Cablevision Industries

22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cablevision Industries, Finger Lakes Division and Communication Workers of America. Cases 3- CA-12830 and 3-CA-13080 26 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 30 October 1986 Administrative Law Judge Robert T. Snyder issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party filed answering briefs. 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 briefs and- has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Cablevision Industries, Finger Lakes Division, Geneva, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 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. - Michael Cooperman, Esq., for the General Counsel. Sheldon Rosenberg, Esq. (Rosenberg & Ufberg Esqs.), of Scranton, Pennsylvania, for the Respondent. Stuart M. Pohl, Esq. (Lipsitz, Green, Fahringer, Roll, Schuller & James, Esqs.), of Buffalo, New York, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge. This case was heard by me on 14 and 15 May 1986 at Geneva, New York. The consolidated amended com- plaint, which issued on 2 July 1986, alleges that Cablevi- sion Industries, Finger Lakes Division (Respondent, the Company, or Cablevision) failed and refused to execute a written contract embodying an agreement arrived at with the Communication Workers of America (the Union or CWA) as certified bargaining agent for an ap- propriate unit of its employees, and thereafter unilateral- ly granted pay increases not in conformity with the agreement and new clothing and shoe benefits, in viola- tion of Section 8(a)(5), and (1) of the Act. The consoli- dated amended complaint also alleges that Respondent threatened employees with the loss of profit-sharing plan benefits because they chose to be represented by the Union for purposes of collective bargaining, through spe- cific language in its profit-sharing plan coerced employ- ees in their activities on behalf of the Union by condi- tioning participation in the plan or being unrepresented by any union, and told union employees they would be granted wage increases less than they would have re- ceived if they had not selected the Union to represent them, in violation of Section 8(a)(1) of the Act. In an answer filed 10 March 1986, Respondent denied the conclusionary allegations of the consolidated amend- ed complaint. The parties were each represented by counsel at the hearing and were provided full opportuni- ty to introduce relevant evidence, to examine and cross- examine witnesses, to make opening and closing state- ments, and to file briefs with me. The parties have filed timely briefs which have been carefully considered. On my observation of the witnesses, the entire record in this proceeding, and the briefs filed herein, I make the following FINDINGS OF FACT 1. JURISDICTIONAL FACTS At all material times, Respondent, a New York State corporation with an office and place of business in Geneva, New York (Respondent's facility), has been en- gaged in the business of providing cable television serv- ices to the Finger Lakes Region of New York. Annually, Respondent, in the course and conduct of its business op- erations, receives gross revenues in excess of $100,000 and purchases services valued in excess of $50,000 which are furnished to Respondent at its Geneva, New York fa- cility directly from points outside the State of New York. Respondent admits, and I find, that at all times material, it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that at all times ma- terial the Union has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Refusal to Execute a Written Contract Embodying an Alleged Collective-Bargaining Agreement and its Subsequent Unilateral Grants of Benefits A Stipulation for Certification Upon Consent Election having been executed by the parties on 30 July 1984, a representation election was conducted among Respond- ent's employees on 5 September 1984 in a unit consisting of all regular full-time installers, technicians, converter control employees, construction employees, and dis- patchers. The Union won the election by a vote of 14 to 283 NLRB No. 3 CABLEVISION INDUSTRIES 23 13 and, on 13 September 1984, was certified by the Re- gional Director as exclusive collective-bargaining repre- sentative of the employees in the unit described. Collective-bargaining negotiations commenced in Oc- tober 1984, and continued at the rate of approximately one meeting a month until June 1985. The union-negoti- ating team included CWA Representatives Tim Dailor and Ron Woods and employees Jeff Stowell and Tom Deane, with Dailor at first and then Woods, who missed some of the earlier meetings, serving as chief spokesman. The Cablevision negotiating team consisted of Attorney Sheldon Rosenberg and Director of Personnel Brain Connors, with Rosenberg acting as chief spokesman. In response to inquiries about his authority posed by Woods, Rosenberg explained that he was the chief nego- tiator and the person with the authority to reach tenta- tive agreement. According to the uncontradicted testimony of Woods, from time- to time during the negotiations, Rosenberg made it clear that the only person he had to answer to at Cablevision was Alan Gerry, its president. On occasion, when the Union made specific proposals, Rosenberg re- sponded that he would discuss the demand with Gerry, and when Rosenberg rejected union demands he noted that he had a discussion with Gerry on the matter. Gerry was the sole incorporator of the Respondent corporation in 1974, and at all times material to this pro- ceeding has been the sole shareholder, director, and chief executive officer of the Respondent primarily responsible for all the operations of the Company. Until removed by Gerry; by resolution he adopted on 13 March 1'986 as sole shareholder, the other two directors of the Respond- ent corporation were Bette Nichols, his personal secre- tary and the corporate secretary, and John O'Neill, the Respondent's treasurer, and chief, financial officer. On 28 February 1985 Gerry arranged by resolution for the cre- ation of the office of chairman and chief executive offi- cer, which would excercise all powers formally exercised by the president. 'Gerry, previously president, was not elected to the new post, and Roger Turner was elected president. Another individual, Rodney Cornelius, was elected executive vice president. During the course of negotiations, various proposals and counterproposals were exchanged. A union proposal submitted on 26 February 1985 included a provision for retention by employees of all existing benefits by provid- ing for continuation of all -rights and privileges now ex- isting and not specifically altered, amended, or deleted by this agreement. This provision was not accepted by Respondent. The Company did propose to continue the present health, hospital, dental, and life insurance cover- age or their equivalent. According to Woods, the Cablevision negotiators' were insisting on inclusion of their language in any contract to which they would agree. Rosenberg had also stated he was going to put all the Company's proposals together in one package. By the meeting held in April 1985, when Rosenberg advised that he would not be available during May, at Woods' insistence; Rosenberg agreed to submit a package to the Union through the mail. A ninth negotiation session was, held on 2 May 1985, attended by the persons previously described, . as well as Federal Mediator Robert Bowling. According to Con- nors' typewritten notes of this session, the Union, through Bowling, asked for a complete contract by the following day. When Rosenberg- advised this was not possible, Bowling advised that the Union was prepared to accept from the Respondent a final offer. A verbatim transcript of the notes at this point follows: Mr. Rosenberg advised the mediator that we would, in fact do this, and we therefore cancelled the meet- ing scheduled for 5/3/85. Mr. Rosenberg stated he would return to his. office and prepare this docu- ment. He also advised the mediator that he would have to meet with the representatives from Cablevision to see if this particular package was satisfactory to them. A tentative meeting is set for Monday, 5/6/85 at 1:30 p.m. Assuming that the drafted copy is avail- able at this time and is approved by the Cablevision representatives, the item will be mailed to the union and federal mediator on Tuesday. Subsequent to their receiving