Frontier Telephone of Rochester, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1270 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 153
1270
Frontier Telephone of Rochester, Inc. and Communi-
cations Workers of America, AFL–CIO
Rochester Telephone Workers Association and Daryl
R. Albright Rochester Telephone Workers As-
sociation (Frontier Telephone of Rochester, Inc.)
and Daryl R. Albright. Cases 3–CA–23502, 3–
CA–23535, 3–CA–23575, and 3–CB–7932
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 25, 2004, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The Respon-
dent Frontier Telephone of Rochester (Respondent Fron-
tier) and the General Counsel each filed exceptions, sup-
porting briefs, and answering briefs. The Respondent
Rochester Telephone Workers Association (Respondent
Union) also filed an answering brief to the General
Counsel’s exceptions. The General Counsel and Re-
spondent Frontier filed reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions only to the extent consistent with
this Decision and Order.
1. The accretion3
The principal issue in this case is whether Respondent
Frontier violated Section 8(a)(1), (2), and (3) and
whether Respondent Union violated Section 8(b)(1)(A)
by, among other things, agreeing to accrete an unrepre-
sented group of Frontier’s Internet help-desk technicians
into a bargaining unit covered by a collective-bargaining
agreement between the Respondents. The judge found
that the accretion was lawful and dismissed these com-

 We have corrected the Union’s name.
1 No exceptions were filed to the judge’s dismissal of the Sec.
8(a)(1) allegations discussed in sec. III.E.1.a,c and d of his decision, or
to the dismissal of the Sec. 8(a)(1) allegation regarding the statement
made by Supervisor Bakari to employee Albright, discussed in sec.
III.E.1.e. There are also no exceptions to the judge’s dismissal of the
allegation that employee David Carmer was discharged in violation of
Sec. 8(a)(3). See sec. III.E.3.b of the judge’s decision.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 The term “accretion,” as used herein, means the addition of em-
ployees into a unit without an election. As discussed herein, the accre-
tion may be lawful or unlawful, depending on the circumstances.
plaint allegations. We disagree and find the violations as
alleged.
Respondent Frontier is a local telephone company in
Rochester, New York, that provides telephone and inter-
net service to residential and business customers. Fron-
tier operates six “call centers” throughout the country,
including one on Jefferson Road in Rochester. The dis-
pute in this case centers on two classifications of em-
ployees who work at this call center—the Internet help
desk technicians (IHD techs) and a group known as cus-
tomer service representatives (CSRs).
The Union has represented the CSRs for nearly 30
years. The most recent collective-bargaining agreement
covering the CSRs and various other classifications of
Frontier employees was effective from January 2000
through February 2003. At the time that this contract
took effect, Respondent Frontier employed IHD techs,
but the techs were not represented by a union and they
were not employed in Rochester. Rather, they were em-
ployed at another Frontier call center in Phoenix, Ari-
zona.
In 2000, the parent owner of Respondent Frontier
(Global Crossing) sold certain of its Frontier assets, but
Global Crossing retained for itself the IHD operation. As
stated by the judge, the effect of this sale was to leave
Respondent Frontier “with an Internet product but no
help-desk operation to service it.” Accordingly, Frontier
decided to reestablish an IHD and to locate it in Roches-
ter’s Jefferson Road call center, in a vacant area adjacent
to where the CSRs worked, but separated by a concrete
fire wall. An initial startup staff of 35–40 IHD techs was
hired and operations commenced in December 2000.
By January 2002,4 the number of IHD techs had ex-
panded to about 120. As their numbers grew, so too did
their interest in union representation—but not by the Un-
ion. Late that month, tech Alan Costa contacted repre-
sentative Don DePerna of the Communications Workers
of America (CWA) to inform DePerna that the techs
were interested in CWA representation. DePerna held
meetings with the techs over the next few weeks. On
February 28, having collected authorization cards from
approximately 65 percent of the techs, CWA filed a rep-
resentation petition with the Board seeking to represent
the techs as a separate appropriate unit. Just the day be-
fore that petition was filed, however, Respondent Fron-
tier acceded to a demand from the Respondent Union for
recognition of the techs and for their inclusion in the bar-
gaining unit with the CSRs. The Respondents formal-
ized this arrangement on March 13 by executing a
memorandum of agreement that extended coverage of

4 All dates hereinafter are in 2002, unless otherwise indicated.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1271
their existing bargaining agreement, including its union
security clause, to the techs.
In finding that a lawful accretion had occurred, the
judge made extensive factual findings with respect to the
traditional community-of-interest factors relevant to the
Board’s analysis of accretion issues. For the most part,
we agree with his factual findings. However, we dis-
agree with the legal analysis and conclusions that the
judge drew from his fact findings.
The judge’s legal analysis of the accretion issues con-
sisted entirely of the following brief discussion:
[t]he call center is an integrated facility wherein all em-
ployees in various capacities work toward achieving
the Company’s goals and objectives—mainly keeping,
maintaining, and increasing its customer base through
the provision of state-of-the-art telephone and internet
service.
The Call Center employees work together in perform-
ing [customer service] using inter alia, the same
equipment, under [essentially] the same working condi-
tions, with similar skills, education and comparable
training, common management and labor relations all
at the same location. The Call Center is [an] integrated
facility where the [CSR] consultants and the IHD
[techs] work hand in glove to perform [the Company’s]
raison d’etre, customer service.
Based on this analysis, the judge found that the Rochester
IHD techs had lawfully accreted into the CSR unit. For the
reasons discussed below, we reverse the judge, find that no
lawful addition occurred, and find the alleged Section
8(a)(1), (2), (3), and 8(b)(1)(A) violations.
Analysis
The fundamental purpose of the accretion doctrine is
to “preserve industrial stability by allowing adjustments
in bargaining units to conform to new industrial condi-
tions without requiring an adversary election every time
new jobs are created or other alterations in industrial
routine are made.” NLRB v. Stevens Ford, Inc., 773 F.2d
468, 473 (2d Cir. 1985). However, because accreted
employees are absorbed into an existing bargaining unit
without an election or other demonstrated showing of
majority status, the accretion doctrine’s goal of promot-
ing industrial stability places it in tension with the right
of employees to freely choose their bargaining represen-
tative. Accordingly, the Board follows a restrictive pol-
icy in applying the accretion doctrine. Safeway Stores,
256 NLRB 918 (1981); Wackenhut Corp., 226 NLRB
1085, 1089 (1976). One aspect of this long-standing
restrictive policy, which was recently restated in E. I. Du
Pont de Nemours, Inc.5 has been to permit accretion
“only when the employees sought to be added to an ex-
isting bargaining unit have little or no separate identity
and share an overwhelming community of interest with
the preexisting unit to which they are accreted.” Supra at
608 quoting Ready Mix USA, Inc., 340 NLRB 946, 954
(2003).6
In determining, under this standard, whether the requi-
site overwhelming community of interest exists to war-
rant an accretion, the Board considers many of the same
factors relevant to unit determinations in initial represen-
tation cases, i.e., integration of operations, centralized
control of management and labor relations, geographic
proximity, similarity of terms and conditions of employ-
ment, similarity of skills and functions, physical contact
among employees, collective bargaining history, degree
of separate daily supervision, and degree of employee
interchange. E. I. Du Pont, supra at 608; Compact Video
Services, 284 NLRB 117, 119 (1987). However, as
stated in E. I. Du Pont, the “two most important fac-
tors”—indeed, the two factors that have been identified
as “critical” to an accretion finding—are employee inter-
change and common day-to-day supervision.7 Super
Valu Stores, 283 NLRB 134, 136 (1987), citing Towne
Ford Sales, 270 NLRB 311, 312 (1984).
In this case, there are some community-of-interest fac-
tors that favor an accretion. This is not unusual, as cases
are “rare” in which every factor points to or against ac-
cretion. E. I. Du Pont, supra. However, we find that the
factors that favor an accretion do not outweigh the fac-
tors that militate against such a finding.
Addressing, first, the factors that weigh in favor of ac-
cretion, we note that both the CSRs and techs work in
geographic proximity in the same building at the Jeffer-
son Road call center (albeit separated by a fire wall). We
also agree with the judge that the overall operations of
the call center, including the work of the CSRs and techs,
are functionally integrated. As correctly described by the

