Michigan Bell Telephone Company

National Labor Relations Board - Board Decisions

Jul 17, 2020

369 N.L.R.B. 124 (N.L.R.B. 2020)

369 NLRB No. 124
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Michigan Bell Telephone Company and AT&T Ser-
vices, Inc., Joint Employers and Local 4034,
Communications Workers of America (CWA),
AFL–CIO. Cases 07–CA–161545, 07–CA–
165384, 07–CA–166130, 07–CA–170664, 07–CA–
176618, 07–CA–177201, 07–CA–182490, 07–CA–
184669, and 07–CA–190631
July 17, 2020
DECISION, ORDER, AND ORDER REMANDING
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On June 21, 2018, Administrative Law Judge Ira San-
dron issued the attached decision. The Respondent1 filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board2 has considered the
decision and the record in light of the exceptions3 and
briefs and has decided to affirm the judge’s rulings, find-
ings,4 and conclusions only to the extent consistent with
this Decision, Order, and Order Remanding.5
1 Because Respondents Michigan Bell Telephone Company and
AT&T Services, Inc. have admitted that they are joint employers, they
were generally treated, and referred to, as a single Respondent through-
out the underlying proceeding. We continue that practice here.
2 Member Emanuel, who is recused, is a member of the panel for
quorum purposes only. He did not participate in the consideration of the
merits of this case.
In New Process Steel v. NLRB, 560 U.S. 674 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a two-
member quorum when one of the panel members has recused himself.
Under the Court’s reading of the Act, “the group quorum provision [of
Sec. 3(b)] still operates to allow any panel to issue a decision by only
two members if one member is disqualified.” New Process Steel, 560
U.S. at 688. See, e.g., D. R. Horton, Inc., 357 NLRB 2277, 2277 fn. 1
(2012), enfd. in relevant part 737 F.3d 344 (5th Cir. 2013); NLRB v. New
Vista Nursing & Rehabilitation, 870 F.3d 113, 127–128 (3d Cir. 2017);
1621 Route 22 West Operating Co., 357 NLRB 1866, 1866 fn. 1 (2011),
enfd. 725 Fed.Appx. 129 (3d Cir. 2018).
3 On April 7 and May 26, 2016, the Union requested information
concerning its “truck swap” grievance. The judge dismissed the allega-
tion concerning the former but found that the Respondent violated Sec.
8(a)(5) and (1) by failing to respond to most of the specific requests con-
tained in the latter. There are no exceptions to the judge’s findings re-
garding the April and May information requests.
4 The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
For the reasons stated by the judge, we agree that the
Respondent violated Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act by requiring employee Brian
Hooker, a full-time union officer, to resume performing
work as a technician (i.e., to resume working “in the load”)
and by requiring Hooker to fill out union activity logs.6
We further agree with the judge that the Respondent vio-
lated Section 8(a)(5) and (1) by failing to provide the Un-
ion with relevant and necessary information regarding
Hooker’s grievance over his return to working in the load
and the requirement that he submit union activity logs.7
For the reasons stated below, we additionally agree with
the judge’s conclusion that the Respondent violated Sec-
tion 8(a)(5) and (1) by unilaterally making the decisions
to place Hooker back in the load and to require him to fill
out union activity logs. However, we disagree with the
judge’s conclusion that the Respondent’s confidentiality
rule violates Section 8(a)(1). We also remand in part to
the judge the complaint allegation that the Respondent vi-
olated Section 8(a)(3) and (1) by disciplining and dis-
charging Hooker.
I. PLACEMENT IN THE LOAD AND UNION ACTIVITY LOGS
The Respondent is a telecommunications company
providing telephone, internet, and television services to
customers in Michigan. Under article 10 of the Union’s
collective-bargaining agreement with the Respondent,
5 We shall modify the judge’s recommended Order to conform to our
findings and our standard remedial language, and in accordance with our
recent decision in Danbury Ambulance Service, Inc., 369 NLRB No. 68
(2020). We shall also substitute a new notice to conform to the Order as
modified. Any remedy for the complaint allegation that the Respondent
violated Sec. 8(a)(3) and (1) by disciplining and discharging employee
Brian Hooker, other than for the August 12, 2016 verbal written warning,
will be determined upon remand. Given the remand, we shall also amend
the judge’s remedy to order the Respondent to rescind the unlawful uni-
lateral changes made to the terms and conditions of the employee serving
as the Union’s administrative assistant generally, rather than of Hooker
specifically.
6 We observe that the judge implicitly found that the Respondent was
aware of Hooker’s participation in an October 6, 2015 NLRB hearing at
the time that it made the decision to put him back on the technician work
schedule.
7 For items 2, 3, and 6, the judge found, and we agree, that the Re-
spondent did not rebut the presumptive relevance of the requested infor-
mation. In adopting the judge’s finding, we do not rely on the judge’s
suggestion that certain relevance objections would have been meritorious
had the Respondent raised them.
With respect to item 7 of the information request, the Respondent’s
contention that the judge erroneously found that it failed to provide in-
formation in response to requests not alleged in the complaint is without
merit. Complaint par. 17 summarizes most of the information requested
in item 7 but does not make specific reference to how the union activity
logs would be stored or who would have access to them. However, the
Respondent’s failure to respond to these specific inquiries was clearly
presented to and litigated before the judge, along with its failure to re-
spond to the other requests for information under item 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
authorized union representatives may be excused from
regular worktime to conduct union business under two cat-
egories of leave: company-paid time (MXUP) and union-
paid time (MXUU). Specifically, article 10 provides, in
relevant part, as follows:
Payment for Joint Meeting Time
10.05 For purposes of processing grievances, the Com-
pany agrees for authorized Union representatives to con-
fer with representatives of the Company without loss of
pay during such employees’ regularly scheduled work-
ing hours. In addition, such employees shall suffer no
loss in pay for time spent during such regularly sched-
uled working hours in traveling for grievance meetings.
All time so paid will be at the basic hourly wage rate plus
applicable differentials or premium rate, however, such
will not be paid at an overtime rate.
10.06 When the Company meets with a Union repre-
sentative(s) during such employee’s regularly scheduled
working hours for purposes other than the processing of
grievances and further agrees to pay for the time in-
volved, all time so paid will be at the basic hourly wage
rate plus applicable differentials or premium rate, how-
ever, such will not be paid at an overtime rate.
10.07 Employees who are excused in accordance with
the provisions of this Section and Article 8 (Collective
Bargaining Procedures), shall give their immediate Su-
pervisor reasonable advance notice of the intended ab-
sence and of the probable duration of the absence.
Absence for Union Business
10.08 The Company, insofar as work schedules permit,
agrees to grant to any employee who is an Officer or
properly designated representative of the Union reason-
able time off of up to one thousand and eighty (1,080)
hours during a calendar year, unless mutually agreed
otherwise, without pay, to transact business of the Un-
ion, provided that the Company is given reasonable ad-
vance notice of such absence.
Leave of Absence For Union Business
10.10 Subject to service requirements, an authorized
Union representative who requires time off of more than
one thousand and eighty (1,080) working hours during a
calendar year for Union business, may be granted a leave
of absence of not more than one (1) year upon request of
the Union provided, however, that the maximum num-
ber of employees who may be granted a leave of absence
shall not exceed forty (40) in a calendar year, unless oth-
erwise mutually agreed to. Requests for a leave of ab-
sence for Union business shall be made as far in advance
as possible. Such requests shall be submitted to the
Vice-President-Labor Relations or other designated La-
bor Relations representative to arrange for approval, and
such requests shall be granted provided all eligibility re-
quirements are met. At the request of the Union and fol-
lowing similar procedures, such a leave of absence may
be renewed on an annual basis. The total combined pe-
riod of all such leaves of absence will not exceed twenty-
four (24) years.
Since at least 2003, the Union has had several elected
officers and at least one appointed officer (the administra-
tive assistant or “AA”). Between at least 2003 and the
events of this case, there was an oral agreement between
the Respondent and the Union that employees serving as
union officers, including as AAs, would not work in the
load, meaning that their working hours were devoted en-
tirely to the performance of union-related duties (i.e.,
MXUP and MXUU time) rather than technician work. In
addition, the Respondent did not require these union offic-
ers to provide advance notice for their MXUP or MXUU
time.
Between 2010 and the date of his discharge, Brian
Hooker served as the Union’s AA. Pursuant to the parties’
oral agreement, upon his appointment as AA, Hooker be-
came a full-time union officer and stopped working in the
load.
In October 2015, the Respondent told the Union that it
would place Hooker back in the load and would also re-
quire him to fill out a union activity log. The Union ob-
jected, stating that such changes would both violate its
longstanding oral agreement with management and ad-
versely affect the Union’s ability to represent bargaining
unit employees. The Union requested bargaining over
these changes, but the Respondent refused.
In concluding that the Respondent violated Section
8(a)(5) and (1) by unilaterally placing Hooker back in the
load and by requiring him to fill out union activity logs,
the judge found, among other things, that the Union did
not waive its right to bargain over these changes. After
the issuance of the judge’s decision, however, the Board
issued its decision in MV Transportation, Inc., 368 NLRB
No. 66 (2019), overruling Provena St. Joseph Medical
Center, 350 NLRB 808 (2007), and holding that in deter-
mining whether an employer’s unilateral action is permit-
ted by a collective-bargaining agreement, the Board
should apply a “contract coverage” analysis.
Under the “contract coverage” standard adopted in MV
Transportation, the Board first examines the plain lan-
guage of a collective-bargaining agreement to determine
whether the action undertaken by the employer is encom-
passed within the provisions of the contract. More
MICHIGAN BELL TELEPHONE CO. 3
specifically, the question is whether the employer’s action
fell within the compass or scope of contractual language
granting the employer the right to take such action unilat-
erally.8 However, if the agreement does not cover the em-
ployer’s disputed action and that action materially, sub-
stantially, and significantly changed a term or condition of
employment, the employer will have violated Section
8(a)(5) and (1), unless it shows that the union clearly and
unmistakably waived its right to bargain over the change.9
The Board found it appropriate to apply the contract cov-
erage test retroactively. Id., slip op. at 12.
Here, the Respondent argues that article 10 granted it
the discretion to implement the unilateral changes at issue.
Applying MV Transportation, we find that the Respond-
ent’s argument is without merit. Although article 10
plainly covers how employees should record their union
time (and whether the Respondent or the Union is respon-
sible for compensating employees for that time), as well
as the employees’ right to take leaves of absence, it does
not cover an employee’s status as either a worker in the
load or a full-time union official.10 Rather, this status is
specifically controlled by the oral agreement between the
parties, an extra-contractual past practice that the Re-
spondent cannot change without giving the Union notice
and an opportunity to bargain. Furthermore, there is noth-
ing in these provisions that speaks in any way to recording
the details of MXUP or MXUU time in a log form, and the
Respondent has never before required its employees to
complete such a log. We therefore conclude that the Re-
spondent’s decision to return Hooker to the load and to fill
out union activity logs is not covered by the terms of arti-
cle 10.11
Because we find that the agreement does not cover the
disputed unilateral changes, we next consider whether the
Union waived its right to bargain over these material
changes to terms and conditions of employment. We find,
in agreement with the judge, that the Union did not waive
its right to bargain over these changes. The record
8 In undertaking this analysis, the Board will not require that the
agreement specifically mention, refer to, or address the employer deci-
sion at issue. MV Transportation, 368 NLRB No. 66, slip. op. at 11.
9 This analytical framework only applies to “cases in which an em-
ployer defends against an 8(a)(5) unilateral-change allegation by assert-
ing that contractual language privileged it to make the disputed change
without further bargaining.” Id., slip op. at 11.
10 The discretionary language contained in art. 10 with respect to
MXUP and MXUU appears to cover the one-off situation where an em-
ployee receives additional MXUP or MXUU for a particular meeting.
11 The Respondent also argues that art. 17 covers the changes made
here. We again disagree. Among other things, this article permits em-
ployees to select their work schedules by seniority whenever practical,
subject to the service requirements and business conditions established
by the Respondent. This article covers the selection of employees’
schedules, not their status as workers in the load or as full-time union
establishes that the Union continuously objected to these
changes and that the Respondent repeatedly ignored the
Union’s objections.
We therefore find that the Respondent violated Section
8(a)(5) and (1) by unilaterally placing Hooker back in the
load and requiring him to fill out union activity logs.12
II. CONFIDENTIALITY RULE
Since at least March 22, 2016, the Respondent has
maintained a confidentiality policy entitled, “Reporting
Privacy Related Incidents.” The policy states in relevant
part:
Pur-
pose
AT&T possesses sensitive, de-
tailed information about our em-
ployees and customers who rely
on us to safeguard that infor-
mation. Laws and regulations tell
us how to treat such data. Pre-
serving our employees’ and cus-
tomers’ trust by safeguarding
their private data is essential to
our reputation.
This policy outlines AT&T’s pro-
cess for reporting any potential
misuse or improper disclosure of
personal or confidential infor-
mation.
Defini-
tions
CPNI (Customer Proprietary
Network Information)—Infor-
mation about existing services
and service usage billed to the
customer. (e.g. account balance,
minutes used/unused, call details,
rate plan information, features)
PI/PII (Personal Infor-
mation/Personally Identifiable In-
formation)—Information that
officials. Nor does it cover the manner in which employees report the
details of their union time.
12 As the judge found, the written verbal warning issued to Hooker on
August 12, 2016, was the direct result of Hooker’s failure to submit ac-
tivity logs. Given that we find the Respondent’s unilateral decision to
require the submission of activity logs violated Sec. 8(a)(5) and (1), we
will order the Respondent to expunge this discipline from its files and to
notify Hooker that this has been done and that the discipline will not be
used against him in any way.
The complaint alleges that the August 12, 2016 discipline of Hooker
violated Sec. 8(a)(3). Assuming we were to find the violation as alleged,
the affirmative remedy would be the same as we are ordering here: ex-
pungement. Because an 8(a)(3) finding for the August 12 discipline
would not materially affect the remedy, we find it unnecessary to pass
on the allegation and exclude it from the scope of the remand.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
directly identifies or reasonably
can be used to figure out the iden-
tity of a customer or user, such as
your name, address, phone num-
ber and e-mail address. PI/PII
does not include published listing
information.
SPI (Sensitive Personal Infor-
mation)—Information that identi-
fies or can link to the customer,
which, if compromised, could
lead to identity theft. (e.g. social
security number, driver license
number, bank account number,
credit card number, PINs, pass-
words, passcodes, authentication
hints) SPI is a subset of PI/PII
that requires a higher degree of
protection by law.
Policy AT&T depends on our employees
to report improper use or disclo-
sure of customer or employee in-
formation. It is important that
employees report a potential data
privacy incident quickly and ap-
propriately to Asset Protection,
do not delay.
. . .
Examples of incidents to report to
Asset Protection:
 Suspected improper or fraud-
ulent use of customer or em-
ployee information
 Theft or loss of sensitive cus-
tomer or employee infor-
mation, including:
o Social Security Number,
any form of national ID,
date of birth, financial ac-
count information or other
SPI
o Outside the US—name,
address, phone number or
other PI/PII
13 Boeing Co., 365 NLRB No. 154 (2017). Under Boeing, a facially
neutral rule or policy must be evaluated in such a way as to strike a proper
balance between the asserted business justifications for the rule and the
 Accidental or intentional dis-
closure of sensitive customer
or employee information to
third party, including
o Social Security Number,
any form of national ID,
date of birth, financial
account information or
other SPI
o Customer call records,
billing information or
other CPNI
o Outside the US—name,
address, phone number
or other PI/PII
 Improper access to, or disclo-
sure of, employee medical in-
formation, health-related rec-
ords or other human resource
records
 Improper storage, disposal, or
retention of confidential
AT&T customer or employee
files or records
 Other customer or employee
privacy-related issues or inci-
dents that may negatively im-
pact employees or customers
or result in negative financial
and/or reputational conse-
quences to AT&T.
. . .
(Emphasis in original.)
Applying Boeing,13 the judge found that the policy is
unlawful. To begin, the judge first found that, because the
policy is facially neutral, the Boeing balancing test ap-
plies. Thereafter, the judge acknowledged that, because
the “definitions” section of the policy specifies the three
types of information that fall under the policy's non-dis-
closure requirement (specifically, CPNI, PI/PII, SPI), it is
unlikely that employees would construe the rule as apply-
ing to their wages and other terms and conditions of em-
ployment. He also acknowledged that the Respondent has
a strong and legitimate interest in protecting this infor-
mation from disclosure. Nevertheless, the judge found
that the inclusion of “other customer or employee privacy-
related issues or incidents that may negatively impact
invasion of employee rights in light of the Act and its policies, viewing
the rule or policy from the employees’ perspective. Id., slip op. at 3.
MICHIGAN BELL TELEPHONE CO. 5
employees or customers or result in negative financial
and/or reputational consequences to AT&T” as one of the
“[e]xamples of incidents to report” might lead employees
to believe that sharing information about their coworkers’
wages and benefits could subject them to discipline for en-
gaging in protected activity. The judge concluded that the
potentially adverse effects on protected activity out-
weighed the rule’s justification and could be cured by a
simple clarification in the policy.
We disagree that the confidentiality policy is unlawful.
As mentioned above, the judge recognized that the “defi-
nition” section in the policy specifies the three types of
information to which the disclosure requirements per-
tain—CPNI, PI/PII, and SPI. The judge further recog-
nized that the policy on its face clearly sets forth the reason
for the policy: to safeguard employees’ and customers’
private data in its possession and to report potential data
breaches promptly. The “[e]xamples of incidents” pro-
vided in the rule are consistent with this stated purpose. In
finding the rule unlawful, however, the judge seems to
have disregarded this context, and his own findings, and
instead relied exclusively on the potential breadth of the
last “[e]xample[] of incidents.”
It is well established that the Board, in evaluating the
legality of particular phrases set forth in rules or policies,
must not consider such phrases out of context, and we de-
cline to do so here. See Lutheran Heritage Village-Livo-
nia, 343 NLRB 646, 646 (2004) (stating that the Board
“must refrain from reading particular phrases in isola-
tion”). Accordingly, we conclude that a reasonable em-
ployee, reading the policy in its entirety, would understand
that the policy was intended to protect private information
maintained by the Respondent from potentially harmful
data breaches, not to prohibit or interfere with employees’
exercise of Section 7 rights.14
14 Therefore, this rule would be considered a “Category 1(a)” rule un-
der Boeing, 365 NLRB No. 154, slip op. at 4, 15, and LA Specialty Pro-
duce Co., 368 NLRB No. 93, slip op. at 2 fn. 2 (2019).
In the alternative, even if a reasonable employee would interpret the
confidentiality policy as potentially interfering with the exercise of Sec.
7 rights, as the judge found, we would still find the rule lawful under
Category 1(b). Any potential interference with Sec. 7 rights is slight
given the clear focus of the rule to prevent data breaches. On the other
side of the balance, the interests served by the policy are substantial and
compelling. The improper disclosure of this information can affect com-
panies, consumers, and employees in countless ways, not least of which
is exposure to significant financial loss. Thus, Federal and State data
security laws require companies like the Respondent to take reasonable
measures to protect against unauthorized access to or use of confidential
personal information. Therefore, we find that the Respondent’s interest
in protecting the privacy of its customer and employee information and
complying with Federal and State law in the event of a data breach
III. DISCIPLINE AND SUBSEQUENT DISCHARGE OF HOOKER
The judge found that the Respondent violated Section
8(a)(3) and (1) by disciplining and subsequently discharg-
ing Hooker. In making this determination, the judge con-
sidered every adverse action taken against Hooker in the
aggregate and, as a result, concluded that none of
Hooker’s disciplines nor his discharge would have oc-
curred but for the Respondent’s unlawful decision to place
Hooker back in the load and require an activity log. We
disagree with the judge’s conclusion.
