T-Mobile USA, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 2020

369 N.L.R.B. 50 (N.L.R.B. 2020)

369 NLRB No. 50
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.
T-Mobile USA, Inc. and Communications Workers of
America, AFL–CIO. Cases 14–CA–155249, 14–
CA–158446, 14–CA–166164, and 14–CA–162644
April 2, 2020
DECISION, ORDER, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On June 28, 2016, Administrative Law Judge Sharon
Levinson Steckler issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party each filed an an-
swering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision, Order, and Notice to Show Cause.2
We agree with the judge, for the reasons she states, that
on June 2 and 4, 2015,3 the Respondent violated Section
8(a)(1) by telling employees that they could not talk about
the Union during worktime in working areas despite per-
mitting discussions of other subjects “not associated or
connected with their work tasks” during worktime in
working areas. Jensen Enterprises, Inc., 339 NLRB 877,
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(1) by: (1) in mid-June or early July 2015
and on December 11 and 21, 2015, interrogating customer service rep-
resentative (CSR) Jerrica Croxson about her friendship with a known un-
ion supporter, her support for the Union, and her involvement in planning
a union event; (2) on December 11 and 21, 2015, creating an impression
of surveillance of Croxson’s union activity; (3) on December 11, 2015,
telling Croxson that it was disappointed in her for engaging in union ac-
tivity; (4) on December 11, 2015, threatening Croxson with loss of cor-
porate awards because she engaged in union activity; and (5) on Decem-
ber 11, 2015, telling Croxson that not supporting the Union would make
her life easier. Also in the absence of exceptions, we adopt the judge’s
dismissal of the allegations that the Respondent violated Sec. 8(a)(1) by:
(1) in mid-June or early July 2015, telling Croxson that engaging in un-
ion activity was detrimental to her success; (2) in mid-June or early July,
2015, interrogating Croxson about her support for the Union; (3) on De-
cember 11, 2015, asking Croxson if she thought her supervisory coach
was stupid by thinking she was unaware of her union activity; and (4) on
December 14, 2015, singling out Croxson for closer supervision because
of her union activity.
878 (2003).4 We also agree with the judge that, on June
4, the Respondent violated Section 8(a)(1) by surveilling
employees and interrogating employees about their union
activity and, in early June, telling CSR Jerrica Croxson
that it was creating a seating chart to isolate employees
because of their union activity and by subsequently main-
taining and implementing that seating chart to isolate cer-
tain employees because of their union activity.5
The judge found that on August 20, the Respondent’s
security guard unlawfully told CSR Abigail Parrish, when
no other employees were present, that she could not dis-
tribute union flyers outside of the west entrance to the Re-
spondent’s building while off duty.6 The Respondent ex-
cepts, contending that it effectively repudiated the unlaw-
ful statement less than an hour later when the Respond-
ent’s chief of human resources, Larissa Wray-Tolbert,
emailed Parrish that the security guard was “in error” and
that “[t]here’s no prohibition against your distributing un-
ion literature in a non-working area during non-working
time.” We find merit in the Respondent’s exception.
Under Passavant Memorial Area Hospital, an employer
effectively repudiates unlawful conduct if the repudiation
is timely, unambiguous, specific in nature to the coercive
conduct, and free from other proscribed illegal conduct.
237 NLRB 138, 138 (1978); see also TBC Corp., 367
NLRB No. 18, slip op. at 2–3 (2018). The Respondent’s
conduct met that standard.7 Wray-Tolbert’s email repudi-
ating the security guard’s statement was timely, unambig-
uous, and specific in nature to the coercive conduct. It
2 We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language, and we shall
substitute a new notice to conform to the Order as modified.
3 All dates hereinafter are in 2015 unless otherwise indicated.
4 The judge mistakenly found that the Respondent told employees
that they could not talk about the Union in “nonwork” areas instead of
“working” areas. We correct this inadvertent error.
In finding this violation, Member Emanuel notes that the allegation is
solely that the Respondent unlawfully told employees that they could not
talk about the Union during worktime in working areas despite permit-
ting discussions of other nonwork-related subjects in working areas.
There is no allegation, nor would he find, that the Respondent’s June 4
statement to employees that they could not distribute union literature in
working areas was unlawful, or that the Respondent would have acted
unlawfully if it had prohibited solicitation during working time.
5 We find it unnecessary to pass on whether the maintenance and im-
plementation of the seating chart also violated Sec. 8(a)(3) because it
would not materially affect the remedy.
6 There is no allegation that Parrish sought to distribute union leaflets
inside the Respondent’s building while off duty. Although on a separate
occasion Parrish distributed union leaflets in the Respondent’s lunch-
room, that was during her lunchbreak.
7 Chairman Ring and Member Emanuel express no opinion with re-
spect to whether the Passavant requirements represent a proper standard
for effective repudiation of unlawful conduct, but they agree that the Re-
spondent’s actions met the Passavant standard in this case.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
informed Parrish—the only employee to whom the secu-
rity guard made the coercive statement—that the security
guard was “in error” and that she was free to distribute
union literature in nonworking areas during nonworktime.
There is no evidence that any other employees knew about
this incident.
The judge found the repudiation ineffective because the
Respondent’s email to Parrish did not tell her that the Re-
spondent would not repeat its action. But the email was
clear and to the point: the security guard was wrong, and
Parrish was free to resume the activity the guard had
wrongly prohibited. The reasonable takeaway from the
email was that the prohibition would not be repeated. The
judge also determined that the repudiation was ineffective
because it did not occur in a context free of other unlawful
conduct. However, the Respondent’s other unfair labor
practices were relatively remote in time and did not in-
volve unlawful restrictions on distribution of union litera-
ture. Those other unfair labor practices would not have
affected how Parrish would have reasonably read Wray-
Tolbert’s email informing her that the security guard erred
by preventing her from engaging in protected activity.
Lastly, the judge noted that the security guard’s directive
to Parrish occurred while the Respondent was complying
with the terms of a settlement agreement resolving other
unfair labor practice allegations. Even assuming the Re-
spondent’s contemporaneous compliance with a settle-
ment agreement is relevant here, this also would not have
had any bearing on how Parrish would have reasonably
understood Wray-Tolbert’s email.
An effective repudiation disavows unlawful conduct
and obviates the need for further remedial action. Passa-
vant Memorial Area Hospital, 237 NLRB at 138–139.
There is no dispute that the Respondent’s security guard
unlawfully interfered with Parrish’s Section 7 rights.
However, after learning of the security guard’s statement
to Parrish, the Respondent took immediate action to rec-
tify the situation and make it known to Parrish, unequivo-
cally, that she could distribute union literature in non-
working areas during nonworktime in accordance with the
Respondent’s policy. Moreover, there is no evidence that
the security guard, or anyone else, repeated this type of
coercive conduct. Under all the circumstances, employees
would not reasonably conclude that the Respondent would
prohibit them from distributing union literature in non-
work areas during nonworktime. We do not believe that
further remedial action by the Board would be any more
effective than Wray-Tolbert’s August 20 email to Parrish
in preventing the security guard’s coercive statement from
interfering with employees’ Section 7 rights. Accord-
ingly, in light of the Respondent’s effective repudiation,
we dismiss this allegation.
On May 29, while not on the clock, CSR Chelsea Befort
attempted to use her work email to send a message to her
595 coworkers encouraging them to join the Communica-
tions Workers of America, which was engaged in a multi-
year organizing campaign at her facility. Befort’s email
also advised her coworkers to contact her outside of work-
ing hours with any questions and invited them to attend a
union event the following night. However, she received
an automated notice that the email was not sent to anyone
because the Respondent’s system limits emails from being
sent to more than 100 recipients; the notice instructed Be-
fort to “try to resend with fewer recipients.” Over the
course of the day, while not on the clock, Befort success-
fully sent her email eight separate times, each time to
fewer than 100 recipients, to reach all of her coworkers.
On June 2, after learning about Befort’s emails, the Re-
spondent sent an email to all CSRs and met separately
with Befort. The email and meeting addressed, among
other things, employee email use and union talk during
worktime.
The Respondent asserted that Befort’s email violated its
Acceptable Use Policy, Enterprise User Standard, and No
Solicitation or Distribution Policy. The judge relied on
Purple Communications, Inc., 361 NLRB 1050 (2014), to
find that the Respondent discriminatorily applied those
policies to proscribe Befort’s right to use the Respondent’s
email and computer system to engage in Section 7 activity.
The judge then determined that, in response to Befort’s
protected activity under Purple Communications, the Re-
spondent’s June 2 email unlawfully announced rules pro-
hibiting employees from sending “mass communications”
to other employees, discussing the Union during work-
time, and using social media unless “off the job.” The
judge also applied Purple Communications to find that, in
the June 2 meeting, the Respondent unlawfully told Befort
that employees could not send “mass emails” or union-re-
lated emails to other employees’ work email addresses.
Recently, the Board overruled Purple Communications
and announced a new standard that applies retroactively to
all pending cases. Caesars Entertainment d/b/a Rio All-
Suites Hotel & Casino, 368 NLRB No. 143, slip op. at 8-
9 (2019). In that decision, the Board held, in relevant part,
that “an employer does not violate the Act by restricting
the nonbusiness use of its IT resources absent proof that
employees would otherwise be deprived of any reasonable
means of communicating with each other, or proof of dis-
crimination.” Id., slip op. at 8 (emphasis added).
Although the Board in Caesars Entertainment reaf-
firmed that an employer cannot discriminate against Sec-
tion 7 activity in applying a policy that prohibits employ-
ees’ nonbusiness use of its IT resources, we reverse the
judge and dismiss the allegation that the Respondent
T-MOBILE USA, INC. 3
discriminatorily applied its Acceptable Use Policy, Enter-
prise User Standard, and No Solicitation or Distribution
Policy against Section 7 activity.8 As the Board stated in
Register Guard, “in order to be unlawful, discrimination
must be along Section 7 lines. In other words, unlawful
discrimination consists of disparate treatment of activities
or communications of a similar character because of their
union or other Section 7-protected status.” 351 NLRB
1110, 1118 (2007), enfd. in part and remanded sub
nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir.
2009).
Here, the Respondent sent the CSRs numerous emails
on such nonwork-related subjects as free popcorn and
hockey tickets, nacho day in the cafeteria, upcoming salsa
and lip-syncing contests, deaths in employees’ families,
condolence cards, baby showers, and birth announcements
to foster employee morale. In addition, a non-supervisory
senior representative had emailed the entire facility about
a lost phone charger, and the administrative assistant to the
facility’s director had twice emailed all employees about
a birthday card signing for the Respondent’s CEO. How-
ever, the Respondent never permitted emails in favor of a
specific union or against union activity. Instead, the type
of emails that the Respondent sent, or permitted employ-
ees to send, were not in any way connected to Section 7
activity and were not similar in character to Befort’s
emails. In particular, the comparator emails cited by the
General Counsel as disparate-treatment evidence were, by
and large, emails that the Respondent sent for its own busi-
ness-related interests of improving the camaraderie among
its work force or helping to reunite a lost item with its
owner. There is no evidence that the Respondent permit-
ted employees to send mass emails for their personal ben-
efit, much less to further any organizational purpose. In
short, the General Counsel failed to satisfy his burden of
proving that the Respondent discriminatorily enforced its
Acceptable Use Policy, Enterprise User Standard, or No
Solicitation or Distribution Policy against Section 7 activ-
ity.9
As stated above, Caesars Entertainment recognizes a
limited exception that permits employees to access their
employer’s IT resources for nonbusiness use, even absent
discrimination, where the employees would otherwise be
deprived of any reasonable means of communication with
each other. The parties have not had an opportunity, on
8 No party excepted to the judge’s finding that the complaint alleged
only that the policies were discriminatorily applied, not that they were
facially unlawful.
9 In Caesars Entertainment, the Board did not address what impact,
if any, the standard announced in Kroger Ltd. Partnership I Mid-Atlan-
tic, 368 NLRB No. 64 (2019), for evaluating allegations of discrimina-
tory denial of access to nonemployee union agents has on the
the facts of this case, to address this exception to the rule
of Caesars Entertainment. Accordingly, we sever and re-
tain for further consideration complaint paragraphs 6,
7(a), and 7(c), as to which the lawfulness of the Respond-
ent’s conduct is dependent on whether Befort engaged in
protected activity under Caesars Entertainment by send-
ing her emails, and we issue below a notice to show cause
why the allegations in those complaint paragraphs should
not be remanded to the judge for further proceedings in
light of Caesars Entertainment, including, if necessary,
the filing of statements, reopening the record, and issuance
of a supplemental decision.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 9.
“9. On June 2 and 4, 2015, Respondent violated Section
8(a)(1) of the Act by telling employees that they could not
discuss the Union during work time in working areas de-
spite permitting discussions of nonwork-related subjects
during work time in working areas.”
Substitute the following for Conclusion of Law 15.
“15. Respondent violated Section 8(a)(1) of the Act by
creating and maintaining a seating chart to isolate employ-
ees because of their Union activities and sympathies.”
Delete Conclusions of Law 5, 6, 7, 8, and 10 and renum-
ber the subsequent paragraphs accordingly.
ORDER
The National Labor Relations Board orders that the Re-
spondent, T-Mobile USA, Inc., Wichita, Kansas, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they cannot talk about the
Union during worktime in working areas despite permit-
ting discussions of other nonwork-related subjects during
worktime in working areas.
(b) Coercively interrogating employees about their un-
ion or other protected concerted activities.
(c) Placing employees under surveillance while they
engage in union or other protected concerted activities.
(d) Creating the impression that it is engaged in surveil-
lance of its employees’ union or other protected concerted
activities.
(e) Telling employees that they will be isolated by a
seating chart because they engaged in union or other pro-
tected concerted activities.
discriminatory-enforcement standard in Register Guard. 368 NLRB No.
143, slip op. at 8 fn. 68. We find it unnecessary to pass on that issue here
because the comparator emails cited by the General Counsel are clearly
“not similar in nature to those that [the Respondent] prohibited,” in light
of the Respondent’s stated purpose for sending those emails or permit-
ting others to send them. Kroger, 368 NLRB No. 64, slip op. at 2 fn. 5,
10.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Isolating employees by implementing and maintain-
ing a seating chart because they engaged in union or other
protected concerted activities.
(g) Threatening employees with loss of corporate
awards if they engaged in union or other protected con-
certed activities.
(h) Telling employees that it is disappointed with them
because they engaged in union or other protected con-
certed activities.
(i) Telling employees that not engaging in union or
other protected concerted activities would make their lives
easier.
(j) 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) Within 14 days after service by the Region, post at
its Wichita Call Center in Wichita, Kansas, copies of the
attached notice marked “Appendix.”10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 14, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
June 2, 2015.
(b) Within 21 days after service by the Region, file with
the Regional Director for Region 14 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that complaint paragraphs 6,
7(a), and 7(c) are severed and retained for further consid-
eration.
