that in this context the question of the
elimination of the union was discussed. I fnd that Albergo did not suggest or encourage that the
men file a decertification petition. Emst Home Centers, 308 NLRB 848 (1992). Providing
employees, in response to their questions, with general information conceming the filing of
petitions does not constitute a violation of the Act. Lee Lumber& Building Material, 306 NLRB
10 408, 410 (1992).
Employee Gerard Kaufold testifed that in June,1991, he met with Albergo in order to
seek her help in obtaining a position as an ENG microwave truck operator. She later arranged
that he obtain training for that position. As he left the meeting, Albergo asked him how he felt
15 about the union and inquired as to the attitude of the studio employees. Kaufold told her that he
had many things to consider and many questions needed answers. Albergo asked him what the
questions were, and offered to answer them. Kaufold answered vaguely that the employees had
not yet decided what to do. Albergo replied that unions are not as strong as they used to be,
and compared them to a disease that spreads from department to department, adding that
20 unions were the "last thing" Respondent's owner would "stand for." She concluded by saying
that it was time to make some changes if the lines of communication between management and
the studio technicians were opened.
Albergo denied asking him his attitude toward the union or the attitudes of others.
25 However, she conceded that he asked her what she personally thought about unions, and she
replied that she did not believe that unionization was in the best interest of the company or its
employees.
I credit Kaufold. It is unlikely that given Kaufold's hesitance about responding to
30 questions conceming the union, that he would have inquired about Albergo's personal feelings
about unions. Moreover, the company's attitude in opposition to the union campaign was well
known. He credibly testified that after he gave a vague answer to her first question, she pressed
him further. I accordingly find that Albergo's questioning of Kaufold constituted unlawful
interrogation conceming his and other's attitudes toward the union. However, I fnd that her
35 statement that unions were the last thing Respondent would stand for is too vague to constitute
a violation.
The Crew Meetings
40 In the summer of 1991, separate meetings were held with the 3 RNC crews. Albergo,
Gregg Burton, a vice president of Rainbow, and Douglas Keck, a vice president of RNC,
attended in behalf of management.
Employee Bono asked Burton why it took so long for management to visit the crew, and
45 inquired as to why it took the "union situation" for the company to show such an interest in them.
Employee Gerard Kaufold testified that Burton told the members of the B crew that he realized
that the crew had been neglected, but now he sought to focus attention on them, and that he
was listening now to any complaints they had.
17
JD(NY-7-94
Kaufold stated that Albergo said that Respondent was opposed to a union, and that the
workers should trust management, and give it a chance. She added that the company was
reviewing other news organizations in comparable markets with a view towards leaming how
their pay programs were structured, adding that Respondent was looking into altemate pay
programs for the crews. s According to Bono, Albergo said that if the editors and other groups
had not contacted the union, the employer would be able to give them raises, but because the
union was contacted, such raises could not be given since it was illegal to do so.
Kaufold further stated that employees then asked whether, if the workers believed that
they were "too far' into the union process, they could halt the union organizing drive. Albergo
replied that if they did not want the union they could sign a petition to get rid of it, and after
10 having reviewed what management had to offer, they could continue with the union effort.
At the C crew meeting, the same management representatives were present. Kaufold
testifed that Albergo was asked why Respondent was opposed to union representation of its
employees. He also stated that Albergo noted that she was not permitted to mention specific
5 items, but that Respondent was looking at sources to fund a new pay program, and that the
1 employees should give management an opportunity to make an offer to them. Employee
Stephen Rizza testified that Albergo said that Respondent understood that there were
"problems" but it could not do anything then because a petition had been fled. Rizza asked why
it took a "union threat" for the employer to realize that there was a problem. Albergo replied that
the union has been successful for him already because management was meeting with them
20 that day.
Employee Michael Messina testifed that at the meeting employees said that they
deserved higher pay, and they also spoke about poor working conditions, such as the
unavailability of overtime. Albergo said that "things" were not going to get better if the
25 employees "continued to petition for the union." She added that if the employees reject the
union, it would be illegal for her to say that matters would improve. Burton added that the
employees should not assume that things will get better if a union was involved. He mentioned
that Respondent's employees at Floral Park were involved in a union organizing drive, and when
30 the union lost the election, certain employees were promoted and received pay raises.
Employee Lisa Angelini testifed that Burton initiated a remark that he would like to make
an offer to the employees but that he could not do so until the "union thing" was over. Burton
asked for a "chance to make things right," stating that he knew there were problems with
salaries and equipment. Angelini stated that Albergo, without any questions being asked of her,
35 mentioned that if a union represents the employees, their salaries could go up, down or
sideways, there was no guarantee that their salaries would increase, and that if a union
represented the workers and management was "forced" to pay more, there could be layoffs.
She further said that the employees could ask the union to leave.
40 Employee Stephen Rizza testified that at the C crew meeting, offcial Keck said that
Dolan liked News 12, but that Cablevision subscribers would not cancel their subscriptions if
News 12 was taken off the air. It should be noted that Rizza's pre-trial affidavit contained no
mention of Dolan's liking News 12.
45
SKaufold's initial testimony that Albergo did not say anything regarding pay at this meeting
does not significantly affect his credibility.
18
JD(NY)-7-94
Employee Thomas Bowler testifed that Burton told the employees that he knew that
there were problems at News 12, and that he would like to address them and try to resolve
them, but since a union election was pending, he could not address any of those problems at
this time.
Certain employees were more vocal than others at the meeting. For example, employee
5 Bono was described as being very active and inquisitive, Rizza was described by employees as
very active, and "desperately" trying to leam why management was opposed to a union. He also
stood and waved his arms at one point. In fact, employer official Giamanco testified that after
Albergo or Burton told the employees that News 12 had no money for raises, Rizza stated that
the salaries are terrible, he did not believe that the employer would ever give more money, and
10 the employer thus left the employees with "no choice."
Albergo testified that at the meetings she told the crew members that she was News 12's
representative who stood ready to answer any questions about News 12. Essentially she denied
raising the topic of union or pay, stating that employees raised those issues. She further testified
15 that Kaufold asked her how to proceed if the employees believed that they were no longer
interested in it. She answered that she did not know the procedure, but that they should
communicate their feelings to the union. She denied saying that employees could petition to get
rid of the union. In this connection it should be noted that employer official Keck testified that
Albergo said that since a petition brought in a union, a petition could remove it, but that was up
to the employees, if they wanted to take such action. She told the employees that management
20 recognized that some job classifications were below "market value", and that Patrick was doing
a comparability study, but that News 12 did not have the financial ability to implement such a
plan, which was a long term goal. She also told them that since a petition was pending, she
could not discuss it further. She further denied mentioning layoffs or the possibility thereof.
25 gurton testified that the purpose of the uew meetings was to answer their questions
conceming pay. In response to a question about pay, he told the assembled crew employees
that manapement was aware that there were problems with pay and equipment, and that those
problems were being "worked on." He asked the workers to be patient, and urged them to trust
him, and assured them that things would get better. Burton further told them that since a union
30 petition had been filed, he could not give specific details about what the company's plans were ,
if any, because he was not permitted to "influence" the employees either way. Nevertheless, he
told them that, in a prior union effort at the RNC's location at Floral Park, prior to that petition
having been filed, RNC had been planning to implement a new pay program, which was then
frozen. He further told them that after the union lost the Floral Park election, the pay program
35 was implemented, and since then the employees had been "very happy." He added that what
occurred in Floral Park is no "guarantee" of what could happen at News 12.
