Leeds Cablevision, Inc. And Cablevision Co., Inc.

LEEDS CABLEVISION ]Leeds Cablevision, Inc. and Cablevision Company, Inc. and Communications Workers of America, AFL-CIO, and its Local 10902. Case 10-CA- 20040 31 October 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 28 September 1984 Administrative Law Judge Philip P. McLeod issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order as modified. The judge found, among other things, that the Respondent discriminatorily granted lower wage increases in 1983 to its Leeds employees than to its Cablevision employees because the former elected to be represented by the Union. In so finding, the judge compared evaluations given the two groups of employees and analyzed the ratings-excellent, good, fair, and poor-given in each performance category. He also concluded that "bifurcation" of the evaluation process, i.e., Chief Executive Officer Terry Johnson's rating Leeds employees and Gen- eral Manager Larry Castleberry's rating Cablevi- sion employees, ran contrary to past practice and i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings 2 The Respondent excepted to the judge's finding that it violated Sec. 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union. For the reasons set forth in the judge's decision, we affirm this finding. In so doing we are mindful of the fact that the Respondent met with the Union on five occasions and that it never patently refused to bargain about wages as the Chairman points out in his dissent. However, when the Respondent's conduct is analyzed as a series of related acts rather than as singular, isolated incidents, it is clear that it violated the Act In this connection the record supports the judge's conclusion that the Respondent engaged in dilatory conduct prior to the commencement of negotiations when it failed to respond to the Union's request for bar- gaining and information and during negotiations when it indicated that it would not discuss wages while the decision in Case 10-CA-18838 was pending. After the decision issued, the Respondent insisted on continuing its policy of giving merit increases and decided that conferring on evalua- tion criteria for such increases would be pointless When this conduct is viewed in light of the Respondent's giving discriminatory wage increases to Leeds employees for 1983 and its stating that employees could achieve their goals in ways other than through a union, it becomes readily appar- ent that the Respondent desired only to frustrate negotiations and had no intention of concluding a collective-bargaining agreement 103 therefore was indicative of the Respondent's intent to discriminate against Leeds employees. While we affirm the judge's finding that the Re- spondent's granting lower increases to Leeds em- ployees violated Section 8(a)(1) and (3) of the Act, we do not rely on his rationale. In our view, bifur- cating the responsibility for the evaluations, with- out more, does not evidence an intent to discrimi- nate and neither does the fact that the two evalua- tors judged employees' conduct and performance on somewhat different bases. Rather, we find that granting disparate increases to employees of Leeds and Cablevision who received substantially equiva- lent evaluations overall, as explained below, estab- lishes that the Respondent intended a dissimilar result occur. As an example, Leeds technician Bobby Freeman received a $10 weekly increase after receiving a good overall appraisal (good in seven categories, fair in three, and poor in one) while his Cablevision counterpart Jimmy Godsey received a $25.20 increase after receiving a similar overall evaluation (good in six categories, fair in three, and "needs improvement" in two. The record reveals that "needs improvement" is equiva- lent to "poor.") Disparate results among installers are further evidenced by Cablevision installer Jeff Martin's receipt of a $20 increase based on an over- all appraisal equivalent to those of Freeman and Godsey, while Leeds installer Mike Handley was granted only a $5 increase on an evaluation objec- tively higher than that of Martin. Additionally, among customer service representatives at the two facilities, Leeds employee Gloria Myers received the lowest increase, $5 a week. She was rated ex- cellent in one category, good in three, fair in two, and needs improvement in two. In contrast, new Cablevision employee Rhonda Lawson was grant- ed a $10 increase on the basis of an evaluation in which she received one good, six fairs, and one needs improvement. These disparate results are not explained simply by Johnson's evaluation of Leeds employees and Castleberry's evaluation of Cablevision employees.3 Johnson testified that he reviewed and approved the evaluations and amounts of increases Cablevi- sion employees were to receive. It is clear, there- fore, that Johnson was fully aware of the similari- ties in the evaluations and the disparities in recom- mended increases, yet did not seek to conform the two. On this basis we find that the Respondent in- tended that Leeds employees receive substantially 2 Although Johnson generally testified he rated some appraisal catego- ries higher than others and Castleberry rated all categories equally, this evidence is insufficient to explain the disparity in results 277 NLRB No. 14 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lower increases than their counterparts because they selected the Union to represent them. The judge ordered that the Respondent grant Leeds employees retroactive increases not less than the average wage increases granted to Cablevision employees. In view of our findings, we believe this remedy to be too broad and shall direct that the Respondent grant retroactive increases that con- form to increases given to similarly classified Ca- blevision employees who received comparable evaluations. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Leeds Cablevision, Inc. and Cablevision Company, Inc., Leeds, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Make whole employees of Leeds Cablevi- sion, Inc. for any loss of earnings or benefits they may have suffered by reason of the discrimination against them by granting them wage increases ret- roactive to October 1983 not less than the wage in- creases granted to similarly classified employees of Cablevision Company, Inc. who received compara- ble overall evaluations, with appropriate interest." 2. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. Although I agree that the Respondent granted discriminatorily lower wage increases to Leeds em- ployees than to Cablevision employees in violation of Section 8(a)(3) and (1), I disagree with the ma- jority's affirming the judge's finding that the Re- spondent further violated Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with the Union. For the reasons set forth below, I find that the Respondent's course of conduct evidences lawful, hard bargaining. The judge, in reaching his conclusion that the Respondent engaged in surface bargaining, cites several factors including action which he charac- terizes as delay tactics, the discriminatorily lower increase which is the subject of the 8(a)(3) allega- tion, and comments made in the final bargaining session. However, an analysis of the Respondent's overall bargaining conduct including its conduct concerning the negotiation of a wage package war- rants the conclusion that the Respondent attempted in good faith to reach an agreement. First, regard- less of when the Respondent responded to the Union's initial requests for information and bargain- ing, it is clear that once negotiations got under way on 23 March, the Respondent presented substantive proposals and counterproposals which led ultimate- ly to the parties' agreement on a recognition clause, nondiscrimination policy, grievance and ar- bitration procedure, vacations and sick leave, a no- strike/no-lockout policy, and fringe benefits. The parties' agreement on these substantive matters is acknowledged in the judge's decision but accorded little weight in his assessment of the Respondent's course of conduct from the start of negotiations until the fifth and final session on 5 December. Regarding wages the record reveals that the Re- spondent never patently or otherwise refused