Further, NOTICE IS GIVEN that cause be shown, in writ-
ing, filed with the Board in Washington, D.C., on or be-
fore April 16, 2020 (with affidavit of service on the parties
10 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
to this proceeding), why complaint paragraphs 6, 7(a), and
7(c) should not be remanded to the administrative law
judge for further proceedings consistent with the Board’s
decision in Caesars Entertainment, including, if neces-
sary, the filing of statements, reopening the record, and is-
suance of a supplemental decision. Any briefs or state-
ments in support of the response shall be filed on the same
date.
Dated, Washington, D.C. April 2, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, 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 vi-
olated 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 tell you that you cannot talk about the Un-
ion during worktime in working areas despite permitting
discussions of other nonwork-related subjects during
worktime in working areas.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
T-MOBILE USA, INC. 5
WE WILL NOT coercively interrogate you about your un-
ion or other protected concerted activities.
WE WILL NOT place you under surveillance while you
engage in union or other protected concerted activities.
WE WILL NOT create the impression that we are engaged
in surveillance of your union or other protected concerted
activities.
WE WILL NOT tell you that you will be isolated by a seat-
ing chart because you engaged in union or other protected
concerted activities.
WE WILL NOT isolate you by implementing and main-
taining a seating chart because you engaged in union or
other protected concerted activities.
WE WILL NOT threaten you with loss of corporate
awards if you engage in union or other protected concerted
activities.
WE WILL NOT tell you that we are disappointed with you
because you engaged in union or other protected concerted
activities.
WE WILL NOT tell you that not engaging in union or
other protected concerted activities would make your lives
easier.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
T-MOBILE USA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/14-CA-155249 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
William F. LeMaster, Esq. ,for the General Counsel.
Mark Theodore, Esq. and Irina Constantin, Esq., for the Re-
spondent.
1 Charge 14–CA–155249 was filed on July 1, 2015, and amended on
September 23, 2015. Charge 14–CA–158446 was filed on October 19,
2015. Charge 14–CA–162644 was filed on October 26, 2015 and
Glenda Pittman, Esq. and Meron Kebede, Esq., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge.
This case was tried in Wichita, Kansas, on March 15 and 16,
2016, upon charges1 filed by the Communication Workers of
America, AFL–CIO (Union) against T-Mobile USA, Inc. (Re-
spondent). The General Counsel issued a complaint on Septem-
ber 28, 2015 and subsequent Consolidated Complaints on Octo-
ber 23, 2015, December 23, 2015, and February 19, 2016.2
Respondent filed timely answers to the complaint, including
on March 4, 2016 to the Third Consolidated Complaint (Com-
plaint), which denies all wrongdoing. The Third Consolidated
Complaint (Complaint) alleges Respondent violated Section
8(a)(1) and (3) of the Act, which will be discussed in 3 groups.
The first group alleges Respondent violated Section 8(a)(1) with
the following rules:
(1) The portion of the Acceptable Use Policy for Information
and Communication Resources, limiting use of computers to
legitimate business purposes, which did not include junk mail
and chain letters, was disparately enforced.
(2) About June 2, by e-mail, Respondent promulgated and
maintained rules against sending “mass emails” to other em-
ployees, prohibited discussing the union during work time, and
prohibited employees from using social media while at work,
all of which were overly broad and disparately enforced.
The second group also alleges violations of Section 8(a)(1):
(1) About June 2, Respondent: prohibited employees from
sending “mass e-mails;” prohibited employees from talking
about the union during working time although permitting em-
ployees to discuss other subjects (and again on June 4); and,
prohibited employees from sending Union-related emails to
employees’ work email addresses.
(2) About June 4, Respondent: interrogated employees about
their union membership, activities and sympathies; and, en-
gaged in surveillance of employees by congregating with em-
ployees in a break area that was out of the ordinary.
(3) Between mid-June and early July, Respondent: threatened
employees with unspecified reprisals; interrogated employees
about their union activities, sympathies and membership as
well as other employees; asked if employees were friends with
a known Union supporter; and, restrained and coerced employ-
ees by creating a seating chart to isolate union supporters.3
(4) About December 11, Respondent: created an impression of
surveillance by telling employees that Respondent saw photos
of employees engaged in union activities outside of work; told
employees that it was disappointed that employees engaged in
Union activity; interrogated employees about their union
amended on December 2, 2015. Charge 14–CA–166164 was filed on
December 16, 2015 and amended on February 12, 2016.
2 All dates are 2015 unless otherwise indicated.
3 General Counsel, in its brief, withdrew complaint ¶10(e).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
activities and sympathies by asking employees if they intended
to be outspoken about the Union and whether they changed
their stance on the Union; threatened employees that they
would not be considered for an award because of Union activ-
ities and sympathies; and threatened unspecified reprisals by
telling employees that their time with Respondent would be
more difficult if they were outspoken about the Union.
(5) About December 21, Respondent: created an impression of
surveillance by telling employees they were creating turmoil
and must be getting paid by the Union to keep support going;
and, interrogated its employees by asking if they were involved
in planning a Union event.
(6) The third group alleges two violations of Section 8(a)(3):
The first alleges that Respondent imposed a seating chart due
to employees’ union sympathies and activities. The second al-
leges Respondent imposed more onerous working conditions
upon employee Jerrica Croxson by requiring that she adhere to
a detailed work schedule.
(7) Upon the entire record, including my observation of the
demeanor of the witnesses, and after considering the briefs
filed by General Counsel, the Union and Respondent, I make
the following
FINDINGS OF FACT
JURISDICTION
At all material times, Respondent has been a corporation, with
an office and place of business located in Wichita, Kansas. It is
engaged in telecommunications business operations throughout
the United States and Puerto Rico. T-Mobile USA, Inc., 363
NLRB No. 171, slip op. at 11 (2016). In conducting its opera-
tions during the 12-month period ending August 31, 2015, Re-
spondent derived gross revenues in excess of $100,000 and pur-
chased and received goods and materials valued in excess of
$5,000 directly from points outside the State of Kansas. At all
material times, T-Mobile has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
At all material times, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
STATEMENT OF FACTS4
I. RESPONDENT’S BACKGROUND AND OPERATIONS
The Wichita Call Center employs approximately 600 cus-
tomer service representatives (CSRs), who take calls at their
4 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather upon my review and
consideration of the entire record for this case. My findings of fact en-
compass the credible testimony, evidence presented, and logical infer-
ences. The credibility analysis may rely upon a variety of factors, in-
cluding, but not limited to, the context of the witness testimony, the
weight of the respective evidence, established or admitted facts, inherent
probabilities, and reasonable inferences that may be drawn from the rec-
ord as a whole. Double D Construction Group, 339 NLRB 303, 303–305
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto-
motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.
Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness
are not likely to be an all-or-nothing determination and I may believe that
workstations. The hours of operation are 7:30 a.m. until mid-
night each day. The CSRs are organized in one of two groups:
General Care and Onboarding. The CSRs assigned to General
Care assist customers with their questions about their accounts
and devices and sell services. The Onboarding CSRs, estab-
lished in March 2015, handle customers who are within their 30-
day onset of service. CSRs are expected to keep their headsets
on except when they are on break or at lunch. The headsets are
not wireless. Despite the tethering with the headsets, CSRs who
are not answering calls talk freely with each other about any and
all subjects.
Usually 15 CSRs, a senior representative and a coach com-
prise a team. The CSRs and the senior representative, who is not
considered in supervision or management, report to the coach.
Each team is located in working area known as a pod. The seat-
ing arrangement in each pod locates the CSRs’ cubicles on an
outer ring. The CSRs are seated facing outward. The senior rep-
resentative and coach sit in the center of the pod. (GC Exh. 5).
The pods within the Call Center are separated by taller walls and
walkways go to the pods. Multiple pods play music, sometimes
to the point where customers complain about the loudness of the
music.
The coach, who is considered part of the management team,
reports to the team manager. The Director of the Wichita Call
Center is Jeff Elliott.
The Union has been trying to organize the Wichita Call Center
since 2009. Two unfair labor practices settlements deal specifi-
cally with the Wichita Call Center. The first, approved on Sep-
tember 2, 2011, settled solicitation and interrogation allegations
and included a non-admissions clause.
The second Wichita settlement, approved July 28, 2015, did
not include a non-admissions clause. It settled allegations that
Respondent interrogated employees, made threats of unspecified
reprisals, and told employees that they could not discuss or en-
gage in activities with other employees regarding wages, hours
and other terms and conditions of employment. It also settled
two disciplinary actions taken against Jerrica Croxson (Crox-
son), an alleged discriminatee in the current case. (GC Exh. 27.)
If Respondent spots union activities at the Wichita Call Cen-
ter, it generates a TPA (Third Party) Report. Senior Manager
a witness testified credibly regarding one fact but not on another.
Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably disposed
to the party, an adverse inference may be drawn regarding any factual
question on which the witness is likely to have knowledge. International
Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d (6th
Cir. 1988). This is particularly true where the witness is the Respondent’s
agent. Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006). Testimony from current employees tend to be particularly relia-
ble because it goes against their pecuniary interests. Gold Standard En-
terprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB
1304 fn. 2 (1961); Gateway Transportation Co., 193 NLRB 47, 48
(1971); Federal Stainless Sink Division, 197 NLRB 489, 491 (1972).
T-MOBILE USA, INC. 7
Human Resources Business Partner5 Larissa Wray-Tolbert
(Wray-Tolbert) first explained the TPA Report covered any
third-party contact or events, including union activity, which
might disrupt the Call Center operations. For example, Respond-
ent instructs security guards to monitor and report any union ac-
tivities to the Human Resources department. Upon further ex-
amination, Wray-Tolbert admitted one to two TPA reports per
week are written, and all TPA Reports discuss union activities.6
An example is when an employee complains of being upset or
harassed. Another was if the “third party” was present at the end
of the driveway. Wray-Tolbert then forwards the TPA by email
to corporate headquarters and other human resources personnel
in Wichita. She also sends to “retail partners” in the area, such
as Metro PCS.
One TPA Report example occurred on November 10. A CSR
told a few team members in her pod that food was “out back.”
When the senior representative asked why, the CSR said it was
with the Union. In the same report, the TPA Report noted Union
activity, with signs and flyers. The flyers were attached. An-
other TPA Report stated that the guard, during rounds, asked
someone to remove a coat hanging over Respondent’s stop sign.
II. EMAIL USAGE AND RESPONDENT’S ACCEPTABLE USE POLICY
FOR INFORMATION AND COMMUNCATIONS RESOURCES
A. CSRs Routinely Use Electronic Communications at Work
The CSRs routinely use computers as part of their jobs. The
computer system has instant messaging (IM) for immediate com-
munication within the facility, which employees use routinely.
Employees also have sent emails throughout the facility.
The employees send and receive emails with other CSRs,
coaches, senior representatives, and team managers. They also
receive emails from the director. (Tr. 45, 106). Some of the
emails are Respondent notifications to employees when fresh
popcorn or slushies are available or for nacho day in the cafete-
ria. Other Respondent emails ask employees to participate in a
salsa7 contest or a lip sync contest,8 or offer free hockey tickets.
An employee who could not find a telephone charger sent an
entire email to the facility. Another employee sent notification
of birthday plans for another employee throughout the facility.
The facility sent notification of birth announcements to all em-
ployees; some employees would respond for congratulations
through the “Reply All” function, which would send the email to
all recipients. Other CSRs testified that they use the “Reply All”
function for distribution lists to the entire facility.
Director Elliott testified that the birth announcements were
business-related because “[w]e are like a family . . . . It is our
people.”9 Baby showers also may take place in which the staff
5 Wray-Tolbert’s position is chief of human resources at the Wichita
Call Center. Her department covers employee relations, payroll, benefits
and other human resources functions.
6 General Counsel’s subpoena duces tecum to Respondent requested
all TPA Reports for a specific period. Respondent produced those rele-
vant to the allegations and I granted, in relevant part, Respondent’s mo-
tion to quash the subpoena for the additional TPA Reports. In his brief,
General Counsel urges me to reconsider my ruling and order production
of the additional TPA Reports. I decline to do so as the record contains
sufficient information to make the findings of fact.
7 Food, not dancing.
holds a potluck dinner and people voluntarily purchased joint
gifts. A bowling party invitation, if done for recognition of a
work group, would be considered business-related. If an em-
ployee has a death in the family, Elliott has sent out emails to
notify about the passing and upcoming services. The employees
may also be notified by email if a card if available for signing.
Employees also access social media while at work. CSR
Chelsea Befort said that, during work, she scrolled through her
Facebook on her phone to check the newsfeed. She also ob-
served others using social network applications. If a customer
had problems using a social network, Befort used her own phone
and application to assist the customer. CSR Taylor Lowery used
her social media between calls, on breaks, and while talking on
her own phone and observed others doing the same; she was
never told to stop. CSR Abigail Parrish testified that she used
Facebook while on working time if during downtime and she
was not taking a customer call.
B. Respondent’s Acceptable Use Policy10
Respondent’s Acceptable Use Policy, spanning six pages, co-
vers the use of its information and communications resources.
The policy was last revised in 2014. It applies to all electronic
devices and all manner and means of communications operated
by Respondent. Respondent reserves the use of the devices for
“legitimate business purposes.” Legitimate business purposes
include internal email, Yammer “and other tools . . . to discuss
work-life balance, traffic and carpool arrangements, weather
conditions,” and charitable events in which Respondent is in-
volved. The policy also permits “incidental and infrequent per-
sonal use” by approved personnel and such use cannot interfere
with use for legitimate business purposes. The policy then gives
a list of non-legitimate uses.
The complaint alleges that one portion among the non-legiti-
mate uses of this Policy, within Section 3.4 of the rule, violates
the Act:
Prohibited use of T-Mobile’s information and communication
resources are not legitimate business purposes. Prohibited uses
include, but are not limited to:
. . .
To distribute or store junk mail and chain letters . . .
(GC Exh. 11, p. 2.)
Other listed non-legitimate uses include pornography, com-
munication of threats, anything related to gambling, anything de-
rogatory that encompasses any protected class, and any use
8 For this contest, a team or members of a team submits a video of
themselves lip syncing a song, with the winner receiving a trophy and a
case of Red Bull energy drink.
9 Respondent argues that the record contains no evidence of mass
emails for birth announcements. (R. Br. at 28–29.) I find, however, that
Respondent’s admissions, corroborated by employee testimonies, are
sufficient to find birth announcements and death notifications were
emailed.
10 All policies discussed were promulgated before the six-month stat-
ute of limitations but were maintained throughout the relevant time pe-
riod.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
advocating or soliciting for causes “not related to T-Mobile busi-
ness.”11
Director Elliott contends that the emails regarding Respondent
offering food and notifying employees about lost items are busi-
ness related, not personal. The business purpose regarding the
lost item was that it was lost on site and Respondent would help
recover the item. In addition, Respondent does not monitor for
other non-business uses by employees.
The policy contains active computer links at the end of the
legitimate uses section. These links include: Enterprise User
Standard; the Employee Handbook, which includes no solicita-
tion and no distribution rules; and the Code of Business Conduct.
The Enterprise User Standard’s stated purpose is to ensure se-
curity and protection of Respondent’s information assets. It dis-
cusses anti-malware controls, information backup, passwords,
and security for cellular telephones and laptops.