The judge’s analysis was based on an assumption that
each act of disciplining Hooker following his return to the
load was de facto tainted by the Respondent’s animus in
placing him there in the first place. We find the cases cited
by the judge in support of this assumption distinguishable,
and we further note that the Board has never applied these
cases to confer an employee with general immunity from
discipline or discharge for all future misconduct—in prin-
ciple, until the employee either resigns or retires. Because
the judge assumed that all of Hooker’s disciplines and his
discharge were tainted by the Respondent’s unlawful de-
cision to put Hooker back in the load, he failed to make
specific findings or resolve conflicting testimony as to the
events surrounding each discipline.15 We find that these
specific findings, however, are necessary to decide the is-
sue of whether the Respondent’s disciplining of Hooker
was, as the Respondent contends, based on intentional
misconduct committed by Hooker rather than his union
activity. Therefore, we shall remand to the judge the issue
of whether the Respondent unlawfully disciplined and dis-
charged Hooker so that the judge can make the requisite
credibility determinations and factual findings.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 4 and 6 and renumber Con-
clusion of Law 5 accordingly.
significantly outweighs the slight impact this rule may have on the exer-
cise of employees’ Sec. 7 rights.
15 For instance, regarding Hooker’s February 11, 2016 warning for
misuse of time, the judge cited Hooker’s testimony that he did not re-
spond to his supervisor’s calls or texts because he had not read the in-
structions for how to operate his new cell phone. The Respondent ques-
tions this excuse, noting that Hooker was assigned a simple flip phone.
Likewise, with respect to Hooker’s February 14, 2016 warning for mis-
use of time, the judge cites Hooker’s testimony that he encountered a
type of job on which he had never before worked and spent time inspect-
ing the work before calling his supervisor. At the investigatory inter-
view, however, the judge notes that when asked by his supervisor what
he did in the three hours that morning, Hooker answered that he could
not remember. Similarly, there are questions surrounding Hooker’s May
10, 2016 discipline as to whether the relevant facts and testimony support
his version of events that his GPS device fell out or the Respondent’s
claim that Hooker intentionally removed it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ORDER
The National Labor Relations Board orders that the Re-
spondents, Michigan Bell Telephone Company and
AT&T Services, Inc., Grand Rapids, Michigan, a joint
employer, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally changing the terms and conditions of
employment of its unit employees.
(b) Changing the terms and conditions of employment
of its unit employees or otherwise discriminating against
them for supporting Local 4034, Communications Work-
ers of America (CWA), AFL–CIO (the Union) or any
other labor organization.
(c) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining rep-
resentative of the Respondent’s unit employees.
(d) In any like or related manner interfering with, re-
straining, 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 requirements that the Union’s adminis-
trative assistant perform technician work and fill out union
activity logs.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of em-
ployees in the following bargaining unit:
All employees whose job titles and locations are in-
cluded in Appendix B of the collective bargaining agree-
ment between Respondents and the International Union,
which is effective for the period of April 15, 2015,
through April 14, 2018, excluding confidential employ-
ees, guards, and supervisors as defined by the Act.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the August 12, 2016 written
verbal warning of Brian Hooker, and within 3 days there-
after, notify him in writing that this has been done and that
the warning will not be used against him in any way.
16 If the facilities involved in these proceedings are open and staffed
by a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facilities involved in
these proceedings are closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facilities reopen and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
(d) To the extent it has not already done so, furnish to
the Union in a timely manner the information requested by
the Union on December 23, 2015, and May 26, 2016.
(e) Post at their facilities in Michigan where the Union
represents technician Copies of the attached s c notice
marked “Appendix.”16 Copies of the notice, on forms pro-
vided by the Regional Director for Region 7, after being
signed by the Respondents’ authorized representative,
shall be posted by the Respondents and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondents customarily communi-
cate with their employees by such means. Reasonable
steps shall be taken by the Respondents 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 Respondents have gone out of business
or closed the facility involved in these proceedings, the
Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since December 13, 2015.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondents have taken to comply.
IT IS FURTHER ORDERED that the allegation that the Re-
spondent violated Section 8(a)(3) and (1) by disciplining
and discharging Hooker, other than the August 12, 2016
written verbal warning, is severed and remanded to Ad-
ministrative Law Judge Ira Sandron for further appropri-
ate action as set forth above.
IT IS FURTHER ORDERED that the judge shall prepare a
supplemental decision setting forth credibility resolutions,
findings of fact, conclusions of law, and a recommended
Order. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Section
102.46 of the Board’s Rules and Regulations shall be ap-
plicable.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
MICHIGAN BELL TELEPHONE CO. 7
Dated, Washington, D.C. July 17, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT change your terms and conditions of em-
ployment without first notifying Local 4034, Communica-
tions Workers of America (CWA), AFL–CIO (the Union)
and giving it an opportunity to bargain.
WE WILL NOT change your terms and conditions of em-
ployment or otherwise discriminate against you for sup-
porting the Union or any other labor organization.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the requirements that the Union’s ad-
ministrative assistant perform technician work and fill out
union activity logs.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All employees whose job titles and locations are in-
cluded in Appendix B of the collective bargaining agree-
ment between Respondents and the International Union,
which is effective for the period of April 15, 2015,
through April 14, 2018, excluding confidential employ-
ees, guards, and supervisors as defined by the Act.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the August
12, 2016 written verbal warning of Brian Hooker, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the warning will not be used
against him in any way.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on December 23,
2015, and May 26, 2016.
MICHIGAN BELL TELEPHONE COMPANY, AND
AT&T SERVICES, INC., JOINT EMPLOYERS
The Board’s decision can be found at www.nlrb.gov/case/07-
CA-161545 or by using the QR code below. Alternatively,
you can obtain a copy of the decision from the Executive Sec-
retary, National Labor Relations Board, 1015 Half Street,
S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
Steven E. Carlson, Esq., for the General Counsel.
Stephen J. Sferra and Jeffrey A. Seidle, Esqs. (Littler
Mendelson, P.C.), and John M. Phelan, Esq., for the Re-
spondents.
Michael L. Fayette, Esq. (Pinsky, Smith, Fayette &Kennedy,
LLP), for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This matter is be-
fore me on a second amended consolidated complaint and notice
of hearing (the complaint) issued on February 27, 2017, arising
from unfair labor practice charges that Local 4034, Communica-
tions Workers of America (CWA), AFL–CIO (the Union or the
Local) filed against Michigan Bell Telephone Company, and
AT&T Services, Inc., Joint Employers (the Respondent or the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Company).1
Pursuant to notice, I conducted a trial in Grand Rapids, Mich-
igan, on August 15–17, October 30–November 3, and December
11–15, 2017, at which I afforded the parties a full opportunity to
be heard, to examine and cross-examine witnesses, and to intro-
duce evidence.
Issues
(1) Did the Respondent, by requiring Administrative Assis-
tant Brian Hooker to resume performing work as a technician
(tech) in the workload on December 13, 2015, and to fill out a
union activity log, retaliate against him for his activities on be-
half of the Union and/or make unilateral changes in a mandatory
subject of bargaining without giving the Union notice and an op-
portunity to bargain?
(2) Since about December 23, 2015, did the Respondent fail
and refuse to furnish the Union with relevant information that it
requested (RFI) pertaining to Hooker’s grievance for being
placed back in the workload and having to submit union activity
logs?
(3) Did the Respondent retaliate against Hooker for his union
activities by taking the following adverse actions against him:
(A) Written warning—March 3, 2016.2
(B) Suspension—April 27.
(C) Final written warning/suspension—May 10.
(D) Final written warning/suspension—May 10.
(E) Written verbal warning—August 12.
(F) Counseling—September 6.
(G) Counseling—September 6.
(H) Verbal warning—September 6.
(I) Suspension pending discharge – October 10.
(J) Discharge—October 13.
(1) Since about April 8 and about May 26, did the Respondent
fail and refuse to furnish the Union with relevant information
that it requested pertaining to a grievance regarding the Com-
pany’s “swapping” of assigned trucks between Hooker and two
other techs on February 28?
(2) Since at least March 22, has the Respondent maintained a
corporate confidentiality policy entitled “Reporting Privacy Re-
lated Incidents” that contravenes the Board’s test in Boeing Co.,
365 NLRB No. 154 (2017)?
At trial, counsel for the General Counsel (the General Coun-
sel) orally withdrew Paragraphs 9, 15, and 16 of the Complaint.
For reasons to be stated, I conclude the following:
(1) The Respondent violated both Section 8(a)(3) and (5) of
the Act by putting Hooker back in the load and requiring him to
fill out union activity logs.
(2) The Respondent violated the Act by issuing Hooker the
various disciplines listed above, which never would have arisen
had the Respondent not unlawfully placed him back in the load.
I point out that I am not an arbitrator with the discretion to weigh
the equities in fashioning a remedy that I would find ideal.
1 The Respondents admitted joint employer status for purposes of this
case, and they were generally referenced as one entity throughout the
course of the trial. Unless the distinction is otherwise relevant, I will
henceforth refer to them in the singular.
(3) The Respondent violated the Act with regard to part of the
RFI regarding placing Hooker in the load and requiring him to
submit weekly union activity logs.
(4) The Respondent violated the Act as to the second truck
swap RFI but not the first such RFI.
(5) The Respondent’s confidentiality policy violated the Act.
Wtnesses and Credibility
The General Counsel called:
(1) Brian Hooker.
(2) Local President Ronald Letts.
(3) Chief Steward Cardesian Campbell, who testified on: (A)
his interaction with Hooker on a job on September 20 and what
he told Manager Andrew Sharp thereon at an investigatory in-
terview on September 22; and (B) what he stated during an as-
set protection investigation of what Brash averred was
Hooker’s misuse of the GPS in his truck.
The Respondent called:
(1) George Mrla, Director of Technical Field Services (TFS)
for Michigan.
(2) Area Manager Ted Brash.
(3) Manager Andrew Sharp, Hooker’s first-line supervisor
since November 2015.
(4) Manager Jeffrey Osterberg, who testified about his obser-
vations of Hooker and his GPS on April 24.
(5) Judy Vilik, asset protection manager, who conducted the
GPS investigation.
(6) Gary Smith, AT&T’s national assistant vice president of
compliance operations, who testified on the confidentiality pol-
icy. His credibility is not at issue.
In making credibility resolutions, I have considered several
established precepts. The first is that a witness may be found
partially credible; the mere fact that the witness is discredited on
one point does not automatically mean that he or she must be
discredited in all respects. Golden Hours Convalescent Hospi-
tals, 182 NLRB 796, 799 (1970). Rather, a witness’ testimony
is appropriately weighed with the evidence as a whole and eval-
uated for plausibility. Id. at 798–799; see also MEMC Electronic
Materials, Inc., 342 NLRB 1172, 1183 fn. 13 (2004), quoting
Americare Pine Lodge Nursing, 325 NLRB 98, 98 fn. 1 (1997),
enf. granted in part, denied in part 164 F.3d 867 (4th Cir. 1999);
Excel Container, 325 NLRB 17, 17 fn. 1 (1997). As Chief Judge
Learned Hand stated in NLRB v. Universal Camera Corp., 179
F.2d 749, 754 (2d Cir. 1950), regarding witness testimony,
“[N]othing is more common in all kinds of judicial decisions
than to believe some and not all.” Here, many witnesses were
reliable on some matters but not on others.
Secondly, an adverse inference is appropriate when a witness
was not questioned about potentially damaging statements at-
tributed to him or her. L.S.F. Transportation, Inc., 330 NLRB
1054, 1063 fn. 11 (2000); Asarco, Inc., 316 NLRB 636, 640 fn.
15 (1995), modified on other grounds 86 F.3d 1401 (5th Cir.
2 All dates hereinafter occurred in 2016 unless otherwise indicated
expressly or clear by context.
MICHIGAN BELL TELEPHONE CO. 9
1996). More broadly, several witnesses were not questioned
about certain events in which they were involved, and I have
generally credited the uncontroverted testimony of opposing wit-
nesses.
Finally, when credibility resolution is not based on observa-
tions of witnesses’ testimonial demeanor, the choice between
conflicting testimonies rests on the weight of the evidence, es-
tablished or admitted facts, inherent probabilities, and reasona-
ble inferences drawn from the record as a whole. Taylor Motors,
Inc., 366 NLRB No. 69, slip op. 1 at fn. 3 (2018); Lignotock
Corp., 298 NLRB 209, 209 fn. 1 (1990).
I have taken into account the many events that occurred over
a long period of time, and the natural inability of witnesses to
recall every detail in such circumstances. In some cases, how-
ever, professed lack of recall was not believable, particularly
when opposing witnesses offered detailed and credible testi-
mony. I now turn to particular witnesses.
Hooker was partially credible, candid and plausible on certain
subjects but not on others. Thus, Hooker was quite frank in ad-
mitting that he used intemperate language in conversations with
Mrla. He testified that when Mrla talked to him in January 2014
about his going back in the load, he responded that Letts was his
other boss and “that’s the person you have to check with to get
me to put my ass in a truck.” In a mid-August 2015 conversation
about a grievance Hooker had filed on the discipline of employ-
ees for driving while talking on their cell phones, he told Mrla
that “if he was goddamn in love with keeping employees safe,”
he should instruct his managers not to drive all over the place
talking on the phone or texting. Such candor and lack of attempt
to downplay or minimize the immoderate language he used with
a high-level manager bolsters his credibility.
However, Hooker testified unevenly, with certainty and in
considerable detail on some conversations but very vaguely or
not at all on others. Notably, he offered no testimony on several
conversations to which Brash and Sharp testified in detail.
Certain aspects of Hooker’s testimony lacked credulity. Alt-
hough Hooker testified that he submitted activity logs in Janu-
ary–March, he claimed that he did not retain copies of them. I
find this wholly implausible in light of Hooker’s fastidious care-
fulness in documenting all of his other contacts with manage-
ment, no doubt stemming from what he viewed as the Respond-
ent’s hostility toward him because of his union activities.
Hooker testified that at a first-step grievance meeting on
March 8 concerning the truck swap, Sharp commented that
Campbell was “arguably the best technician in the whole dis-
trict.” Sharp, on the other hand, testified that he stated that
Campbell was the most qualified technician in his crew but that
he lacked knowledge of the skill levels of techs in the nine other
garages in the district. I find Sharp’s version more plausible and
credit it over Hooker’s, noting that Campbell, who was present
at the meeting, offered no testimony on the subject.
Finally, Hooker’s contradictory testimony concerning prob-
lems that he had accessing his tools prior to April 10 sheds doubt
on his version of what occurred that day. More generally, even
taking into account Hooker’s absence from the workload for
many years, he reported to management a suspiciously high
number of obstacles that he encountered in performing his work.
Letts testified credibly and consistently on direct and cross
examination, and I generally credit his testimony. In this regard,
Letts candidly testified that managers, including Area Manager
Mike Jarema, had voiced issues with Hooker’s conduct as ad-
ministrative assistant going back to 2012. However, as to several
conversations he had with management, their accounts were con-
siderably more detailed than his, and I credit them.
Campbell’s limited testimony was also credible and did not
seem designed to skew the facts. Thus, he testified that when he
had the truck, the GPS became loose but never fell out, partially
but not necessarily fully supporting Hooker’s assertion that it be-
came completely dislodged.
I credit Campbell’s version of what he told Vilik on about
April 26, during her asset protection investigation; that when he
first got the truck, he had bumped the new GPS a couple of times,
and it had become lose and needed to be plugged back in. Firstly,
his testimony was consistent with Osterberg, who testified that
techs have called him and said their GPS was loose and that he
told them to plug it back in; and with an April 19 form email to
Sharp and Brash from Etech Texas, the GPS vendor that services
the GPS units. It stated that one reason Hooker’s GPS could
have stopped working on February 28 was that driver usage
could sometimes partially dislodge the device. Secondly, for
reasons to be stated, Vilik was not a reliable witness on what
Campbell told her.
I also credit Campbell as to what he told Sharp at an investi-
gatory interview on September 22 regarding Hooker’s work on
September 20: that Hooker’s misdiagnosis of a problem on the
job that Campbell ended up completing was an easy one to make
because of the nature of the problem. Sharp, on the other hand,
could not recall if Hooker or Campbell said anything along those
lines, and therefore did not deny Campbell’s account, and
Sharp’s notes of the meeting say at the end, “spotty notes.” (R.
Exh. 62 at 2.)
Mrla was in many respects an unreliable witness, and I largely
credit other witnesses where their testimony diverged from his.
Mrla testified that Hooker called him in mid-August 2015 con-
cerning the Flores grievance. However, Hooker’s cell phone rec-
ords corroborated Hooker’s testimony that Mrla called him. For
this reason, and because Hooker’s account was considerably
more detailed and more plausible based on other record evi-
dence, I credit it over Mrla’s abbreviated and sanitized version.
Mrla testified at one point that he only learned in mid-Septem-
ber 2015 that Hooker was not on the vacation schedule, when
Brash so informed him. However, he later testified that in March
2014, he had determined that Hooker should be on both work
and vacation schedules. In this regard, in early 2014 he raised to
both Letts and Hooker the subject of Hooker being placed back
in the load. His testimony on this subject was therefore unrelia-
ble.
Although Mrla recalled telephone conversations with Hooker
in 2014 and around August 2015, he professed not to recall a
telephone conversation with him in early October 2015, a day
before Hooker was scheduled to testify in an unfair labor practice
proceeding. Hooker’s cell phone records show that Mrla called
him on October 5, 2015, at 2:05 p.m., and I credit Hooker that
Mrla stated that the Company had to get him a truck and tools to
get him back to work.
Despite Brash’s testimony and what the parties stipulated was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
in Brash’s notes of an October 23, 2015 management-union
meeting, Mrla professed not to recall stating at the meeting that
Hooker made an RFI to harass the Company.
Mrla was initially evasive in answering whether he would
have put Hooker back in the workload had Hooker been elected
rather than appointed as administrative assistant, but he eventu-
ally stated that his main concern was that Hooker was the only
appointed official in his organization on full-time union status
and that fairness to other stewards was his paramount consider-
ation. In this regard, Mrla equivocated on the role that workload
needs played in the decision to put Hooker in the load in 2015,
but he ultimately testified that he “wanted” but did not need
Hooker in the load and that he would have put Hooker in the load
in 2015 regardless of the amount of rehabilitation work that the
Company was performing at the time.3
Brash had a generally good recall in light of the many inci-
dents about which he testified and was candid on certain matters.
For example, regarding the October 23, 2015 meeting, Brash tes-
tified that Mrla stated that the decision to put Hooker back in the
load was nonnegotiable, and that he thought the RFI Hooker had
made was “intentionally burdensome” and “for harassment.”
Moreover, Brash’s testimony was not always fully consistent
with Mrla’s.