Keck testified that he told the employees at one crew meeting that RNC was working to
resolve the problems in the News 12 operation, but that there were then no plans to implement
40 a pay program. Keck denied making the comment attributed to him by Rizza conceming Dolan
liking News 12.
Bortell testifed that Keck mentioned that News 12 was in bad financial shape, that
Albergo explained how the union election process worked, and that employees asked if they
45 uld receive a raise now. Albergo replied that due to the election petition, News 12 could not
give raises that were "unusually higher" than previously given, and even if there was no pending
petition, News 12 was financially unable to give any raises. At another crew meeting, Burton and
Albergo told employees that Respondent was in poor financial condition. He denied that Albergo
19
JD(N1-7-94
suggested that the employees might get rid of the union by signing a petition. He added that
Albergo repeated her statement regarding the granting of raises. Bortell denied that Albergo
said at either meeting that if certain employees had not contacted the union, the employer would
be able to give raises.
Louis Giamanco, the operations coordinator for RNC testifed that at one crew meeting,
5 an employee asked if the union could obtain higher salaries for the workers. Albergo replied that
the employer and the union would negotiate, and wages and benefts could go up, down or
sideways. An employee then asked why the company could not give raises now. Albergo or
Burton replied that News 12 does not have money for raises, and that it would be against the
law at that time to make any offers.
10 The complaint alleges that at the crew meetings, Respondent unlawfully solicited
grievances and promised wage raises.
Absent a previous practice of doing so, the solicitation of
15 grievances during an organizational campaign accompanied by a
promise expressed or implied to remedy such grievances violates
the Act. It is the promise, expressed or implied, to remedy the
grievances that constitutes the essence of the violation. Solicitation
of grievances in the midst of a union campaign inherently
constitutes an implied promise to remedy the grievances. The fact
20 that an employer's representative does not make a commitment to
specifically take corrective action does not abrogate the
anticipation of improved conditions expectable for the employees
involved. Columbus Mills, 303 NLRB 223, 227 (1991)(citations
25 omitted)
I fnd that, even based upon the testimony of Respondent's offcials, violations of the Act
have been established. First the meetings were organized allegedly in order to answer their
employees' questions conceming pay. Even if that were the sole purpose, the union campaign
was raised and discussed, and the issue of pay was discussed in that context. Albergo's
30 admitted remarks to the employees that management knew that certain salaries were below
"market", and that Respondent's president was doing a comparability study, but could not afford
to implement it at that time, combined with her refusal to discuss it further because of the
pending petition, held out a tantalizing reward to employees. Family Foods, supra. Although
35 Albergo did not specifically promise a pay raise, the promise wasimplicit in her comments to the
employees. In addition, although not specifically tied to the union s defeat in the election, the
connection was implicit in her mention of the study, and accordingly constituted a promise of
benefits.
Promises of benefts by an employer, during an organizational campaign, have a
40 coercive effect, because employees are not likely to miss the inference that the source of
benefts presently conferred is also the source from which future benefits must flow, that may
dry up if not obliged. NLRB v. Exchange.Parts Co., 375 U.S. 405, 409 (1964). The promise of
benefts need not be specifc in nature or as to the time of its implementation, and need not be
expressly conditioned on abandonment of union support. A promise that the employer would
45 someday better itself and offer the employees more, was an unlawful promise ot future benefits.
Permanent Label Corp., 248 NLRB 118,131 (1980).
In DTR Industries, 311 NLRB No. 82, (1993), a case similar factually to this one, the
20
JD(N1-7-94
employer did a comparative wage survey and determined that the salaries of its employees
were not competitive. Employees then complained about their wages, and a new wage scale
was announced and implemented. The union then filed a petition. The employer sent a letter to
the employees, which, while reciting that it could not lawfully making changes or promises
regarding benefits, stated that "we have started to address your concems," and that
management wanted to grow with the employees, and pledged to continue listening to their
5 concems and responding as completely and as quickly as it could. The Board found that the
letter implicitly promised benefts, including improved wages, if the union lost the election.
The Respondent also answered unlawfully solicited employee
wage complaints by telling employees that raises were arranged as
10 a result of its wage survey, but could not be given because the
Union's campaign might make such increases appear to be bribed.
It then granted substantial wage increases to [supervisory] group
leaders. To the extent that the Respondent's remarks during the
campaign created the impression that employees might have
15 received wage increases but for the Union's presence on the
scene, they constituted a violation of Section 8(a)(1) by placing
blame on the Union for its withholding those increases. DTR, slip
op at 5.
Similarly, in the instant case, Albergo's admitted announcement to employees at the
20 meetings that Respondent was aware that certain salaries were below "market value," and a
comparability study was being done, but that the employer could not discuss such a program
because of the pendency of the union's petition, constituted an unlawful implicit promise of
benefits.
25 Similarly, Burton's admitted remarks that management was aware of problems with pay,
which were "being worked on", and his assurance to employees that things would "get better'
also unlawfully impliedly promised improvements. The fact that Burton refused to give specifcs
about the company's plans because of the petition does not render his remarks lawful, since his
recitation of what had happened at Floral Park could be viewed by the employees here of an
30 example of what could be expected if they rejected the union. Thus, although he told them that
what had happened at Floral Park was no "guarantee" of what could happen here, he noted that
the Floral Park employees were "very happy" with their pay raises following the union's election
loss. Thus, the typical employee, although being assured that what had occurred at Floral Park
was not a "guarantee" of what could happen here, could nevertheless assume that although not
35 a guarantee, similar pay raises were likely to occur here.
I further find that the crew meetings were held for the purpose of soliciting grievances
from the employees. Respondent argues that it had meetings with employees prior to the advent
of the IBEW at which similar matters were discussed. For example, RNC official Keck testified
40 that in January,1991, meetings were held to address rumors among employees that there
would be a pay raise for the studio crews who had been transferred, in the summer or fall,1990,
from the Cablevision to the RNC payroll. At the meeting, the employees were told that News 12
could not afford to give a pay raise. Further crew meetings were held in March,1991, at which
the employees expressed disappointment that the RNC employees were not inGuded in the
45 surveys or committee reports concemed with improving News 12. At the meetings, the
employees inquired as to why they were not included, and they also discussed crew schedules.
Respondent thus contends that its meetings with employees held in the summer of 1991
21
JD(N17-7-94
are simply a continuation of the types of meetings held previously, and accordingly no violation
may be found, even assuming grievances were solicited at those later meetings.
I disagree. Prior to the advent of the IBEW there had been no formal, organized sessions
of the type, addressed by top management offcials, as occurred prior thereto. The meetings
held in January and March,1991 were conducted by immediate supervisors to answer their
5 employees' questions about matters of immediate concem to them, including their transfer from
one payroll to another and its effect on their salaries. Similarly, the March,1991 meeting was
held to explain why employees were not inGuded in the survey.
In contrast, I find that the purpose of the summer,1991 meetings was to leam why the
10 workers wanted union representation, and to give them an opportunity to voice their complaints
so that Respondent could assure them that they would be rectifed. These meetings were held
in a formal, organized manner with top offcials of Respondent, some of whom had never met
those workers. A broad range of questions was invited and answered.