Section 3.4 of the Enterprise User Standard states:
(1) Users must follow the appropriate authorization process for
requesting an account granting specified access and permis-
sion levels. Most authorization processes start with a Remedy
ticket and specific approvals from T-Mobile Management.
Contact your manager or the Help Desk for more information.
(2) All access that is not explicitly authorized is forbidden.
(3) Users are responsible for all acts associated with their
UserID.
Wray-Tolbert testified that this access limitation includes dis-
tribution lists, which are groups of employees set up in the com-
puter system to distribute emails to the selected group, such as
all CSRs or all employees at the Wichita Call Center.Respondent
contends the standard is necessary to prevent all employees from
emailing each other at the same time.
III.. CSR SENDS AN EMAIL TO OTHER CSRS
A. On May 29, a CSR Sends Email About a Union Activity
CSR Chelsea Befort worked at the Wichita Call Center from
October 7, 2013, to July 21, 2015. Lillian Maron and Angel
Meeks were respectively her team manager and her coach. Her
last position was with the new onboarding department, which
was responsible for contacting new customers within 30 days of
starting service. She clocked out for lunches, but not for breaks.
On Friday, May 29, during her break times, Befort sent out a
series of emails, with the subject line “Raise Your Voice,” to fel-
low CSRs. Each email contained the following text:
Dear T-Mobile Wichita Employees,
For far too long now, our voices have been silences. We are
told we do not have the right to discuss work conditions in an
organized manner. Enough is enough. It is time to make a
change! Join the movement!
Feel freeto contact me with anyquestions, but please dosoout-
sideofworkinghours.
11 In T-Mobile, USA, Inc., 363 NLRB No. 171, slip op. at 1–2, fn. 5
(2016), Respondent did not except to Administrative Law Judge Dibble’s
findings that two portions of the Acceptable Use Policy were unlawful:
Section 3.3., if the resources are used in ways reasonably considered
Some of us that are currently involved will be meeting at North
Rock Lanes tomorrow night. Please join us to meet our team
and have some fun!
Sincerely,
Chelsea Befort
T-Mobile CSR1
Wichita, KS
[phone number omitted]
When Befort sent the first email, at the beginning of her lunch
break, she addressed it to all CSRs at the Wichita Call Center,
attempting to use the Call Center’s distribution list for all CSRs.
When that did not work, Befort began selecting CSRs off the list
and re-sent the email. After Befort returned from lunch, she re-
turned to her computer and found an automated message that her
email could not be delivered because she could only send it to
100 recipients at a time. Upon discovering this limitation, she
examined the Wichita CSR list and selected approximately the
first 100 CSRs for re-sending the email. However, that email
also exceeded 100 recipients. Befort made numerous attempts
before she was successful in reaching her target audience and no
more than 100 recipients. After she clocked out at the end of her
shift, she sent more emails to cover the remainder of the CSRs.
Although Befort was on break, she knew some CSRs would be
working when they received the emails.
B. On June 2, Respondent Sends an Email in Response
to Befort’s Email
1. Respondent discovers Befort sent the email
Several CSRs forwarded Befort’s email to management.
Wray-Tolbert found that a TPA Report was necessary because
the email disrupted work and pertained to “third party Union ac-
tivity.” (Tr. 351.) Wray-Tolbert emailed a TPA Report about
the email, with the email attached. On Monday, June 1, Call
Center Director Elliott discovered that the email had been sent
out multiple times and “multiple employees complained,”
which, in his opinion, made the email a disruption. (Tr. 377.)
Elliott and Wray-Tolbert testified that Befort’s email violated
a number of policies. Based upon the legitimate use portion of
the Acceptable Use Policy, Befort’s email was junk mail and so-
licitation; it also did not pertain to company business. Based
upon General Counsel’s subpoena, Respondent could not find
any other documents showing it applied its Acceptable Use Pol-
icy.
Respondent also stated that Befort’s email violated distribu-
tion access limitation provided in the Enterprise User Standard
(GC Exh. 18), in that Befort did not have access to the employee
or CSR lists for the Wichita Call Center. Because the Enterprise
User Standard further prohibits any access that was not explicitly
authorized, Befort, who was not authorized to use the CSR list,
should not have been able to send out the “mass communica-
tion.” Because some of the emails were rejected due to size, they
were mass emails. As a result, Respondent also considered it
disruptive, offensive or harmful to morale; and Sec. 3.4, in relevant part,
for any use that advocates, disparages or solicits for religious causes, po-
litical causes or non-company related outside organizations.
T-MOBILE USA, INC. 9
junk mail as well.12 However, had the number been smaller, Re-
spondent admittedly may not have known that Befort sent the
email.
Wray-Tolbert also testified that the email violated the prohib-
ited activities listed in the employee handbook for no solicitation
or distribution. That policy prohibits “Solicitation of any kind
by employees on Company premises during working time of ei-
ther the employee engaged in soliciting or the employee being
solicited.” The emails also would be read by CSRs who were
working, making the emails disruptive to production. Despite its
availability of metrics, Respondent presented no evidence that
the metrics of that day were disturbed.
2. Director Elliott responds to Befort’s email
Elliott decided to send an email to all Wichita Call Center em-
ployees. On June 2, Elliott’s email, using the distribution list for
all Wichita Call Center employees, stated:
Team,
It has been reported to us that on Friday an employee sent hun-
dreds of you emails about the union. Many of you told us it was
disruptive and unwanted communication. We apologize for
any disruption or inconvenience this may have caused. I’d like
to take this opportunity to remind you that it is not appropriate
for employees to send emails to large numbers of employees.
We don’t allow mass communication for any non-business
purpose since this disrupts the workplace and distracts employ-
ees from their work. Also, it is not appropriate to solicit other
employees for any purpose when employees are working. We
certainly recognize employees’ rights to support the union, but
we ask that they do so without violating these policies.
Since this email addressed union issues, I’d like to take this op-
portunity to respond. It is not the case that anyone’s voices
have been silenced. And no one is telling employees that they
don’t have a right to discuss work issues—you know employ-
ees around here aren’t shy about discussing anything. Employ-
ees have countless opportunities to communicate with others
when they are not working—about the union or anything else.
They can talk with others in break areas, before work, or after
work. They can talk from home, or text while eating out. They
can use social networks—off the job, of course. But it is not
appropriate to solicit or discuss other issues when you are sup-
posed to be working.
Employees have a right to support the union, and an equal right
not to. And employees have a right to discuss the union--as
long they are not working—and a right to refuse to discuss the
union. Employees have a right to sign authorization cards, and
employees have a right to refuse to sign authorization cards.
But before you sign, make sure you understand what it means
to sign a card.
And if you have an questions about the union, its claims, or
authorization cards, feel free to ask your Coach, your Manager
or me. We’d be happy to answer any questions you may have.
12 Upon employment, Befort electronically signed an acknowledge-
ment that she received the Employee Handbook and would promptly
read it.
Jeff
(GC Exh. 7).
Befort, responding through the “Reply All” function, stating
that she thought the employees were not supposed to talk to their
coaches and managers about unionization. (R. Exh. 21.)
The social media policy, cited by Elliott, states employees can
occasionally use personal social media on the work computer or
during work hour as long as it does not interfere with job respon-
sibilities and is consistent with the other policies. (Tr. 327.)
C. On June 2, Respondent, by Manager Maron and
Coach Meeks, Meets with Befort
When Befort returned from her lunch break, Coach Angel
Meeks told her to put her phone in “auxiliary” for a team meet-
ing. Meeks and Befort met with Team Manager Maron in a small
conference room at the front of the Call Center. Although Meeks
was present, she added nothing to the meeting.
Team Manager Maron told her the meeting was about the
email.13 Befort asked if the meeting would lead to discipline,
which Maron denied. According to Befort, Maron stated that
CSRs could not send mass emails and anything union-related
could not be sent while “on the clock.” Befort told them that she
was sure she did not send any emails while she was clocked in,
which Maron corroborated. Maron told her that other represent-
atives opened and read the email while they were clocked in,
which was the problem. Maron also said the email was soliciting
and anything union-related could not be done by email. She also
told Befort that she could not discuss the union within the work-
ing areas; anything union related would have to outside of the
working areas and off the clock. Maron’s reasons were that it
was solicitation and could not be done on “company time.”
Maron told her the company recognized her right to support the
union, but she needed to do so without violating company poli-
cies. Maron told her she could use work email for these mes-
sages as long as it was not disruptive, to which Befort responded
that she understood.
Maron’s version differs from Befort’s on the content of the
conversation. Wray-Tolbert provided Maron with talking points
(R. Exh. 23) and instructions for her discussion with Befort.
Maron could not recall receiving talking points for discussions
with any other employee. (Tr. 459–460.) Maron later admitted
she talked with Wray-Tolbert before her conversation with Be-
fort. Maron claimed she could not recall a great deal about this
conversation and then said that the instructions were primarily to
have the conversation with Befort. The talking points were the
following:
• It was reported to us that on Friday you sent emails to
hundreds of employees in the Wichita Call Center. Sev-
eral employees told us it was disruptive and unwanted
communication. We don’t allow non-business related
mass communication for any purpose since this disrupts
the work place and distracts employees from their work.
13 About June 1, Maron learned she would be in charge of the
onboarding section. Human Resources directed her to conduct the meet-
ing with Befort.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
• Your email was also inconsistent with T-Mobile’s non-
solicitation policy. You may solicit concerning union
issues during non-working time, but you may not so-
licit while the person you are soliciting is supposed to
be working. You had to be aware that many employees
were actively working when you sent these emails, so
this working time solicitation also was inconsistent
with our non-solicitation policy.
• We certainly recognize your right to support the union,
but we ask that you do so without violating these poli-
cies. Of course, you can communicate with employees
about the union in break areas, and when you and oth-
ers are not working; you can communicate about the
union in the parking lot and away from work. Wejust
ask that you do so while following these policies.
• Question: Can I use e-mail to communicate about
the union?
• Answer: Yes, but your use of company systems for
these purposes has to be while neither you nor the per-
son you are communicating are working, and under
circumstances which are not likely to disrupt work at
the call center and not in a manner that is inconsistent
with these rules.
(R. Exh. 23.)
Maron specifically denied each alleged unlawful statement
from her conversation with Befort. Maron admitted that she told
Befort that she could not discuss the union when she was work-
ing or others were working, and further defined working as talk-
ing to customers. (Tr. 420.) Maron initially maintained that she
read verbatim the provided talking points but on cross-examina-
tion admitted that she had at least some variations. (Tr. 462.)
After her meeting with Maron and Meeks, Befort returned to
her computer and noticed she had an email in her inbox from
Director Elliott, which is addressed above. Befort, Alyssa Jones
(also known as AJ), and Taylor Lowery testified that, before they
received Elliott’s email, Respondent never communicated that
the employees were prohibited from sending mass emails or
from discussing any topics, outside of common sense re-
strictions, during work time, nor did Respondent communicate
that employees could not use social media unless they were “off
the job.” In her experience, Befort, with Meeks present, partici-
pated in conversations during time between calls about social ac-
tivities and shared items from their Facebook accounts. Lowery
talked during work time, with supervisors present, about families
and weekend activities. For example, Lowery also discussed
clothes with Coach Meeks.
IV.. ON JUNE 4, TEAM MANAGER MARON CONDUCTS A TEAM
MEETING IN BEFORT’S POD
A. Prequel: Human Resources Prepares Maron for a Meeting
about Flyers
On June 3, someone distributed union leaflets within the pod
where Befort worked. According to Maron, Wray-Tolbert again
instructed her to conduct a meeting and provided her with the
talking points. Wray-Tolbert told her the pamphlets found in
Meek’s pod on each CSR’s desk were “third party, Union.” (Tr.
465.) Maron again received talking points:
• Yesterday, someone left leaflets on each of the work
stations in the pod.
• We just wanted to remind you that it is not appropriate
to distribute materials while you are working or while
the recipient is working, and such materials are not to
be left or distributed in any work areas of the call cen-
ter.
• We certainly recognize your right to support the union,
or not to support a union. And we want to make it
clear that you can distribute materials regarding the
union in nonworking areas, and when you are not
working.
• We were told that the leaflet talked about employees
having a voice. You know you have that now. You
can go to any Coach or Manager in the call center with
questions or concerns.
• And when you raise issues we hear them.
• In just the last few weeks, based on employee input,
we doubled the amount of time off the company can
grant so that about 80% of requests can now be granted.
• Company-wide, employees asked for a stock purchase
program, and we gave you one.
• And in response to questions about pay increases, we
provided increases across the company-two last year
and one coming up this month.
• We were also told that the document suggested that
with a union, employees could make decisions about
metrics, insurance, leave and wages.
• When there is a union, they don’t make decisions about
these issues. They can only ask. And while they can
promise you anything about these issues (and often do),
the thing is that the union cannot, and will not guarantee
you any particular outcome. With a union you can get
more, less or the same.
• Just ask the TMUS technicians in Connecticut who
voted in a union. With the union they had the same
benefits, the same leave, and the same work standards
as technicians elsewhere. But the union agreed to cap
any wage increases while no one else in the company
had a cap. Maybe that is why the engineering employ-
ees have filed a petition to get rid of the union.
(R. Exh. 24.)
B. Maron Conducts the Meeting in the Pod
On June 4, Team Leader Maron told the CSRs to put their
phones into auxiliary mode. Once all the CSRs did so, Maron
gathered the CSRs, including Befort, Taylor Lowery (Lowery)
and AJ, in the middle of the pod and began talking about the
email and discussions about the union. Coach Meeks apparently
was present.
T-MOBILE USA, INC. 11
Maron discussed a flyer that was previously distributed on the
CSRs’ desks. Employees testified that Maron had a folder in her
hands and would refer to the folder throughout the speech, but
did not appear to be reading. Maron, however, testified that she
read verbatim and answered questions.
Employees testified that Maron said the employees were not
allowed to discuss the union within the working area and could
not distribute flyers or other materials related to the union within
the working area; those activities could be performed in the
lunchroom, break areas, or outside of work. Maron reiterated
that employees had a right to be for or against a union, but liter-
ature could be distributed in non-working areas, if the person dis-
tributing was not working.14 In response to the issues raised in
the flyer, Maron said employees had a voice in their work and
that the CSRs could see talk to their manager or coach. She gave
examples of the company giving increased time off requests and
stock options.
According to Befort, Maron stated that items on the flyer, such
as metrics, insurance and wages, would not be changed by the
union because those things would be up to management. How-
ever, on cross-examination, Befort said Maron stated the union
could ask for changes and that the union, not the employees,
would be making the decisions for the employees. Maron also
talked about some of Respondent’s engineers in Connecticut,
who were represented by a union. Maron said the union agreed
to cap wages and reference that these employees filed a petition
to end union representation.
C. Sequel: After the Meeting, Some CSRs Take a Break and
Coach Meeks Goes too
When the meeting concluded, the CSRs were permitted an ad-
ditional 10-minute break. Many of the CSRs are smokers and
went outside to picnic tables near the smoke shack. The CSRs
who went out included Befort, AJ, Lowery, Holly Robinson,
Darryl, and Jalen Jones.
