T-Mobile USA, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 28, 2016

14-CA-155249 (N.L.R.B. Jun. 28, 2016)

JD–57–16
Wichita, Kansas
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
T-MOBILE USA, INC.
Respondent
Cases 14-CA-155249
and 14-CA-158446
14-CA-162644
COMMUNICATION WORKERS OF 14-CA-166164
AMERICA, AFL-CIO
Charging Party

William F. LeMaster, Esq.
for the General Counsel.
Mark Theodore, Esq. and Irina Constantin, Esq.
for the Respondent.
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. (Respondent). The General Counsel
issued a complaint on September 28, 2015 and subsequent Consolidated Complaints on October
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 (Complaint), 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
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 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.
JD–57–16
2
(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.5
(2) About June 2, by e-mail, Respondent promulgated and maintained rules against
sending “mass emails” to other employees, 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.10
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 15
permitting employees 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, engaged in surveillance of employees by congregating 20
with employees 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 25
known Union supporter; and, restrained and coerced employees 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 30
outside of work; told employees that it was disappointed that employees engaged in
Union activity; interrogated employees about their union 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 activities and sympathies; and threatened 35
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 40
support going; and, interrogated its employees by asking if they were involved in
planning a Union event.
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 alleges 45

3
General Counsel, in its brief, withdrew Complaint ¶10(e).
JD–57–16
3
Respondent imposed more onerous working conditions upon employee Jerrica Croxson by
requiring that she adhere to a detailed work schedule.
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 following5
FINDINGS OF FACT
Jurisdiction
10
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 operations during the 12-month period ending August 31, 2015,
Respondent derived gross revenues in excess of $100,000 and purchased and received goods and 15
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 commerce 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.
20
Statement of Facts4
I. Respondent’s Background and Operations
The Wichita Call Center employs approximately 600 customer service representatives 25
(CSRs), who take calls at their work stations. The hours of operation are 7:30 a.m. until
midnight each day. The CSRs are organized in one of two groups: General Care and

4 Although I have included citations to the record to highlight particular 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 encompass the credible
testimony, evidence presented, and logical inferences. The credibility analysis may rely upon a variety of
factors, including, 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 record as a whole. Double D Construction Group, 339 NLRB 303, 303–305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive 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 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 reliable because it
goes against their pecuniary interests. Gold Standard Enterprises, 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).

JD–57–16
4
Onboarding. The CSRs assigned to General Care assist customers with their questions about
their accounts and devices and sell services. The Onboarding CSRs, established 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 5
about any and all subjects.
Usually 15 CSRs, a senior representative and a coach comprise 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 seating arrangement in each 10
pod locates the CSRs’ cubicles on an outer ring. The CSRs are seated facing outward. The
senior representative 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.
15
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 specifically with the Wichita Call Center. The first, approved on 20
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 unspecified 25
reprisals, and told employees that they could not discuss 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 Croxson (Croxson), an alleged discriminatee in the
current case. (GC Exh. 27).
30
If Respondent spots union activities at the Wichita Call Center, it generates a TPA (Third
Party) Report. Senior Manager 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,
Respondent instructs security guards to monitor and report any union activities to the Human 35
Resources department. Upon further examination, 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 40

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 relevant to the allegations and I granted, in relevant part, Respondent’s motion 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.
JD–57–16
5
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 5
was with the Union. In the same report, the TPA Report noted Union activity, with signs and
flyers. The flyers were attached. Another 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 10
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 15
messaging (IM) for immediate communication 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 20
emails are Respondent notifications to employees when fresh popcorn or slushies are available or
for nacho day in the cafeteria. 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. 25
Another employee sent notification of birthday plans for another employee throughout the
facility. The facility sent notification of birth announcements to all employees; 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. 30
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 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 35
employee 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.

7
Food, not dancing.
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.
JD–57–16
6
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 observed
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 5
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
10
Respondent’s Acceptable Use Policy, spanning six pages, covers 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 15
balance, traffic and carpool arrangements, weather conditions,” and charitable events in which
Respondent is involved. The policy also permits “incidental and infrequent personal 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.
20
The Complaint alleges that one portion among the non-legitimate 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:25
. . .
To distribute or store junk mail and chain letters . . .
30
(GC Exh. 11, p. 2).
Other listed non-legitimate uses include pornography, communication of threats,
anything related to gambling, anything derogatory that encompasses any protected class, and any
use advocating or soliciting for causes “not related to T-Mobile business.”11 35
Director Elliott contends that the emails regarding Respondent offering food and
notifying employees about lost items are business 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. 40