The Board has held that in the absence of evidence of an
15 established program of grievance meetings, the holding of
meetings during a union campaign at which employees are
encouraged to air grievances constitutes solicitation of grievances
and an implied promise of corrective action if employees reject the
union, thereby violating Section 8(a)(1). New Life Bakery, 301
20 NLRB 421, 427 (1991).
In this connection, with respect to the solicitation of grievances, Respondent further
argues that individual employees' grievances had been solicited at least since August,1990,
when the employee survey was distributed. It reasons that, assuming grievances were solicited
25 after the advent of the IBEW, such solicitation constituted a permissible continuation of its prior
practice. I do not agree. The survey was sent to a small group of 21 employees in a formal way.
After the survey, an organization was established whereby results of the survey were made
known, committees formed, meetings held, top management would be involved,
recommendations made, and remedies announced. In contrast, in the summer of 1991, all
30 employees were encouraged to meet with Albergo and other officials of management, and in
fact Albergo met with virtually all of them; the workers were questioned in individual meetings
with top management officials about their problems and concems in the context of discussions
conceming the union. This represents a vast difference in the way that grievances were
solicited, and in the perception of the employees toward the way in which their complaints would
35 be treated.
I accordingly find and conclude that at the crew meetings, Respondent unlawfully
promised its employees wage increases and solicited their grievances in violation of Section
40 8(a)(1) of the Act.
Gregg Burton
Burton is the vice president of operations and technical services for Rainbow.
45 Employee Frederick Helm testifed that he was asked to meet with Burton. At the
meeting, Burton explained that he leamed that no one knew who he was, and he decided to
meet with all News 12 employees and leam about the problems of the company. Burton added
that the employer is "in a bad economy," advertising revenues are down and News 12 is losing
22
JD(N1'7-94
money. Burton showed him the news articles which were attached to Albergo's July 25 letter
which mentioned the poor economic situation in the television news industry and layoffs at
certain companies. Burton said that he was aware that salaries were a problem, but due to the
recession and other economic conditions, News 12 was losing money and could only give salary
raises if employees were laid off. Burton asked his opinion of that approach, and Helm agreed
with it.
5
During the conversation, the issue of the union was raised. Burton asked where Helm
"stood." Helm replied that he was opposed to the union, and that the company should be given
an opportunity to resolve the problems, and also told Burton, however, that since he mentioned
layoffs, perhaps the union was needed. Burton then told Helm to "get off the fence," adding that
10 there are many vocal pro-union employees who would be deciding "ou' fate.
Employee Bowler also met with Burton pursuant to his direction. Burton showed him the
newspaper articles, telling him that he wanted him to know what the current conditions were in
the television industry. Burton then asked him if he attended the union meeting at a hotel that
week. Bowler said he had. Burton then asked him what the "mood" was where he worked.
15 Bowler replied that he did not know.
Burton admitted having individual meetings with employees in about late July,1991. He
denied that employees were required to attend the meetings. He stated that supervisor Milan
Krainchich asked employees "if they were interested" in meeting him, or had any questions.
20 Some declined the invitation.
Burton testified that he held such meetings to address questions raised regarding pay
and the union election process, and at the meetings he discussed those issues. He asked them,
as an "icebreaker," how is the morale; how is the mood; how are you feeling. Employees then
25 told him that they were unhappy with their salary. When asked about the union petition, he told
them that a petition got the union in, and a petition could remove it. When asked about salaries,
he said that News 12 could not afford to pay more. Burton denied saying that layoffs would be
needed if salaries were to be raised, but conceded mentioning layoffs, and referring to the July
25 letter containing the newspaper articles. He testified that he told employees to become well
30 infonned, and to attend union meetings if they wished.
Burton denied asking employees where they stood, or telling them specifically to get off
the fence. Later, he admitted possibly telling them, in effect, to get off the fence because of the
importance of the matter, and conceded telling them something to the effect that they should not
35 let others determine their fate.
I credit the testimony of Helm and Bowler. It is likely, particularly considering Burton's
admitted testimony that he advised employees not to let others decide their fate, and in effect to
get off the fence, that he would have asked Helm where he "stood" as a preliminary question. It
40 ;s pmbable, that when hearing Helm's contradictory positions conceming the union, Burton
would have urged him to decide the union issue for himself.
I accordingly find that Burton unlawfully interrogated Helm conceming his support of the
union. I also find that Burton's questions to Bowler as to whether he attended the union meeting,
45 and his inquiry about the "mood" were clear, impermissible interrogations conceming his union
activities and the union sympathies of others. Burton's question of Bowler as to how the "mood"
was, after his inquiry about whether Bowler attended the union meeting, was a clear reference
to other employees' attitudes conceming the union situation. It would be unusual to ask "how is
23
JD(N1-7-94
the mood" as an "icebreaker" comment to begin a conversation, as Burton testified.
Milan Krainchich
Krainchich is the director of studio operations for RNC. He supervises the studio staff as
to repair and maintenance, and schedules the crew.
5 Employee Jamison testified that he was in Krainchich's offce discussing his upcoming
wage review, when Krainchich showed him a copy of Fein's May 10 letter, set forth above, which
stated that the IBEW filed a petition, referred to News 12's poor financial condition, and noted
that "News 12 has not yet laid off anyone." Krainchich asked Jamison how he felt about the
letter. Jamison replied that he was in favor of the union. Krainchich then told him that Charles
10 Dolan hates Krainchich, and was "out to get me." -
Krainchich conceded asking employees if they received management letters, and if they
read them, and agreed that Jamison was in his offce discussing his work, but denied the rest of
15 the alleged conversation.
Employee Kaufold also testifed that Krainchich asked him to look at the May 10 letter,
and also asked what Kaufold thought of the letter. Kaufold replied that he did not have
infonnation to make a decision. Krainchich denied asking for Kaufold's feelings conceming the
20 letter.
Lisa Angelini testified that during a salary review conducted by Krainchich, she asked
him why she received only the standard 6o raise, since her evaluation was excellent. Krainchich
replied that he could only give her that amount until the "union thing is over," and that her raise
was that amount because of the union situation.
25
Angelini testified that on separate occasions, Krainchich showed her copies of Albergo's
letters of May 24 and June 26, set forth above, and asked her what she thought about them.
Angelini was noncommittal.
30 Krainchich admitted speaking to Angelini conceming her salary review, but denied any
discussion of the union at that time. He also denied asking her what she thought of the union
letters.
Employee Michael Messina testified that the IBEW was contacted because the
35 Respondent did not seem interested in its employees. He stated that, during a conversation with
Krainchich, he was interested in hearing about what occurred at Floral Park because it was
similar to the current situation at News 12. A conversation then began conceming Floral Park.
Krainchich told him that he would not say whether he was for or against the union in 1984, but
that certain employees were promoted after the union was defeated. He added that, in his
40 opinion, things would improve if the union was defeated now.
Krainchich testified that Messina asked him about the 1984 election, and he replied that
he voted, but would not reveal how he voted. Krainchich conceded saying that the empioyer
believed that "it would be better without the union," but denied saying that things would be better
45 if the employees rejected the union.
Thomas Bowler testifed that Krainchich, who was present with Bortell and Keck, told him
that at the time of the 1984 election they let people know where they stood on the union issue,
24
JD(Nl-7-94
and that people should let it be known where they stood. Krainchich added that he could see
how "we have done" since then. Krainchich denied this conversation, saying that he would not
have made that last comment since he resigned from the employer in 1984. However, he
conceded on cross examination that he remained at Floral Park for 6 months after the election,
and received a substantial raise before leaving.