Coach Meeks, who does not smoke, also went to the smoke
shack area with the CSRs. Befort and AJ said Meeks had not
joined them on a break before, leading AJ to ask Meeks, “Why
are you coming outside with us on our break? You don’t ever
come outside.” Meeks said, “I just want to come with you guys.”
(Tr. 122.) Meeks remained with them during the entire break.15
Befort pulled out her telephone to type notes of the meeting
and send the notes to herself via text message so that she would
not forget what happened. Befort attempted to show AJ the notes
to confirm nothing had been forgotten, but Coach Meeks was
close by. Befort and AJ were whispering. Meeks said to AJ,
“You don’t have to whisper, you can talk to me.” Befort testified
that, as a result of Meeks’ proximity, she was unable to share
with AJ the information on her phone.
The CSRs returned to their phones and were permitted then to
take their regularly scheduled breaks. After changing the codes
on their phones to break, the same individuals, including Coach
Meeks, returned to the smoke shack. By this time, Befort sent an
e-mail to AJ about making plans to meet later to discuss what
14 Lowery testified that she said the flyers brochures, pamphlets, or
leaflets about the union needed to stay in drawers and out of sight until
off work property and out of work hours.
happened in the meeting. AJ read the message and handed her
phone to Robinson to read it. After Robinson, AJ slid the phone
over to Lowery, who was moving her mouth while she read the
message. Lowery moves her mouth as she reads.
Coach Meeks then said to AJ and Lowery, “What are you guys
looking at?” AJ said it was a picture. Meeks said, “It’s not a
picture because Taylor’s moving her mouth.” AJ said it was a
picture with words. Meeks said she wanted to see it and AJ said
it was not work appropriate. Meeks said AJ showed her things
all the time that were not work appropriate. Meeks moved
around to the table towards AJ and Lowery and started to reach
for the phone. However, Lowery gave the phone to AJ, who then
pulled up a picture with words on it. She then handed the phone
to Meeks. The break was over and they returned to work.
V. GUARDS CONFRONTCSR PARRISH WHILE DISTRIBUTING FLYERS
OUTSIDE THE CALL CENTER
At the time of these events, Abigail Parrish was employed as
a CSR. She is now a part-time organizer for the Union. While
employed by Respondent, Parrish distributed flyers outside the
building, in the lunchroom and in the smoke shack. She also
distributed flyers at the end of the driveway on the public ease-
ment.
On Thursday, August 20, Parrish, on her day off, passed out
flyers when a security guard confronted her. She went to the call
center with another volunteer and union staff to pass out flyers
on the public easement next to the driveways on the south side
of the building. After checking with Tammy Chaffee, a Union
organizer, Parrish moved onto the property itself rather than
staying on the easement. She went to the east (front) entrance
and stayed there for a few minutes handing out flyers. A guard
came out of the east entrance and told her that she could not be
distributing flyers because she was on private property. Parrish
told the guard she was an employee and offered to show him her
employee identification badge. He did not ask to see her badge,
said, “Uh, ok,” and returned to the building.
Parrish stayed at that entrance until she ran out of flyers, and
then picked up more. She relocated to the west entrance. She
handed out some flyers at the smoke shack and started to leave.
As she started to leave, two people were exiting the building sep-
arately. One was a coach and the other was another security
guard, wearing the standard uniform of a white buttoned shirt,
black pants and his security name tag. Parrish noticed that his
name tag identified him as “J. Wiegand.”
As Wiegand approached Parrish, he said in a loud voice,
“Abby, you can’t be passing out flyers. It’s solicitation.” He
told her it was company policy. Parrish thought he was talking
about Respondent’s policy. Parrish told him it was not solicita-
tion and he insisted it was covered by the company’s solicitation
policy, so she needed to stop. At some point, Wiegand told Par-
rish that she could not pass out flyers for a food truck or a party,
so she could not pass out flyers for anything else. Parrish was
concerned matters might escalate and left.
15 AJ testified she saw other coaches and managers in these break
areas, but she never saw Coach Meeks on break with them before this
time or afterwards.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In its Employee Handbook, Respondent maintains a rule re-
garding distribution, which permits employees to distribute
“non-work related materials in non-work areas during non-work
time.”
Wray-Tolbert reported that Wiegand, upon seeing her in a
hallway, reported the incident. No TPA Report was generated
about Parrish’s activity; however, a TPA report was generated
about the handbilling at the southeast and southwest entrance.
The Report stated four outside participants were involved and
that number included employee Parrish.
Within an hour after receiving Wiegand’s report, Wray-Tol-
bert sent Parrish, and only Parrish, the following e-mail:
We understand that a security guard approached you in the
smoking area and told you that you were not allowed to hand
out leaflets in that area. The security guard was in error.
There’s no prohibition against your distributing union literature
in a non-working area during non-working time. Please let me
know if you have any questions.
(GC Exh. 10).
Upon returning to work on August 22, Parrish received Wray-
Tolbert’s email.
VI. ALLEGATIONS INVOLVING COACH BELINDA SPENCER AND
RENIOR REPRESENTATIVE CROXSON
Croxson is a senior representative at the Wichita Call Center,
where she has been employed for over 4 years. The position is
considered a stepping stone for someone to potentially become a
leadership position, such as coach or trainer. The senior repre-
sentatives engage with CSRs and answers telephone calls from
customers that have escalated—when customers ask to speak to
supervisors. Senior representatives also assist in ensuring appro-
priate staffing at lunches and breaks. Twice per week for each
CSR on their teams, the senior representatives also conduct side-
by-side CSR reviews, listening to customer calls in real time.
The senior representative gives positive and negative feedback
to the CSRs. As a result, senior representatives are expected to
be away from their desks approximately 80 percent of the time.
A senior representative normally has flexibility in her schedule
to answer these calls. The senior representative also is responsi-
ble to ensure the team meets metrics of credits/adjustments,
schedule and sales. (Tr. 482.)
At the relevant time, Croxson was supervised by Coach
Belinda Spencer and Team Manager Maron. Spencer main-
tained that she and Croxson had “huddles” almost daily. In the
huddles they discussed the agenda, meetings, coaching and pri-
oritization of Croxson’s tasks. Spencer also stated she had at
least weekly career development meetings with Croxson.
Before joining Spencer’s team, Croxson had been an active
supporter of the Union. These activities included advocating for
the union, wearing union t-shirts, and discussing the Union with
16 I credit that Spencer believed Croxson made an effort to show she
was not involved with the Union.
17 On August 21 and 22, while Spencer was on medical leave, the
substitute coach gave Croxson two coachings respectively: one for fail-
ing to take an escalated call and another for failing to answer a CSR’s
questions sufficiently.
her prior supervisor and now Belinda Spencer. She appeared in
flyers for the Union. Croxson also was the subject of an unfair
labor settlement in which Respondent resolved allegations that
Croxson suffered discipline due to her union activities and sym-
pathies.
A. Croxson Hides Her Union Sympathies
Croxson and Spencer had discussions about the Union since
mid-March 2015, when Spencer became Croxson’s coach. Ac-
cording to Croxson, these discussions took place after work in
the pod, one to two times per week. The conversations started
with coaching and segued into Croxson’s goals and perceptions
of working for Respondent. Spencer said the discussions about
the union began when Croxson came to her team and Croxson
talked about her relationship with her previous coach. Spencer
also said that Croxson believed the company had a negative per-
ception of her and she no longer wanted a part of the union be-
cause she wanted to save her job. (Tr. 489–490.)16
Around April, Spencer’s pod was moved from general care to
onboarding duties. Spencer and Croxson continued in their re-
spective roles. Spencer was off work during the last two weeks
of May. Croxson took medical leave for 12 days at the end of
May and the conversations continued after that time.17 When
Spencer returned from leave, she discovered that the pod was
physically moved. No seating arrangement was made for the
new location.
When both Spencer and Croxson were back from their respec-
tive leave, Spencer asked Croxson if she saw Befort’s May 29
email. According to Croxson, Spencer also asked Croxson
whether she attended the bowling event that Befort sent out.
Croxson said that she just had surgery, so “why would I go bowl-
ing?” (Tr. 218.) Spencer also asked Croxson if she had seen
Befort’s response -mail. Croxson said, “Well, everybody got it,”
and walked away. Spencer testified that she only asked Croxson
if she read the email, because she heard Befort was coming to
her team and that it caused disruption within the Call Center.
Spencer denied asking Croxson about the bowling event. (Tr.
494.)18
Croxson also testified that, during June and early July, Spen-
cer frequently asked her whether she remained friends with Be-
fort. She further testified that Spencer asked about her support
for the Union during this time.
B. Discussion and Implementation of the Seating Chart
One topic was whether certain Union supporters would bid to
move into Spencer and Croxson’s team and how Croxson should
treat them so that no favoritism occurred. Every six months,
CSRs and senior representatives have an opportunity to bid into
a different team. Potentially a team could have 15 new members.
Coaches also bid for a manager’s team. The process is called
“realignment.” The ultimate realignment is based upon an indi-
vidual’s ranking on metrics. This particular realignment was
18 Spencer later testified that the procedure for changing teams, bid-
ding, took place in late June or early July, so at that time Spencer could
not have known whether Befort was joining her team. I therefore dis-
credit Spencer’s denial.
T-MOBILE USA, INC. 13
scheduled for July 31 and Croxson bid to remain on Spencer’s
team.
About early June, Spencer and Croxson learned who their new
team members were for the realignment. Spencer asked Croxson
whether she worked with any of them in the past, and if so, what
were their strengths and weaknesses. According to Croxson, a
few CSRs coming to the team were known union supporters: Be-
fort; AJ; and Holly Robinson. At hearing, Spencer also identified
two CSRs as known union supporters who already were on her
team and staying: “Daniva” and Cheryl Bell. Spencer denied
knowing Robinson was a supporter but knew AJ and Robinson
were dating.
Spencer and Croxson started discussing where to seat them.
Spencer said she did not want them sitting by Croxson because
she wanted to ensure no one thought she showed any favoritism
due to their union relationship. In addition, Spencer said that AJ
and Robinson should not be seated near each other because they
were union supporters.19 Spencer testified that, although she
consulted with Croxson, she did not recall any of Croxson’s spe-
cific input about the seating chart, and denied making the state-
ments reported by Croxson.
On July 23, Spencer sent an e-mail to all team members com-
ing to the team. She attached a seating chart, which was imple-
mented. It directly placed AJ and Robinson on opposite sides of
the pod, with Spencer, located in the middle of the pod, between
them. Daniva was placed in a corner away from AJ and Robin-
son, but at the end of the pod and near Croxson’s desk. She was
four seats away from AJ and another four seats away from Bell.
Bell was placed near Croxson, on the same side as Robinson and
four seats away from Robinson. (GC Exh. 17.)
C. Croxson Attends a Union Meeting and Spencer Finds Out
From December 1 to 3, Croxson attended a Union event in
Washington, D.C. She only told Spencer and her manager,
Maron, that she was going to Washington but left out it was Un-
ion- related. Croxson told Spencer that she was going with
friends, the trip was paid for, and Spencer had questions about it.
Croxson said she was going to stay with a friend. She returned
to work on December 4. Spencer asked about how the trip was
and Croxson said, “Great.”
Croxson next conversed on this topic with Spencer after an-
other team member, Cheryl Bell, wore to work a purple souvenir
sweatshirt from Washington.20 Spencer saw Bell’s sweatshirt
made a joke with them about Croxson buying Bell a sweatshirt
but not one for her. Spencer asked Croxson whether she had seen
Bell in Washington. Neither Croxson, who was present, nor Bell
19 Befort was not included in the chart because, by that time, she was
leaving Respondent’s employ.
20 Spencer was fuzzy about the dates of the next conversation. At
first, she said it was a week later, and then said December 5 or 6.
21 Spencer said that the Union Facebook page appears regularly on
her Facebook page; however, that was not revealed during her discus-
sions with Croxson.
22 Over the years, Croxson received several peak award nominations.
The ultimate award was a trip to Hawaii.
23 Spencer denied the entire conversation. However, her voice trailed
off while answering some of the questions. Spencer’s testimony would
have one believe that Croxson made up the entire conversation. Given
said anything back. After another coach told Spencer about a
picture on the Union’s Facebook page, Spencer later viewed it.21
Spencer determined that Croxson was at the same conference as
Bell and felt disappointed that Croxson lied to her about going
to the conference.
On December 11, Spencer told Croxson to stay at the end of
the shift. Croxson said she did not have time to stay. Spencer
directed Croxson outside the pod, into the hallway, and said, “Do
you think I’m stupid? Do you think I don’t that you were with
Cheryl in Washington?” Spencer said she saw pictures of the
trip and knew it was a union trip. Spencer said that Croxson was
going to ruin her hard work at bettering the company’s percep-
tion of Croxson and that she thought Croxson was no longer a
union supporter. Spencer said that Croxson should not get her
hopes up to win any peak nomination22 (the highest award in the
company) because of her union support. She asked Croxson if
she intended to be more outspoken about the union and what her
thoughts were about the union. Spencer also told Croxson, who
was considering moving out of state, that she should not make
her last few months with the company harder than they needed
to be by being an outspoken union supporter.23
On December 14, on Croxson’s next day at work, Croxson
noticed that Spencer ignored her when she came to work. When
they met for the regular beginning of shift meeting between
them, Croxson noticed that Spencer was micromanaging her
work, something that Spencer had not done before this time.
Spencer gave her hourly segments in which to accomplish cer-
tain tasks. Croxson took notes, which she discarded after the end
of the shift. Spencer did not repeat this conduct after this date.24
Spencer testified the meeting was approximately 30 minutes
at the beginning of the shift. Spencer does not dispute that she
had a conversation with Spencer about her duties that day, but
states the conversation took place because she recently attended
a coaches’ meeting about the job duties of the senior representa-
tives and achieving goals. Spencer testified that told Croxson,
because “they” were having problems getting everything done,
these measures were to manage “our day” and try to put structure
to it. Spencer testified that she handed Croxson a preprinted sen-
ior representative form, which outlined various duties and some-
time targets within the shift. (Tr. 515; R. Exh. 30.) The form
apparently was blank. Spencer said it was something that Crox-
son could copy and use. Spencer did not request that Croxson
return the completed form at the end of the shift. The form was
never discussed again. 25
On the same date, Respondent initiated a “focus group” eval-
uation on Croxson.26 The focus group questioned members of
Spencer’s demeanor and her stated efforts to help Croxson rehabilitate
her image, I discredit this denial.
24 Croxson testified that the scheduling was not onerous.
25 Spencer later testified that the team was meeting all the metrics for
December but she wanted to strive for a higher goal. Apparently, no true
problem existed in getting everything done if the team met its metrics.
Further, if the team was having problems, one would assume that Spen-
cer would have continued to follow up with Croxson about the form.
This contradictory testimony is sufficient for me to discredit Spencer’s
testimony here.
26 Maron testified that Croxson approached her and asked for the fo-
cus group. Croxson did not testify to requesting a focus group and, given
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Croxson’s pod about what Croxson was doing well and what
could be improved.27 Maron met with Spencer28 and CSRs to ob-
tain feedback. Two CSRs allegedly reported to Maron that they
believed Croxson was trying to get Spencer in trouble. Other
information found that one CSR, who could not work with Crox-
son and took a leave of absence allegedly due to Croxson’s be-
havior, said to Croxson that she was a cancer to the team and she
was out to get Spencer. Some information highlighted areas in
which Croxson did well.