Brash’s testimony did have the following flaws. Most nota-
bly, on direct examination, Brash equivocated on whether he
made the comment at the October 23, 2015 meeting that “Mr.
Hooker was difficult to deal with,” but he then added that he said
Hooker “liked to yell a lot in grievance meetings. I said it wasn’t
helpful to the procedure.” However, on cross-examination, he
backtracked, stating that he could not recall making such state-
ments. This apparent attempt to recant his earlier testimony
raises questions about his candor. I credit his earlier account,
noting that it was similar to the statements that Letts attributed
to him and that Mrla offered no testimony thereon. Additionally,
Brash offered no explanation for why he did not provide to Vilik
the Etech Texas email referenced above.
Sharp had a generally very good recall and testified in greater
detail on a more consistent basis than any other major witness.
To the extent that Hooker did not rebut Sharp’s accounts of cer-
tain conversations that they had, I credit him. However, on two
matters, Sharp’s testimony was questionable. Firstly, he testified
that when he introduced himself to Hooker as the new supervisor
of the garage and laid out his goals, Hooker stated, “I will abso-
lutely never work with anyone with the Company” or “I refuse
to work with . . . anyone from the Company,” and that Sharp did
not respond. Granted, the record demonstrates that Hooker could
be far from tactful, but I am skeptical that he would have made
such an outrageous statement at the outset of their relationship.
Moreover, based on Sharp’s demeanor and record evidence,
Sharp struck me as an assertive individual who would not have
let such a statement go by without any response. Also, as noted
above, Sharp, despite his generally very good recall, testified that
he could not remember if Hooker or Campbell said anything on
September 22 along the lines that Hooker’s misdiagnosis on
3 Tr. 2589, 2670. Brash similarly testified that management wanted,
but did not need, to place Hooker in the load and that the work volume
in 2015 vis-à-vis prior years had no effect on their decision. Tr. 1042,
September 20 was an error easy to make.
Turning to Osterberg, I have no reason to question Osterberg’s
truthfulness in reporting what he observed on April 24. I do have
a serious issue concerning his testimony about what Brash in-
structed him to do that day and why. According to both Brash
and Osterberg, Brash told him there was an open asset protection
investigation of Hooker’s use of his GPS, and he directed Oster-
berg to observe Hooker, pull his GPS, and make sure that it was
working.
Osterberg testified that Brash gave him no specific instruc-
tions about how to accomplish this and that he made the decision
on his own to observe Hooker’s work throughout the day. Re-
spondent’s Exhibit 43(a) reflects that Osterberg’s observations
went far beyond the scope of anything relating to the GPS by
encompassing everything that Hooker did, minute-by-minute. I
highly doubt that Osterberg as a first-line supervisor would have
sua sponte engaged in such lengthy and detailed observation un-
less Brash, his manager, directed him to do so. Moreover, Brash
later asked him to prepare a detailed timeline of everything that
he observed Hooker do that day. I note, too, Vilik’s testimony
that she could not recall ever before seeing such a detailed report
describing what an individual did on a daily basis—an indication
that this was highly unusual.
Significantly, Osterberg testified that he had no reason to go
to the jobsite to check if Hooker’s GPS was working because he
located Hooker at the jobsite through U-Dash, which is linked to
the GPS. Furthermore, Osterberg admitted on cross-examina-
tion that he did not need to be at a worksite to see if Hooker’s
GPS was reporting; he could have checked that in his Lansing
office as long as he had internet service. Lastly, Osterberg had
no explanation for why Vilik stated in her notes (R. Exh. 67 at
5) that “Osterberg stated he went to the office and ran the VTS
report for Hooker’s vehicle at various times throughout the late
morning and early afternoon and found the VTS had not reported
since 10:19 a.m. . . .”
As to Vilik, I find wholly baffling why she, a trained investi-
gator, meticulously recorded in her notes what various witnesses
reported to her yet failed to mention whatsoever therein, or in her
report, the telephone conversation she had with Campbell on
about April 26. She admitted that she had “no reason” not to put
it in her report. Significantly, she failed to deny Campbell’s tes-
timony about what he told her but averred lack of recall. I there-
fore specifically discredit her testimony that Campbell told her
that he had experienced no problems with the GPS. I also find
somewhat suspicious her failure to document in her notes any-
thing that was said in her conversation with Mrla when he called
her on April 19, and her testimony that she could recall nothing
of their conversation. On the other hand, I do credit her detailed
account of her investigatory meeting with Hooker on April 27,
about which Hooker did not testify and therefore failed to refute.
I will discuss other incident-specific credibility determina-
tions below.
Facts
Based on the entire record, including testimony and my
1816–1817. Such testimony fatally undercuts any contention that work-
load factors were of any major concern. Accordingly, I reject any claims
by the Respondent that they were, and I will not further address them.
MICHIGAN BELL TELEPHONE CO. 11
observations of witness demeanor, documents, written and oral
stipulations, and the thoughtful posttrial briefs that the General
Counsel, the Union, and the Respondent filed, I find the follow-
ing. All written communications were by email unless otherwise
specified. I will not overburden the reader by including a verba-
tim account of every single instance of what can best be de-
scribed as an ongoing war between Hooker and the Local and
company management.
At all times material, the Respondents have been corporations
with an office and facilities in Grand Rapids, Michigan, engaged
in providing a range of nonretail telecommunications services.
The Respondents have admitted jurisdiction as alleged in the
complaint, and I so find.
In August 2016, the Respondent created the Technical Field
Services (TFS) organization, in which two groups of technicians
(techs) were placed. One group consisted of techs who per-
formed work on the Respondent’s network infrastructure, in-
cluding the installation and repair of non-accessible cable. These
techs had previously worked for Network Infrastructure Busi-
ness Services (NIBS).4
A TFS tech “in the load” is on the work schedule to perform
either (1) demand work—customer service problems; or (2) non-
demand work or rehab—bad plants conditions (BFCs) or some-
thing wrong in the network that does not affect service. “In the
load” also refers to being on the work schedule. Techs bid on
the work schedule in order of seniority, in 5-week increments.
They can select different schedules weekly. The standard or reg-
ular shift is Monday through Friday, 8 a.m. to 4:30 or 4:45 p.m.
(depending on the length of the lunch break). There are also “off
shifts,” either Monday through Friday starting at 10 a.m. (late
shift) or shifts that include working on a Saturday or Sunday.
Techs also bid in order of seniority on the vacation schedule for
the coming calendar year, normally starting in about October.
Only a certain percentage of techs can be off any given week,
depending on the anticipated workload.
George Mrla, based in Detroit, was director of NIBS since
January 2014 and then became director of TFS. At all times, he
has had responsibility over all of Michigan. Nine to 12 area man-
agers, approximately 100 first-line supervisors (managers), and
1400 employees have reported to him. Ted Brash has been a
TFS area manager since April 2015, with responsibility over sev-
eral garages, including the one on 36th Street in Grand Rapids
(the garage), where Hooker was based; and others in Comstock
Park (Grand Rapids), Howell, and Lansing, Michigan. In No-
vember 2015, Andrew Sharp replaced Sidney Bragg as manager
of the garage and assumed direct supervision of about 14 techni-
cians, including Hooker. Jeffrey Osterberg has been manager of
the Lansing garage since March 2014.
For many years, the Communications Workers of America,
AFL–CIO (CWA), has been the collective-bargaining repre-
sentative for unit employees who work in the Respondent’s op-
erations throughout Michigan. CWA District 4 is a geographical
subdivision of CWA. One of its locals is Local 4034 (the Union
or the Local), which represents about 450 of the Respondent’s
4 For additional details about the various organizational changes
made since January 1, 2014, see Jt. Exh. 1 at 2, as well as Jt. Exh. 2, a
stipulated glossary of terms.
employees, including those in TFS, in central and west Michi-
gan.
The Respondents and other affiliated entities have been par-
ties with the CWA to a series of collective-bargaining agree-
ments (CBAs) through the years. The parties’ most recent CBA
(GC Exh. 2), effective April 12, 2015, through April 14, 2018,
covers bargaining-unit employees who work in the Respondents’
network telephone operations throughout the traditional five-
state “Midwest” region that includes Michigan (see Appendix B
of the CBA).
Article 10, Union Officers and Representatives, contains pro-
visions regarding union representatives getting excused time to
conduct union business under two categories, Company paid and
Union paid:
(Company) Payment for Joint Meeting Time (MXUP)5
Art. 10.05—“For purposes of processing grievances,
the Company agrees for authorized Union representatives
to confer with representatives of the Company without loss
of pay during such employees’ regularly scheduled working
hours,” including traveling for grievance meetings.
Art. 10.06—“When the Company meets with a Union repre-
sentative(s) during such employee’[s] regularly scheduled
working hours for purposes other than the processing of griev-
ances and further agrees to pay for the time involved,” the em-
ployee will be paid.
Art. 10.07—“Employees who are excused in accord-
ance with the provisions of this Section . . . shall give their
immediate Supervisor reasonable advance notice of the in-
tended absence and of the probable duration of the ab-
sence.”
(Union paid) Absence for Union Business (MXUU)
Art. 10.08—“The Company, insofar as work schedules
permit, agrees to grant to any employee who is an Officer
or properly designated representative of the Union reason-
able time off up to [1,080] hours during a calendar year,
unless mutually agreed otherwise, without pay, to transact
business of the Union, provided that the Company is given
reasonable advance notice of such absence.”
The GCAS system is the Company’s timekeeping attendance
report that all employees complete daily. It contains employee
records, including benefits and vacation information. Employ-
ees performing union business input in GCAS as nonproduction
exempted or excepted time MXUP and MXUU, in quarter-hour
increments, and assign a specific activity code for the MXUP
(see GC Exh. 5, a sample screenshot).
The Local’s membership elects its officers: President Ryan
Letts, Executive Vice President Pam Beach, and Secretary-
Treasurer Ralph Prince. Since encumbering those positions,
they have been on union business full-time and performed no
work for the Company. Letts and Prince are in Mrla’s organiza-
tion; Beach is not. The Local’s president appoints chief stewards
5 Such meetings include full committee, joint, disciplinary, and in-
vestigatory meetings (Letts’ uncontroverted testimony).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
and stewards, whereas lead stewards are elected annually by
their work group peers. See General Counsel’s Exhibit 4, a list
of the local’s officers and other representatives as of July 2017.
The Local president also appoints to the administrative assis-
tant (AA) position in the Local. No other local representing em-
ployees in Mrla’s district has had an AA position (see R. Exhs.
23, 25). Letts became an AA in late 2003 and served in that
position until he became president in late 2010. At around the
same time, Beach, the other AA, became executive vice presi-
dent, and Letts appointed Hooker AA. Prior to Hooker being
placed in the load in 2015, everyone in the AA position going
back at least as far as Letts in late 2003 was on full-time union
business status.
Hooker’s Employment Prior to December 2015
Hooker began employment with the Company in 1996 and
was a field tech in TFS or its predecessors for about 12 years
until his discharge on October 13. Prior to his appointment as
AA in late 2010, Hooker had served as a steward, lead steward,
and chief steward, starting in 1999. In all of these positions, he
occasionally worked in the load. He did not normally give his
supervisor advance notice for MXUP time but rather did so more
casually at the last minute, depending on when he learned of a
meeting. When Hooker was appointed AA in 2010, he became
full-time union, and management took him off the workload and
vacation schedules.
As the AA, Hooker engaged in a wide range of duties, includ-
ing editing the newspaper; developing and administering the
website; directing social media; streamlining grievance pro-
cessing; training stewards; chairing all second-step grievance
meetings and assisting Letts at third step grievance meetings; and
involvement in NLRB, other administrative proceedings, and ar-
bitrations. Letts assigned him at times to assist other locals in
those functions. In late 2013 or 2014, District 4 appointed him
as safety coordinator for CWA locals in Michigan, and around
the same time, the CWA appointed him as a part-time health and
safety instructor for locals in the Midwest and nationally.
Hooker’s only reporting requirement was to enter his union
time in GCAS, as described above. He was never denied MXUP
and never had to give advanced notice for either MXUP or
MXUU time, comporting with the practice of the Local’s other
full-time union officers. If Hooker was out of town on travel
and had no access to GCAS, he called his supervisor and asked
him to input Hooker’s MXUP and MXUU time. Hooker coded
phone calls from managers as MXUP, depending on their sub-
stance, but preparing for grievance meetings or preparing RFIs
he coded as MXUU.
Events Prior to December 2015
On January 3, 2014, Mrla called Hooker (see GC Exh. 81) and
introduced himself as the new TFS manager for Michigan. I
credit Hooker’s considerably more detailed account of their con-
versation, as follows, noting that Mrla’s more summary version
was not necessarily inconsistent. Mrla stated that he was think-
ing that Hooker would really do well if he got some training and
a new truck and could be in the load. Hooker sarcastically
6 Tr. 408.
7 Ibid.
replied that sounded “awesome,” but he would have to check
with his boss.6 Mrla said that he was Hooker’s boss, and Hooker
replied that Letts was his other boss and “that’s the person you
have to check with to get me to put my ass in a truck.”7
In March 2014, Mrla first raised with the Union the subject of
changing Hooker’s status from full-time union, in a phone call
with Letts that Mrla initiated. Letts’ testimony was rather
sketchy and did not address anything that Mrla specifically said
about Hooker. Mrla, on the other hand, gave a detailed and fully
coherent account, and I credit it where there were differences in
their versions. Mrla asked Letts why Hooker was not in the
workload, to which Letts answered that was the way his organi-
zation was set up and that the AA was always excused from the
workload. Mrla asked if there was a local agreement some-
where, and Letts replied that there was no written agreement, but
it was just agreed upon. Mrla stated that he considered the AA
to have the responsibilities of a chief steward and that his expe-
rience was that anybody in the position was in the workload. The
call ended with Mrla saying that they needed to start planning to
get Hooker in the load and that the matter would be revisited
later. Mrla testified that he took no action to follow up on this
because he had other priorities.
On May 11, 2015, Lansing technician Ronald Flores was in-
volved in a motor vehicle accident. As part of the accident in-
vestigation, Brash followed his practice of pulling VTS records
(GPS report) and Flores’ cell phone usage records (COU report)
for the entire day. As a result, management determined that dur-
ing that day, Flores had been talking on his mobile phone while
driving. At the investigatory interview, Flores admitted this, and
for that offense he received a written warning and 1-day suspen-
sion for violation of safety standards (GC Exh. 36). At around
this time, another employee at the same garage admitted to the
same misconduct and received the same discipline. Brash testi-
fied that the disciplines were based on the employees’ admis-
sions, not on company records.
On June 1, Prince filed a grievance and RFI regarding Flores’
warning and suspension (the Flores grievance) (GC Exh 37) con-
cerning the Company’s use of monitoring equipment to look at
an employee’s activity the entire day on which a motor vehicle
accident occurred. The grievance was denied on July 15 at the
first step.
On August 10, Mrla called Hooker (see GC Exh. 82, Hooker’s
phone records). Mrla began their conversation with, “What the
hell is going on with all of this crap I’m hearing about your ob-
jections to—to making your members safer by making sure
they’re not driving with cell phones?”8 Hooker responded that
the policy conflicted with a memorandum of understanding in
the CBA on employee monitoring, and might discourage an em-
ployee from reporting an injury or an accident. Mrla replied that
he did not agree, and he said that Hooker was being stubborn and
that he (Mrla), unlike Hooker was trying to keep the employees
safe. Hooker responded that “if [Mrla] was goddamn in love
with keeping employees safe,” he should instruct his managers
not to drive all over the place talking on the phone or texting.9
Mrla stated that Hooker had raised a good point and he would do
8 Tr. 378.
9 Ibid.
MICHIGAN BELL TELEPHONE CO. 13
so.
On August 13, Hooker filed a voluminous RFI (GC Exh. 38)
regarding the Flores grievance, consisting of over 2-1/2 pages of
single-spaced items and requesting, inter alia, detailed infor-
mation about the monitoring technology operator training, mon-
itor technology data, monitor technology accuracy, and a com-
plete list of all employees who were involved in a motor-vehicle
accident or occupational injury within the geography covered by
the Midwest CBA (five-state region) for the last 3 years.
On September 24, Steward Eric Buker reported to Hooker
conversations that he had had with Jarema and Manager Don
Amante (see R. Exh. 21). None of the three testified. The fol-
lowing day, when Hooker and Buker were speaking before work,
Jarema interrupted them and asked Buker to confirm that Jarema
had not denied him a steward. Later that morning, Jarema asked
Hooker to come to his office for a few minutes, but Hooker said
that he could not do so because he had a scheduled meeting.
Jarema asked with whom he was meeting, and Hooker replied
that was confidential. After Amante began the regular morning
meeting, Jarema returned and warned Hooker not to interrupt the
meeting.1010
An unfair labor practice hearing was scheduled on October 6
in Case 07–CA–150005, on charges that Hooker had filed alleg-
ing that the Company had unlawfully failed to provide requested
information to the Union (see GC Exh. 41, the transcript). A day
before the hearing, Mrla called Hooker (see GC Exh. 82). I
credit Hooker’s unrebutted account that Mrla stated that he had
to get Hooker a truck and some tools and back on a truck.
On October 6, Hooker testified at the hearing. During the
course of the trial, Area Manager Mike Ten Harmsel and Andrew
Maki, another manager, characterized Hooker’s behavior and de-
meanor in his meetings with managers as intimidating and bul-
lying.
The following day, Letts spoke by phone with Mrla, who said
that he wanted to talk about Hooker’s union status. Their ver-
sions of the conversation were substantially consistent, with no
conflicting additional details, and the following is a composite.
Mrla stated that Hooker was the only appointed union official in
his entire organization not working in the load and that he was
going to be put on the work schedule like every other appointed
steward. Letts asked if they could negotiate, and Mrla replied
no. Letts objected, stating that there was no distinction in the
CBA between elected and appointed, and he pointed out that
Hooker took phone calls and had meetings. Mrla replied that
phone calls were not MXUP under the contract and that MXUP
required face-to-face meetings. Letts asked if company labor re-
lations (LR) was on board, and Mrla replied that he had read the
contract and talked with LR. Mrla further stated that Hooker, as
did other stewards, would have to tell the Company with whom
he was meeting, where, and the duration of the meeting, for
MXUP payroll verification purposes. Mrla suggested that they
have regular monthly meetings, and Letts agreed.
Before this, Letts had always reported as MXUP phone calls
with managers in which they discussed work-related matters or
grievances. He based this on practice, not on any specific
10 Management, including Jarema, had complained to Letts about
Hooker’s conduct as AA as far back as 2012.
provision in the CBA.
In a mid-October regular planning call with his area managers,
Mrla polled them on whether they had a nonelected union offi-
cial excused full-time from the load. Brash aside, they all said
no.
On October 20, Brash called Hooker. Brash gave considera-
ble details of their conversation, whereas Hooker’s testimony
thereon was very conclusionary but not inconsistent with
Brash’s. I therefore credit Brash as follows. Brash advised
Hooker that he was going to have to put in a vacation bid for
2016 and to bid on the work schedule. He stated that the Com-
pany would train him, get him a truck, and tool him up to work
in the load. Hooker said that he did not agree, had discussed it
with Letts, and had many questions about how management
would proceed. Brash replied that he knew Hooker had been
absent from the load for a few years, that he was going to have
an off shift (based on his seniority) and would be needed for
work outside regular shift hours, and that he would get a truck,
tools, and training. Hooker brought up Art. 10.08 and said it
guaranteed 1080 MXUU hours, to which Brash replied that it
was not automatic and required supervisory approval.