5 Employee Jonathan Smilowitz became employed on June 3. He testifed that in early
August, Krainchich asked him how he and others felt about the union, and also asked him
whether he had any problems that he wished to discuss. Smilowitz replied that he did not know
how other employees felt about the union and had no problems.
10 Krainchich denied asking Smilowitz how he or others felt about the union. He conceded
asking if he had any problems since Smilowitz was a new employee, and he was concemed
about his training.
I credit the testimony of Jamison and Kaufold that Krainchich showed them Fein's letter
15 of May 10. I have already found that that letter unlawfully threatened layoffs. Krainchich's inquiry
of them as to what they thought of the letter constitutes improper interrogation.
I also credit Angelini's testimony conceming her raise. "An employer's legal duty during a
pending representational campaign is to proceed with the granting of benefits in the normal
20 urse of business as if the union were not on the scene. DTR Industries, 311 No. 82, slip op at
4 (1993). Although Angelini may have, in fact, received the proper amount of salary increase, by
telling her that her raise would be limited to 6% until the union matter was resolved, and that she
received that amount because of the union, Krainchich improperly infonned her that Respondent
was withholding a larger increase because of the union. 299 Lincoln Steet, Inc., 292 NLRB 172,
25 174 (1988).
Regarding the conversation with Messina, even accepting Messina's testimony, no
violation is established. I find, as testified by Krainchich, that Messina asked him about the Floral
Park election. Messina's testimony that he was eager to hear about it supports a finding that
30 Messina inquired about it. Krainchich's factual statement that employees were promoted after
the election, and his opinion that "things" would improve if the union was defeated now, are too
vague to support a finding of an improper promise of benefts. I make the same conclusion
conceming Bowlers testimony.
35 i credit Smilowitz' testimony that Krainchich asked him how he and others felt about the
union. I have already found that Krainchich asked others similar questions, and it is likely that he
asked this of Smilowitz as well. His further inquiry made at the same time, as to whether
Smilowitz had any problems constituted an unlawful solicitation of grievances. Family Foods,
300 NLRB 649, 663 (1990).
40
Louis Giamanco
Giamanco is the operations coordinator for RNC, who schedules the studio crews and
assists in News 12 projects.
Employee James Bono testifed that in late June,1991, he was present with other B
45
crew employees in the crew lounge when Giamanco entered and they discussed salary and pay
increases. Bono did not recall who brought up the subject of raises. Giamanco told the workers
that once the union issue was settled, "it looks as though" everyone will be receiving raises.
25
JD(NY}-7-94
Employee Michael Messina, a member of the C crew, testifed that on one occasion, Giamanco
"peeked" into the lounge, said that if all this union talk stops and you say no, things are going to
get better, and then left.
Employee Jamison testified that during a conversation conceming the union between
him and other employees in early July,1991, employee Steve Haldky mentioned that he was
5 told by another employee that an employer representative asked that everyone sign a petition to
reject the union. Jamison stated that Giamanco walked by at that point and told him that they
better "take that offer' because "it's not going to get any better than that."
Employee Andy Herzman testified that in the summer of 1991, without any preliminary
statement, Giamanco told him that Krainchich told him that when the "union thing is over' they
10 could expect raises. Giamanco told him to keep this information confidential. Herzman stated
that Giamanco knew that he was a union supporter.
Giamanco denied making the statements attributed to him by Bono and Messina. He
15 also denied telling Jamison and others to accept the offer of petitioning to reject the union. He
knew of no offers by the employer. Giamanco also denied telling Herzman that he could expect
a raise. He knew that He2man was a union supporter and tried to avoid conversations with him
conceming the union. He denied that Krainchich told him that when the union matter is over,
employees could expect raises.
20 I credit the testimony of Bono, Messina and Herzman. Respondent argues that Bono and
Messina should not be credited because their versions of the same incident are different.
However, although both incidents occurred in late June, it appears that Giamanco spoke to
them at separate times. Thus, Bono was present with other B crew members when Giamanco
spoke to them at length, and Messina, a C crcw member, was present when Giamanco made a
25 comment into the room and then left. Neither testified that the other was present when
Giamanco made his comments. Giamanco's comments to them are promises of benefits. I
similarly find that Herzman's testimony, which I credit, is an unlawful promise of benefits.
Although Giamanco testified that he avoided conversations with Herzman because he was a
union supporter, he nevertheless had similar conversations with Bono, Messina and groups of
30 employees with them.
I cannot credit Jamison's testimony conceming Giamanco's comment regarding an
alleged "offer." First, this testimony quotes remarks by employee Haldky who did not testify, that
an unnamed employer representative assertedly told an unnamed employee that everyone
35 should sign a petition to reject the union. Giamanco was not even part of that triple hearsay
conversation, yet was quoted by Jamison as saying that employees should accept that offer.
This testimony is simply too unreliable to credit, nor does Giamanco's response to Haldky's
comment logically follow.
40 Gienn Fishkin
Glenn Fishkin was the senior executive producer of News 12.
Employee Richard Shepard testified that in the summer of 1991, Fishkin asked him how
45 he felt about what was happening with the union. Shepard replied that he was dissatisfied with
his treatment, and that there was a need for change, although he was not certain that a union
was the solution. Fishkin replied that a union could not guarantee a change, and that it would be
easier if management and the employees work things out without a union or third party. This
26
JD(NY)-7-94
conversation is alleged as an unlawful interrogation.
Fishkin denied asking Shepard how he felt about the union, testifying that he was aware
that such a question would be improper.
I credit Shepard. His response to the question of Fishkin, a top official of News 12, is
evidence that the question was asked. Shepard gave a noncommittal answer, which might be
expected of someone in his position being asked a question by a high employer official. The
question itself was an improper interrogation about Shepard's feelings conceming the union
situation.
10 Edmund Bortell
Bortell, the operations manager for RNC, was employed by RNC at its Floral Park
location. Thereafter, in April,1991, he was sent to the RNC facility in Woodbury in order to
improve its technical operation.
15 RNC employee Frederick Helm testified that he spoke often with Bortell about the union.
On one occasion, Bortell raised the subject of unions and told him that "the same thing"
happened in Floral Park, and when the union lost the election, all the employees received a
"substantial" raise.6 This is alleged as an unlawful promise of a wage increase if the employees
rejected the IBEW. In fact, Bortell had voted in that 1984 election, and testified that he received
20 a "substantial" raise. On another occasion, Helm complained to Bortell that his 12% raise was
not sufficient. Bortell replied that as he made more money, the per centage increase would
serve to increase his salary at a greater rate. Bortell also told him that if a union was elected, the
wage raises would be negotiated "as a group," and would not be based upon the individual merit
25 of the employee.
Helm further testifed that on another occasion, employee Lisa Angelini complained that
Respondent required her to obtain replacement workers so that her job would be covered during
her wedding and honeymoon. In a voice loud enough for Bortell to hear, Angelini added that if
Respondent was a union company, this issue would have been handled better. Bortell then
30 ispered to Helm that Charles Dolan would never let a union into News 12, and that Dolan
would close it before letting a union in. This is alleged as an unlawful threat of plant closure.
Bortell denied initiating a conversation with anyone conceming the union election in
Floral Park. He specifically denied telling anyone that Dolan would shut the operation if the
35 union was elected. He explained that he did not know Dolan, and did not know what he would
do if a union was elected. He also denied telling anyone that wages would be negotiated in a
group, rather than individually if the union was elected. He stated that he did not know how a
union negotiates a contract.