On Friday, December 18, Croxson wore a black union t-shirt,
with a hash tag and “Justice for T-Mobile.” Spencer commented,
“Is that your guys’ hash tag? If I view that, am I going to see all
the pictures of your trip and everything?” Croxson said, “I don’t
hash tag” and walked away.
On Saturday December 19, Spencer did not work. However,
another union supporter arranged for others to wear union t-shirts
that day and left a box of doughnuts in the break area, signed TU.
On the same day, two CSRs used Christmas wrapping to deco-
rate Spencer’s desk, wrapping every item on her desk. They also
wrapped a Union t-shirt and placed it on Spencer’s desk. Crox-
son denied involvement but admitted she checked with the Un-
ion about whether anything untoward was occurring.
On Monday, December 21, Spencer unwrapped the items on
her desk and found the t-shirt. Spencer asked Croxson if she was
involved, which Croxson denied. Before lunch, Spencer told
Croxson that she did not want to talk about anything legal, that
anything she said about the union was as a friend. She also com-
mented that someone on the team was causing drama and some-
one was getting paid by the Union to keep the drama coming.
Spencer also said that someone was a mole, giving information
about Respondent to the union. Croxson again said she had noth-
ing to do with any of it and was not trying to cause extra drama.
As Croxson started to walk away, Spencer said, “You just don’t
get it. Never mind.” Croxson characterized Spencer’s tone of
voice as accusatory, with heavy emphasis each time on “some-
one.”
Later that evening, Spencer and Croxson had another conver-
sation in the pod, with Spencer’s tone now characterized more
conciliatory. Spencer told Croxson she was sorry if anything she
said was taken the wrong way. She also commented about an-
other CSR, Bahja Parker, who recently began wearing a union t-
shirt. Spencer said that “going union” would not help Parker do
her job properly. Croxson said that the Union was not about that.
Spencer also asked whether Croxson had anything to do with
everyone wearing their t-shirts or bringing in doughnuts, which
Croxson denied. Spencer denied both conversations.
LEGAL ANALYSIS
I. ALLEGED DISCRIMINATORY ENFORCEMENT OF RULES IN
RESPONSE TO BEFORT’S EMAIL
A. Applicable Law
Section 7 provides employees with the right to self-organiza-
tion and collectively bargaining, as well as the right to act
the atmosphere in her pod, it is difficult to believe that Croxson would
ask for one.
27 Maron testified that she conducted focus groups for all of her teams
and sometimes more frequently with realignments.
together for their mutual aid or protection. These rights have
long been interpreted to “necessarily encompass [ ] the right ef-
fectively to communicate with one another regarding self-organ-
ization at the jobsite.” Beth Israel Hospital v. NLRB, 437 U.S.
483, 491 (1978). These rights include employee communica-
tions regarding their terms and conditions of employment. Cen-
tral Hardware Co. v. NLRB, 407 U.S. 539, 542-543 (1972);
Parexel International, LLC, 356 NLRB 516, 518 (2011), citing
Aroostook County Regional Ophthalmology Center, 317 NLRB
218, 220 (1995), enfd. in part 81 F.3d 209 (D.C. Cir. 1996) (dis-
cussions regarding wages, the core of Section 7 rights, are the
grist on which concerted activity feeds).
An employer violates Section 8(a)(1) of the Act if it maintains
workplace rules that would reasonably tend to chill employees
in the exercise of their Section 7 rights. See Lafayette Park Ho-
tel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999). The analytical framework for assessing whether mainte-
nance of rules violates the Act is set forth in Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004). Under Lutheran Herit-
age, a work rule is unlawful if “the rule explicitly restricts activ-
ities protected by Section 7.” Id. at 646 (emphasis in original).
If the work rule does not explicitly restrict protected activities, it
nonetheless will violate Section 8(a)(1) if “(1) employees would
reasonably construe the language to prohibit Section 7 activity;
(2) the rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section 7
rights.” Id. at 647.
Rules cannot be construed in isolation and must be given a
reasonable reading. The Roomstores of Phoenix, LLC, 357
NLRB 1690 fn. 3 (2011); Lutheran Heritage, 343 NLRB at 646.
However, any ambiguity in the rule must be construed against
the drafter as employees should not have to decide what infor-
mation is not lawfully subject to prohibition. Hyundai America
Shipping Agency, 357 NLRB 860, 861–862 (2011); Lafayette
Park, 343 NLRB at 825.
B. The Policies Were Discriminatorily Applied to
Befort’s Email
The Complaint only contends that the Policy was discrimina-
torily applied and does not question whether it is facially lawful.
The Policy was not promulgated in response to Section 7 activi-
ties. However, I find that the policies and rules were applied
disparately to Befort’s union activity. To further this discussion,
I look to recent Board law regarding emails and some traditional
principles.
1. Applicable law regarding emails
Employees who have “rightful” access to their employer’s
email system for work purposes also have the right to use that
system for Section 7 communications during nonworking time.
Purple Communications, 361 NLRB 1050, 1050, 1063 (2014).
This rule applies when employees have been granted access to
the employer’s email system in the course of their work and the
employer is not required to provide this access. Id., slip op. at 1.
28 Spencer did not testify about giving feedback on Croxson or any
knowledge of a focus group at that time.
T-MOBILE USA, INC. 15
To rebut the presumption that employees have a right to access
the employer’s email system during nonworking time, an em-
ployer justifies restricting these rights by demonstrating that spe-
cial circumstances are necessary to maintain production or disci-
pline. The employer’s restrictions should be based upon the na-
ture of its business. The restrictions also should be narrowly tai-
lored to meet the employer’s special circumstances and still bal-
ance with employees’ Section 7 rights. Further, the restriction
must be uniform and consistently enforced. Purple Communi-
cations, supra. The theoretical mere assertion of an interest to
support restrictions are not sufficient and:
[A]n employer’s interests will establish special circumstances
only to the extent that those interests are not similarly affected
by employee email use that the employer has authorized.
Id., slip op. at 14.
Disparate treatment would show an employer enforces its pol-
icy “against statutorily protected activity while not enforcing it
against other similar activity under similar circumstances.” Sta-
bilus, Inc., 355 NLRB 836, 839 (2010) (disparately enforced t-
shirt policy). A recent example was disparate enforcement of a
no-talking rule during work time after the union filed a represen-
tation petition, despite previously allowing discussion of other
nonwork related topics. Pier Sixty, LLC, 362 NLRB 505, 525–
526 (2015). Respondent here permitted notification of other so-
cial functions, with its rationale that these employees were “fam-
ily” and then compares discussion about the union by employees
as “third party.”29
2. Acceptable use policy
The CSRs have a right to use the email and computer system
for personal use, including social media. However, Respondent
contends that the CSRs’ use of the “reply all” function was not
proven at hearing. On the contrary, none of Respondent wit-
nesses contradicted the employee witnesses that the “Reply All”
function was used in response to baby showers and death notices.
Respondent’s actions, therefore show it discriminated based
upon the content of Befort’s email, which reflects union activi-
ties and sympathies.
Respondent argues that Befort’s email had all the characteris-
tics of junk email, commonly known as spam. The Acceptable
Use Policy does not define junk mail as spam. However, spam
is a reasonable term when applied to email and “junk mail.”
Spam has various but similar definitions.
The definition of “junk mail” is similar: unsolicited mail that
consists mainly of promotional materials, catalogs, and requests
for donations. See www.merriam-webster.com/diction-
ary/junk%20mail (2016). Respondent, offering a definition
from the Oxford Dictionary, says spam is “sending the same
message indiscriminately to (large numbers of recipients).” (R.
Br. at 27, citing 2011 version). The more recent Oxford
29 Respondent’s policies allow for discussion of work-life conditions,
but apparently not all perceptions on work life. Elliott’s statement im-
pliedly shows disparate treatment of employees engaged in union activ-
ities. Birth announcements are about the T-Mobile family, but employ-
ees communicating about the union to each other are not part of our fam-
ily, just a third party. It suggests that Respondent considers union in-
volvement as disloyalty. See: Chino Valley Medical Center, 359 NLRB
Dictionary definitions are “irrelevant or inappropriate messages
sent on the Internet to a large number of recipients” or “unwanted
or intrusive advertising on the Internet.” See www.oxforddic-
tionaries/us/definition/american _english/spam.com (June 16,
2016). Another definition states spam is “e-mail that is not
wanted; e-mail that is sent to large numbers of people and that
consists mostly of advertising.” See www.merriam-web-
ster.com/dictionary/spam (2016).
The theme connecting the Oxford and Merriam-Webster def-
initions of spam and junk mail are sending to a large number of
people (at least for spam) and consists of advertising. Befort’s
email, while arguably sent to a large number of people, was not
advertising. Although unsolicited, the email did not consist of
promotional materials, catalogs or requests for donations. Be-
fort’s email, based upon these commonly accepted definitions,
was not junk mail or spam, so Respondent’s application of the
policy was not warranted.
3. Enterprise user standard
Respondent also argues that Befort violated its Enterprise
User Standard by creating an impermissible “work around” be-
yond her system access limitations. She bypassed the warnings
and sent emails to groups of 100 or less when she discovered she
did not have proper permission to the user list for all CSRs. Re-
spondent contends that, by restricting access to certain levels of
employees, it has not given “access to its email system where it
has not chosen to do so.” (R. Br. at 26–27), citing Purple Com-
munications, 361 NLRB 1050, 1063. This parsing of Purple
Communications addresses when the employer has not chosen to
give any access. The issue is “whether the employer applied uni-
form and consistently enforced control over its email system to
the extent such controls are necessary to maintain production and
discipline.” Purple Communications, 361 NLRB 1050, 1051.
The standard for establishment of uniform and consistently en-
forced restrictions are those that an employer can prove would
interfere with the email system’s efficient functioning. Id., slip
op. at 15. Examples are large attachments or audio/video seg-
ments. Id.
Respondent did not prove that its enforced restrictions were
necessary for production and discipline, nor did it prove the
email interfered with its email system’s efficient functioning. As
General Counsel points out, Respondent has no evidence that it
ever enforced this limitation before Befort’s email. Respondent
also admitted that it would not have known if the email was sent
to smaller groups first. The email was not large and contained no
large attachments, such as the audio or video attachments cited
in Purple Communications. It further stated that it needed to
avoid employees sending emails at the same time to each other,
yet provided no examples of such occurring or what would cause
the email system to crash.
Respondent also claims the email was disruptive to production
992, 993, 1000 (2013), affd. 362 NLRB 283 (2015) (telling employees
that they would lose the family atmosphere and flexibility of scheduling
if they selected the union violated Section 8(a)(1); also announcing that
employees ended the family atmosphere because they voted for the un-
ion); Holiday Inn-JFK Airport, 348 NLRB 1, 3–4 (2006) (employer’s
statement that “we’re all family” implied that employees who support
union threatened the “family” atmosphere).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
because some employees complained. Even assuming some em-
ployees found the email offensive, it is irrelevant to determining
disruption due to protected speech. See Boulder City Hospital,
355 NLRB 1247, 1249 (2010); Consolidated Diesel Co., 332
NLRB 1019, 1020 (2000), enfd. 263 F.3d 345 (4th Cir. 2001).
Respondent also differentiates its own facility-wide emails
about salsa and lip sync contests as business-related interests in
fostering employee morale; in contrast Befort’s email is not busi-
ness-related purpose because it was intended to create support
for the Union. Respondent cites Kallail v. Alliant Energy Corpo-
rate Services, Inc., 691 F.3d 925, 931 (8th Cir. 2012). The case
involves a plaintiff who sued under the Americans with Disabil-
ities Act when she requested a reasonable accommodation to no
longer rotate shifts. The court stated that avoiding employee
complaints and maintain morale were legitimate business rea-
sons for a scheduling decision. Id. (emphasis added). It did not
balance the employer’s right to promote morale or property
rights with employees’ Section 7 rights.30 Further, the idea that
social events promote morale is aspirational, but, beyond the tes-
timony that employees generally like these events, Respondent
does not demonstrate with any of its metrics that slushies, pop-
corn, and lip sync contests actually elevate employee morale at
this facility beyond the moment of the event.
I instead find that an email about a social and informative Un-
ion event may be no more disruptive during “working time” than
notification about leaving one’s workstation to get popcorn or
slushies or finding out about colleague’s death. Befort’s email
specifically told its recipients to contact her when they were not
working. Respondent also does not monitor other personal mes-
sages, which are permitted, so Respondent apparently is not
aware of whether employees receive messages during work that
might be, according to its terms, “disruptive.” Respondent there-
fore does not demonstrate that the email was so disruptive that it
warrants enforcement of this rule. See Anderson-Rooney Oper-
ating Co., 134 NLRB 1480, 1491, 1492 (1961) (employer argued
union talk more disruptive than other talk). The enforcement
was therefore discriminatory.31
4. Solicitation policy
Respondent further contends that Befort also violated its So-
licitation policy, which prohibits solicitation to other employees
while they are working. Because some CSRs received and read
the email during working time, Respondent maintains the policy
was violated. This position conflicts with Purple Communica-
tions.
Using an email system is not treated as just solicitation due to
its unique features. It may defy classification as a work or non-
work area. Purple Communications, supra, slip op. at 14. Fur-
ther, reading of personal email on working or nonworking time
has become blurred due to the structure of the technology work-
place in which the CSRs operate. Purple Communications, 361
NLRB 1050, 1064 fn. 72. Respondent does not demonstrate that
it has significantly limited email usage during working time
when anyone else sends a personal email. In this respect, Re-
spondent’s reliance upon the solicitation policy is misplaced.
30 Respondent also cited a sexual harassment case. Wimberly v.
Shoney’s Inc., 1985 WL 5410 (S.D.Ga. 1985).
Because this interpretation was put forth against union activity
but not before, it is discriminatory.
In addition, Befort’s email does not meet the accepted defini-
tion of solicitation. “[S]olicitation and distribution of literature
are different organizational techniques and their implementa-
tion pose[d] different problems both for the employer and for
employees.” Stoddard-Quirk Mfg. Co., 138 NLRB 615, 619
(1962) (emphasis in original). Solicitation is viewed as an oral
request. Id. at 617-618. Solicitation is a concrete effort to obtain
a signature on an authorization card directed from one person to
another. ConAgra Foods, Inc. v. NLRB, 813 F.3d 1079, 1089
(8th Cir. 2016). Befort asked the CSRs to attend a social func-
tion to find out more about joining the union. Befort encourages
CSRs to “Join the movement!” This statement is vague: It does
not necessarily imply asking employees to sign cards in respect
to joining a movement when voices are silenced about “discuss-
ing” in an organized manner. Nonetheless, Respondent applies
the rule. Because it misclassifies the email as solicitation, Re-
spondent disparately enforces the rule against the email.