10
All policies discussed were promulgated before the six-month statute of limitations but were maintained
throughout the relevant time period.
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 disruptive, offensive or harmful to morale; and Section
3.4, in relevant part, for any use that advocates, disparages or solicits for religious causes, political causes or non-
company related outside organizations.
JD–57–16
7
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 solicitation
and no distribution rules; and the Code of Business Conduct.
5
The Enterprise User Standard’s stated purpose is to ensure security and protection of
Respondent’s information assets. It discusses anti-malware controls, information backup,
passwords, and security for cellular telephones and laptops.
Section 3.4 of the Enterprise User Standard states:10
1. Users must follow the appropriate authorization process for requesting an account
granting specified access and permission 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.15
2. All access that is not explicitly authorized is forbidden.
3. Users are responsible for all acts associated with their UserID.
20
Wray-Tolbert testified that this access limitation includes distribution lists, which are
groups of employees set up in the computer 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.
25
III. A 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, 30
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 35
subject line “Raise Your Voice,” to fellow 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. 40
It is time to make a change! Join the movement!
Feel freeto contact me with anyquestions, but please dosooutside ofworking hours.
Some of us that are currently involved will be meeting at North Rock Lanes 45
tomorrow night. Please join us to meet our team and have some fun!
JD–57–16
8
Sincerely,
Chelsea Befort
T-Mobile CSR1
Wichita, KS5
[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. 10
After Befort returned from lunch, she returned 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 15
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 email20
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 25
activity.” (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 e-mail had been
sent out multiple times and “multiple employees complained,” which, in his opinion, made the
email a disruption. (Tr. 377).
30
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 solicitation; 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
Policy. 35
Respondent also stated that Befort’s e-mail violated distribution 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 40
CSR list, should not have been able to send out the “mass communication.” Because some of the
emails were rejected due to size, they were mass emails. As a result, Respondent also considered
it junk mail as well.12 However, had the number been smaller, Respondent admittedly may not
have known that Befort sent the email.

12
Upon employment, Befort electronically signed an acknowledgement that she received the Employee
Handbook and would promptly read it.
JD–57–16
9
Wray-Tolbert also testified that the email violated the prohibited 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 either the employee engaged
in soliciting or the employee being solicited.” The emails also would be read by CSRs who were 5
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
10
Elliott decided to send an email to all Wichita Call Center employees. On June 2,
Elliott’s email, using the distribution list for all Wichita Call Center employees, stated:
Team,
15
It has been reported to us that on Friday an employee sent hundreds 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 20
communication for any non-business purpose since this disrupts the workplace
and distracts employees 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.25
Since this email addressed union issues, I’d like to take this opportunity 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
employees around here aren’t shy about discussing anything. Employees have 30
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 supposed to be working. 35
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 40
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.45
Jeff
JD–57–16
10
(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. 5
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
responsibilities and is consistent with the other policies. (Tr. 327).10
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 meeting. Meeks and Befort met with Team Manager Maron in a 15
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 20
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 representatives 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 25
discuss the union within the working 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 policies. Maron told her she could use work
email for these messages as long as it was not disruptive, to which Befort responded that she 30
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. 35
459-460). Maron later admitted she talked with Wray-Tolbert before her conversation with
Befort. 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:
40
• It was reported to us that on Friday you sent emails to hundreds of employees in
the Wichita Call Center. Several 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 meeting with Befort.
JD–57–16
11
• 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
solicit 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-5
solicitation policy.
• We certainly recognize your right to support the union, but we ask that you do
so without violating these policies. Of course, you can communicate with
employees about the union in break areas, and when you and others are not
working; you can communicate about the union in the parking lot and away from10
work. We just 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 person you are communicating are working, and under
circumstances which are not likely to disrupt work at the call center and not in a15
manner that is inconsistent with these rules.
(R. Exh. 23).
Maron specifically denied each alleged unlawful statement from her conversation with 20
Befort. Maron admitted that she told Befort that she could not discuss the union when she was
working or others were working, and further defined working as talking to customers. (Tr. 420).
Maron initially maintained that she read verbatim the provided talking points but on cross-
examination admitted that she had at least some variations. (Tr. 462).
25
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 restrictions, during work time, nor did 30
Respondent communicate that employees could not use social media unless they were “off the
job.” In her experience, Befort, with Meeks present, participated in conversations during time
between calls about social activities 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.35
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
40
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:
45
 Yesterday, someone left leaflets on each of the work stations in the pod.
JD–57–16
12
 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 center.
 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 regarding5
the union in non-working 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.10
 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.15
 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 can20
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 standards25
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 employees have filed a petition to get rid of the union.
(R. Exh. 24).30
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) 35
and AJ, in the middle of the pod and began talking about the email and discussions about the
union. Coach Meeks apparently was present.
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 40
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 45
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
JD–57–16
13
literature could be distributed in non-working areas, if the person distributing 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.
5
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.
However, 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. 10
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
15
When the meeting concluded, the CSRs were permitted an additional 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. 20
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
25
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 30
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 AJ35
about making plans to meet later to discuss what 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 40
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

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.
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.
JD–57–16
14
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.
5
V. Guards Confront CSR 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 10
the driveway on the public easement.
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. After15
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 20
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 separately. One was a coach 25
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 30
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 solicitation and he insisted it was covered
by the company’s solicitation policy, so she needed to stop. At some point, Wiegand told Parrish
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. 35
In its Employee Handbook, Respondent maintains a rule regarding distribution, which
permits employees to distribute “non-work related materials in non-work areas during non-work
time.”
40
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.
45
Within an hour after receiving Wiegand’s report, Wray-Tolbert sent Parrish, and only
Parrish, the following e-mail:
JD–57–16
15
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 5
questions.
(GC Exh. 10).
Upon returning to work on August 22, Parrish received Wray-Tolbert’s email.10

VI. Allegations Involving Coach Belinda Spencer and Senior 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 15
potentially become a leadership position, such as coach or trainer. The senior representatives
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 appropriate
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. 20
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 responsible to ensure the team meets metrics of credits/adjustments,
schedule and sales. (Tr. 482). 25
At the relevant time, Croxson was supervised by Coach Belinda Spencer and Team
Manager Maron. Spencer maintained that she and Croxson had “huddles” almost daily. In the
huddles they discussed the agenda, meetings, coaching and prioritization of Croxson’s tasks.
Spencer also stated she had at least weekly career development meetings with Croxson. 30
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 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 35
allegations that Croxson suffered discipline due to her union activities and sympathies.
A. Croxson Hides Her Union Sympathies
Croxson and Spencer had discussions about the Union since mid-March 2015, when 40
Spencer became Croxson’s coach. According 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 45
JD–57–16
16
a negative perception of her and she no longer wanted a part of the union because 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 respective roles. Spencer was off work during the last 5
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 respective leave, Spencer asked 10
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 bowling?” (Tr. 218). Spencer also asked Croxson if she had seen
Befort’s response e-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 15
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, Spencer frequently asked her
whether she remained friends with Befort. She further testified that Spencer asked about her 20
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 25
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 individual’s ranking
on metrics. This particular realignment was scheduled for July 31 and Croxson bid to remain on 30
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 35
team were known union supporters: Befort; 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.
40

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 failing to take an escalated call and another for failing to answer a CSR’s questions
sufficiently.
18
Spencer later testified that the procedure for changing teams, bidding, 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 discredit Spencer’s
denial.
JD–57–16
17
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 specific input about the 5
seating chart, and denied making the statements reported by Croxson.
On July 23, Spencer sent an e-mail to all team members coming to the team. She
attached a seating chart, which was implemented. It directly placed AJ and Robinson on
opposite sides of the pod, with Spencer, located in the middle of the pod, between them. Daniva 10
was placed in a corner away from AJ and Robinson, 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 Out15
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
Union- 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 20
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 another 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. 25
Spencer asked Croxson whether she had seen Bell in Washington. Neither Croxson, who was
present, nor Bell 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. 30
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 35
was going to ruin her hard work at bettering the company’s perception 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 40

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 discussions with Croxson.
22
Over the years, Croxson received several peak award nominations. The ultimate award was a trip to Hawaii.
JD–57–16
18
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 5
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 certain
tasks. Croxson took notes, which she discarded after the end of the shift. Spencer did not repeat
this conduct after this date.24
10
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 representatives and achieving goals. Spencer testified that told Croxson,
because “they” were having problems getting everything done, these measures were to manage 15
“our day” and try to put structure to it. Spencer testified that she handed Croxson a preprinted
senior 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
Croxson 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 20
On the same date, Respondent initiated a “focus group” evaluation on Croxson.26 The
focus group questioned members of Croxson’s pod about what Croxson was doing well and what
could be improved.27 Maron met with Spencer28 and CSRs to obtain feedback. Two CSRs
allegedly reported to Maron that they believed Croxson was trying to get Spencer in trouble. 25
Other information found that one CSR, who could not work with Croxson and took a leave of
absence allegedly due to Croxson’s behavior, 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 30
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.

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
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 Spencer 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 focus group. Croxson did not testify to
requesting a focus group and, given 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.
28
Spencer did not testify about giving feedback on Croxson or any knowledge of a focus group at that time.
JD–57–16
19
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 decorate Spencer’s desk,
wrapping every item on her desk. They also wrapped a Union t-shirt and placed it on Spencer’s
desk. Croxson denied involvement but admitted she checked with the Union about whether 5
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 10
about the union was as a friend. She also commented that someone on the team was causing
drama and someone 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 nothing 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 15
Spencer’s tone of voice as accusatory, with heavy emphasis each time on “someone.”
Later that evening, Spencer and Croxson had another conversation 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 another CSR, Bahja 20
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.
25
LEGAL ANALYSIS
I. Alleged Discriminatory Enforcement of Rules in Response to Befort’s Email
A. Applicable Law30
Section 7 provides employees with the right to self-organization and collectively bargaining,
as well as the right to act together for their mutual aid or protection. These rights have long been
interpreted to “necessarily encompass[ ] the right effectively to communicate with one another
regarding self-organization at the jobsite.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 49135
(1978). These rights includes employee communications regarding their terms and conditions of
employment. Central 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)
(discussions regarding wages, the core of Section 7 rights, are the grist on which concerted40
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 Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The analytical 45
framework for assessing whether maintenance of rules violates the Act is set forth in Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004). Under Lutheran Heritage, a work rule is
JD–57–16
20
unlawful if “the rule explicitly restricts activities 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 647.5
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 information is not lawfully subject to prohibition. Hyundai
America Shipping Agency, 357 NLRB 860, 861-862 (2011); Lafayette Park, 343 NLRB at 825. 10
B. The Policies Were Discriminatorily Applied to Befort’s Email
The Complaint only contends that the Policy was discriminatorily applied and does not
question whether it is facially lawful. The Policy was not promulgated in response to Section 7 15
activities. 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 emails20
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 No. 126, slip op. at 1, 14 (2014). This rule applies
when employees have been granted access to the employer’s email system in the course of their 25
work and the employer is not required to provide this access. Id., slip op. at 1. To rebut the
presumption that employees have a right to access the employer’s email system during
nonworking time, an employer justifies restricting these rights by demonstrating that special
circumstances are necessary to maintain production or discipline. The employer’s restrictions
should be based upon the nature of its business. The restrictions also should be narrowly 30
tailored to meet the employer’s special circumstances and still balance with employees’ Section
7 rights. Further, the restriction must be uniform and consistently enforced. Purple
Communications, supra. The theoretical mere assertion of an interest to support restrictions are
not sufficient and:
35
[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. 40
Disparate treatment would show an employer enforces its policy “against statutorily
protected activity while not enforcing it against other similar activity under similar
circumstances.” Stabilus, 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 45
union filed a representation petition, despite previously allowing discussion of other non-work
JD–57–16
21
related topics. Pier Sixty, LLC, 362 NLRB No. 569, slip op. at 21-22 (2015). Respondent here
permitted notification of other social functions, with its rationale that these employees were
“family” and then compares discussion about the union by employees as “third party.”29
2. Acceptable Use Policy5
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 witnesses contradicted the employee
witnesses that the “Reply All” function was used in response to baby showers and death notices. 10
Respondent’s actions, therefore show it discriminated based upon the content of Befort’s e-mail,
which reflects union activities and sympathies.
Respondent argues that Befort’s email had all the characteristics of junk email,
commonly known as spam. The Acceptable Use Policy does not define junk mail as spam. 15
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-20
webster.com/dictionary/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 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.” See25
www.oxforddictionaries/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-webster.com/dictionary/spam
(2016).
30
The theme connecting the Oxford and Merriam-Webster definitions 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.
Befort’s email, based upon these commonly accepted definitions, was not junk mail or spam, so 35
Respondent’s application of the policy was not warranted.

29
Respondent’s policies allow for discussion of work-life conditions, but apparently not all perceptions on work
life. Elliott’s statement impliedly shows disparate treatment of employees engaged in union activities. Birth
announcements are about the T-Mobile family, but employees communicating about the union to each other are not
part of our family, just a third party. It suggests that Respondent considers union involvement as disloyalty. See:
Chino Valley Medical Center, 359 NLRB No. 111, slip op. at 2 and 9 (2013), affd. 362 NLRB No. 32 (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
union); 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).
JD–57–16
22
3. Enterprise User Standard
Respondent also argues that Befort violated its Enterprise User Standard by creating an
impermissible “work around” beyond 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 5
to the user list for all CSRs. Respondent 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 Communications, 361 NLRB No. 126, slip op. at 14. This parsing of
Purple Communications addresses when the employer has not chosen to give any access. The
issue is “whether the employer applied uniform and consistently enforced control over its email 10
system to the extent such controls are necessary to maintain production and discipline.” Purple
Communications, 361 NLRB No. 126, slip op. at 1. The standard for establishment of uniform
and consistently enforced 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 segments. Id. 15
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 20
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.
25
Respondent also claims the email was disruptive to production because some employees
complained. Even assuming some employees 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). 30
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 business-related purpose because it was intended to create support for the Union. Respondent
cites Kallail v. Alliant Energy Corporate Services, Inc., 691 F.3d 925, 931 (8th Cir. 2012). The 35
case involves a plaintiff who sued under the Americans with Disabilities 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 reasons 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 40
aspirational, but, beyond the testimony that employees generally like these events, Respondent
does not demonstrate with any of its metrics that slushies, popcorn, and lip sync contests actually
elevate employee morale at this facility beyond the moment of the event.

30
Respondent also cited a sexual harassment case. Wimberly v. Shoney’s Inc., 1985 WL 5410 (S.D.Ga. 1985).
JD–57–16
23
I instead find that an email about a social and informative Union event may be no more
disruptive during “working time” than notification about leaving one’s work station 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 messages, which are permitted, so Respondent apparently is not aware of whether 5
employees receive messages during work that might be, according to its terms, “disruptive.”
Respondent therefore does not demonstrate that the email was so disruptive that it warrants
enforcement of this rule. See Anderson-Rooney Operating Co., 134 NLRB 1480, 1491, 1492
(1961) (employer argued union talk more disruptive than other talk). The enforcement was
therefore discriminatory.31 10
4. Solicitation policy
Respondent further contends that Befort also violated its Solicitation policy, which
prohibits solicitation to other employees while they are working. Because some CSRs received 15
and read the email during working time, Respondent maintains the policy was violated. This
position conflicts with Purple Communications.
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. 20
Further, reading of personal email on working or nonworking time has become blurred due to the
structure of the technology workplace in which the CSRs operate. Purple Communications, 361
NLRB No. 126, slip op. at 15 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, Respondent’s reliance upon the solicitation policy is misplaced. Because this 25
interpretation was put forth against Union activity but not before, it is discriminatory.
In addition, Befort’s email does not meet the accepted definition of solicitation.
“[S]olicitation and distribution of literature are different organizational techniques and their
implementation pose[d] different problems both for the employer and for employees.” Stoddard-30
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 function to find out more
about joining the union. Befort encourages CSRs to “Join the movement!” This statement is 35
vague: It does not necessarily imply asking employees to sign cards in respect to joining a
movement when voices are silenced about “discussing” in an organized manner. Nonetheless,
Respondent applies the rule. Because it misclassifies the email as solicitation, Respondent
disparately enforces the rule against the email.
40
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

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.
JD–57–16
24
allegations are: promulgating and maintaining rules against sending “mass emails” to other
employees; prohibiting discussing the union during work time; and prohibiting employees from
using social media while at work. As all were promulgated in response to Befort’s email,
Elliott’s new rules were promulgated in response to Section 7 activities.
5
1. “Mass communications” by email
I find that this rule would be reasonably interpreted by employees 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 Section 7 10
communications during nonworking time. UPMC, 362 NLRB No. 191, slip op. at 4 fn. 12
(2015); Purple Communications, 361 NLRB No. 126, slip op. at 14 (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 property,
it was responsible. This discriminates based upon the content of the email---employees can email 15
a large group to recover lost electronics, but not about the Union. Because of this inconsistency,
Respondent does not rebut the presumption that it has “special circumstances” to limit the
content of the email. See UPMC, 362 NLRB No. 191, slip op at 4-5.
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 20
from Elliott’s email. Because the definition of “mass communications” 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, talks about what Respondent
perceives as employee rights for Union discussions. Taken as a whole, an employee would
reasonably find that this rule particularly pertains to communications about the Union. The rule 25
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 work time
The portion of Elliott’s email at issue is:30
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. 35
An employer violates Section 8(a)(1) by prohibiting employees from speaking with each
other about terms and conditions of employment, unless it can prove a specific legitimate and
substantial business justification. Central States Southeast and Southwest Areas, 362 NLRB No.
155, slip op. at 2 (2015). The language is ambiguous and an employee reasonably would be 40
unable to determine whether he could talk about the union, or anything else, during working time
in a working area. As the record reflects 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 No. 59, slip op. at 21-22 (2015), citing Sam’s Club, 349 NLRB
JD–57–16
25
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
No. 159 (2014) (coercive memo in response to union activity).
5
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 No. 59 (2015); Bettie Page Clothing, 361
NLRB No. 79 (2014); Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014).
Respondent’s social media policy states employees can occasionally use personal social media 10
on the work computer or during work hours as long as it does not interfere with job
responsibilities 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 “. . . 15
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 Respondent’s social media
policy. An employee would reasonably be confused by Elliott’s iteration, as the policy 20
previously permitted 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. International, Inc., 361 NLRB No. 120, slip op. at 8-9 (2014).
Elliott’s statement also would reasonably be interpreted by employees as “working 25
hours” rather than “working time.” Rules prohibiting solicitation during working time are
presumptively 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 solicitation is prohibited during the employee’s own time. Our Way, 30
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 media 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 35
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 response to Union activity, which also is
violative.
II. Respondent’s June 2 meeting with Befort40
The allegations here are that Respondent: prohibited employees 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 45
allegations.
JD–57–16
26
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 5
corroborate Maron’s testimony when it did not call Coach Meeks to testify. I take an adverse
inference because Meeks did not testify. 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
expected to corroborate its version of events, particularly when the witness is the party’s agent). 10
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
admitted to at least variations and interruptions from Befort. Further, in Befort’s version,
Maron’s statements to Befort also conflicted, because she told her the emails could not be 15
disruptive but confirmed she could send them. However, earlier in the conversation, Maron said
she could send send emails because they were considered solicitation, which is consistent with
Respondent’s position as to why the email allegedly violated Respondent’s policies.
B. Statements Made to Befort20
The Board considers the totality of the circumstances in assessing 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 25
statement constitutes a threat, the appropriate test is “whether under all circumstances the
employer’s conduct reasonably tended to restrain, 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 30
(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 representative can
reasonably by construed as threatening.” NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir.
1970).
35
Regarding Respondent’s prohibition against employees sending “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 reasonably believe she could not
send an email to a group of employees.
40
Regarding prohibiting employees from talking about the union during working time
although permitting employees to discuss 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 except outside 45
working areas alone is discriminatory and coercive. See Pier Sixty, supra.
JD–57–16
27
Maron also stated that Befort was prohibited employees from sending Union-related
emails to employees’ work email addresses. Although Maron gave conflicting messages, the
conflict makes the statements confusing. The main message Befort received, however, was she
could not use Respondent’s email to send messages about the Union. Based upon the above
analysis involving Purple Communications, I find that this statement is coercive because an 5
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
10
Other employees testified about the meeting, but Befort’s version was the most complete,
so I rely primarily upon her testimony. As before, Respondent did not call Coach Meeks to
testify 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 15
working time in nonwork areas, despite allowing conversations on other subjects during working
time in working areas. For the reasons stated above, this statement again violated Section
8(a)(1).
IV. Respondent’s Alleged June 4 Surveillance and Interrogation by Coach Meeks20
I credit the employees’ version of what occurred that day. The testimony was fairly
consistent, with only a few minor variations. 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.25
A. Meeks Engaged in Surveillance
Respondent defines surveillance as photographing, videotaping or openly conducting
recordkeeping of employees participating in open union activities. National Steel and 30
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 35
nature and duration of the supervisors’ observation. Id. Factors showing the observation was
coercive include the duration of observation, the employer’s distance 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 40
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 45
again. Some of the employees who went to the area were known union sympathizers. Meeks
was obviously watching for the employees’ reactions to the meeting and what was happening
JD–57–16
28
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 visitor.
Respondent contends that Meeks could not have known that the employees would discuss 5
union sympathies and activities after 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 Respondent’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) 10
(supervisors not engaged in surveillance when they normally took breaks in the open lunch area
and was not accompanied by any other unlawful action).
Her conduct is similar to the supervisor who, during the employees’ nonworking time,
went to a smoking area more frequently after a unionization campaign started; the employees 15
who gathered there were either known or suspected union sympathizers. 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 reason why Meeks suddenly decided to
take a break with these employees. Also see Liberty House Nursing Homes, 245 NLRB 1194,
1200 (1979) (“preemption of nonworking time . . . constituted a pronounced impediment to the 20
employees’ right to utilize the only opportunity during working hours in which they could
engage in section 7 activity . . . without violating Respondent’s announced rules”).
B. Meeks Interrogated Employees While on Break
25
The test for determining whether an employer unlawfully interrogated an employee is
whether, under all of the circumstances, 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: 30
1) whether there is a history of employer hostility to or discrimination against
protected activity;
2) the nature of the information sought;
3) the identity of the questioner;35
4) the place and method of interrogation;
5) the truthfulness of the employee’s reply.
Intertape Polymer Corp., 360 NLRB No. 114, slip op. at 1 (2014), enfd. in rel. part, 801
F.3d 224 (4th Cir. 2015). 40
The nature of the relationship between the supervisor and employee also may be
considered if relevant. Id. Either the words or context must suggest an element of coercion.
Stablius, 355 NLRB at 850.

32
The case is further differentiated because here the employees were not engaged in open union activities when
they left for break.
JD–57–16
29
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’ questioning was the break area, where
employees are permitted to engage in union and other protected activities during their 5
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 demanded to know what the message on the phone was, the employees lied about what
was on the phone and AJ changed the phone screen to conform, which demonstrates a lack of
truthfulness in response to her questioning. The questioning was designed to interfere with the 10
employees’ Section 7 rights. In light of her concurrent unlawful surveillance, the above factors
and circumstances demonstrate that Meeks’ questioning was coercive and violated Section
8(a)(1). See: Hydro-Dredge Accessory Co., 215 NLRB 138, 149 (1974) (in light of other
violations, employer’s interrogation was “inextricably interwoven” with employer’s interest in
keeping employees away from the union); G.R.I. Corp., 216 NLRB 34 (1975) (not isolated 15
considering other unfair labor practices; interrogation does not have to be stated as a query).
V. CSR Parrish Sent Away by a Guard
In this section, I first discuss whether Wiegand was an agent for Respondent. Because I 20
find Wiegand was an agent, I discuss 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
25
1. Facts regarding guard duties
During the relevant time, Respondent contracted with Guardsmark 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 30
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 35
through her shift. During orientation, guards inform new employees of their duties, including
requirements 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 40
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

33 Security guards have access to the email and instant messaging systems, which they may use to notify CSRs
when the guards find a parking issue, such as parking in an impermissible spot. The guards send instant messages
(IMs) to employees for food deliveries or mail left with the front desk The guards also use IMs with reminders to
make sure that employees’ car windows are closed when rain was predicted, and notifications that an employee left
car lights on or had a flat tire.
JD–57–16
30
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 police. On the other hand, she
later testified the guard was supposed to notify Wray-Tolbert or Elliott to obtain further
instruction in how to handle the matter. However, guards did not contact Human Resources in
every instance, nor did the TPA Reports reflect such instruction.5
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 10
agency status is upon the party asserting it—here, General Counsel. 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 alleged.” Poly-America, 15
Inc., 328 NLRB 677 (1999), enfd. in rel. part, 260 F.3d 465 (5th Cir. 2001). If employees would
reasonably 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 at 169 (2006). Also see Tortillas Don Chavas, 361 NLRB
No. 10, slip op. at 9 (2014). Agency must be established with regard to the specific conduct that 20
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 absence of specific instructions, agency status can be properly found. Poly-America,
Inc. v. NLRB, 260 F.3d at 486-487.
25
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 management violated Section 8(a)(1)
by threatening to have employees charged with trespassing for distributing pro-union literature)
(citing Opryland Hotel, 323 NLRB 723 fn. 3 (1997); Bakersfield Memorial Hospital, 315 NLRB 30
596 (1994); Southern Maryland Hospital Center, 293 NLRB 1209 (1989)). Here, substantial
evidence shows the guards monitor who enters and exits the property. They also detain people at
the front desk and require identification. 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 entering premises were cloaked with apparent authority), enfd. 35
in rel. part, 144 F.3d 830 (D.C. Cir. 1998). I do not adhere to Respondent’s argument that the
guards have been instructed to notify Human Resources with encounters with “third parties,”
which apparently includes employees engaged in union activities. 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 personnel. Despite Respondent’s 40
argument that the guards are told per TPA Reports not to engage employees, nothing in the TPA
Reports suggests that the guards ever see the TPA Reports or complete them.
An employee would reasonable believe that Wiegand was acting as an agent on behalf of
Respondent regarding who could access the property. 45
JD–57–16
31
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
Respondent’s rule regarding employees on the property on nonworking time in a nonworking 5
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
10
To relieve itself of liability for unlawful conduct, Respondent’s repudiation must be
timely, unambiguous, specific to the coercive conduct and free from other proscribed unlawful
conduct. Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
I agree with Respondent that Wray-Tolbert’s email was timely, unambiguous and specific 15
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 Diesel Co. v. NLRB, 263 F.3d at 354-355.
Respondent also contends it was free from other proscribed conduct until possibly 20
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 differentiated 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 25
Act in any other way. In Raysel-IDE, Inc., 284 NLRB 879, 891 (1987), the employer 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 30
available for employee viewing for the full 60 days. In addition, Respondent’s more recent
unfair labor practice violations, for violative rules, surveillance, interrogation, and coercive
statements as discussed above, occurred on June 2 and 4, less than two months before the
confrontation with Wiegand. More unfair labor practices were to follow.
35
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
uncured proscribed conduct.
VI. Section 8(a)(1) and (3) Allegations involving Spencer and Croxson40
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 45
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
JD–57–16
32
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 discredit Croxson on her explanation that she was not involved with decorating her
coach’s office as she checked with the Union representative as to its legality.
5
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 sympathies were. It also 10
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, 15
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 20
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, 25
although she did not specify when these conversations took place. Given Spencer’s belief that
she was rehabilitating Croxson’s image within the company, Spencer’s questioning of the
friendship intended to gauge whether Croxson was following Spencer’s advice about
discontinuing her ties with the Union. It exceeds what Croxson discussed before, which makes
the statement coercive. 30
C. Seating 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 35
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 Respondent’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. 40
2004) (telling employee he is disciplined because of union and/or protected concerted activity
violates Section 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 45
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
JD–57–16
33
Spencer’s stated intent to isolate. I consider her statement to Croxson with the chart as evidence
of discrimination. I therefore find the statement violated Section 8(a)(1) and the implementation
of the seating chart violated Section 8(a)(3) and (1).
D. The Allegations Regarding Croxson and Spencer’s December 11 Conversation5
Based upon the conversation that day, General Counsel alleges 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” 10
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 15
conversation and sounds more like Spencer’s opinion, protected by Section 8(c), rather than a
coercive statement. The remainder of the conversation, however, is a different story.
The second allegation maintains Spencer created an impression of surveillance. An
employer creates an impression of surveillance when it indicates it is closely monitoring the 20
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 Facebook page on which the pictures appeared. The underlying principle for finding an
impression of surveillance is that “employees should be free to participate in union organizing
campaigns without the fear that . . . management [is] peering over their shoulders, taking note of 25
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 assume 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 30
employee would not know how Spencer came to view the Facebook pictures, a reasonable
employee would assume from the statement that unlawful 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 35
with Croxson for engaging in Union activities. The circumstances surrounding the statement
were coercive as it was not the only statement Spencer made. A reasonable employee would
believe that Spencer’s disappointment would lead to some form or reprisal, which makes the
statement unlawful. Print Fulfillment Services LLC, 361 NLRB No. 144, slip op. at 1-2 (2014);
General Electric Co., 246 NLRB 1103, 1106 (1979). 40
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 45
beyond what Spencer could see on Facebook. Grand Canyon University, 362 NLRB No. 13, slip
JD–57–16
34
op. at 1 (2015). In considering all the circumstances, I find that this questioning constitutes
unlawful interrogation.
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 5
a threat of employer’s retaliatory quid pro quo for union activity and violates Section 8(a)(1).
See generally Metro-West Ambulance Service, Inc., 360 NLRB No. 124 (2014) (threats that
employee will not advance because of union activities violative).
Lastly, Spencer told Croxson that she should make her remaining time easier by not 10
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. Section 8(a)(3) Allegation that Respondent Made Croxson Adhere to a More Onerous 15
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 burden shifting process established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 20
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 action. Fourth, there must be a link, or nexus, 25
between the employees' protected activity and the adverse employment action. Proving these
four elements creates a presumption that the adverse employment action violated the Act. To
rebut the presumption, Respondent bears the burden of showing that the same action would have
taken place even in the absence of the protected conduct. Wright Line, 251 NLRB at 1089. See
also Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).30
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 Croxson’s performance of this day.35
Respondent adduced evidence to try to show that Croxson was not a good senior
representative, thereby needing a guide to help her throughout her work day. However, evidence
shows conflicting 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 40
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.
45
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
JD–57–16
35
conditions. Because the events took place on one day, the administrative law judge determined
the change was de minimis and too insignificant to constitute an adverse employment action. In
contrast, a guard moved to the same post for consecutive days was considered a more onerous
work assignment. Yale-New Haven Hospital, 309 NLRB at 371-372.
5
I agree with the logic of Aladdin Gaming: Because the conversation and assignment
took place only on one day, the “to do” list event is not sufficient to be an unfair labor practice. I
therefore recommend dismissal of this allegation.
F. Two Allegations Regarding Croxson and Spencer’s December 21st Conversation 10
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 union event. 15
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 20
paid to continue supporting the Union. See Flexsteel, supra. Because I find that this statement
was sufficient to create an impression of surveillance, I do not reach the question whether
“creating turmoil” also created an impression of surveillance.
Regarding the allegation of interrogation of whether Croxson was involved in recent 25
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 interrogated Croxson
whether she participated in doughnut distribution and other Union activities. See Rossmore 30
House, supra.
CONCLUSIONS OF LAW
On these findings of fact and conclusions of law and on the entire record, I issue the 35
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 40
meaning of Section 2(5) of the Act.
3. Respondent admits, and I find that the following are supervisors within the meaning of
Section 2(11) and/or agents within the meaning of Section 2(13):

34
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.
JD–57–16
36
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
5. Respondent violated Section 8(a)(1) of the Act by disparately 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 promulgating and maintaining “mass
communication” prohibitions, no talking rules, and restrictive social media policies,
because employees engaged in Union activity.10
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.15
9. On June 2, 2015, Respondent violated Section 8(a)(1) of the Act by telling employees
that they could not discuss the Union in working areas despite permitting discussions of
other topics 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.20
11. On June 4, 2015, Respondent violated Section 8(a)(1) of the Act by surveilling
employees in a nonwork area during nonworking time to discover their Union or
protected concerted activities and sympathies.
12. On June 4, 2015, Respondent violated Section 8(a)(1) of the Act by interrogating its
employees about their Union or protected concerted activities and sympathies.25
13. Respondent violated Section 8(a)(1) of the Act by interrogating its employees about their
friendship with known Union adherents to determine employees’ Union activities and
sympathies.
14. Respondent violated Section 8(a)(1) of the Act by telling employees that it was creating a
seating chart to isolate employees because of their Union activities and sympathies.30
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 threatening employees with loss of
corporate awards in order to persuade them to cease engaging in union or other protected
concerted activities, telling employees that it is disappointed because they engaged in 35
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 activities.
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
sympathies. 40
18. The Act was not violated in any other way.
JD–57–16
37
REMEDY
In addition to traditional remedies, General Counsel requests that a responsible official
for Respondent read the notice to employees during work time with a Board agent present. To 5
prove the necessity of this enhanced remedy, General Counsel relies on prior litigation and
settlements.
The Board orders extraordinary remedies, such as public notice readings, when the
remedies are necessary dissipate the coercive effects of the unfair labor practices. In re 10
Federated Logistics and Operations, 340 NLRB 255, 256 (2003), rev. denied, enfd. 400 F.3d
920 (D.C. Cir. 2005). To warrant an extraordinary 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 No. 78, slip 15
op. at 1 (2015). The notice reading is “a minimal acknowledgement of the obligation . . .
imposed by law and provides employees with some assurance that their rights under the Act will
be respected in the future.” Id. Also see Farm Fresh Co., 361 NLRB No. 83 (2014).
The Union has engaged in a long campaign to organize Respondent’s facilities. It has 20
filed unfair labor practice charges.35 The Board recently found that Respondent maintained
several unlawful rules in its handbook. The Board ordered that Respondent post a notice at
locations “where the unlawful rules and policies have been or are in effect.” T-Mobile USA, 363
NLRB No. 171, slip op. at 6 (2016).
25
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 30
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 decision.
35
Two settlements deal specifically with the Wichita Call Center. 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 unspecified reprisals, and told employees that they could not discuss or engage in 40
activities with other employees regarding wages, hours and other terms and conditions of
employment. It also settled two disciplinary actions taken against Jerrica Croxson, an alleged
discriminatee in the current case. (GC Exh. 27).

35
General Counsel requested admission of a number of unfair labor practice charges filed against Respondent at
this location. I denied admission because the charges themselves do not show whether Respondent engaged in
violative conduct.
JD–57–16
38
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
numerous 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 5
futility of bargaining and shutting down the plant, interrogation, and surveillance. 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 bargaining unit of 50 were
terminated during an organizing campaign fraught with surveillance, impressions of surveillance,
and numerous threats.10
In comparison, the 2011 Wichita settlement is too remote in time and Respondent made
no admission of wrongdoing. Respondent 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 15
Fresh. The recent Board case, which may have applied to Wichita, included 15 violations, but
all were related to unlawfully overbroad 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 sufficient to ensure employees 20
understand the violations and their rights under the Act. Metta Electric (Metta II), 349 NLRB
1088 (2007).

ORDER
25
The Respondent, T-Mobile, USA, Wichita, Kansas, its officers, agents, and
representatives, shall
1. Cease and desist from:
30
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.35
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 activity by email.
40
d) Telling employees that they cannot engage in “mass communications,” no talking or
engage in social media due to Union or other protected concerted activity.

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.
JD–57–16
39
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.5
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 10
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.
15
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 protected concerted activities.20
l) Coercively telling employees that it is disappointed because they engaged in union or
other protected concerted activities.
m) Coercively telling employees to make their lives easier in order to persuade them to cease 25
engaging in union or other protected 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.
30
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a) Rescind or revise the following rules and notify employees in writing:
a. “Mass Communications” rule;
b. “No talking” in work area during working time while allowing other 35
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 40
forms provided by the Regional Director for Region 14, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and

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 United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–57–16
40
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, as Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by 5
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, 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 employed by the Respondent at any time since June 2, 2015.10
Dated Washington, D.C. June 28, 2016
____________________15
Sharon Levinson Steckler
Administrative Law Judge
JD–57–16
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 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 social media because you engaged in union or other protected concerted activities.
WE WILL NOT apply the Acceptable Use Policy, Enterprise User Standards, and the Solicitation
Policy selectively and disparately to emails regarding union or other protected concerted
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 activities.
WE WILL NOT tell you that you may not talk about the Union in the working area during working
hours when we allow employees 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.
JD–57–16
WE WILL NOT order you off the property when you are distributing Union literature in
nonworking areas during your nonworking 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 because you engaged in union or
other protected concerted activities.
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 protected 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 areas during working time, and social media, and WE WILL
notify you in writing that we have done so.
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.
1222 Spruce Street, Room 8.302, Saint Louis, MO 63103-2829
(314) 539-7770, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’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.
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,
(314) 539-7780.