this document, another date will then be' set for a negotiation session. Mr. Rosenberg will be out of the country during the next month, however, his partner, Mr. Ufsberg, [sic] will be available to come to this session. The mediator was advised that if this is, to be our final offer, we will not change any items in the document which is to be prepared. [Em- phasis added.] Rosenberg had the document prepared and submitted it to the Union on 7 May 1985. It is entitled "Final Offer." In a letter dated 7 May 1985, which accompanied the submission, Rosenberg, after stating that he was en- closing the Company's final offer in accordance with the Federal mediator's statement to him on 2 May that the Union wanted a complete and final offer to take to the employees, goes on to note that the offer is for a 3-year, contract and contains a large increase in the first year. That increase was described by Woods as being at least two times the industry average and by Connors as 3-1/2 times larger than general wage increases in the, country at that time. The proposal's 'average increase was be- tween 16 and 17 percent in the first year and 1-1/2 per- cent in each of the next 2 years. Connors described this offer as being high to buy the working, clauses of the Company's proposal. The management-rights clause in particular, among others, appears to have been very broad and comprehensive. In another clause, the Compa- ny retained the right to contract out all or part of the work performed by bargaining . unit employees. Neither did the final offer contain a union-security or dues- checkoff clause. Paragraph 29 entitled "`Duration" pro- vides, in part: "This Agreement shall go into full force and effect when it is ratified by the Union and 'the Com- pany" The next bargaining session was held on 20 June 1985. Woods, Dailor, and Stowell attended for the Union, Rosenberg and Connors attended for the Company, and Mediator Bowling was also present. The parties were in separate rooms. According to Woods' uncontradicted testimony, through the mediator Woods, inquired of the company team if there was any room for continued ne- 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gotiations or if they felt as though this was it . Bowling and Rosenberg came into the Union's room. Rosenberg said this was a final offer, and as far as he was con- cerned, as the chief spokesman for the Company, negoti- ations were concluded. Woods then signed the final offer document and said, "[It] looks like we have agreed and that we are prepared to put that into effect." Rosenberg asked what he meant by that. Woods replied, "[W]ell as far as we were concerned, you're not going to go any further, we're willing to accept this agreement." Rosen- berg then asked if in fact the membership was going to have this ratified. After first disputing Rosenberg's right to that information, the necessity of membership approv- al and its relevance, Woods did inform Rosenberg that it was the Union's policy to take the agreement to the membership for ratification. Rosenberg said fine, got up, and started out of the room. Woods asked "[W]here are you going?" Rosenberg said, "[C]all me when you get it ratified." Woods said, "[L]ook you've given the Union a final offer. I signed that final offer. I'm not leaving here without your signature on here as a final offer or a joint signed stipulation as to what this agreement represents." Rosenberg then agreed to sign the document. He wrote "Tentative agreement subject to ratification by Union membership & Co B of D" and signed his name below. Again Rosenberg got up to leave. Woods said "[W]ait a minute , what does this mean?" Rosenberg said, "[I]t means exactly what it says." Woods then said, "[W]ell, as far as I'm concerned, this is news. You've told us all through these negotiations that you were em- powered to sign and reach tentative agreement for the Company and now you're saying it has to be ratified by the Board of Directors?" Rosenberg said, "[T]hat is Alan." Woods asked, "Alan meaning Alan Gerry, Presi- dent of the Company?" Rosenberg said,"[Y]es." Woods asked, "[W]ell, but why? You told me that prior to put- ting this package together that it was your intent to meet with - Mr. Gerry before you gave it to us. It's no differ- ent. Why are you taking it back to Mr. Gerry." Rosen- berg said, "[D]on't worry., That's a mere formality. I'm going to recommend it and as far as I am concerned, that's all that's necessary." And with that, the meeting concluded. Woods then explained his comment about Rosenberg having previously mentioned taking the package to Alan Gerry. Prior to Rosenberg sending him the final offer, when Rosenberg said he was going to put it together, he said he would then show it to Alan Gerry first before he sent it to the Union to get Gerry's okay on it as a collec- tive document. Rosenberg said that most of the items he had discussed with President Gerry in the past, but Gerry wanted to see them as a collective document. ' According to Woods, the meeting of 20 June 1985 was the first time that either Rosenberg or Connors had ever mentioned the board of directors. Although Woods was aware of paragraph 29 of the final offer, which referred, inter alia, to ratification by the Company as a condition precedent to its going into full force and effect, it was his understanding based on Rosenberg's statements during negotiations that the reference was to Gerry's ap- proval, and that such approval or ratification was al- ready completed prior to submission of the final offer to the Union. Rosenberg did not testify at the hearing. Woods im- pressed me as a thorough and thoughtful, person who made every effort to be as careful and accurate as he could be in the presentation of his narrative and in his responses on cross-examination. I credit his attribution of comments to Rosenberg on 20 June and earlier meetings that Rosenberg had or would discuss the Company's pro- posals, in particular the Company's final offer, with Alan Gerry. To a large extent, Connors' notes- of the 2 May negotiation session corroborate that Rosenberg planned to obtain preliminary approval of that offer from the re- sponsible company representatives. I infer that the key representative ' whose approval was necessary was Gerry and that, in conformity with Woods' testimony, Rosen- berg did clear the proposal with Gerry. A few days after the 20 June meeting the employees in the bargaining- unit met and voted to reject the agree- ment which Woods and Rosenberg had signed. Woods telephoned Connors to inform him of the rejection. Con- nors stated he was very disappointed, he wanted to get the negotiations over with, and he asked what could be done specifically to get the negotiations completed. Woods told him about the two items which had led to the rejection. One was the Company's proposal on sub- contracting of their work and the second was the -ab- sence of a payroll deduction of dues for those employees who chose to be members of the Union. Connors asked what was the next move. Woods said to get back to the bargaining table. Connors said, "[L]et's do that as quick- ly as we can, let's get a meeting and get this contract completed." Mediator Bowling set up another meeting for 27 June. At this meeting, attended by the same parties as on 20 June, Woods and the other union people were in a sepa- rate room. Woods asked the mediator to take the two items he had previously discussed with Connors to the management team. Rosenberg and Connors then came back and Rosenberg said, "I've got the message from the Mediator and the answer is no. A final offer is a final offer, because once I give you my final offer. I don't change my final offer."' Woods replied that he under- stood that but "there's been a rejection and what we're proposing is something that we feel will get the contract ratified and accepted." Rosenberg said, "I repeat, I never change my final offer; that's not the way I negotiate." Woods said, "[N]ever is a long time," and Rosenberg said, "[O]h well, if there's been a prolonged strike, then I may, but under these circumstances I never change my final offer." Woods then said, "[L]ook, this is a first con- tract, there's been this-rejection, what we're trying to do is get it completed. From the Union's standpoint, this language, this contract is totally one-sided anyway, it's all of your proposals, the record reflects this with very minor exceptions, and, as far as this Union