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–35290
February 7, 2008
DECISION AND ORDER
By Members Liebman and Schaumber
On April 9, 2007, Administrative Law Judge Michael A. Marcionese issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief.
The National Labor Relations 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 and to adopt the recommended Order2 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. Substitute the following for paragraph 2(b).
“(b) In the event any unit employee has been terminated as a result of the unilaterally adopted zero tolerance policy, and that employee would not have been terminated under the preexisting lawful policy, take the following actions: offer the employee full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed; make him whole for any loss of earnings and other benefits suffered as a result of his discharge; and remove from its files any reference to the unlawful discharge and notify the affected employee in writing that this has been done and that the discharge will not be used against him in any way.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter C. Schaumber, 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 unilaterally make changes to your wages, hours, and terms and conditions of employment without notifying your bargaining representative in advance and affording your local union an opportunity to bargain regarding such changes.
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 will rescind the zero tolerance policy for violations of the “working with integrity” guidelines, that was announced in July 2006, for employees in the bargaining units represented by Local Unions 463, 1189, 1507, 1929, 2089, and 2374 of the International Brotherhood of Electrical Workers, AFL–CIO, CLC.
We will offer any employee in the above units who was terminated pursuant to the unilaterally implemented zero tolerance policy, and who would not have been terminated under the preexisting policy, reinstatement to his prior position without loss of seniority or any other rights or privileges previously enjoyed, we will make him whole for any loss of earnings and other benefits suffered as a result of the termination, and we will remove from our files any reference to such termination and notify the employee in writing that this has been done and that the termination will not be used against him in any way.
We will notify your Local Union before making any changes to your wages, hours, and terms and conditions of employment and, upon request, bargain with the Local Union before implementing any changes.
Windstream Corporation
Barton Meyers, Esq., for the General Counsel.
William C. Moul, Esq., for the Respondent.
Jonathan D. Newman, Esq., for the Charging Party.
DECISION
Statement of the Case
Michael A.
Marcionese, Administrative Law Judge. I heard this case in
On January 17, 2007, the Respondent filed its answer to
the amended complaint in which it essentially admitted that it made the
announcement alleged to be unlawful and that it did so without providing the
On the entire record,3 including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Respondent, and the Charging Party, I make the following
Findings of Fact
i.
jurisdiction
The Respondent, a corporation headquartered in
ii. alleged
unfair labor practices
A. The Evidence
The Respondent was created on July 17, 2006, when Alltel Corporation spun off its wireline operations in order to focus on its wireless business.4 The Respondent and its subsidiaries retained all of the Alltel employees who previously worked in the wireline business, recognized the various unions that had represented these employees for many years, and adopted the existing collective-bargaining agreements. This case involves six bargaining units that are represented by six locals of the IBEW. The 363 employees in these units constitute a fraction of the 8000 employees that the Respondent employs nationwide.5 The bargaining units involved in this case are:
The
All tellers, cable splicers, customer service technicians, facility persons, line workers, business system technicians I, equipment installer/repairmen, network technicians, service activation technician II, service activation technician I, customer engineer data application, employed by Windstream Kentucky West, Inc. at its Kentucky facility, excluding guards, professional employees and supervisors as defined in the Act and all other employees.
This unit had been represented by Local 463 and recognized
by Kentucky Alltel, Inc. since August, 2002 when Alltel acquired Verizon’s
The
All employees of the Fulton District, Jamestown District, Regional Office District and State Office District of Windstream New York, Inc., excluding all engineers, professional employees, managerial employees, confidential employees, guards and supervisors as defined in the Act.
This unit had been represented by Locals 1189 and 2374 and recognized by Alltel New York, Inc. for many years. The collective bargaining agreement in effect when the Respondent began operations was set to expire on October 31. While this case was pending, the parties reached agreement on a new collective bargaining agreement.6
The
All employees in the Northern Service Area of Windstream Western Reserve, Inc., excluding all traffic department employees, professional employees, managerial employees, confidential employees, engineers and guards, and supervisors as defined in the Act.