40 Employee Michael Jamison testifed that Bortell approached him as he was working and
asked him why he was "bucking the system?" Jamison asked for an explanation and Bortell
replied that if a union was elected, such things as salaries would not change, and there would
be no difference in the operation with or without a union, adding that perhaps Jamison would be
better off without a union. Jamison then cursed at Bortell and told him to mind his own business.
45
sRespondent attacks Helm's credibility on the ground that this incident was not contained in
his pre-trial affidavit. I reject this argument. Helm testifed in a wholly credible manner.
27
JD(N1-7-94
This is alleged as an unlawful statement that it would be futile for the employees to select the
IBEW as their representative.
Bortell denied speaking about the union with Jamison, but conceded that when he
suggested a technical improvement, Jamison told him to mind his own business, and was
abusive to Bortell.
5 I credit Jamison. It would be highly unusual for an employee to tell his supervisor not to
bother him when the supervisor recommended a work related change. I accordingly find that
Bortell violated the Act as alleged.
Employee Lisa Angelini testified that she spoke with Bortell about the union on about 4
10 osions. Angelini was not specifc, stating that Bortell mentioned negative features about the
union, and spoke positively about Respondent. Angelini told him that she was not interested in
speaking about the union. On another occasion, Bortell brought up the topic of the union, saying
that a similar event occurred in Floral Park, and when the employees voted against the union,
15 they all received large raises. She stated that in June, Bortell told her that if the union was
selected, there would be many changes, but that would not occur since Dolan would shut the
company before the union came in. Finally, Bortell told her in late July,1991, just prior to her
leaving for a honeymoon, that if the union came in many things would change, and her job
would be "greatly affected." He then told her to think about it, and to let her co-workers know
20 that the union is not good.
These statements are alleged as unlawful statements that it would be futile for
employees to select the IBEW as their representative; unlawful threats of plant closure; and the
imposition of more onerous working conditions.
25 Bortell testified that Angelini asked him what had happened in the Floral Park union
election, and that he told her that after the union vote, he received a raise 6 months later ,
adding that the current situation is a different place, company and operation with different
financial problems, and that the 2 union incidents could not be compared. He denied telling
Angelini that unions were not good, or asking her to tell other employees that. He denied the
30 statements attributed to him prior to her leaving for her honeymoon. He explained that she
would be away for 2 weeks, and he therefore had no reason to believe that there would be a
vote, and that the union would win and make changes in that period of time.
It should be noted that Bortell's pre-trial affidavit stated that he never spoke to Angelini
35 about any aspect of the union campaign. In contrast, he testified that Angelini raised the
question of what had happened in the 1984 election.
Employee Thomas Bowler testified that in earty July,1991, Bortell told him that he had to
let people know where he stood because things "are going to start happening around here."
40
Employee Jonathan Smilowitz testified that Bortell initiated two conversations in July and
August,1991, during which Bortell asked him how other employees felt about the union.
Smilowitz replied that he had no information about that. It should be noted that Smilowitz had 3
other conversations vith Bortell which Smilowitz initiated, in which he asked Bortell how the
45 employer handled the union campaign in Floral Park, and how much time the election process
consumed. Smilowitz also asked him how the union campaign was progressing at News 12.
Bortell testified that at the time of the 1984 election, he let his views be known to the
28
JD(N1-7-94
other voters. He stated that he was fearful that if the union won that election, the Floral Park
facility would be closed. Bortell's pre-trial affdavit stated that he did not believe that he had any
specifc conversation with any employees in 1991 about the possibility of News 12 closing if the
union was selected, but that it was possible that he told employees, in response to a question
about News 12 closing, that that was a fear he had at the time of the 1984 election. It should be
noted that he testified that since signing the affdavit, he now believed that he definitely did not
5 tell employees in 1991 that he harbored that fear in 1984.
Bortell denied telling employees that Dolan would shut News 12 if the union was
selected, and also denied asking employees how they felt about the union or how others felt
about the union.
10 Respondent asserts that Helm and Angelini should not be credited because they gave
contradictory accounts of Bortell's alleged remarks conceming Polan's alleged plan to Gose
News 12. Respondent argues that neither testimony is reliable because Angelini testified that no
one was present when Helm told her about Dolan's intentions, but Helm testified that Angelini
15 was present.
I credit the testimony of Helm and Angelini that Bortell told them that when the union lost
the 1984 election, all the employees received large raises. Their testimony is mutually
corroborative, and Bortell admittedly spoke to them about that election.
20 However, I cannot credit their testimony conceming Bortell's alleged statement
conceming Dolan's intention to close News 12. Angelini's testimony is troubling especially since
she testified that she was reluctant to speak about the union around supervisors because she
was afraid for her job, yet Helm testified that she announced, with Bortell nearby, that if
Respondent were unionized, replacements would be arranged in a more organized manner. I
25 also fnd it strange that Bortell would whisper the same threat to Helm conceming Dolan, which
only Helm could hear although Angelini was present, that Bortell allegedly made openly to
Angelini the month before. I therefore credit neither Angelini nor Helm conceming Bortell s
alleged threat that Dolan would close News 12.
30 However, I find that Bortell attempted to persuade Angelini and Helm not to support the
union. I accordingly find that he told Helm and Angelini that after the union's loss in 1984, large
raises were granted, in order to induce them to vote against it in the upcoming election. These
promises of benefits interfered with the employees' Section 7 rights. In this connection, I find
that Bortell threatened Angelini that her job would be greatly affected if the union was selected
35 by e employees. He thus sought to dissuade her from supporting the union.
I further find that Bortell's questions of Smilowitz as to how other employees felt about
the union were unlawful interrogations. Although Smilowitz had initiated other conversations
about the union, these questions were parts of conversations that Bortell initiated. As such, they
40 sought information conceming the union sympathies of Smilowitz' co-workers, and constituted
improper interrogations.
Mark Ambrico
45 Ambrico is the operations manager for RNC.
Employee Smilowitz testifed that he initiated most of his 4 to 5 conversations with
Ambrico, in which he attempted to leam how management was dealing with the union situation.
29
JD(NY)-7-94
Ambrico replied that he did not know the answers to those questions.
Smilowitz also testified that in late July or early August,1991, Ambrico initiated one or 2
conversations, in which he asked Smilowitz whether the employees believed that there were any
problems. Smilowitz replied that he did not know of any. About one week later, Ambrico asked
him how he felt about the union. Smilowitz replied that he did not know much about it, and that
5 he was not really for or against it.
Ambrico denied asking Smilowitz how he felt about the union, adding that he knew that
to do so would constitute an illegal interrogation. I credit Smilowitz' testimony that Ambrico asked
him how he felt about the union. Although Ambrico had no information to give Smilowitz about
10 the union, he sought to leam how Smilowitz felt about the union. Smilowitz' answer was
noncommittal, which is consistent with his other testimony that he (Smilowitz) sought to leam
what management was doing about the union situation. I accordingly fnd that Ambrico's
question of Smilowitz violated Section 8(a)(1) of the Act.
15 C. The Alleged Unlawful Layoffs
There were 3 groups of layoffs of employees. On August 9, eighteen employees were
laid off, inGuding 8 RNC employees. On August 23, six employees, all of whom were RNC
employees, and one manager were laid off. One employee each was laid off on September 13
20 and 20, and on November 13, twelve employees were laid off.