to bargain but simply disagreed with the Union's pro- posed increases and counterproposed to continue granting increases based on merit. On 2 June it in- dicated that it was unwilling to discuss wages at that time because no decision had yet issued in an unfair labor practice case which both parties under- stood would significantly impact on any proposed wage structure. Finally, it indicated that it was amenable to conferring with the Union on the de- velopment of performance standards and evaluation criteria. Its subsequent reluctance to confer on evaluation standards was based on the fact that its planned expansion of operations and service ren- dered formulation of criteria impractical. In short, the record establishes that the Respondent bar- gained about wages and that the parties found each other's wage proposals unacceptable. There is no requirement in the Act that the parties agree, only that they make good-faith efforts to do so. Nothing about the conduct described above warrants a find- ing of bad faith on the Respondent's part.' Addi- tionally, the 1983 wage increases granted Leeds employees, although found to be discriminatory, do not evidence an unwillingness to bargain to con- tract or an intent to stymie negotiations. The same is true of the comments made at the final bargaining session that Union Negotiator Norma Powell should admit the Union had no strength and that "there's other ways besides a union" for employees to accomplish their objec- tives. The judge recognized that "negotiations sometimes become heated and occasionally become overheated" and noted that the "Respondent's emotional outbursts in this case were not altogether unprovoked." Nevertheless, he relied on the state- ments in concluding that the Respondent refused to bargain in good faith. The record discloses that Powell sparked the exchange of insults by accusing the Respondent's negotiator, its attorney, of "rip- ping off" his client. It is error to conclude that i It is not the role of this Board to evaluate the reasonableness of par- ties' proposals at the negotiating table LEEDS CABLEVISION these comments made in the heat of argument and provoked as they were accurately reflect the char- acter of the Respondent's approach to negotiations. For all the foregoing reasons, I would reverse the judge's finding that the Respondent failed and refused to bargain in good faith in violation of Sec- tion 8(a)(5) and (1) and modify his recommended Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT grant employees of Leeds Cable- vision, Inc. wage increases less than we grant to employees of Cablevision Company, Inc. because Leeds employees have selected the Communica- tions Workers of America, AFL-CIO, Local 10902, as their collective-bargaining representative. WE WILL NOT fail and refuse to bargain in good faith with the above Union as the exclusive bar- gaining representative of Leeds employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make whole employees of Leeds Ca- blevision, Inc. for any loss of earnings or benefits they may have suffered by reason of the discrimi- nation against them by granting them wage in- creases retroactive to October 1983 not less than the wage increases granted to similarly classified employees of Cablevision Company, Inc. who re- ceived comparable overall evaluations, with appro- priate interest. WE WILL, on request, bargain collectively in good faith with Communications Workers of America, AFL-CIO, Local 10902, as the exclusive bargaining representative of our employees at our Leeds, Alabama facility concerning rates of pay, hours of employment, and other terms and condi- tions of employment, and, if an agreement is reached, embody such agreement in a written col- lective-bargaining agreement. LEEDS CABLEVISION, INC. AND CA- BLEVISION COMPANY, INC. Sharon E. Howard, Esq., for the General Counsel. 105 Donald W. Davis, Esq. (Davis & Howland), of Birming- ham, Alabama, and John A. Wilmer, Esq. (Bell, Rich- ardson, Herrington, Sparkman & Shepard), of Hunts- ville, Alabama, for the Respondent. John L. Quinn, Esq., of Birmingham, Alabama, for the Charging Party. DECISION STATEMENT OF THE CASE PHILIP P. MCLEOD, Administrative Law Judge. This case was heard by me on May 16 and 17 and June 19 and 20, 1984, in Birmingham, Alabama. It originated from a charge filed on February 27, 1984, by Communi- cations Workers of America, AFL-CIO against Leeds Cablevision, Inc. and Cablevision Company, Inc. (collec- tively called Respondent). On March 30, 1984, a com- plaint and notice of hearing was issued. The complaint was subsequently amended on April 5 and on May 16, 1984. The complaint, as amended, alleges that Leeds and Cablevision, both of which provide cable television serv- ices to retail customers , are a single integrated business enterprise and a single employer within the meaning of the National Labor Relations Act. The complaint alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act by granting Leeds employees a smaller wage in- crease than was granted to Cablevision employees be- cause Leeds employees elected Communications Work- ers of America, AFL-CIO, Local 10902 (the Union) as their collective-bargaining representative and by failing and refusing to bargain collectively with the Union with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of Leeds em- ployees. In its answer to the complaint, Respondent admitted certain allegations, including the filing and serving of the charge, the status of Leeds and Cablevison as a single employer within the meaning of the Act, and the status of the Union as a labor organization within the meaning of the Act. Respondent denied having engaged in any conduct which would constitute an unfair labor practice within the meaning of the Act. At the trial all parties were represented and afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence. Following the close of the trial, the General Counsel, the Charging Party, and Respondent filed timely briefs with me which have been duly considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION At the time of the events material to this case, both Leeds and Cablevision were Alabama corporations with offices and facilities located in small towns surrounding metropolitan Birmingham, Alabama. Both provide cable television services to retail customers . Both derive gross revenues in excess of $100,000 annually, and both pur- 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chase in excess of $5000 annually directly from suppliers located outside the State of Alabama. Leeds and Cablevision have been for some time, and continue to be, affiliated' business enterprises with common officers, ownership, management, and control of labor relations. They have provided services to and interchanged personnel with each other. Leeds officially merged with Cablevision in November 1983, and Cable- vision, in turn, merged with Masada Communications, Inc. shortly thereafter. The complaint alleges, Respond- ent admits, and I find that Leeds and Cablevision are a single integrated business enterprise, and that Respondent is, and has been at all times material, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. LABOR ORGANIZATION Communications Workers of America, AFL-CIO, Local 10902 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background In Cases 10-RC-12658 and 10-RC-12668, the Union sought to represent separate bargaining units of employ- ees at Cablevision and Leeds, respectively. Pursuant to decisions and directions of election, elections were con- ducted among employees at the two facilities. At Cable- vision, the majority of eligible voters voted against union representation. At Leeds, all three of the eligible voters voted in favor of the Union. The results were certified, and on December 14, 1982, the Union was certified as the exclusive bargaining representative of the Leeds em- ployees. On February 6, 1983,1 the Union filed a charge with the Board against Respondent in Case 10-CA-18838. On May 4, a complaint and notice of hearing was issued al- leging, inter alia, that Respondent violated Section 8(a)(1), (3), and (5) of the Act by unilaterally discontinu- ing its past practice of conducting job evaluations and granting wages increases to Leeds employees because