is concerned, you got the language you wanted and -we should put this into effect with these minor changes. And I'm very seri- ously- requesting that, you do that." Connors interrupted and asked for a company caucus and the two left. CABLEVISION INDUSTRIES 25 They shortly returned' and Rosenberg said, = `-`[O]kay, we'll take your two items back to Alan to see what he says and then we will get back to you." Woods said, "[W]ell, look, why don't you call Alan on the phone and talk to him about it so that we can get this wrapped up." Rosenberg said, "Alan is in Florida, and he's out of tele- phone contact." However, he would be back by the fol- lowing Monday, 1 July, and they would meet with him and Rosenberg agreed to give a call as ,to what the Com- pany's response was. Woods said that the Union had a meeting, scheduled for 2 July when they intended to put the results of this meeting up to another ratification vote and they would really appreciate his answer before then. Rosenberg said, "[D]on't worry, I'll get back to you Monday." Woods did not hear from Rosenberg on either Monday, 1 July, or Tuesday, 2 July. He was in Buffalo on negotiations and was unsuccessful in reaching Rosen- berg and Connors. Woods did learn on 2 July from President Robert Flavin of Local 1170, CWA, who had received a phone call from Connors just prior to the rati- fication meeting, that the Company had rejected the two items and was also unilaterally going to put the wage portion of its proposal into effect and would only be available to continue negotiations on other items in their final offer. At the union meeting on 2 July, the Union ratified the Company's final offer. The next day Woods called Con- nors to tell him that the contract was ratified. Woods contacted Connors because in his experience Connors was easier to reach then Rosenberg, who was away from his office a lot. Connors responded, "[G]ood, that means its over, it's completed, we can put this to bed." Connors asked, "[W]hat was the next step." Woods said, "[J]ust send me two signed copies of the complete document, by Alan, Sheldon, or yourself, whoever is going to sign for the Company. I will sign both and return one to you." Connors asked Woods to call Sheldon (Rosenberg) for those kind of details. Woods suggested they both call Rosenberg and Connors agreed. When Woods was un- successful in reaching Rosenberg by telephone he sent a letter. In the letter, dated 8 July 1985 and addressed to Connors, Woods confirmed their telephone conversation of 3 July and the fact of membership ratification of the tentative agreement on 2 July, advising that the effective date should be I July, and requesting that two signed copies of the agreement, to be executed by Respondent, be returned to Woods. Woods had no' further conversations with either Con- nors or Rosenberg: About 14 July 1985, Woods received a letter dated 12 July with an attachment from Rosen- berg informing him that Rosenberg had -received a com- munication from Cablevision's board of directors advis- ing him that they had rejected and would not'ratify the Company's' final offer made on' 7 May ' 1985 until the fol- lowing changes (set forth in the attachment) to the final offer were made and agreed upon and ratified by the union membership and company board of directors. In the letter Rosenberg asked Woods to let him know if and when the membership ratifies the amended final offer. He also advised of the Company's availability for contin- ued negotiations and to explain the board of directors' resolution. Attached „ to the letter were 2-1/3 pages of changes to be made to the final offer. Among them were changes removing the clause permitting contracting out of all bargaining unit work from the grievance and arbi- tration procedure; restricting job classification seniority for purposes, among others, of layoff and recall to only one of the three locations encompassed by the certified bargaining unit, i.e., wherever the employee works as a regular full-time employee; adding a right to make all transfers of employees to other jobs and locations, now including permanent transfers, irrespective of seniority; severely restricting the jurisdiction of the arbitrator to review company disciplinary actions; and adding a fourth year to the agreement during which wages would increase only minimally. No further meetings were held and, ultimately, the Union filed its initial unfair labor charge in Case 3-CA- 12830 on 6 August 1985 alleging a refusal to bargain in good faith by the foregoing conduct. Respondent's sole witness was Personnel Director Connors. Attorney Rosenberg did not testify. Neither did Alan Gerry. Connors, initially called as a witness by the General Counsel, acknowledged that, on occasion during the course of negotiations, he reported back to Alan Gerry what was going on at negotiations. Connors, also noted that at the beginning of negotiations a meeting was held, attended by Ed Whalen, at the time Cablevi- sion vice president and the company official to whom he reported,1 Gerry, Rosenberg, and himself, to review the, Company's position. Asked twice whether the Compa- ny's proposals were formulated and discussed at this meeting or drafted based on the outcome of the meeting, Connors was evasive, first responding that "there was a meeting to discuss how we would proceed" (Tr. 178) and then responding that "Mr. Rosenberg subsequently drafted some proposals." (Tr. 179.) It was Connors' testimony that Gerry was informed as to the status of negotiations not only by himself, but he assumed Gerry was, kept apprised by his superiors, Fred Schulte and Roger Turner, president since 28 February 1985, including about the wage package in the Compa- ny's 7 May final offer, because "that's what they normal- ly do." (Tr. 220.) But also according to Connors, Turner probably was aware of the contents of the Company's final offer but "not necessarily" Gerry. Connors also agreed, after reviewing his notes of the negotiation meet- ing of 27 June 1985, that he met with Gerry on 30 June to discuss, inter alia, the state of contract negotiations. During his telephone conversation with Ron Woods on 3 July, when Woods told him the Company's final offer had been ratified, Connors made no reference to that proposal having been withdrawn. Connors also agreed that the Company's wage package, which was unilaterally put into effect on 2 July, had to be approved by Gerry before it was implemented. On his examination by Respondent's counsel, Connors testified that during April, May, June, and July 1985, Gerry was involved in negotiations for the purchase by ' At the time of the hearing, Connors reported to Fred Schulte, direc- tor of operations, Whalen having left the Company in the interim. 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent of cable systems located in Florida, Mary- land, and Michigan, and more recently systems in. Penn- sylvania and Tennessee. Those involved in the negotia- tions for the Company have been Gerry and Rodney Cornelius, executive vice president. Although Connors at first claimed on redirect exami- nation by the General Counsel that at the very first ne- gotiation session, in October 1984 when the parties made their, ground rules for negotiations, the Company men- tioned that any agreement reached was subject to ratifi- cation by a board of directors (Tr. 257), later on re- cross-examination by Respondent's counsel, Connors, in contradiction of his earlier claim, said that the under- standing reached at the first meeting, was that "anything we decided between us was tentative pending ratification by the Company and by the employees." (Tr. 267.) This was similar to the language which was later incorporated as article 29 into the Company's final offer. Re'spondent's minutes related to company rejection of its own proposal following union 'ratification disclose the following: At a special meeting of the board of directors held at the Company's headquarters in Liberty, New York, on 8 July 1985 at 10 a.m. with Gerry, O'Neill, Cornelius, and Nichols in attendance, a resolution was adopted' that, for matters pertaining to the operational activities of the Company and, in particular, any matters involving the negotiations being conducted in regard to the C.W.A. and Finger Lakes Division of the Company, Roger Turner, president, and Fred Schulte, director of operations, shall sit as members of the board of directors. Then, at another special meeting