5 341 NLRB 607 (2004).
6 This test is different than the traditional community-of-interest test
that the Board applies in deciding appropriate units in initial representa-
tion cases. In that context, the Board will certify any unit that is an
appropriate unit, even if it is not the most appropriate unit. Bartlett
Collins, 334 NLRB 484 (2001). In the accretion context, however, “[a]
group of employees is properly accreted to an existing bargaining unit
when they have such a close community of interests with the existing
unit that they have no true identity distinct from it.” NLRB v. St. Regis
Paper, 674 F.2d 104, 107–108 (1st Cir. 1982). Thus, the issue here is
not whether an RC petition could properly be processed in a unit con-
sisting of CSRs and techs. Such a unit could be an appropriate unit
and, if so, an election would be held.
7 As noted below, the absence of these two factors will ordinarily de-
feat a claim of lawful accretion. This is not to say that the presence of
these factors will establish a claim of lawful accretion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1272
judge, both groups of employees “work in tandem” in
responding to customer telephone inquiries relating to
the internet services sold by Respondent Frontier. Fur-
ther, during the course of these telephone exchanges the
CSRs and techs occasionally transfer customers to each
other. Finally, we agree with the judge that “[u]ltimate
management authority” at the call center, including au-
thority regarding labor relations matters, is centrally con-
trolled by Angela Christian, who is Respondent’s vice
president of customer care and, as the judge noted, the
“highest-ranking manager at the call center.” Christian,
assisted by a human resources department and other
management personnel with specific responsibilities
covering CSRs and techs, sets the call center’s annual
budget, determines employee staffing levels, negotiates
with the Union the terms and conditions of employment
applicable to CSRs, and unilaterally determines and
monitors the terms and conditions of employment appli-
cable to the techs.
Though these factors favor a lawful accretion, we find
that they are offset by several factors that disfavor such a
finding. Among the factors which weigh against a lawful
accretion finding are the two deemed by the Board to be
most “critical” to an accretion—employee interchange
and common daily supervision.
With respect to the factor of interchange, the Board
distinguishes between two types of interchange—
temporary transfers and permanent transfers—and “re-
gard[s] permanent transfers to be a less significant indi-
cation of actual interchange than temporary transfers.”
Novato Disposal Services, 330 NLRB 632 fn. 3 (2000).
Here, the judge’s own factual findings establish the com-
plete absence of the more important form of interchange,
and very few instances of the less significant type. Spe-
cifically, with respect to temporary transfers, the judge
found, and the record establishes, that “CSRs and IHD
techs have never filled in for each other.” As for perma-
nent transfers of techs to CSR positions, the judge cor-
rectly found that this also has never occurred. However,
the judge did find that six CSRs have permanently trans-
ferred into tech positions.8
A synopsis of the evidence regarding transfers, there-
fore, shows that over the 14-month period between the
commencement of IHD operations at the Rochester call
center and the accretion, there were no temporary trans-
fers, no permanent transfers of techs to CSR positions,
and only five permanent transfers of CSRs to tech posi-

8 In fact, only five CSRs permanently transferred to tech positions
before the accretion. A sixth CSR transferred after the accretion and
cannot be considered as legally relevant to an accretion analysis. See
Gould, Inc., 263 NLRB 442, 446 (1982) (accretion determinations are
based on facts existing at time of accretion.)
tions.9 We conclude that this evidence falls well short of
supporting a finding of interchange between CSRs and
techs.10
Turning to the second critical element necessary to
find a lawful accretion—common day-to-day supervi-
sion, we find that the evidence likewise fails to support
such a finding. As noted above, we agree with the judge
that there is centralized control of management and labor
relations affecting all employees at the call center. How-
ever, the Board has instructed that:
[an] important element is whether the day-to-day su-
pervision of employees is the same in the group sought
to be accreted. Save-It Discount Foods, 263 NLRB
689 (1982); Weatherite Co., 261 NLRB 667 (1982).
This element is particularly significant, since the day-
to-day problems and concerns among the employees at
one location may not necessarily be shared by employ-
ees who are separately supervised at another location.
Renzetti’s Market, 238 NLRB 174, 175 (1978).
Towne Ford Sales, supra, 270 NLRB at 311–312.
Here, the record demonstrates, as reflected once again
in the judge’s own factual findings, that the techs and
CSRs are not commonly supervised. To the contrary, the
techs have their own separate supervisory structure and
identity. As the judge noted, Gregg Wergin testified that
he is the manager of the IHD and the “highest-level su-
pervisor” within that department. Reporting to him are a

