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Spectrum May Have Broken Laws in Bid to Oust Union, NLRB Says

Aug. 9, 2019, 9:45 AM

A yearlong campaign to boot a union of Spectrum technicians from the cable company’s New York facilities may fail after allegations that the company engaged in anti-union conduct in the lead-up to the decertification election, a federal labor board official said.

Voting concluded in February, nearly two years into a strike by the Spectrum workers, but results have been kept under seal pending rulings on earlier union allegations of unfair labor practices by the company and confusion over who was eligible to vote. Now the results finally appear ready to be finalized after NLRB Regional Director John J. Walsh ruled earlier this week on which ballots should count.

However, he added a big caveat: Evidence that Spectrum interfered with the election, including by threatening workers if they voted for the union, may void it. That could add a new layer of chaos and uncertainty to one of the longest ongoing labor disputes in the country.

About 1,800 Spectrum workers represented by International Brotherhood of Electrical Workers Local 3 have been on strike since March 28, 2017. The company has hired hundreds of permanent replacement workers. The union has spent tens of thousands of dollars on an ad campaign urging customers to “cut the cord on Spectrum.” New York Gov. Andrew Cuomo (D) has pledged to boycott Spectrum and refuses to appear on its New York news network, Spectrum News NY1.

Months after the strike began, a former supervisor took a new job in the bargaining unit and filed for the union to be decertified, which would effectively kick it out of the workplace. The union alleged the former supervisor was ineligible to file for decertification, but the labor board disagreed. There are no formal allegations that the company moved the supervisor to initiate the election.

A Covert Recording

The union provided the NLRB with an audio recording of a meeting Spectrum held with its employees shortly before voting began in January in which the company allegedly promised workers benefits and raises if the union was decertified. The company also allegedly threatened the employees with fines, penalties, and even violence if they decided to side with the union.

The meeting was mandatory for employees to attend, according to the local.

The recording could “warrant setting aside the results of the election,” Walsh said in his supplemental decision Aug. 5.

Spectrum told the NLRB it never engaged in such conduct. The labor board hasn’t made a final determination on whether the union’s recording and allegations are valid. But if the counting of the votes adds up to union decertification, Walsh said, an investigation and hearing on the evidence would take place.

Spectrum, which became a brand of Charter Communications Inc. following its acquisition of Time Warner Cable in 2016, said that the NLRB’s decision to finally count ballots was a “positive step forward.”

“We’re confident we presented lawful, truthful, and appropriate information to employees about the election,” Charter spokesperson John Bonomo said.

IBEW Local 3 didn’t respond to a request for comment.

Let’s Keep Things Simple

There are so many legal complexities and disputes surrounding the strike and the ensuing election that the NLRB official overseeing the case is taking things one step at a time.

The IBEW filed 10 objections to Charter’s conduct in the election. But the regional director has temporarily set aside those multiple allegations of election misconduct, focusing first on the eligibility of ballots and the result of the vote.

Only if the union is decertified will the NLRB look at whether the allegations are sufficient to invalidate the result. If the union emerges victorious in the decertification vote, its allegations will be considered moot.

The regional director overruled three election objections and broke the rest into two categories based on the type of allegation.

The first five allegations involve the captive audience meetings Spectrum allegedly held with its employees. The other two involve the allegedly illegal firing of several union workers who attempted to return to work after striking.

Walsh said that the last two allegations have merit but will only go before an administrative law judge if necessary once the first five allegations involving captive audience meetings are settled.

Well, Who’s a Worker?

The regional director ruled that the hundreds of workers who had been on strike were out of work so long that they were no longer eligible to vote on the fate of their union. Replacement workers brought in by Spectrum, however, were allowed to cast a vote.

The ironic twist of fate for the union means that the 666 IBEW members who remained on strike and were supplanted by permanent replacement workers, but voted in the decertification election, will now have their ballots tossed aside while more than 600 replacement employees will have their ballots tallied. A total of 332 strikers who returned to work will also have their votes counted.

The union tried to convince the labor board that Spectrum had changed the course of the strike with multiple unfair labor practices. If the NLRB agreed, the strikers would have been given additional protections such as having their votes count and having more priority when it comes to being reinstated as employees. Instead, Walsh said that the work action is an economic strike rather than an unfair labor practice strike.

The regional director agreed that unfair labor practices were likely perpetrated by Spectrum when it refused to reinstate some striking workers who wished to return to their jobs. But those actions were “insufficient to find that the economic strike converted to an unfair labor practice strike,” Walsh wrote in his decision.

He conceded, however, that the impact of firing workers on strike is unclear and that it would be up to an administrative law judge to determine if that could have an effect on the fairness of the decertification election.

The election results will likely be posted in the coming weeks.

To contact the reporter on this story: Andrew Wallender in Washington at awallender@bloomberglaw.com

To contact the editors responsible for this story: Phil Kushin at pkushin@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com