The complaint alleges that the employees were laid off because of their activities in
behalf of, or support for the IBEW, AFTRA and CWA, and to discourage employees from
engaging in such activities.
25 Respondent denies that the layoffs were motivated by union considerations, and asserts
that they were effected for economic reasons.
General Counsel's Prima Facie Case
30
Section 8(a)(3) of the Act prohibits an employer from discriminating against employees,
by laying them off, in order to discourage membership in a labor organization.
The General Counsel has the initial burden to prove that union or other activity protected
35 by e Act was a motivating factor in an employers decision to lay off employees. If General
Counsel meets this burden and thereby makes out a prima facie.case, the employer then has
the burden to show that it would have taken the same action - layoffs of employees - even in the
absence of their protected activity. Wright Line, 251 NLRB 1083 (1980).
40 The threshold issue is thus the motivation for the layoffs. If it is found that the employer
was motivated because of its opposition to the union, General Counsel will have established a
prima facie case of discrimination.
Respondent argues that, as to certain of the laid off employees, there has been no
45 evidence that they actually engaged in activities in behalf of any union, and that accordingly, it
cannot be found to have violated the Act with respect to those employees. General Counsel
responds that a finding of violation may be made even as to those who have not engaged in
union activity, based upon a "mass layoff' theory, pursuant to which all employees are
30
JD(NY)-7-94
discriminated against as punishment for the union activities of a few or to discourage further
union activity.
The unlawful motivation required to find a violation may be shown not only against
individual employees in retaliation for their union activities, "but also where the employer takes
adverse action against a group of employees, regardless of their individual sentiments toward
union representation, to punish the employees as a group 'to discourage union activity or in
retaliation for the protected activity of some."' Mini-Togs, Inc., 304 NLRB 664, 648 (1991); Davis
Supermarkets, 306 NLRB 426 (1992). The issue in these cases is the "employers motive in "
ordering the [layoffs) rather than ... the anti union or pro-union status of particuar employees.
BirGh Run Welding 8 Fabricating v. NLRB, 761 F.2d 1175,1180 (6th Cir.1985 . The General
, g 9
10 Counsel s burden was to establish that the mass dischar, e was ordered to discoura e union
activity or in retaliation for the protected activity of some. ACTIV, supra.
Here, the elements required for a prima facie finding of unlawful motivation in the layoffs
are present. Respondent possessed knowledge, as of May 2, of the union organizational
15 campaign of the IBEW. I also fnd that Respondent possessed animus toward that effort, as
demonstrated by the violations of Section 8(a)(1) I have found above, which were committed by
it during its determined effort to defeat the employees' organizational efforts.
As direct evidence of the motivation for the layoffs, General Counsel argues that the
20 conversation between Respondent's assignment manager Hardie Mintzer, Albergo and counsel
Englander confirm that a plan was made to lay off employees to thwart Respondent's
unionization.
Mintzer testified that following the close of the representation hearing in June,1991, at a
25 nversation attended by himself, Albergo and atto mey Englander, Englander asked whether
anyone had an ideas as to what might be done to send a message home to those employees
who are organizing, or attempting to organize the union. Mintzer then suggested a "severe"
message, such as the possibility of layoffs or closing News 12. Mintzer further told the others
that Dolan would tum News 12 into a "parking lot" before it would be unionized. According to
30 Mintzer, Englander agreed.
Albergo denied attending a meeting with Mintzer and Englander at which layoffs were
discussed. Englander did not testify. I credit Mintzer. Respondent argues that Mintzer was
biased because he was laid off by it. However, I do not believe that he would seek to damage
35 his reputation in the industry by testifying falsely against a company official and its attomey. As
noted, this conversation was uncontroverted by Englander.
As further evidence of the motive for the layoffs, General Counsel relies upon a memo
from Burton to Patrick, outlining a move of the master control facility with its RNC employees
40 from Woodbury to Floral Park, involving the layoff of certain RNC employees. Burton noted that
supervisory and existing staff would perform the master control work upon its transfer, with no
charge for the supervisory services. However, the memo added that, in the long run, other
employees from another company may be used, in which case "a fair charge may undermine
economic justification" and "union may Gaim no jobs were eliminated." Burton also added that
45 by using supervisors, News 12 would be saving money, but such a procedure would be difficult
to maintain, and a result might be "risk of union moving to RNC... "
In the representation hearing, the parties stipulated that Mintzer was a statutory supervisor.
31
J D(N1-7-94
General Counsel further alleges that the layoffs which began in August were the
fulfllment of the unlawful threats to lay off employees made to employees during the course of
the union campaign begun in April.
Based upon my findings of violations of Section 8(a)(1) of the Act including
5 interrogations, promises of benefts, threats, and solicitation of grievances, I fnd that the
General Counsel has established a prima facie case that the employees' union organizing
activity was a motivating factor in the Respondent's decision to lay them off. Wright Line, supra.
Under Wright Line, the burden then shifts to the Respondent to demonstrate that the
10 same action would have taken place even in the absence of the employees' protected conduct.
The Economic Justification
News 12 is funded by a partnership consisting of Rainbow and NBC, pursuant to which
15 each contributes 50% and they share 50% of the profits and losses.
The partnership, which began in 1988, contemplated losses in its early years, but by
1992, a profit was projected, based upon increasing gross revenues. Thus, in 1988, a 5 year
plan showed that a nearly $5 million loss was experienced from operations in 1988, with
20 projections for a loss of nearly $4 million in 1989; $2 million in 1990; $468,000 in 1991, with
gross revenues of $12,557,000 that year, and gross expenses of $15 million; a proft of over $1
million projected for 1992; and a profit of nearly $4 million projected for 1993. NBC agreed to
these projections and entered into the partnership based upon these fgures.
25 In 1990, the projected budget for 1991 shows a loss of $737,000, based upon revenues
of nearly $11 million. The expected revenue loss of $1.5 million for 1991, from what was
projected for that year in 1988 was due to an anticipated loss of advertising revenues. However,
1991 expenses were set forth as $11.5 million, down from $15 million, which was forecast for
1991 in the 1988 budget.
30
A later, revised 5 year plan, prepared in early 1991 projects a deficit for 1991 of
$738,000, compared to the earlier 5 year plan's deficit of $468,000. In addition, the new 5 year
plan projected lower gross revenues for 1991 through 1993 than the earlier 5 year plan.
35 As a reaction to the declining revenues, Rainbow president Patrick sought ways to
reduce expenses, and a document was prepared in mid March, setting forth possible areas of
non-personnel reductions of expenses, such as not covering certain news events, which would
result in a projected savings of $105,000. This was updated one week later with a forecast of
savings of $187,000.
40
On March 27, NBC agreed to fund the partnership, but retained its right to approve or
disapprove the upcoming budget.
A budget review meeting between NBC and Rainbow was scheduled for April 19, and in
45 preparation for that meeting, NBC's financial analyst asked the following questions: "In light of
continued ad sales softness, expected proft levels from prior plans are signifcantly
downgraded. What is service doing to address revenue shortfalls Key areas of expense (news
production, administration) continue to grow substantially. This needs to be addressed~and in
particular how WNBC and News 12 can be better integrated in terms of cost control and
32
J D(NY7-94
revenue opportunities."