of the board of direc- tors held later in the day, on motion made by Turner and seconded by Schulte, a resolution was unanimously passed rejecting the Company's final offer because a union official offered Dave Johnson, an, employee, a $5000 bribe to vote for ratification of the final offer at the Union's meeting on 2 July 1985, and because the Company's negotiating team went beyond their author- ity. The resolution then went on to list those changes, previously described, which would be required to be made, agreed upon, and ratified by the union member- ship before the board of directors would ratify the final offer. Among "facts" given the board of directors, recited early in the resolution, was one reporting that the Com- pany's negotiating team-did not report regularly and in detail about the offers and counteroffers made by them and the Union in contract negotiations. Another recited that on l July 1985 after the board of directors met, for the purpose of examining the final offer, only discussing the wage and fringe benefits parts of the offer, it agreed that because there was no disagreement on the wage and fringe benefits items, the board would unilaterally imple- ment those elements, but would reserve the right to ex- amine and ratify, or not ratify, the remaining details of the final offer. A third recited that both members of the Company's team, Rosenberg and Connors, strongly rec- ommended that every detail of the final offer of 7 May 1985 be ratified by the, board. Other conduct on the part of Respondent alleged as violative of its bargaining duty includes certain unilateral changes in wages and terms and conditions of employ- meat which followed the Company's refusal to execute the final offer. According to employees Stowell and Deane, some of the unit employees, approximately half of them, received a wage increase in January 1986. Neither of them re- ceived a raise at that time. They believed the raises were only provided to those employees who were not yet at the top of their scale for their particular job classifica- tion. Under cross-examination, Deane, employed since 1979, testified that if an employee was due a raise under the Company's wage plan, it was received in January. A review of the General Counsel's exhibit documenting employee salary history shows that, effective 8 July 1985, each of the unit employees received- an increase and, effective either 3 or 13 January 1986, 15 of the 26 employees received another raise. Under article 25, entitled "Wages," of the Company's final offer, ratified by the union members in the bargain- ing unit on 2 July, each job position had a rate shown for each of 3 years with three different rates shown for each year depending on whether the employee in the po- sition was in the first, second,, or third year on job. As explained by Woods, without contradiction, the increase each year would take effect for each employee in a par- ticular position on his anniversary date in that job. Al- though the Company did put the different increases due employees in each position under its final offer, into effect in or close to what would have been the first year of the contract, near the beginning of July- 1985, it gave further increases to certain of its employees uniformly in January 1986, and not on their anniversary dates of em- ployment as called for in the final offer. In the cases of Deane, Stowell, and a few other employees, because of their length of employment, the raises they- received in July 1985 placed, them -immediately at the third-year-in- job top rate, and the Company refrained from granting the second-year increase to them in January 1986, unlike all other employees who were not yet at the third-year rate. By granting raises in January 1986 to 15 employees the Company apparently continued but modified a prac- tice predating its bargaining relationship2 and failed to comply with the terms of its finaloffer. Stowell and Deane also, testified to their receipt, along with all other unit employees, in January or February 1986 of winter outerwear, jackets for use while working for the Company, but-which they kept at their homes. The Company had never previously supplied any work clothes to its employees. In response to a General Coun- sel subpoena, Connors-noted in writing that winter jack- ets were purchased in these months for the Company's northern system field personnel employed at ,10 different locations, including 26, employed at Finger Lakes, at a total cost of $6055. Stowell also testified without contradiction that in Jan- uary, 1986 the Company started to supply the unit em- ployees with a boot allowance i, by giving $54 a year toward the purchase of a pair of, work, boots; to any em- ployee who wanted it. - 2 According to Connors, prior to 1986 the Company had a practice of giving employees wage increases twice a year, including one in January, but stn January 1986 this was changed to once a year in January. CABLEVISION INDUSTRIES 27 The evidence showed that at an employee meeting called by the Company in early November 1984, at the office garage in Geneva near the end of the workday, addressed by Connors and attended by another manage- ment official, Connors asked if there were any questions about what the Company could do for them. An uniden- tified employee asked if the Company would supply jackets and Connors said that he would look into it and get back to them at a later time. At a subsequent meeting of the employees called in January 1986, Connors, ac- companied by another management official, said the Company was going to supply, jackets and took down the sizes of the employees who wrote their names on a list. Connors disputed the statement attributed to him by Deane asking employees what the Company could do for them, claiming that he asked "if there were any prob- lems or something-like that I'd be happy to help them" (Tr. 259), but Deane stood by it during vigorous cross- examination, even concluding emphatically in response to- one question asked about what he had gathered from Connors' remark that "they had something for us." (Tr. 106.) Connors, as noted previously, was evasive and con- tradictory in his testimony, he also testified in conclu- sionary -form instead of reciting the substance of conver- sations as he recalled them (see, e.g., Tr. 298-300), and I credit Deane in his recital of this matter. The Company's final offer contained no provisions pursuant to which the Company agreed to provide cloth- ing for use on the job. Neither did the Company offer any evidence, nor does the record show, that Respond- ent gave prior notice to or offered to bargain with the Union about these benefits. B. Respondent's Alleged Threats of Loss of Benefits Independent of its alleged refusal to execute the pro- posal ratified by the Union's members and the unilateral changes it made in terms and conditions of employment, Respondent is alleged to have engaged in certain other conduct coercive' of employee, rights under Section 8(a)(1). - At the- November meeting previously described, em- ployee Stowell testified, Connors told the assembled em- ployees that the contract negotiations were stalled be- cause of the Union. He went on to say that if an employ- ee were to-be covered by a union contract the Company would no longer make him a participant in its profit- sharing plan. When Stowell asked Connors to explain this further, Connors said that the employee covered by a union contract would retain his share in the plan and interest on that share would continue to be added but that the Company would no longer put yearly contribu- tions on his behalf- into the profit-sharing plan. Deane corroborated Stowell as to these remarks by Connors at the November meeting. According to a composite of testimony by Stowell and Deane, at another employee meeting called by the Com- pany in the first or second week of December 1985, ad- dressed this time by Alan Gerry and also attended by Connors and another management official, Gerry men- tioned that it had been quite a while since he had been up to talk to them.3 He said he had to be careful what he said because he did not want any problems with the Union and any lawsuit. He was there against the wishes of the company attorney but he wanted to come up and talk to them anyway, face to face, and have an informa- tional-type meeting. Stowell could not recall specific re- marks, but Deane said Gerry talked of the 5-percent in- crease that