This unit had been represented by Local 1507 and recognized by the Western Reserve Telephone Company, a subsidiary of Alltel, for many years. The collective bargaining agreement in effect when the Respondent began operations is effective through May 15, 2007.
The Western Reserve Central District Unit
All employees of Western Reserve Telephone Company (Central District) except confidential employees, professional employees, managerial employees, engineers, guards and supervisors as defined in the Act.
This unit had been represented by Local 1507 and recognized
by Alltel’s
The Waynesburg Unit
All employees of Windstream Pennsylvania, Inc. in its
This unit had been represented by Local 1929 and recognized by Alltel Pennsylvania, Inc. for a number of years. The collective bargaining agreement in effect when the Respondent began operations is effective through November 18, 2008.
The
All employees employed by Windstream Pennsylvania, Inc. in the Meadville, Pennsylvania service area, excluding all confidential employees, professional employees, engineers, guards and supervisors as defined in the Act.
This unit had been represented by Local 2089 and recognized by Alltel Pennsylvania, Inc. for a number of years. The collective bargaining agreement in effect when the Respondent began operations is effective through June 18, 2007.
On July 26, shortly after the Respondent began operations, it distributed to all its employees, including those in the above bargaining units, Windstream’s working with integrity guidelines. The distribution was done electronically via an e-mail from the Respondent’s chief operating officer, Keith Paglusch. Employees could access the guidelines by a link in the e-mail. With the exception of the introductory letter from Jeffrey R. Gardner, Respondent’s president and chief executive officer, the guidelines were identical to a document that Alltel had distributed to employees in March, before the spin-off was complete. The guidelines were also the latest iteration in a series of documents publishing the employer’s code of conduct going back at least to 1978. There is no dispute that all of these pronouncements, whether issued by Alltel or one of its predecessor companies, were conveyed to union and nonunion employees alike without any advance notification to the various unions representing the unionized employees.7
The series of rules or codes of conduct in evidence address a number of topics relating to ethical work practices. The most recent versions, distributed by Alltel in March and by the Respondent in July, contain the same language regarding the consequences of a violation of these guidelines:
Compliance with applicable laws and these guidelines will be strictly enforced. If you fail to comply with them, you will be subject to corrective action, up to and including termination of employment [emphasis added].
The General Counsel and the Charging Party do not take
issue with the Respondent’s distribution of the guidelines themselves. Rather, the crux of this case turns on statements made
by Paglusch in his e-mail transmitting the guidelines to the employees, and in
Paglusch, in his e-mail, emphasized the importance of ethics and integrity to the Respondent’s corporate culture. His e-mail contained the following statements to illustrate the new company’s approach to this subject:
. . . [W]e will hold each other accountable for a zero tolerance policy regarding lying, cheating and stealing. Implementation of this policy makes it very clear regarding the integrity that we will exhibit as a new company . . . . A few examples of violations of the zero tolerance policy are:
·
Falsification of
company records, including time and expense reporting.
·
The use of company
property outside of normal business practice.
·
Not being truthful
in communications within the company, or with outside contacts such as
suppliers and customers.
·
Any inappropriate
use of company funds or cash receipts.
While this is a short list for this category, a more comprehensive description of violations will be provided in the Working with Integrity on-line course that will be available in September. . . .
Windstream has a need for creative, talented and dedicated team members. However, a zero tolerance policy on ethics means that if individuals are found to be in violation, their employment will be terminated, regardless of previous years of service or past performance.
There is no dispute that none of the previous or existing Alltel guidelines or rules of conduct contained such “zero tolerance” language.