Brash further said that Hooker would have to request his
MXUP in advance according to the CBA. Hooker replied that
he had many confidential phone calls that were MXUP and could
not be requested in advance and had too chaotic a schedule to
request time in advance. Brash replied that he could not have a
confidential meeting that the Company paid for; as area man-
ager, Brash had to verify with whom he was meeting but did not
need to know the content. Brash also stated that a manager call-
ing Hooker to schedule a grievance in a 3-minute phone call
would not count as MXUP and that it should be coded as what-
ever he was doing at the time, not as 15 minutes of MXUP.
Hooker continued to object, particularly to reporting MXUP, and
Brash suggested that they could devise a way for him to keep
track by writing it down. Hooker requested a union steward, and
the call ended. I further find that, as Hooker testified, Brash spe-
cifically stated that Hooker had to provide union activity logs
(see GC Exh. 43, an email that Hooker sent to Letts that day).
After a grievance meeting at the Lansing garage on October
21, Brash and Hooker had a conversation during which Brash
repeated to Hooker what he had said the day before. Brash fur-
ther stated that Hooker would have to work when he was sched-
uled on non-regular shift hours; and fill out union activity logs
for MXUP time, indicating the names of supervisors with whom
he met, the hours, and the nature of the business. Hooker stated
that he considered these unilateral changes and in retaliation for
his participating in the NLRB hearing on October 6 and his union
activities in general. Brash said that he would create an Excel
sheet for Hooker to report his MXUP; if he was not able to report
it in advance, he could do so each afternoon. Brash testified that
this was an accommodation to Hooker because all other stewards
were expected to request time in advance.
October 23, 2015 Management-Union Meeting
Mrla, Brash, Letts, and Beach met at the Lansing garage for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
about 2 hours, to discuss the Flores grievance RFI and Mrla’s
decision to place Hooker in the workload.11 Prior to the meeting,
Mrla and Brash had already made the decision that the AA posi-
tion would no longer be full-time union.12
Brash’s recollection of the meeting, as refreshed by the notes
he took (which were not offered in evidence), was considerably
more detailed than Letts’ or Mrla’s. The parties stipulated that
his testimony comported with his notes, and Brash appeared to
be candid in relating what was said. I therefore credit his testi-
mony. Based on what Letts and Hooker said at other times, I
also believe their testimony that they made statements that were
not included in Brash’s account. None of the versions varied in
overall substance, and I find the following.
After Mrla discussed his good relationships with other locals,
he brought up the Flores grievance RFI and stated that he did not
understand it inasmuch as both drivers had admitted during the
investigation to talking on the phone while driving; the Company
had not told them that their records were pulled and had not re-
lied on those records in issuing the disciplines. Mrla went over
several items one by one and asked the relevance to the griev-
ance, to which Letts repeatedly answered “functional
knowledge” (Brash and Mrla) or “constructive knowledge”
(Letts).13 Mrla then said that there was no point in discussing the
RFI any further if that was going to be the only thing Letts was
going to say, and that he thought the RFI Hooker had made was
“intentionally burdensome” and “for harassment.”1414
Mrla then discussed Hooker returning to the workload, saying
that he would have to select a work schedule, participate in va-
cation scheduling, and report his MXUP to his manager. Mrla
explained that Hooker was a non-elected union official and that
he (Mrla) did not have any other non-elected union official in his
organization excused from the load full-time; returning Hooker
to the work schedule would be fair and consistent with his or-
ganization. Mrla showed them the latest weekly report that Deb-
bie Schall of his staff had prepared, showing month-to-date use
of MXUU and MXUP time by union officials in Mrla’s organi-
zation (the Schall Report) (see R. Exh. 23, the report of Nov. 23,
2015, admitted to illustrate the format of the document). Mrla
commented that Hooker was one of the highest and would have
to report that time to be excused from the workload. He further
said that he knew which ones on the report were elected or non-
elected. The Union requested a copy of the Schall Report.1515
During the discussion, Mrla repeated that MXUP required face-
to-face meetings and did not include off-the-record discussions
with managers.
Letts and Beach protested that this was a big change to the
way they had done business and would adversely affect the Un-
ion, including grievance handling. Mrla responded that he was
not completely taking Hooker away from the organization and
that Hooker would have to work off shifts, likely a Sunday shift,
but not Monday through Friday for the present. Letts again
asked if the decision to put him in the workload was negotiable,
11 These same individuals attended all subsequent monthly manage-
ment-union meetings hereinafter referenced.
12 Tr. 1672 (Brash).
13 Tr. 134, 1084, 2616.
14 Tr. 1697 (Brash).
and Mrla replied no.
During the course of the meeting, Brash stated that dealing
with Hooker was difficult and that Hooker “liked to yell a lot in
grievance meetings” which was not helpful to the procedure,1616
to which Letts said that he was aware of Hooker’s style.
Over the following week, Letts and Mrla had several phone
calls discussing the subject in which they reiterated their respec-
tive positions. Mrla testified that he emphasized that no other
appointed union representative in his organization was off the
load.
On November 10, Letts emailed Mrla (GC Exh. 8), formally
objecting to Mrla’s stance as to Hooker and requesting a copy of
the Schall Report.
November 16, 2015 Management-Union Meeting
Once again, the testimony of Letts, Brash, and Mrla was
largely reconcilable. This meeting took place at the same loca-
tion. Letts asked for the Schall Report. Mrla showed it to the
Union and went through who was appointed and who was
elected.
Mrla and Brash brought up the union activity log that Brash
had created and stated that Hooker would be required to fill it out
after he met with a manager, indicating with whom, when, and
where he met. Letts asked why, when no one else was required
to do so, and Mrla and Brash answered that they could not get
Hooker to give advanced notice. Brash stated that he would need
Hooker in the workload 1 day per month for compliance training
(leader-led training at the garage on subjects such as defensive
driving or handling new equipment). Letts agreed that the Union
would assist in this. Another meeting was scheduled for Decem-
ber 16.
Both Letts and Brash testified about at least one phone call
they had following the meeting, on about November 30. Their
description of the subject matters discussed leads me to believe
that they had two separate calls. In any event, neither Letts nor
Brash disputed the other’s version, and I credit them both.
In one call, Brash stated that Hooker had to fill out the work
schedule that was being circulated. Letts replied that at the No-
vember 16 meeting, Brash had stated he needed Hooker only 1
day a month. Brash agreed that was true but said they also
needed him to fill out the work schedule because he would be in
the workload as any other appointed steward. Letts asked him to
send over a copy of the union activity log. Brash said he would
and later that day sent it to Letts (GC Exh. 9).
In the other call, Brash told Letts that Hooker needed to select
some training dates during the week because not all training or
safety meetings could take place on the Sundays that Hooker had
chosen. Letts stated that this went against their agreement on
October 23. Brash said no, that training such as safety meetings
and competencies needed to be conducted during the week when
he had his management staff available; that Letts agreed Hooker
would come in to attend a safety meeting once monthly; and that
Brash would give Hooker as much advance notice as possible
15 Mrla testified that he did not give the report to the Union because
he did not know if it was “proprietary.” However, he never provided this
explanation to the Union and offered no elaboration at trial.
16 Tr. 1100 (Brash).
MICHIGAN BELL TELEPHONE CO. 15
and try to accommodate as much as possible Hooker’s needs to
conduct union activity.
Tech training is provided in a variety of forms. All techs are
required to attend one safety meeting a month (compliance train-
ing), and each of Brash’s managers conducts a weekly safety
meeting with the crew, held Monday–Friday. Managers also
hold safety training and competency tests in the garage. Other
training can be done electronically via iPad. Finally, there is
“ride-along” or on-the-job training with another tech.
On December 2, Sharp advised Hooker that starting next week
(December 6–12), he wanted Hooker to do 1 full day ride-along
weekly (R. Exh. 2 at 3). This triggered a series of emails (R Exh.
2, continued in R. Exh. 24), summarized as follows. The same
day, Hooker responded that he had pre-scheduled union commit-
ments the entire next week and would be available to train on
December 13 and 20, and January 2, 3, and 10. On December 4,
Brash told Letts that that was unacceptable and that Hooker
would need to make himself available 1 weekday each week for
training. On December 8, Letts objected to what the Company
was requiring, and he set out Hooker’s MXUP and MXUU com-
mitments in the coming weeks. The same day, Brash clarified
that Hooker needed weekday training, as opposed to Sundays
when he would have ride-along training, and that his non-Sunday
training would be deferred until after January 4 and scheduled in
advance so it would work best for both company and union
schedules. On December 14, Letts stated that advanced sched-
uling beyond the current (5-week) work schedule would be dif-
ficult.
In mid-December, Brash told Sharp to set up ride partners for
Hooker for the next several Sundays, or whatever day he was
going to be in the load, so Hooker could observe and re-famil-
iarize himself with how to perform work. I credit Brash’s unre-
butted testimony that within a week of December 13, he called
Hooker and told him that Sunday, December 13, would be his
first day back in the load and that he would be doing ride-along
training. Hooker renewed his objection to being put in the load,
to which Brash replied that was the Company’s directive.
Hooker’s Return to the Load
On November 30, 2015, for all of the 5 weeks beginning on
December 13, Hooker bid for shifts having Sunday as one of the
days off (GC Exh. 50). His first day working in the load was
December 13, when he did ride-along training. He also did ride
training on December 20 and January 2, 3, 19, 23, 24, and 28,
2016. He first worked on his own on January 31 (see R. Exhs.
27, 29).17 Hooker had not touched a tool for at least 7 years,
during which time he had not received any training and many
technological changes had occurred. Brash anticipated that
Hooker could function on his own in the field within about 2
months after finishing training.
When Hooker was assigned to work on his own, Brash in-
structed the load balance manager at the network dispatch center
to pre-assign Hooker POTS (“plain old telephone service”) resi-
dential repair work (entry-level work) the night before. All other
techs were assigned by their hitting the dispatch button in GCAS.
17 In approximately May or June, he bid for and secured a Monday
through Friday late shift.
Early on, Brash came to believe that Hooker was not paying
full attention during his ride-alongs, not taking steps to ensure
that his vehicle was completed stocked, and creating excuses not
to perform tech work. Hooker’s conduct at times reinforced
these conclusions.
Union Activity Logs
Brash testified that he made the decision to require Hooker to
fill out a union activity log. After creating it, he emailed it on
November 5, 2015 to Bragg, who forwarded it to Hooker via
company email and asked Hooker to email him the activity logs
weekly (R. Exh. 17). When Sharp took over Bragg’s position,
he assumed this responsibility.
On December 8, Hooker and Brash exchanged a series of
emails (GC Exh. 45), summarized as follows. Brash reminded
Hooker to get in his activity log for last week to Sharp. Hooker
said that it would take him some time to reconstruct his calendar
and asked how he should code his time for filling it out. Brash
replied that Hooker should complete it as quickly as possible,
and in the future update it during the week so that he could turn
it in on Monday morning. As far as accounting time, Brash re-
ferred to the 20 minutes of administrative time at the start and
end of the shift, for which coding was based on the activity after
or before it, and pointed out that the time Hooker needed should
be minimal. Hooker then asked how he should code filling out
the activity log. Brash replied that it should only take a minute
or so to input an entry and that it would be regular paid time.
Brash met with Hooker in Sharp’s office on July 28, 2016, on
a number of matters. Regarding the activity logs, Brash stated
that Hooker had not complied with his directive to submit them.
Hooker replied that he would need all of his time records from
June 6 or 9 from Sharp so he could recreate his calendar, figure
out with whom he met, and why he charged MXUP because he
could not remember. Brash initially denied his request but then
had Sharp pull Hooker’s attendance summary from eLink and
give it to Hooker, who stated that he would comply under protest.
That afternoon, Hooker advised Sharp by email that he could
not complete the activity log because the information that Sharp
had provided was inadequate, and that Hooker would have to
wait until Prince returned from vacation the following week to
cross-reference union payroll records (R. Exh. 50).
On August 12, at the garage, Brash and Hooker had a meeting
at which they discussed the activity log. Only Brash testified
about what was said on the subject, and I credit his unrebutted
account as follows. Brash asked if Hooker had brought a com-
pleted activity log with him that day. Hooker replied that he had
not because he still had not had time, and Brash reminded him
of his commitment on July 28 to submit such by August 5. He
then issued Hooker a written verbal warning for violation of non-
management expectation, for failing on August 5 to provide joint
meeting activity details as required by management (GC Exh.
29; also R. Exh. 53). Hooker repeated a threat to schedule griev-
ance meetings only on Mondays and Fridays, and to suspend all
of the Local’s stewards and personally take over the grievance
process for the entire district. Brash told Hooker that scheduling
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
grievances only on the days that he was supposed to do company
business was unacceptable.
General Counsel Exhibits 46 and 47 are the activity logs that
Hooker turned in. The first is one page, with entries for June 16
and 17, and July 21; the second is one page with an August 19
entry. They do not show on what dates Hooker actually submit-
ted them, and Brash’s uncontroverted testimony was that Hooker
turned in both on August 19. On the July 21 entry, Hooker wrote
“attendees confidential.” He gave conflicting testimony on
whether Brash told him that was unacceptable, first saying yes
but later that he could not recall.
Hooker subsequently submitted activity logs for union time on
the days of September 19, October 3, and October 7 (GC Exhs.
48, 49).
The Respondent’s counsel represented that Hooker received
one warning for not turning in the union activity logs (on August
12, described above) and that it was not a reason for his termina-
tion, that he was never disciplined for taking improper MXUP or
MXUU, and that his termination was not based on either his fill-
ing out activity logs or his claims for MXUP.
December 23, 2015 Grievance and RFI
Hooker filed a grievance contending that he was discriminated
against for union activity (GC Exh. 51), and on the same date he
made a RFI consisting of about 2-1/2 single-spaced pages and
over 60 individual requests (GC Exh. 52). I will address the
items on which Hooker offered testimony as to why he consid-
ered them relevant.
For items 2–6, the requested information pertained to NIBS or
its predecessors in the Grand Rapids FAA (force adjustment
area) since January 1, 2010: (2) all work-group schedules; (3) all
work-group vacation-selection schedules; (4) a list of each day’s
starting workload and each day’s ending workload which was
not completed that day or carried over to the next day; (5) a list
of all dates during which employees were “loaned” into or from
other organizations within the Company; and (6) a list of all per-
sonnel who received training, including name of the trainee,
name of the training, dates and duration, and type.
Hooker testified that RFI items 2–6 were based on the Com-
pany’s assertions that it needed him back in the load because of
heavy workload needs. However, Hooker conceded on cross-
examination that no one in management actually said this to him.
On the other hand, management never stated that workload con-
siderations were irrelevant to their decision.
Item 7 had two parts: (1) a list of all designated CWA repre-
sentatives in Mrla’s organization, including names and titles, re-
porting unit, union title, whether appointed or elected, and
whether required to fill out a special timesheet; and (2) the gen-
esis of the “special timesheet,” the company policy that man-
dated it, how it would be stored, the length of retention, and who
would have access to it.
Hooker testified that his was for the purpose of challenging
the Company’s position that he was the only full-time, non-
elected representative in Mrla’s organization and had the most
MXUP time in Mrla’s territory, and to confirm that he was the
only one required to fill out a special time sheet.
Brash replied to Hooker on February 5, 2016 (GC Exhs. 54,
55), attaching 39 documents. He raised as general objections to
the RFIs as being overly broad in timeframe and as being for the
purpose of obtaining information for use in pending ULP charges
that the Union had filed. On the following specific items, he
responded:
(2) The Company will provide the requested work schedules
for 2015 on.
(3) Please explain the relevance.
(4) The Company does not maintain the requested records in
the normal course of business but will provide responsive rec-
ords in its possession.
(5) The Company does not maintain or possess records in the
form requested.
(6) The Company will provide the records it has in its posses-
sion from the previous 6 months.
(7) Part 1—The Company objects on the grounds that the Un-
ion, not the Company, possesses this information. Part 2 – The
Company does not maintain documents known as “special
timesheets.” In accordance with the CBA, time for conducting
union business requires advance notice to the employee’s im-
mediate supervisor; in the event advance notice is not provided,
time reporting and record retention is handled on the local
level.
Hooker responded on March 4 (GC Exhs. 56, 57), averring
that the requested information was relevant to the subject of the
grievance. As to item 3, in particular, Hooker stated that it was
relevant to the Company’s assertion that “schedule fairness” was
one of the reasons for putting him back in the load. Brash replied
on March 21 (by email and letter) (GC Exhs. 58, 59), adhering
to the Company’s prior objections but attaching 14 documents
covering the 2015 and 2016 annual vacation reports in response
to item 3. Finally, on April 18, Hooker renewed the arguments
that he had earlier raised (GC Exh. 60).
In late February or early March, Brash and Hooker discussed
the RFI when they attended a grievance meeting at the Lansing
union office. Regarding item 2, Brash objected on over-breadth
grounds—that the workloads were completely different from last
year, let alone 5 years earlier. As to item 3, Brash raised the
relevance objection, agreeing with Hooker that Hooker was not
on the vacation schedule after he became AA. On items 4 and 5,
Brash questioned the relevance to the decision made in Decem-
ber 2015 and also stated that there was no way to get accurate
information. As to item 6, Brash questioned the relevance of
documents going back to 2010 but said that the Company would
provide a limited number of records. Regarding item 7, Brash
stated that Hooker was the only union representative asked to fill
out the activity log. Hooker restated his belief that he needed
everything that he had requested.
Ongoing Dispute over Hooker’s Placement in the Load
General Counsel’s Exhibit 11 is a series of emails from Feb-
ruary 25–March 14, summarized as follows. In addition to Brash
and Letts repeating their respective positions concerning placing
Hooker in the load, (1) Sharp asked Hooker to attend weekly
Wednesday safety meetings required of all techs, to which
Hooker responded that most of his annual Wednesdays were al-
ready booked for union business; (2) Brash advised Letts that
MICHIGAN BELL TELEPHONE CO. 17
Sharp would coordinate with Hooker once a month to come in
for a safety meeting and coverages on a weekday according to
Hooker’s availability; (3) Hooker asked Brash if his training
could not take place on Sundays, to which Brash replied no, be-
cause of limited resources and available managers; and (4) Letts
questioned Brash whether safety meetings had to be conducted
during the week when the Company had an on-duty manager on
Sundays.18
On March 17, Brash advised Letts that Hooker had to be avail-
able in the workload for days other than Sunday and that Hooker
and the Local had not been cooperative (GC Exh. 74). There-
fore, beginning with the weekly schedule of April 3, Hooker
would be required under Art. 10.07 to provide advance notice
each week for any and all union time; and for MXUP, the time
needed, the person(s) with whom he would meet, and the nature
of the meeting, for payroll verification. If he failed to comply,
Hooker’s time would be coded 10.08 (MXUU) (charged to the
Union).
In an April 1 email to Letts (GC Exh. 12), Brash contended
that Hooker was not providing his schedule needs on an upfront
basis each week for his needed time to conduct union business
under Art. 10.07. The same day, Letts stated that he would con-
tinue to utilize Hooker within his organization when Hooker was
scheduled on days that fell Monday through Friday (GC Exh.