other people in the Company were getting versus the 1-1/2 percent that they, the unit employees, were not getting because of the Union. After Gerry's general remarks, Deane, in a group with other employ- ees, asked Gerry about the profit-sharing plan. Gerry said that once, a long time ago, he wrote a clause in the profit-sharing plan that if anyone was represented by a union-type situation he could not have them be a partici- pant in the plan. The Cablevision Industries profit-sharing plan and trust, in full force and effect at all times material to this proceeding, in article 3.1 entitled "Eligibility" provides: "Members of a collective bargaining unit will not be eli- gible for participation in this Plan." According to Stowell, at the company meeting held early in January 1986, Connors repeated his earlier re- marks about the profit-sharing plan, saying that "if you're covered by a union contract you will not be a participant in the plan." The other company official, who was probably Schulte, read figures from a piece of paper he was holding, comparing the 5-percent raise the rest of the employees in the Company were getting with' the 1-1/2 percent listed in the Company's final offer. This official said the average employee would be losing around $530. He also said, "[I]f you're not a participant in the profit sharing plan you would lose approximately eight hundred and some dollars a year because you're part of a contract in the Union." Connors acknowleged that he spoke with the employ- ees in the bargaining unit concerning the profit-sharing plan. At first recalling his remarks as having been made shortly after the bargaining session of 27 June 1985, after being refreshed that they probably occurred at the meet- ing at which there was a discussion of jackets and/or boots, Connors then said he dealt with the plan at em- ployee meetings in November 1985 and January 1986. It was Connors' testimony that the subject came up for the very first time during the course of the negotiations by way of a question by one of the employees. He was asked what the status of the profit-sharing plan was with the contract, and he told the employees at that time that it had never been brought up, that it was not part of the package, that it had not been incorporated into the pro- posed contract being negotiated, and that the way it stood anybody in the bargaining unit would not be re- ceiving future profit-sharing contributions. They would not lose any moneys that were in the plan for them and the accrued interest that their shares were earning would be given to them. Although Connors agreed there was further discussion following his remark, his testimony here was vague. Connors further testified that at the Jan- 8 Gerry came to the Finger Lakes Division only a couple of times a year 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD uary 1986 meeting, a similar question from an employee elicited a similar response. When asked if he had made any reference to the profit-sharing plan article which ex- cludes bargaining unit employees from coverage, Con- nors said he did not know whether he had, he did not remember, he was aware of that article at the time, but he did not feel it was necessary to do so because the sub- ject matter had never been raised in the negotiations. Connors-also testified that the company meeting called among employees in January 1986 was held after raises to some employees in the unit, as well as to other em- ployees, had been received. According to Connors, one of the unit employees present said he understood that some of the other employees received a 5-percent in- crease if they had been at maximum status on their step on their scale. Connors explained that this in fact did happen; the other employees of the Company did receive a 5-percent adjusted wage increase. Another employee asked what would happen if the contract was in effect and Connors said that there was no provision for the 5- percent increase in the contract. The first year there was a very large increase; the second year of the contract called for a 1-1/2-percent increase. I credit the employee witnesses, Stowell and Deane, who corroborated each other that Connors, in Novem- ber 1985 and January 1986, told employees that if they were covered by a union contract they would lose their continued participation in the Company's profit-sharing plan. Gerry did not testify. Accordingly, the remarks at- tributed to him by Deane at a December 1985 meeting, in which Gerry referred to the clause excluding members of a collective-bargaining unit from participation in the profit-sharing plan, are credited. They show that the basis for Connors' and the other company official's re- marks dealing with the unit employees' exclusion from further participation in the plan made at both the No- vember 1985 and January 1986 meetings was the plan's written prohibition and not the alleged failure of the union negotiators to raise the issue of continued cover- age during the negotiation sessions. Connors, in particu- lar, who at first failed to deal with the anomaly that the Company offered and granted certain benefits, jackets, and a work shoe allowance, not provided for in the Company's final offer, while it refused to continue par- ticipation in the profit-sharing plan allegedly because it was not included in the final offer, finally relied on the plan's written exclusion for the Company's announce- ments at the three employee meetings that employees would no longer be receiving the plan's benefits. (Tr. 314, LL. 13-17.) It is also clear, and I find, contrary to Connors' inter- pretation, that the company spokesmen at the January 1986 meeting in particular, independent of employee questions, contrasted the minimal increases unit employ- ees would receive under, the Company' s final , offer with the more generous increases nonunit employees not rep- resented by the union were then being granted. The re- marks attributed to Gerry at the December meeting, and to the company official at the January 1986 meeting, who graphically portrayed the financial losses unit em- ployees were incurring by adhering to the Union through the negotiations and its breakdown since July 1985, reinforce my findings in this regard. C. Analysis and Conclusions Dealing first with the Company's alleged refusal to bargain, the basic issue in this case is whether the parties had arrived at a collective-bargaining agreement when the union membership ratified the Company's final offer on 2 July 1985 before the Company had removed any portion of its offer from the bargaining table. So long as the Company's offer remained outstanding, the Union's acceptance of it, evidenced by the 2 July ratification by its membership, would, under normal principles of con- tract law applicable here, ripen into a fully enforceable agreement, provided the Company's offer was not sub- ject to any condition subsequent of which the respective parties had notice. The condition subsequent which, Re- spondent urges, forstalled agreement was the known re- quirement that the Company's offer was subject to ap- proval by its board of directors. Respondent argues that once that board rejected the tentative accord, agreement was not achieved and the Company could insist on union acquiescence with changes in certain paragraphs of the offer contained in the board's resolution of 8 July -1985. The Union having refused to agree to the changes insist- ed upon, Respondent finally argues it has not violated its duty to bargain. The General Counsel and the Union counter Respond- ent's defense by urging that the actions of the Company's negotiators bound Respondent to the terms of its final offer by evidence that the Union's negotiators were led to believe by the Company's negotiators that final ap- proval of the terms of the final offer had been obtained from the necessary company principal and, accordingly, that the negotiators' approval thus' represented final ap- proval of the agreement. These countervailing contentions thus place in issue whether the Company's negotiators bound Respondent under the doctrine of apparent authority. Notwithstand- ing prior reservations by Attorney Rosenberg of the right of Respondent's board of directors-in reality Re- spondent's chief executive officer and chairman, Alan Gerry-to approve and ratify any tentative agreement reached by Rosenberg, Rosenberg and Connors did manifest by their actions that such approval had