C. Allegations Based Upon Elliott’s June 2 email
Three allegations arise based upon Elliott’s email. General
Counsel maintains all three rules stated in Elliott’s June 2 email
are overly broad and were disparately enforced. The three alle-
gations are: promulgating and maintaining rules against sending
“mass emails” to other employees; prohibiting discussing the un-
ion during work time; and prohibiting employees from using so-
cial media while at work. As all were promulgated in response
to Befort’s email, Elliott’s new rules were promulgated in re-
sponse to Section 7 activities.
1. “Mass communications” by email
I find that this rule would be reasonably interpreted by em-
ployees to limit communications about Section 7 rights and was
promulgated in response to Section 7 activity. Employees have
a presumptive right to use their employers email systems for Sec-
tion 7 communications during nonworking time. UPMC, 362
NLRB 1704, 1707 fn. 12 (2015); Purple Communications, 361
NLRB 1050, 1063 (2014).
First, Respondent contends a permissible systemwide email is
one an employee may send to recover lost items, such as a
charger. Respondent claimed, because it occurred on its prop-
erty, it was responsible. This discriminates based upon the con-
tent of the email—employees can email a large group to recover
lost electronics, but not about the Union. Because of this incon-
sistency, Respondent does not rebut the presumption that it has
“special circumstances” to limit the content of the email. See
UPMC, 362 NLRB 1704, 1707–1708.
Second, the rule is vague. A CSR can send one email to 99
recipients without receiving a message from the system. Are one
set of 99 emails a mass communication? One cannot tell from
Elliott’s email. Because the definition of “mass communica-
tions” is missing, the rule would be subject to interpretation. In
the paragraph addressing “mass communications,” nothing
about the Union is mentioned. The next paragraph, however,
31 The Union suggests that the correct analysis for these rules should
be the same as those applied to verbal talking. Because the Board has
not directed use of such a test, I am bound by current Board precedent.
T-MOBILE USA, INC. 17
talks about what Respondent perceives as employee rights for
Union discussions. Taken as a whole, an employee would rea-
sonably find that this rule particularly pertains to communica-
tions about the Union. The rule therefore is overly broad and
was promulgated in response to Section 7 activity. It therefore
violated Section 8(a)(1) of the Act.
2. Discussing the Union during worktime
The portion of Elliott’s email at issue is:
Employees have countless opportunities to communicate with
others when they are not working—about the union or anything
else. They can talk with others in break areas, before work, or
after work. They can talk from home, or text while eating out.
An employer violates Section 8(a)(1) by prohibiting employ-
ees from speaking with each other about terms and conditions of
employment, unless it can prove a specific legitimate and sub-
stantial business justification. Central States Southeast and
Southwest Areas, 362 NLRB 1280, 1281 (2015). The language
is ambiguous, and an employee reasonably would be unable to
determine whether he could talk about the union, or anything
else, during working time in a working area. As the record re-
flects employee discuss other matters unrelated to work during
work time, these statements establish an unlawful no talking rule,
directed at Union activity. See Pier Sixty, LLC, 362 NLRB 505,
525-526 (2015), citing Sam’s Club, 349 NLRB 1007, 1009
(2007); Anderson-Rooney Operating Co., 134 NLRB 1480,
1491-1492 (1961). Because the language is ambiguous and the
rule was promulgated in response to union activity, the rule is
both overly broad and discriminatory. See Care One at Madison
Avenue, 361 NLRB 1462 (2014) (coercive memo in response to
union activity).
3. Social media
Social media may be used as a method to communicate about
Union and/or protected concerted activities. See: Pier Sixty,
LLC, 362 NLRB 505 (2015); Bettie Page Clothing, 361 NLRB
876 (2014); Triple Play Sports Bar and Grille, 361 NLRB 308
(2014). Respondent’s social media policy states employees can
occasionally use personal social media on the work computer or
during work hours as long as it does not interfere with job re-
sponsibilities and is consistent with the other policies. (Tr. 327).
Until Elliott’s email, which he issued in response to Befort’s
email, employees would reasonably interpret Respondent’s rule
to permit Section 7 activities on the work computer or during
work hours as long as it did not interfere with their job duties.
Elliott’s email changes the policy to using social networks “. . .
off the job, of course.” The next sentence applies his version of
the rules to solicitation and distribution.
This new “off the job” limitation is in direct conflict with Re-
spondent’s social media policy. An employee would reasonably
be confused by Elliott’s iteration, as the policy previously per-
mitted use of social media on the computer or during work hours.
This ambiguity is construed against Respondent. Whole Foods
Market, Inc., 363 NLRB No. 87 (2015); Mercedes-Benz U.S. In-
ternational, Inc., 361 NLRB 1018, 1025-1026 (2014).
Elliott’s statement also would reasonably be interpreted by
employees as “working hours” rather than “working time.” Rules
prohibiting solicitation during working time are
p resumptively lawful because “. . . that term denotes periods
when employees are performing actual job duties, periods
which do not include the employee’s own time such as lunch and
break periods.” Our Way, 268 NLRB 394, 394–395 (1983).
However, a solicitation rule is presumptively invalid when solic-
itation is prohibited during the employee’s own time. Our Way,
268 NLRB at 394. An employer may ban solicitation in working
areas during working time; however, the ban cannot be extended
to working areas during nonworking time. UPS Supply Chain
Solutions, Inc., 357 NLRB 1295, 1296 (2011). By stating “off
the job,” Respondent’s rule prohibits solicitation via social me-
dia in the working areas of the company, without regard to
whether employees are taking breaks in the area. Because the
rule does not extend to nonworking time in work areas, Elliott’s
new social media rule is overly broad and violates Section
8(a)(1). UPS Supply Chain, supra. It was promulgated in re-
sponse to Union activity, which also is violative.
II.. RESPONDENT’S JUNE 2 MEETING WITH BEFORT
The allegations here are that Respondent: prohibited employ-
ees from sending “mass e-mails;” prohibited employees from
talking about the union during working time although permitting
employees to discuss other subjects; and, prohibited employees
from sending Union-related emails to employees’ work email
addresses. I first determine credibility and then address the alle-
gations.
A. Credibility
I first must decide credibility for Befort and Maron, both of
whom testified about the meeting. I credit Befort’s testimony
because of her forthright demeanor. Respondent failed to cor-
roborate Maron’s testimony when it did not call Coach Meeks to
testify. I take an adverse inference because Meeks did not tes-
tify. Roosevelt Memorial Medical Center, 348 NLRB 1016,
1022 (2006) (an adverse inference may be drawn from a party’s
failure to call a witness who may reasonably be assumed to be
favorably disposed to a party, and who could reasonably be ex-
pected to corroborate its version of events, particularly when the
witness is the party’s agent).
I find that Maron’s testimony is less credible than Befort’s.
Maron tended to shade her testimony, such as when she insisted
on direct that she read the talking points verbatim, and later ad-
mitted to at least variations and interruptions from Befort. Fur-
ther, in Befort’s version, Maron’s statements to Befort also con-
flicted, because she told her the emails could not be disruptive
but confirmed she could send them. However, earlier in the con-
versation, Maron said she could send send emails because they
were considered solicitation, which is consistent with Respond-
ent’s position as to why the email allegedly violated Respond-
ent’s policies.
B. Statements Made to Befort
The Board considers the totality of the circumstances in as-
sessing the reasonable tendency of an ambiguous statement or a
veiled threat to coerce. KSM Industries, 336 NLRB 133 (2001);
Mediplex of Danbury, 314 NLRB 470, 471 (1994). The test is
objective. ManorCare of Kingston, PA, LLC v. NLRB, ___ F.3d
(D.C. Cir. May 20, 2016). In assessing whether a statement con-
stitutes a threat, the appropriate test is “whether under all
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
circumstances the employer’s conduct reasonably tended to re-
strain, coerce or interfere with employees’ rights guaranteed by
the Act.” Mediplex of Danbury, 314 NLRB at 471–472. “[T]test
of interference, restraint, and coercion under Section 8(a)(1) of
the Act does not turn on the employer’s motive or on whether
the coercion succeeded or failed.” American Tissue Corp., 336
NLRB 435, 441 (2001), citing NLRB v. Illinois Tool Works, 153
F.2d 811, 814 (7th Cir. 1946). The “threats in question need not
be explicit if the language used by the employer or his repre-
sentative can reasonably by construed as threatening.” NLRB v.
Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970).
Regarding Respondent’s prohibition against employees send-
ing “mass e-mails,” I find that this statement is violative for the
same reasons that Elliott’s email also promulgated an overly
broad rule and was discriminatory: An employee would reason-
ably believe she could not send an email to a group of employees.
Regarding prohibiting employees from talking about the un-
ion during working time although permitting employees to dis-
cuss other subjects, the evidence demonstrates that employees
were permitted to talk about anything during their working time
as long as they attended to calls first. If two employees did not
have calls, the employees could speak with each other about any
subject. Telling Befort that she could not discuss the Union ex-
cept outside working areas alone is discriminatory and coercive.
See Pier Sixty, supra.
Maron also stated that Befort was prohibited from sending
Union-related emails to employees’ work email addresses. Alt-
hough Maron gave conflicting messages, the conflict makes the
statements confusing. The main message Befort received, how-
ever, was she could not use Respondent’s email to send messages
about the Union. Based upon the above analysis involving Pur-
ple Communications, I find that this statement is coercive be-
cause an employee would believe she did not have a right to use
the email system to communicate about Union or other protected
activities.
III. RESPONDENT’S JUNE 4 MEETING WITH BEFORT’S TEAM
Other employees testified about the meeting, but Befort’s ver-
sion was the most complete, so I rely primarily upon her testi-
mony. As before, Respondent did not call Coach Meeks to tes-
tify and Maron’s testimony is therefore uncorroborated. I further
credit the employees that Maron did not read verbatim and gave
her own interpretations of what she had on the talking points. As
on June 2, Maron told employees that they could not talk about
the Union during working time in nonwork areas, despite allow-
ing conversations on other subjects during working time in work-
ing areas. For the reasons stated above, this statement again vi-
olated Section 8(a)(1).
IV. RESPONDENT’S ALLEGED JUNE 4 SURVEILLANCE AND
INTERROGATION BY COACH MEEKS
I credit the employees’ version of what occurred that day. The
testimony was fairly consistent, with only a few minor varia-
tions. As noted above, Meeks was not called to testify and I
make an adverse inference because she did not testify. I first
address the alleged surveillance, then interrogation.
32 The case is further differentiated because here the employees were
not engaged in open union activities when they left for break.
A. Meeks Engaged in Surveillance
Respondent defines surveillance as photographing, videotap-
ing or openly conducting recordkeeping of employees participat-
ing in open union activities. National Steel and Shipbuilding
Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir.
1998). Such conduct constitutes only one form of surveillance.
Surveillance is supervisors watching “employees engaged in
Section 7 activity by observing them in a way that is out of the
ordinary and thereby coercive.” Aladdin Gaming, LLC, 345
NLRB 585, 585–586 (2005), rev. denied sub nom. Local Joint
Executive Bd. of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir.
2008). It depends upon the nature and duration of the supervi-
sors’ observation. Id. Factors showing the observation was co-
ercive include the duration of observation, the employer’s dis-
tance while making the observation and whether the employer
engaged in other unlawful activity. Id. at 586.
Meeks engaged in overt surveillance “to prevent known union
supports from engaging in organizational activities at times and
places when and where they were lawfully entitled to do so.”
Teksid Aluminum Foundry, 311 NLRB 711, 714–715 (1993).
The timing of Meeks’ actions, immediately after a meeting with
the employees about a union leaflets, alone suggests that she
wanted to determine what the employees would do. Although
Meeks did not smoke, Meeks went to the break area with the
employees, something she never did before and did not do again.
Some of the employees who went to the area were known union
sympathizers. Meeks was obviously watching for the employ-
ees’ reactions to the meeting and what was happening between
the employees, particularly as she observed Lowery reading the
phone message and attempted to ascertain what was happening.
Meeks’ conduct was different than other non-smokers who went
to this break area because Meeks was a first time, last time visi-
tor.
Respondent contends that Meeks could not have known that
the employees would discuss union sympathies and activities af-
ter the team meeting about the flyers.32 I disagree. A number of
the employees who went to this break area, including Befort,
were known union sympathizers and activists. The topic of the
meeting immediately preceding the break involved Respond-
ent’s answer to the union flyers. Meeks, who never took breaks,
obviously wanted to hear if the employees had any response.
Compare Aladdin Gaming, LLC, 345 NLRB 585, 585–586
(2005) (supervisors not engaged in surveillance when they nor-
mally took breaks in the open lunch area and was not accompa-
nied by any other unlawful action).
Her conduct is similar to the supervisor who, during the em-
ployees’ nonworking time, went to a smoking area more fre-
quently after a unionization campaign started; the employees
who gathered there were either known or suspected union sym-
pathizers. Fieldcrest Cannon, Inc., 318 NLRB 470, 502–503
(1995). No reason was given for the Fieldcrest supervisor’s
more frequent visits. Id. Similarly, Respondent offered no rea-
son why Meeks suddenly decided to take a break with these em-
ployees. Also see Liberty House Nursing Homes, 245 NLRB
1194, 1200 (1979) (“preemption of nonworking time . . .
T-MOBILE USA, INC. 19
constituted a pronounced impediment to the employees’ right to
utilize the only opportunity during working hours in which they
could engage in section 7 activity . . . without violating Respond-
ent’s announced rules”).
B. Meeks Interrogated Employees While on Break
The test for determining whether an employer unlawfully in-
terrogated an employee is whether, under all of the circum-
stances, the interrogation reasonably tends to restrain, coerce or
interfere with the free exercise of rights guaranteed by the Act.
Pan-Oston Co., 336 NLRB 305, 307 (2001), citing Rossmore
House, 269 NLRB 1176 (1984). Among the factors the Board
may consider are:
(1) whether there is a history of employer hostility to or dis-
crimination against protected activity;
(2) the nature of the information sought;
(3) the identity of the questioner;
(4) the place and method of interrogation;
(5) the truthfulness of the employee’s reply.
Intertape Polymer Corp., 360 NLRB 957, 957 (2014), enfd. in
rel. part, 801 F.3d 224 (4th Cir. 2015).
The nature of the relationship between the supervisor and em-
ployee also may be considered if relevant. Id. Either the words
or context must suggest an element of coercion. Stablius, 355
NLRB at 850.
Although Meeks was a low-level supervisor, she was a direct
supervisor, which tends to make questioning more threatening.
Intertape Polymer, supra. Meeks offered no justification to the
employees for her questions. Id. The place of Meeks’ question-
ing was the break area, where employees are permitted to engage
in union and other protected activities during their nonworking
time. Meeks questioned what the employees were saying, even
when the employees made a point of whispering, which was an
attempt to insinuate herself into the discussion. After Meeks de-
manded to know what the message on the phone was, the em-
ployees lied about what was on the phone and AJ changed the
phone screen to conform, which demonstrates a lack of truthful-
ness in response to her questioning. The questioning was de-
signed to interfere with the employees’ Section 7 rights. In light
of her concurrent unlawful surveillance, the above factors and
circumstances demonstrate that Meeks’ questioning was coer-
cive and violated Section 8(a)(1). See: Hydro-Dredge Accessory
Co., 215 NLRB 138, 149 (1974) (in light of other violations, em-
ployer’s interrogation was “inextricably interwoven” with em-
ployer’s interest in keeping employees away from the union);
G.R.I. Corp., 216 NLRB 34 (1975) (not isolated considering
other unfair labor practices; interrogation does not have to be
stated as a query).