13).
Letts exchanged emails with Sharp or Brash on June 3 and 4
(GC Exh. 17–19; also in R. Exh. 44). In the first of these, Sharp
stated that he needed Hooker in the load on Monday, June 6,
Thursday, June 9, and Friday, June 10, and that Hooker would
be attending a training class for the entire week. Letts replied
that Hooker had union responsibilities and needed to be out of
the load all of next week, and Brash replied that Hooker was ex-
pected to report on those dates or face possible discipline.
Sharp later approved Hooker being off on union time from
June 7–9 but not June 6. Hooker did not report on June 6, and
Brash emailed Letts on June 9 (GC Exh. 20), setting out in detail
the Company’s expectations relating to Hooker’s union report-
ing time obligations. Hooker would have to report to work at the
start of his scheduled shift unless leave was approved in advance,
and at the end of each week in which he reported payment for
MXUP, he would have to provide the following information on
the weekly union activity log: (a) managers at the meeting; (b)
date, time, location, and duration of the meeting; (c) the purpose
of the meeting; and (d) if the meeting was not for the purpose of
processing grievances, the name of the Company manager who
approved the meeting time as paid time. Brash also stated that
Hooker was on a final written warning for failing to meet Tech
Expectations because of his failure to report for his scheduled
shift on June 6, which would be treated as an incidental (unex-
cused) absence (see GC Exh. 30).
Regarding the events of June 10, I credit Sharp’s clear and
more detailed account of what occurred over Hooker’s, although
their versions were not inconsistent. I find the following.
On June 10, a grievance meeting was scheduled at the garage.
18 Brash’s managers rotate more or less weekly in serving as the week-
end duty manager. There is a specific duty manager phone number for
techs to call.
Starting at 8 a.m., Hooker worked on preparing the grievance at
the union hall. When he did not report to the garage at 8 a.m.,
Sharp tried unsuccessfully to reach him on his company and per-
sonal cell phones, and left voicemails. At about 8:45 a.m., Sharp
called Hooker again and asked where he was and why he had not
been at the garage at 8 a.m. Hooker replied that he was in a
grievance meeting down the hallway (in the garage). They met
in the hallway. Sharp stated that he did not give Hooker approval
to have the day off out of the load, and Hooker replied that he
was in the calendar invitation from Steward Charles Johnson for
the meeting (GC Exh. 69). Sharp replied that was insufficient.
I credit Sharp’s and Brash’s uncontroverted testimony of the
events that followed. Sharp called Brash, who arrived at the gar-
age at about 10:30 a.m. They met with Hooker (and Campbell
and Johnson). Brash reiterated what Sharp had said about the
calendar invitation not constituting an approval. Brash brought
the email he had sent to Letts the previous day, and he read out
verbatim a document concerning what management expected
from Hooker regarding union time. Brash said that it was stand-
ard for everyone else to request union time in advance so that the
Company could properly build the load and that Hooker would
have to do this or be marked as an attendance violation. Hooker
stated that Brash’s stance was illegal and threatened to file unfair
labor practice charges. I credit Sharp’s testimony that Hooker
was very upset and that both sides were angry when the meeting
ended.
In June 15–16 and July 1 and 25 emails, Letts and Brash dis-
agreed over Brash’s assertion that any bargaining concerning ap-
plication of article 10 of the CBA with respect to MXUP and
MXUU was at the CWA District 4 level (GC Exhs. 20–24).
Brash reiterated what he expected of Hooker, including the re-
quirement that Hooker give his supervisor reasonable advance
notice of the absence, which would be granted if work schedules
permitted.
On July 27, Hooker submitted his schedule bids for the weeks
of August 14–September 11, all for regular shift, but stating that
under article 10 of the CBA (reasonable time to transact union
business), he was notifying Sharp that he would be transacting
union business for all scheduled hours during those weeks (R.
Exh. 49 at 1). The following day, Sharp denied his request to be
full union time for the entirety of that 5-week schedule (ibid).
Brash and Sharp testified about a meeting they had with
Hooker and Campbell in Sharp’s office on July 28 concerning a
number of matters; Hooker and Campbell did not. Based on their
testimony, I find as follows. Brash stated that Hooker would not
automatically be excused Monday through Friday for union busi-
ness just because he requested it and that 5 weeks out in advance
was very far off absent a planned trip; a week or two would work
better for the Company. Brash further stated that if Hooker was
scheduled to work and wanted to attend a grievance meeting, he
had to inform Sharp in advance and ask him, not just later put it
on his activity log. Hooker replied that he would schedule his
grievance meetings only on Mondays and Fridays because Sharp
had told him those were the busiest days and he was most needed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
in the load. Brash accused him of being obstructive.
Brash presented Hooker with an attendance counseling for his
unexcused absence on June 6; for tardiness on June 10 when he
attended a grievance meeting in the morning without Sharp’s
permission; and a verbal warning for those incidents (see GC
Exh. 17) plus a sick day on June 18, for which Hooker’s request
for a vacation day had been denied.
Unless the Company approves FMLA leave, reporting off ill
is treated as a chargeable absence. Chargeable absences are ac-
crued over a 12-month period; a chargeable absence stays extant
for 12 months. Because the counseling and verbal warning erro-
neously included an early June 2016 violation that had dropped
off, they were not issued that day; rather, Brash issued corrected
versions to Hooker on September 6 (GC Exhs. 30–32).
RFI over Truck Reassignments
Techs use three basic types of vehicles: (1) utility van or truck
for the simplest work; (2) bucket truck, assigned to someone
qualified for in-the-air as well as ground work; and (3) under-
ground truck, a bucket truck specially equipped for work under-
ground or in close spaces, for a tech who is also qualified to per-
form such work. Prior to February 28, Jim Smith drove a bucket
truck, and Campbell had an underground truck.
Starting in January, Hooker worked in the load 1 day a week.
He is 6-foot-4-inches tall and found that the first truck to which
he was assigned, a full-size van, too small. As a result, he did
not fit behind the wheel and had trouble reaching the brakes. In
about late January, he backed the vehicle into another company
vehicle in the parking lot and was assigned a different utility
truck. He found the vehicle comfortable, but on February 11, the
brake lines blew out while he was operating it.
Brash and Safety Manager Steven Roden conducted an acci-
dent investigation involving the first truck. Hooker stated that
its cab was too small for him to drive safely, and Roden had him
drive Campbell’s underground truck or a similar truck, in the
garage. He told them that it was comfortable. On February 28,
the Company effectuated a switch of vehicles among Hooker,
Campbell, and Smith. The General Counsel does not contend
that the truck swap itself violated the Act. Hooker was assigned
Campbell’s underground truck, a new vehicle; Campbell was as-
signed Smith’s bucket truck; and Smith was assigned Hooker’s
original utility van or a very similar vehicle.
On February 29, Hooker filed a grievance over the truck swap
(GC Exh. 61), contending that the Company violated the mutual
respect provision (art. 4) in the CBA. Hooker testified that he
believed Sharp was retaliating against the Union by sowing dis-
sent among the crew, particularly within the Union inasmuch as
Campbell was Hooker’s chief steward and liked doing under-
ground work. The Union proposed keeping Campbell in the spe-
cially equipped bucket truck and trading Hooker and Smith.
On March 8, a first-step grievance meeting was held at the
garage between Hooker, Campbell, and Johnson; and Brash and
Sharp. Hooker asked for information that became the basis for
his subsequent RFI. Sharp stated during the conversation that
Campbell was the most qualified technician in his crew. The
Company denied the grievance at the first step. Management
stated that they were going to have underground equipment in-
stalled in what had been Smith’s bucket truck so that Campbell
could continue to perform underground functions. After such
equipment was later installed in Campbell’s new truck, Camp-
bell informed Sharp that he was happy with it (Sharp’s unrebut-
ted testimony).
On April 7, Hooker filed an RFI (GC Exh. 62), requesting,
inter alia, item (1), a list of vehicles provided to Campbell,
Hooker, and Smith since January 1, 2009, and the reason for each
change of vehicle for each employee; (2) a list of all factors con-
sidered for the truck swap on February 24; (3) the estimated date
for completion of the removal of air equipment from Hooker’s
truck and placement of same in Campbell’s truck, and the cost
estimate. Further, in reference to Sharp’s purported statement at
the March 8 meeting that Campbell was the “most qualified em-
ployee in the district,” Hooker requested (item 4) a list of all em-
ployees in the district and their qualifications.
On April 8, Brash responded (GC Exh. 63), questioning the
relevance of the request in view of the Company’s discretion to
assign tools and equipment in accordance with business needs,
and the relevance of documents going back more than 6 months.
On April 11, Hooker suggested a meeting at which he could an-
swer the Company’s questions and concerns (GC Exh. 64).
Brash responded on April 25 (GC Exh. 66). Brash emphasized
at the start that Sharp had informed the Union that the special
equipment was installed on Campbell’s vehicle because Sharp
deemed him to be the most qualified member in his crew to use
the equipment, and because Campbell had more qualifications
listed on the call out list than any other tech in the crew. Brash
voiced the general objection that the requests were not relevant
to the Union’s statutory duties inasmuch as the Company had the
discretion to distribute work tools, including vehicles, as busi-
ness needs required.
Brash stated that as to: item 1, the Company did not maintain
this information or have it reasonably accessible; item 2, those
reasons had already been provided to the Union, the Company
had discretion to assign work tools, and all three were assigned
work trucks based on their qualifications to do different jobs; and
item 3, the switch of equipment on the trucks had been com-
pleted, and Campbell’s new truck had been in service since April
20. The cost was not relevant to the Union’s statutory duties but
such information had already been provided.
As to item 4, Brash stated that he was repeating information
that had already been provided to the Union, and he referred to
the call out list. Brash did provide a list of all technicians in
Sharp’s crew and the call out sheet for the week April 22–29,
containing checks by the types of work they were qualified to
perform.
On May 26, Hooker responded (GC Exh. 67), asking as to
item 1 what obstacles prevented the Company from providing
such information, including a description of how the information
was collected, maintained, stored and/or accessed; as to item 2,
the specific tasks and business requirements contemplated by the
Company when it moved Campbell and Smith into different ve-
hicles, including a detailed listing of training and/or other re-
quirements for “underground work” and “air work” as refer-
enced by the Company in explaining Campbell’s move into his
current vehicle, and the date prior to the conversion of Camp-
bell’s truck in which any other bucket truck was converted
within the geographical scope of Mrla’s responsibility; and as to
MICHIGAN BELL TELEPHONE CO. 19
item 3, details regarding the method and manner by which the
information was provided to the Union. Concerning item 4,
Hooker requested the dates Campbell, Hooker, and Smith
achieved the qualifications listed on the call-out list, a compre-
hensive list of the criteria used to assign a “qualified” designa-
tion for employees in the district; and any and all company ma-
terial describing how to assign qualifications to employees
within the work-group. Hook reiterated the request for a list of
employees and their qualifications districtwide.
Hooker testified that his request for information pertaining to
training for underground and air work related to the Company’s
assigning him a bucket truck and then an underground truck and
not another basic utility truck, the only vehicle for which he was
trained. As far as conversion of other trucks, Hooker testified
that he found it unbelievable that the Company would go to the
expense of duplicating equipment already installed on a vehicle.
The Company did not respond to the May 26 RFI.
Adverse Actions Relating to Hooker’s Performance
Expectations for field techs, including those in Mrla’s organi-
zation, are set out in Respondent’s Exhibit 5. Brash was the de-
cision-maker in all of the disciplines that Hooker received.
February 18 Management-Union Meeting
This meeting took place at the Lansing garage. Letts’,
Brash’s, and Mrla’s versions were quite similar. Mrla brought a
copy of the Schall Report (R. Exh. 25), which he again showed
but did not give to the Union. Mrla and Brash recited what they
viewed as deficiencies in Hooker’s work performance and his
noncompliance with turning in the work sheet, amounting to in-
subordination, work avoidance, and obstruction. The Union ex-
pressed disagreement with the Company’s characterizations.
Mrla asked if Letts condoned Hooker’s behavior, and Letts re-
sponded that he wished every one of his members was like
Hooker. Mrla then stated that he could see he would get no help
from the Union, he now knew who Letts was, and there was no
reason to continue talking. Mrla ended the meeting and left.
A. Written warning for Violation of Nonmanagement (Tech)
Expectations—March 3, 2016 (GC Exh. 26), for Misusing Time
on February 14 and 21, and Working Overtime Without Per-
mission on February 11
As to February 11, the warning states that Sharp had reas-
signed the job because Hooker stated he could not work over-
time; Hooker did not answer or respond to Sharp’s phone call
voicemail or text; and he worked overtime without Sharp’s
knowledge or permission.
That afternoon, Hooker worked on a residential job with
Training Manager Russ Jordan, who was training him on the use
of new meters that Hooker had never used. At about 3:50 p.m.
Hooker messaged Sharp that he would not be able to finish the
job without working overtime (past 4:30 p.m.) because he had
another commitment. Sharp tried unsuccessfully to reach
Hooker on his company cell phone and then arranged to have
John Root, a tech from another garage, take over the job. Root
came to the site, but Hooker ended up finishing the job and ar-
riving back at the garage at about 5:15 p.m. Sharp encountered
him and asked why he was working overtime and why he did not
respond to Sharp’s calls or texts. Hooker replied that it was a
new phone, and he had not had enough time to read the instruc-
tions.
Hooker testified that he had received his company cell phone
fresh out of the box that day. It had no volume button, with the
result that he did not hear when it rang or received a text. On the
other hand, Sharp testified that the phone was not an iPhone but
a simple “flip” phone, with a green on button and red off button.
He had never given instructions to any tech on operating a flip
phone and did not believe Hooker’s explanation that he had not
had time to read the instructions.
Techs are expected to notify management if they think that
their jobs may run into overtime, which is voluntary. Brash tes-
tified that techs do not need permission for incidental overtime
if a job runs over, but Hooker had called to have the job removed
and then stayed and worked overtime. Because Hooker ended
up working overtime, the Company had to pay overtime to both
him and Root.
Concerning February 14, the warning states that Hooker mis-
used his time on the first job as he started his shift at 8 a.m., did
not dispatch until 9:30 a.m., and then called the duty line at 11:03
a.m., saying that there was nothing to do at the BPC address, and
the narrative in his job detail report for the day (R. Exh. 28 at 6)
reflected no trouble. The report has his dispatch time as 8:08
a.m. and completion time as 1:21 p.m.
Hooker testified that the job was BPC, a type of job on which
he had never before worked. When he arrived, the work ap-
peared to have been completed, but he inspected the work from
one end to the other to make certain. Another tech showed up at
the jobsite and was there for 30–40 minutes. When Hooker was
satisfied there was nothing else to do on the job, he called Sharp.
However, Sharp testified that Hooker’s job was a simple BPC
cross bar or cosmetic pedestal (ped) job requiring no line testing
or diagnosis. Occasions do occur when another tech has already
fixed a ped, but Hooker should not have waited until 11:03 a.m.
to contact him but instead should have closed it out earlier and
gotten another dispatch.
Regarding February 21, the warning states that Hooker dis-
patched at 9:30 a.m. even though his shift started at 8 a.m. and
that the expectation was for him to dispatch, get any necessary
stock, and leave the garage within 20 minutes of his shift.
Hooker testified that he was dispatched at 9:30 a.m. through
his iPad. Before then, when he pressed the dispatch button, he
got the message that no work was available. However, Sharp
testified that on Sundays, three techs worked out of the garage.
They reported at 8 a.m., and if they did not have an assignment,
they were expected to immediately contact the load balance man-
ager or the duty manager using the fixed duty manager phone
number. Hooker admitted that Sharp had told him earlier that if
he got such a message, he should “SmartChat” with the dispatch
center to get work, and that Sharp had sent out an email to his
crew stating that they should call him if they failed to get a dis-
patch.
On February 22, Sharp held an investigatory interview with
Hooker concerning what occurred on February 11, 14, and 21.
Hooker had no specific recall of what was said at the meeting (“I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
don’t remember much. . . . ”).19
I credit Sharp’s better recall and find the following. As to
February 11, Hooker stated that he had not yet read the instruc-
tions for his cell phone. As to February 14, Sharp asked what he
did in the 3 hours that morning, and Hooker answered that he
could not remember. Regarding February 21, Sharp asked what
he did between 8 and 9:30 a.m. Hooker replied that he did not
want to do administrative work when dispatched on a job and
that he had to get stock and supplies. Hooker had never asked
Sharp prior to February 21 to come in early or for more time to
get stock and supplies.
B. Suspension Pending Investigation—April 27. This Related
to the Intelligent Vehicle Device (IVD) or GPS Warning/Sus-
pension That was Issued on May 10, Below
C. Final Written Warning/3-day Suspension for Code of Busi-
ness Violation/Violation of Tech Expectations—May 10 (GC
Exh. 28), for Tampering with his Intelligent Vehicle Device
(IVD) on February 28 and April 24 and Causing it to Stop Re-
porting
IVD or GPS devices are black hard plastic, a little bigger than
a pack of cigarettes that are plugged in under the dash board.
Typically, nonreporting by a GPS is due to software or program-
ming issues and sent to EtechTexas, which does the diagnostics
(see CP Exh. 2, R. Exh. 41 at 18).
Hooker testified that on February 28, his first day using the
truck, he found the GPS on the floor. Sharp testified that Hooker
never informed him of this, and there are no documents of record
to the contrary.
On April 17, Jason Bigelow, the duty manager on April 17,
discovered that Hooker’s GPS was not recording, and he advised
Brash on April 18 that he had put in a repair ticket for it. Brash
asked Sharp to pull GPS records from Telogis to see when it had
stopped recording. Those records showed that it had not been
reporting since February 28. Sharp related this to Brash.
The GPS was reinstalled in Hooker’s truck on April 18.
Hooker testified that on April 24, his first day in the load since
April 18, he hit the device with his foot while applying the park-
ing brake, and it popped out.
On April 19 (between the two dates in question), Brash re-
ported to the asset protection office that Hooker had tampered
with the GPS unit in a company vehicle. The case was assigned
to Judy Vilik, senior investigator with the asset protection office,
who conducted an investigation. She maintained an event log of
her step-by-step actions during the investigation (R. Exh. 67 at
1–8) and prepared a 36-page report, including attachments (R.
Exh. 41, dated May 2). Vilik recalled no other times when she
was asked to investigate a non-reporting GPS unit.
Brash and Sharp on April 19 received a form email from Etech
Texas, the Respondent’s vendor that services the GPS system,
regarding GPS nonreporting issues. It stated in relevant part,
“Driver usage can sometimes partially dislodge the device, espe-
cially when releasing the parking brake.” (CP Exh. 2.) Brash
never provided this email to Vilik. He had seen this form email
19 Tr. 564.
20 Osterberg testified that he likes zip-ties around the GPS, so that the
tech who wants to pull the GPS out has to cut the zip-tie, but that he does
on previous occasions. On April 25, Brash raised the April 24
date to Vilik as a result of what Duty Manager Osterberg re-
ported to him about Hooker’s GPS stopping reporting at 10:19
a.m. that day.
On April 27, Vilik conducted an interview with Hooker at the
Lansing garage, with Brash and Beach present as witnesses. I
credit her unrebutted account as follows. She asked Hooker
questions and wrote down his answers, which she typed out and
printed out as a statement and then gave to Hooker to make any
additions or corrections. She incorporated those into his final
statement, which he reviewed and affirmed was true and accurate
but refused to sign (R. Exh. 41 at 34–35).