indeed been obtained when Rosenberg executed the agreement. The Board has recently enunciated the governing prin- ciples in the following language: It is well established that a principal may limit its agent's negotiating authority by affirmative, clear, and timely notice to the other party that any tenta- tive agreement is contingent upon subsequent ratifi- cation. E.g., University of Bridgeport, 229 NLRB 1074 (1977); Aptos Seascape Corp., 194, NLRB 540 (1971). An agent whose authority depends upon such a contingency may have the apparent author- ity, however, to convey its satisfaction. Walnut Hill Convalescent Center, 260 NLRB 258 (1982). Ben Franklin National Bank, 278 NLRB 986 fn. 2 (1986). CABLEVISION INDUSTRIES 29 How may an agent become clothed with apparent au- thority? "Apparent authority results when the principal does something or permits the agent to do something which reasonably leads another to believe that the agent had the authority he purported to have." Hawaiian Para- dise Park Corp. v. Friendly Broadcasting Co., 414 F.2d 750, 756 (9th Cir. 1969). Applying these principles to the facts found herein, I conclude that under the circumstances of this case Rosenberg had the apparent authority to convey the Company's final offer, which was not withdrawn before the union membership subsequently ratified it, thereby resulting in a binding agreement. Preliminarily, I conclude that the principal for Re- spondent, on whose behalf Rosenberg and Connors were employed as agents to negotiate the collective-bargaining agreement, was Alan Gerry and not the board of direc- tors. The evidence is convincing that it, was Gerry who controlled and determined the company positions in bar- gaining and whose approval was necessary before an agreement could be obtained. Rosenberg clarified his use of the term "Company" at the first bargaining session and in the company offer a number of times, most'signifi- cantly at the 20 June session when Woods, sought such clarification. The "Company" in article 29 and the "Co B of D" written in by Rosenberg above his signature on the Company's 7 May 1985 proposal in June both meant Gerry, the sole shareholder and chief operating officer. Neither Nichols nor O'Neill, the other two company di- rectors until their removal by, Gerry in March 1986, seemingly played any role in the preparation, of the Com- pany's -proposals or negotiating posture or strategy. Al- though Roger Turner was .elected president on 28 Febru- ary 1985, Gerry, then as chairman, retained all the powers he previously exercised as president, and was clearly the decisive figure in Respondent's decision- making process, which Rosenberg repeatedly acknowl- edged. I further conclude that Rosenberg, by his statements and conduct during the bargaining sessions, as well as Connors in his conversations with Woods, reasonably led Woods and the other union representatives to believe that Rosenberg had the authority from Gerry to con- clude the agreement by, submission of the Company's final offer. Woods, whose testimony has been credited, reported that Rosenberg, who did not_ testify, told him from time to time he had discussed various union de- mands with Gerry. Connors testified that Gerry partici- pated in the meeting at which company- proposals were first discussed and personally approved the, wage portion of the Company's final offer, which was unilaterally im- plemented in early July 1985. Connors ' also briefed Gerry periodically and, significantly, met with him on 30 June to discuss recent developments with the Union. Connors also regularly reported on the negotiations to his immediate superiors, Turner and Schulte, who, in turn,' would have kept Gerry apprised as' they would "normally do." Woods also testified credibly and with- out contradiction that at the 2 May 1985 b argaining ses- sion Rosenberg informed him' that he would obtain Gerry's prior approval of the Company's final offer as a collective document before forwarding it to the Union. Connors' own bargaining notes essentially corroborate this conversation by referring to "Cablevision representa- tives" whose prior approval was a condition of the com- pany package being forwarded to the Union and the Federal mediator. When, at the 20 June 1985 - meeting, Rosenberg acknowledged that he had expressed such an intent to Woods and then assured Woods there was no problem in obtaining Gerry's approval; Woods acted rea- sonably in expressing on the record his understanding that -Gerry's approval or ratification was already com- pleted prior to Rosen berg's submission of the final offer to the Union. Against this array of testimony, Respondent's counsel would have the `Board believe that, because Gerry was involved in personally negotiating acquisitions of new out-of-state cable operations, he had no time to review the Company's offer prior to 8 July 1985. I am not pre- pared to so find. At their 20 June 1985 session Rosenberg did not dispute Woods' attributing 'to 'him a statement that he had intended to meet with Gerry before giving the final offer to the Union. Neither did Connors or Rosenberg in subsequent' conversations with Woods convey any sense that the Company had either with- drawn or changed any provision of its offer. At the 27 June session, Rosenberg finally said he would take the two items involving ' subcontracting and dues checkoff back to Gerry; Rosenberg said nothing about the Com- pany's reexamination or rejection of any other portion of its final offer. None of these conversations would have led Woods to believe that Gerry had not been, or would not continue to be, available to review the agents' con- duct at the bargaining table. By seeking to create a factu- al ambiguity at the hearing as to the authority of its ne- gotiators to reach agreement because of a supposed in- ability of Respondent's principal to timely consult its agents, which it failed to raise during the material evi- dentiary interchanges between the parties, Respondent's defense must fail. Absent clear notice to the contrary, Rosenberg, as agent, must be deemed to have had appar- ent authority to bind his principal to the terms of the Company's final offer. See University of Bridgeport, supra. Apart from the foregoing, all of the circumstances sur- rounding Respondent's withdrawal from the tentative agreement its negotiators had reached are convincing that permitting Gerry to disapprove the agreement would undermine collective bargaining, and permit Re- spondent to effectively undermine the Union's support and destroy its majority status.4 Although Respondent admittedly obtained the contract language it wanted at the cost of a large first-year increase in wages, it subse- quently reneged on putting the language into effect but unilaterally granted the onerous increases and other fringe benefits and then, in January 1986, pointedly con- trasted the extremely limited second-year contract in- 4 See, e.g , NLRB v. F Strauss & Sons, 536 F.2d 60, 64 (5th Cir 1976) "Finally, withdrawal by the employer of contract proposals tentatively agreed to by both the employer and the Union in earlier bargaining ses- sions, without good cause, is evidence of a lack of good faith bargaining by the employer in violation of § 8(a)(5) of the Act " See also Industrial Wire Products Corp., 177 NLRB 328, '333-334 (1969), enfd 455 F 2d 673 (9th Cir 1972); NLRB v. ' Alterman Transport Lines, 587 F 2d 212, 221 (5th Cir 1979) 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD creases it granted only in part with the more generous percentage increases it distributed to all of the nonunion complement. In its 8 July 1985 resolution , Respondent's board of directors not only reneged on its negotiators' prior agreement, but it retrogressed to proposals which were substantially more onerous than the ones it had in- sisted on since early in the negotiation process, from re- stricting and limiting resort to arbitration and seniority rights in significant areas to adding a fourth contract year at nominal increases . Respondent could have rea- sonably anticipated union rejection of these changes and the resulting encouragement of employee dissatisfaction with the Union's bargaining role which these company actions would induce. Even the reasons the board of di- rectors advanced for rejecting the tentative agreement evidence a lack of legitimacy. Reliance was placed on a claim of a bribe for the vote of a single employee at the Union's