CINCINNATI BELL TELEPHONE COMPANY LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 13, 2013

09-CA-088578 (N.L.R.B. Mar. 13, 2013)

JD–12–13
Cincinnati, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CINCINNATI BELL TELEPHONE COMPANY LLC
and
Case No. 9–CA–088578
COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 4400, AFL-CIO/CLC
Daniel A. Goode, Esq.
for the General Counsel.
Anita Cross, Esq. . (Cincinnati Bell Telephone Co., Cincinnati, Ohio)
for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Cincinnati,
Ohio on January 30, 2013. The Union, Local 4400 of the Communications Workers of America
filed the charge on September 4, 2012. The General Counsel issued the complaint on December
11, 2012.
The General Counsel alleges that Respondent, Cincinnati Bell Telephone Company,
violated Section 8(a)(1) of the Act by conducting an interview with employee Larry Garnes after
denying him the right to union representation at the interview. An employee’s right to union
representation in certain types of communications with his or her employer is often referred to as
the employee’s Weingarten right, after the Supreme decision in NLRB v. Weingarten, Inc., 420
US 251 (1975).
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
JD–12–13
2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has its headquarters in Cincinnati, Ohio and provides 5
telephone service in Ohio, Indiana and Kentucky. It annually derives gross revenues in excess of
$100,000 and performs services valued in excess of $50,000 outside of Ohio. Respondent
admits, and I find, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of
Section 2(5) of the Act. 10
II. ALLEGED UNFAIR LABOR PRACTICES
In September 2011, Kelly Switzer became Cincinnati Bell's team leader responsible for
the oversight of a number employees in Respondent’s Network Operations Center including data 15
technician Larry Garnes. Garnes’ duties include answering incoming telephone calls from
customers experiencing service problems. Shortly after becoming Garnes’ team leader, Switzer
concluded that Garnes' skills and job performance needed substantial improvement. During the
next six to eight months, Switzer counseled Garnes about his performance on approximately 10
occasions.20
On March 12 and 13, 2012, Garnes and Switzer exchanged emails, Resp. Exh. 1.
Switzer, in response to Garnes, wrote:
Larry, I agree the customer is our first priority. I am not saying you can't ask questions 25
but you have been here for 7 years and your knowledge level needs to improve. You
need to apply yourself and I would encourage you to take good notes.
We will be putting new measurements in place and if this type of behavior continues, you
could potentially go on a performance improvement plan (PIP).
30
There is no evidence that Switzer counseled Garnes between March 13 and April 25,
2012. On April 25, 2012, Switzer listened to recordings of service calls handled by members of
her team. While listening to a 4 calls handled by Garnes, she made notes and then called Garnes
into her office.
35
After Garnes came to Switzer's office, Switzer began to tell him about mistakes he made
during a call at 12:55 p.m., G.C. Exh. 4. Her first statement was apparently that Garnes failed to
tell another party to the call, a Cincinnati Bell employee named Pat, that a customer was on the
line. Garnes then told Switzer he wanted a union representative at the meeting. Garnes also told
Switzer that his union representative had told him not to talk to her without union representation.40
Switzer told Garnes he did not need union representation. Switzer checked with a more
senior manager either before telling this to Garnes the first time or after Garnes repeated his
request. Switzer then proceeded to inform Garnes about the errors he made in handling the call.
She told him that he didn't let the other employee know that the customer was on the line. 45
JD–12–13
3
Garnes said he did so. Switzer and Garnes listened to the tape of the call. She then agreed that
Garnes was correct.1
Switzer either told Garnes that he did not know the difference between two types of
service tickets or asked him whether he knew the difference, Tr. 16-17, 40. Garnes then 5
explained the difference between the types of tickets.2 Switzer then said that from the recording
it sounded as if the other employee, first name Pat, was upset with Garnes. Garnes disputed this
and suggested that Switzer call Pat. Switzer then indicated that was not necessary and told
Garnes to go back to his desk.3
10
Switzer testified at hearing that she told Garnes that he would not be disciplined as a
result of their meeting, Tr. 51. Garnes testified that Switzer did not tell him that the meeting
would not lead to discipline, Tr. 17. I do not credit Switzer's testimony on this point for several
reasons: 1) her affidavit given on October 18, 2012 does not mention giving such assurances to
Garnes; 2) her contemporaneous notes do not mention such assurances; and 3) her testimony was 15
made in response to a leading question from Respondent's counsel, as opposed to a narrative of
what transpired at her meeting with Garnes. Moreover, I conclude that it makes no difference,
given the circumstances, whether or not Switzer assured Garner he would not be disciplined as a
result of the meeting or not.