The following summarizes the statement. On February 28,
Hooker did not know what the IVD was when, as he went to push
down the emergency brake, he knocked it to the floor and then
placed it in the driver’s side storage container. He then reported
this to Sharp, who told him to submit a repair ticket to Fleet. On
April 12, Hooker was advised at a union meeting that the device
was the GPS unit for the vehicle. He was also advised at the
meeting that the GPS had caused malfunctions in some company
vehicles. On April 18, in a repair ticket for issues with the vehi-
cle, Hooker included a reference to a “strange device” laying in
the driver’s side door storage (see R. Exh. 41 at 28). Vilik asked
why he referred to the GPS as a “strange device” when he had
been told what it was, and Hooker replied no reason. Regarding
April 24, Hooker accidentally knocked the GPS out of its plug
when he went to apply the parking brake. Vilik asked him why
he did not submit a repair ticket for the GPS, and he replied that
he did not have time at the end of his shift and had been disci-
plined in the past for misuse of time. Vilik asked why he did not
notify the duty manager, and he replied that it did not occur to
him. Hooker denied that he had intentionally unplugged the
GPS.
At the interview, according to both Vilik and Brash, Hooker
voluntarily demonstrated how he had kicked out the GPS with
his feet when he set the parking brake. At the conclusion of the
interview, Hooker was suspended (with pay) pending the out-
come of the investigation.
Brash later tried himself and found it very difficult to dislodge
the GPS device and almost impossible to dislodge with his feet.
After the interview, Vilik examined a vehicle similar to
Hooker’s. She found that it had a zip-tie securing the unit to the
plug (although there was no zip- tie on the GPS unit in Hooker’s
vehicle at either time) (R. Exh. 41 at 5).20 However, she con-
cluded that, based on the GPS report, Osterberg’s statement, and
Hooker’s statement, Hooker would have been releasing, not ap-
plying, the parking brake (ibid).
Vilik’s investigative findings (ibid at 3, 4) were:
(1) On April 18, an email from Fleet was sent to Hooker ad-
vising him that the “strange device” he reported was the GPS
unit and the unit was plugged back in.
(2) On April 24, Hooker’s first day working in the load since
the GPS was plugged back in, the GPS device lost power at
10:19 a.m. During a safety inspection by the duty manager
not require them. I have to wonder why no one in management ever
suggested this to Hooker or, on the other hand, why Hooker did not know
this from other techs.
MICHIGAN BELL TELEPHONE CO. 21
(Osterberg), the unit was found unplugged and in the driver’s
side door of Hooker’s work vehicle. Hooker never told the
duty manager about it being unplugged or submitted a repair
ticket.
(3) What Hooker stated in their April 27 interview (set out
above).
(4) Sharp stated that Hooker never mentioned the GPS device
being knocked to the floor board in February, and Sharp never
directed him to submit a repair ticket for it. Fleet Manager John
Asaro stated that Hooker submitted no such repair ticket.
Vilik’s notes (R. Exh. 67 at 3) state that “Mrla called Vilik to
discuss the case” but say nothing about their conversation, and
she testified that she could not recall anything about it. Vilik’s
notes say nothing about the phone conversation she had with
Campbell on about April 26, and I credit Campbell as follows.
Vilik asked him questions about the GPS, and he told her that
when he got the vehicle it was brand new and had the new (plug-
in) GPS placed in a different position than the old GPS, which
was mounted. Because it was not reading properly, Bragg came
out and informed him that the GPS was moved and that the plug-
in unit was under the driver’s seat. Campbell also told her that
after, he had a couple of incidents when he bumped it, it became
loose, and he just plugged it back in.
When techs have called Osterberg and said their GPS units
were loose, he had told them to plug them back in; the only times
when they reported that the GPS had fallen out was after the
truck had been in for service at the dealership, where they were
pulled out.
Osterberg testified that the Friday preceding April 24, when
he was scheduled to be duty manager, Brash called, informed
him that there was an open asset investigation against Hooker,
and asked him to observe Hooker on Sunday and to pull his GPS
and make sure that it was reading. I further find that Brash di-
rected Osterberg to observe Hooker to determine if he was mis-
using time.
On April 24, Osterberg drove to the jobsite at which Hooker
was working after locating it through U-Dash, which was receiv-
ing signals from Hooker’s GPS. He arrived at about 9:25 a.m.
and parked 100 yards away so that Hooker would not detect his
presence. Osterberg proceeded to observe in great detail every-
thing Hooker did that morning and to record his observations,
which he put into a timeline (at Brash’s request) and sent to Vilik
and Brash on April 25, along with photographs that he took in-
side Hooker’s truck relating to the GPS (R. Exh. 43(a)). Oster-
berg’s timeline indicates that he tried to pull Hooker’s GPS at
10:34 a.m. but it showed nothing after 10:19, meaning that it
stopped reporting at that time.
Osterberg and Brash gave differing accounts of which one of
them initiated a safety observation or inspection of Hooker’s
truck that afternoon. Under either version, Osterberg went to
Hooker’s truck and took pictures of the non-reporting GPS unit,
which was in the door cubby and not in the vehicle plug (R. Exh.
41 at 11–13; R. Exh. 43(b) at 2, 4–6).
After reading Vilik’s report, Brash concluded that as to Feb-
ruary 28, Hooker falsely (1) stated that he removed the GPS
while moving into the truck and setting the parking brake, but it
did not report at all that day, indicating that the GPS was
removed before the truck was even started; (2) claimed that he
reported or put in a repair ticket into fleet; and (3) claimed that
Sharp told him to be in a repair ticket, when Sharp was unaware
of any such problem.
Regarding April 17, Brash concluded that Hooker had en-
gaged in misconduct by (1) never telling Osterberg that he had
removed the GPS; (2) referring on the repair ticket to the GPS as
a “strange device” when he was already aware what it was); (3)
claiming that he crossed his right foot over his left leg to set the
parking brake when he would have used his left foot; (4) never
mentioning anything to Sharp about knocking any device out of
place in his truck.
D. Final Written Warning/3-day Suspension for Violation of
Tech Expectations—May 10 (GC Exh. 27), for Misusing Time
on April 10 (Claiming he Could not Access His Tools) and on
April 24 When Observed by the Duty Manager
Dated May 9, the discipline was issued to Hooker the follow-
ing day. On April 10, Hooker was assigned to work on a PC in
Grand Rapids. As reflected in his 9:37 a.m. email to Duty Man-
ager Bragg (R. Exh. 40), he encountered a “roadblock” in that he
did not have the right code to open the padlocks on the truck for
access to his tools. Hooker testified that the code he had been
given (the last four digits of the truck identification number) did
not work. Hooker and Sharp offered conflicting accounts of
what thereafter occurred, in particular, Bragg’s involvement and
whether the last four digits were the correct code. However, I
need not get into the details of their contradictory testimony in-
asmuch as neither the discipline itself nor Brash’s testimony ad-
dressed the matter of the correct code. Rather, Brash testified
that he issued the discipline because Hooker was late in dispatch
on April 10; after initially calling Bragg for the right code, waited
over an hour to tell Bragg that the lock still was not working; and
then did not perform basic work on the ped. I do note that
Hooker offered inconsistent testimony on whether he had previ-
ously experienced problems opening the locks.
As earlier noted, Osterberg observed Hooker on April 24, pre-
sumably in connection with the GPS investigation. Based on
those observations and Hooker’s emails and communications
with him, Osterberg testified that he concluded Hooker’s misuse
of time that morning included: (1) taking his iPad to a job that
did not need it (replacing a ped); (2) “fumbling” in and around
his truck; (3) not taking the necessary equipment out to the job;
(4) saying that he did not have the necessary safety gloves for
working near a potential electrical hazard; (5) claiming that there
was a roadblock in digging up the ped; and (6) taking 30 minutes’
excess time for lunch. During Osterberg’s afternoon safety in-
spection, he reviewed Hooker’s work and determined that no
work had been done on the job; further, Hooker did not complete
all of the necessary work that afternoon.
Brash and Sharp met with Hooker and Campbell on May 10
in Sharp’s office. Brash was the only one of the four who testi-
fied about this meeting, and I credit his following uncontested
testimony. On the April 10 padlock matter, Brash asked why
Hooker took an hour after he spoke with the duty manager to tell
the duty manager that the code was still not working; Hooker
answered that he had no specific reason but had not realized how
much time had passed. As to April 24, Brash asked him no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
questions about the GPS. He showed Hooker Osterberg’s time-
line reflecting what Osterberg had observed. Brash asked why,
when he needed material from another tech, he sat in the garage
for 30 minutes instead of going to the worksite and having the
tech meet him there (the site was only 5–10 minutes away).
Hooker replied that he did not know or consider it but that he
was busy looking at prints and job aids (however, Brash testified
that replacing a ped was a straightforward job not requiring the
use of prints). Brash told Hooker that if his behavior continued,
he might well be terminated. Hooker responded that he was be-
ing retaliated against, which Brash denied.
Brash brought up Hooker’s availability for the load, stating
that it was very difficult to get him to do training. Hooker replied
that he had three bosses, and AT&T was only one of them. Brash
responded that AT&T facilitated his involvement with the others
and that he needed to take care of his job. Brash also said that
Hooker had turned in only a few activity logs to date and that he
needed to request his time in advance. Hooker replied that many
things happened quickly, and he threatened to suspend all stew-
ards and be the only union representative who filed and sat in on
grievances.
Prior to this meeting, Hooker generally worked Sunday
through Thursday, but he had already selected a Monday through
Friday late shift. Brash testified that he had previously told Letts
and Hooker that if Hooker worked a late shift, Brash wanted him
to report by 2 or 2:30 p.m. At the meeting, Hooker stated that as
per Mrla’s conversation with Letts last October, anything be-
tween 8 a.m. and 4:30 p.m. Monday through Friday belonged to
Letts, and he would show up to work at 4:30 p.m. and work until
6:30 p.m. Brash said this was unacceptable.
E. Suspension Pending Discharge—for Violation of Tech Ex-
pectations Including Time Management and Violation of Com-
pany Policy on September 20, 21, and 23 and October 3–Octo-
ber 10 (GC Exh. 33)
F. Termination—October 14 (GC Exh. 34)
The CBA provides that suspension pending dismissal is re-
quired before a termination (see GC Exh. 2 at 19). Brash made
the decision to terminate Hooker because he did not believe that
Hooker would change his attitude of fighting the Company de-
spite repeated warnings.
Concerning September 20, Hooker’s testimony about the
chronology of events was confusing and contradictory. He tes-
tified that Campbell came out to the jobsite about 4 or 5 hours
after he started, but he also testified that in the midmorning,
Campbell was present at the jobsite. According to both Sharp
and Campbell, Campbell was never there in the morning.
Hooker testified that he had problems accessing his VPN to ac-
cess network blueprints (Translore) and that he attempted to con-
tact Brash and Sharp by email and telephone, possibly also by
text message, at different times, starting with a phone call to
Sharp about half an hour or an hour after he was dispatched in
the morning. However, the only written communication in the
record was a text sent by Hooker at 3 p.m., stating that the VPN
was still not working (GC Exh. 78). I doubt that Sharp and Brash
would have ignored any such emails and phone calls. Moreover,
Hooker’s descriptions of his communications with Sharp were
sketchy and lacking in detail.
Sharp, in contrast, provided a much more detailed account of
the day’s events, refreshed by his notes of his meeting with
Hooker on September 22 (R. Exh. 61), and Campbell corrobo-
rated him in part. Accordingly, I credit his testimony and Camp-
bell’s more limited testimony as to what occurred and find as
follows.
On September 20, Hooker dispatched out at 8:46 a.m. on a
POTS job, restoring dial tone service (R. Exh. 28 at 32, Hooker’s
job ticket). He encountered several roadblocks, one of which
was that his iPad was not working correctly and he was unable
to connect to the company’s VPN to access Translore to deter-
mine to which circuit the customer belonged. Hooker went to
the jobsite, where he tested the F1 cable pairs and found a prob-
lem, and also tested the F2 cable pairs.
Hooker returned to the garage in the afternoon. Sharp asked
what he was doing back. Hooker replied that he needed some
safety supplies and a water cooler and that his VPN was not
working, and Sharp told him that he should have called or texted
him while in the field and then contacted tech support, rather than
returning to the garage. Hooker returned to the jobsite but called
Sharp at 1:18 p.m. and stated that he needed a hut key to access
central office (OE) equipment. Sharp told him to come back to
the garage and get the key from Campbell. Hooker came back
to the garage and stayed for about 40 minutes. Sharp saw him
outside talking on the phone and asked to whom he was talking.
Hooker replied Letts. Sharp asked what he was still doing there,
and he said he had taken his lunch break and talked to Campbell
about the job.
Hooker and Campbell went to the jobsite. Hooker explained
what he had done and said that he had isolated the F1 cable pair
and changed it but still had no dial tone. They worked on it to-
gether for a short period. When the end of the shift approached,
Hooker called Sharp at about 3:30 p.m. and said that he could
not work overtime. Sharp directed Campbell to take over the
job, and Hooker returned to the garage. Campbell concluded that
the pair that had been assigned was not correct, and he changed
the pair. There was still no dial tone, and he realized that the
trouble was on the OE, managed by the central office. Because
of the time, no techs were at the central office, and Campbell had
to wait for the roving tech to come to the site to make the switch
in equipment. As a result, Campbell had to work overtime to
finish the job.
As to September 21, Hooker offered no testimony about the
day’s events, the General Counsel relying on documentary evi-
dence (GC Exhs. 78–80), and I credit Sharp’s unrebutted account
of what took place beyond those documents.
That morning, Hooker and Sharp had various communica-
tions, by email, text, or phone. At 8:21, Hooker texted Sharp that
his VPN was again switching itself off (GC Exh. 78). At 8:52,
he sent Sharp another text, stating that his VPN did connect but
he still could not get into the LTE app (ibid). He also brought
up another roadblock—that the automobile charger for his iPad
was missing. He explained that he had enough battery life left
to pick up a job but needed it to be charged.
Hooker dispatched out at 8:53 (R. Exh. 28 at 33) on a POTS
job. At 9:35, while still at the garage, Hooker texted Sharp that
severe weather was hampering his morning start (GC Exh. 79).
MICHIGAN BELL TELEPHONE CO. 23
He also stated that he had been unsuccessful finding a charging
cord for his iPad, that he had not heard back from Sharp, and that
he would continue to look for one in the garage until it was safe
to leave. No other techs experienced a delay in leaving the gar-
age due to weather conditions that morning.
At 10:11 a.m., Hooker sent Sharp another email (GC Exh. 80),
stating that he had found his charger shoved down between the
metal box and power inventor because someone else must have
shoved it there when using his truck. He also said that he was
reporting a work injury that he had received while retrieving the
cord. Hooker further said that as to Sharp’s instruction to “go to
work,” he could not get on the network yet because the last light-
ning strike was .4 miles from him within the last 30 minutes.
Sharp called Hooker and asked about his injury. Hooker said
that he had hurt his hand, and Sharp asked if he needed to go to
Concentra, the Company’s medical center. Hooker said no, that
it was just a scrape but that he would monitor it.
Hooker left the garage at 10:13 a.m. but returned at 2:45 p.m.
He called Sharp and stated that his hand was getting worse, and
he thought it needed medical attention. Sharp told him to go to
Concentra. Thereafter, Sharp reassigned the job to Dan Quick,
who finished it in 45 minutes to an hour by replacing a defective
F1 pair.
September 22 and October 5 Interviews
On September 22, Sharp interviewed Hooker about his con-
duct on September 20 and 21 because he believed that Hooker
had misused time on both days. Campbell and Manager Dean
Miller were also present. Hooker did not testify about what was
said at the interview; Sharp relied primarily on his notes (R. Exh.
62, an email to Brash), which were not necessarily inconsistent
with Campbell’s testimony. I find the following.
As to September 20, Campbell stated it was easy to assume
(as Hooker had) that the F1 was bad rather than the OE because
problems with OE were less common. Campbell opined at trial
that Hooker had isolated the trouble fairly well aside from the
OE issue, but there is no evidence that he said this at the meeting.
Regarding September 21, Hooker explained the work that he
had done at the jobsite, including testing the F2. Sharp testified
that this made no sense because Hooker said the trouble was in
the F1.
Following the interview, Sharp sent Brash a chronology of
events for September 20 and 21 (R. Exh. 61).
On October 5, at Brash’s direction, Sharp had a second inter-
view with Hooker concerning Hooker’s activities on September
21 (see R. Exh. 63, Sharp’s notes emailed to Brash that day).
Campbell and Miller were again also present. Only Sharp testi-
fied about the meeting, and he once more relied on his notes for
refreshment. He concluded that Hooker provided no new infor-
mation. Brash concurred with Sharp that Hooker had misused
time on both days, including misrepresenting the work he per-
formed on September 20.
The September 23 and October 3 conduct involved paid train-
ing hours for which Hooker put in. Brash was the only witness
who offered testimony on this, and I credit his account. All tech-
nicians have required monthly trainings or courses that they take
on the mLearning app on their iPads, and Hooker had required
trainings due for August and September on three subjects (see R.
Exh. 57). As per mLearning, the total estimated course length
for all three was 1-1/2 hours. As of the week of September 19,
Hooker had not completed them. Sharp provided him paid time
on September 23 to do so, and Hooker reported 2.75 hours for
training on his timecard. He completed no training that day.
On October 3, Sharp provided Hooker further training time.
Hooker reported 3 hours for training but completed no courses
that day. However, the following day, he did complete them, as
well as two other courses, when he was on MXUU (unpaid time)
(see R. Exh. 58).
Brash conceded that if a tech leaves the mLearning application
open on his/her iPad, accrued time continues to be recorded even
if the tech is not actually taking the training. If the tech goes into
the app on more than one day, time accumulates.
Brash testified that Hooker had billed the Company for 5.75
hours of training whereas they should have taken less than 2
hours. He rejected Hooker’s explanation that VPN issues and
interruptions by coworkers had delayed him.
Confidentiality Policy
The Company’s confidentiality policy in effect since at least
March 22 (GC Exh. 35, effective that date), entitled “Reporting
Privacy Related Incidents,” applies to all business activities and
employees at AT&T. The purpose is described as preserving
employees’ and customers’ private data. The Definitions section
that follows lists (1) CPNI, customer proprietary network infor-
mation – about existing services and service usage); (2) PI/PP,
personally identifiable information – information that directly
identifies or reasonable can be used to figure identity of a cus-
tomer or user; and (3) SPI, sensitive personal information – in-
formation that identifies or can link to the customer and lead to
identify theft. After that is the policy that employees report im-
proper use or disclosure of customer or employee information,
giving as examples fraudulent, intentional, or accidental disclo-
sure, and “other customer or employee privacy-related issues or
incidents that may negatively impact employees or customers or
result in negative financial and/or reputational consequences to
AT&T.”
AT&T Vice President Gary Smith testified that the policy is
designed to be in compliance with Federal and state laws and that
“employee information” means CPNI, PI/PP, and SPI, as set out
in the Definitions section, and no other information. He pointed
out that the rule does not apply to self-disclosure.