As referenced in Paglusch’s e-mail, a training course was instituted about September 21. The on-line training program involved, inter alia, employees reading the guidelines on-line and affirming their “commitment to the standards described in the Working with Integrity program” and their understanding that “a violation could be the basis for disciplinary action, including, if appropriate, termination of employment.” When an employee clicked the “YES” button, he would be recorded in company records as successfully completing the training. A record of employees who clicked the “No” button in response was also recorded and maintained in their personnel folder. If an employee did not click either button, his name would appear on a report of employees who had not completed training that would be sent to managers for further action, i.e., reminding the employee of the need to complete the training. There is no dispute that this is the same training program and procedures that Alltel had used when it distributed the March version of the integrity guidelines. Alltel had been utilizing this approach to train employees and electronically record their response to the request for affirmation since at least 2003.
The letter from CEO Gardner, which appeared as the first
page of the guidelines no later than
September 21, when the training program started, reiterates Paglusch’s strict
approach to ethical violations. In the
second paragraph of his letter,
It is important that Windstream employees act with the highest ethics and have integrity in all we do. For that reason, we will hold each other accountable for a zero tolerance policy regarding unethical behavior. Implementation of this policy makes it very clear regarding the integrity that we will exhibit as a new company. Windstream maintains a compliance program that outlines ethical guidelines for employees and members of the board of directors. This Working with Integrity brochure provides an overview of those guidelines.
As previously noted, the Respondent admitted in its answer that it distributed Paglusch’s e-mail and Gardner’s letter to employees in the units involved in this proceeding without providing their respective Local Unions with advance notice or an opportunity to bargain over the “zero tolerance policy” announced in those communications.
Since the Respondent began operations and distributed the guidelines to employees, there have been few instances of discipline for violations of these rules. Records subpoenaed by the General Counsel and the Charging Party show only two instances of discipline involving unit employees. Neither employee was terminated. Records showing discipline imposed by the Respondent’s predecessor Alltel for alleged ethics violations show that a range of discipline was employed based upon the circumstances, the employee’s records and input from the employee’s bargaining representative. This evidence does not suggest that Alltel ever followed a “zero tolerance policy” with respect to such violations.
Katherine Warn, the Respondent’s director of labor relations who held the same position with Alltel for about 6 years before the Respondent was spun off from that company, testified that the Respondent did not provide advance notice to the Local Unions involved in this case because the issuance of the guidelines was not intended to change the relationship between the Respondent and the unit employees in terms of discipline. Specifically, Warn testified that the “just cause” provisions in its collective-bargaining agreements with the unions would apply to any discipline that issued under the ethics and integrity rules. Warn also testified that the Respondent believed that most of its collective-bargaining agreements gave the Respondent the right to make and amend rules and that the unions had the right to challenge individual application of the rules through the grievance procedure.
In support of Warn’s testimony, the Respondent proffered a
letter that Warn wrote to the presidents of Locals 1189 and 2374, which
represented the
Having reconsidered the matter, I now agree with the General Counsel and the Charging Party that Warn’s letter and her conversation with Amodeo was a statement made in the context of settlement discussions which is being proffered by the Respondent to prove the invalidity of the complaint’s allegations. Warn’s reference in the letter to the Region’s decision to issue complaint and her attachment of the Region’s proposed settlement agreement make this abundantly clear. The statements made by Warn in her letter were also self-serving, post-hoc justifications for the Respondent’s actions that were the subject of the complaint. Any offer to “bargain” in Warn’s letter and any “refusal” by the Unions to whom it was addressed is thus inadmissible to disprove a violation of the Act. See Contee Sand & Gravel Co., 274 NLRB 574 fn. 1 (1985).
The Respondent, in support of its waiver defense, cites language
from each of the collective-bargaining agreements that purportedly gives the
Respondent the right to unilaterally make and amend rules of conduct. The
language relied upon appears primarily in the management rights, just cause and
the grievance/arbitration clauses. The management rights clauses cited are
worded generally and, with one exception, do not specifically refer to the
right to make and amend rules. Only the
management rights clause in the collective-bargaining agreement covering the
Western Reserve Central District unit explicitly includes the right “to
establish reasonable rules and regulations (subject to the
Nothing contained in this Agreement shall be deemed to limit the Company in any way in the exercise of the regular and generally recognized customary functions and responsibilities of management. Moreover, such functions of management as may be included herein shall not be deemed to exclude other functions of management not specifically included herein.