they selected the Union as their collective-bargaining representative. The complaint also alleged that Respond- ent unilaterally discontinued Christmas bonuses and a Christmas party for the same reason. Finally, the com- plaint alleged that Respondent violated Section 8(a)(1) and (4) of the Act by refusing to allow Leeds employee Gloria Myers to work overtime because she had given testimony to the Board. On May 19, a hearing was held regarding those allegations before Administrative Law Judge Lawrence W. Cullen. On July 25, Judge Cullen issued his decision in which he found merit to each of the allegations described above. With respect to the find- ing that Respondent had unilaterally and discriminatorily discontinued its past practice of conducting job evalua- tions and granting wage increases to Leeds employees because they had selected the Union as their collective- bargaining representative, Judge Cullen found: 1 All dates refer to 1983 unless otherwise indicated The appropriate remedy for Respondent's discrimi- nation against its employees at the Leeds facility with respect to the denial of employee evaluations and raises is to evaluate said employees and grant them wage increases as it has its employees at its Cablevision facility until such time as a different procedure is bargained with the Union. No exceptions were filed to Judge Cullen's decision. Accordingly, on August 30 the Board issued an Order adopting that decision. B. The Bargaining Relationship Following certification on December 14, 1982, the Union sent Respondent a letter on December 16 request- ing bargaining regarding the Leeds employees. This letter also requested that Respondent furnish the Union with various information. Respondent did not answer this letter. Instead, by letter dated February 24, Respondent's counsel informed the Union that Respondent was consid- ering closing the Leeds facility and dissolving the corpo- ration. On behalf of Respondent, counsel offered to meet with the Union for the purpose of discussing the possible closure and the effects it might have on employees. On February 28, 1983, the Union sent Respondent an- other letter requesting bargaining. Again there was no response from Respondent. On March 9 the Union sent yet a third letter to Re- spondent requesting the commencement of bargaining. In response to this third request, Respondent's counsel tele- phoned Union Representative Norma Powell, and the two agreed to a meeting. All the negotiating sessions between Respondent and the Union took place at the office of Respondent's coun- sel. The Union's primary spokesperson throughout these meetings was Powell. Respondent was represented by counsel and Leeds' chief executive officer Terry John- son. At the first negotiating meeting held on March 23, Re- spondent informed the Union that it did not respond to the Union's earlier requests for bargaining and had no obligation to meet with Powell since the request for bar- gaining had been received from Powell, who is em- ployed by the Union's parent International organization, rather than from Local 10902 itself. Powell reminded Respondent's counsel that she had represented Local 10902 during the organizing campaign, throughout the representation case proceeding, and in the processing of Case 10-CA-18838, which was then pending investiga- tion. Respondent then gave Powell a written cost analysis which it reported showed that almost $20,000 could be saved annually by closing the Leeds facility and having the work performed from one of the facilities staffed by Cablevision employees. Respondent then gave the Union a written proposal which provided that if the Leeds fa- cility was closed, its employees would be offered em- ployment by Cablevision at the same wage rates and with the same benefits they were then receiving. Powell told Respondent she knew that business in the Leeds LEEDS CABLEVISION 107 area was growing rather than decreasing and there was no reason to close the Leeds facility. Powell also stated that after receiving counsel's earlier letter, she had con- tacted the Leeds city council and had been told that they had received no notification Respondent was considering closing that facility. Powell also told Respondent that she had not yet received any of the information she had requested with her initial bargaining request. The meet- ing ended. On the following day, March 24, the Union sent a letter to Respondent containing a written proposal that the parties first negotiate a collective-bargaining agree- ment with regard to the Leeds employees and that they then consider the issue of the Company's proposal to close the Leeds facility. In a separate letter also dated March 24, Powell requested bargaining with Respondent specifically on behalf of "Communications Workers of America, AFL-CIO, Local 10902." In the letter, Powell also renewed her request for information. By letter dated March 30, Respondent' s counsel re- quested the Union to submit an initial contract proposal in order to commence substantive contract negotiations. By letter dated April 5, Respondent supplied the Union with the information which it had earlier requested. Thereafter, a bargaining meeting was scheduled for April 27. At the second bargaining meeting held on April 27, Powell presented Respondent with a written contract proposal on behalf of the Union.'The meeting was then devoted to the parties reviewing this proposal. Within this proposal is a section captioned "wages," which simply provides for "a substantial wage increase." When Respondent questioned Powell what this meant, Powell replied that the Union wanted a wage increase of 65 cents per hour per employee. By letter dated and hand delivered on May 16, Re- spondent presented the Union with its contract proposal. This proposed contract contains, inter alia, a recognition clause, a nondiscrimination clause, a management-rights clause, a no-strike/no-lockout clause, a clause providing that employees could be discharged only for "good cause," a grievance and arbitration procedure, a seniority clause dealing with layoffs and recalls, and various clauses dealing with vacations and other fringe benefits. Regaiding wages, Respondent's proposed contract pro- vided: "The wage rates currently in effect shall remain in effect during the life of this agreement." Respondent's proposed contract was for 1 year. On June 2, Respondent and the Union held their third bargaining session. At this meeting, the Union presented Respondent with a document which listed each article of Respondent's contract proposal and expressed its accept- ance, rejection, or proposed modification. From that time on, Respondent's contract proposal served as a basis for negotiations. The Union also presented Respondent with written counterproposals to various sections of the proposed contract. The parties then reviewed in-detail the Union's written counterproposals. One of the coun- terproposals again called for a "substantial wage in- crease." Respondent's counsel, who testified as a witness for Respondent in this proceeding, admitted that when the Union attempted to discuss a wage increase for em- ployees, he informed the Union that Respondent was not willing to discuss wages until a decision had been ren- dered by Judge Cullen in Case 10-CA-18838. Davis tes- tified as follows: Q. (By Ms. Howard) Isn't it correct that at the June 2 meeting you took the position that you couldn't offer any wage increase because of the ULP hearing that had taken place? Isn't that cor- rect? A. (By Mr. Davis) That's essentially correct. We took the position that we wanted to see what the outcome of that was because that might require that the employer grant a wage increase and we didn't know what that would be, if it occurred. And it was difficult to take a position on wages at that time not knowing that. As of June 2, we did state essentially that we weren't in a position to make an offer on wages until we saw what the ALJ's Decision said. At the conclusion of the June 2 meeting, Respondent's counsel agreed to review the Union's proposed modifica- tions of Respondent's proposed contract and to then get back in touch with the Union. On June 27 Powell telephoned Davis to determine Re- spondent's position regarding those proposed