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,
Windstream Corporation and International Brotherhood of Electrical Workers, AFL–CIO, CLC
on behalf of its affiliated Local Unions 463, 1189, 1507, 1929, 2089, and 2374. Case
6–CA–35483
May 23, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On August 9, 2007, Administrative Law Judge Wallace H. Nations issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, the Respondent filed an answering brief, and the Charging Party filed a reply brief.1
The National Labor Relations Board2 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified below.3
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Windstream Corporation,
1. Insert the following as paragraphs 2(b) and (c) and reletter the subsequent paragraph.
“(b) Within 14 days after service by the Region, post at
its facility in
(c) Within 14 days after service by the Region, post the attached notice marked “Appendix” electronically on the Respondent’s intranet with a link sent by electronic mail to its employees.”
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) 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 implement or maintain as a part of our “Working with Integrity” policy or elsewhere, provisions prohibiting you from disclosing your compensation, benefits, or personnel records or information to others.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We have rescinded the provisions of our “Working with Integrity” policy that prohibit you from disclosing your compensation, benefits, or personnel records or information to others, and we have notified all employees that this has been done.
Windstream Corporation
Barton Meyers, Esq., for the General Counsel.
William C. Moul, Esq., of
Jonathan D. Newman, Esq., of
DECISION
Statement of the Case
Wallace H.
Nations, Administrative Law Judge. This case was tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party and Respondent, I make the following
Findings of Fact
i.
jurisdiction
The Respondent, a
ii. alleged
unfair labor practices
A. The Complaint Allegations
About July 17, 2006, Respondent was created in a spin-off of the landline telephonic business of Alltel Corporation and its affiliates (hereinafter Alltel), and since then has continued to operate the landline business of Alltel in basically unchanged form and has employed, as a majority of its employees, individuals who were previously employed by Alltel. Since the spin-off of the landline business of Alltel, Respondent has recognized as the exclusive collective-bargaining representative of units of its employees, IBEW Local Union 463 located in Lebanon, Kentucky, IBEW Local Union 1189 located in Fulton, New York, IBEW Local Union 1507 located in Hudson, Ohio, IBEW Local Union 1929 located in Clarksville, Pennsylvania, IBEW Local Union 2089 located in Meadville, Pennsylvania, and IBEW Local Union 2374 located in Jamestown, New York.
The complaint alleges that on or about July 28, 2006, and thereafter, Respondent, in its “Working with Integrity” guidelines posted on Respondent’s intranet, announced and implemented and has since maintained a policy which prohibits all of Respondent’s employees from disclosing their compensation, benefits, personnel records or information to any other party. The complaint further alleges that by this conduct, Respondent has engaged in conduct in violation Section 8(a)(1) of the Act.
In its answer, the Respondent denies that its policy is unlawful and in addition, raises the following affirmative defenses:
1. The conduct complained of is time barred under Section 10(b) of the Act, occurring more than 6 months prior to the filing of the charge.
2. That the complaint was issued prematurely with disregard for the provisions of Section 10068 of the Board’s Case Handling Manual and was thus an abuse of discretion.
3. That the issues raised in the complaint should have been deferred to the contractual grievance and arbitration provisions of each Local Union under the Board’s policy as set forth in Collyer Insulated Wire, 192 NLRB 837 (1971).
4. Whether the International Union has standing, as an agent of the Local Unions, to file the unfair labor practice charge on behalf of its Local Unions in this matter.
5. That by its March 2007 amendment to the policy, the Respondent has made the matter moot.
B. The Facts Related to the Complaint Allegations
Martha Pultar is employed by the
Following the spin-off, on July 25, 2006, Windstream’s
then COO Keith Paglusch sent an e-mail to all of Windstream’s employees informing
them of a new “integrity” policy for the company. They were invited to go to a website which had
detailed “Working with Integrity” guidelines.
This e-mail was not sent to the
Employee compensation, benefits, and personnel records and information are confidential. Only employees who need to know such information in the course of employment should access such employee information. You should not disclose this information to any other Windstream employee unless that employee has a need to know such information in the course of employment. Except as required to comply with law, you should never disclose this information to any party other than the employee or individual whose access has been authorized by the employee.
