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,
Verizon and its subsidiary Telesector Resources
Group and Local 1108, Communications
Workers. Cases 2–CA–32858, 2–CA–32982, and
2–CA–33512
August 9, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On September 30, 2003, Administrative Law Judge Stephen Fish issued the attached decision. The Respondent filed exceptions and a brief in support. The Charging Party filed cross-exceptions and a supporting brief. The General Counsel and Charging Party filed separate briefs answering Respondent’s exceptions. Respondent filed a reply brief and an answering brief to the Charging Party’s cross-exceptions.
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 exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision.
This case involves a team of workers who removed hazardous
materials from obsolete equipment in the
i. factual
background
Prior to the 1984 breakup of AT&T, corporate subsidiary Western Electric handled both the disposition of hazardous materials and the subsequent removal (“rip out”) of the obsolete equipment. After the breakup, NYNEX used Western Electric retirees, mostly former managers, to remove hazardous materials such as batteries, mercury relays, radioactive tubes, and PCB oils. Independent vendors generally performed obsolete equipment ripouts after those materials were safely removed.
The Hazmat team (Hazmats) was formed in 1989 after NYNEX
began the substantial additional work of removing asbestos-containing
components—line card resistors, ebony boards, and washers—prior to the
equipment ripouts. Bill Warren, a NYNEX
manager in the environmental department of TRG, was overall supervisor of the
new Hazmat operation. After being hired, Hazmats learned
they would not be treated as regular NYNEX employees or receive the same
benefits. Instead, independent payroll
agency
In January 1998, when NYNEX merged into Bell Atlantic, the
Hazmat operation was transferred to Bell Atlantic’s Engineering Department
under Manager Cecil McIntosh. He also
managed the work of engineers whose initial determination to retire central
office equipment triggered requests for Hazmat work. McIntosh became
Respondent has a longstanding bargaining relationship with
the CWA. These parties have contracts
collectively covering over 30,000
Apart from this, McIntosh testified that within 3 months of taking charge in 1998 he concluded there would not be enough future work to sustain full-time employment for the Hazmat group. He decided a better arrangement would be to use an outside hazardous materials contractor who would not be solely dependent on Bell Atlantic for work. McIntosh contacted Alvaro Mora, an official in Respondent’s sourcing department, to pursue this approach, but the matter did not receive “serious consideration” until September 1999. By that time, the statewide Hazmat team had shrunk from 15 to 12 members. McIntosh admittedly did not discuss any anticipated reduction in available work or change in the existing Hazmat arrangement with team members.
The decision to outsource Hazmat work was made in the fall of 1999. The record contains a series of management e-mails about changing the extant operation. Some e-mails relate solely to the methodology for removal of materials or the contractors to be considered. However,
—an October 18, 1999 e-mail from Mora contains minutes of
a meeting attended by McIntosh, Powell, and Bill D’Eletto, an environmental
compliance manager. It includes the
statement: “Discussed current operations of the Haz Mat Removal group in
—an October 27, 1999 e-mail from McIntosh to his superior, Joe Mauro, is headed “Subject: Re: Co-Employment Issue.” The e-mail states “The old TRG process which is still in place is that we supervise, monitor their [the Hazmats’] performance and give them yearly raises accordingly (there is no hourly rates set by a contract via an agency for these contractors).” It refers to the concerns expressed by Hazmats, describes the Hazmats as “disgruntled, they think that they should be receiving benefits like any other Bell Atlantic workers because they were contracted by TRG, and not through an Agency,” and concludes
Based on the above concerns, Sourcing, Compliance and I reflected on the issues and determined that, based on the present structure of these contractors, it would not be in the best interest of Bell Atlantic to continue under the present system of supervision.
. . . .
Summary
The only function that would change is the workers will be under the supervision of an approved vendor for Hazardous Waste Removal. All other functions and responsibilities will remain the same.
—a November 11, 1999 e-mail from Mora describes a central office walkthrough attended by Mora, Powell, and three other management officials, followed by a meeting with McIntosh and another official. Mora states
. . . Based on what was observed during the walk through and on conversations at the meeting it seemed that consensus was on having the haz mat material purged on site by an independent contractor and allowing the existing system for removal and salvage of frames to remain in place.
Results
Since the driver for this project is the temporary labor force currently performing the work and the potential for exposure to co-employment lawsuits the RFI, RFP and SOW documents will be changed to focus on replacing the current payroll agency provided team with an independent contractor.