ratification meeting and the company negotiating team having exceeded its authority . At the hearing, and in its briefthe Respondent did not assert or argue either ground in its defense to the complaint. The first would appear to be irrelevant to the issues framed at trial and there is, no claim that the company negotiators ever made the Union aware of any limitation on their author- ity to enter a tentative agreement. Finally, two officials who previously had no formal role in the negotiations were added on 8 July 1985 to Respondent's board for the sole purpose of reviewing the final offer in what appears to have been an attempt to insulate Gerry from the consequences of company rejec- tion of its final offer. Connors' credible testimony about his regular consultations with and reports to these two officials, Turner and Schulte, during negotiations also conflicts with the factual claim made in the resolution of this special meeting that the company negotiating team failed to report regularly as to the progress of the negoti- ations. As noted by the Board under similar circumstances, to fail to find that Rosenberg as agent had the apparent au- thority to bind Gerry as his principal to the terms of the Company's final offer "would effectively mean that an undisputed negotiator for the Respondent had, made a comprehensive, unconditional final contract offer in bad faith, without any intention to be bound thereby." Ben Franklin National Bank, supra. Accordingly, I conclude as alleged that the parties reached full and complete agreement with respect to terms and conditions of employment of the unit employ- ees, embodied in the Company's final offer, when the union membership ratified that offer on 2 July 1985.5 The Union continued to remain the certified bargain- ing representative of the unit employees after Respond- ent reneged on its own final offer in violation of its obli- gation under the Act. The certification year could not terminate while that agreement remained unexecuted and 5 Although the complaint alleges that agreement was reached about 20 June 1985, rather than 2 July 1985 as I have concluded herein, that dis- crepancy is not a material deviation between the complaint and the proofs, Respondent has not objected and, most important , Respondent is on notice that the union membership's ratification and Woods' subsequent request for execution of the agreement are key elements in the General Counsel's claim of a refusal to bargain rejected. Neither has Respondent claimed in this pro- ceeding that the Union has lost its majority support al- though there was a hint that such a claim might be ad- vanced. (See Tr. 225.) Such a claim, of course, would be unavailing given the Company's refusal to bargain. Thus, when the Company granted wage increases to unit em- ployees in early January 1986, not in conformity with the terms of the agreement by which I have concluded it was bound, and granted clothing benefits and shoe al- lowances to the unit employees in January and February 1986, all without prior notice to, or consultation with, the Union, Respondent committed further violations of its bargaining duty under Section 8(a)(5) and (1) of the Act. It is no defense to these acts to claim, as the Com- pany does, that the jackets were purchased for all of its northern system field personnel -or that it was an employ- ee inquiry which instigated their purchase and distribu- tion. Respondent owed a duty not to undermine the Union's status as exclusive bargaining agent by continu- ing to negotiate with it on items which were not part of its final offer. Respondent also restrained and coerced its employees in their activities on behalf of the Union in violation of Section 8(a)(1) of the Act by threatening them with the loss of continued participation in the Company 's profit- sharing plan because they had chosen the Union to rep- resent them in collective bargaining and were- seeking a union contract, and by maintaining language in its profit- sharing plan which precludes, on its face, participation by "members of a collective-bargaining unit." Precision Founders, 278 NLRB 544 (1986); Niagara Wire, 240 NLRB 1326, 1327-1328 (1979). As noted, the plan re- striction, conditioning eligibility on the unrepresented status of employees, was relied on in remarks to employ- ees in November 1985 and January 1986 and was publi- cized by Gerry himself at a December 1985 meeting at which, on one of his rare visits to the Company's Geneva facility, Gerry also stressed the contrast in' salary increases between the generous 5-percent increases being granted nonunit employees and the much lower 1-1/2- percent contract increase contained in the Company's final proposal not yet in place because of the breakdown in negotiations. This emphasis on the losses in salary the employees were suffering because of their union adherence was also stressed in the Company's January 1986 meeting when figures were presented to them so the employees could see clearly ' how much their union affiliation was costing them. Such comments interfered with the employees' rights to select and retain the Union as their collective- bargaining representative under Section 7 of the Act, in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Cablevision Industries, Finger Lakes Division, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in an industry affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Communication Workers of America is a labor or- ganization within the meaning of Section 2(5) of the Act. CABLEVISION INDUSTRIES 3. On 13 September 1984 the Union'was certified"is the exclusive bargaining representative of the employees employed in - the 'following described unit ' appropriate for the purposes of collective bargaining: All regular full-time-installers, technicians, convert- er control employees, construction employees and dispatchers employed by the Employer at R.D.2, Route 5 and 20, Geneva, New York, and 5585 Buf- falo Extension, Canandaigua, New York and 515 No. Main Street,- Newark, New-York; excluding all- engineers, customer service representatives, outside sales employees, clerical employees, and profession- al employees, guards and supervisors-as defined in the Act, and all other employees of the Employer. 4. On 2 July 1985 Respondent and the Union reached agreement on the terms of a collective-bargaining agree- ment covering the terms and conditions of employment of the employees of Respondent in the above-described bargaining unit. 5. As a consequence of the agreement reached by the parties, Respondent incurred the statutory obligation to execute a written contract incorporating that agreement but, since about 12 July 1985 and at all times thereafter, has failed and refused to do so. - 6. By refusing since about 12 July 1985 to execute the written contract incorporating the agreement reached be- tween it and the Union, Respondent has failed and re- fused to bargain collectively and in good faith with the certified representative of its employees, and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)(1) and (5) and 8(d) of the Act. 7. By granting pay increases to unit employees about 7 January 1986 not calculated in accordance with the terms of the agreement reached with the Union, by granting a new benefit to unit employees consisting of a winter jacket in January and February 1986, and by granting another new benefit to unit employees consist- ing of an allowance for the purchase of work boots in January 1986, all granted without prior notice to the Union and without having afforded the Union an oppor- tunity to negotiate and bargain with respect to such ben- efits and their effects on the unit'employees, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning-of Section 8(a)(1) and (5) of the Act. 8. By threatening employees in the bargaining unit de- scribed above with the loss of profit-sharing plan benefits because they chose to be represented by the Union for purposes of collective bargaining, by maintaining and continuing a provision in its profit-sharing plan and trust conditioning- participation in the plan on being unrepre- sented by any union, and by informing its unit employees that they would be granted wage increases less than they would have been granted had they not selected the Union as their collective-bargaining representative be- cause the agreement reached with the Union provides for a lesser increase than would be granted to employees employed outside the bargaining unit, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. .' ^'f HE REMEDY 31 Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent be ordered to, cease and desist and to take certain af- firmative action necessary to effectuate the purposes and policies of the Act. Having further found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by, inter alia, failing and refusing to execute a written agreement reached, I shall recommend that Respondent be ordered to cease and desist and to sign the agreement forthwith. I shall also recommend,-further that Respondent be or- dered to give effect to the terms of the agreement retro- active to-1 July 1985, and that, the employees shall be made whole for losses they may have suffered by reason of the failure of Respondent to sign the agreement,6 with interest thereon, to be computed in the manner pre- scribed in F W. Woolworth Co., 90 NLRB 298 (1950), plus interest as set forth in Isis, Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977), Having found that Respondent violated Section 8(a)(1) of the Act by, inter alia, continuing ,to maintain a provi- sion in its profit-sharing plan and trust which by its terms unlawfully excludes from participation therein otherwise eligible employees who are members of a collective-bar- gaining unit, I shall recommend that Respondent be or- dered to amend the profit-sharing- plan and trust so as to clearly eliminate the unlawful eligibility restriction.' On these findings of fact and conclusions of law and on the entire record,8 I issue the following recommend- ed9 ORDER The Respondent, Cablevision Industries, Finger Lakes Division, Geneva, New York, its officers, agents, succes- sors, and assigns, shall l.' Cease and desist from (a) Refusing to bargain collectively and in good faith with Communication Workers of America by declining to execute a written agreement embodying the terms of the contract fully agreed to on 2 July 1985, and which covers its employees in the following appropriate unit: 6 "The Board may properly prevent the Respondents from gaming an advantage by their unlawful conduct An order requiring ' that the em- ployees be made whole for the unlawful repudiation of a collective bar- gaining agreement serves this, end" NLRB v. I3MR Corp., 795 F 2d 472, 477 (5th Cir 1986) 4 The General Counsel requests a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing an eventual Board order. Absent special circumstances, which are not present here, this request is denied See Nathan's Furniture Store, 278 NLRB 268 (1986); O. L. Willis Inc, 278 NLRB 203 (1986) B In an Order Correcting Record which I issued on 22 October 1986, I ordered corrections to the record in certain limited respects. 9 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 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All regular full-time installers, technicians, convert- er control employees, construction employees and dispatchers employed by the Employer at R:D.2, Route 5 and 20,'Geneva, New York, and 5585 Buf- falo Extension, Canandaigua, New York and 515 No. Main Street, Newark, New York; excluding all engineers, customer service representatives, outside sales employees, clerical employees, and profession- al employees, guards and supervisors as defined in the Act, and all other employees of the Employer. (b) Refusing to bargain collectively and in good faith with the Union by granting pay increases to unit employ- ees- not calculated in accordance with the terms of the agreement reached with the Union, and by granting new benefits to unit employees, without prior notice to the Union and without having afforded the Union an oppor- tunity to negotiate and bargain with respect to such ben- efits and their effects on the unit employees. (c) Threatening employees in the bargaining unit with the loss of profit-sharing plan benefits because they chose to be represented by the Union for purposes of collective bargaining; maintaining and continuing a provision in its profit-sharing plan and trust which excludes from partici- pation therein otherwise eligible employees who are members of a collective-bargaining unit; and informing its unit employees that they would be granted wage in- creases less -than they would have been granted had they not selected the Union as their collective-bargaining rep- resentative because the agreement reached with the Union provides for a lesser increase than would be grant- ed to its employees employed outside the bargaining unit. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Sign the collective-bargaining agreement contain- ing the terms and conditions of employment agreed to between the Respondent and the Union on 2 July 1985, give retroactive effect to its terms and conditions, and make, its employees whole for losses, if any, ,they may have suffered as a result of its refusal to sign such an agreement, in the manner, set forth above. (b) Amend its profit-sharing plan and trust by eliminat- ing therefrom the provision which by its terms excludes ,from participation in the plan otherwise eligible employ- ees who are members of a collective-bargaining unit. (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 Geneva, Canandaigua, and Newark, New York facilities and branches copies of the attached notice marked "Appendix." 10 - Copies of the notice, on 10 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 forms provided by the Regional Director for Region 3, after being signed by the Respondent's authorized repre- sentative, 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 materi- al. (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. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 or- dered us to post, and abide by this notice. WE WILL NOT refuse to bargain collectively regarding wages, hours, or other terms and conditions of employ- ment with Communication Workers of America as the exclusive representative of our employees in the follow- ing unit: All regular full-time installers, technicians, convert- er control employees, construction employees and dispatchers employed by the Employer at R.D.2, Route 5 and 20, Geneva, New York, and 5585 Buf- falo Extension, Canandaigua, New York and 515 No. Main Street, Newark, New York; excluding all engineers, customer service representatives, outside sales employees, clerical employees, and profession- al employees, guards and supervisors as defined in the Act, and all other employees of the Employer. WE WILL NOT refuse to execute the contract with the Union which was agreed upon on 2 July 1985. WE WILL NOT fail and refuse to give effect to the terms and provisions of the agreed-on contract with the Union. WE WILL NOT grant pay increases to unit employees not calculated in accordance with the terms of the agree- ment we reached with the Union, or grant new benefits to unit employees, without prior notice to, the Union and having afforded the Union an opportunity to negotiate and bargain with respect to such benefits and their, ef- fects on them. WE WILL NOT threaten employees in, the bargaining unit with the loss of profit-sharing plan benefits because they chose to be represented by the Union for purposes of collective bargaining; maintain and continue a provi- sion in our profit-sharing plan and trust which excludes from participation therein otherwise eligible employees CABLEVISION INDUSTRIES 33 who are members- of a collective-bargaining unit;--and inform our unit employees , that they would be granted wage increases less than they would have been granted had they not selected the Union_ as their collective-bar- gaining representative because the agreement reached with the Union provides for a lesser increase than would be granted to our employees employed outside the bar- gaining unit. 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 sign the collective-bargaining agreement containing the terms and conditions of employment agreed to between us and the Union on 2 July 1985. WE WILL give retroactive effect to its terms and con- ditions and make- our employees whole for losses , if any, which they may have suffered as a result of our refusal to sign a contract , with interest. WE WILL amend our profit-sharing plan and trust by eliminating therefrom the provision which by its terms excludes from participation in the plan otherwise eligible employees who are members of a collective -bargaining unit. CABLEVISION INDUSTRIES, FINGER LAKES DIVISION '