This paragraph was followed by some questions and answers that read:
Q: One of my coworkers pulled up the call records of his old girlfriend. He shared that information with others. Is this acceptable?
A: No. Customer information, including billing information and call detail records, is confidential and should never be accessed or used for anything other than business reasons.
Q: A Customer’s spouse has requested account information. The account does not list the spouse as having authorized access. Should I give out the information?
A: No. You should never disclose customer information to any third party unless the customer has authorized such party’s access or as required to comply with law.
On or about September 21, 2006, Windstream’s then COO Jeff Garner sent out an e-mail to employees announcing an online “Working with Integrity” training course and directing employees to take the course.
Windstream’s predecessor, Alltel, had a virtually identical policy in place beginning in March 2006. Like Windstream, Alltel had notified employees of the policy by e-mail and provided a link to a website where the policy was published. Though the Windstream policy exists only on the Company’s intranet, Alltel’s identical policy was printed in hard copy form at some point. There was no evidence of how the hard copy was distributed, if at all. Each of the collective-bargaining agreements between Windstream and the involved Local Unions has a grievance and arbitration provision. Each of the contracts are between a Windstream subsidiary and the involved Local Unions.
Katherine Warn is the director of labor relations for Windstream
and had been employed by Alltel and its predecessor since 1974, in one form or
another of the human resource function. Alltel
was formed in 1983 with the merger of Alltel Telephone Company of
In response to the filing of the instant complaint, Windstream modified the alleged unlawful part of its “Integrity” policy to now read:
Employee compensation, benefits, and personnel records and information are confidential. Only employees who need to know such information in the course of employment should access such employee information through Company records. Therefore, if you are one with access to such information as a part of your responsibilities with the Company, you should not disclose this information to any other Windstream employee unless that employee has a need to know such information in the course of employment. Except as required to comply with law, you should never disclose this information to any party other than the employee or an individual whose access has been authorized by the employee. This does not prohibit you from disclosing or discussing personal, confidential information with others, so long as you did not come into possession of such information through access which you have as part of your formal Company duties.
This revision was made in March 2007, to the “Integrity” policy set out on the intranet, but notice of the change was not sent to employees by e-mail as was the notice of the policy’s initial posting. None of the Company’s unions were notified of the change.2 The “Working with Integrity” policy was initially put in place by Alltel and subsequently by Windstream to comply with certain laws such as Sarbanes Oxley and HIPPA.
Warn testified that Windstream is in a very competitive industry and, inter alia, competes for competent employees. For this reason, among others, it does not communicate its employee compensation package to the public or its competition. According to Warn, the “Integrity” policy was not fashioned in any respect in response to union organizing or other union activity. There has been no enforcement of the allegedly unlawful provision of the “Integrity” policy. She further testified that the provision in question is targeted exclusively to the 75 or 80 Company human resource, IT, and labor relations employees who have access to Company personnel information. This is about 1 percent of the Company’s total work force. Other than this 1 percent of employees, no employees have been informed that they could not share wage and benefit information with other employees. She is aware that employees do share such information based on calls from employees. Warn also testified that her view of what employees are affected by the language in question had not been disseminated to all employees.
The General Counsel agreed with Respondent’s counsel that the decision to issue a complaint in this matter was made prior to receipt of Respondent’s position statement with regard to the case. The complaint itself was issued just after receipt by the Region of that position statement.
C. Discussion and Conclusions
1. The affirmative defenses
Before discussing the merits of the complaint allegations respecting the lawfulness of the rule in question, I will address the affirmative defenses. First, with regard to the 10(b) defense, I note that the “mere maintenance” of an unlawful rule is sufficient to violate the Act. An unlawful rule which prohibits employees from exercising their Section 7 rights violates the Act even if there is no evidence that the rule has been enforced. Guardsmark LLC, 344 NLRB 809 (2005); citing Lafayette Park Hotel, supra at 825, which states, “mere maintenance of a rule likely to chill Section 7 activity, whether explicitly or through reasonable interpretation, can amount to an unfair labor practice, even absent evidence of enforcement.” See also Franklin Iron & Metal Corp., 315 NLRB 819, 820 (1994).