modifica- tions. Davis informed Powell that Respondent was not willing to accept any of the proposed modifications. Powell stated in response, "I guess we're at an impasse." Davis replied, "I guess we are." Powell then told Davis that she would get back in touch with him at a later date. As indicated above, the judge issued his decision in Case 10-CA-18838 on July 25. No exceptions were taken to that decision, and a Board order issued adopting the decision on August 30. The Union, however, did not request another bargaining meeting with Respondent until October. On October 10, Respondent and the Union held their fourth bargaining meeting. At this session, the parties re- viewed and discussed each of the provisions of Respond- ent's contract proposal and the Union's proposed modifi- cations which had not previously been agreed on. As Powell described that meeting: There were several tentative agreements made on that particular day. Some in regard to the language that the union had submitted that were modified from the company's contract, and some words that we agreed, on that particular day, to change or adjust. The parties then discussed wages once more. The Union presented a written cost analysis of employee wages to Respondent and a written proposal providing employees a wage increase of 35 cents per hour (or $15.17 per week). According to Powell, whom I credit, Respondent continued the earlier position taken in its initial contract proposal that employees not be given any wage increase pursuant to the contract. Johnson offered to continue to 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evaluate and give employees raises as Respondent deemed appropriate as it had in the past. The Union then expressed an interest in trying to set up specific and de- finable evaluation standards for employees. Johnson ex- pressed an interest in that possibility, and informed the Union that he would discuss that with them further at a later date. Later, however, Johnson took the position that such standards could not be established. Between October 26 and 31, Respondent conducted job performance evaluations for both Cablevision and Leeds employees. Cablevision General Manager Larry Castlberry evaluated the Cablevision employees and granted them wage increases based on their performance from October/November 1982 to October/November 1983. Johnson evaluated the Leeds employees, preparing two sets of evaluations: one for the period from October/November 1981 to October/November 1982 and a second for the period from October/November 1982 to October/November 1983. Pursuant to the make- whole remedy in Case 10-CA-18838, Leeds employees were given a retroactive wage increase for the period from October/November 1981 to October/November 1982 equal to an average of the increases granted to Ca- blevision employees for that same period. The average wage increases given to Cablevision employees for that period was $9.55 per week. Thus, Leeds employees were granted a $10-per-week wage increase as a part of the make-whole remedy ordered by Judge Cullen. For the October/November 1982 to October/November 1983 period, Cablevision employees evaluated by Castleberry received wage increases from $10 to $35 per week; Leeds employees evaluated by Johnson received raises of $5 and $10 per week. These raises are discussed in great- er detail below. On November 4, the parties held their fifth bargaining meeting. At this meeting, Respondent and the Union once again reviewed and discussed the remaining con- tract articles upon which there had been no agreement. The Union capitulated and agreed to accept several con- tract provisions contained in Respondent's initial con- tract proposal. Respondent then informed the Union that it had given wage increases for 1982 and 1983^to the Leeds employees pursuant to the decision in Case 10- CA-18838 and that it had also granted 1983 wage in- creases to the Cablevision employees. Powell objected, stating that Respondent had not negotiated these raises with the Union or even mentioned to the Union the fact that it was going to grant the raises. Respondent's coun- sel stated that Respondent had been required to grant the raises by the Board Order in Case 10-CA-18838. Powell then objected to the size of the raises for Leeds employ- ees. Johnson stated to Powell that Myers' raise was low because her attitude was "terrible," that Handley's was low because he did "sloppy work," and that Freeman got what he did because he was a "good employee." Powell again objected, stating that Respondent had never had any problem with Myers before the union ac- tivity. Powell stated that the Leeds employees deserved better than what they had gotten. Johnson replied that they had gotten what they deserved. - On November 17, Powell telephoned Respondent's counsel. At the time of her call, only two contract provi- sions were still in dispute: wage rates for employees and union-dues checkoff. Powell informed Davis that if Re- spondent would agree to give Gloria Myers an additional $5-per-week raise, Powell would recommend to the Leeds employees that they accept the contract as it then existed. Davis told Powell that he did not think Re- spondent would agree to do this, but that he would check with Johnson. On November 21, Davis informed Powell that Johnson would not agree to give Myers the additional increase. Respondent offered no counterpro- posal. On December 5, Respondent and the Union held their sixth and final bargaining meeting. Testimony of the var- ious witnesses regarding what took place at this meeting is, with only minor exception, consistent. Powell testified that at the beginning of this meeting, the Union and Re- spondent again reviewed and discussed certain articles of the proposed contract. One of the articles discussed re- lated to wages. Powell informed Respondent that the Union was still seeking a 35-cent-per-hour wage increase and that the wage increases it had already granted to em- ployees would be considered a part of the requested in- crease. Respondent's counsel objected to the Union's proposal, stating that the Union was trying to add an ad- ditional proposal to the discussion. Davis noted that during their last conversation the Union was seeking only 12.5 cents per hour more for Gloria Myers. Powell replied that if Respondent would put that amount into a contract, she would recommend it to employees. Re- spondent objected and stated that if there was a contract it would reflect no wage increase. Instead, Respondent offered once more to continue its past practice of evalu- ating and giving wage increases to employees as Re- spondent deemed appropriate. Employee Bobby Free- man, who was on the Union's negotiating comnuttee, then pointed out to Johnson that one employee at Cable- vision had received a raise of $1 per hour and another employee there had received 75 cents per hour, while Freeman had received only 25 cents per hour. Freeman told Johnson he did not think this was fair, particularly in view of the fact that he had trained one of these two people. According to Powell, Johnson lowered his eyes and did not respond. Powell then stated that the employ- ees at Leeds were entitled to a decent wage in view of the skills and job abilities they had. Powell asked John- son, "How many poles have you climbed lately, and how many cables have you installed?" Johnson lost con- trol of his temper, rose out of his chair, leaned across the table toward Powell, and shook his index finger vigor- ously in her face, saying, "Don't you say that to me, Norma. I've installed many poles in my lifetime when I first started out building my company. I worked then for a dollar and 25 cents and these people are going to have to come up like I did." Powell replied that that might be so, but that wage rates had changed in 20 years. I credit Powell that, at that point, Respondent's counsel stated to Powell, "Norma, why don't ya'il just admit that you don't have any strength out there and leave these em- ployees alone?" Powell retorted, "Why don't you tell your client that you're ripping him off." Davis then jumped out of his chair yelling, "Get out of my office LEEDS CABLEVISION 109 before I knock you out, you fat lady. I'll do you like I did those people in Vietnam. Get out of my office so