Other contract provisions cited by the Respondent generally require employees to work efficiently and to obey company rules. A clause in the collective-bargaining agreement covering the Kentucky unit specifically provides that the Union will “cooperate with the Company in replacing any employee covered by this Agreement found guilty of not performing his or her duties in a reasonably efficient manner, or who consistently acts in an objectionable manner to his fellow employees, customers of the Company or the Company.” The grievance and arbitration provisions cited generally provide that all discipline issued by the Respondent is subject to grievance and arbitration with just cause the standard for review of such discipline.
The Respondent also cites provisions in the collective-bargaining agreements that specifically require the Respondent to provide the respective Local Union with advance notice before implementing certain changes, such as those affecting medical benefits, pensions, and subcontracting. None of the collective-bargaining agreements contains a similar provision requiring advance notice before making or changing rules regarding employee conduct.
The parties also offered evidence that, on two occasions, both in early 2002, two Local Unions objected to discipline imposed on employees which was based, in part, on Alltel’s ethics and integrity guidelines. Grievances filed by Local Union 2374 in Jamestown, New York, and Local Union 2089 in Meadville, Pennsylvania, challenging discipline issued for motor vehicle accidents, objected to the employer’s reference to the ethics policy on the basis that it had not been negotiated with the Union.
B. Analysis
1. Procedural issues
The Respondent has raised several procedural defenses which must be addressed before turning to the merits. Respondent first challenges the Board’s jurisdiction to resolve this dispute on the basis that the IBEW lacked standing to file the instant charge. Respondent relies upon the fact that the International Union is not a party to any of the six collective-bargaining agreements involved here, nor is it the certified or recognized bargaining agent of any of the units in question. The Respondent also cites provisions in the International Union’s constitution and bylaws that appear to limit the right of the Local Unions to act as agents of the International and vice versa.10 Respondent’s defense must be rejected. The Board and the courts have historically recognized, consistent with congressional intent, that “anyone for any reason may file charges with the Board.” Operating Engineers Local 39 (Kaiser Foundation), 268 NLRB 115, 116 (1983). See also Postal Service, 309 NLRB 309 (1992); Bagley Products, 208 NLRB 20, 21 (1973); Section 102.9 of the NLRB’s Rules & Regulations. As the Supreme Court said, many years ago:
The charge is not proof. It merely sets in motion the machinery of an inquiry. When a Board complaint issues, the question is only the truth of its accusations. The charge does not even serve the purpose of a pleading. Dubious character, evil or unlawful motive, or bad faith of the informer cannot deprive the Board of its jurisdiction to conduct the inquiry.
NLRB v. Indiana &
Michigan Electric Co., 318
The Respondent next raises the defense of improper joinder
of charges and parties. The Respondent
argues that it has been unduly prejudiced by the General Counsel’s decision to
allege in a single proceeding unfair labor practices involving six separate
bargaining units, each represented by a different local of the
The Respondent also raised, as an affirmative defense, that the case should be deferred to the parties’ contractual grievance and arbitration provisions under the Board’s Collyer11 deferral policy. Counsel for the General Counsel opposed deferral on the basis that the alleged unilateral change and direct dealing occurred on a corporatewide basis and that deferring to six different contractual grievance procedures could lead to inconsistent results. The General Counsel also argues that in three of the collective-bargaining agreements, the arbitrator’s decision is final and binding only as to questions of fact, not as to questions of law.12 It is also not clear that an arbitrator would be able to address the direct dealing allegation. Based on the arguments of the General Counsel, I shall decline to defer this case pursuant to Collyer.