20
I so conclude because: 1) given the fact that Garnes had been warned by Switzer in
March that he might be placed on a PIP, he could reasonably take any such assurance from
Switzer with a grain of salt; 2) the April 25 counseling may have been the first counseling
Garnes received after being informed that he might be placed on a PIP; 3) Switzer's April 25,
2012 notes were placed in Garnes' personnel file, and 4) On October 3, 2012, Respondent issued 25
Garnes a warning letter, G.C. Exh. 2. That letter stated that Garnes had been counseled one or
more times in the prior year for a number of issues, including not placing good notes on a service
ticket, one of the issues Switzer discussed with Garnes on April 25, G.C. 4. Switzer testified at
hearing that the warning letter was the result of cumulative misconduct or mistakes on the part of
Garnes, Tr. 67.30
The October 3 warning followed an investigatory meeting attended by Switzer, Garnes,
union vice president Steve Cruse and Switzer's supervisor, Dennis Ford on July 12, 2012, Resp.
Exh. - 2. The focus of that meeting appears to be Garnes' unavailability to handle service calls
on July 11.35
Analysis
The term “Weingarten rights” refers to a decision of the United States Supreme Court in
NLRB v. Weingarten, Inc., 420 US 251 (1975) in which the Court held that the Board’s
construction of Section 7 of the Act, with regard to interviews with potentially disciplinary 40
consequences, was permissible. That construction was that Section 7 creates a statutory right to

1 This belies Respondent’s assertion that Switzer had all the facts she needed without talking to
Garnes because she listened to the call.
2 Switzer did not contradict Garnes' testimony that he responded to her assertion or question about the
types of tickets. I therefore credit Garnes on this point.
3 Garnes' testimony regarding the exchange about Pat is also uncontradicted and thus credited.
JD–12–13
4
refuse to submit without union representation to an interview which the employee reasonably
fears may result in the employee’s discipline. The court noted that the Board’s construction in
Weingarten emanated from several prior cases in which the Board shaped the contours and limits
of this statutory right.
5
The Court quoted extensively from the Board’s opinions in Quality Manufacturing Co., 195 NLRB
197 (1972) and Mobil Oil Corp., 196 NLRB 1052 (1972). Thus the decision makes it clear that the
parameters of the Weingarten right are those set forth by the Board. First the Board found it was a serious
violation of the Act to deny an employee’s request for union representation and compel the employee to
appear unassisted at an interview which may put his job security in jeopardy (emphasis added).10
Second, the right arises only where the employee requests union representation. Third, the right is
limited to situations where the employee reasonably believes the investigation will result in disciplinary
action. The Board noted that the rule did not apply to run-of–the-mill shop-floor conversations such as
those in which the employee is given instructions or training or needed corrections of work techniques.15
Fourth, the Board stated that the exercise may not interfere with legitimate employer
prerogatives. Thus, the employer need not justify refusing to grant the employee union representation,
but rather is entitled to conduct an inquiry into the employee’s conduct without the employee’s
participation. The employer is then free to act on the basis of information derived from other sources. 20
The Court in Weingarten quoted the following passage from the Board’s decision in
Mobil Oil:
The employer may, if it wishes, advise the employee that it will not proceed with the 25
interview unless the employee is willing to enter the interview unaccompanied by his
representative. The employee may then refrain from participating in the interview,
thereby protecting his right to representation, but at the same time relinquishing any
benefit which might be derived from the interview. The employer would then be free to
act on the basis of information obtained from other sources.30
Fifth and finally, the Board noted that the employer had no duty to bargain with the union
representative. It is free to insist that it is only interested in hearing the employee’s own account of the
matter under investigation.
35
I conclude that Respondent violated Section 8(a)(1) by continuing its April 25 interview with Garnes
after denying him union representation. Given the fact that Garnes had previously been advised that he
may be placed on a PIP, it was not unreasonable for him to believe that he would be disciplined when
Switzer summoned him to her office on April 25. Indeed, the call discussed by Switzer was a
contributing factor, albeit a minor one, to his October 3, 2012 discipline. 40
In this regard, I believe that an employee is entitled to union representation if the employee
reasonably believes that a meeting could eventually lead to discipline, as opposed to solely an expectation
of an immediate sanction. Thus, I conclude that the Weingarten right attaches to an interview for which
the employee reasonably believes that the employer is building a case against the employee for discipline 45
in the future.
It is unclear that Garnes was familiar with Respondent’s Employee Conduct and Corrective Action
Policy, G.C. Exh. 3. However that policy clearly views counseling to be part of its disciplinary process.
The policy states that employees who fail to meet job performance or conduct expectations shall be 50
JD–12–13
5
subject to disciplinary (“corrective”) action. The policy also defines “corrective action” to include
counseling, warning, suspension and termination.
I credit Switzer’s testimony that it is routine for her to call employees into her office to point out areas
in which they could improve in their performance. While not all such counseling sessions may be 5
situations in which the Weingarten right is applicable, I find that it is applicable in the circumstances of
this case in which Garnes was already advised by Switzer that he was a candidate for a PIP. The fact that
Garnes had been counseled previously is irrelevant, since he had recently be advised he might be put on a
PIP and there is no evidence as to whether or not this was the first counseling he had received since the
March 13 email.10
An employer need not allow a union representative in situations in which the employer is merely
communicating a disciplinary decision previously determined, Baton Rouge Water Works, Co., 246
NLRB 995, 997 (1979); or merely informing the employee of nondisciplinary administrative decision,
Success Village Apartments, 347 NLRB 1065, 1071 (2006).4 That principle is not at issue in this case in 15
that Respondent was not informing Garnes that he was being disciplined. However, Respondent contends
that the conversation between Switzer and Garnes was not an interview because Switzer was not seeking
information from Garnes.
I conclude that the conversation was an “interview” subject to the Weingarten principle. There was20
an exchange between Switzer and I find that she either implicitly or explicitly sought information from
Garnes, such as whether he informed Pat that the customer was on the line and whether he knew the
difference between different types of service tickets. What Respondent characterizes as statements by
Switzer were at a minimum attempts to have Garnes verify that he had 1) not informed Pat that the
customer was on the line; and 2) that he did not know the difference between the types of tickets. The 25
Board’s decision in Baton Rouge Water Works suggests that whenever the employer seeks information
from an employee in a situation in which the employee reasonably believes that discipline may result, the
employee has a right to Weingarten representation.
It is of course true that Switzer need not have called Garnes into her office. She could have, for 30
example, emailed him with her opinions about his handling of the call without implicating Garnes’
Weingarten rights.5 She could have also have called him to her office and told him what she believed he
had done incorrectly without asking for any input from Garnes. Switzer also could have issued Garnes a
disciplinary warning on April 25, with the attendant risk of soliciting a grievance. However, in
conducting an interactive conversation with Garnes after he had invoked his Weingarten rights, I find that 35
Respondent, by Switzer, violated Section 8(a)(1), see Quazite Corp., 315 NLRB 1068, 1070 (1994).
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 40
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.

4 In Success Village Apartments, relied upon by Respondent, the meeting found by the Board not to
implicate Weingarten rights was the second meeting of the day between the employee and his manager.
At that meeting, the manager did not seek any information from the employee. He simply required the
employee to acknowledge company policy in writing.
5 However, if an email solicits the employee’s response to allegations of misconduct, there may be
Weingarten implications.
JD–12–13
6
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended6
ORDER
5
The Respondent, Cincinnati Bell Telephone Company, Cincinnati, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from 10
(a) Conducting interviews with employees who have requested union representation
in
circumstances in which the employee or employees could reasonably believe that discipline may
result without allowing the employee or employees’ union representation.15
(b) In any like or related manner interfering with, restraining, or coercing employees
in
the exercise of the rights guaranteed them by Section 7 of the Act.
20
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 Cincinnati, Ohio facility
copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being signed by the Respondent’s authorized 25
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. 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 customarily communicates with its employees by such means. Reasonable steps 30
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed 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 employees employed by the Respondent at any time since April 25, 2012.35
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–12–13
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JD–12–13
8
Dated, Washington, D.C., March 13, 2013.
____________________5
Arthur J. Amchan
Administrative Law Judge
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT conduct interviews with employees who have requested union representation in
circumstances in which the employee or employees could reasonably believe that discipline may
result without allowing the employee or employees to have a union representative at such
interview.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
CINCINNATI BELL TELEPHONE
COMPANY, LLC
(Employer)
Dated By
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act.
It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (513) 684-3750.