my client can talk to his employee." Powell immediately left. In describing this same meeting, employee Freeman testified that in response to his questions directed to Johnson about why certain employees at Cablevision re- ceived a larger raise than Freeman received, Johnson stated that one of the two employees had a larger service area to cover than did Freeman. According to Freeman, during this meeting Powell stated to Respondent, "You're not offering us a contract." Respondent's coun- sel replied, "Yes, we are offering you a contract." Powell responded, "You're not offering us a contract that these people can live with." It was then that Powell made the statement to Johnson about his not having climbed a pole or strung wire for a considerable period of tierce. Powell also stated, in essence, that Johnson did not know what it was like to work for the amount of money that Leeds employees received. It was then that Johnson lost his temper. Freeman testified that when Johnson lost his temper and shouted at Powell, in addi- tion to his other remarks, Johnson made the statement that no one was going to tell him how to run his compa- ny. Freeman also testified that after Powell left Davis' office, Freeman rose and went over to Johnson. Freeman told Johnson that he did not blame Johnson for wanting to run his company by himself, but that Freeman thought the employees "deserved better than we were getting." According to Freeman, whom I credit, Johnson replied, "Well, there's other ways besides a union." Johnson testified about what took place at this meet- ing, as did Respondent's counsel and counsel's secretary. Their testimony tended to corroborate and expound upon that of Powell and Freeman rather than contradict it, except as specifically noted. Respondent's counsel ad- mitted stating to Powell in response to Powell's assertion that he was "ripping off' his client: You'd better be damned glad you're a woman, be- cause if you weren't, I would have long ago forgot- ten that I wasn't where I was 14 years ago running a unit of Vietnamese Rangers through the rice pad- dies south of Saigon. Fat lady, get the hell out of my office. Johnson's testimony about this meeting was very brief. Johnson admitted that there were many things about the meeting he did not recall. Johnson, however, denied the statement attributed to him by Freeman at the end of the meeting, "Well, there are other ways besides a union." Respondent's counsel testified that as Powell left the conference room, he, Johnson, and Freeman also left the room and entered the passageway between the confer- ence room and the reception area in his office. Davis tes- tified he heard Freeman say to Johnson, "Terry, I'm sorry, we deserve better than this." Davis then testified, "Al that point I was following Norma [Powell] as she went out the door. She was shouting at me and I was shouting at her and I didn't hear anything else that was said between Terry [Johnson] and Bobby [Freeman]." Counsel's secretary, Joyce Whitten, testified that as Powell left counsel's office, Davis followed. According to her, Johnson and Freeman then stepped out of the conference room and stood "almost in front of my desk." Whitten testified that Freeman then told Johnson, "I'm sorry all this has happened." Johnson replied, "I am, too. And I'm sorry we couldn't work this matter out." The purpose of Davis' and Whitten's testimony is ap- parently to provide corroboration to Johnson's denial of the statement attributed to him by Freeman. Respondent would argue that it shows Johnson could not have made this statement without it being witnessed either by Davis or Whitten. I reject this argument. According to Free- man's testimony, when Powell left the conference room and Davis followed, it was then that Freeman walked over to Johnson and initiated the conversation. It is ap- parent from Freeman's testimony that the conversation he had with Johnson and the statement he attributes to Johnson were made while Freeman and Johnson were still in the conference room where the bargaining session was being held, and I so find. Freeman impressed me as being completely trustworthy and candid. It was clear from Davis' testimony that any number of things might have been said between Freeman and Johnson which Davis could not have heard since Davis followed Powell out of his office. Johnson's testimony about the Decem- ber 5 meeting was sketchy at best, and Johnson admitted many things were said that he did not remember. Whit- ten, on the other hand, was too positive, too definite, and too assertive in her testimony. I was left with the distinct impression that Whitten was trying a little too hard to be helpful to her employer who, in turn, was representing Respondent. Of all the witnesses who testified about this alleged remark by Johnson, Freeman impressed me as the most straightforward and candid, and I credit his tes- timony in its entirety. C. The Evaluations of Leeds Employees Certain findings of the judge in Case 10-CA-18838 are relevant to a consideration of the evaluations performed on Leeds employees in October 1983. I take judicial notice of those facts from the judge's decision in that earlier proceeding. More specifically, I note that the judge found a common control of labor relations over both Cablevision and Leeds employees by Cablevision General Manager Larry Castleberry. In making this find- ing, the judge relied not only on an identical overtime policy established for both Cablevision and Leeds em- ployees by Castleberry but also on the fact that it was Castleberry who approved timecards and signed payroll checks for Leeds employees. Elsewhere in that decision, the judge considered and discussed "employee evalua- tions and pay raises." He found that in the past it was Johnson who decided whether employees would be given raises. When a decision was made to do so in early 1982, "Johnson testified that . . . he and Cablevision General Manager Larry Castleberry "reviewed every- body's salaries." The decision continues: Johnson testified that in the spring of 1982 he and Castleberry decided that in order to improve com- munications with the employees of Cablevision and Leeds salary reviews would be initiated with each 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee of Leeds and Cablevision on a 6-month basis commencing in November (1982). Johnson testified that this policy was to apply to both Cablevision and Leeds employees. In Novem- ber 1982 Johnson reviewed all the employees of Ca- blevision and all but two or three received raises. He did not review the employees at Leeds. Thus, although it was Johnson who reviewed all of the Cablevision employees in November 1982, he did not do so in October 1983. Instead, Castleberry evaluated Cablevision employees while Johnson evaluated Leeds employees. Johnson testified that he evaluated Leeds em- ployees rather than Castleberry because Castleberry was not actually general manager of Leeds and because he felt a personal obligation to evaluate Leeds employees for 1982 pursuant to the judge' s decision discussed above. I am not convinced by Johnson's purported ex- planation. The decision in Case 10-CA-18838 shows quite clearly that Castleberry exercised substantial day- to-day control over Leeds employees, including approv- ing timecards and signing payroll checks. Gloria Myers, whom I credit, testified that for about the last 3 years Johnson visited the Leeds facility only once or twice a year. Leeds employees looked to Castleberry for day-to- day supervision and control. Johnson himself admitted that he received input from Castleberry before he was able to evaluate the Leeds employees. A comparison of evaluations performed by Castleberry on Cablevision em- ployees and by Johnson on Leeds employees reflects that Johnson applied a different standard than that applied by Castleberry and judged the Leeds employees more harshly than Castleberry judged Cablevision employees. 