2. Alleged unilateral change
The complaint alleges that the reference to a “zero tolerance policy” for violations of the Respondent’s working with integrity guidelines, found in CEO Gardner’s introduction to the guidelines and in COO Paglusch’s July 26 e-mail, amounted to a unilateral change in unit employees’ terms and conditions of employment. The Respondent contends that these statements did not materially and substantially change the Respondent’s ethics and integrity program, which it had adopted from its predecessor Alltel. The Respondent argues further that, assuming there was a material and substantial change, the Respondent had no obligation to notify and bargain with the Local Unions in advance because each union had waived its right to bargain over the subject by contract and practice.13
It is well established that an employer violates Section
8(a)(5) and (1) of the Act if it makes material or substantial changes in
employees’ wages, hours, or other terms and conditions of employment
unilaterally during the term of a collective-bargaining agreement. NLRB v.
Katz, 369 NLRB 736 (1962). Accord: United Cerebral Palsy of
I find, in agreement with the General Counsel, that the announcement
of a “zero tolerance policy,” meaning that an employee found to have violated
one of the Respondent’s ethics and integrity rules would be automatically
terminated without regard to his work record or the particular circumstances,
represented a “material, substantial and significant” change in employees’
terms and conditions of employment. United Cerebral Palsy of New York City,
supra, slip op. at 5; Toledo Blade Co., supra
at 388.14 This language necessarily alters the “just
cause” provision in the Respondent’s collective-bargaining agreements with the
six Local Unions here because it removes from consideration by an arbitrator
factors such as an employee’s prior work record or the circumstances of the
alleged violation. Although the
Respondent argued at the hearing and in its brief that the collective-bargaining
agreement would govern any discipline imposed under the guidelines, there is nothing in Paglusch’s or
Warn’s testimony at the hearing that the Respondent did
not intend to change the contractual just cause provision, or its existing disciplinary
procedures is nothing more than a post hoc rationalization of the Respondent’s
unilateral action. Until such time as
the Respondent explicitly disavows the “zero tolerance policy” announcement in
a communication to employees, it remains in force and available to the
Respondent in the application of discipline to unit employees. Similarly, although the Respondent did not in
fact utilize the “zero tolerance policy” when it had the opportunity to do so,
this is not proof that a change did not occur. I note that the two instances where employees
were alleged to have violated the ethics and integrity rules occurred after the
With respect to waiver, the Board and the courts have long
held that waivers of statutory rights are not to be lightly inferred, but
instead must be “clear and unmistakable.” Metropolitan
Edison Co. v. NLRB, 460
None of the collective-bargaining agreements in the instant
case contain specific language authorizing the Respondent to adopt a zero
tolerance policy for discipline. On the
contrary, all of the collective-bargaining agreements contain “just cause”
language, which is antithetical to a “zero tolerance” approach to discipline. As previously noted, only one contract
includes the right “to establish reasonable rules and regulations” within the
management rights clause. However, that
particular management right is subject to the particular Local Union’s right to
challenge the reasonableness of any rule through the grievance procedure. This hardly amounts to a waiver of the right
to bargain over a significant change in the level of discipline the Respondent
can impose for violation of its rules. Other
language in the collective-bargaining agreements requiring employees to abide
by the Respondent’s rules of conduct is also not specific enough to clearly and
unmistakably waive the union’s right to bargain over the manner and means or
the degree of discipline to be imposed for an employee’s failure to obey the
rules. The
In order to establish a waiver by practice, or bargaining history, the Respondent relies essentially on the history of relations between the Local Unions and Alltel, which is not the employer in this case. There is very little bargaining history between the Respondent and these Local Unions on which to base a finding of waiver. Moreover, both Paglusch and Gardner were hired specifically to lead the Respondent and had no prior history of dealing with the unions at Alltel. Their desire to establish a new corporate culture is evident from the communications at issue here. Thus, whatever might be said of the unions’ acquiescence in Alltel’s previous distributions of its ethics and integrity policies can hardly be construed as a waiver of the right to bargain over such a change in the corporate approach to discipline as that announced by this new employer. Accordingly, I find that the Respondent has not demonstrated that any of the Local Unions here have waived their bargaining rights by practice or bargaining history.15
The Respondent also raised, as an affirmative defense, that none of the Local Unions ever requested bargaining over the “zero tolerance policy” announced by Paglusch and Gardner. I reject this defense because the Board has consistently held that a union is not required to request bargaining when a change in employees’ terms and conditions of employment is presented as a fait accompli, or where it would be futile to do so. See Ciba-Geigy Pharmaceuticals Div., 264 NLRB 1013, 1017–1018 (1982), and cases cited therein. The evidence here clearly establishes that the Respondent’s announcement of its “zero tolerance policy” was a fait accompli. The Local Unions received notice of the new policy at the same time as the unit employees. Nothing in the announcement indicated that it would not be immediately effective. A request to bargain after the policy had already been announced and implemented would be futile.16 Accordingly, I reject this affirmative defense and find, as alleged in the complaint, that the Respondent violated Section 8(a)(5) and (1) in July 2006, when it unilaterally announced a “zero tolerance” disciplinary policy.