9 We additionally note that because these permanent transfers oc-
curred after Respondent Frontier restarted its IHD operation and sought
to expand its tech workforce, they likely are not representative.
10 We reject the judge’s statement in fn. 24 of his decision that em-
ployee interchange “connotes . . . having regular contact between the
groups” of existing unit employees and those being accreted to the unit.
Employee contact is a factor analyzed separately in accretion determi-
nations, and neither of the cases cited by the judge supports his state-
ment that employee contact and employee interchange are considered
by the Board as synonymous. In any event, we note the judge’s undis-
puted finding that “CSRs and IHD techs have only occasional face-to-
face contact or interaction.”
Further, although not entirely clear, the judge appears to suggest that
employee interchange may exist based on his finding that “CSRs and
IHD techs receive overlapping training to do their respective jobs.” We
disagree for two reasons. First, contrary to the judge’s statement in fn.
28 of his decision, there is nothing in the testimony of IHD Supervisor
Londa Jericho (Tr. 2178 and 2228) or tech Kitty Maier (Tr. 304–307,
2648–2650, 2659–2661) that indicates that CSRs and techs are trained
to perform each others’ jobs. Their testimony, as well as the reference
to joint training in fn. 28 of the judge’s decision, refers to short orienta-
tion sessions that are offered to CSRs to provide them with some in-
sight as to the role of the techs in Respondent Frontier’s internet service
operations. (Techs receive no reciprocal orientation or training regard-
ing the jobs performed by the CSRs.) Second, even assuming that both
groups are trained to perform the jobs of each other, the fact, which has
already been established above, that they do not perform each others’
jobs, precludes a finding of employee interchange. Combustion Engi-
neering, 195 NLRB 909, 912 (1972).
FRONTIER TELEPHONE OF ROCHESTER, INC. 1273
group of lower-level supervisors known as “coaches”
who “directly supervise[]” the techs, and “[a]ccording to
Wergin . . . are his ‘eyes and ears’ with respect to the
help-desk techs and serve as the first line of manage-
ment’s contact with them.” In this capacity, the coaches,
with occasional input from Wergin, exercise authority
over the techs in a manner that affects the most vital as-
pects of their employment. The coaches interview and
hire the techs and are solely responsible for evaluating
their job performance, including the critically important
ability to resolve customer inquiries pertaining to prob-
lems with various functions of a customer’s internet ser-
vice. By evaluating the techs, the coaches independently
control the techs’ opportunity for advancement. Specifi-
cally, a coach’s favorable evaluation permits a tech to
take a written test that assesses technical knowledge
which, if passed, results in their promotion to the next
highest “tier” of the tech pay scale. The coaches are also
responsible for imposing discipline, except termination
which is meted out by Wergin. The coaches monitor job
performance and, as described in fn. 136 of the judge’s
decision, they issue written warnings to the techs for
various work-related infractions and, if deemed neces-
sary, place the techs on “performance improvement
plans.” Wergin testified that in administering this disci-
pline, the coaches “don’t check with anyone [in] man-
agement. . . .”
In sum, as to the element of day-to-day supervision,
the foregoing evidence shows that the IHD operates as a
distinct department within the call center, with a substan-
tial degree of autonomy and supervisory control vested in
IHD manager Wergin and his coaches with respect to
personnel matters.11 Neither Wergin nor the tech
coaches exercise any supervisory authority over the
CSRs. Similarly, CSRs are separately supervised by
CSR coaches and managers, none of whom exercise any
authority over the techs. In accord with Board precedent,
therefore, we find that the second “critical” element of
common daily supervision weighs heavily against law-
fully accreting the techs into CSRs bargaining unit.
Thus, the two most important factors of interchange
and common daily supervision have not been satisfied.
Further, our examination of additional factors further
supports our conclusion that a lawful accretion did not
occur.
First, there are important differences between the
techs’ and CSRs’ terms and conditions of employment.
The CSRs and techs work different hours. The IHD op-

11 The Respondent Frontier effectively concedes this point through
its director of technology, Michael Canova, who stated that Wergin has
“overall responsibility for the Help Desk function which includes the
coaches; direct supervisory control for the Help Desk.” (Tr. 1569.)
erates without interruption, every day throughout the
year, 24 hours a day. This requires the techs to work
round-the-clock shifts to ensure their presence at the help
desk at all times. The CSRs, by contrast, work only day-
time hours from Monday to Saturday. Unlike the techs,
the CSRs do not work night shifts, Sundays, or holidays.
Another major difference, which the judge noted, is
that the “CSRs and IHD techs are subject to different
leave and benefit policies.” The CSRs’ benefits, as set
forth in their collective-bargaining agreement, entitle
them to up to 5-weeks paid vacation (depending on sen-
iority), excused absences, personal leave, sick leave, 11
paid holidays, pension coverage, and layoff and recall
protection based on seniority.12 The techs, by contrast,
receive none of these specified benefits or seniority-
based perquisites. Rather, techs are given 19 paid-time-
off (PTO) days per year which they may use for any pur-
pose. We agree with judge, therefore (see fn. 45 of his
decision), that “in terms of benefits, the techs and CSRs
are worlds apart.”
We also agree with the judge that the compensation
formulas for the techs and CSRs are “fundamentally dif-
ferent.” The techs are paid strictly by the hour while the
CSRs, in accordance with their collective-bargaining
agreement, are paid on an incentive basis that includes an
hourly rate that is supplemented by a “pay for perform-
ance” bonus program, as well as commissions based on
their level of sales.13
We find that this difference in compensation formulas
is indicative of another significant difference between the
CSRs and techs—their skills and duties. The commis-
sions paid to the CSRs are reflective of the fact that they
sell a product. This is one of their primary job functions
according to Vice President Christian, and was estimated
by CSR Lutanya Highsmith to constitute 80 percent of
her overall job duties. Specifically, the CSRs attempt to
establish customer accounts by selling the Respondent’s
local or long-distance telephone services as well as its
dial-up and high speed DSL internet services. They also