1. Gloria Myers Gloria Myers has been employed by Leeds since Feb- ruary 1979. Her job duties include writing orders for new installations, taking service requests, scheduling and packaging orders, and processing customer payments. Prior to the November 1983 merger of Leeds into Cable- vision, Myers was also responsible for the preparation of Leeds' payroll, preparation of a quarterly tax report, and the payment of bills. Since she has been relieved of these latter duties, Myers is now considered a customer service representative. Myers is one of Respondent's most senior employees. Prior to October 1983, when her raise amounted to only $5 per week, raises had always ranged from $10 to $20 per week. In the October 1983 evaluation performed by Johnson, for the period October 1981 to October/November 1982, Myers was rated "fair" in only one category, i.e., "self- motivation." She was rated "excellent" regarding her "knowledge of job" and "good" in the six other catego- ries in which she was rated. In the evaluation covering the period from October/November 1982 to October/- November 1983, Myers was again rated "fair" regarding self-motivation and "excellent" regarding knowledge of job. Myers was rated "good" in three other categories, "fair" in productivity, and "needs improvement" in "atti- tude" and "customer comments." Regarding "attitude" Johnson added the following note: "Appearance of office must improve." The low rating for "customer com- ments" refers to two letters Johnson received from cus- tomers about alleged rudeness by Myers. Johnson admit- ted that customer service representatives are often faced with upset and rude customers when they are calling to complain about a failure with their equipment. Johnson admitted that it is not unusual for frustrated customers to complain that it is the customer service representative who is rude. In view of this, I find it significant that Johnson admitted actually soliciting the two letters from customers about Myers' purported rudeness. This is sus- pect, indeed, when Johnson had never done this before with regard to any other employee and did so on this oc- casion only with regard to Myers. Cablevision customer service representative Sheila Ray performs the same type of functions in the satellite office in Trussville that Myers performs at Leeds. Ray, like Myers, received an "excellent" rating in only one category, i.e., knowledge of the job. Ray received a rating of "good" in six categories and a rating of "fair" in one category, i.e., productivity. In the section for comments, Castleberry noted, "Needs work in organiz- ing. I will work with her on this." Ray received a raise of $20 per week compared to Myers of $5 per week. Cablevision customer service representative Gerri Phillips did not receive a rating of "excellent" in any cat- egory. Phillips was rated "good" in six categories. Two of those "good" ratings contain parenthetical comments, however, which suggest that Phillips in fact needed some improvement. For example, under productivity Phillips was rated "good" but this was followed by the paren- thetical comment, "Could be better in front office." Fur- ther, Phillips received a rating of "fair" in the categories of "self-motivation" and "attitude and disposition." Phil- lips, like Ray, received a raise of $20 per week compared to Myers of $5 per week. Cablevision customer service representative Donna Lawson, who was hired in February 1983, also failed to receive an "excellent" rating in any category. Lawson received a rating of "good" in six categories. In two other categories, however, "self-motivation" and "pro- ductivity," Lawson received a rating of "fair." Lawson received a raise of $10 per week. Customer service representative Rhonda Lawson, hired only 2 months before the evaluation, received no "excellent" rating. In fact, the only category in which she received a rating of "good" was that of "timeliness." Lawson received a rating of "fair" in every other cate- gory but one-"productivity"-in which she was rated "needs improvement."2 Rhonda Lawson, like Donna Lawson, received a raise of $10 per week compared to Myers' raise of $5 per week. 2. Michael Handley Michael Handley was employed at Leeds as an install- er. In the October 1983 evaluation by Johnson, Handley was rated "poor" in two categories: "self-motivation" and "productivity." Handley was rated "fair" in the cate- 2 Johnson testified that "needs improvement" is synonymous with "poor " LEEDS CABLEVISION gory entitled "attitude and disposition ." In the remaining categories, Handley was rated "good." Handley received a raise of $5 per week. Cablevision installer Jeff Martin, hired only about 2 months before the evaluation , was rated "good" in six categories and "fair" in three categories, including "knowledge of the job." In the "productivity" category, Martin was rated as "needing improvement ." In addition, the comment was added that Martin was "not getting work done." Comparing the two, Handley's and Martin's evaluations are about equal . Martin, however, received a raise of $20 per week while Handley received a raise of $5 per week. 3. Bobby Freeman Bobby Freeman was hired first by Cablevision in 1980' as an installer . After working as an installer for a little less than a year, Freeman transferred to Leeds where he worked continuously thereafter as a technician. As a technician, Freeman's primary job was to repair recep- tion problems and outages experienced by customers. The October 1983 evaluation conducted by Johnson shows that Freeman was rated "good" in six categories, including "driving record" and "customer comments." Freeman was rated "fair" in three categories , including "knowledge of the job," "attitude and disposition," and "productivity." Freeman was rated "poor" in "self-moti- vation." Johnson testified that Freeman was an average employee "and that was the kind of increase I gave him." Freeman received a raise of $10 per week. Castle- berry's evaluations note that certain employees should receive an average ("AVG") increase while others should receive the maximum ("MAX"). The increases to employees who Castleberry ranked as average ranged from $10 to $25.20 per week. The average raise given by Castleberry to the average employee was $16.30 per week. Cablevision technician Gary Godsey received an eval- uation from Castleberry in October 1983 which con- tained a rating of "excellent" in one category , "good" in seven categories, and "fair" in two categories. As Re- spondent's counsel questioned Castleberry on direct ex- amination, he noted that an exhibit prepared by Re- spondent and reviewed by Castleberry prior to the trial showed that Godsey received a raise of only $10 per week. Asked why Godsey received $10 per week, Cast- leberry proceeded to explain why Godsey had received such a low raise, referring specifically to items which Godsey had left in the back of his truck "that shouldn't have been there," the fact that Godsey was "quite often late at work," and Godsey's "knowledge of the job." In Godsey's evaluation, however,, Godsey was in fact rated "good"in "knowledge of the job." Later in the trial it was determined that Godsey had not received a raise of $10 per week but rather had received a raise of $30 per week. The error on Respondent's exhibit was corrected. Castleberry's credibility, however, remains suspect. Mark Franklin was hired in August 1982 as an installer at Respondent's Gardendale facility. In an evaluation performed by Castleberry in May 1983 Franklin was rated "excellent" in two categories , "good" in five cate- gories, "fair" in three categories, and "needs improve- 111 ment" in his driving record. Franklin was promoted to technician at some time between this May evaluation and the evaluation performed in October 1983. In Castle- berry's October evaluation, Franklin was rated "fair" both in his "appearance" and his "knowledge of the job." Franklin was again rated as "needing improve- ment" in his driving record. Johnson testified that the driving record ' of technicians and installers was a critical factor in their evaluations because their job involved driving company equipment from location to location and this had a direct bearing on matters such as insur- ance costs. Franklin received a raise of $35 per week compared to Freeman's raise of $10 per week. Castleberry asserted that Franklin received such a large raise because of his change in status from installer to technician. Respondent, however, offered no evidence that such a change automatically resulted in such raises in the past. Further, Castleberry made no effort