NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Cellco Partnership d/b/a Verizon Wireless and Communications Workers of
March 28, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and Walsh
On December 23, 2005, Administrative Law Judge Steven Davis issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief, and the General Counsel and the Charging Party filed answering briefs. The Charging Party additionally filed cross-exceptions, a supporting brief, and a reply brief, and the Respondent filed an answering brief.1
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions2 and briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions as modified herein and to adopt the recommended Order as modified and set forth in full below.4
This case involves allegations that the Respondent
committed several unfair labor practices in response to union organizing
efforts at its
We agree with the judge’s findings, except as to the written warnings issued to Neubauer on October 8, 2003, and March 25, 2004. We find for the reasons discussed below that those written warnings did not violate the Act.5
i. background
The Respondent, a provider of wireless telecommunications
services, employed roughly 400 to 600 customer service representatives at its
customer service center in
In the spring of 2003,6
the
In August, employee Danaya Hilton complained to her
managers that fellow employee and union supporter Greg Neubauer had repeatedly
disturbed her while she was working to encourage her to sign a union authorization
card. On August 28, in response to
Hilton’s complaint, Associate Director of Customer Service Loraine Smith asked
Neubauer to stop “harassing” Hilton at her desk about the
In early October, the Respondent received a similar complaint about Neubauer from employee Myra Rivas. Rivas reported to Associate Director of Customer Service Smith that Neubauer had been visiting her cubicle while she was working, interrupting her with requests that she sign a union authorization card, and generally “getting on her nerves.” During one of those visits, according to Smith, Neubauer had placed a picture of himself on Rivas’ desk. When Rivas removed the picture, Neubauer replaced it. Rivas again removed the picture after consulting Supervisor Constance Crews Young (Crews) about the situation. Neubauer later questioned Rivas about what happened to the picture and told her that he knew “that bitch” took it, referring to Supervisor Crews.
At about the same time, the Respondent sent an e-mail
critical of the
Based on the complaints from Rivas and Rivieccio, the
Respondent issued a written warning to Neubauer on October 8. The warning cited Neubauer’s solicitation of
employees during working time as well as his “inappropriate and insubordinate
remarks” about a supervisor and his use of “offensive language.” After the
The Respondent’s code of business conduct prohibits “[c]onduct that encourages or permits an offensive or hostile work environment.” Although the record evidence shows that profanities were sometimes used on Respondent’s premises, there is no evidence that profanities were commonly heard on the work floor. Rivieccio testified that the word “fuck,” in particular, was not commonly heard on the work floor during worktime.
ii. discussion
The judge found that the August 28 oral warning and the October 8 and March 25, 2004 written warnings issued to Neubauer were predicated on his engaging in union solicitation and therefore violated Section 8(a)(3). The Respondent excepts to this finding, maintaining that it lawfully disciplined Neubauer based on his grossly inappropriate behavior in his interactions with other employees, including his use of insubordinate and offensive language. For the reasons explained below, we find merit in the Respondent’s exceptions in regard to the two written warnings at issue.
The allegedly inappropriate behavior for which Neubauer
was orally disciplined on August 28 consisted of Neubauer’s repeatedly approaching
Hilton, while she was working in her cubicle, to encourage her support for the
As stated above, the Respondent maintained a rule
prohibiting solicitation for any purpose on working time. Such rules are presumptively lawful. Our
Way, Inc., 268 NLRB 394, 394 (1983).
However, the presumption of lawfulness is effectively rebutted here, as
the record reflects that the Respondent permitted a variety of nonunion
solicitations during working time and sought to enforce its rule only against
Neubauer’s union solicitation.
The Respondent’s subsequent written warnings to Neubauer
stand on somewhat different footing.
Those warnings were triggered, in part, by Neubauer’s continued
solicitation on behalf of the Union in October, but they were also based on
Neubauer’s allegedly egregious conduct while soliciting two particular
employees: first, in seeking employee Rivas’ support for the Union, Neubauer
referred to Supervisor Crews as “that bitch”; and, second, in soliciting
employee Rivieccio, Neubauer told her to show a union-related e-mail to her
“fucking supervisors.” Although Neubauer’s
profane comments were made during the course of his protected efforts to
promote the
“[A]lthough employees are permitted some leeway for impulsive behavior when engaging in concerted activity, this leeway is balanced against an employer’s right to maintain order and respect” in the workplace. Piper Realty Co., 313 NLRB 1289, 1290 (1994). The Board has found that even when an employee is engaged in protected activity, he or she may lose the protection of the Act by virtue of profane and insubordinate comments. See, e.g., DaimlerChrysler Corp., 344 NLRB No. 154, slip op. at 6–7 (2005); Aluminum Co. of America, 338 NLRB 20, 21–22 (2002); Atlantic Steel Co., 245 NLRB 814, 816 (1979). The Board carefully balances four factors in determining whether the protection of the Act has, in fact, been lost in a given situation:
(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
Atlantic Steel Co., supra, 245 NLRB at 816.
Here, the first of these factors, the place of the discussion, weighs heavily in favor of a finding that Neubauer lost the protection of the Act. Neubauer approached Rivas and Rivieccio at their cubicles, on working time. Rivas and Rivieccio worked in a large open area full of cubicles in close proximity to each other occupied by both supervisory and nonsupervisory personnel. In such a place, Neubauer’s profane comments were likely to be heard by others, as well as Rivas and Rivieccio, and “would reasonably tend to affect workplace discipline by undermining the authority of the supervisor[s] subject to his vituperative attack[s].” DaimlerChrysler Corp., 344 NLRB No. 154, slip op. at 6.8
By contrast, the second factor in the analysis, the subject
matter of the discussion, favors a finding that Neubauer did not lose the protection
of the Act. Neubauer made the profane
comments at issue while exercising his Section 7 right to engage in
self-organization: he was encouraging Rivas and Rivieccio to support the
The third factor, the nature of the outburst, weighs
heavily in favor of a finding that Neubauer lost the protection of the
Act. Although Neubauer’s two outbursts
were brief, they were profane and insubordinate. In the Respondent's workplace, where
profanities (and, particularly, the one used by Neubauer) were not commonly
heard on the work floor, Neubauer’s profane references to supervisors would
necessarily have drawn attention and had a destructive effect on workplace discipline. Indeed, Rivieccio’s reaction to Neubauer’s
outburst, although not determinative, provides some measure of its seriousness:
Rivieccio, who often discussed the
The fourth factor, the presence of an unlawful provocation
for the outburst, similarly weighs in favor of a finding that Neubauer lost the
protection of the Act. Neubauer’s
profane outbursts were not a reaction to any unfair labor practice committed by
the Respondent. In his outburst directed
at Rivieccio, it is arguable that Neubauer was reacting to an e-mail sent
earlier by the Respondent to all employees, in which the Respondent criticized
the
Based on our analysis, it is apparent that only the second factor, subject matter, favors a finding that Neubauer’s outbursts were protected. On these facts, that factor is far outweighed by the remaining factors. We therefore find that, by making his profane remarks, Neubauer lost the protection of the Act.
Our dissenting colleague acknowledges that Neubauer’s profane comments were unprovoked by the Respondent, but disagrees with the balance we have struck in considering the remaining Atlantic Steel factors. In particular, he contends that we have attached too much weight to the fact that Neubauer made his profane comments in a work area, because the comments were not made directly to any supervisor. Even so, the record shows that the work area was full of cubicles occupied by employees and supervisors alike. It is thus reasonable to assume that others likely overheard Neubauer’s outbursts, and that his comments would reasonably tend to undermine the Respondent’s supervisors’ ability to maintain order and respect. Cf. Aluminum Co. of America, 338 NLRB 20, 22 (2002) (employee lost the protection of the Act where his profane outbursts were not directed at the specific supervisor involved but overheard by other employees). For similar reasons, we are not persuaded by our colleague’s effort to downplay the serious nature of Neubauer’s comments. Indeed, unlike our colleague, we can hardly find Neubauer’s profane comments “harmless.” Neubauer’s profane characterization of Supervisor Crews in particular was a purely ad hominem attack unrelated to any legitimate workplace concern.9 In the end, our colleague’s argument rests principally on the fact that Neubauer was engaged in the “core” Section 7 activity of union solicitation. We have given that factor due weight, but, unlike our colleague, we find that this lone factor is overcome by the place and nature of Neubauer’s outbursts and the absence of any provocation.
In addition, we disagree with our dissenting colleague’s view that the issuance of written warnings based on Neubauer’s outbursts constituted an unlawful acceleration in his discipline in violation of Respondent’s own progressive discipline policy. Although the record suggests that the Respondent applied progressive discipline, there is no evidence that it progressed by specific increments. The record suggests, in fact, that the Respondent sometimes accelerated discipline (i.e., skipped a level of discipline) in order to levy a punishment more closely fitting the severity of the employee’s work infraction.10
In view of all these considerations, we find that the Respondent did not violate Section 8(a)(3) by issuing written warnings to its employee Greg Neubauer on October 8, 2003, and March 25, 2004.
ORDER
The National Labor Relations Board orders that the
Respondent, Cellco Partnership d/b/a Verizon Wireless,
1. Cease and desist from
(a) Orally promulgating and maintaining a rule prohibiting union solicitation in employee work areas and on breaktime.
(b) Orally promulgating and maintaining a rule prohibiting its employees from discussing their discipline.
(c) Selectively and disparately enforcing its no-solicitation policy against employees engaged in union solicitation.
(d) Issuing warnings or other discipline to employees for engaging in union solicitation based on a selective and disparate application of its no-solicitation policy.
(e) In any like or related manner interfering with, restraining, 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) Rescind and cease maintaining unlawful rules prohibiting its employees from soliciting for a union in employee work areas or on breaktime, and notify employees in writing that such rules have been rescinded.
(b) Rescind and cease maintaining unlawful rules prohibiting its employees from discussing their discipline, and notify employees in writing that such rules have been rescinded.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful August 28, 2003 oral warning issued to Greg Neubauer, and within 3 days thereafter, notify him in writing that this has been done and that the unlawful warning will not be used against him in any way.
(d) Within 14 days after service by the Region, duplicate
and mail, at its own expense, copies of the attached notice marked “Appendix”11 to all current employees and former
employees employed by the Respondent at its
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
Robert J. Battista, Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Member Walsh, concurring in part and dissenting in part.
The Respondent sought to suppress union solicitation at
its
i. background
In early 2003,2
the Communications Workers of America, AFL–CIO (the
At about the time of that staff meeting, employee Danaya Hilton complained to the Respondent that Neubauer was continually interrupting her work to ask her to sign a union authorization card. As a result of Hilton’s complaint, Associate Director of Customer Service Loraine Smith met with Neubauer on August 28. At that meeting, Smith told Neubauer that Hilton had complained about his “harassing” her to sign a union authorization card. Smith orally warned Neubauer that he should “not go onto the floor and talk to any of the co-workers or the managers or even talk about non related work issues, including the Union, on the floor,” that he could not talk about the Union on his breaktime, and that “if [he] did speak to somebody on the floor that [he] could be terminated; disciplined also.”3
In early October, two other employees told the Respondent
that Neubauer had been approaching them at work to solicit their support for
the
Rivieccio testified that when Neubauer made this comment to her, she loudly told him to leave her alone. She then went to her supervisor, Bridget Armstrong, to explain why she had been so loud, recounting to Armstrong what Neubauer had said and showing Armstrong the e-mail that Neubauer had handed to her. Rivieccio testified that she went to Armstrong with this information in order to “cover” herself rather than to complain about Neubauer. When Armstrong and Director of Customer Service Carolyn Collins later invited Rivieccio to discuss the incident further, Rivieccio explained to them that Neubauer had not bothered her and that she was not making a complaint about him. There is no evidence that Neubauer was threatening in his interaction with Rivieccio. Nor is there any evidence that Neubauer lingered at Rivieccio’s desk once she asked him to leave her alone.
Based on the reports from Rivas and Rivieccio, Smith again called Neubauer to her office for a meeting in early October. Smith testified that, at this meeting, she explained to Neubauer “that we now have three different, separate employees that are complaining . . . regarding some of the same issues: that [you are] harassing [them], that [you are] continually talking to them at their desk about the union, that [you are] continually trying to get them to sign up for the union and that they’ve asked [you] to stop and [you] ha[ve] not stopped. And it’s the same complaint. . . . [N]ow we have, you know, a big issue.” (Emphasis added.) There is no evidence that, during this meeting, Smith specifically addressed Neubauer’s use of profanity on the work floor. Smith concluded the meeting by telling Neubauer that he would be informed shortly as to what steps would be taken in response to his conduct, and she told him that, in the meantime, he “shouldn’t go on the floor to speak to anybody about it, employees or managers, because if [he did] there could be additional discipline or even terminat[ion].”4
The Respondent issued a written warning to Neubauer on October 8. The warning stated, in relevant part:
On August 28 you were verbally warned for soliciting employees during work time after concerns about violations of our policy were brought to my attention by co-workers. At that time, we reviewed our No-solicitation Policy and my expectations about general behavior in the workplace. On October 1, I received a second complaint from another co-worker about further violations on your part, including both engaging in solicitation during working time and making inappropriate and insubordinate remarks about your former supervisor (referring to her as “that bitch”). Additionally a second employee came forward on October 2 to share that you had used offensive language again. As a result of these repeated violations of the solicitation and distribution policy and of other requirements of the Code of Conduct, you are being placed on a Written Warning.
The warning also recited the Respondent’s written no-solicitation rule and the portions of its code of business conduct prohibiting “threatening, insubordinate, violent or obscene behavior” by an employee.
Over 5 months later, after the
On October 1, I received a complaint from a co-worker about your making inappropriate and insubordinate remarks about your former supervisor (referring to her as “that bitch”). Additionally a second employee came forward on October 2 to share that you had used offensive language again, in regard to an email of yours that you told her to show to her “fucking supervisor friends.” As a result of these repeated violations of the Code of Conduct, you are being placed on a Written Warning.
The revised warning did not set forth the Respondent’s no-solicitation rule, instead reciting only the portion of Respondent’s code of business conduct allegedly implicated by Neubauer’s use of profanity in his interactions with Rivas and Rivieccio.
ii. discussion
The judge found that all three of the Respondent’s warnings to Neubauer—the August 28 oral warning, the October 8 written warning, and the March 25, 2004 revised written warning—violated Section 8(a)(3). The Respondent excepts, arguing that the warnings were a lawful response to Neubauer’s “harassment” of other employees at work. Like my colleagues, I find no merit in this argument as it relates to the August 28 oral warning. Contrary to my colleagues, however, I would also find that the two later written warnings violated the Act.
A. General Principles
Section 7 of the Act guarantees to employees the right of
self-organization, which “necessarily encompasses the right effectively to communicate
with one another regarding self-organization at the jobsite.”
In particular, an employee is not free to engage in union solicitation on working time if his employer lawfully prohibits working time solicitation. See Our Way, Inc., 268 NLRB 394, 394 (1983). An employer, however, has not lawfully prohibited working-time solicitation if the prohibition is enforced disparately or selectively against union solicitation while permitting solicitations for other purposes. See SNE Enterprises, 347 NLRB No. 43, slip op. at 2 (2006) (observing that an employer violates the Act by selectively enforcing an otherwise valid no-solicitation rule against union solicitors); Clinton Electronics Corp., 332 NLRB 479, 479 (2000), enfd. in part 284 F.3d 731 (7th Cir. 2002) (same). The discipline of an employee pursuant to a disparately or selectively enforced no-solicitation rule violates Section 8(a)(3). Clinton Electronics, supra, 332 NLRB at 479.
The Board has also held that an employee is not free to carry out union solicitations in an opprobrious or abusive manner. See Atlantic Steel Co., 245 NLRB 814, 816 (1979). Where an employee conducts himself in such a manner during union solicitations, he risks losing the protection that would otherwise be accorded to his activity under Section 7. See id. (“even an employee who is engaged in protected activity can, by opprobrious conduct, lose the protection of the Act”). Nonetheless, it is also well settled that “not every impropriety committed during [Section 7] activity places the employee beyond the protective shield of the act. The employee’s right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer’s right to maintain order and respect.” NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). Accord American Steel Erectors, Inc., 339 NLRB 1315, 1316 (2003).
The Board strikes the balance between employer and employee rights by carefully considering the circumstances surrounding the employee’s allegedly opprobrious behavior. See Atlantic Steel, supra, 245 NLRB at 816. The guiding principle, however, remains that set forth long ago in Bettcher Mfg. Corp.:
A line exists beyond which an employee may not with impunity go, but that line must be drawn between cases where employees engaged in concerted activities exceed the bounds of lawful conduct in a moment of animal exuberance or in a manner not activated by improper motives, and those flagrant cases in which the misconduct is so violent or of such serious character as to render the employee unfit for further service.
Bettcher Mfg. Corp., 76 NLRB 527, 527 (1948) (internal quotations and citations omitted). Appropriately, this is a high standard: it recognizes “that the economic power of the employer and the employee are not equal, that tempers may run high in this emotional field, that the language of the shop is not the language of ‘polite society,’ and that tolerance of some deviation from that which might be the most desirable behavior is required.” Dreis & Krump Mfg., Inc., 221 NLRB 309, 315 (1975), enfd. 544 F.2d 320, 329 (7th Cir. 1976).
B. The Oral Warning
The Respondent contends that, in August 2003, employee Neubauer was “harassing” fellow employee Danaya Hilton by repeatedly approaching her at her cubicle to ask her to sign a union authorization card. In view of this “harassment,” the Respondent maintains, it was justified in issuing an oral warning to Neubauer on August 28. There is no merit to this argument.
The majority finds that the August 28 oral warning was unlawful based on the Respondent’s selective enforcement of its no-solicitation policy. I do not disagree with this rationale. The record establishes that, although the Respondent maintained a written rule prohibiting solicitation on working time, it did not rigorously enforce this rule. Indeed, employees went from cubicle to cubicle on a fairly regular basis, selling a variety of items—including candy, meals, and Girl Scout cookies—to fellow employees who were working. Far from stopping those solicitors, supervisors occasionally purchased items from them. In those circumstances, as my colleagues point out, the Respondent could not lawfully discipline Neubauer based on the fact that he had solicited Hilton while she was working. See SNE Enterprises, supra, 347 NLRB No. 43, slip op. at 2; Clinton Electronics, supra, 332 NLRB at 479.
Additionally, however, I would emphasize that the August
28 oral warning was unlawful because the Respondent has not established that
Neubauer, in the course of soliciting Hilton to support the
Accordingly, the question is whether, under Board law,
Neubauer engaged in any conduct that was so egregious as to cost him the protection
of the Act. The answer must be no. Hilton’s complaints reveal only that Neubauer
approached her several times in an effort to secure her support for the
C. The Written Warnings
The Respondent’s October 8 written warning to Neubauer, and its March 25, 2004 revised written warning, were unlawful for similar reasons.
1. The October 8 written warning
The Respondent asserts that, in early October, it received
additional complaints that Neubauer was “harassing” his coworkers. The asserted harassment again consisted of
Neubauer approaching employees at their cubicles to encourage their support for
the
In making this argument, the Respondent again proceeds, in
part, on the erroneous assumption that Neubauer’s working time solicitation for
the
Nor was the Respondent privileged to discipline Neubauer based on its other rules regulating workplace conduct. The October 8 written warning refers to Neubauer’s profane remarks to Rivas and Rivieccio as violations of the Respondent’s code of business conduct, which prohibits “threatening, insubordinate, violent or obscene behavior.” As explained above, however, the Respondent cannot simply apply its code of business conduct where, as here, the asserted violations of the code of business conduct were intertwined with Section 7 activity (i.e., Neubauer’s union solicitation). The question is whether Neubauer's comments were so outrageous as to warrant a forfeiture of the protection of the Act.
A fair consideration of the Atlantic Steel factors, set forth in the majority opinion, demonstrates that no forfeiture occurred here. The first factor in the analysis—the place of Neubauer’s comments—does not weigh as heavily against protection as my colleagues suggest. Although Neubauer’s discussions with Rivas and Rivieccio occurred in a work area, he was speaking only to them when he made profane references to Supervisor Crews and other of the Respondent’s supervisors. There is no evidence that he used such language in speaking directly to or in the immediate presence of any supervisor, or that his remarks were overheard by any other employees. This is not to completely excuse Neubauer’s profanity, but simply to recognize that it did not present as significant a threat to the Respondent’s ability to maintain order and respect as cases in which a supervisor is directly confronted with an employee’s profanity, or where it is heard by others. Compare, Cement Transport, Inc., 200 NLRB 841, 845–846 (1972) (rejecting argument that an employee lost the protection of the Act because of his “aggressive” union organizing activity, including his reference to the employer’s president as a “son-of-a-bitch”), enfd. 490 F.2d 1024 (6th Cir. 1974), with DaimlerChrysler Corp., 344 NLRB No. 154, slip op. at 6–7 (2005) (finding that employee lost the protection of the Act when he used profanity “repeatedly in a loud ad hominem attack on a supervisor that other workers overheard”). Further, the record shows that foul language was sometimes heard in work areas, making its use by Neubauer not so outrageous as my colleagues make it out to be.
The second factor in the analysis—the subject matter of the discussion—strongly favors a finding that Neubauer’s conduct remained protected. Neubauer was engaged in core Section 7 activity: he was attempting to organize his fellow employees. This fact must be accorded substantial weight. As one court has observed, “In the context of a struggle to organize a union, the most repulsive speech enjoys immunity . . . so long as the allegedly offensive actions are directly related to activities protected by the Act and are not so egregious as to be considered indefensible.” NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1029–1030 (6th Cir. 1974).
The weight due that second factor is even greater when one considers the third factor in the Atlantic Steel analysis—the nature of the employee’s behavior. Here, the sum total of Neubauer’s alleged misconduct was two profane references to supervisors in one-on-one discussions with coworkers. There is no basis for finding that Neubauer intended to threaten the supervisors in any way, that his comments reasonably could be interpreted as threats, or that they could have had any material impact on discipline. Certainly, his comments pale in comparison to the type of sustained, vituperative attacks that the Board typically has found unprotected. See, e.g., DaimlerChrysler Corp., supra, 344 NLRB No. 154, slip op. at 6–7 (finding that employee lost the protection of the Act when he used profanity “repeatedly in a loud ad hominem attack on a supervisor”).
The fourth factor in the analysis—unlawful provocation—admittedly favors a finding that Neubauer lost the protection of the Act. Even here, however, the Respondent responded to Neubauer’s union activism with unlawful coercion.
Taking all of those factors into consideration, I cannot join my colleagues in finding that Neubauer’s passing use of profanity in the course of his protected union solicitation was so egregious in nature as to deprive him of the Act’s protection. In my view, the factors favoring loss of protection are far outweighed by the subject matter of Neubauer’s discussions with Rivas and Rivieccio and the harmless nature of his profane comments. Consequently, I would find that the Respondent’s discipline of Neubauer on October 8 violated Section 8(a)(3).
2. The March 25, 2004 revised written warning
In an effort to avoid the conclusion that Neubauer was
unlawfully disciplined for his protected activity, the Respondent issued a
revised version of its October 2003 written warning on March 25, 2004,
expunging all references to Neubauer’s union solicitation and his August 2003
discipline for that solicitation. The
Respondent, however, did not succeed by this means in transforming its unlawful
warnings into lawful ones. The March
warning was still based on the profane comments Neubauer made in discussing the
In any event, the editing down of the written warning was
insufficient to relieve the Respondent of liability for its unlawful August and
October warnings to Neubauer. Board
precedent permits an employer to repudiate previous unlawful conduct.
Here, the Respondent’s revised March 2004 written warning did not effectively repudiate its earlier unlawful warnings. The revised warning was, in the first place, untimely: it came nearly 6 months after the Respondent’s October 2003 written warning and over 7 months after the Respondent’s August 2003 oral warning. Moreover, the revised warning did not acknowledge that the Respondent, by its prior warnings, had unlawfully disciplined Neubauer for his union solicitation and did not contain assurances that the Respondent would not interfere with employee Section 7 activity in the future. Indeed, the revised warning continued to rely, unlawfully, on aspects of Neubauer’s conduct related to his union solicitation—aspects of his conduct that, as shown above, retained the protection of the Act. Thus, rather than effectively repudiating the Respondent’s earlier unlawful warnings, the Respondent’s revised written warning continued to discipline Neubauer based on his protected activity, thereby further violating Section 8(a)(3).
Finally, even assuming that some discipline was legally permissible based on Neubauer’s October conduct, I would still find that the Respondent acted unlawfully in issuing written warnings based on that conduct. As my colleagues agree, the Respondent’s August 2003 oral warning to Neubauer was unlawful and must be expunged. In the absence of that oral warning, the Respondent’s written warnings do not conform to the Respondent’s progressive discipline policy. I would find that this deviation from the Respondent’s established policy violated the Act.
Dated,
Dennis P. Walsh, Member
National
Labor Relations Board
APPENDIX
Notice To Employees
Mailed by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to mail and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not orally promulgate and maintain a rule prohibiting our employees from engaging in union solicitation in employee work areas and on breaktime.
We will not orally promulgate and maintain a rule prohibiting our employees from discussing their discipline.
We will not selectively and disparately enforce our no-solicitation policy against employees engaged in union solicitation.
We will not issue warnings or other discipline to employees for engaging in union solicitation based on a selective and disparate application of our no-solicitation policy.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above.
We will rescind and stop maintaining our unlawful rules prohibiting our employees from soliciting for a union in employee work areas or on break time, and notify all of our employees in writing that this has been done.
We will rescind and stop maintaining our unlawful rules prohibiting our employees from discussing their discipline, and notify all of our employees in writing that this has been done.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful August 28, 2003 oral warning issued to Greg Neubauer and, we will, within 3 days thereafter, notify him in writing that this has been done and that the unlawful warning will not be used against him in any way.
Cellco Partnership d/b/a Verizon
Wireless
Judith M. Anderson, Esq., for the General Counsel.
Kenneth
A. Margolis and Harlan J. Silverstein,
Esqs. (Kauff McClain & McGuire LLP), of
Atul
Talwar, Esq. (Semel, Young & Norum, Esqs.), of
DECISION*
Statement of the Case
Steven Davis, Administrative Law Judge. This case was tried in
The complaint
alleges essentially that the Respondent discharged Thai Nguyen, and disciplined
Greg Neubauer and Steven Ferrante because of their activities in behalf of the
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by all parties, I make the following
Findings of Fact
i. jurisdiction
The Respondent,
a partnership having its principal office and place of business located at
ii. the alleged unfair labor practices
A. Background
This matter
involves the Respondent’s Orangeburg, New York customer service center, at
which 400 to 600 customer service representatives, supervised by 30 to 40
supervisors and managers, provided services for the Respondent’s wireless
customers. The customer service representatives were located on the second
floor of the facility where they worked in cubicles in fairly close proximity
to their immediate supervisors. Their entry on and off duty was recorded when
they logged onto and off their computer-telephones, called the aspect phone system.
B. Steven Ferrante
1. Facts
a. The alleged violation concerning
Ferrante’s
union solicitation and threat concerning
such solicitation
Ferrante began
work for the Respondent as a customer service representative in August 1998,
and in December 2001, received a promotion to technical support coordinator.
Ferrante stated
that the
Associate Director
John Bigley testified that in early October 2003, he was told by employee Lilly
Budesingh that Ferrante interrupted her while she was talking to a customer, asking
her to sign a union card. He was also told by employee Tom Regan that Ferrante
interrupted him and later asked him to sign a card, and that Regan noticed
Ferrante loudly asking employees on the work floor for their opinion of the
Ferrante
testified that Bigley called him into his office, where they spoke alone.
Ferrante quoted Bigley as follows: “It’s come to my attention that people have
seen you soliciting for the
Bigley’s version
of the conversation is that he told Ferrante what the two employees told him
about Ferrante’s solicitation. Ferrante denied doing anything wrong, and said
that he was “just joking.” Bigley reminded him of the Respondent’s solicitation
policy, told him that he is entitled to his opinion about the
Bigley’s
communication time dated October 9, 2003, stated as follows:[3]
Spoke with Steve regarding recently reported concerns from others in the tech support and Roaming teams, that he was soliciting union cards in rep cubicles and asking reps if they were going to sign union cards.
Steve advised that he was not passing out union cards in the team. He did say that he was “joking” about the union to the team but that’s it. I advised him of the No-solicitation policy and that he cannot be soliciting to other reps in the workplace. I advised that he has a right to his opinion of the union, but he cannot solicit others in the team in the workplace.
Later that
month, Ferrante was in the office of supervisor of technical support, Anthony
Edwards, where they spoke for about 10 minutes about a call between Ferrante
and a customer.[4] Ferrante
offered an excuse as to why he did not handle the call correctly, and left the
supervisor’s cubicle to confirm that excuse with a coworker. He then told
Edwards that there had been a problem that day justifying his alleged error. Edwards
then said, according to Ferrante: “Look, Ferrante, off the record, I don’t give
a fuck if the
Edwards
testified that he was not aware that Ferrante was an active supporter of the Union,
had no conversations with him about the
b. The alleged threatening conduct toward
a supervisor