When asked about references in the foregoing e-mails to concerns about co-employment issues and potential liability for the long-term employment of a temporary work force, McIntosh said he was aware of the Microsoft case in which that company incurred substantial liability for the failure to provide 401(k) and stock option benefits to a large number of long-term freelance and temporary employees.6 McIntosh said he “indirectly” related the Microsoft case to the Hazmat team. Powell also testified that the Microsoft case initiated concerns about “co-employee issues.” On the other hand, none of the management documents in the record mention the forecast decrease in available Hazmat work that McIntosh testified was the motivating factor for his initiation of the change in Hazmat operations; nor does any document mention Hazmats’ interest in becoming union members.
In December 1999, Respondent held a walkthrough with hazardous materials contractors who responded to a request for proposal. Selection of a contractor and further implementation of the outsourcing decision was delayed by unexpected issues about the proper removal of certain asbestos materials and the ultimate disposal of equipment after a contractor removed it.
The Hazmat team’s existence was known to unit employees
working at various central office project sites and to CWA stewards who occasionally
attended method of proceeding (M.O.P.) meetings held before the beginning of a
project. However, there are no
exceptions to the judge’s finding that the CWA was not aware until early 2000 that
Hazmat members might be Respondent’s employees.
A few weeks prior to that, Frank Mancini, business agent for Charging
Party CWA Local 1108, talked with Hazmats working at a
The charge was filed on March 13, 2000. Shortly thereafter, Respondent’s executive director of labor relations, Jeff Weiner, called Local 1108 President George Welker and asked for “a heads up” the next time the CWA filed a charge. Weiner asked “what are you looking for?” and Welker responded “bring them into the contract.”
At various times from May 8 through 18, 2000, Respondent
laid off the nine Hazmats working in the downstate area covered by the CWA’s
contract claim. It did not recall them
until June 17. (There is no evidence
that three Hazmats working upstate were laid off.) The Hazmats received no
advance notice of layoffs. Both Powell and
McIntosh attributed the layoffs to a lack of work, but there are substantial
differences in their testimony about details of the layoff decision. Powell testified that she began to notice a
decrease in available work in 1999 and that by 2000 she was struggling to keep
work for Hazmats because “there wasn’t an abundance of work out there.” She said she recommended the layoffs to
McIntosh because: (1) there were union
problems at an 811 Tenth Avenue jobsite where she said three Hazmats, including
Michael George, were working; (2) work could not continue at another project in
Hempstead, Long Island (where she also said George was working) because of
problems in powering down the equipment from which materials were to be
removed; and (3) no further work was available after a team working on small
projects and another working on a night project at
McIntosh said he made the layoff decision himself after
discussing work availability with engineers, then informed Powell and Ray McCourt,
Win-Pay vice president and administrator for the Hazmat account. His testimony and a chronology of events
prepared after Powell’s testimony and introduced during his testimony confirm
that Powell was mistaken about the impact of the
George credibly testified that he was working at the
Both McIntosh and Powell testified that the Hazmats were
recalled after a call from Respondent’s counsel, Lisa Birkdale. They denied knowing about the filing of
unfair labor practice charges until late summer, well after the recall. Once the job at
In October, Respondent concluded its investigation of procedures for removal and disposal of the asbestos-containing materials. It selected four hazardous materials vendors to perform the removal work. Respondent did not request the vendors to employ any of the current Hazmats. Powell testified that she recommended retaining some of them because of their skills and experience. Although McIntosh’s October 27, 1999 e-mail to Mauro indicated that “[t]he only function that would change is the workers will be under the supervision of an approved vendor for Hazardous Waste Removal,” McIntosh testified that Respondent’s officials decided it would be inappropriate to require or request a vendor to retain the Hazmats and, further, that no vendor would agree to do so because of the Hazmats’ high salaries. In December, McIntosh notified Win-Pay’s McCourt that Respondent no longer needed the Hazmat team’s services.
Respondent introduced summaries of work performed by Hazmats for 1998 through 2000 and by the independent vendors for 2001 and 2002. (RX 25 and 26) In sheer numbers of items removed, there was a very substantial decline after May 2000, particularly for line card resistors, which until then accounted for the most items removed monthly.
ii. the judge’s
decision
The judge found that the General Counsel made “a strong and compelling prima facie showing that protected conduct, including the filing of charges” was a motivating factor in the layoff and termination of Hazmats. He found that the e-mails of Respondent’s officials were “compelling evidence” that the decision to outsource work, made in the fall of 1999, was motivated by Respondent’s concern about Hazmats’ complaints. McIntosh’s own memo to Mauro is entitled “Co-Employment Issue.” Evidence of this concern as a motivating factor was strengthened by the admission of McIntosh and Powell that they were aware of the Microsoft issue at the time. Even apart from the fact of employees’ requests to become union members, their efforts to gain recognition as Respondent’s employees and to obtain company benefits was protected concerted activity.
