587 F.2d 90 (2nd Cir. 1978), 943, Waterbury Community Antenna, Inc. v. N.L.R.B.

Docket Nº:943, 944, Dockets 78-4008, 78-4030.
Citation:587 F.2d 90
Party Name:WATERBURY COMMUNITY ANTENNA, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
Case Date:October 27, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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587 F.2d 90 (2nd Cir. 1978)

WATERBURY COMMUNITY ANTENNA, INC., Petitioner-Cross-Respondent,


NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

Nos. 943, 944, Dockets 78-4008, 78-4030.

United States Court of Appeals, Second Circuit

October 27, 1978

Argued May 1, 1978.

Albert H. Turkus, Washington, D. C. (Thomas H. Wall, Marshall F. Berman, Washington, D. C., of counsel), for petitioner-cross-respondent.

Alan Banov, N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Elinor Hadley Stillman, N. L. R. B., Washington, D. C., of counsel), for respondent-cross-petitioner.

Before FEINBERG and MESKILL, Circuit Judges, and PORT, [*] District Judge.

MESKILL, Circuit Judge:

This case is before us upon a petition for review and a cross-application for enforcement of an order of the National Labor Relations Board. The principal issue is whether the record contains substantial evidence to support the Board's finding that the petitioner violated § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), by discharging one of its employees.

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Petitioner, Waterbury Community Antenna, Inc., is a Connecticut corporation and a subsidiary of Sammons Communications, Inc., of Dallas, Texas. In 1974, petitioner was granted franchises from the Connecticut Public Utilities Commission, now the Public Utilities Control Authority, to build and operate cable television systems in Waterbury, Plymouth and Middlebury, Connecticut. The franchises required petitioner to build all three systems within five years and to build at least twenty percent of the total of the three systems each year. The Waterbury system, which represents eighty-seven percent of the total, was started first and was finished in two years. In the summer of 1976, petitioner had no immediate plans to begin building the Plymouth and Middlebury systems.

The cable television system receives television signals from the airwaves, amplifies them, and feeds them into a coaxial cable which carries them to individual subscribers' television sets. The coaxial cable is attached to a "strand," a non-electric line which is attached to telephone poles owned by the Southern New England Telephone Company. Petitioner pays for the use of the poles by purchasing "licenses" covering about 400 poles each. The Waterbury system included thirty-three licenses; a thirty-fourth was added to permit petitioner to extend the system into Naugatuck. The Waterbury system was also divided into five segments for construction purposes. As each segment was completed, it could be "energized" and petitioner could begin to realize income.

The initial work on the Waterbury system was done by a subcontractor which performed a preliminary survey in early 1974 and produced strand maps indicating the telephone poles to which the strand should be attached. In March of 1974, John Baker, petitioner's general manager, arrived in Waterbury and took charge of all of petitioner's operations. About the same time, Michael Petruzzi, petitioner's chief technician, and a former employee of petitioner's parent, Sammons, began work in Waterbury.

The actual construction of the system was contracted out to Magnavox, which in turn subcontracted the work to Payne Construction Company. Before Payne could begin construction, a survey of the telephone poles had to be conducted to determine what work would have to be done to each pole in order to ensure that petitioner's cable would be attached in a manner that would conform to state and federal regulations. This pole survey was begun by a Sammons employee named Bill Boone. In late August or early September, 1974, Boone suffered a heart attack and for about two weeks Baker took over his responsibilities. On September 26, 1974, Baker hired Ben Tabaka.

It is undisputed that Tabaka's job was a temporary one: "Baker intended and Tabaka understood that Tabaka was being hired in connection with plant construction only and that his job would end when the work for which he was being hired came to an end." 1 Because of a back injury, Tabaka was unable to perform normal tasks, such as climbing telephone poles, required of post-construction operating personnel, such as installers or repairmen. Baker gave Tabaka the title of construction engineer/draftsman. Forms completed by Baker at the time Tabaka was hired indicate that Tabaka was "Needed for Pole survey to replace Bill Boone" and that he was hired "to do pole survey with telco/Permit work & drafting." The pole survey consisted of a physical inspection, by Tabaka and a telephone company employee, of each telephone pole. With respect to each pole, they would note what, if anything, had to be done to ensure that the pole would conform to legal requirements when petitioner's cable was attached. Tabaka's immediate superior was Petruzzi.

In November, 1974, Payne began construction in areas where the pole survey was already finished. Tabaka and his telephone company counterpart continued to

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work on the pole survey at least through the spring of 1975. The pole survey appears to have been completed early in the summer of 1975. Baker's budget for 1975 did not provide for wages for Tabaka beyond July of that year. As the pole survey was being finished, Petruzzi assigned Tabaka the job of performing a "final inspection" of Payne's work to determine whether it had been done in accordance with specifications. The job was intended by Petruzzi "as a filler." Like the pole survey, the final inspection was performed in conjunction with a telephone company employee.

The subject of laying off Tabaka first arose sometime between July and September, 1975, and was apparently prompted by the fact that Tabaka had finished the work for which he had been hired but had nevertheless remained on the payroll beyond the time allowed for in the budget. At a meeting in Baker's office, Baker explained that he was anxious to cut costs and wanted to know how soon the temporary employee Tabaka could be terminated. Petruzzi argued that Tabaka should be retained to finish the final inspection. Baker agreed to this because he was anxious to expedite the completion of the final inspection. Petitioner paid the telephone company in advance based on estimates that were "usually a little heavy on the front end." Upon completion of the final survey, actual costs could be calculated, and this was expected to produce a refund for petitioner. In September, Tabaka asked Petruzzi about the possibility of a raise. Petruzzi told him that it was a bad time to make such a request because petitioner was trying to hold down expenses. Petruzzi explained that management had wanted to lay Tabaka off when the pole survey was complete but had been persuaded to keep him on until the final inspection was finished. In September or October, 1975, Baker prepared the 1976 budget; it made no allowance for wages for Tabaka. There is no evidence to indicate that Tabaka saw or knew of this budget. In early October, Tabaka contacted James Fraser, the president and assistant business manager of Local 42 of the International Brotherhood of Electrical Workers, AFL-CIO.

Back in February and March of 1975, when petitioner had prepared to energize the first segment of its system, Baker had hired operational personnel, including installers and repairmen. During this initial period, petitioner had also relied on subcontractors to perform installations in order to avoid building up a large staff that would have to be reduced later. More employees were added to petitioner's payroll in September and October, 1975. By this time, petitioner had a total of twelve non-clerical employees, including installers, repairmen and Tabaka.

At Fraser's request, Tabaka arranged a meeting of petitioner's employees at a restaurant on October 21, 1975. Nine employees attended, including Tabaka, and all nine signed union authorization cards. 2 On October 22, Fraser sent a mailgram to Baker in which recognition was requested. The union filed an election petition with the Board on October 28. Two days later, counsel for petitioner sent a letter responding to the mailgram by declining to recognize the union and suggesting that an election petition be filed.

A representation hearing was held in Boston on November 12, 1975, to determine the appropriate bargaining unit. Tabaka appeared with Fraser and participated. Petitioner and the union litigated the question whether Tabaka should be included in the bargaining unit. Baker testified that Tabaka's job of construction engineer/draftsman would be abolished as soon as the final inspection was completed; his best estimate of when the final inspection would be completed was "around February." The parties also disputed whether Petruzzi should be included in the bargaining unit; the union argued that he was a supervisor, while the petitioner argued that he was a rank-and-file employee. In a decision issued on December 18, Acting Regional Director Robert N. Garner found that Petruzzi was a supervisor. He also found that Tabaka had a

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"sufficient community of interest with the other employees." Curiously, he failed to mention the fact that Tabaka's job would expire within two months.

A number of significant events occurred between the meeting at the restaurant on October 21 and the announcement of the results of the representation case on December 18. During this period, petitioner's employees sought Petruzzi's views regarding the union on many occasions, and Petruzzi discussed the matter freely. A few days after the October meeting, an installer named David Wilson sought Petruzzi out in Petruzzi's office. Petruzzi told Wilson he knew about the meeting at the restaurant, and Wilson said that he had been present. Petruzzi asked Wilson what he...

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