Analysis and Conclusions
Hooker’s Placement in the Load
An employer violates Section 8(a)(5) and (1) of the Act when
it unilaterally makes substantial changes on subjects of manda-
tory bargaining; to wit, employees’ wages, hours, or other terms
and conditions of employment, without first affording notice and
a meaningful opportunity to bargain to the union representing the
employees. NLRB v. Katz, 369 U.S. 736 (1962); United Cere-
bral Palsy of New York City, 347 NLRB 603, 608 (2006).
A specific working condition or benefit that is a mandatory
subject of bargaining does not need to derive from the express
terms of the governing CBA; rather, it may be the result of a
longstanding practice or custom that employees can reasonably
expect to continue or recur on a regular and consistent basis. See
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Philadelphia Coca-Cola Bottling Co., 340 NLRB 349, 353–354
(2003); Eugene Iovine, Inc., 328 NLRB 294, 297 (1999); Central
Illinois Public Service Co., 139 NLRB 1407, 1415 (1962), enfd.
324 F.2d 916 (7th Cir. 1963). If so, it cannot be changed without
affording the collective-bargaining representative notice and an
opportunity to bargain, absent a clear and unequivocal waiver of
this right. Sunoco, Inc., 349 NLRB 240, 244 (2007), citing, inter
alia, Granite City Steel Co., 167 NLRB 310, 315 (1967); DMI
Distribution of Delaware, 334 NLRB 409, 411 (2001). This
holds true even if the practice is denominated as a “privilege”
voluntarily instituted or bestowed by the employer. Central Illi-
nois Public Service Co., above at 1415.
As the Board stated in Axelson, Inc., 234 NLRB 414, 415
(1978), enfd. 599 F.2d 91 (5th Cir. 1979), employer benefits con-
ferred on an employee who performs union functions “inure to
the benefit of all of the members of the bargaining unit by con-
tributing to more effective collective-bargaining representation
and thus ‘vitally affect’ the relationship between an employer
and employee.” In accordance with this principle, the remuner-
ation of union representatives for time spent administering a
CBA, including grievance processing, is a mandatory subject of
bargaining. BASF Wyandotte Corp., 276 NLRB 1576 (1985);
BASF Wyandotte Corp., 274 NLRB 978 (1985), enfd. 798 F.2d
849 (5th Cir. 1986); American Ship Building Co., 226 NLRB 788
(1976), affd. sub nom., 574 F.2d 636 (D.C. Cir. 1978) (un-
published opinion), cert. denied 439 U.S. 860 (1978). Therefore,
an employer cannot unilaterally change the wages, hours, or
working conditions of employee union representatives or stew-
ards that have been established by practice. American Ship
Building Co, above.
Here, there is no question that the past practice going back at
least as far as late 2003 was that the AA was on full-time union
status and not in the load; and prior to 2015, Hooker was in that
situation at all times for approximately 5 years. The Respondent
admittedly made the decision to put him back in the load without
any consultation with the Union and announced it as a fait ac-
compli in October 2015. Far from waiving any right to bargain,
the Union repeatedly protested the Company’s decision both be-
fore and after it was effectuated. That the Respondent might
have been willing to engage in bargaining over the details of
Hooker’s return to the load does not change the fundamental fact
that the key change was removing him from full-time union sta-
tus. Accordingly, by unilaterally requiring Hooker to return to
the load on December 13, 2015, after 5 years of being full-time
union, the Respondent violated Section 8(a)(5) and (1).
Turning to whether the Respondent also violated Section
8(a)(3) by placing him back in the load, Hooker had not per-
formed tech work for 5 years. The Respondent has not con-
tended that this was a disciplinary action. Therefore, the four-
factor test set out in Atlantic Steel Co., 245 NLRB 814, 816
(1979), is not applicable. Rather, the issue is employer motiva-
tion that is analyzed under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
Under Wright Line, the General Counsel must make a prima
facie showing sufficient evidence to support an inference that the
employee’s protected conduct motivated an employer’s adverse
action. The General Counsel must show, either by direct or
circumstantial evidence, that the employee engaged in protected
conduct, the employer knew or suspected the employee engaged
in such conduct, the employer harbored animus toward the pro-
tected conduct (which may be inferred from all of the circum-
stances), and the employer took action because of this animus.
If the General Counsel establishes a prima facie case of dis-
criminatory conduct, it meets its initial burden to persuade, by a
preponderance of the evidence, that protected activity was a mo-
tivating factor in the employer’s action. The burden of persua-
sion then shifts to the employer to show that it would have taken
the same adverse action even in absence of such activity. NLRB
v. Transportation Management Corp., 462 U.S. 393, 399−403
(1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir.
2002); Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996),
enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam). To meet this
burden, “[A]n employer cannot simply present a legitimate rea-
son for its action but must persuade by a preponderance of the
evidence that the same action would have taken place even in the
absence of the protected conduct.” Serrano Painting, 332 NLRB
1363, 1366 (2000), citing Roure Bertrand Dupont, Inc., 271
NLRB 443 (1984).
If the employer’s proffered defenses are found pretextual, i.e.,
the reasons given for the employer’s actions are either false or
were not, in fact, relied on, the employer fails by definition to
show that it would have taken the same action for those reasons,
and there is no need to perform the second part of the Wright
Line analysis. On the other hand, further analysis is required if
the defense is one of “dual motivation,” that is, the employer de-
fends that, even if an invalid reason might have played some part
in the employer’s motivation, the employer would have taken the
same action against the employee for permissible reasons. Pal-
ace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223
(D.C. Cir. 2005).
Hooker’s activities on behalf of the Union, the Employer’s
knowledge thereof, and the action of putting him back in the
load, are undisputed. The only question is whether the Respond-
ent’s motivation was retaliation against him for his union activi-
ties.
Undoubtedly, company management found Hooker difficult
and abrasive. However, during the course of Hooker’s perform-
ing his union duties prior to December 2015, the Company never
averred that his conduct was so egregious that it was removed
from the Act’s protection. Indeed, employees who engage in
demonstrative, vulgar, and defamatory displays when they are
engaged in protected activity ordinarily will not forfeit the Act’s
protection. See, e.g., Leasco, Inc., 289 NLRB 549, 552 (1988);
Consumers Power Co., 282 NLRB 130, 132 (1986). Contrast,
situations where the employee commits violence or advocates
insubordination or a work slowdown. See, e.g., Hillside Ave.
Pharmacy, Inc., 265 NLRB 1613, 1622 (1982); Richmond Dist.
Neighborhood Center, 361 NLRB 833, 833–835 (2014); Daim-
lerChrysler Corp., 344 NLRB 1324, 1325 (2005).
The timing of Mrla’s placing Hooker in the workload raises a
serious question about the Company’s motivation. Mrla first
questioned Hooker in January 2014 and Letts in March 2014
why Hooker was not in the workload. At one point, Mrla testi-
fied that he knew in 2014 that Hooker was not in the work sched-
ule or on the vacation schedule, yet not until October 5, 2015—
MICHIGAN BELL TELEPHONE CO. 25
over a year-and-a-half later—did Mrla again bring up the subject
of placing Hooker in the workload to either Letts or Hooker.
Thus, only 1 day before a scheduled NLRB hearing on charges
that Hooker had filed against the Company, Mrla called Hooker
and stated that he had to get Hooker a truck and tools and back
in the load. Both Mrla and Brash testified that in 2015 they did
not need Hooker back in the load and would have placed him in
the load regardless of any workload considerations. Mrla there-
fore offered no legitimate justification for his sudden resurrec-
tion of the subject after its long dormancy.
Additionally, both Mrla and Brash testified that Mrla consid-
ered Hooker to be in a steward position because he was ap-
pointed and not elected, and that “consistency” with the treat-
ment of other stewards in Mrla’s organization motivated their
decision to put him back in the load. However, Mrla announced
the decision to the Union and Hooker before he polled his area
managers to determine whether they had any nonelected union
officials on full-time union status. The only logical conclusion
is that at the time Mrla made and announced the decision, he did
not know as a fact that Hooker was the only union representative
in that status.
Significantly, certain statements by Mrla demonstrated hostil-
ity toward Hooker because of his conduct as a union official. On
August 10, 2015, Mrla called him regarding the Flores grievance
and started the conversation with, “What the hell is going on with
all this crap I’m hearing about your objections to—to making
your members safer by making sure they’re not driving with cell
phones?” Moreover, Mrla stated at a management-union meet-
ing on October 23, 2015, that he considered that Hooker had filed
a (voluminous) August 13 RFI in connection with the Flores
grievance to harass management. Granted, the RFI was exceed-
ingly lengthy, and the Respondent certainly had the right, which
it exercised, to object to production on relevance and other
grounds (this holds true of all RFIs at issue in this case); how-
ever, any retaliation against Hooker in his terms and conditions
of employment was not a proper vehicle to express opposition to
the way he was conducting union business. Furthermore, at the
February 18 management-union meeting, Mrla and Brash
averred that Hooker’s noncompliance in turning in activity logs
amounted to insubordination, and the meeting ended with Mrla
accusing Letts of condoning Hooker’s misconduct and, in es-
sence, walking out.
Based on the above, I find both express and implied animus.
In particular, the timing of Mrla’s call to Hooker on October 5,
2015 on the subject—the first since January 2014, and only a day
before the NLRB hearing—raises a strong inference of unlawful
motive. See State Plaza Hotel, 347 NLRB 755, 756 (2006); La
Gloria Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71
Fed.Appx. 441 (5th Cir. 2003).
I therefore conclude that the General Counsel has met all four
elements in establishing a prima facie case of unlawful action. I
now turn to whether the Respondent has rebutted this prima facie
showing. Again, the Respondent’s justification for putting
Hooker back in the load was not that it needed him for workload
considerations but that Mrla wanted “consistency” in his organ-
ization as far as the treatment of stewards. I find this argument
flimsy in light of (1) no evidence that any stewards or union
members ever complained to management that Hooker was not
in the load, (2) the practice was long established that the AA was
on full-time union status, and Hooker had enjoyed such status
for approximately 5 years; (3) business considerations were es-
sentially irrelevant, and the Respondent provided no cogent le-
gitimate justification for the timing of its conduct. Accordingly,
I conclude that the Respondent has not met its burden of persua-
sion of showing that it would have placed Hooker back in the
load in December 2015 had it not been for his engagement in
union activity as the Local’s AA. Therefore, the Respondent
also violated Section 8(a)(3) and (1) by such conduct.
Requiring Hooker to Complete Union Activity Logs
Prior to Hooker’s returning to the load in December 2015,
Brash created an activity log form for Hooker to fill out to doc-
ument his MXUP time after the fact. Brash attempted to portray
this as an accommodation to Hooker, inasmuch as all other stew-
ards had to give advanced notice before they took such time, and
the Respondent’s brief reiterates this argument (Br. at 131, et.
seq.). Clearly, Hooker resisted complying with the requirement.
However, absent the Respondent’s unlawful removal of Hooker
from full-time union status and placing him in the load, the mat-
ter of activity logs would never have materialized. That aside,
none of the elected union officials or Hooker prior to December
2015 had to do anything other than enter their MXUP and
MXUU, and code the former, in the electronic recordkeeping
program. If the Respondent did have issues concerning whether
Hooker was properly claiming MXUP as a full-time union rep-
resentative, it had the option of disputing his claim for such and
having the Union grieve any denials of such time if it so chose.
The Respondent argues (Br. 135–136) that the activity log was
not a unilateral change “but a contractual prerogative.” How-
ever, the cases cited involved modification or more consistent
enforcement of existing policies, not imposition of new reporting
requirements on an AA where none previously existed. Nor do
I conclude, as the Respondent contends (Br. 137 – 138), that it
was not required to bargain over their imposition because they
were “so minimal that they lack[ed] an impact.” Rather, they
must be viewed in conjunction with the Respondent’s unilateral
change in compelling Hooker to go back in the load—a change
that Hooker and the Union clearly viewed as seriously detri-
mental and retaliatory.
Accordingly, for the same reasons that I stated for finding
Hooker’s return to the load a violation of Section 8(a)(3), (5),
and (1), the Respondent violated the Act by imposing on Hooker
the requirement that he complete activity logs for his union ac-
tivities. The August 12 written verbal warning flowed directly
from the activity log requirement and was therefore similarly un-
lawful.
Adverse Actions Pertaining to Hooker’s Performance
I will treat the various adverse actions in the aggregate since
each one cannot be considered separately and in a vacuum. The
record demonstrates, and I conclude, that management long con-
sidered Hooker to be difficult and overbearing in his conduct of
union business, and that from the outset of Hooker’s return to the
load, (1) management believed that he misused union time and
was suspicious of his willingness to perform tech work; (2)
Hooker suspected that management was targeting him and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
looking to find faults in his performance; and (3) Hooker was
clearly peeved at being placed back in the load and did not act in
a manner that diffused management’s negative perceptions. The
result of the confluence of these factors was incessant and esca-
lating conflict.
Again, the appropriate framework for analysis is Wright Line,
since employer motivation is key. I previously discussed why
the elements of union activity and employer knowledge have
been established. As to actions, the Respondent imposed various
disciplines on Hooker, ultimately resulting in his termination.
The animus that I found was behind his being put back in the
load has to be considered to have continued when he returned to
work rather than having been magically extinguished. This is
especially so when, after Hooker returned to the load, he contin-
ued to have friction with management over the way he conducted
union business. Accordingly, the General Counsel has estab-
lished a prima facie case that the disciplines were unlawfully mo-
tivated.
The remaining issue is whether the Respondent has rebutted
that prima facie case. The answer is no. First and foremost, an
employer may not discipline an employee for conduct that would
not have occurred but for the employer’s unfair labor practice.
This is based on the principle that an employer should not be
allowed to benefit from its own unlawful actions. See E.I.
Dupont De Nemours & Co., 362 NLRB No. 98 (2015) (employer
prohibited from disciplining employee based on statements
made during investigative interviews where employee was un-
lawfully denied union representation); Preferred Transporta-
tion, Inc., 339 NLRB 1, 3 (2003), in which the Board stated:
“[M]isconduct provoked by an employer’s unfair labor practice
is not grounds for discharge. The common law principle is that
employers should not be permitted to take advantage of their un-
lawful actions, even if employees may have engaged in conduct
that—in other circumstances—might justify discipline (internal
citation omitted).”
None of Hooker’s disciplines would have occurred had the
Respondent not placed Hooker back in the load in violation of
Section 8(a)(3) and (5), and to allow the Respondent to benefit
from the direct consequence of its initial commission of unfair
labor practices would be an untenable result. Significantly, the
accusations against Hooker related to how he performed his
work as a tech and not to any allegations of gross misconduct
such as violence against others, destruction of company prop-
erty, malicious maligning of the Company to the public, or the
like. Accordingly, I find that any derelictions in his conduct
were not egregious to the point where they severed the causal
connection between the Respondent’s disciplines and its original
unlawful act.
Additionally, certain conduct on management’s part after
Hooker returned to the load gives rise to an inference of contin-
ued animus. Thus, Brash’s handling of the GPS investigation
reflected a desire to find cause to discipline Hooker rather than
have impartial fact-finding: Brash did not furnish to Vilik a doc-
ument from the GPS contractor that might have lent credence to
Hooker’s version of the problems that he had with his GPS, and
Brash used the GPS investigation as a means of having Osterberg
spend a good part of a day observing Hooker to find fault with
his conduct wholly unrelated to the GPS matter. Moreover,
trained investigator Vilik thoroughly documented her investiga-
tion of Hooker’s nonreporting GPS but offered no explanation
for her failure to include her conversation with Cardesian, who
offered evidence that might have supported Hooker’s version of
his problems with the GPS. Finally, Sharp did not take into ac-
count Cardesian’s statement on September 22 that Hooker’s mis-
take in diagnosing a problem on September 20 was an easy one
for a tech to make.
The Respondent cites (R. Br. 161) Section 10(c) of the Act
and decisions thereunder, for the proposition that Hooker was
terminated for cause and therefore barred from reinstatement and
backpay; in particular, the Respondent relies on Anheuser-
Busch, Inc., 351 NLRB 644, 644 (2007) as holding that reinstate-
ment is barred by Section 10(c) where an employee engages in
misconduct, even if that misconduct is connected to a unilateral
change. However, the employees in that case were disciplined
as a result of unilaterally-installed security cameras detecting
their misconduct; the unilateral change had discovered but not
caused or contributed to any misconduct, contrary to the situa-
tion here. Moreover, I have found that the Respondent’s disci-
plines of Hooker were motivated by animus for his union activi-
ties. This case therefore squarely fits within the exception to
management’s right to discharge employees enunciated in An-
heuser-Busch, above at 644: an employer “may not discharge
when the real motivating purpose is to do that which [the Act]
forbids. . . .”
I therefore conclude that the Respondent violated Section
8(a)(3) and (1) of the Act by imposing on Hooker the various
disciplines, including discharge, which stemmed from its unlaw-
fully placing him in the load.
Failure to furnish Relevant Information
An employer is obliged to supply information requested by a
collective-bargaining representative that is relevant and neces-
sary to the latter’s performance of its responsibilities to the em-
ployees it represents. NLRB v. Acme Industrial Co., 385 U.S.
432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). To
trigger this obligation, the requested information need only be
potentially relevant to the issues for which it is sought. Pennsyl-
vania Power & Light Co., 301 NLRB 1104, 1104–1105 (1991);
Conrock Co., 263 NLRB 1293, 1294 (1982). Relevance is de-
termined on a case-by-case basis. Columbus Products Company,
259 NLRB 220, 220 fn. 1 (1981).
Requests for information concerning the terms and conditions
of bargaining-unit employees are presumptively relevant. Postal
Service, 359 NLRB 56, 56 (2012); LBT, Inc., 339 NLRB 504,
505 (2003); Uniontown County Market, 326 NLRB 1069, 1071
(1998). An employer must furnish presumptively relevant infor-
mation on request unless it establishes legitimate affirmative de-
fenses to production. Detroit Newspaper Agency, 317 NLRB
1071, 1071 (1995).
Because a bargaining representative’s responsibilities include
the administration of the collective-bargaining agreement and
the processing and evaluating of grievances thereunder, an em-
ployer is obliged to provide information that is requested for the
processing of grievances or potential grievances. Acme Indus-
trial, supra at 436; Postal Service, 337 NLRB 820, 822 (2002);
Beth Abraham Health Services, 332 NLRB 1234, 1234 (2000).
MICHIGAN BELL TELEPHONE CO. 27
When information is presumptively relevant, the employer
has the burden of rebutting the presumption by showing that the
information is either not relevant or cannot, in good faith, be sup-
plied. Coca Cola Bottling Co., 311 NLRB 424, 425 (1993).
If an employer effectively rebuts the presumption of relevance
or otherwise demonstrates a valid reason for not providing the
information, the employer is excused from providing the infor-
mation or from providing it in the form requested. United Parcel
Service of America, Inc., 362 NLRB No. 22, slip op. at 3 (2015),
citing Coca Cola Bottling, above.
RFI—Hooker’s Placement in the Load and Having to Submit
Union Activity Logs
Items 2–6 of Hooker’s December 23, 2015 RFI requested over
60 individual requests for information going back to January 1,
2010 for techs in the Grand Rapids FAA. Brash initially re-
sponded on February 5, 2016, along with sending 39 email at-
tachments. On specific items, he responded:
Item 2—work group schedules—Brash objected on relevance
but provided the work schedules for 2015 on. At a grievance
meeting in late February or early March, Brash explained that
the workloads were completely different from last year, let alone
5 years earlier.