Since the mere maintenance of an unlawful rule violates the Act, even if the rule has not been enforced, Section 10(b) does not bar a charge alleging that the maintenance of such a rule is unlawful even should the rule have been originally promulgated outside the 10(b) period. See Eagle-Picher Industries, 331 NLRB 169, 174 (2000), “maintenance during the Section 10(b) period of a rule that transgresses employee rights is itself a violation of Section 8(a)(1).” See also Control Services, 305 NLRB 435, 442 (1991). Accordingly, the Respondent’s affirmative defense in this regard is without merit.
With regard to the standing of the International Union to file the charge in this case on behalf of its affected Local Unions, Section 102.9 of the Board’s Rules and Regulations and Statements of Procedure states the following:
Who may file . . . a charge that any person has engaged in and/or is engaging in any unfair labor practice affecting commerce may be made by any person. . . .
Section 102.10 Where to file
A charge alleging that an unfair labor practice has occurred or is occurring in two or more Regions may be filed with the Regional Director for any such Region.
Moreover, the Supreme Court rejected this procedural argument
concerning standing as early as NLRB v.
Indiana & Michigan Electric Co., 318 U.S. 9, 17–18 (1943), and the
Board has since adopted this ruling in Bagley
Products, 208 NLRB 20, 21 (1973), and has also affirmed that any person can
file a ULP charge. See Utility Workers Union of
With regard to the argument that this case should be deferred, this case should not be deferred because the conduct that is alleged to violate Section 8(a)(1) of the Act applies to all of Respondent’s employees, both nonunion and union-represented alike. The unrepresented employees, of course, have no access to and are not covered by any of the contractual grievance/arbitration procedures established in the collective-bargaining agreements of the various Local Unions and, accordingly, the charge cannot be deferred. See Heck’s Inc., 293 NLRB 1111, 1116 (1989). Moreover, this matter involves a single corporatewide action by the Employer affecting multi-state jobsites where even its Union-represented employees are covered by six different collective-bargaining agreements with differing terms. Thus, even if deferral were otherwise appropriate, the possibility of six different arbitrators using six different contracts and coming up with a single consistent result is highly unlikely. Further, two of the contracts (Local 1189/2374 and Local 1929) restrict an arbitrator to deciding “questions of fact” not “conclusions of law” as would be needed to decide this case. I believe deferral would be totally inappropriate in this case.
With respect to Respondent’s procedural argument that the complaint issued prematurely, I find that it is without merit. The Respondents position in this matter was known to the Region prior to issuance of the complaint and did not and should not have changed the decision to issue it. For the reasons set forth below, the complaint has merit and there was no showing that Respondent was in any way prejudiced by the Region’s handling of this matter.
2. Does Respondent’s Rule Violate Section 8(a)(1) of the Act?
The Board has consistently held that an employer rule which regards employee compensation and benefit information as confidential and prohibits employees from discussing such information with one another violates Section 8(a)(1) of the Act. See Double Eagle Hotel & Casino, 341 NLRB 112, 115 (2004) (quoting Lafayette Park Hotel, 326 NLRB 824, 825 (1998); Radisson Plaza Minneapolis, 307 NLRB 94 (1992). In examining whether a particular rule so violates Section 8(a)(1), the Board’s analysis requires that the rule be such that “Employees would reasonably construe the language to prohibit Section 7 activity.” Cintas Corp., 344 NLRB 943, 943 (2005). Here, the language of Respondent’s rule clearly meets this test, in that employees could certainly “reasonably construe” the language to prohibit the protected Section 7 activity of discussing wages and benefits with one another. According to the testimony, the rule is aimed at Respondent’s employees who have access to personnel information in the course of their employment. The problem is that it does not make that point clear.
The rule in question begins by flatly stating that “employee
compensation, benefits, personnel records and information are confidential.” Thus, without qualification or ambiguity employees
are put on notice that all such information is regarded as “confidential by the
Employer.” Moreover the paragraph in
question then goes on to state that only employees who “need to know” such
information “in the course of employment” should even access it and that
employees “should not disclose this information in the course of employment to
any other Windstream employee unless that employee has a need to know such
information in the course of employment. This makes it clear that any other disclosure
of compensation and benefit information other than to those who have a need to
know related to the course of their employment, i.e., to their job duties, is
prohibited. Clearly this language is so
broadly stated that employees could and will construe them to prohibit discussions
of wages and working conditions with others.