V. CSR PARRISHSENT AWAY BY A GUARD
In this section, I first discuss whether Wiegand was an agent
for Respondent. Because I find Wiegand was an agent, I discuss
33 Security guards have access to the email and instant messaging
systems, which they may use to notify CSRs when the guards find a park-
ing issue, such as parking in an impermissible spot. The guards send
instant messages (IMs) to employees for food deliveries or mail left with
the alleged violation and whether Respondent cured the violation
when it sent Parrish an email about the incident.
A. Guards Are Respondent’s Section 2(13) Agents
1. Facts regarding guard duties
During the relevant time, Respondent contracted with Guards-
mark for security guards. The security guards are stationed at
the front of the building and at the back exit. They stop people
from entry if proper identification is not presented. If employees
lose their identification tags, they go to security, which issues a
temporary badge and ensures they are able to access the facility.
Guards patrol the outside and inside of the Call Center to ensure
that the facility is secure.
The guards make rounds in the parking lots to check vehicles
and around the building through her shift. During orientation,
guards inform new employees of their duties, including require-
ments for employee identification and parking permits, plus their
roles in emergencies and first aid. Employees are also told to
contact security if see anything suspicious.33
Several TPA Reports reflect that the guards stopped union
protesters on the edge of the company’s property when they have
put clothing on top of stop signs and requested them to move
their cars from Respondent’s parking lot. Wray-Tolbert testified
contradictorily about the guard’s duties. She first stated that, if
a guard sees someone who should not be on the property, the
guard will tell the person to leave and, if necessary, call the po-
lice. On the other hand, she later testified the guard was sup-
posed to notify Wray-Tolbert or Elliott to obtain further instruc-
tion in how to handle the matter. However, guards did not con-
tact Human Resources in every instance, nor did the TPA Re-
ports reflect such instruction.
2. Analysis regarding agency status
The Board uses common law agency principles to determine
whether an individual is an employer’s agent. SAIA Motor
Freight, Inc., 334 NLRB 979 (2001). The burden of proof of
agency status is upon the party asserting it—here, General Coun-
sel. CNP Mechanical, 347 NLRB 160, 169 (2006). The question
is whether the person in question demonstrates either actual or
apparent authority. Station Casinos, Inc., 358 NLRB 637, 645
(2012). For apparent authority to exist, a third party “must have
a reasonable basis . . . to believe that the principal has authorized
the alleged agent to perform the acts as to which agency is al-
leged.” Poly-America, Inc., 328 NLRB 677 (1999), enfd. in rel.
part, 260 F.3d 465 (5th Cir. 2001). If employees would reason-
ably believe that the person in question reflects company policy
and acts upon the employer’s behalf, “[a]n employer may
properly be held responsible” for that person’s conduct. CNP
Mechanical, Inc., 347 NLRB 160, 169 (2006). Also see Tortillas
Don Chavas, 361 NLRB 101, 109 (2014). Agency must be es-
tablished with regard to the specific conduct that is alleged to be
unlawful. Ace Heating and Air Conditioning Co., 364 NLRB
No. 22, slip op. at 3 (June 15, 2016); Station Casino, supra, citing
In re Cornell Forge Co., 339 NLRB 733 (2003). Even in the
the front desk The guards also use IMs with reminders to make sure that
employees’ car windows are closed when rain was predicted, and notifi-
cations that an employee left car lights on or had a flat tire.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
absence of specific instructions, agency status can be properly
found. Poly-America, Inc. v. NLRB, 260 F.3d at 486-487.
An employer may be held liable for unfair labor practices
committed by security guards acting in their official capacity.
Saint John’s Health Center, 357 NLRB 2078, 2095-2096 (2011)
(security guards acting under direct authority from upper man-
agement violated Section 8(a)(1) by threatening to have employ-
ees charged with trespassing for distributing pro-union literature)
(citing Opryland Hotel, 323 NLRB 723 fn. 3 (1997); Bakersfield
Memorial Hospital, 315 NLRB 596 (1994); Southern Maryland
Hospital Center, 293 NLRB 1209 (1989)). Here, substantial ev-
idence shows the guards monitor who enters and exits the prop-
erty. They also detain people at the front desk and require iden-
tification. These facts demonstrate apparent authority. Cooking
Good Div. of Perdue Farms, Inc., 323 NLRB 345, 351 (1997)
(security guards placed in a position to stop individuals from en-
tering premises were cloaked with apparent authority), enfd. in
rel. part, 144 F.3d 830 (D.C. Cir. 1998). I do not adhere to Re-
spondent’s argument that the guards have been instructed to no-
tify Human Resources with encounters with “third parties,”
which apparently includes employees engaged in union activi-
ties. The testimony on this point shifted. No Respondent witness
discussed the first guard who confronted Parrish and decidedly
took action without any contact with Human Resources person-
nel. Despite Respondent’s argument that the guards are told per
TPA Reports not to engage employees, nothing in the TPA Re-
ports suggests that the guards ever see the TPA Reports or com-
plete them.
An employee would reasonable believe that Wiegand was act-
ing as an agent on behalf of Respondent regarding who could
access the property.
B. The Guard, as Respondent’s Agent, Violated Section 8(a)(1)
Although Respondent admits Wiegand was incorrect, he still
required Parrish to leave and she complied. I agree with General
Counsel that, although Wiegand incorrectly enforced Respond-
ent’s rule regarding employees on the property on nonworking
time in a nonworking area, Respondent’s agent violated the Act.
Harrison Steel Castings Co., 262 NLRB 450, 455 fn. 6 (1982).
C. The Violation Is Not Cured Under Passavant
To relieve itself of liability for unlawful conduct, Respond-
ent’s repudiation must be timely, unambiguous, specific to the
coercive conduct and free from other proscribed unlawful con-
duct. Passavant Memorial Area Hospital, 237 NLRB 138
(1978).
I agree with Respondent that Wray-Tolbert’s email was
timely, unambiguous and specific to the conduct. It also assured
Parrish of her rights to continue what she was doing. However,
the email did not tell Parrish that Respondent would not repeat
its actions, which failed to cure the violation. Consolidated Die-
sel Co. v. NLRB, 263 F.3d at 354–355.
Respondent also contends it was free from other proscribed
conduct until possibly December, or over four months, and the
incident was isolated. Further, no unfair labor practices occurred
until unrelated claims of December. Respondent’s cases are dif-
ferentiated factually. In Broyhill Co., 260 NLRB 1366–1367
(1982), the Board relieved the employer of a notice posting after
an employer made its own posting, which followed the Board’s
language and affirmatively stated what employees’ rights were.
The employer there also had not violated the Act in any other
way. In Raysel-IDE, Inc., 284 NLRB 879, 891 (1987), the em-
ployer also committed no other violative conduct.
Here Respondent ignores the settlement agreement, approved
July 28, 2015, regarding this particular facility. Given the date,
the posting to cure the previous violations had not been available
for employee viewing for the full 60 days. In addition, Respond-
ent’s more recent unfair labor practice violations, for violative
rules, surveillance, interrogation, and coercive statements as dis-
cussed above, occurred on June 2 and 4, less than two months
before the confrontation with Wiegand. More unfair labor prac-
tices were to follow.
I therefore find that the violation committed by Respondent’s
agent was not cured due to its failure to assure Parrish that such
conduct would not occur again, and Respondent had other un-
cured proscribed conduct.
VI. SECTION 8(A)(1) AND (3) ALLEGATIONS INVOLVING SPENCER
AND CROXSON
A. Credibility
Spencer had difficulty with the timing of events. For example,
she said she talked about the Befort email with Croxson in early
June because she knew Befort would be assigned to her team;
yet she later testified that she did not know whether Befort was
joining her team until weeks later. Spencer’s testimony at times
was tinged with a certain level of angst when discussing what
one might perceive as Croxson’s betrayal of Spencer’s hard work
to rehabilitate her. I therefore credit that Croxson told Spencer
she wanted to change her perception within the company. I dis-
credit Croxson on her explanation that she was not involved with
decorating her coach’s office as she checked with the Union rep-
resentative as to its legality.
B. Alleged Coercive Statements in the Summer of 2015
The Complaint alleged that, in mid-June or early July, Spencer
threatened Croxson with unspecified reprisals by telling her that
Union activities were detrimental to success and interrogated
whether employees still affiliated with Union and what sympa-
thies were. It also alleged that in late June, Spencer allegedly
interrogated her by asking if she was still friends with a known
Union supporter, Befort.
I disagree with General Counsel’s position here. I credit that
Spencer told Croxson that she would assist her in rehabilitating
her image. However, based upon the credited facts, Croxson
opened the door to this discussion by telling Spencer that she was
interested in doing so. I find no violation here.
Regarding the alleged interrogation, General Counsel explains
the facts that Spencer asking Croxson if she supported the Union
and why she supported in the first place. As with the statement
immediately above, I find that it does not exceed what Croxson
was apparently willing to reveal and no violation occurred.
Croxson testified that Spencer asked frequently whether she
was still friends with Befort, who was known by this time from
her email as an open Union supporter. I credit Croxson, although
she did not specify when these conversations took place. Given
Spencer’s belief that she was rehabilitating Croxson’s image
T-MOBILE USA, INC. 21
within the company, Spencer’s questioning of the friendship in-
tended to gauge whether Croxson was following Spencer’s ad-
vice about discontinuing her ties with the Union. It exceeds what
Croxson discussed before, which makes the statement coercive.
C. Chart Allegations
Respondent denies the statement and discrimination based
upon the seating chart. Spencer was vague with her denial here
and I therefore do not credit this denial. Regarding Spencer’s
statement to Croxson, Spencer likely believed that, because
Croxson was no longer involved with the Union, she could freely
discuss creating the seating chart with her intent to isolate union
supporters. The statement is coercive because it conveys Re-
spondent’s plan to keep union supporters away from each other,
even in one pod. Bowling Transportation, Inc., 336 NLRB 393,
400 (2001), affd. 352 F.3d 274 (6th Cir. 2003), rehg. en banc
denied (6th Cir. 2004) (telling employee he is disciplined be-
cause of union and/or protected concerted activity violates Sec-
tion 8(a)(1); Yale-New Haven Hospital, 309 NLRB 363, 367–
368 (1992) (friendly statements may still be threatening and
show intent to take action).
The seating chart places four identified union supporters were
placed with four seats between each in a U-shaped pod. The
chart alone provides circumstantial evidence: Unlike the LSAT
questions, everyone must sit somewhere. However, the chart’s
outcome was dictated by Spencer’s stated intent to isolate. I con-
sider her statement to Croxson with the chart as evidence of dis-
crimination. I therefore find the statement violated Section
8(a)(1) and the implementation of the seating chart violated Sec-
tion 8(a)(3) and (1).
D. The Allegations Regarding Croxson and Spencer’s
December 11 Conversation
Based upon the conversation that day, General Counsel al-
leges six Section 8(a)(1) violations. I credit Croxson’s version of
what happened. A factor throughout this conversation was that
Spencer believed Croxson was no longer involved with Union
activities and therefore was no longer an open supporter. I find
that Spencer, who admitted that she was “disappointed” with
Croxson’s lying, was more disappointed than she wanted us to
believe. I find five of the six statements violated the Act.
First, Spencer asked Croxson if she thought she was stupid
about being aware of Croxson’s union activity. That portion of
the statement is more of a prelude to the remaining conversation
and sounds more like Spencer’s opinion, protected by Section
8(c), rather than a coercive statement. The remainder of the con-
versation, however, is a different story.
The second allegation maintains Spencer created an impres-
sion of surveillance. An employer creates an impression of sur-
veillance when it indicates it is closely monitoring the degree of
an employee’s union activities: Spencer’s statement that she
found out and saw Croxson’s picture at the Union events in
Washington, D.C. implies that Spencer is monitoring the Face-
book page on which the pictures appeared. The underlying prin-
ciple for finding an impression of surveillance is that “employees
should be free to participate in union organizing campaigns with-
out the fear that . . . management [is] peering over their shoul-
ders, taking note of who is involved in union activities, and in
what particular ways.” Flexsteel Industries, Inc., 311 NLRB 257
(1993). The test is whether an employee would reasonably as-
sume from the statement that her union activities have been
placed under surveillance. Id., citing Rood Industries, 278
NLRB 160, 164 (1986). The standard is objective. Quickway
Transportation, Inc., 354 NLRB 560, 568 (2009), reaffd. 355
NLRB 678 (2010). Because a reasonable employee would not
know how Spencer came to view the Facebook pictures, a rea-
sonable employee would assume from the statement that unlaw-
ful surveillance was taking place. Promedica Health Systems,
Inc., 343 NLRB 1351, 1352 (2004).
The third allegation is that Spencer coercively told Croxson
that she was disappointed with Croxson for engaging in Union
activities. The circumstances surrounding the statement were
coercive as it was not the only statement Spencer made. A rea-
sonable employee would believe that Spencer’s disappointment
would lead to some form of reprisal, which makes the statement
unlawful. Print Fulfillment Services LLC, 361 NLRB 1243,
1243–1244 (2014); General Electric Co., 246 NLRB 1103, 1106
(1979).
The fourth allegation is Spencer asking if Croxson intended to
be outspoken about the Union and whether her stance had
changed. As Spencer previously believed that Croxson was no
longer involved with unionization, Croxson was no longer an
open supporter until Spencer saw the pictures. Even if Croxson
was an open supporter, the information Spencer sought was be-
yond what Spencer could see on Facebook. Grand Canyon Uni-
versity, 362 NLRB 57, 57 (2015). In considering all the circum-
stances, I find that this questioning constitutes unlawful interro-
gation.
The fifth allegation is that Spencer threatened Croxson that
she would not be considered for corporate awards, such as the
peak awards, due to her union activities. Spencer’s statement is
a threat of employer’s retaliatory quid pro quo for union activity
and violates Section 8(a)(1). See generally Metro-West Ambu-
lance Service, Inc., 360 NLRB 1029 (2014) (threats that em-
ployee will not advance because of union activities violative).
Lastly, Spencer told Croxson that she should make her re-
maining time easier by not supporting the Union. In light of all
the circumstances, telling an employee that not supporting the
Union would make your life easier coercively implies a benefit
for refraining from union activities, which violates Section
8(a)(1).
E. 8(a)(3) Allegation that Respondent Made Croxson Adhere
to a More Onerous Work Schedule
Singling out employees for closer supervision due to union
activity violates the Act. T&T Machine Co., 278 NLRB 970, 973
(1986). I assess based upon a dual motive analysis per the bur-
den shifting process established in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). The General Counsel must establish four elements
by a preponderance of the evidence. First, General Counsel must
show the existence of activity protected by the Act. Second, he
must prove that Respondent was aware that the employees had
engaged in such activity. Third, General Counsel must show that
the alleged discriminatee(s) suffered an adverse employment ac-
tion. Fourth, there must be a link, or nexus, between the
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees’ protected activity and the adverse employment ac-
tion. Proving these four elements creates a presumption that the
adverse employment action violated the Act. To rebut the pre-
sumption, Respondent bears the burden of showing that the same
action would have taken place even in the absence of the pro-
tected conduct. Wright Line, 251 NLRB at 1089. See also
Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
Crediting Croxson’s version, the timing suggests that Spencer
engaged in this conduct because Spencer discovered Croxson’s
union activities, which is direct evidence of knowledge. Timing
also supports a finding of animus. Respondent also puts forth
questionable reasons for initiating any actions regarding Crox-
son’s performance of this day.