3. Alleged direct dealing
The complaint alleges that the Respondent’s unilateral announcement of its zero tolerance policy also constituted direct dealing in violation of Section 8(a)(5) and (1) of the Act. The General Counsel and the Charging Party rely on the fact that the Respondent communicated the new policy directly to the employees, before notifying their respective bargaining representatives of this significant change in their terms and conditions of employment. The Charging Party, in its brief, also cites the evidence that, as part of the Respondent’s on-line training program, employees were required to affirm their agreement with the policy. The Respondent argues that the mere communication to employees of a change, even if made unilaterally, does not amount to direct dealing.
The Board has long held that the obligation to bargain collectively requires “recognition that the statutory representative is the one with whom [the employer] must deal in conducting bargaining negotiations, and that it can no longer bargain directly with the employees.” General Electric Co., 150 NLRB 192, 194 (1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970). See also Medo Photo Supply Co. v. NLRB, 321 U.S. 678 (1944). In Georgia Power Co., 342 NLRB 192 (2004), the Board found that the employer bypassed the union and dealt directly with its employees by communicating directly to the unit employees regarding the formation of its workplace ethics program. In that case, however, the employer solicited its unit employees to participate in the formation of work teams and processed employee concerns through the ethics program. Here, the Respondent’s announcement of the zero tolerance policy did not invite any feedback from employees, nor solicit them to negotiate with the Respondent over the policy. In Sonic Automotive, 343 NLRB 1058 (2004), the Board adopted the judge’s finding that merely informing employees of a predetermined course of action does not amount to direct dealing. See also Huttig Sash & Door, 154 NLRB 811, 817 (1965).
The Charging Party cites United Cerebral Palsy of New York City, supra, in which the Board found direct dealing where the employer distributed a new handbook, which unilaterally changed employees’ terms and conditions of employment, and required the employees to sign a receipt acknowledging they had received the handbook and agreed to comply with it. Although there are some similarities to the Respondent’s conduct here, the key difference is that the acknowledgement in United Cerebral Palsy also required the employees to agree that the employer could unilaterally change terms and conditions of employment in the future. See also Heck’s, Inc., 293 NLRB 1111, 1120 (1989). The affirmation utilized by the Respondent as part of its on-line training program is different. It does not require unit employees to agree that the Respondent may make future changes in their terms and conditions of employment without prior notice.
I find that the Respondent’s communication of its new zero tolerance policy directly to unit employees did not amount to direct dealing in violation of the Act because it did not invite the employees to bypass their representative and negotiate with the Respondent over any term or condition of employment nor did it undermine the Unions’ role as the employees’ exclusive bargaining representative by requiring the employees to agree, in advance, to future unilateral changes. Accordingly, I shall recommend dismissal of this allegation of the complaint.