According to the judge, the CWA’s filing of an 8(a)(5) charge notified the Respondent that the Hazmats had finally done more than complain to the Respondent’s officials. In response, the Respondent decided to accelerate its decision, first by layoffs, then by abandoning the notion of having the selected hazardous materials vendor use current Hazmats to perform work. The judge discredited testimony by Powell and McIntosh that they were not aware of any charge until after the layoffs were announced. He found it “simply not believable that Respondent would not immediately notify the department head that a charge had been filed” alleging union contract coverage for the Hazmats under his supervision. McIntosh’s testimony that he was not aware of any unfair labor practice charges until September, well after both the initial 8(a)(5) charge and the subsequent 8(a)(3) and (4) layoff charges, was “even more incredible.”
Shifting the burden of persuasion to Respondent in accord with Wright Line,7 the judge further found that the Respondent failed to show it would have taken same actions in the absence of protected conduct. With respect to the layoff, the judge concluded that the testimony of McIntosh and Powell about the lack of available work was “unconvincing and not supported by the record.” Similarly, with respect to the termination decision, the judge discredited McIntosh’s testimony that the decision was based solely on his 1998 opinion about an impending lack of work. He found that McIntosh’s avowed lack of concern about employee co-employment complaints was contradicted by e-mails, including McIntosh’s own, as well as by Powell’s testimony that the co-employment issue was “a reason.” The judge noted that Respondent’s records reflect a substantial decrease in work by end of 2000, which he attributed primarily to a change in removal procedures, but even McIntosh did not testify that this decrease was a factor in the decision already made in 1999. The judge reasoned that it was “likely that Respondent did not have sufficient work in 2001 to keep the entire team busy,” but this evidence did not meet the Respondent’s burden of proving it would have eliminated the entire team. In the judge’s view, it was “more likely” that it would have laid off some Hazmats and permitted the remainder to perform available work. He found the unexplained failure to proceed in this manner could be explained by the Hazmats’ concerted activities. Finally, the judge found that the Respondent changed from an intent merely to change contractors using current Hazmats, as described in McIntosh’s October 27, 1999 e-mail to Mauro, to a final plan in which it neither insisted nor requested that the selected hazardous materials vendors use all or some of the Hazmats. He concluded that the failure to take either of these steps, “which it seemingly intended to take in 1999, but chose not to in 2000, after the NLRB charges were filed” was not coincidental.
iii.
discussion
Our analysis of the Respondent’s motivation for the allegedly unlawful layoff and subsequent termination of the Hazmats is governed by the Board’s Wright Line test. Under that test, the General Counsel must first prove, by a preponderance of the evidence, that animus against the employees’ protected conduct was a motivating factor in the employer’s adverse actions.8 Proof of discriminatory motivation can be based on direct evidence or can be inferred from circumstantial evidence based on the record as a whole.9 If the General Counsel makes this showing, the burden of persuasion “shift[s] to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra at 1089.
A. Termination of the Hazmat Team10
We affirm the judge’s discrediting of McIntosh’s testimony that concern about diminishing work motivated Respondent’s decision to terminate the Hazmats and to outsource their work. However, this does not itself establish the prima facie case. Contrary to the judge and our dissenting colleague, we find that the General Counsel failed to make a prima facie showing that animus against protected conduct was a motivating factor in the Respondent’s decision.
This case involves three types of protected conduct: (1) the Hazmats’ concerted complaints that they should be regarded as regular permanent employees of Respondent and receive the benefits of such employees; (2) the Hazmats’ union activity; and (3) the filing of unfair labor practice charges by the CWA on behalf of the Hazmats. As to the first type, credited testimony and Respondent’s e-mails show that the Hazmats’ complaints brought their employment situation to the attention of Bell Atlantic’s officials, newly-appointed manager McIntosh in particular, in early 1998. There is no evidence that McIntosh and the Respondent’s other officials bore any animus against the Hazmats for voicing these complaints or that they decided to terminate the Hazmat team and switch to an independent contractor system for the removal of hazardous materials as a retaliatory measure.11 Instead, the record clearly shows that the Respondent never intended to be an employer of these individuals in the first place. The Hazmats’ complaints made Respondent aware that it could be deemed their employer based on the length of Hazmat workers’ service and the existing system of supervision. Likewise aware of the substantial liability incurred by Microsoft for similarly-situated workers, Respondent decided to terminate the unintended employment relationship.12
The dissent characterizes the Respondent’s action as
motivated by animus against the Hazmats’ concerted effort to be regarded as
regular employees of the Respondent. We
disagree. We have unanimously affirmed
the judge’s findings that the Hazmats had no statutory right to be treated as
bargaining unit employees or to be covered by the Respondent’s contracts with
the
Contrary to the judge and the dissent, the discrediting of McIntosh about loss of work as a justification for the Hazmat decision does not provide, by inference, proof of unlawful motivation. This is not a case where the rejection of an asserted reason as pretextual means there is no proof of any alternative legitimate reason for the employer’s action. The judge has specifically relied on the Respondent’s e-mails and related testimony to make the factual finding that concern about co-employment liability for the Hazmats was the real motivating factor. We agree. 15 As stated above, such a concern does not on its face manifest animus against protected activity. In short, the employee complaints triggered the Respondent’s concern that it could be viewed as the employer, and that concern led to a contracting out so as to eliminate the possibility that it could be viewed as the employer. In this sense, it may well be that the employee complaints ultimately caused the subcontracting. However, it does not follow that the subcontracting was motivated by animus toward those complaints.