12 In analyzing the accretion issue, Member Liebman does not rely
on differences in terms and conditions of employment that are the result
of collective bargaining. For example, benefits of CSRs are, of course,
subject to negotiations, which necessarily do not control benefits of
nonunit employees. Any resulting disparity should not provide a sepa-
rate basis for excluding employees from a bargaining unit if those em-
ployees otherwise meet the Board’s test for accretion. To do so would
amount to excluding employees on the basis that up to now they had
been excluded, a “patent form of circular reasoning.” Oxford Chemi-
cals, Inc., 286 NLRB 187, 188 (1987).
13 In fn. 41 of his decision, the judge stated that techs, like CSRs,
also can earn sales bonuses through a program called “Take the Lead”
if they sell a company product. However, very few of the techs who
testified stated that they ever heard of this program, and none testified
that they ever sold a product and earned a “Take the Lead” bonus.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1274
pitch add-on features such as call-forwarding, call-
waiting, e-mail and voice mail. After this primary func-
tion is complete and, in the judge’s words, “the customer
[is] on board for regular telephone service and Internet
service,” the CSRs perform their secondary function of
maintaining the customer account, for example, by field-
ing customer questions relating to charges on their tele-
phone or Internet bills.
Techs, on the other hand, do not engage in any sales
activity or perform any of the other tasks performed by
the CSRs. This explains why the techs’ pay does not
include sales commissions. Best described by techs
Doug Daly and Kitty Maier, the duties of a tech are to
provide computer assistance service of a technical nature
by “troubleshooting” internet connection problems that
are presented to them over the phone by customers. This
entails walking a customer through a series of questions
to isolate the reasons for the failure of their internet ser-
vice and guiding them through the necessary steps to
correct the problem. For example, if the problem is with
e-mail, Daly testified that he asks the customer for any
error messages that may be displayed on the computer
screen, and after determining “what application they’re
using for mail,” he attempts to correct the problem by
telling the customer to “check on this, tell me what it
reads now, click on this, tell me what is there, go ahead
and change that, take that out and retype it. . . .” Maier
described a similar trial-and-error technique that she uses
in resolving the common problem of a customer’s inabil-
ity to view a web page.
Concededly, both groups are collectively involved in
“customer service.” However, contrary to the judge, we
do not find that this supports his finding that a lawful
accretion is warranted here. “Customer service” is a
broad concept that arguably could describe the jobs of
any number of employees in numerous settings. In and
of itself, this terminology does not signify whether, in an
accretion setting, different groups of “customer service”
employees should be in the same bargaining unit. See,
e.g., Safeway Stores, supra, 256 NLRB at 918 (Board
rejected accretion of delicatessen employees into unit of
bakery employees, notwithstanding that both groups’
duties’ primarily involved “waiting on the public.”).
Instead, the relevant question is whether the customer
service duties of the CSRs and techs are sufficiently
similar to warrant the techs’ inclusion in the bargaining
unit. Because we have found that the duties performed
by both groups are not similar, it necessarily follows that
this factor does not favor a lawful accretion.
We conclude our analysis with a discussion of one fi-
nal but significant factor that weighs against the techs’
lawful accretion to the CSR bargaining unit—bargaining
history. The relevance of this factor in an accretion
analysis was discussed recently in Kaiser Foundation
Hospitals, 343 NLRB No. 8 (2004). In Kaiser, the issue
was whether research assistants, a position that had con-
tinuously existed for over 20 years, could lawfully be
accreted into a bargaining unit from which they histori-
cally had been excluded. Relying on well-settled prece-
dent that accretion is never appropriate as to a group that
the parties to a bargaining relationship historically have
failed to include in the unit,14 the Board in Kaiser found
that the research assistants’ historical exclusion from the
bargaining unit rendered inappropriate their accretion
into it.
We find that the limitation on accretion set forth in
Kaiser and antecedent precedent is controlling here.
Although there has been some history of bargaining unit
representation of employees who performed internet cus-
tomer assistance duties, that history has not been recent.
As discussed more fully by the judge,15 when Respon-
dent Frontier first introduced internet services to custom-
ers in the mid-1990s during the infancy of the Internet
phenomenon, it created an “Internet Team” comprised of
13 unit employees whose duties involved selling the ser-
vice (a current CSR function) as well as answering cus-
tomer inquiries regarding problems with their internet
connection. However, as the Internet system grew and
became more complex, Frontier realized the need for
individuals with more advanced technological skills than
those possessed by the bargaining unit’s Internet Team.
Accordingly, the Internet Team was disbanded and a new
contingent of employees was hired who, as the judge
noted, met the Respondent’s heightened requirements for
“more technical knowledge, computer language, external
computer systems and Internet applications. . . .” This
group of employees was assigned what now constitutes
IHD functions and, with the consent of the Union, was
excluded from the then applicable 1997–2000 collective-
bargaining contract. Thereafter, this group remained
unrepresented until the events giving rise to the instant
dispute, i.e., their accretion by the Respondents into the
successor 2000–2003 contract. It is this recent and con-
tinuous exclusion, and the fact that the earlier inclusion
occurred at a time when IHD and CSR functions were
commonly performed, that is determinative under Kaiser
Foundation and United Parcel Service, and which
weighs against the techs’ accretion into the CSR bargain-
ing unit.
In conclusion, we find, on the record as a whole, that
the evidence fails to establish that the techs have little or

14 United Parcel Service, 303 NLRB 326, 327 (1991), enfd. 17 F.3d
1518 (D.C. Cir. 1994), cert. denied 513 U.S. 1076 (1995).
15 See secs., III,B,3 and D,6 of his decision.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1275
no separate group identity, or that they share an over-
whelming community of interest with the CSR bargain-
ing unit employees. Accordingly, applying the principles
set forth by the Board for analyzing accretion issues, we
find that the techs did not constitute a lawful accretion to
the bargaining unit of CSR employees represented by the
Union and that the Respondents, therefore, violated Sec-
tion 8(a)(1) and (2) and Section 8(b)(1)(A) of the Act,
respectively, by agreeing on February 27, and memorial-
izing that agreement in a written Memorandum of
Agreement on March 13, to apply the terms of their ex-
isting collective bargaining agreement to the techs at a
time when a majority of these employees did not support
the Union. We further find that because the collective-
bargaining agreement contained a union security clause
that required the payment of dues to the Respondent Un-
ion as a condition of employment, the Respondent Fron-
tier separately violated Section 8(a)(3) by applying the
bargaining agreement to the techs, Section 8(a)(1) by
informing the techs that the agreement’s union security
provision applied to them, and Section 8(a)(3) by collect-
ing union security payments from the techs and remitting
those payments to the Union. The Respondent Union, by
accepting either directly from the techs or indirectly by
collection from the techs by Respondent Frontier and
remittance to the Respondent Union, separately violated
Section 8(b)(1)(A).16
2. Creating the impression of surveillance
As discussed above, the techs commenced their CWA
organizing efforts in January 2002. Notwithstanding the
agreement between the Respondents to accrete the techs
into the CSR bargaining unit, the techs continued their
CWA organizational campaign. Among the organiza-
tional tools the techs utilized during the campaign was a
“Yahoo!” internet web page that tech Ron Boulware cre-
ated for the purpose of facilitating discussion among the
techs on the various union and employment issues that
concerned them.17 The judge found that IHD supervisor
Mazi Bakari’s statement to a tech, that Bakari was aware
of a message that another tech had posted on the Yahoo!
web page, violated Section 8(a)(1) by creating the im-
pression among the techs that their union activities were
under surveillance. We disagree and dismiss this allega-
tion.
Bakari was a coach of a team of techs that included
Dan Wood and Daryl Albright. Upon his arrival at work
one night in mid-March, Bakari was greeted by a group

16 The complaint did not allege an 8(b)(2) violation.
17 Yahoo! is an Internet Service Provider (ISP) that, among other
things, provides a service where users may post comments on bulletin
and message boards related to a particular subject matter.
of techs, including Wood, who were “laughing and jok-
ing” among themselves. Wood told Bakari that he
(Bakari) was the “joke of the day.” Wood was referring
to an e-mail that tech Albright had posted on the Yahoo!
website. The first page of the e-mail was an announce-
ment, in celebratory-style language and punctuation, that
Albright had just prevailed at a disciplinary meeting with
management officials who had decided not to issue Al-
bright a poor-performance warning that Bakari had rec-
ommended.18
Wood invited Bakari to his desk to have a look at the
e-mail. Bakari walked over to Wood’s desk, observed on
his computer screen that the e-mail was from Albright
and that it was posted to the Yahoo! website. Wood then
forwarded a copy of it to Bakari’s computer.
Several days later, Bakari was in the help desk break-
room where techs Christodoulou and Coletti were dis-
cussing the ongoing accretion dispute. According to
Christodoulou, Coletti asked Bakari “what do you think
about the union.” (Coletti did not specify the Union to
which he referred.) Bakari replied that he “knew about
the Yahoo group and what Daryl [Albright] had posted.”
Christodoulou testified that he was “surprised” and a
“little intimidated” by this remark because he “assumed”
that the Yahoo! website was dedicated solely for the
benefit of the techs who wished to discuss CWA repre-
sentational issues, and that access to the website by man-
agement personnel was not possible.
The judge found that Bakari’s statement to Christodou-
lou that he knew about the Yahoo! website and the mes-
sage that Albright posted on it violated Section 8(a)(1)
because the statement “could reasonably cause an em-
ployee to believe that his or fellow employees’ union
activities were being surveilled.” The judge reasoned
that Bakari’s statement conveyed the “clear message”
that Respondent Frontier knew about the website as well
as its “objective, its mission, participants, and the content
of the employees’ concerns.” For those like Christodou-
lou and other techs who had subscribed to the website
and thought that it was “secure and privileged only to
them,” the judge found that Bakari’s statement could
have had a “chilling effect.” Although the judge ac-
knowledged that Wood had exposed the website to
Bakari and that the website “was not indeed secure,” the
judge nonetheless concluded that Bakari’s statement was

18 The text of Albright’s e-mail message reads “went into the meet-
ing today, they folded, due to union pressure and recordings,
VICTORY IS SWEET. CWA ALL THE WAY!!!!!” This e-mail was
part of a “string” of related messages posted by Albright and other
techs to the Yahoo! website. Wood’s testimony suggests that what he
considered to be comical may have been another of Albright’s e-mails
in the message string that was critical of Bakari as a supervisor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1276
unlawful because “employees like Christodoulou had no
actual knowledge that other subscribers were giving
management information about the [website].” For the
reasons discussed below, we find no 8(a)(1) violation.
In determining whether an employer has unlawfully
created the impression of surveillance of employees’
union activities, the test that the Board has applied is
whether, under all the relevant circumstances, reasonable
employees would assume from the statement in question
that their union or other protected activities had been
placed under surveillance. Flexsteel Industries, 311
NLRB 257 (1993); Schrementi Bros., 179 NLRB 853
(1969).19 The essential focus has always been on the
reasonableness of the employees’ assumption that the
employer was monitoring their union or protected acti-
vates. As with all conduct alleged to violate Section
8(a)(1), the critical element of reasonableness is analyzed
under an objective standard, not the subjective reaction
of the individual involved, to determine whether an em-
ployer’s actions tend to restrain, coerce, or interfere with
the Section 7 rights of employees. KSM Industries, 336
NLRB 133 (2001); Sunnyside Home Care Project, 308
NLRB 346 fn. 1 (1992); El Rancho Market, 235 NLRB
468, 471 (1978), enfd. mem. 603 F.2d 223 (9th Cir.
1979).20
Contrary to the judge, we cannot find under the fore-
going principles that Bakari’s statement reasonably
would cause Christodoulou to assume that his union ac-
tivities or those of his fellow techs were under surveil-
lance by Respondent Frontier. Christodoulou’s own tes-
timony undermines this assumption, as do other circum-
stances surrounding Bakari’s remark. Although Christo-
doulou testified that he assumed that the Yahoo! website
was basically a “private” website, i.e., “by invitation
only” to tech employees, he acknowledged that he did
not know the identities of all the subscribers to the web-
site and thus could not be sure that it was restricted only
to techs. Further, there is nothing on the home page of
the Yahoo! website that indicates that it was restricted to
techs only, nor is there any evidence that tech subscribers
were told to maintain the secrecy of the website’s exis-
tence.
Also significant was Christodoulou’s testimonial ac-
knowledgement that any subscriber to the website could
read messages posted to it by other subscribers, and then

19 The Board has noted that an impression of surveillance violation
does not require a finding that employees attempted to keep their union
activities secret, or that the employer obtained knowledge of the em-
ployees’ union activities by unlawful means. See United Charter Ser-
vice, 306 NLRB 150, 151 (1992).
20 Accordingly, Christodoulou’s testimony that he was “surprised”
and “intimidated” by Bakari’s remark is irrelevant to our analysis.
show them to anybody else. This is precisely what hap-
pened in this case. Tech Wood, a subscriber to the Ya-
hoo! website, read a message that tech Albright had
posted to it, and then showed it on his office computer to
Bakari and e-mailed him a copy of the message. Given
Christodoulou’s acknowledgement that this could happen
and that the website may not have been as secure as he
thought it was, i.e., for techs only, coupled with the lack
of evidence indicating to subscribers that the website was
for the private use of techs, we think it unreasonable for
Christodoulou to have assumed from Bakari’s remark
that he (Bakari) learned, by means of unlawful surveil-
lance, the message that Albright had posted on the web-
site. To the contrary, we think that a reasonable em-
ployee would assume that Bakari lawfully learned of
Albright’s message exactly the way Bakari did—through
public dissemination by another website subscriber.
The reasonableness of this assumption is consistent
with the public nature of the CWA’s efforts to represent
the techs. As the judge noted, by the time of Bakari’s
remark to Christodoulou in mid-March, the CWA’s “in-
terest in representing the techs was known” to all at the
call center as a result of the CWA’s petition seeking to
represent the techs. In connection with the petition fil-
ing, the techs organizational activities had now become
public. Indeed, it was in this context that Bakari found
himself in the tech breakroom, among two techs discuss-
ing the accretion, when he was asked what he thought
about it. His remark was simply an observation about
the techs’ CWA union activity which another tech had
chosen to make public.21
In sum, nothing in Bakari’s statement itself or the con-
text in which it was made reasonably should have caused
Christodoulou to assume that the Respondent was en-
gaged in surveillance of the techs’ union activities.
Thus, we conclude, contrary to the judge, that the Gen-
eral Counsel has not met his burden of establishing that
this comment violated Section 8(a)(1).
3. The Wright Line analysis
Applying the dual motive analysis set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S.
393 (1983), the judge found that Respondent Frontier
violated Section 8(a)(3) and (1) by discharging Ronald
Boulware for engaging in protected union activity. Al-
though we agree with this finding, we do not agree in all
respects with the judge’s Wright Line analysis.

21 Member Liebman would adopt the judge’s finding that Bakari’s
statement violated Sec. 8(a)(1), for the reasons he stated.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1277
“Under that analysis, the General Counsel must ini-
tially establish union or protected activity, knowledge,
animus and adverse action. Once the General Counsel
makes this initial showing, the burden of persuasion then
shifts to the Respondent to prove that the same action
would have taken place even absent any protected activ-
ity.” Robert Orr/Sysco Food Services, 343 NLRB No.
123, slip op. at 1 fn. 6 (2004).
In agreeing with the judge that the General Counsel
met his burden, we find that the protected activity that
Boulware engaged in, and which Respondent Frontier
both knew about and harbored animus against, was his
union activities in leading the organizing campaign by
the CWA.22 In agreement with the judge, we find that
Respondent Frontier’s animus toward Boulware and his
CWA activities was also demonstrated by the timing of
his discharge within 1 week of learning of his CWA ac-
tivities. Finally, we find that Respondent Frontier’s ac-
cretion violations tend to demonstrate its animus against
the CWA organizing effort, which was led by Boulware.
We further find, in agreement with the judge, that Re-
spondent Frontier failed to meet its Wright Line burden
of establishing that it would have discharged Boulware
even absent his CWA activities. In this regard, Respon-
dent argued that the “principal” reason that it discharged
Boulware was because he transferred the contents of the
company’s internal web page to his Yahoo! website in
violation of a valid work rule, i.e., its Authorized Use
Policy (AUP) which governs the proper use of its work-
place computers. However, as the judge correctly noted,
before learning of Boulware’s CWA activities, Respon-
dent Frontier was aware of Boulware’s violation of the
AUP and other workplace rule violations, and not only
failed to discharge him for these transgressions but gave
him his annual performance evaluation which made no
mention of the AUP violation. In light of this evidence
which establishes, contrary to Respondent Frontier’s
asserted Wright Line defense, that it discharged Boul-
ware for his CWA activities and not for AUP or other
work rule violations, we do not rely on Section
III,E,3,a,1 of the judge’s decision where he discusses
Respondent Frontier’s defense to Boulware’s discharge.
Finally, we agree with the judge that the right to rein-
statement and full backpay to remedy his unlawful dis-
charge was forfeited by Boulware as a result of miscon-
duct that he engaged in while employed, but not discov-
ered by the Respondent until the hearing. Specifically, in

22 We thus do not rely on the judge’s finding that Boulware engaged
in protected activity by transferring to his “Yahoo!” website the con-
tents of certain discussions that employees had posted on Respondent
Frontier’s internal web page (the message board) pertaining to union
matters and other workplace issues.
response to a subpoena served on Boulware during the
hearing, it was discovered that during the course of his
employment Boulware had forwarded from his office
computer to his home e-mail account approximately
22,000 pages of company records that included customer
credit card information, customer account passwords,
their user names, their telephone numbers and home ad-
dresses. The judge found that by “purloin[ing]” this
“proprietary and confidential information,” Boulware
engaged in serious misconduct that not only violated the
AUP but also “subjected [the Respondent] to possible
loss of customers and lawsuits.” Accordingly, the judge
concluded that this “after-acquired knowledge” of Boul-
ware’s misconduct which, had the Respondent known of
it at the time of his unlawful discharge would have re-
sulted in his lawful discharge, warranted denial of reme-
dial reinstatement as well as backpay for the period fol-
lowing the discovery of Boulware’s misconduct.
Our colleague argues in her partial dissent that Boul-
ware’s e-mailing of work material to his home computer
cannot be “characterized as newly discovered or ‘after-
acquired’ evidence” because the Respondent knew that
Boulware had been doing this prior to his discharge, yet
failed to discharge him for it. Therefore, she finds that
there is no justification for cutting off his backpay and
denying him reinstatement.
In disagreeing with our colleague, we note first that al-
though it is true that the Respondent was aware, prior to
Boulware’s discharge, that he had forwarded work-
related material to his home computer, there is no evi-
dence that the Respondent was aware that the forwarded
material included customer credit card information and
other sensitive and confidential material that was discov-
ered after his discharge. To the contrary, the only mate-
rial forwarded home by Boulware, of which the Respon-
dent was aware prior to discharging him on unrelated
unlawful grounds, was a set of suggested tips for use by
fellow techs to “troubleshoot” computer problems pre-
sented by customers.23 Second, and equally significant,
the mass of sensitive and confidential information for-
warded by Boulware to his home computer and discov-
ered by the Respondent at the hearing was, as the judge
found, “purloined,” i.e., it was retained by Boulware on
his home computer. By contrast, as previously stated, the
known information forwarded home by Boulware prior

23 Boulware had listed these tips on a “DSL Escalation Form” that he
created on his work computer, forwarded it to his home computer for
completion, and then forwarded back to his home computer. See fn.
129 of the judge’s decision and the sentence in the text it references.
The Respondent learned in early March that Boulware had done this
and ordered him not to forward work home again.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1278
to his discharge was forwarded back to his work com-
puter and, thus, was not purloined.
Accordingly, in light of this misconduct, we shall not
order the Respondent Frontier to reinstate Boulware and
we will limit his backpay to the period prior to the dis-
covery of his misconduct. Aldworth Co., 338 NLRB 137,
147 (2002).
AMENDED REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order that they
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act. Having
found that Respondent Frontier unlawfully recognized
and entered into a collective-bargaining agreement on
March 13, 2002, with the Respondent Union as the rep-
resentative of previously unrepresented Internet help
desk technicians, we shall order Respondent Frontier to
withdraw and withhold all recognition from the Respon-
dent Union as the collective-bargaining representative of
those employees, and we shall order both Respondents to
cease applying to those employees the terms of the col-
lective-bargaining agreement, or any extension, renewal,
modification, or superseding agreement,24 unless or until
the Respondent Union is certified by the Board as such
representative.
We shall also order that the Respondent Union and Re-
spondent Frontier, jointly and severally, reimburse previ-
ously unrepresented help desk technicians, present and
former, for dues and initiation fees involuntarily exacted
from them as a result of the unlawful application of the
union-security clause in the Respondents’ collective-
bargaining agreement, with interest to be computed in
the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Respondent Frontier shall further be ordered to take
the action set forth in the remedy section of the judge’s
decision with respect to the unfair labor practices com-
mitted against Ronald Boulware.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Frontier Telephone of Rochester, Inc.,
Rochester, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from

24 Nothing in this decision should be construed as requiring Respon-
dent Frontier to rescind benefits conferred on the group of previously
unrepresented Internet help desk technicians as the result of the unlaw-
ful application of contract provisions to them. See, e.g., Kaiser Foun-
dation Hospitals, 343 NLRB No. 8, slip op. at 2 (2004).
(a) Granting recognition to the Respondent Union as
the exclusive collective-bargaining representative of the
Internet help desk technicians at a time when the Union
does not represent a majority of those employees.
(b) Informing help desk technicians that the union-
security provisions of the collective-bargaining agree-
ment with the Respondent Union applies to them.
(c) Applying the collective-bargaining agreement to
the help desk technicians.
(d) Collecting union-security payments from the help
desk technicians and remitting those payments to the
Respondent Union.
(e) Discharging employees or in any other manner dis-
criminating against them with regard to their hire or ten-
ure of employment, or any term or condition of employ-
ment, because they join and assist any union and engage
in protected concerted activities, and/or to discourage
employees from engaging in such activities, and/or to
encourage employees to join or assist any union.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind and withdraw the recognition given the
Respondent Union as the exclusive collective-bargaining
representative of the help desk technicians unless and
until the Union is selected by the help desk technicians in
a Board conducted election.
(b) Rescind and withdraw the application of the collec-
tive-bargaining agreement with the Union to the help
desk technicians unless and until the Respondent Union
is selected by the help desk technicians in a Board con-
ducted election.
(c) Jointly and severally with the Respondent Union
reimburse the help desk technicians for any payments
made under the terms of the union-security clause of the
collective-bargaining contract with the Respondent Un-
ion, with interest.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Ronald Boulware, and within 3 days thereafter notify
him in writing that it has done so, and that the discharge
will not be used against him in any way.
(e) Within 14 days from the date of this Order, make
Ronald Boulware whole for any losses he suffered by
reason of the discrimination against him as set forth in
the amended remedy section of this decision.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
FRONTIER TELEPHONE OF ROCHESTER, INC. 1279
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Rochester, New York facility copies of the attached
notice marked “Appendix A.”25 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent 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 February 27, 2002.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
B. The Respondent Union, Rochester Telephone
Workers Association, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Accepting the Respondent Employer’s grant of
recognition as the exclusive collective-bargaining repre-
sentative of the help desk technicians at a time when the
Union does not represent a majority of those employees.
(b) Informing the help desk technicians that the union-
security provisions of the collective-bargaining agree-
ment with the Employer applies to them.
(c) Applying the collective-bargaining agreement to
the help desk technicians.
(d) Accepting, either directly from the help desk tech-
nicians or by collection from them by the Employer and
remitting to the Union, union-security payments from the
help desk technicians.

25 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(e) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reject and refuse the recognition given the Re-
spondent Union as the exclusive collective-bargaining
representative of the Respondent Employer’s help desk
technicians and continue to decline to represent these
employees unless and until the Union is selected by the
help desk technicians in a Board conducted election.
(b) Rescind and withdraw application of the collective-
bargaining agreement with the Employer to the help desk
technicians unless and until the Union is selected by the
help desk technicians in a Board conducted election.
(c) Jointly and severally with the Respondent Em-
ployer reimburse all help desk technicians for any pay-
ments made under the terms of the union-security clause
of the collective bargaining agreement, with interest.
(d) Preserve and within 14 days of a request, or such
additional time as the regional director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all records, including an
electronic copy of such records if stored in electronic
form, necessary to determine if the terms of this Order
have been complied with.
(e) Within 14 days after service by the Region, post
copies of the attached notice at its Rochester, New York
facilities set forth in the “Appendix B.”26 Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure the notice is not altered,
defaced or covered by other material.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent Union has taken
to comply.
MEMBER LIEBMAN dissenting in part.
I would not cut off the remedy owing to discriminate
Boulware as of the date of the unfair labor practice hear-
ing.
The majority adopts the judge’s finding that discrimi-
natee Boulware engaged in misconduct, which was only
discovered by the Respondent at the hearing, and now
justifies the forfeiture of his right to reinstatement and