Respondent adduced evidence to try to show that Croxson was
not a good senior representative, thereby needing a guide to help
her throughout her workday. However, evidence shows conflict-
ing evidence of interpersonal relations issues at worst. Spencer
admitted that the team was not having any problems meeting
their metrics in December, which lessens the need for providing
Croxson with a detailed list of tasks to accomplish in a specific
time frame. These reasons demonstrate that Respondent likely
had animus towards Croxson’s activities, rather than trying to
assist her to organize her day. The question then becomes
whether this condition was truly onerous.
In Aladdin Gaming, LLC, 345 NLRB at 624, the complaint
alleged an employee was forced to change break time earlier,
which caused the employee more onerous working conditions.
Because the events took place on one day, the administrative law
judge determined the change was de minimis and too insignifi-
cant to constitute an adverse employment action. In contrast, a
guard moved to the same post for consecutive days was consid-
ered a more onerous work assignment. Yale-New Haven Hospi-
tal, 309 NLRB at 371–372.
I agree with the logic of Aladdin Gaming: Because the con-
versation and assignment took place only on one day, the “to do”
list event is not sufficient to be an unfair labor practice. I there-
fore recommend dismissal of this allegation.
F. Two Allegations Regarding Croxson and Spencer’s
December 21st Conversation
One allegation maintains that Spencer created an impression
of surveillance by telling Croxson someone was creating turmoil
and must be getting paid by the Union to keep support going.
The second allegation alleges that Spencer interrogated Croxson
when she asked whether Croxson was involved in planning a un-
ion event.
As previously noted, an impression of surveillance is creating
when a manager implies close monitoring of union activities.
Spencer implied she was keeping an eye on “someone,” and
specified activities. Although Spencer knew that Croxson had a
paid trip to Washington, nothing indicates that Croxson or Bell,
who also went to Washington for the conference, were paid to
continue supporting the Union. See Flexsteel, supra. Because I
find that this statement was sufficient to create an impression of
34 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
surveillance, I do not reach the question whether “creating tur-
moil” also created an impression of surveillance.
Regarding the allegation of interrogation of whether Croxson
was involved in recent union activities at the facility, Spencer
again went beyond Croxson’s open conduct to question what she
was doing. Croxson denied the activity. As the facts of this case
demonstrates a history of hostility towards union activity and the
questioning was performed by the immediate supervisor in a
one-on-one conversation, I find that Spencer unlawfully interro-
gated Croxson whether she participated in doughnut distribution
and other Union activities. See Rossmore House, supra.
CONCLUSIONS OF LAW
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended34
1. Respondent admits, and I find, that it is an employer under
the Act as defined in Section 2(2), 2(6), and 2(7).
2. Communication Workers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent admits, and I find that the following are super-
visors within the meaning of Section 2(11) and/or agents within
the meaning of Section 2(13):
a. Jeff Elliott, Wichita Call Center Director;
b. Lillian Maron, Team Manager;
c. Larissa Wray-Tolbert, Senior Manager Human Resources;
and,
d. Angel Meeks and Belinda Spencer, Coaches.
4. J. Wiegand, security guard, is an agent within the meaning
of Section 2(13) of the Act.
5. Respondent violated Section 8(a)(1) of the Act by dispar-
ately enforcing its Acceptable Use Policy, Enterprise User
Standards, and No Solicitation rules against Union activity.
6. Respondent violated Section 8(a)(1) of the Act by promul-
gating and maintaining “mass communication” prohibitions, no
talking rules, and restrictive social media policies, because em-
ployees engaged in Union activity.
7. Since June 2, 2015, Respondent violated Section 8(a)(1) of
the Act by promulgating and maintaining overly broad “mass
communication” prohibitions, no talking rules, and restrictive
social media policies.
8. On June 2, 2015, Respondent violated Section 8(a)(1) of
the Act by telling employees they could not send “mass emails”
about the Union.
9. On June 2, 2015, Respondent violated Section 8(a)(1) of
the Act by telling employees that they could not discuss the Un-
ion in working areas despite permitting discussions of other top-
ics in the working areas.
10. On June 2, 2015, Respondent violated Section 8(a)(1) of
the Act by telling employees they could not use their work email
to send any messages about the Union.
11. On June 4, 2015, Respondent violated Section 8(a)(1) of
the Act by surveilling employees in a nonwork area during non-
working time to discover their Union or protected concerted ac-
tivities and sympathies.
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.
T-MOBILE USA, INC. 23
12. On June 4, 2015, Respondent violated Section 8(a)(1) of
the Act by interrogating its employees about their Union or pro-
tected concerted activities and sympathies.
13. Respondent violated Section 8(a)(1) of the Act by inter-
rogating its employees about their friendship with known Union
adherents to determine employees’ Union activities and sympa-
thies.
14. Respondent violated Section 8(a)(1) of the Act by telling
employees that it was creating a seating chart to isolate employ-
ees because of their Union activities and sympathies.
15. Respondent violated Section 8(a)(3) of the Act by creating
and maintaining a seating chart to isolate employees because of
their Union activities and sympathies.
16. Respondent violated Section 8(a)(1) by coercively threat-
ening employees with loss of corporate awards in order to per-
suade them to cease engaging in union or other protected con-
certed activities, telling employees that it is disappointed because
they engaged in Union or other protected activities, and telling
employees to makes their lives easier in order to persuade them
to cease engaging in Union or other protected concerted activi-
ties.
17. On December 21, 2015, Respondent violated Section
8(a)(1) of the Act by creating an impression of surveillance and
interrogating employees about their Union activities and sympa-
thies.
18. The Act was not violated in any other way.
REMEDY
In addition to traditional remedies, General Counsel requests
that a responsible official for Respondent read the notice to em-
ployees during work time with a Board agent present. To prove
the necessity of this enhanced remedy, General Counsel relies on
prior litigation and settlements.
The Board orders extraordinary remedies, such as public no-
tice readings, when the remedies are necessary dissipate the co-
ercive effects of the unfair labor practices. In re Federated Lo-
gistics and Operations, 340 NLRB 255, 256 (2003), rev. denied,
enfd. 400 F.3d 920 (D.C. Cir. 2005). To warrant an extraordi-
nary remedy, the unfair labor practices are “numerous, pervasive
and outrageous.” Id., citing Fieldcrest Cannon, Inc., 318 NLRB
470, 473 (1995) (internal quotations omitted). More recently, a
notice reading was warranted for serious and persistent multiple
unfair labor practices. Affinity Medical Center, 362 NLRB 654,
654 1 (2015). The notice reading is “a minimal acknowledge-
ment of the obligation . . . imposed by law and provides employ-
ees with some assurance that their rights under the Act will be
respected in the future.” Id. Also see Farm Fresh Co., 361
NLRB 848 (2014).
The Union has engaged in a long campaign to organize Re-
spondent’s facilities. It has filed unfair labor practice charges.35
The Board recently found that Respondent maintained several
unlawful rules in its handbook. The Board ordered that Re-
spondent post a notice at locations “where the unlawful rules and
35 General Counsel requested admission of a number of unfair labor
practice charges filed against Respondent at this location. I denied ad-
mission because the charges themselves do not show whether Respond-
ent engaged in violative conduct.
policies have been or are in effect.” T-Mobile USA, 363 NLRB
No. 171, slip op. at 6 (2016).
In an unpublished decision where no exceptions were filed,
the Board affirmed Judge Biblowitz’s findings that Respondent
violated Section 8(a)(1) at two facilities, one in Maine and one
in South Carolina. T-Mobile USA, Inc., available in Westlaw,
2015 WL 53502027 (September 14, 2015), affirming JD(NY)-
34-15 (August 3, 2015). The two violations were: Respondent
maintained an unlawful rule, “Notice and Acknowledgement of
Duty to Cooperate and Confidentiality,” at the two facilities; and
a statutory supervisor reconfirmed the rule to employees with
admonitions of discipline, up to and including termination, for
discussing complaints filed with Respondent. Because the Board
had no exceptions on which to rule, I do not rely upon this deci-
sion.
Two settlements deal specifically with the Wichita Call Cen-
ter. The first, approved on September 2, 2011, settled solicitation
and interrogation allegations and included a non-admissions
clause. The second Wichita settlement, approved July 28, 2015,
did not include a non-admissions clause. It settled allegations
that Respondent interrogated employees, made threats of un-
specified reprisals, and told employees that they could not dis-
cuss or engage in activities with other employees regarding
wages, hours and other terms and conditions of employment. It
also settled two disciplinary actions taken against Jerrica Crox-
son, an alleged discriminatee in the current case. (GC Exh. 27).
The unfair labor practices here did not rise to the level of those
in Federated Logistics, in which a reading was ordered. 340
NLRB at 257–258. There the unfair labor practices included nu-
merous violations of Section 8(a)(1) and (3). The Section 8(a)(1)
violations included maintaining and enforcing an overly broad
no solicitation/no distribution rule, threats regarding futility of
bargaining and shutting down the plant, interrogation, and sur-
veillance. Many of the violations were committed by the highest
ranking official and chilled employee rights. I also consider
Farm Fresh, supra, in which four employees in a potential bar-
gaining unit of 50 were terminated during an organizing cam-
paign fraught with surveillance, impressions of surveillance, and
numerous threats.
In comparison, the 2011 Wichita settlement is too remote in
time and Respondent made no admission of wrongdoing. Re-
spondent admitted wrongdoing in the 2015 Wichita settlement,
but for a much smaller number of violations. Even including the
2015 Wichita settlement with the current violation, they do not
rise to the level of those in Federated Logistics36 or Farm Fresh.
The recent Board case, which may have applied to Wichita, in-
cluded 15 violations, but all were related to unlawfully over-
broad rules and therefore relied little on evidence of chill. See
363 NLRB No. 171. General Counsel has not demonstrated that
the unfair labor practices here chilled the employees’ in their
Section 7 rights and activities. Also see Vista del Sol Healthcare,
363 NLRB No. 135 (2016). Traditional remedies should be suf-
ficient to ensure employees understand the violations and their
36 The Board also ordered a broad cease and desist order pursuant to
Hickmott Foods, 242 NLRB 1357 (1979). Federated Logistics, 340
NLRB at 257.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rights under the Act. Metta Electric (Metta II), 349 NLRB 1088
(2007).
ORDER
The Respondent, T-Mobile, USA, Wichita, Kansas, its offic-
ers, agents, and representatives, shall
1. Cease and desist from
(a) Selectively and disparately enforcing its Acceptable Use
Policy, Enterprise User Standards, and No Solicitation rules
against Union activity.
(b) Promulgating and/or maintaining overly broad work rules,
such as “mass communication” prohibitions, no talking rules,
and restrictive social media policies.
(c) Selectively and disparately promulgating and maintaining
rules regarding “mass communication,” no talking, and restraints
on use of social media because employees engaged in Union ac-
tivity by email.
(d) Telling employees that they cannot engage in “mass com-
munications,” no talking or engage in social media due to Union
or other protected concerted activity.
(e) Telling employees that they cannot talk about the Union
or other protected concerted activities while on working time
while permitting discussion of any other subject in the working
area.
(f) Coercively interrogating employees about union or other
protected concerted activities.
(g) Placing employees under surveillance while they engage
in union or other protected concerted activities.
(h) Creating the impression that it is engaging in surveillance
of employees’ union or other protected concerted activities.
(i) Telling employees that they will be isolated by a seating
chart because they engaged in union or other protected concerted
activities.
(j) Isolating employees by creating a seating chart because
they engaged in union or other protected concerted activities.
(k) Coercively threatening employees with loss of awards in
order to persuade them to cease engaging in union or other pro-
tected concerted activities.
(l) Coercively telling employees that it is disappointed be-
cause they engaged in union or other protected concerted activi-
ties.
(m) Coercively telling employees to make their lives easier in
order to persuade them to cease engaging in union or other pro-
tected concerted activities.
(n) 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) Rescind or revise the following rules and notify employ-
ees in writing:
a. “Mass Communications” rule;
37 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
b. “No talking” in work area during working time while allow-
ing other conversations in the work areas during working time;
and,
c. Social media, as stated in Elliott’s June 2, 2015 e-mail.
b. Within 14 days after service by the Region, post at its
Wichita Call Center in Wichita, Kansas, copies of the attached
notice marked “Appendix.”37 Copies of the notice, on forms pro-
vided by the Regional Director for Region 14, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employ-
ees are customarily posted. In addition to physical posting of pa-
per notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other
electronic means, as Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, Respondent has gone out
of business or closed the facility involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondent at any time since June 2, 2015.
Dated Washington, D.C. June 28, 2016
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 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.
WE WILL NOT make or maintain overly broad rules that restrain
you in the exercise of the rights set forth above by making or
maintaining rules, such as “mass communications,” talking with
each other, or using social media.
WE WILL NOT restrain you in the exercise of the rights set forth
above by selectively or disparately make or maintain rules, such
as “mass communications,” talking with each other, or using so-
cial media because you engaged in union or other protected con-
certed activities.
WE WILL NOT apply the Acceptable Use Policy, Enterprise
User Standards, and the Solicitation Policy selectively and
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
T-MOBILE USA, INC. 25
disparately to emails regarding union or other protected con-
certed activities while not restricting nonunion-related emails.
WE WILL NOT establish and maintain rules that you cannot use
social media except when you are “off work.”
WE WILL NOT tell you that you may not send “mass emails” or
any emails about the Union or other protected concerted activi-
ties.
WE WILL NOT tell you that you may not talk about the Union
in the working area during working hours when we allow em-
ployees to talk about other subjects in the working area during
working hours.
WE WILL NOT place you under surveillance while you engage
in union or other protected concerted activities.
WE WILL NOT create an impression of surveillance that we are
watching your union and/or protected concerted activities.
WE WILL NOT coercively interrogate you about your union or
other protected concerted activities.
WE WILL NOT order you off the property when you are distrib-
uting Union literature in nonworking areas during your non-
working time.
WE WILL NOT threaten you with loss of corporate awards if you
continue to support the Union.
WE WILL NOT tell you that we are disappointed with you be-
cause you engaged in union or other protected concerted activi-
ties.
WE WILL NOT tell you that we are creating a seating chart to
isolate employees because employees engaged in union or other
protected concerted activities.
WE WILL NOT implement a seating chart that is designed to
isolate employees because they engaged in union or other pro-
tected concerted activities.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, within 14 days of the Board’s order, rescind our
rules regarding “mass communications,” no talking in work ar-
eas during working time, and social media, and WE WILL notify
you in writing that we have done so.
T-MOBILE USA, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-155249 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.