It is clear that an employer can lawfully choose to no longer be the employer of employees, i.e., to subcontract another employer. There may be economic, practical and legal reasons for doing so. The decision is unlawful only if it is shown that it was motivated by animus toward protected activity. 16
As for the other two types of protected conduct, it is undisputed that the Respondent made its decision in the fall of 1999, preceding any involvement by the CWA or the filing of unfair labor practice charges with the Board. Consequently, these events could not have been motivating factors in the Respondent’s original decision. It is true that the Respondent’s implementation of the decision to terminate the Hazmat team and to subcontract their work did not take place until the end of 2000 and that Respondent was aware of the CWA’s involvement and the filing of unfair labor practice charges in the interim. However, implementation was delayed by unanticipated problems relating to the ultimate disposal of removed materials, circumstances having nothing to do with the intervening protected activities. Once those problems were resolved, the Respondent gave effect to its 1999 decision.
We reject the judge’s view that the Respondent altered its original plan and failed to secure employment for the Hazmats with outside contractors because of their union activities and filing of charges with the Board. Our dissenting colleague suggests that the Respondent originally intended to secure employment for the Hazmats with the contractor. However, there is no allegation that the Respondent violated the Act by allegedly failing to secure jobs for Hazmats with the contractors. In any event, we find the comment in McIntosh’s October 27, 1999 e-mail to Mauro is too ambiguous to establish that the Respondent’s officials actually decided in 1999 to require or ask subcontractors to employ Hazmats.17 At most, the evidence shows only that they considered this course of action, not that they decided on it and then changed their plan in retaliation for the Hazmats’ subsequent protected conduct. Moreover, Respondent’s failure to secure jobs for the Hazmats with another employer is not evidence of discrimination vis a vis their terms and conditions of employment with the Respondent. Whether or not the Respondent tried to get work for these individuals with another employer, their jobs with the Respondent were set to end for nondiscriminatory reasons.18
B. The Layoffs
We agree with the judge that the General Counsel met his initial Wright Line burden of proving unlawful motivation for the layoffs, although we do not adopt the judge’s characterization of the General Counsel’s evidence as “a strong and compelling prima facie showing.” Although there is no direct evidence of Respondent’s animus against the CWA’s activity in early 2000 and/or the filing of the original unfair labor practice charge in March of that year, circumstantial evidence based on the record as a whole is sufficient to warrant an inference that these events motivated McIntosh to initiate the May layoffs. 19 In this regard, we rely on the following factors: (1) the timing of the layoffs relative to notice of the filing of the charge and the CWA’s claim of contract coverage,20 (2) the absence of evidence that any Hazmats other than the nine downstate workers subject to this contract claim were laid off, (3) the precipitate nature of the layoffs without notice to either the Hazmats or Win-Pay, (4) the absence of any credible testimony or documentary evidence supporting Respondent’s claim of an immediate lack of work,21 (5) George’s credible testimony that there was work available at his team’s jobsite in Hempstead, and (6) the postrecall employment of the full Hazmat team for the remainder of 2000 (with the exception of the August strike period).
In sum, we find the General Counsel has met his initial burden of proving that the initiation of formal union activity and the filing of an unfair labor practice charge provoked McIntosh to accelerate the plan to terminate the Hazmats by laying them off even before Respondent chose outside hazardous materials vendors to replace them. Absent any credible evidence in support of Respondent’s lack of work defense, we further find Respondent has failed to prove the layoff would have taken place in the absence of protected conduct. For the foregoing reasons, we affirm the judge’s conclusion that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by laying the Hazmats off in May 2000,22 and we adopt the recommended remedy for this violation. 23
ORDER
The National Labor Relations Board orders that the
Respondent, Verizon and its subsidiary Telesector Resources Group,
1. Cease and desist from
(a) Laying off or otherwise discriminating against its employees because they engaged in protected union activities or because unfair labor practice charges have been filed on their behalf concerning their employment status or coverage under a collective-bargaining agreement.