Item 3—vacation schedules—Brash objected on relevance but
later provided the 2015 and 2016 annual vacation reports.
Item 4—each day’s starting workload and ending workload
not completed that day or carried over to the next day—Brash
responded that no such documents were maintained but respon-
sive records in the Company’s possession would be provided.
Item 5—dates during which employees were “loaned” into or
from other organizations within the Company—Brash responded
that the Company did not maintain or posses—personnel who
had received training—Brash objected on relevance but provided
such information for the preceding 6 months.
Concerning items 4 and 5, I conclude that the Respondent sat-
isfied its obligation to timely disclose that no such requested in-
formation existed. See Graymont PA, Inc., 364 NLRB No. 37
(2016), citing Endo Painting Service, Inc., 360 NLRB 485, 486
(2014). In this regard, Hooker requested a great deal of infor-
mation, and the Respondent’s response 5 weeks later in this con-
text was not unduly dilatory. Contrast this with the 13-month
delay in Endo Painting and the 6-month delay in Graymont, both
found unlawful. The Union did not thereafter ask the Respond-
ent for further information or whether any alternative sources ex-
isted.
Regarding items 2, 3, and 6, the Respondent only partially
complied, providing no documents prior to 2015. Here, I note
Hooker’s testimony that although these RFIs were based on the
Company’s assertions that it needed him back in the load be-
cause of heavy workload needs, no one in management actually
said this to him prior to his making the RFI. However, the Re-
spondent did not, in its objections to the RFIs, clearly state that
the documents were irrelevant because workload needs played
no part in its decision to place him back in the load in 2015. Had
the Company done so, then its relevance objection to those doc-
uments would have been justified. Because management did not,
the Respondent did not rebut the presumptive relevance of doc-
uments concerning work levels between 2010 and 2015. In this
regard, Brash’s conclusionary statement at the grievance meet-
ing that workloads were completely different from year to year
did not answer the question of whether the workload changes
between 2010 and 2015 provided a basis for Hooker being
placed back in the load in 2015.
Based on Hooker’s testimony regarding the purpose for the
RFIs, I do see a relevance issue as to item 6. However, it was up
to the Respondent to explain why the information was irrelevant,
and by furnishing 6 months of training records, the Respondent
tacitly conceded the relevance of the subject matter (although not
for the period sought).
Turning to item 7, relating to the union activity logs, part 1
requested information concerning all designated CWA repre-
sentatives in Mrla’s organization, including whether they were
appointed or elected, and whether they were required to fill out
“special timesheets”; and part 2 requested information regarding
the “special timesheet”: the genesis of the “special timesheet,”
the company policy that mandated it, how it would be stored, the
length of retention, and who would have access to it.
Hooker testified that this was for the purpose of challenging
the Company’s position that he was the only full-time, non-
elected representative in Mrla’s organization and had the most
MXUP time in Mrla’s territory, and to confirm that he was the
only one required to fill out a special time sheet.
Brash responded on February 5 that the Union, not the Com-
pany, possessed the information in Part 1. As to part 2, he replied
that the Company did not maintain documents known as “special
timesheets.” At the grievance meeting in February or early
March, Brash told Hooker that he was the only union representa-
tive asked to fill out the activity log.
As to part 1, Mrla represented to the Union that Hooker was
the only full-time union nonelected union representative in his
organization and advanced that reason for putting him in the
load. At meetings with the Union, he cited the Schall Report as
corroboration. He allowed union representatives to look at the
document but not give them a copy, as they requested, because
it might have been “proprietary.” Neither at those meetings nor
at trial did Mrla provide any basis for such a conclusion. Such
information was clearly relevant to the grievance and not in any
way burdensome. That the union might have had alternative
means to obtain it, i.e., from sister locals, is unavailing as a de-
fense. River Oak Center for Children, Inc., 345 NLRB 1335,
1335–1336 (2005), citing Hospital Care Center, 307 NLRB
1131, 1135 (1992), enf. denied on other grounds 35 F.3d 828 (3d
Cir. 1994).
Therefore, the Respondent was obliged to furnish the Schall
Report in response to part 1. Regarding part 2, the communica-
tions between the parties established that Brash originated the
activity log specifically for Hooker, so that its genesis was al-
ready known to Hooker and the Union. On the other hand,
Hooker had a legitimate interest in knowing how the timesheet
would be stored, length of retention, and who would have access
to it. The Respondent did not provide any of this information.
Accordingly, I conclude that the Respondent violated Section
8(a)(5) and (1) by not providing all of the documents requested
in items 2, 3, 6, and 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
RFI—Truck Swap Grievance
Hooker’s April 7 RFI request stemmed from his grievance
over the truck swap, which contended that the Company violated
the mutual respect provision (art. 4) in the CBA. Hooker testi-
fied that he believed Sharp was retaliating against the Union by
sowing dissent among the crew, particularly within the Union
inasmuch as Campbell was Hooker’s chief steward.
Hooker requested, (1) a list of vehicles provided to Campbell,
Hooker, and Smith since January1, 2009, and the reason for each
change of vehicle for each employee; (2) a list of all factors con-
sidered for the truck swap on February 24; (3) the estimated date
for completion of the removal of air equipment from Hooker’s
truck and placement of same in Campbell’s truck and the cost
estimate; and (4) in reference to Sharp’s purported statement at
the March 8 meeting that Campbell was the “most qualified em-
ployee in the district,” Hooker requested a list of all employees
in the district and their qualifications. As I stated, I credit Sharp
that he said Campbell was the most qualified employee in his
crew. Therefore, the Company was not required to provide such
information district-wide.
Brash responded the next day, questioning the relevance of the
request in view of the Company’s discretion to assign tools and
equipment in accordance with business needs, and the relevance
of documents going back more than 6 months. On April 25,
Brash answered the specific requests:
Item 1—the Company did not maintain the information or have
it reasonably accessible.
Item 2—the Company had already provided those reasons to
the Union (at the first-step grievance meeting), the Company
had discretion to assign work tools, and all were assigned work
trucks based on their qualifications.
Item 3—the refitting of Campbell’s truck had been completed,
and the truck had been in service since April 20. The cost had
already been provided to the Union.
Item 4—Brash provided a list of all technicians in Sharp’s crew
and the call-out sheet for the week of April 22–29, which
checked off the types of work for which they were qualified.
On May 26, Hooker filed a second RFI. He asked as to item
1 what obstacles prevented the Company from providing such
information, including a description of how the information was
collected, maintained, stored, and/or accessed. The burden then
shifted back to the Company to justify its position that the infor-
mation was not maintained or reasonably accessible. As to item
2, Hooker requested a wide range of information regarding the
business justifications for the truck swap, and the conversation
of other vehicles. On item 3, Hooker requested details regarding
the method and manner by which the information was provided
to the Union. Concerning item 4, Hooker requested the dates
Campbell, Hooker, and Smith achieved the qualifications listed
on the call-out list, a comprehensive list of the criteria used to
assign a “qualified” designation for employees in the district; and
any and all company material describing how to assign qualifi-
cations to employees within the work-group. The Company
never responded to his second RFI.
Although the RFIs were based on Hooker’s suspicion as to the
motive behind the truck swap, Southern Nevada Builders Assn.,
274 NLRB 350, 351 (1985), cited by the Respondent (Br. 170),
is inapposite because it held that a union “must offer more than
mere ‘suspicion or surmise’ for it to be entitled to the infor-
mation” it requests concerning nonbargaining unit employees.
As to the first RFI, the Respondent timely answered that it did
not maintain or have readily available the requested information
or had already provided the information, and I find no violation
of Section 8(a)(5).
However, the Respondent failed to respond in any way to the
Union’s second RFI, which asked for further information sup-
porting the Company’s claim that certain documents were not
maintained or readily available and its claim that certain infor-
mation had already been provided to the Union. The Respondent
could easily have elaborated on these contentions. Nor did the
Respondent respond to the request for additional information re-
garding item 2. The Respondent might well have been justified
in timely objecting to furnishing certain information on the
grounds of relevance, burdensomeness, or other legitimate
grounds, but it did not enjoy the prerogative of simply ignoring
the request. See Columbia University, 298 NLRB 941, 945
(1990), citing Ellsworth Sheet Metal, 232 NLRB 109, 109
(1977). Therefore, the Respondent violated Section 8(a)(5) and
(1) by not furnishing such information (other than Hooker’s re-
newed request for information pertaining to the qualifications of
employees district-wide, which was overly broad).
Respondent’s Confidentiality Policy
The policy of Reporting Privacy Related Incidents applies to
all business activities and employees at AT&T. The rule men-
tions nothing explicitly about employees’ compensation or ben-
efits. AT&T Vice President Smith testified that the policy is de-
signed to be in compliance with Federal and state laws and that
“employee information” means customer proprietary network
information (CPNI), personal information/identifiable infor-
mation (PI/PII), and sensitive personal information (SPI), and no
other information. The rule does not, however, contain that clar-
ification.
In The Boeing Co., 365 NLRB No. 154 (2017), the Board
overturned Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), and set out a new test to evaluating rules that are not ex-
plicitly unlawful: balancing (1) the rule’s potential impact on
protected concerted activity; and (2) the employer’s legitimate
business justifications for maintaining the rule. As the Board
explained, if the justifications for the rule outweigh the potential
impact on employees’ rights, the rule is lawful; conversely, if the
potential impact on employees’ rights outweighs the justifica-
tions for the rule, it is unlawful. The Board set out three catego-
ries of employer rules:
Category 1—(1) the rule, when reasonably interpreted does not
prohibit or interfere with the exercise of NLRA rights, such as
rules governing the harmonious interactions and relationships
or requiring employees to abide by basic standards of civility;
or (2) the rule’s potential adverse impact on protect rights is
outweighed by justifications associated with the rule.
The Board in Boeing found that the Company’s numerous jus-
tifications for its noncamera rule, among which were limiting the
MICHIGAN BELL TELEPHONE CO. 29
risk that employees’ personally identifiable information would
be released, and complying with federally mandated require-
ments, outweighed any potential adverse (“comparatively
slight”) impact on protected rights. Ibid at slip op. 4–5. Accord-
ingly, the Board concluded that the rule was a lawful “Category
1” rule.
Category 2—rules requiring individualized scrutiny on
whether they would prohibit or interfere with NLRA rights
and, if so, whether any adverse impact on protected conduct is
outweighed by legitimate justifications.
Category 3—rules that are unlawful to maintain because they
would expressly prohibit or limit NLRA-protected conduct,
and the adverse impact on NLRA rights is not outweighed by
justifications associated with the rule.
I agree with the parties (GC Br. at 68, et. seq.; R. Br. at 178,
et seq.) that the rule is facially neutral and that its justifications
must be weighed against the degree to which it negatively im-
pacts employees’ protected activity, placing it in category 2. The
Respondent contends that it has a compelling interest in protect-
ing the privacy of customer and employee information, and that
the rule has an “insignificant impact” on Section 7 rights (R. Br.
at 181). The General Counsel, on the other hand, argues that the
rule has a “severe” impact on those rights, chilling employees
from discussing among themselves, or sharing with others (in-
cluding union representatives), information relating to their
wages, hours, or working conditions (GC Br. at 71).
Because the Definitions section specifies the three types of in-
formation to which the disclosure requirement pertains (CPNI,
PI/PII, SPI), the inference is weakened that employees would
construe the rule as applying to their wages and other terms and
conditions of employment. The Respondent certainly has a
strong and legitimate interest in protecting such information
from disclosure; even a legal obligation to do so. However, the
last example that is given is “other customer or employee pri-
vacy-related issues or incidents that may negatively impact em-
ployees or customers or result in negative financial and/or repu-
tational consequences to AT&T.” This ambiguous and open-
ended description tends to undermine a reasonable reading of the
rule as applying only to CPNI, PI/PII, and SPI and might well
lead employees to believe that sharing each other’s wages and
benefits might run afoul of the policy and subject them to disci-
pline for engaging in protected activity. The exception for self-
disclosure does not cure this defect because the wages and ben-
efits of a single employee cannot be viewed in isolation or
properly evaluated in a vacuum apart from his or her coworkers.
Indeed, collective activity by definition is conduct by employees
in the plural.
Accordingly, I conclude that the potentially adverse effects on
protected activity outweigh the rule’s justifications. I note that
the addition of a simple clarification could cure the policy’s de-
fect.
I therefore conclude that the confidentiality policy violates
Section 8(a)(1).
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By unilaterally placing Hooker in the load and requiring
him to fill out union activity logs, the Respondents have engaged
in unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(3),
(5), and (1) of the Act.
4. By issuing disciplines to Hooker, culminating in his dis-
charge, the Respondents have engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act and violated Section 8(a)(3) and (1) of the Act.
5. By not providing the Union with relevant and necessary
information concerning (A) Hooker’s grievance over his place-
ment in the load and the activity log requirement, and (B) the
“truck swap,” the Respondents have engaged in an unfair labor
practice affecting commerce within the meaning of Section 2(6)
and (7) of the Act and violated Section 8(a)(5) and (1) of the Act.
6. By maintaining a confidentiality policy that is unlawful un-
der the test that the Board enunciated in The Boeing Co., supra,
the Respondent has engaged in an unfair labor practice affecting
commerce within the meaning of Section 2(6) and (7) of the Act
and violated Section 8(a)(1) of the Act.
REMEDY
Because I have found that the Respondents have 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.
The Respondents having discriminatorily terminated Brian
Hooker, must make him whole for any losses of earnings and
other benefits suffered as a result of his discharge. A make-
whole remedy is appropriate because a remedy should “restore
as nearly as possible the situation that would have prevailed but
for the unfair labor practices.” E. I. Dupont, 362 NLRB 843, 849
(2015), quoting State Distributing Co., 282 NLRB 1048, 1048
(1987).
Specifically, the Respondents shall make Brian Hooker whole
for any losses, earnings, and other benefits that he suffered as a
result of his unlawful discharge. The make-whole remedy shall
be computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). In accord-
ance with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in
pertinent part 859 F.3d 23 (D.C. Cir. 2017), the Respondents
shall compensate Brian Hooker for search-for-work and interim
employment expenses regardless of whether those expenses ex-
ceed his interim earnings. Search-for-work and interim employ-
ment expenses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River Medi-
cal Center, supra. In accordance with Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB 101 (2014), the Respondents
shall compensate Brian Hooker for the adverse tax conse-
quences, if any, of receiving a lump sum backpay award, and, in
accordance with AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016), the Respondents shall, within 21 days of the date the
amount of backpay is fixed either by agreement or Board order,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
file with the Regional Director for Region 7 a report allocating
backpay to the appropriate calendar year for Brian Hooker. The
Regional Director will then assume responsibility for transmis-
sion of the report to the Social Security Administration at the
appropriate time and in the appropriate manner.
The Respondents having discriminatorily discharged Brian
Hooker must also offer him full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights or privi-
leges previously enjoyed.
The Respondents shall expunge from their records any and all
references to the disciplines and discharge of Brian Hooker.
The Respondents shall rescind the requirements that Brian
Hooker perform technician work and submit union activity logs.
The Respondents shall provide additional information re-
quested by the Union in its December 23, 2015, and May 26,
2016 requests for information.
The Respondents shall rescind the confidentiality policy in
question or modify it so that it does not interfere with employees’
protected rights.
The Respondents shall post a notice to employees as set out
below.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2121
ORDER
The Respondents, Michigan Bell Telephone Company, and
AT&T Services, Inc., Joint Employers, Grand Rapids, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing the terms and conditions of employ-
ment of union officials.
(b) Changing the terms and conditions of employment of un-
ion officials or disciplining, terminating, or otherwise discrimi-
nating against them because they engage in activities on behalf
of Local 4034, Communications Workers of America (CWA),
AFL–CIO (the Union).
(c) Failing and refusing to provide information that the Union
requests that is relevant and necessary to its processing of griev-
ances under the collective-bargaining agreement.
(d) Maintaining a confidentiality policy that interferes with
employees’ protected rights.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Brian Hooker 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 previ-
ously enjoyed.
(b) Make Brian Hooker whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the decision.
21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful disciplines and
discharge of Brian Hooker, and within 3 days thereafter notify
him in writing that this has been done and that the disciplines and
discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(e) Rescind the requirements that Brian Hooker perform tech-
nician work and fill out union activity logs.
(f) Provide the Union with information that it requested that
is relevant and necessary to its processing of its grievance over
Brian Hooker’s assignment to the load and requirement that he
fill out union activity logs, and to its grievance over the reassign-
ment of trucks.
(g) Rescind the confidentiality policy, or modify it so that it
does not interfere with employees’ protected rights.
(h) Within 14 days after service by the Region, post at their
facilities in Michigan where the Union represents technicians,
copies of the attached notice marked “Appendix.” Copies of the
notice, on forms provided by the Regional Director for Region
7, after being signed by the Respondents’ authorized representa-
tive, shall be posted by the Respondents and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respondents cus-
tomarily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondents have gone out of business or closed
the facility involved in these proceedings, the Respondents shall
duplicate and mail, at their own expense, a copy of the notice to
all current employees and former employees employed by the
Respondents at any time since December 13, 2015.
(i) 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
Respondents have taken to comply.
I FURTHER ORDER that the complaint is dismissed insofar as it
alleges violations of the Act not specifically found.
Dated, Washington, D.C. June 21, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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.
MICHIGAN BELL TELEPHONE CO. 31
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
Local 4034, Communications Workers of America (CWA),
AFL–CIO (the Union) is the collective-bargaining representative
of certain of our employees.
WE WILL NOT make changes in the working conditions of your
union representatives without first providing the Union with no-
tice and an opportunity to bargain.
WE WILL NOT change the working conditions of, discipline,
discharge, or otherwise discriminate against your union repre-
sentatives because they have engaged in activities on behalf of
the Union.
WE WILL NOT require Brian Hooker to work in the load or fill
out union activity logs.
WE WILL NOT fail and refuse to provide the Union with infor-
mation that it requests that is relevant and necessary for it to rep-
resent unit employees.
WE WILL NOT maintain a confidentiality policy that unlawfully
interferes with your rights to engage in the protected activities
described above.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Section
7 of the Act, as set forth at the top of this notice.
WE WILL within 14 days from the date of the Board’s Order,
offer Brian Hooker full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Brian Hooker whole for any loss of earnings
and other benefits he suffered as a result of our discrimination,
with interest.
WE WILL remove from our files any references to Brian
Hooker’s disciplines and discharge, and we will, within 3 days
thereafter notify him in writing that this has been done and that
the disciplines and discharge will not be used against him in any
way.
WE WILL provide the Union with the information that it re-
quested regarding (1) the Union’s grievance over our placing
Hooker in the load and requiring him to fill out union activity
logs, and (2) the Union’s grievance over our reassignment of
trucks between Hooker and other employees.
WE WILL rescind our “Reporting Privacy Related Incidents”
policy or modify it to make it clear that it does not prohibit you
from engaging in protected activities, and notify you in writing
of this rescission or modification.
MICHIGAN BELL TELEPHONE COMPANY, AND AT&T
SERVICES, INC., JOINT EMPLOYERS
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/07-CA-161545 or by using the QR
code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.