Though Respondent argues to the contrary, just reading the original rule and then the rule as modified in March 2007, make it clear that an ambiguity does exist. I find that the original rule does violate Section 8(a)(1) of the Act.
Having made this finding, I note that the purpose of Respondent’s rule as articulated at the hearing is reasonable, lawful, and certainly was not intended to coerce, restrain, or interfere with rights guaranteed by Section 7 of the Act. See Lafayette Park Hotel, supra; International Business Machines Corp., 265 NLRB 638 (1982). I believe that the rule, as modified in March 2007, does not violate Section 8(a)(1) of the Act. The modification clears up the ambiguity of the original rule and clearly identifies the target audience of the rule and makes it clear as well that employees can discuss among themselves personnel information so long as that information did not come into their possession through access to Company records in the course of their job duties. Had the Respondent communicated the modification to its employees in the same manner as it did the original rule, I would have recommended dismissal of this complaint. However, as it did not, the chilling effect of the original rule has not been cured. Thus, I will recommend that as a remedy, Respondent be ordered to disseminate to employees the modified rule in an e-mail to them by the current chief operating officer of the Company. This e-mail should note the changes made to Section 10 of the “Working with Integrity” guidelines. I do not believe any other action is necessary to effectuate the policies of the Act.
Conclusions of Law
1. Respondent, Windstream Corporation, is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent’s promulgation and maintenance of
the portion of its “Working with Integrity” guidelines which prohibits all of
Respondent’s employees from disclosing their compensation, benefits, personnel
records or information or discussing them with any other party violates Section
8(a)(1) of the Act.
4. The unfair labor practice committed by
Respondent affects commerce within the meaning of Section 2(6) and (7) of the
Act.
5. Respondent’s rule referenced above, as modified in March 2007, does not violate the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Respondent has already rescinded the rule found to have been in violation of the Act and has modified the rule to read in a manner that I find to be lawful. However, it did not give employees notice of the modification in the same manner that it did the original, unlawful rule. Respondent should be ordered to give notice of the modified rule to employees in an e-mail from the chief operating officer of the Company as it did with the original rule. This e-mail should note the changes made to Section 10 of the “Working with Integrity” guidelines. I do not deem it necessary to take any further affirmative action.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended3
ORDER
The Respondent, Windstream Corporation,
1. Cease and desist from
(a) Promulgating and maintaining the portion of its “Working with Integrity” guidelines which prohibits all of Respondent’s employees from disclosing their compensation, benefits, personnel records or information or discussing them with any other party.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action.
(a) Within 14 days of the Board’s Order, have the Company’s chief operating officer e-mail all of the Company’s employees notice of the March 2007 modification of the portion of the “Working with Integrity” guidelines set forth as Section 10 customer and employee privacy in the guidelines and relating to the employees the changes made from the original Section 10.
(b) 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,
1 Pursuant to the judge’s recommended Order, the Respondent sent its employees an e-mail dated August 24, 2007, informing them that the Respondent had modified the portion of its “Working with Integrity” policy that prohibited employees from discussing their compensation and other information with others. The e-mail set forth the language of the rule as modified. Subsequently, the Charging Party filed a Motion to Reopen the Record to receive a copy of this e-mail, which is attached to the motion as “Exhibit A.” The Respondent filed a response stating that it joined the Charging Party’s motion. Because the Respondent’s August 24 e-mail was not available prior to the close of hearing, and may be relevant to the compliance phase of this proceeding, we grant the Charging Party’s motion.
2 Effective midnight
December 28, 2007, Members Liebman,
3 No party has excepted to the judge’s findings with respect to the underlying complaint allegations. We grant the General Counsel’s and Charging Party’s exceptions to the judge’s failure to require the Respondent to post the Board’s standard remedial notice. See Riverboat Hotel, 319 NLRB 176, 177 (1995). Consistent with our adoption of the judge’s finding in Windstream Corp., 352 NLRB No. 9 (2008), that the Respondent regularly communicates its employment policies to employees through electronic mail, we shall order the Respondent to post the attached notice on its intranet and transmit the notice to its employees via e-mail.
Chairman
4 If this Order is
enforced by a judgment of a
1 All dates are 2007, unless otherwise indicated.
2 Ms. Pultar was notified of the change in an attempt to settle this matter.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.