Conclusions of Law
1. By unilaterally implementing a zero tolerance disciplinary policy for violations of its ethics and integrity rules, the Respondent has failed and refused to bargain collectively with the Local Unions representing its employees and has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
2. By announcing the zero tolerance policy directly to unit employees without soliciting or inviting the employees to negotiate with it, the Respondent did not engage in direct dealing and did not violate Section 8(a)(5) and (1) of 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. In order to remedy the unlawful unilateral change found here, I shall recommend that the Respondent rescind the zero tolerance policy announced on July 26, 2006, via e-mail from COO Paglusch and reaffirmed by letter from CEO Gardner and restore the status quo ante. The Respondent shall further be ordered to communicate the rescission to all employees in the bargaining units involved in this proceeding via electronic mail, which is the Respondent’s preferred and customary method of communicating with employees. See National Grid USA Service Co., 348 NLRB No. 88, slip op. at 1 fn. 2 (2006).17 No unit employees had been terminated under this policy as of the date of the hearing. However, should it be determined at the compliance phase of this proceeding that the Respondent has in fact terminated any unit employees pursuant to the unilaterally adopted policy, I shall recommend that it be ordered to offer reinstatement to said employee and expunge from the employee’s record any reference to the termination. I shall also recommend that the Respondent provide advance notice and an opportunity to bargain to the respective Local Unions before making any future changes to unit employees’ wages, hours, and terms and conditions of employment.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended18
ORDER
The Respondent, Windstream Corporation,
1. Cease and desist from
(a) Making changes to the wages, hours, and terms and conditions of employment of employees in the bargaining units represented by IBEW Locals 463, 1189, 1507, 1929, 2089, and 2374 without first providing those unions with notice and an opportunity to bargain.
(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) Rescind the zero tolerance policy for violations of the “working with integrity” guidelines, that was announced in July 2006, and notify employees in the units represented by the Local Unions identified above that this has been done. Such notification to be by electronic mail and any other manner in which the Respondent customarily communicates such policies to its employees.
(b) In the event any unit employee has been terminated as a result of the unilaterally adopted zero tolerance policy, rescind the termination and offer the employee reinstatement to his prior position, without loss of seniority or other benefits, make him whole for any wages and benefits lost as a result of the termination and expunge from its files any reference to the termination.
(c) Notify the Local Unions identified above and, on request, bargain with them as the exclusive collective-bargaining representative of their respective units, before making any changes to unit employees’ wages, hours, and terms and conditions of employment
(d) Within 14 days after service by the Region, post at its facilities covered by its collective-bargaining agreements with Locals 463, 1189, 1507, 1929, 2089, and 2374, copies of the attached notice marked “Appendix.”19 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed any of the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at that facility at any time since July 26, 2006.
(e) 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 employees in the units represented by the above Local Unions.
(f) 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,
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 unilaterally make changes to your wages, hours, and terms and conditions of employment without notifying your bargaining representative in advance and affording your Local Union an opportunity to bargain regarding such changes.
We will not in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will rescind the zero tolerance policy for violations of the “working with integrity” guidelines, that was announced in July 2006, for employees in the bargaining units represented by Local Unions 463, 1189, 1507, 1929, 2089, and 2374 of the International Brotherhood of Electrical Workers, AFL–CIO, CLC.
We will offer reinstatement to any employee in the above units who was terminated pursuant to the unilaterally implemented zero tolerance policy and we will make him whole for any wages and benefits lost as a result of the termination.
We will expunge from our files any reference to such termination and we will notify the employee that this has been done.
We will notify your Local Union before making any changes to your wages, hours, and terms and conditions of employment and, upon request, bargain with the Local Union before implementing any changes.