On April 26, a reforecast in the first quarter of 1991 shows a net operating loss for the
year of $1,342,000, and on April 30, a document showing potential savings of $358,210 was
prepared. These savings included non-personnel cuts as well as the release of one par't time
employee, a proposal that a vacant executive producers position not be filled, and a reduction
5 from 7% to 6% in the amount of annual increases to be given to "studio manpower.
General Counsel correctly argues that at this point, although numerous non-personnel
reductions were "projected" which would result in "potential" savings if implemented, there was
no evidence that the actual cuts were, in fact, made. Moreover, the executive producet"s
10 Position appears to have been filled by Janet Alshouse who was transferred into News 12 from
another Cablevision entity in March or April, as the acting executive producer, and promoted to
executive producer in June,1991.
General Counsel further argues that, although a $2 million loss was projected for 1990,
no action was taken to reduce expenditures at that time. However, the partners apparently
15 anticipated that loss in establishing the partnership, as set forth in their 5 year budget, and as
noted above, the losses were expected to diminish in following years, with anticipated increases
in revenues.
20 As set forth above, on May 2, the IBEW filed its petition.
On May 9, a document setting forth reforecasted expenditures was prepared, which
estimated that 1991 revenue would be $830,000 less than forecasted 3 months earlier. Certain
reductions in expenses were proposed, which included freezing the open executive producer
25 position, which if implemented, would have failed to bring the expected loss to the amount
budgeted, by nearly $142,000.
In mid June, a second quarter forecast showed that the annual revenue shortfall was
expected to increase to $1,105,000. It was also estimated that the 1991 operating deficit would
30 be $1 million, instead of the $468,000 originally forecast in the 5 year budget prepared in 1988,
and the updated $737,000 forecast in late 1990.
At about that time, a meeting was held with NBC representatives, at which NBC inquired
whether News 12 could reduce expenditures by $500,000, and asked how News 12 could be
35 retumed to the break even point as forecast in the 5 year budget, suggesting that NBC would
consider withdrawing from the partnership if these things were not done. NBC also mentioned
that it could not justify to its parent General Electric the deep cuts that were taken at NBC News,
without similar reductions at News 12.
40 Rainbow president Patrick testified that, at that time, the advertising market was
unexpectedly weak, and as a result, advertising revenues were severely reduced. She noted
that even if $500,000 was eliminated from News 12's expenses, it still would not have reached
the $468,000 operating loss forecast in 1988 for the 1991 year.
45 In financial forecasting done monthly in 1991, losses for the year were predicted at
nearly $1,400,000 through June, and were revised upward in July at $1,619,000, and in
September, at $2,055,000 for the year. In fact, the actual operating loss for the year was
$1,889,000.
33
JD(Nl-7-94
In June, when the predicted loss for the year was $1,392,000, president Patrick decided
to downsize News 12. She visited television stations in Denver, Miami and San Diego in order to
leam how they were operating. She found that the San Diego station, although not a 24 hour
per day station as News 12, was a comparable facility, which produced twice the revenues with
less employees than News 12.
5 Patrick retumed from the trip with the conviction that inasmuch as all non-personnel cuts
had been made, personnel reductions were required. As to this, General Counsel argues that no
actual non-personnel cuts had been made, only possible cuts which could be made. However,
those projections of expense cuts were built into the fgures which nevertheless indicated the
extraordinary operating losses for the coming months.
10
In July and August, reports were made to Patrick by her subordinates which contained
recommendations for across the board lay offs of staff members and management personnel.
The first was in August, precipitated by the July forecast of a loss of $1,619,000 for the year the
second layoff was in September, also precipitated by an August forecasted loss of $1,619,00;
15 and the third layoff was in November, precipitated by an October forecast of a loss of
$1,887,000. At the time of the layoffs, about 150 employees were employed by News 12. Thirty
eight employees were laid off in the 3 lay off actions.
The evidence, set forth above, would appear to establish
20 that News 12 was justifed in its decision to lay off employees in order to reduce its expenses, in
view of the extraordinary operating losses projected, which in fact occurred.
The Validity of Respondent's Economic Defense
25 General Counsel argues that Respondent's defense is undermined in view of the
following: NBC complained that News 12's administration expense was growing rapidly, but
nevertheless Albergo and her secretary were hired at a total cost, including benefits, of about
$110,000; notwithstanding its claims of increased operating losses, and a decision to lay off
employees in June, News 12 purchased fumiture for a waiting room with a budget of about
30 $6,000, and installed a paging system; and in October, installed two-way radios in News 12
vehicles.
I fnd that the above additional expenses do not detract from Respondent's defense.
Albergo was hired because of Patrick's increasing lack of confidence in News Director Fein, and
35 use of her commitment to pursue the initiatives begun before the filing of the union's
petition, and to pursue cost savings measures; the fumiture was in a bad state of repair and was
located in a waiting room for guests who were to appear on News 12's programs; the radios
resulted in lesser costs than were experienced when cellular phones were used to
communicate. The costs for these items were relatively small.
40
General Counsel further asserts that annual review wage raises, in amounts which
sometimes surpassed previous increases, were given during the time that Respondent was
experiencing its fnancial difficulties. Thus, on in March,1991, Aline Lefebvre was given a 10%
increase, whereas she received 7% at the last review; in June,1991, Fred Helm received a 12%
45 ise compared to a 6.149o raise the year before. This large increase was explained by noting
that Helm, a superior employee, upon being given this raise, was brought to the "low end" of the
salaries of his co-workers; in June,1991, Vincent Scaffidi was given a raise of 8% compared
with 7.5% the previous year; in July,1991, Kenneth Dickman was given an 8% raise compared
with a 6.9% increase the prior year; and in July,1991, Patricia McCloughan was given an 8%
34
JD(N1-7-94
raise compared with a 7.9% increase the prior year. As to these raises, I do not believe that they
represent an extraordinary increase over the prior year's raises, and specifically with respect to
Helm, his nearly 100% raise was adequately explained by
Respondent.
In contrast, and in support of Respondent's theory, other employees, including Ellen Davis ,
5 Anthony Mazza, Bruce Fauser, Lincoln Wiese, Kevin Benjamin, Susan Vemon-Vitale, Paul Barr,
Michelle Bimbaum, and Thomas Cassidy, received smaller increases in the period March
through August,1991, than they had the prior year.
There were some new hires in the period January through July,1991, but as to at least 9
10 of those, they had either been temporary or part time employees employed in the positions cited
by General Counsel as new hires.
In a memo dated July 24, Albergo outlined savings from the elimination of positions. She
noted that there would be an annual savings of nearly $148,000 not including benefits or
15 overtime from
the elimination of 8 RNC employees, among whom were the most outspoken IBEW supporters:
Bono, Herzman, Kaufold, Rizza, Messina, and Busby. However, she further noted that those
savings would be reduced by the need to replace those employees with on call temporary
workers, in the sum of $50,000. Official Keck testifed that such temporary workers were not in
20 fact used because he developed a plan whereby positions would be consolidated so that fewer
employees could pertorm additional tasks.
There was no evidence as to when that consolidation plan was devised. However, it
should be noted that 2 weeks later, when the employees were notified of their terminations, both
25 Bono and Rizza asked about the possibility of working part time, and Burton rejected their
offers. Nevertheless, it appears that in certain cases, full time employees were replaced by
temporary workers. Thus, the savings in such layoffs was less than if no temporaries had been
hired. For example, the shifts of laid off reporter Burl Britt off were not abolished, but were
pertormed by temporary reporters. However, the replacement of the full time employees by
30 temporary workers nevertheless resulted in a savings to Respondent in full time positions which
did not need to be filled, and in benefits saved.