to sug- gest what portion of Franklin's substantial raise was pur- portedly due to this promotion and what portion was due to merit. I find Castleberry's purported explanation less than satisfying, particularly in view of his demon- strated tendency to manufacture explanations at will. Cablevision technician James Godsey also received a substantial raise in October 1983. Castleberry's October 1983 evaluation of James Godsey reflects that he re- ceived no "excellent" rating. Godsey received a rating of "good" in six categories. Godsey, however, was rated only "fair" in both "driving record" and "self-motiva- tion." Even more significant, however, is the fact that Godsey was rated as "needing improvement" both in his "knowledge of the job" and "timeliness." The latter cate- gory contained the parenthetical comment that Godsey was "late often." James Godsey received a raise of $25.20 per week compared to Freeman's raise of $10 per week. Castleberry asserted that James Godsey received the substantial raise he did in part because Godsey was trans- ferred to a larger area having more customers to serve. I find it incredible that Respondent would, in effect, pro- mote or give greater responsibility to an employee with Godsey's work record. This in itself suggests that a dif- ferent standard was used on Cablevision employees than was used on Leeds employees. Moreover, Castleberry does not attempt to suggest how much of the substantial raise given to James Godsey was due to his increase in responsibilities. Again I note Respondent presented no evidence to show that assignments to larger areas have resulted in such raises in the past. I find Castleberry's purported explanation unbelievable, particularly in view of Johnson's testimony that the October 1983 raises were "merit raises." IV. ANALYSIS AND CONCLUSIONS The decision in Case 10-CA-18838 and the evidence before me establish that whenever performance evalua- tions have been conducted on Cablevision and Leeds em- ployees in the past, Johnson has been involved in re- viewing all employees. This practice was not followed, however, in conducting the evaluations for Cablevision and Leeds employees in October 1983. The reasons ad- 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vanced by Respondent for using the bifurcated system which it employed this year do not ring true. Its argu- ment that Castleberry was used only to review and evaluate Cablevision employees because Castleberry was general manager of Cablevision and not general manager of Leeds is made to look rather specious in view of clear evidence that it was Castleberry, not Johnson, who ef- fectively ran the Leeds facility on a day-to-day basis. As- suming that Johnson felt some obligation to be involved in the review of Leeds employees pursuant to the judge's Order in Case 10-CA-18838 because he had conducted the evaluations of Cablevision employees in October/- November 1982, there was, nevertheless, no reason not to also involve Castleberry in the evaluation of Leeds employees, particularly in view of the fact that Johnson had to consult informally with Castleberry before he was able to conduct the reviews. Similarly, there was no reason for Johnson not to have been involved in con- ducting the evaluations of Cablevision employees in Oc- tober 1983 as he had done in the past. Respondent's spe- cious reasons for employing a bifurcated system for the first time in October 1983 itself suggests an unlawful motive, i.e., that Respondent was purposely trying to achieve bifurcated results as between the Cablevision and Leeds employees. The conclusion that in October 1983 Respondent was purposely attempting to achieve disparate results in the evaluations between Cablevision and Leeds employees is evidenced as well by Respondent's position at the bar- gaining table. At the June 2 bargaining meeting, the first bargaining session at which any substantive give-and-take took place, Respondent took the position that it was not willing to discuss wage rates until the judge's decision issued in Case 10-CA-18838. In addition to considering this below, with regard to the allegation that Respondent bargained in bad faith with the Union, I consider it as evidence of Respondent's motive for granting a discrimi- natory wage increase in October 1983. Regardless of how Respondent's position at the June 2 meeting is ana- lyzed or interpreted, the bottom line was that if Re- spondent lost in Case 10-CA-18838 and, as a result, was forced to make employees whole, Respondent was pre- pared to attempt to correct what it would consider to be an erroneous conclusion by the judge at the bargaining table or through other indirect means. There was simply no other reason for Respondent to be unwilling to dis- cuss wages in negotiations with the Union until after the judge issued his decision in that case. After the judge's decision issued, Respondent proceeded to utilize a bifur- cated evaluation and review system which resulted in Leeds employees getting a wage increase substantially less than their nonunion Cablevision counterparts. It was no coincidence which led to this result. Rather, it was a system created by Respondent which represented a de- parture from past practice with the preannounced pur- pose of granting employees less if Respondent were to lose in Case 10-CA-18838 which resulted in different standards being employed by Respondent's two evalua- tors and which resulted in Leeds employees being dis- criminated against as a result. Considering all the above, I conclude that Respondent granted wage increases to Leeds employees in October 1983 which were less than the increases granted to similarly situated Cablevision employees because Leeds employees had selected the Union as their collective-bargaining representative. Re- spondent thereby violated Section 8(a)(1) and (3) of the Act. 3 Though the complaint and notice of hearing alleges simply that Respondent failed to recognize and bargain with the Union as the representative of Leeds employees, it is apparent from oral argument at the trial and the briefs of all parties herein that the issue actually is whether Respondent engaged in bad-faith or "surface" bargaining with the Union by going through the motions of bargaining without any real desire or intent to reach agreement. I find that it did, but not necessarily for the reasons advanced by the General Counsel or the Union. Both the General Counsel and the Union argue that strong evidence of Respondent's bad faith is found in Re- spondent's acrimonious, near-violent outbursts directed at union spokesperson Norma Powell in the December 1983 bargaining session. In his brief, Respondent's counsel himself recognizes that these outbursts were unfortunate. I do not condone Respondent's outbursts. One must rec- ognize, however, that negotiations sometimes become heated and occasionally become overheated. The parties to such negotiations, each believing strongly in his own position, sometimes become frustrated and embittered. Unfortunately, such feelings sometimes lead to emotional outbursts. I note, too, that Respondent's emotional out- bursts in this case were not altogether unprovoked. On more than one occasion, Powell let it be known to Re- spondent in front of Respondent's counsel that she thought Respondent was getting poor legal advice and being "ripped off." Accordingly, I give no particular weight to Respondent's diatribe of Powell at the Decem- ber meeting. I do find, however, that certain of Respondent's ac- tions at the bargaining table evidenced that Respondent had no real desire to negotiate a collective-bargaining agreement with the Union and that Respondent took var- ious actions in order to avoid reaching such an agree- ment. These actions include the following: First, Re- spondent failed to respond to the Union's first two re- quests for bargaining . At the first negotiating meeting held on March 23, Respondent informed the Union that it had not responded to the requests and had no obliga- tion to meet with Powell since the bargaining requests had emanated from Powell rather than from Local 10902 itself. This kind of gamesmanship suggests that Respond- ent was interested in delaying the commencement of ne- 8 Even if Respondent may be found to be in conptempt