Windstream Corporation
1 We agree with the judge that the allegation that the Respondent unilaterally implemented a “zero tolerance” ethics policy in violation of Sec. 8(a)(5) is not appropriate for deferral pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971), and its progeny. In declining to defer under Collyer, we rely in particular on Arvinmeritor, Inc., 340 NLRB 1035 fn. 1 (2003), where the Board quoted from American Commercial Lines, 291 NLRB 1066, 1069 (1988), which held, in pertinent part:
[W]hen, as here, an
allegation for which deferral is sought is inextricably related to other
complaint allegations that are either inappropriate for deferral or for which
deferral is not sought, a party’s request for deferral must be denied.
We find that the unilateral implementation allegation that the Respondent seeks to defer is inextricably related to the direct dealing allegation covering the same subject matter. The Respondent did not request that the direct dealing allegation be deferred. Accordingly, we conclude that deferral of one aspect of the parties’ dispute to the grievance-arbitration machinery would, under these circumstances, be inappropriate.
Member
2 Effective midnight
December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to
Members Liebman,
3 Insofar as unit employees may have been terminated as a result of the unlawfully adopted zero tolerance policy, the Respondent is entitled, during the compliance stage, to demonstrate that it nevertheless would have discharged the employees under its preexisting ethics policy, thereby avoiding any backpay and reinstatement obligation. See Great Western Produce, Inc., 299 NLRB 1004, 1006 (1990). We have modified the judge’s proposed Order and proposed notice accordingly.
Member
1 The original caption in this case identified this party as Local 453. I have corrected the caption to reflect the correct Local Union number as evidenced by the collective-bargaining agreement in evidence.
2 All dates are in 2006, unless otherwise noted.
3 After the close of the hearing, and before filing briefs, the General Counsel filed a motion to consolidate a newly-issued complaint in another case involving the same parties with this case. By Order dated March 14, 2007, I denied the motion.
4 The new entity also included wireline employees previously employed by Valor Corporation, another telecommunications company which Alltel had acquired.
5 A much larger group of employees, approximately 1600, are represented by the Communications Workers of America (CWA).
6 The Respondent proffered evidence of certain correspondence between the parties which occurred in the context of these negotiations. I shall address that evidence later in this decision.
7 The Respondent offered evidence that Alltel followed the same approach when it distributed workplace violence and workplace harassment policies to employees in 2000 and 2003, respectively. Although Alltel did not provide the local unions with advance notice and an opportunity to bargain before implementing these policies, neither policy contained “zero tolerance” language similar to that at issue here. On the contrary, these policies, similar to Alltel’s ethics and integrity policies, advised employees they would be subject to discipline “up to and including termination” if they engaged in violence or harassment.
8 The
General Counsel contends that
9 The
10 Respondent acknowledges that the International Union has historically assisted the Local Unions in contract negotiations with Alltel and has continued to perform this role since the Respondent recognized the Local Unions in July 2006.
11 Collyer Insulated Wire, 192 NLRB 837 (1971).
12 This
language appears in the collective-bargaining agreements covering the two
13 Respondent admitted in its answer that the subject of a zero tolerance policy was a mandatory subject of bargaining within the meaning of the Act.
14 The cases relied on by the Respondent are distinguishable. In those cases, the administrative law judge found that minor changes in existing disciplinary procedures were not material and substantial because they did not alter the just cause provision of a collective-bargaining agreement. See, e.g., LaMousse, Inc., supra.
15 I also note that it is undisputed that Alltel had never adopted a “zero tolerance policy” for discipline in its dealings with unit employees. The new policy represented such a dramatic change in the employer’s approach to discipline that the unions’ past practice with Alltel, even if relevant, would not show a waiver.
16 I previously rejected the Respondent’s proffer of evidence purportedly showing that Local Unions 1189 and 2374 refused to bargain when offered the opportunity to do so during contract negotiations in October. This offer was made in the context of settlement negotiations and can not be relied upon to show a disinterest by the Unions in bargaining over the subject.
17 For the same reason, I shall also recommend that the Respondent post the attached notice to employees electronically.
18 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.
19 If this
Order is enforced by a judgment of a