It should also be noted that, in addition to unit employees who were laid off,
management personnel were also terminated. Thus, executive producer Fishkin was laid off, as
35 was assignment manager Mintzer. In addition, employees not in the unit sought by the IBEW
were laid off, including producers, production assistants, reporters and writers.
On October 16, Patrick sent a memo to employees announcing a 59o annual review
raise. She explained that the increase would be implemented notwithstanding the company's
40 operating losses in order to maintain competitive salaries, and as a reward for fine pertormance.
Respondent had a practice of granting annual review raises in varying amounts. General
Counsel alleges that if Respondent was in such dire financial straits, it should not have made
this wage increase. However, employees at News 12 had historically complained of low wages,
and Respondent acted properly in consistently retaining its annual review raise. It should be
45 noted that the 5% increase was smaller than had been given in prior years, and had
Respondent not continued its policy of annual raises, its failure to do so may have been the
subject of an unfair labor practice charge.
35
JD(N1-7-94
Conclusions as to the Reasons for the Lay Offs
The question to be determined is whether Respondent has met its burden of proving that
it would have taken the same action, laying off the employees, even in the absence of their
union activities. I believe that it has.
5 Respondent's finances were subject to ongoing and stringent review and limitations by
its partner, NBC. Their relationship was driven by continuous fnancial analysis of News 12's
operations. Prior to the filing of the petition, additional money was required by NBC in order to
operate News 12. NBC questioned its ability to continue to fund an unproftable operation.
Subsequently, and still prior to the filing of the petition, with revenues continuing to fall, Patrick
10 authorized the reduction of non-personnel expenses, and a reduction in the amount of annual
salary review increases.
Following the filing of the petition, revenues continued to fall dramatically, and at the time
that layoffs were first considered, in June, Respondent had received a May forecast of an
15 annual loss of $1,342,000, nearly double that which had been forecast in 1990. The layoff was
not a massacre done immediately upon the fling of the petition. Patrick carefully assessed the
company's financial situation in view of NBC's continued inquiries conceming News 12's
expenses, and then undertook visits to several stations across the country in order to determine
whether News 12 was overstaffed for its size. Based upon her visits, she determined that News
20 12 had to downsize in order to maintain its financial viability. The facts that the decision to lay off
employees took place one and one half months after the petition was filed lends credence to a
finding that they were not made precipitously in reaction to the union campaign. Rather, it
appears that the triggering events were NBC's repeated concem with the increasing losses
experienced by News 12, and the newly received forecasts of further massive losses.
25
In addition, the layoffs of management personnel Fishkin and Mintzer, and the layoffs of
non-unit employees along with the layoffs of unit employees adds believability to Respondent's
claims that it would have effected the layoffs of the 38 employees even in the absence of their
union activities.
30
I accordingly find and conclude that Respondent has met its burden under Wright Line,
and that the layoffs did not violate Section 8(a)(3) and (1) as alleged.
35 Conclusions of Law
1. The Respondent, Rainbow News 12, Rainbow Network Communications, Inc.,
subsidiaries of Rainbow Programming Holdings Corp., Rainbow Programming Holdings Corp,
and Cablevision Systems Corp., is an employer engaged in commerce within the meaning of
40 Section 2(2), (6) and (7) of the Act, and is a single integrated business enterprise and a single
employer.
2. Radio and Television Broadcast Engineers Union Local 1212, Intemational
Brotherhood of Electrical Workers, AFL-CIO (IBEW), American Federation of Radio and
45 Television Artists, AFL-CIO, and the Communications Workers of America, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of the Act.
3. By threatening to lay off its employees because of their activities in behalf of, or
interest in the IBEW, Respondent violated Section 8(a)(1) of the Act.
36
J D(N1-7-94
4. By interrogating employees conceming their membership in the IBEW and their union
activities and sympathies, and about the union membership, activities and sympathies of other
employees, Respondent violated Section 8(a)(1) of the Act.
5. By promising its employees a wage increase and other benefits if the employees
5 rejected the IBEW as their bargaining representative, Respondent violated Section 8(a)(1) of the
Act.
6. By disparately enforcing and applying a rule prohibiting the placement of union
literature in employee mailboxes, while permitting the placement of non-union literature,
10 Respondent violated Section 8(a)(1) of the Act.
7. By soliciting employee complaints and grievances and, by doing so, impliedly
promising its employees that it would resolve their complaints and grievances to the employees
satisfaction, Respondent violated Section 8(a)(1) of the Act.
15
8. By telling employees that it was withholding a larger wage increase because of the
IBEW, Respondent violated Section 8(a)(1) of the Act.
9. By informing employees that it would be futile for them to select the IBEW as their
20 bargaining representative, Respondent violated Section 8(a)(1) of the Act.
10. By threatening employees with the imposition of more onerous working conditions if
they selected the IBEW as their bargaining representative, Respondent violated Section 8(a)(1)
of the Act.
25
11. By threatening to close the facility if the employees selected the IBEW as their
representative, Respondent violated Section 8(a)(1) of the Act.
12. Respondent did not engage in unfair labor practices, as alleged in the complaint, by
30 laying off employees, and by other alleged unfair labor practices, not found here.
13. The unfair labor practices found above constitute unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
35 The Remedy
Having found that Respondent has engaged in unlawful conduct under the Act, I will
recommend that it cease and desist from engaging in such conduct in the future and
40 affirmatively take such action as will dissipate the effects of its unfair labor practices.
Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and
pursuant to Section 10(c) of the Act, I hereby issue the following recommended:s
45 slf no exceptions are filed as provided by Section 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
37
J D(NY7-94
Order
Respondent, Rainbow News 12 and Rainbow Network Communications, Inc.,
subsidiaries of Rainbow Programming Holdings Corp., Rainbow Programming Holdings Corp.,
5 and Cablevision Systems Corp., shall:
1. Cease and desist from:
(a) Threatening to lay off its employees because of
10 their activities in behalf of, or interest in the IBEW.
(b) Interrogating employees conceming their membership in, and activities in
behalf of, and sympathies for the IBEW, and about the union membership, activities and
sympathies of other employees.
15
(c) Promising its employees a wage increase and other benefits if the employees
rejected the IBEW as their bargaining representative.
(d) Disparately enforcing and applying a rule prohibiting the placement of union
20 literature in employee mailboxes, while permitting the placement of non-union literature.
(e) Soliciting employee complaints and grievances and, by doing so, impliedly
promising its employees that it would resolve their complaints and grievances to the employees'
satisfaction.
25
(f) Telling employees that it was withholding a larger wage increase because of
the IBEW.
(g) Infonning employees that it would be futile for them to select the IBEW as
30 their bargaining representative.
(h) Threatening the imposition of more onerous working conditions if employees
selected the IBEW as their bargaining representative.
35 (i) Threatening to close the facility if the employees selected the IBEW as their
representative.
(j) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
40
2. Take the following affrmative action necessary to effectuate the policies of the Act:
(a) Post at its facilities in Woodbury, New York, copies of the attached notice
marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for
45
glf 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"
Continued
38
J D(N1-7-94
Region 29, after being signed by Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 29 within 20 days from the date of this
Order, what steps the Respondent has taken to comply.
Dated: Washington, D.C. February 11, 1994
Steven Davis
Administrative Law Judge
shall read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
39