of the remedial provisions of the Board's Order in Case 10-CA-18838 by failing to cease and desist from granting discriminatory wage increases, it is nevertheless appropriate for me to make a specific finding that the October 1983 wage increase violated the Act because, in granting that increase in a discrimi- natory manner, Respondent engaged in an independent unfair labor prac- tice in violation of Sec 8(a)(l) and (3) of the Act If Respondent's action is both an independent violation of the Act and in conptempt of the Board's earlier Order, it is up to the General Counsel to decide whether to employ one or both of the remedial avenues available to the General Counsel. Respondent has failed to cite any authority for the proposition that the General Counsel should be required to elect only one of alterna- tive remedial avenues available to it Accordingly, I deny Respondent's motion to dismiss the complaint on that ground LEEDS CABLEVISION gotiations as long as it could. Second, as soon as the Union requested bargaining, Respondent immediately countered by proposing to close the Leeds facility. Even if Respondent could be more efficient by consolidating some of its operations, Respondent offered no explana- tion why the only facility which it proposed closing was also the only facility where employees had selected the Union to represent them. This, coupled with the fact that Respondent has now allowed this "proposal" to fall by the wayside, suggests that Respondent was simply en- gaged in a tactical maneuver to subvert substantive bar- gaining. Third, at the June 2 bargaining meeting, Re- spondent informed the Union that it was not willing to discuss wages until the judge issued his decision in Case 10-CA-18838. Fourth, after the judge issued his deci- sion, Respondent refused to make any proposal regarding wages or Respondent's evaluation system other than for Respondent to continue as it had in the past to evaluate employees and grant raises as Respondent, in its own dis- cretion, saw fit. Respondent offered no evidence to show that some objective criteria for evaluating employees could not be established. Insistence to the point of im- passe on retaining unfettered discretion over wage in- creases has long been recognized as an indicia of bad faith. Fifth, in October 1983 Respondent granted smaller raises to Leeds employees and larger raises to Cablevi- sion employees because Leeds employees had elected the Union as their collective-bargaining representative. Sixth, after granting the discriminatory wage increases in Octo- ber 1983, Respondent refused to consider any wage in- crease for Leeds employees beyond what it had already granted them in a discriminatory manner. Seventh, in the sixth and final bargaining meeting held on December 5, Respondent's counsel Davis stated to Powell, "Norma, why don't y'all just admit that you don't have any strength out there and leave these employees alone?" Re- spondent argues that throughout negotiations it was simply engaging in hard bargaining in order to achieve the most desirable contract it could. This statement by Davis, however, reveals that Respondent's true purpose was to taunt and frustrate the Union to such a point that the Union would abandon its attempt to represent the Leeds employees. Eighth, during that same December meeting;, after Respondent's emotional outburst caused the meeting to come to an abrupt end, employee Bobby Freeman approached Johnson and told Johnson he did not blame Johnson for wanting to run his company by himself but that he thought the employees deserved more than they were getting. Johnson replied, "Well, there's other ways besides a union." This statement by Johnson, like Davis' statement to Powell, reveals that Respond- ent's motive was not to achieve the best agreement it could with the Union but rather to frustrate negotiations to such a point that employees would pick some way other than the Union to try to improve their wages and other working conditions. In other words, Respondent's purpose throughout negotiations was to try to frustrate negotiations to such a point that employees would aban- don the Union. Johnson's own statement to Freeman, as well as Respondent's other actions described above, evi- denced this as Respondent's real aim throughout negotia- tions. Accordingly, I find that by engaging in such con- 113 duct, Respondent failed to bargain in good faith with the Union, and thereby violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. Respondent Leeds Cablevision, inc. and Cablevision Company, Inc. are a single integrated business enterprise and a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, AFL-CIO, Local 10902, is a labor organization within the meaning of Section 2(5) of the Act. 3. In October 1983, Respondent granted employees of Leeds Cablevision wage increases less than it granted to employees of Cablevision Company because employees of Leeds had selected the Union as their collective-bar- gaining representative, and Respondent thereby violated Section 8(a)(1) and (3) of the Act. 4. Throughout the negotiations which took place be- tween the Union and Respondent after August 28, 1983,4 Respondent has failed and refused to bargain in good faith with the Union as the exclusive bargaining repre- sentative of Leeds employees, and Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 5. The unfair labor practices which Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(l), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent granted employees of Leeds Cablevision, Inc. wage increases less than it grant- ed to employees of Cablevision Company, Inc. because employees of Leeds had selected the Union as their col- lective-bargaining representative, I shall recommend that Leeds employees be made whole by granting them wage increases not less than the average wage increases grant- ed to employees of Cablevision Company. All loss of earnings and benefits shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). Having found that Respondent has failed and refused to bargain in good faith with the Union, I shall recom- 4 Though Respondent's course of bad-faith bargaining with the Union may have commenced earlier than August 28, 1983, I am precluded by Sec 10(b) of the Act from finding that Respondent engaged in an unfair labor practice preceding that date Accordingly, evidence of Respond- ent's actions prior to that date is considered as background evidence re- flecting Respondent's course of conduct which continued throughout its negotiations with the Union. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mend that Respondent be ordered, on request, to bargain collectively in good faith with the Union as the exclusive bargaining representative of its employees at Leeds and, in the event that an understanding is reached, embody such understanding in a signed agreement, and to post the attached notice. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommend- ed," ORDER The Respondent, Leeds Cablevision, Inc. and Cablevi- sion Company, Inc., Leeds, Alabama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Granting employees of Leeds Cablevision wage in- creases less than its grants to employees of Cablevision Company because Leeds employees have selected the Union as their collective-bargaining representative. (b) Failing and refusing to bargain in good faith with the Union as the exclusive bargaining representative of Leeds employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act. (a) Make whole employees of Leeds Cablevision, Inc. for any loss of earnings or benefits they may have suf- fered by reason of the discrimination against them by 5 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses, granting them wage increases retroactive to October 1983 not less than the average wage increases granted to employees of Cablevision Company, with appropriate in- terest. (b) On request, bargain with the Union as the exclu- sive representative of the employees in the following ap- propriate unit concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility located in Leeds, Alabama, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Re- spondent'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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "