Leeds Cablevision)

PREMIER CABLEVISION Masada Communications , Ltd , d/b/a Premier Ca- blevision (formerly Masada Communications, Inc, d/b/a Leeds Cablevision)i and Communi- cations Workers of America, AFL-CIO, Local 10901 Case 10-CA-21870 April 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFr On December 31, 1987, Administrative Law Judge Robert A Gritta issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief, and the Union filed an answering 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 briefs and has decided to affirm the judge's rulings, findings,2 and conclusions, and to adopt the recommended Order as modified 3 For the reasons set forth below, we affirm the judge's finding that a reasonable time for bargain- ing had not elapsed and, therefore, that the Re spondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union as the exclusive representative of its employees in the Leeds unit In December 1982, the Union was certified as representative of the Leeds unit Following two failed attempts at negotiating an initial contract during unfair labor practice proceedings in which the Respondent was found, among other things, to have violated Section 8(a)(5), (3), and (1) of the Act with respect to employees in the Leeds unit,' i The case caption has been modified to reflect the General Counsels amendment of the complaint at the hearing to exclude Masada Corpora tion On June 30 1988 Insight Communications Company L P d/b/a Pre miere Cablevision filed a motion to intervene and motion to dismiss in this proceeding asserting that it acquired a number of the Respondent s cable franchises including the Leeds facility on April 4 1988 As Insight may be a successor to the Respondent-a matter we leave to the compli ance stage of these proceedings-we grant the intervention motion How ever we deny the motion to dismiss as untimely and lacking in merit 2 The Respondent has excepted to some of the judge s credibility find rags 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 We have modified the judge s recommended Order to exclude refer ence to Masada Corporation * Leeds Cablevision & Cablevision Co Case 10-CA-18838 JD-(ATL)- 63-83 (1983) and Leeds Cablevision 277 NLRB 103 (1985) 931 the Respondent and the Union agreed to conduct simultaneous negotiations for an initial contract in both the Leeds unit and the more recently certified Gardendale unit and to incorporate any agreements into one collective-bargaining agreement The par- ties conducted 14 bargaining sessions between Feb ruary 4 and November 7, 1985, and reached agree- ment on 13 of 30 of the Respondent's proposed provisions On November 7, 1985, the Respondent, without challenge from the Union, withdrew rec ognition in the Gardendale unit After the withdrawal, it requested time to redraft contract proposals to exclude mention of Garden- dale, and it canceled bargaining sessions previously scheduled for December 10 and 11, 1985 It was not until February 11, 1986, following an inquiry by the Union, that the Respondent forwarded the revised proposals Despite the fact that nearly half of its proposals had already been agreed to by the parties, the Respondent presented the revised pack- age to the Union as a newly proposed contract The Respondent and the Union did not meet to ne- gotiate until March 11, 1986, when, at the Re- spondent's insistence, the Union point by point reaffirmed its earlier agreement to various propos- als Their next and last meeting was held on April 16, 1986, at which the Union agreed to another of the Respondent's proposals The Respondent can- celed the meeting scheduled the next day On May 5, 1986, after receiving a decertification petition from the employees, the Respondent withdrew rec- ognition from the Union in the Leeds unit The Respondent asserts that it was privileged to withdraw recognition in the Leeds unit because it bargained in good faith for 14 months prior to its withdrawal of recognition and because the employ- ee petition evidenced the Union's loss of majority status We reject this contention and find it signifi- cant that no bargaining took place for a 4-month period, between November 7, 1985, and March 11, 1986 During that period it took the Respondent more than 3 months to complete a ministerial task, i e , the deletion of references in its proposed con- tract to the Gardendale unit The unexplained delay was not alleged by the General Counsel inde- pendently to constitute bad faith bargaining This delay, however, as well as the Respondent's insist- ence on the Union renegotiating previously accept ed proposals had a deletorious affect on bargaining the Union was not afforded an uninterrupted period to engage in negotiations Coupling this with the Respondent's earlier unilateral changes in terms and conditions of employment and other fail ures to bargain in good faith, and its discriminatory treatment of unit employees with respect to wage increases and their participation in Board proceed- 293 NLRB No 116 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ings, as found in prior proceedings, we find that the policies of the Act regarding the stabilization of the labor-management relationship have not been met Under the circumstances of repeated break- downs in negotiations resulting from the Respond- ent's conduct, the Respondent was not free to rely on its employees' expression of disaffection from the Union 5 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Masada Communications, Ltd, d/b/a Premier Cablevision, Leeds, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Delete "and Masada Corporation," from the recommended Order 2 Substitute