(b) 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) Within 14 days from the date of this Order, make whole James Anthony, Garfield Assevero, Richard Casiano, Michael George, Tito Knight, Abimbola Lana, James Pando, Wayne Sebro, and Alvin Smith, for their discriminatory layoffs, with interest, in the manner set forth in the remedy section of the judge’s decision.
(b) Within 14 days from the date of this Order, remove from its files any reference to the layoffs of the above named employees, and within 3 days thereafter, notify them in writing that this has been done and that evidence of the layoffs will not be used as a basis for future personnel actions against them.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amounts of backpay due under the terms of this Order.
(d) Within 14 days
after service by the Region, post 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.
Dated,
Robert J. Battista , Chairman
Peter C. Schaumber, Member
(seal) National Labor Relations Board
Member Liebman, concurring in part and dissenting in part.
This case involves the layoff and termination of hazardous-materials-handling employees (the Hazmats) who were treated as non-employees and who complained about it. My colleagues properly find that, for purposes of the National Labor Relations Act, the Hazmats were employees of the Respondent, Verizon. They also find that, in seeking to be recognized as union-represented employees, the Hazmats engaged in activity protected by the Act. Finally, Chairman Battista and I agree that Verizon’s layoff of the Hazmats was unlawful, insofar as it was prompted by the Hazmats’ union activity and the filing of an unfair labor practice charge on their behalf.1
But my colleagues decline to find that the later termination of the Hazmats violated the Act. That step, in their view, was motivated not by animus against any of the Hazmats’ protected activities, but rather by Verizon’s lawful desire to end an “unintended employment relationship”—which carried with it legal risks, based on the Act and other Federal statutes protecting workers and on Verizon’s collective-bargaining agreement with the Communications Workers of America (CWA). On the record here, however, there is no way to separate Verizon’s motive with respect to the Hazmats’ layoff from its motive with respect to the Hazmats’ termination. Both actions are inextricably bound up with the Hazmats’ protected activities, including their complaints about being categorized as nonemployees, as well as the CWA’s involvement. Verizon, in turn, has failed to show that it would have terminated the Hazmats, even if they had never complained about their status and taken steps to challenge their treatment. Indeed, in defending the terminations, Verizon has relied only on a purported lack of work for the Hazmats—a rationale that we agree was properly rejected as pretextual by the judge—and not on the supposedly benign motive cited by my colleagues.
i.
The key facts can be briefly summarized: From the time the Hazmat unit was established in 1989, the Hazmats requested that they be treated by Verizon as regular employees. They renewed this request in 1998, when Cecil McIntosh became the new Hazmat manager. Although Verizon had simply declined to respond in the past, by the time of McIntosh’s arrival, Verizon had new grounds for concern that it might be liable to the Hazmats for the pay and benefits of regular employees, if they pursued the matter: successful litigation by workers who had sued Microsoft based on an analogous relationship.2 Accordingly, McIntosh, originated and pursued the option of contracting out the Hazmat operation.
Verizon’s internal e-mails from late 1999 confirm that the outsourcing initiative was “based on the . . . concern” that “[o]f late, the contractors [Hazmats] are disgruntled, they think that they should be receiving benefits like any other [Verizon] workers....” The e-mails further provided that under the outsourcing action envisioned by management:
The only function that would change is the workers will be under the supervision of an approved vendor. . . . All other functions and responsibilities will remain the same. [emphasis added]
Thus, the plan was not to sever any connection between Verizon and the Hazmat team, but to place the workers, as a unit, under another entity’s supervision, so that Verizon would not have to accede to their requests to be treated as union-represented employees.
In early 2000, however, the CWA encountered the nine
Hazmats working in downstate
These events caused Verizon to speed up implementation of
its decision to outsource the Hazmat team, and in May 2000 Verizon unlawfully
laid off the workers covered by the
The Hazmats were recalled a few weeks later. In December 2000, however, Verizon not only contracted out the Hazmat operation to four private vendors, but also terminated the Hazmats—a departure from Verizon’s earlier plan simply to have the Hazmats supervised by another entity while continuing to provide services to Verizon. Verizon did not request that any of the new vendors hire any of the Hazmats.
The judge specifically discredited Manager McIntosh’s claim that this failure was due solely to Verizon’s belief that the vendors would not hire the Hazmats and that it could not “force” the vendors to hire anyone. The judge also discredited McIntosh’s assertion that the outsourcing decision was based solely on his opinion that there would be too little work to keep the Hazmat team busy.
ii.
On these facts, it seems clear that the General Counsel carried his initial burden under Wright Line4 to establish that Verizon was motivated, at least in part, by unlawful animus toward the Hazmats’ protected activities in deciding to terminate them. My colleagues’ contrary conclusion is mistaken.
A.
Verizon’s original plan—to outsource the Hazmats to
another entity—was developed in direct response to their request to be treated
as union-represented Verizon employees.
When the CWA contacted Verizon about representing the Hazmats, and filed
unfair labor practice charges, Verizon accelerated its efforts to insulate
itself from the Hazmats’ protected activities, by laying them off, on the
pretext of a lack of work. Ultimately,
as the Hazmats and the
B.
Despite this evidence, my colleagues conclude that the termination of the Hazmats was not motivated, even in part, by any of the Hazmats’ protected activities. Their analysis starts from the premise that the decision to terminate the Hazmats was effectively made in the fall of 1999, “preceding any involvement by the CWA or the filing of unfair labor practice charges with the Board.” Given this time-line, the only protected activity that could have been a motivating factor in the termination was the “Hazmats’ concerted complaints that they should be regular permanent employees of [Verizon] and receive the benefits of such employees.” According to my colleagues, there is no evidence that Verizon’s decision to terminate the Hazmat team was a reprisal for these complaints. Rather, the “record clearly shows that the Respondent never intended to be an employer of these individuals in the first place.”
This analysis is untenable. Its flaws are readily apparent. First, even assuming that the only relevant protected conduct is the Hazmats’ complaints, the termination decision clearly was triggered by those complaints, and those complaints were protected. Verizon’s decision, in turn, cannot be rationalized (as the majority attempts to do) by characterizing it as simply a decision to “terminate the unintended employment relationship” with the Hazmats. That view ignores the fact, found unanimously, that the Hazmats already were Verizon’s employees, and so had the statutory right to seek to improve the terms and conditions of their employment. (Contrary to the majority’s implication, the protected nature of the Hazmats’ activity does not depend on whether they had a right to be included in the CWA’s extant bargaining unit.6) Whether or not Verizon lawfully could have chosen to structure its relationship with the Hazmats so as to avoid making them employees in the first place is not the issue here.7 The question, rather, is whether Verizon was free to terminate statutory employees, who had complained about being miscategorized as nonemployees, in order to avoid having to recognize their statutory rights and in retaliation for their statutorily protected activity.
The answer must be no. The Act does not permit employers to commit an unfair labor practice once in order to avoid an on-going obligation to comply with the law. Carried to its logical extension, the majority’s rationale would effectively allow an employer to retroactively nullify existing employment relationships, and to retaliate against protected activity, wherever it could claim that it had not originally intended such a relationship. This rationale creates a license to disregard the protections of the Act, after they have been triggered.8
The majority observes that the Hazmats “could not insulate themselves from a nondiscriminatory change in status undertaken for valid economic reasons.” But the Hazmats’ “change in status” was discriminatory: the evidence demonstrates that Verizon would not have altered its relationship with the Hazmats, but for the fact that they engaged in protected concerted activity. As one appellate court has pointed out:
[A]nti-union animus is no less anti-union animus because it springs from serious economic considerations. Indeed, . . . .in the majority of cases where employers commit unfair labor practices ... the employers break the law primarily out of concern for their economic welfare.
NLRB v. C.J.R. Transfer, Inc., 936 F.2d 279, 283 (6th Cir. 1991).9
Second, my colleagues are mistaken in focusing only on the
Hazmats’ complaints, to the exclusion of their later protected activities. The actual termination of the Hazmats in
December 2000 came after the later
activities, as well. It is no answer to
say, as the majority does, that the decision was made in the fall of 1999 and
then implemented after a delay (a period that included the unlawful layoff of
the Hazmats). As its own documents confirm,
Verizon’s plan in 1999 was only to place the Hazmats “under the supervision of
an approved vendor,” not to end any kind of working relationship with
them. The actual termination decision,
moreover, is persuasively explained only by an intent to insulate Verizon
completely from any further protected activity by the Hazmats and from the
iii.
The judge was correct, then, in finding that the burden accordingly shifted to Verizon to show that it would have terminated the Hazmats’ even absent their protected activity.
As already noted, the judge categorically discredited Manager McIntosh’s testimony that the terminations resulted solely from lack of work.10 Moreover, as the judge observed, even if the justification of work reduction were given credence, the Respondent had dealt with previous work reductions with partial layoffs. No reason was given for not doing the same in December 2000. Although Hazmat work was apparently reduced, there was no indication that it would entirely disappear.
For these reasons, and for the other reasons cited by the judge, I would find that Verizon failed to establish its Wright Line defense.
iv.
In short, because Verizon’s termination of the Hazmats was driven by, and determined by, the same unlawful considerations reflected in the unlawful layoff of the Hazmats, I dissent.
Dated,
Wilma
B. Liebman, Member
National Labor Relations Board
APPENDIX
Notice To Employees
Posted 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 post 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 lay off our employees because they joined or supported Local 1108 Communications Workers of America, AFL–CIO (the Union), or because charges have been filed by the Union with the National Labor Relations Board on behalf of said employees concerning their employment status or coverage under the Union’s contracts with Respondent.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act.
We will make whole James Anthony, Garfield Assevero, Richard Casiano, Michael George, Tito Knight, Abimbola Lana, James Pando, Wayne Sebro, and Alvin Smith for the discrimination against them, plus interest.
We will remove from our files any references to the layoffs of the above named employees, and within 3 days thereafter, notify them in writing that this has been done and that evidence of these actions will not be used as a basis for future personnel actions against them.
Verizon and its subsidiary Telesector Resources Group
Geoffrey Dunham, Esq., for the General Counsel.
Arthur
G. Telegen, Esq. and Robert A. Fisher,
Esq. (Foley Hoag, LLP), of
DECISION
Statement of the Case
Steven Fish, Administrative Law Judge. Pursuant to charges and amended charges filed
Cases 2–CA–32858, 2–CA–32982, and 2–CA–33512, by Local 1108, Communications
Workers of America, AFL–CIO (the Union or Local 1108) on various dates between
March 13, 2000,[1]
and January 4, 2001, the Regional Director issued an Order Consolidating Cases
Complaint and Notice of Hearing on January 30, 2002, which complaint was subsequently
amended on April 19, 2002, and again on the record.
The
vomplaint as amended, alleges that Verizon, Inc. (herein) and its subsidiary
Telesector Resources Group (Respondent) violated Section 8(a)(1), (3), (4), and
(5) of the Act.
The
trial was held before me in
The
complaint alleges that Respondent violated Section 8(a)(1) and (5) of the Act
by failing to apply its contract with the
The
trial also involved a number of issues and defenses raised by Respondent,
including whether the Hazmat employees are employees of Respondent, whether the
charges are barred by Section 10(b) of the Act, and whether the charges should
be deferred to the parties’ contractual grievance procedure.
Based
upon the entire record, including my observation of the demeanor of the witnesses,
and the briefs filed by parties, I issue the following
Findings of Fact
i. jurisdiction and labor organization
Respondent
is a corporation with an office and place of business at 1095 Avenue of the
Annually,
Respondent derives gross revenues in excess of $100,000 and purchases and
receives at its facility, goods and materials valued in excess of $50,000
directly room points located outside the State of
Respondent
admits and I so find that it is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
I
also find that the
ii. facts
A. Background
American
Telegraph and Telegraph (AT&T) prior to 1984, was the parent company of
various local and long-distance companies, and operated through a number of
subsidiaries. In 1984, AT & T was
broken up, pursuant to court decree, and these various corporate subsidiaries
were spun off as separate independent entities.
Verizon is the successor to a number of different entities, such as Bell
Atlantic and New York Telephone and Telegraph.
TRG is a related company, and provides logistical supply and warehouse
services.
Various
employees of Respondent have been represented by various locals of the CWA for
many years. Respondent has executed a
number of collective-bargaining agreements, some directly with locals of the
CWA, and some including the two contracts in issue here, between Respondent and
the CWA District One.
The
“plant contract” is between Verizon and TRG and CWA District One, and covers
employees who were included in the unit as of August 31, 1991, and whose
occupational classifications are listed in article 31, and which classifications
were part of New York Telephone Company’s plant, network operations, customer
services, technical services, engineering, and facilities organizations. Article 31 of the Agreements lists a number
of classifications, including “Central Office Technician,” (COT). The salary for this position, effective
August 4, 2002, the last year of the current collective-bargaining agreement
between the parties, ranges from starting salaries from $312 per week to $323
depending on work zone location, to a maximum salary, after 60 months of from
$1,192.50 to $1218 again depending on location.
The
“materials” or TRG contract is between CWA District One and TRG only, and
covers all TRG employees in
Under
all of the various contracts between CWA and Respondent covering
All
of the contracts contain broad arbitration language, providing for arbitration
of any grievance relating to among other items, “the true intent and meaning of
this Agreement.”
Further
both the plant and materials contracts, contain clauses relating to contracting
out of work. Under the materials
contract, Respondent agrees that it will not “contract out work if such
contracting out will cause, currently and directly, layoff from employment with
the Company, part-timing or downgrades of present employees.” The plant contract, prohibits contracting out
if it, “will cause, currently and directly, layoffs from employment with the
Company or part-timing of present employees.”
Bargaining
is conducted at national regional and local levels for these contracts. While not contract holders, the CWA locals
are responsible for policing the various contracts. Although the locals can file grievances, the
decision on whether to take cases to arbitration, is made by the National
CWA. Local 1108 represents employees
under both the plant and materials contracts in their geographical location.
Some
of Respondent’s employees are represented by IBEW Local 2213, which represents
commercial employees located in Upstate New York. Respondent also employs a number of employees
who are not represented by any union, including fuelers, engineers, account
managers, financial employees, and account executives. Respondent refers to nonrepresented employees
as “managers,” whether or not they possess any supervisory duties.
CWA
and Respondent are parties to an agreement relating to neutrality and
card-check recognition. It provides that
if the CWA presents authorization cards signed by majority of employees in an
appropriate unit, Respondent will recognize the
B. Removal of Telephone Equipment Prior to the
Breakup of AT&T
Prior
to 1984, AT&T and its various subsidiaries, including New York Telephone
(NYT), and Western Electric Company (Western Electric) performed all aspects of
telephone service, including the removal of retired equipment. The employees of these entities were
represented by the CWA.
The
retired equipment was removed from frames, which is a structure located in
central offices, to which is attached telephone equipment. After the equipment was removed or purged
from the frames, it was sent to another subsidiary, Nassau Smelting and
Refining Co. (Nassau Smelting), where it was recycled into scrap. The retired equipment sent to Nassau
Smelting, often included various hazardous materials still attached or in
boxes, such as batteries, mercury relays, radioactive tubes, and PCB Oils. Employees of Nassau Smelting would break up
or discard these materials without regard for environmental or safety concerns.
Employees
of Nassau Smelting were represented by Mine & Mill Workers Union, not the
CWA. Bill Warren who later became
responsible for the Hazmat team worked for Nassau Smelting, and was not a
member of a CWA represented unit.
Beginning
in the early 1980s, there was a recognition that certain materials on frames,
such as radioactive tubes, mercury relays, lubricating oils, and PCBs were
hazardous and needed to handled and disposed of such. The disposal of these materials was regulated
by various Government agencies. The work
was performed by employees of Western Electric.
Once the frames were purged of the hazardous materials, employees of Western
Electric, would dismantle the rest of the frame, which is referred to as “rip
outs”.[2]
C. The Divestiture of AT&T
In
1984, AT&T was broken up by court decree, and its former subsidiaries
became separate entities. Thus, New York
Tel and New England Tel combined to form NYNEX.
NYNEX established a subridiary company NYNEX Material Enterprises Co., which later became TRG. TRG was responsible for warehousing,
logistics, supplies, and upgrading equipment and employed chauffeurs,
storekeepers, warehousemen, and truckdrivers.
Western
Electric was also spun off as a separate company after the breakup. At that time, rip out work was performed by
vendors through a bidding process. Western
Electric was among the contractors that would frequently be selected to perform
this work. CWA did not object to this
result, since Local 1190 of the CWA represented Western Electric employees. In fact, CWA pushed for the rip out work to
be performed by Western Electric, rather than other vendors.
On
occasion, Respondent would assign its own employees to perform rip outs, rather
than assign it to contractors. There was
an understanding reached between New York Tel and CWA to use surplus COT’s to
perform such work, primarily between 1993 and 1996.
The
removal of hazardous material from frames after divesture, was initially performed
by a group of six retired Western Electric employees, including Burt Quildon.[3] There retirees were employed by
After
the hazardous materials are removed, the frames were generally ripped out by
the vendor who had won the bid. The two
functions are not done at the same time—the purging of hazardous materials is
done first —and are not done by the same vendors.
D. The Formation of the Hazmat Team
In
the late 1980s, Respondent determined that three asbestos containing
components, line card resistors, ebony boards and washers, needed to be purged
from the frames, prior to any rip out.
Since there were hundreds of line card resistors on frames, Respondent
decided to no longer use the retirees, but to form a Hazmat team. The team was formed by Quildon, who as noted,
was one of the retirees, and an employee of
The
members of the Hazmat team were hired primarily through word of mouth, and were
interviewed by Warren or other officials of Respondent.
One
employee, Abimbola Lana learned about the position from the Department of Labor,
and applied for the job, from a listing of asbestos contractors, which included
TRG.
None
of the employees were told during their initial interviews that they would be
employed by
Respondent
decided to use a payroll agency such as
In
1997, the Hazmat employees were notified that they would be paid by
Win-Pay. Win-Pay had already been under
contract with Respondent to provide both payroll and temporary staffing
services to Respondent. Win-Pay, in
connection with providing temporary workers, would screen hire, and recruit
employees for Respondent. However, with
respect to the Hazmat team, Win-Pay would not hire or recruit employees, but
under its contract with Respondent, acknowledges that it is the employer of
these individuals.
While the contract also reflects that Win-Pay agrees to provide supervision of any employees assigned to Respondent, in practice, this provision was not com