the attached notice for that of the administrative law judge MEMBER CRACRAFT, concurring I agree with my colleagues and the administra tive law judge that the Respondent unlawfully withdrew recognition from the Union I reach this result on the grounds that a reasonable period of time for bargaining free from the effects of one of the Respondent's earlier unfair labor practices had not elapsed at the time of the Respondent's with drawal of recognition More specifically, I find that 5 In agreeing with the General Counsels contention that a reasonable time for bargaining has not elapsed in this case we note that she has not specified what poor unlawful conduct other than the Respondent s fall ure to bargain in good faith precludes a lawful withdrawal of recogni Lion It is appropriate however for the Board to consider any postcertifi cation unfair labor practice conduct-such as the unlawful reduction of wage increases for all unit employees in 1983-that reasonably tends to affect the bargaining relationship between the parties and the Union s representative status in determining whether a reasonable period for meaningful bargaining has passed United Supermarkets 287 NLRB 119 (1987) Federal Pacific Electric Co 215 NLRB 861 (1974) NLRB v Schill Steel Products 480 F 2d 586 (5th Cir 1973) enfg 140 NLRB 1164 (1963) and 144 NLRB 69 (1963) In this connection we find the instant case dis tinguishable from Johns Manville Sales Corp 282 NLRB 182 (1986) on which the Respondent relies In that case the Board found that an em ployer s unilateral out of seniority layoff of three employees violated Sec 8(a)(5) of the Act but that its withdrawal of recognition from the union 8 months later was lawful The union had been certified in January 1982 and the parties held 25 bargaining sessions between March 1982 and March 1983 when the withdrawal of recognition predicated on an em ployee petition took place In finding that the unlawful unilateral change in layoff policy did not require a finding that the withdrawal of recogni tion was also unlawful the Board noted that 8 months had passed be tween the events that the layoff affected only 3 of 72 employees and that the employer had advanced a reasonable business justification for conducting the layoff out of seniority We are cognizant that in the instant case the unfair labor practices oc curred well before the withdrawal of recognition However the passage of time is not the only factor of significance in determining whether an objectively based withdrawal has occurred in the context of labor proc tices The Respondent committed numerous unfair labor practices since the employees elected to be represented Moreover the unlawful conduct was of a nature that struck at the heart of the Union s representative status and directly affected virtually all the employees in the Leeds unit the Respondent's October 1983 discriminatory re- duction of wage increases for bargaining unit em- ployees, in violation of Section 8(a)(3) and (1) of the Act, precludes a finding that the Respondent bargained in good faith for a reasonable period of time prior to its May 1986 withdrawal of recogni tion In October 1983, the Respondent granted re duced wage increases to all three of the employees in the bargaining unit involved in the instant pro ceeding 1 In September 1984, Administrative Law Judge Philip P McLeod found that these reduced wage increases were discriminatorily motivated, in violation of Section 8(a)(3) and (1) of the Act 2 Judge McLeod also found that the Respondent had engaged in bad faith bargaining with the Union during the period August 1983-February 1984, in violation of Section 8(a)(5) and (1) of the Act He recommended that the Respondent be ordered to make the unit employees whole for the wages they lost as a result of the Respondent's discriminatorily reduced wage increases, and to bargain in good faith with the Union Although the Respondent filed exceptions with the Board to both of Judge McLeod's unfair labor practice findings, the record in the instant case shows that in November 1984, shortly after the is- suance of Judge McLeod's decision, during the pendency of its exceptions, the Respondent began to bargain in apparent good faith with the Union From February through October 1985, the parties engaged in 12 generally productive bargaining ses sions, with the Respondent apparently not employ- ing its earlier bad-faith bargaining tactics Howev er, there is no evidence that the Respondent volun- tarily remedied the 8(a)(3) violations found by Judge McLeod prior to the Board's October 31, 1985 Order affirming the judge's findings Rather, the only evidence showing that the Respondent remedied its discriminatory reduction of wage in- creases is that provided by the Regional Director's March 11, 1986 letter in which he closed the former case noting that he was satisfied that the Respondent was complying with the Board's Order In the absence of any evidence to the con trary, it appears that the Respondent remedied the unlawful reduction-in wage increases no earlier than March 11, 1986 Thus, the bargaining engaged in by the parties during the period November 1984 through March 11, 1986, was conducted against the These employees comprise the entire bargaining unit Leeds Cablevision 277 NLRB 103 (1985) PREMIER CABLEVISION 933 backdrop of the Respondent's still-unremedied un- lawful reduction-in-wage increases 3 Where, as here, the Board orders an employer to bargain in good faith with a union, such bargaining must be conducted for at least a reasonable period of time thereafter, without regard to actual or per- ceived loss of majority support for the union during that reasonable period of time 4 Moreover, the passage of such a reasonable time for bargain ing will be tolled by unfair labor practices which in any manner interfere with its employees' desires for or against union representation 5 Indeed, as a gen- eral rule, even prior unfair labor practices preclude an employer from questioning the majority status of a union while those unfair labor practices remain unremedied 6 Here, the Respondent discriminatorily reduced the wage increases of all unit employees in October 1983 There is no evidence that the Respondent remedied this unfair labor practice until March 1986 Thus, most of the bargaining engaged in by the Respondent following Judge McLeod's Sep- tember 1984 recommended bargaining Order oc- curred in the context of the Respondent's unreme died discriminatory reduction in wage increases for unit employees In my view, the effects of this unremedied unfair labor practice were reasonably such as to cause employee disaffection and erosion of support for the Union while it was attempting to bargain with the Respondent following Judge McLeod's recom mended bargaining and make-whole Order It thereby undermined the Union's status as bargain- ing representative, and precludes afinding of good faith bargaining on the part of the Respondent while this unfair labor practice remained unreme- 8 Even though the only record evidence on this question indicates that as late as mid March 1986 the Respondent was still in the process of complying with inter alia the Boards October 31 1985 make whole Order I note that even if I were to assume that the Respondent ultimate ly completed its make whole remedy for the unlawful reduction in wage increases as early as mid November 1985 within just a few weeks of the Board s decision affirming that unfair labor practice finding I would reach the same conclusion For even under this generous assumption prior to the Respondents May 5 1986 withdrawal of recognition there were still at most only 5 months of bargaining and more significantly only two bargaining sessions (one in March the other in April) conduct ed free of the effects of the Respondent s earlier unfair labor practices In this context I note particularly that the March session was devoted en tirely to review and affirmation of previously agreed upon proposals and that at the April session agreement was reached on everything except wages and insurance * NLRB v Warren Co 350 US 107 112 (1955) Frank Bros. Co V NLRB 321 US 702 705-706 (1944) Poole Foundry & Machine Co 95 NLRB 34 1950 enfd 192 F 2d 740 (4th Cir 1951) ° See Brennan s Cadillac Inc 231 NLRB 225 227 (1977) 6 King Radio Corp 208 NLRB 578 583 (1974) enfd 510 F 2d 1154 (10th Cir 1975) The nature of the unremedied unfair labor practice is a factor to be considered in the application of this general rule Taft Broad casting Co 201 NLRB 801 (1973) died 7 Under these circumstances, the Respondent is therefore precluded from relying on the employ- ees' expression of disaffection for the Union as a le gitimate basis for withdrawing recognition 8 For these reasons, I find that the Respondent un lawfully withdrew recognition from the Union 9 7 See Rocky Mountain Hospital 289 NLRB 1347 (1988) Tyson s Foods 187 NLRB 525 530-531 (1970) 8 See Rocky Mountain Hospital supra United Supermarkets 287 NLRB 119 (1987) enfd 862 F 2d 549 (5th Or 1989) UARCO Inc 283 NLRB 298 (1987) C & C Plywood Corp 163 NLRB 1022 (1967) enfd 413 F 2d 112 (9th Cir 1969) See also Achilles Construction Co 283 NLRB 87 (1987) (arguendo discussion) Rays Liquor Store 234 NLRB 1136 (1978) See generally Abbey Medical/Abbey Rents 264 NLRB 969 977 (1982) enfd 709 F 2d 1514 (9th Cir 1983) 9 In light of these considerations I find it unnecessary to pass on my colleagues determination that the Respondent caused repeated break downs in the negotiations between the parties 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 Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain in good faith with the Union by withdrawing recognition from the Union before a reasonable period of time for collective bargaining, free of the effects of our prior unfair labor practices, has elapsed WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act WE WILL regard the Union as the exclusive rep- resentative of our employees WE WILL continue to bargain collectively in good faith with the Union for an additional 8 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD months from the commencement of bargaining pur suant hereto MASADA COMMUNICATIONS, LTD , D/B/A PREMIER CABLEVISION (FOR- MERLY MASADA COMMUNICATIONS, INC, D/B/A LEEDS CABLEVISION) Virginia L Jordan Esq for the General Counsel John L Quinn, District Counsel, of Birmingham, Ala bama, for the Union Richard F Kane Esq (Blakeney Alexander & Machen), of Charlotte, North Carolina DECISION STATEMENT OF THE CASE ROBERT A GRITTA, Administrative Law Judge This case was tried before me on 17 March 1987 in Birming ham, Alabama, based on a charge filed by the Commune cations Workers of America (the Union) on 7 July 1986 and a complaint issued by the Regional Director for Region 10 of the National Labor Relations Board on 16 December 1986 ' The complaint alleges that Masada Communications Ltd, d/b/a Premier Cablevision (Re spondent) violated Section 8(a)(1) and (5) of the Act by withdrawing recognition of the Union as the exclusive representative of its employees Respondents timely answer denies the commission of any unfair labor prac tices All parties hereto were afforded full opportunity to be heard, to examine and cross examine witnesses to intro duce evidence, and to argue orally Briefs were submit ted by the General Counsel, Respondent, and the Charg ing Party All briefs were duly considered On the entire record in this case and from my observa tion of the witnesses and their demeanor on the witness stand and on substantive, reliable evidence considered along with the consistency and inherent probability of testimony I make the following FINDINGS OF FACT I JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges Respondent admits, and I find that Masada Corporation is an Alabama corporation en gaged in management of Masada Communications Ltd d/b/a Premier Cablevision which provides cable televi sion services to retail customers in Leeds Alabama Ju nsdiction is not in issue Respondent, in the past 12 months in the course and conduct of its business oper ation, had a gross volume of sales in excess of $100 000 and purchased and received at its Leeds Alabama facilt ty goods and materials valued in excess of $5000 directly from suppliers located outside the State of Alabama I conclude and find that Respondent is an employer en gaged in commerce and in operations affecting com I The style of the case was amended at the hearing merce within the meaning of Section 2(2), (6) and (7) of the Act The complaint alleges, Respondent admits, and I con clude and find that the Union is a labor organization within the meaning of Section 2(5) of the Act II BACKGROUND There is little if any factual dispute between the par ties Respondent historically operated two cable TV companies in the metropolitan Birmingham, Alabama area, the Leeds unit in Leeds, Alabama, and the Garden dale unit encompassing Gardendale, Pelham and Truss ville, Alabama Communications Workers of America Local 3902 (formerly Local 10902) petitioned for an election in the Leeds unit and won the election held 29 October 1982 The following month Respondent with held wage evaluations and increases from the Leeds em ployees The Board certified Local 3902 as the exclusive representative of Leeds employees on 14 December 1982 During December Respondent withheld the annual Christmas party and Christmas bonus from the Leeds employees On 6 February 1983 the Union filed an unfair labor practice charge Case 10-CA-18838 The parties met for the first negotiation session on 23 March 1983, the second and third meetings were held 27 April and 2 June 1983 Administrative Law Judge Cullen issued his decision in Case 10-CA-18838 on 25 July 1983 including the following recommended Order 1 Cease and desist from (a) Instituting unilateral changes in the terms and conditions of employment of its employees without bargaining concerning them with the Communica tions Workers of America AFL-CIO Local 10902 as the exclusive collective bargaining representative of its employees in the unit described above (b) [D]iscnminateng against its employees because of their engagement in union activities, (c) [D]iscriminating against its employees because of their participation in proceedings before the Na tional Labor Relations Board (d) [I]n any like or related manner interfering with restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative actions de signed to effectuate the policies of the Act (a) Reinstitute its established practice of proved ing its employees at its Leeds facility a Christmas bonus and Christmas party until a change in said terms and conditions of employment has been bar gained with the Union, (b) Reinstitute its established practice of evaluat ing and granting wage increases to its employees at its Leeds facility (c) [R]einstitute its practice of permitting Gloria Myers to work overtime as required (d) [M]ake whole the employees for all loss of earnings and benefits with interest, incurred by them as a result of Respondents unfair labor prac tices as found herein, PREMIER CABLEVISION 935 (e) [C]orrect its records to reflect its compliance with the terms of this Order as set out above, (f) [P]reserve and upon request, make available to the Board or its agents for examination and copy ing, all payroll records social security payment records, time cards personnel records, and reports, and all other records necessary to analyze the amount of backpay or benefits due under the terms of this recommended Order A fourth and fifth negotiating meeting was held 10 October 1983 and 4 November 1983 The sixth and final meeting was held 5 December 1983 From 5 December 1983 to 15 November 1984 the Union made no further bargaining demands on Respondent due to it intent and filing of an unfair labor practice charge against Respond ent On 27 February the Union filed an an unfair labor practice charge in Case 10-CA-20040 A Board conduct ed election was held 19 September 1984 in the Garden dale unit Administrative Law Judge McLeod issued his decision in Case 10-CA-20040 on 28 September 1984 with the following Order 1 Cease and desist from (a) Granting employees of Leeds Cablevision wage increases less than it grants to employees of Cablevision Company because Leeds employees have selected the Union as their collective bargain ing representative (b) Failing and refusing to bargain in good faith with the Union as the exclusive bargaining repre sentative of Leeds employees (c) In any like or related manner, interfering with restraining, or coercing employees in the exer cise of rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action neces sary 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 suffered by reason of the discrimination against them by granting them wage increases retro active to October 1983 not less than the average wage increases granted to employees of Cablevision Company, with appropriate interest (b) Upon request bargain collectively in good faith with Communications Workers of America AFL-CIO, Local 10902, as the exclusive bargaining representative of Respondents employees at its 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 (c) Preserve, and upon request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records, and reports, and all other records necessary 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 said notices, on forms provided by the Regional Director for Region 10, after being duly signed by Respondents representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respond ent to ensure that said notices are not altered, de faced, or covered by any other material (e) Notify the Regional director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith The International Communications Workers of Amer ica was certified as the exclusive representative of the Gardendale bargaining unit on 7 November 1984 The first negotiating meeting for the Gardendale unit was held 4 February 1985 and the parties agreed to simulta neously continue bargaining for the Leeds unit with any agreements reached to be reduced to a writing in a single contract for both units From 19 February 1985 through 11 October 1985 11 additional negotiating meetings were held On 31 October 1985 the Board issued its decision in Case 10-CA-20040 adopting Judge McLeod s recom mended Order with a limited modification 2 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 Subsitute 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 retro active 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 The parties met for the 13th and 14th negotiating meetings on 6 and 7 November 1985 On 15 November 1985 Respondent notified the Union that it was with drawing recognition of the Union in the Gardendale unit Respondent subsequently canceled negotiating meetings set for 10 and 11 December 1985 to have time to redraft contract proposals to delete all reference to the Garden dale unit and because of counsels schedule conflicts Several agreements between the parties on contract fan guage occurred in the first 14 negotiating meetings (4 February to 7 November 1985) On 12 February 1986 2 Leeds Cablevision 277 NLRB 103 (1985) Case 10-CA-20040 is pres ently before the 11th circuit for enforcement and appeal 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Respondent submitted redrafts of its original proposal including the prior agreements on language The 15th ne gotiating meeting was held 11 March 1986 This same day the Regional Office issued its closed case letter for Case 10-CA-20040 The 16th meeting was held 16 April 1986 On 5 May 1986 Respondent notified the Union that it was withdrawing recognition of the Union in the Leeds unit The Union on 7 July 1986 filed the instant charge with the Regional Office The Regional Office on 11 September 1986 notified the Union it was refusing to issue complaint in the instant case, Case 10-CA-21870 The Union appealed the Regional Office decision to the General Counsel in Washington, D C, and sometime thereafter the Regional Office was reversed and a com plaint issued in the instant case on 16 December 1986 III THE ALLEGED UNFAIR LABOR PRACTICE James E Presley testified he is employed by Respond ent and is also independent vice president of Local 3902 His official union duties include the handling of griev ances and negotiation of contracts Presley was involved in the Leeds unit bargaining which occurred in 1985 and 1986 Presley Norma Powell, executive vice president, John Quinn district counsel for Communications Work ers of America, and Rick Glenn, president of Local 3902, attended the 11 March 1986 negotiation meeting on behalf of the Union Attorney Kane and Joe Gibbs, fi nance director, represented the Respondent at the meet ing Federal Mediation had a representative in attend ance also The meeting began at 11 45 a in with the the first 1 1/2 hours devoted to discussion of terminated em ployees The remaining 2 hours of the meeting focused on agreements of articles contained in Respondents re draft contract proposal Respondents contract proposal is comprised of 30 separate articles Agreement was reached at the meeting on the following articles II-re sponsible union company relationship III-management rights V-bulletin boards VI-health and safety VII- nondiscrimination, X-union representation, XI-dis charges supensions and demotions XIII Federal and state laws, XIV-new and reclassified jobs XVI-travel time travel conditions, and expenses XVIII-workforce adjustment XX-cable service and XXV-gender The meeting ended with the parties agreeing to next meet on 16 and 17 April Presley and Powell attended the 16 Apnl meeting for the Union and Attorney Kane and Joe Gibbs attended for the Respondent The meeting began about 11 30 a m with a recap of the agreements from the March meeting and designating those articles still open Powell then went through the open articles one by one stating the Unions agreement to each article as pro posed The parties agreed to the following articles I- recognition, IV-strikes and lockouts, VIII-union rep resentation and activities, XII-bargaining unit work, XV-tranfers XVII-leaves of absence, XIX-length of service XXII-hours and conditions XXIII-vacations, XXIV-sickness and accident, XXVI-absence from duties, XXIX-completeness of contract, and XXX-du ration of contract Following Powell's recap of open articles and designa Lion of those articles now agreed on Presley presented a handwritten proposal to Kane and Gibbs covering IX- grievances XXI-holidays XXVII-insurance and XXVIII-wages Kane and Gibbs said they would have to study the proposal and get back to the Union No fur ther negotiations took place that day but the following day was set as the next meeting The following morning Presley, Powell and the Federal mediator met at the hotel and waited for Kane and Gibbs Neither Kane nor Gibbs appeared for the meeting Norma Powell testified she is administrative assistant to vice president of District 3 (formerly District 10) She supervises the union staff and is responsible for all labor relations in a five state area, including Alabama Powell did not attend negotiations in 1985 but did attend in 1986 At the end of the 11 March 1986 meeting the par ties agreed to meet again on 16 and 17 April On 16 April Powell, as spokesperson for the Union, agreed to open articles as proposed by the Respondent with the ex ception of XXVIII-wages XXVII-insurance and XXI-holidays Shortly, thereafter, Powell agreed to ar ticle XXI holidays as proposed by the Respondent The Union proposed changing the maximum wage for com pany service representative from $5 50 to $7 because the present position was paying over $6 Powell had thought the position presently was paying $6 95 when in fact it was $6 33 The Union then changed their wage proposal for the maximum to $6 50 The Union did not propose any other wage changes in the Company s wage propos al The Union s prior counterproposal on XXVII-insur ance was for a $100 deductible that was the deductible currently being paid by employees No further changes in insurance were proposed The only other open article was IX-grievances which we agreed to accept if the wages and insurance were agreed to Kane and Gibbs left the meeting room to caucus but later Kane came back to the meeting room and stated to Powell do you know that our proposal is a meet proposal? Powell re sponded affirmatively Although no further negotiations took place that day the following day at 9 a m was set for a meeting The evening of 16 April Powell received word to call Gibbs at 7 am on the 17 April Powell spoke with Gibbs about 7 30 a in on the 17 April Gibbs stated, Norma I didn t realize that we were so close I have not yet explained this to my people at all and I need time to explain it to them Powell asked how much time do you need? Gibbs replied about a week Powell said, okay because the International convention is next week and that will give me time to go out there Powell added about the 28th ' Gibbs said, yes Sub sequently, Powell was unsuccessful in getting Gibbs to return phone calls and the parties did not meet on 28 April On 30 April Powell again called Gibbs and left word for him to return her call Gibbs did not return Powell s call Joe Gibbs, secretary treasurer of Masada Corporation, testified that the corporation managers the partnership, Masada Communications Ltd In addition Gibbs is the general partner in Masada Communications, Ltd, which is now the operating entity of the cablevision facilities Gibbs became a stockholder in the predecessor operating entity, Masada Communications, Inc, in April 1984 Sub Sequent to the formation of the partnership, Masada PREMIER CABLEVISION Communication, Ltd , the three partners decided to change counsel and become more involved in labor rela tions After Judge McLeod s decision and the election in the Gardendale unit, the partners decided to start afresh with the collective bargaining and selected Gibbs to head up the bargaining team Gibbs began the bargaining for Respondent that commenced on 4 February 1985 supported by new counsel, Richard Kane Gibbs was present for the 16 April 1986 meeting At the meeting the Union made proposals on wages and in surance and further proposed that if the wage and insur ance were accepted the remaining open company pro posals would be accepted by the Union Gibbs testified, I had to then reflect on if we did that , what was it going to do with these other articles that would then be accepted And so we wanted to take time to look at the specifics of these proposals and see what effect it would have in the contract The Union s wage proposal affect ed only one of the three employees at the Leeds facility, the customer service representative That employee was already receiving more than the company wage proposal dictated due to a prior court Order Gibbs explained that albeit only 1 Leeds employee was affected by the pro posed wage, the information has a way of leaking to the other 35 or 40 employees in other Birmingham facilities In addition to the difference in deductible of $100 and $200 the Company s proposal included changing the medical package to a preadmission approval prior to en tering the hospital The insurance carrier had previously given a bid to the Company whereby substantial dollars could be saved if the deductible ($ 100) was increased and a preadmission approval by a doctor was required When first proposed the Union rejected the insurance proposal After the 16 April meeting adjourned , Gibbs attempted to phone Powell He was not able to reach her until the next morning Gibbs told Powell that he needed time to look at the cost of the insurance proposal and suggested that the meeting, previously set for that day be canceled Gibbs testified In that discussion, I told her that be cause of all the articles that they accepted , it appeared that we were almost there,' or something like that However, I still needed time to discuss with my partners the wage proposal and I needed time to see what the in surance proposal was going to do to us " Powell asked how much time was needed and that she was going to Washington D C and would not be back until the week of 28 April Gibbs responded a few days and maybe we can have it by then and we 11 get back together Gibbs then instructed his employee benefits manager to obtain the insurance information from the carrier On 28 and 29 April, Gibbs was in Florida working on a project and did not return until late in the day He im mediately left for New York On Wednesday 30 April Gibbs called his office for messages and then tried to return Powell s phone call but she was absent from her office Gibbs returned to his office on Friday, 2 May 1986 Gibbs did not attempt to call Powell from his office at that time because one of his partners informed him that the Leeds employees had signed a petition stat ing they did not want to be represented by the Union anymore Gibbs was then instructed by his attorney not to return the Union s call Gibbs did not receive the in 937 surance information while he was out of town and when he returned from New York he saw no point in pursuing the information further Analysis and Conclusions Counsel for the General Counsel does not contend, nor does her complaint allege , that Respondent has bar gained in bad faith within the timeframes of the instant case Neither does the General Counsel seek a remedy of Execution of a contract previously agreed to She con tends simply that a reasonable time for bargaining has not elasped and therefore Respondent is not free to en tertain an employee petition which attacks the majority status of the Union She would give no credence to the negotiating sessions occurring before the Board Order of 31 October 1985 The Charging Party (the Union) wants to scrutinize the two contract proposals of Respondent and compare the two proposals for substantive content , consider the time spent in redrafting the original proposal and time lost due to the canceled meetings , to show the dilatory and evasive tactics of Respondent Respondent argues that if counsel for the General Counsels theory is accepted, its effect on the employees within the bargaining unit would be manifestly unfair For if compliance cannot be voluntarily initiated prior to exhaustion of all appeals, the employees can be held cap tive by the parties to the litigation Further if the theory is accepted then compliance could not be achieved until even enforcement actions have been completed In such circumstance, the decision on when employees are free to express themselves is totally within the unbridled dis cretion of the enforcement section of the Board-when and if it decides to seek enforcement , a decision which has no time restraint limits on it Respondent further argues that all bargaining sessions are relevent from the standpoint of their curative effect and its impact on the bargaining that followed the Order In short, because the parties had been bargaining extensively for 9 months prior to the Order little if anything remained for bar gaining that had not already been addressed The instant case presents the circumstance of a Board conducted election and bargaining for an initial contract The Board rule honoring a certification for 1 year, absent unusual circumstances was developed to provide a reasonable period for collective bargaining to function and thus stabilize industrial relations The Board rule presupposes that both parties will bargain in an attempt to reach an agreement Where, as here the certification year is interrupted by the commission of unfair labor practices, the Board must assess the effect of the unfair labor practices, to both remedy such effect and to deter mine what constitutes a reasonable period for bargaining free of unfair labor practices Not all unfair labor prac tices impact bargaining equally but an unfair labor praci tice based directly on the bargaining obligation of the parties has both a prospective and retrospective effect on continued bargaining Thus, the Board in Glomac Plas tics, 234 NLRB 1309 fn 4 (1978) stated 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although the so called Aar Jac remedy (136 NLRB 785, 787, (1962)) is typically designed to provide an aggrieved labor organization with 1 year s time in which to negotiate a collective bargaining agree ment, we do not believe the Board is powerless to order, under proper circumstances, a complete re newal of a certification year , even in cases where there has been good faith bargaining in the prior certification year Such a position takens cognizance not only of the realities of collective bargaining ne gatiations as well as the realities of the effect of any bad faith bargaining in the prior year , but also more importantly, of that policy embedded in the Act which seeks to have the relationship between cov ered employees and their employers determined by the bargaining process and thus reduced to written contract form Respondent correctly states that In cases where the Board issues a general bargaining order that remedy re quires that a Respondent bargain for a reasonable length of time The question of what is reasonable is answered in light of all the circumstances present " Here, following the election (but before certification) Respondent committed a bargaining violation Immedi ately following the certification an additional bargaining violation occurred Six negotiation meetings were subse quently held and Judge McLeod found that Respondent was engaged in surface bargaining with no intent to reach a final and binding collective bargaining agree ment An additional certification intervened before the Board Order in Judge McLeod s case and Respondent initiated joint bargaining efforts for the new unit and the Leeds unit Twelve meetings occurred before the Board issued its Order on the bad faith bargaining Within a month of the Board Order, Respondent withdrew recog nition in the new unit and then took time to redraft the joint contract proposals to delete all references to the new unit The redrafted proposals were submitted in February 1986 and comprised all the clause language the parties had previously agreed to but was presented to the Union as a complete contract proposal yet to be agreed to clause by clause Thus, Respondent for all intents and purposes, put the Union back to square one in nego tiations for the Leeds unit With the initial certification year being interrupted twice by bad faith bargaining, an 11 month hiatus in which no bargaining occurred and bargaining starting anew with an additional certified unit as a joint vehicle but ending in a cessation of bargaining due to Respond ent s withdrawal of recognition , one has to question if the Act's policy has in any way been respected In my view industrial relations between this Respondent and the Union were not stabilized nor did collective bargain ing function for any reasonable period of time Respond ents argument that the effect of continued bargaining on the employees would be mainfestly unfair overlooks or disregards its own culpability for the delays and the need for continued bargaining The Board requires a reasona ble period of time for collective bargaining, free from unfair labor practices and the effects of unfair labor prac tices, to prevent a party from gaining an advantage from its failure to carry out its bargaining obligation I con elude and find that the Union has not enjoyed a reasons ble period of time, free of the effects of the unfair labor practices committed by Respondent, in which to bargain collectively for an initial contract covering the employ ees in the Leeds unit The Board historically uses the date of certification or the date of its Order remedying unfair labor practices occurring within the certification year as the commencement of any reasonable period of time for remedial barganing However, where unusual circumstances are present, the remedial reasonable period may be fashioned otherwise The instant case presents, to me, such unusual circumstances Respondents so called voluntary compliance with Judge McLeod s decision was occasioned by a new contract proposal for a new unit with the Leeds unit included by the parties agree ment With the cessation of bargaining for the new unit Respondent again presented a new, albeit a redrafted, proposal to the Union for the Leeds unit After only two meetings in 4 months, Respondent again ceased bar gaining and argues, Little, if anything remained for bar gaining which had not already been addressed ' Such an argument, particularly when joined with the undisputed facts surrounding Respondent's bargaining obligation, demonstrates clearly that the statutory policy was disre garded to the detriment of the employees exclusive rep resentative An additional consideration is the disruptive effect of Respondent's withdrawal of recognition from the Union An appropriate remedy must therefore be fashioned on the facts of this case and in accordance with Board law See Dominguez Valley Hospital, 287 NLRB 149 (1987) I think the statute and the Board law requires more than the ordinary Accordingly , I further conclude and find that the Union is entitled to an additional 8 months of bargaining, to commence when the parties meet again to continue that bargaining that stalled in April 1986 with agreement on all but two articles in the contract proposed by Respondent Respondents arguments that the determinations of the General Counsel or the Regional Office are controlling is unavailing The Board alone makes and enforces labor policy under the statue ADDITIONAL CONCLUSIONS OF LAW 1 Respondent, by withdrawing recognition from the Union before a reasonable period of time for collective bargaining free of the effects of its prior unfair labor practices had elasped , has violated Section 8(a)(1) and (5) of the Act 2 The unfair labor practice, described above, has a close, intimate, and substantial relationship to trade, traf fic, and commerce among the several States and tends 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 unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall order it to cease and desist therefrom and PREMIER CABLEVISION to take certain affirmative action designed to effectuate the policies of the act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed3 ORDER The Respondent , Masada Communications, Ltd , d/b/a Premier Cablevision (formerly Masada Commune cations, Inc, d/b/a Leeds Cablevision), and Masada Cor poration, Leeds, Alabama, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Withdrawing recognition from the Union before a reasonable period of time for collective bargaining, free of the effects of its prior unfair labor practices, has elasped (b) 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 3 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 939 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Regard the Union as the exclusive representative of its employees and continue to bargain collectively in good faith with the Union for an additional 8 months from the commencement of bargaining pursuant hereto (b) Post at its facility located in Leeds, Alabama, copies of the attached notice marked Appendix '4 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 immediatley 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 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 4 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