26 See fn. 25, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1280
the cutoff of any backpay accrued subsequent to that
discovery. Specifically, the judge found that Boulware
had forwarded a large number of customer records, con-
tained in work e-mails, to his home computer and that
the e-mail forwarding was performed by a feature of the
software provided by the Employer on his work com-
puter, which apparently forwarded all of Boulware’s
work e-mail to his home upon activation.
The Respondent, however, was aware prior to Boul-
ware’s discharge that he had activated this function and
was having difficulty, due to its complexity, in turning it
off. (In fact, a manager assisted Boulware in figuring out
how to turn it off.) Taking into account this information,
the Board unanimously finds in regard to the underlying
allegation concerning Boulware’s discharge, that the
Respondent was in fact aware that he had violated its
Authorized Use Policy (AUP) by this e-mail forwarding
(as well as other conduct). Since the Employer did not in
fact discharge him at the time for this conduct, we con-
clude that the Respondent unlawfully discharged him
because of his activities in support of the Communica-
tions Workers of America (CWA)—and not for any vio-
lation of the AUP, including the e-mail forwarding.
I fail to see how this same conduct can now be charac-
terized as newly discovered or “after acquired” evidence
and justify cutting off his backpay and denying him rein-
statement. See John Cuneo, Inc., 298 NLRB 856 (1990)
(backpay is limited to the date on which the employer
acquired knowledge of the discriminatee’s misconduct).
Indeed, it is the employer’s burden to “establish that the
discriminatee’s conduct would have provided grounds
for termination based on a preexisting lawfully applied
company policy and any ambiguities will be resolved
against the employer.” Id. at fn. 7. I am unpersuaded by
the judge’s and the majority’s reliance on the Employer’s
supposed later discovery of the massive scale of this
forwarding, the inclusion of private customer data within
the e-mails, and its retention on Boulware’s home com-
puter. Under the circumstances described above, it
seems doubtful that the Employer was actually surprised
that a substantial quantity of material including customer
information had been forwarded during the interval that
Boulware had activated the forwarding function and be-
fore he could—with the Employer’s assistance—
deactivate it. Further, during this interval—or after-
wards—the Employer expressed no interest in how
Boulware was disposing of this mass of material. Ac-
cordingly, I find the record evidence to be, at best, incon-
clusive as to the Employer’s lack of knowledge and thus
insufficient to support the cutoff of backpay and the de-
nial of reinstatement to the discriminatee.
APPENDIX A
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 ac-
tivities.
At the heart of the National Labor Relations Act is the
principle that employees may freely select or decline
union representation. When the employees in a job clas-
sification, such as our help desk technicians, are not rep-
resented by a union, it is necessary and appropriate to
first determine that a majority of such employees desire
representation before recognizing a union to represent
them and applying a collective-bargaining agreement
with a union-security clause and union-security payment
obligations to those employees.
After a trial at which we and the Rochester Telephone
Workers Association submitted evidence and argued our
case, the National Labor Relations Board found that we
violated the National Labor Relations Act by recognizing
the Union as the exclusive representative for purposes of
collective bargaining of our help desk technicians.
The Board also found that we violated the Act by ap-
plying our contract with the Union to the help desk tech-
nicians, including the union-security provisions of that
contract, and by informing them they were bound by its
terms.
In addition, the Board found that we violated the Act
by collecting and remitting to the Union, union-security
payments from the help desk technicians.
Finally, the Board found that we violated the Act by
discharging Ronald Boulware because he engaged in
union and other activity that is protected by the Act.
The National Labor Relations Board has required us to
post this notice and to honor the promises we now make
to our employees in it.
Accordingly,
We give our employees the following assurances.
WE WILL NOT grant recognition to the Union as the ex-
clusive collective-bargaining representative of our help
FRONTIER TELEPHONE OF ROCHESTER, INC. 1281
desk technicians, at a time when the Union does not rep-
resent a majority of those employees, and will not so
recognize the Union unless and until the Union is certi-
fied by the Board as their representative.
WE WILL NOT apply our contract with the Union, in-
cluding its union-security provisions, to our help desk
technicians, unless and until the Union is certified by the
Board as their representative.
WE WILL NOT inform our help desk technicians that
our contract with the Union, including its union-security
provisions, applies to them.
WE WILL NOT collect union-security payments from
the help desk technicians and remit those payments to the
Union.
WE WILL NOT discharge employees or in any other
manner discriminate against them with regard to their
hire or tenure of employment, or any term or condition of
employment, because they join and assist any union and
engage in protected concerted activities, and/or to dis-
courage employees from engaging in such activities,
and/or to encourage employees to join or assist any un-
ion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the rights set forth above.
WE WILL withhold and withdraw all recognition of the
Union as the exclusive collective-bargaining representa-
tive of the help desk technicians, unless and until the
Union is certified by the Board as their representative.
WE WILL jointly and severally with the Union make
whole all the help desk technicians for any and all union-
security payments made by those employees pursuant to
a collective-bargaining agreement’s union-security lan-
guage, with interest.
WE WILL, within 14 days from the date of this Order,
make Ronald Boulware whole for any losses he suffered
by reason of the discrimination against him, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Ronald Boulware, and within 3 days thereafter
notify him in writing that we have done so, and that the
discharge will not be used against him in any way.
FRONTIER TELEPHONE OF ROCHESTER, INC.
APPENDIX B
NOTICE TO MEMBERS
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 on your behalf
with your employer
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
At the heart of the National Labor Relations Act is the
principle that employees may freely select or decline
union representation. When the employees in a job clas-
sification, such as the help desk technicians employed by
the Employer, are not represented by a union, it is neces-
sary and appropriate to first determine that a majority of
employees desire representation before recognizing a
union to represent them and applying a collective-
bargaining agreement with a union-security clause and
union-security payment obligations to those employees.
After a trial at which we and the Employer submitted
evidence and argued our case, the National Labor Rela-
tions Board found that the Employer violated the Na-
tional Labor Relations Act by recognizing us, the Roch-
ester Telephone Workers Association, as the exclusive
representative for purposes of collective bargaining of
the help desk technicians.
The Board also found that we violated the Act by ap-
plying our contract with the Employer, to the help desk
technicians, including the union-security provisions of
that contract, and further violated the Act by informing
the technicians that they were bound by its terms.
Finally, the Board found that we violated the Act by
collecting union-security payments both directly from the
help desk technicians and indirectly from the Employer
who had in turn collected the monies from these employ-
ees.
The National Labor Relations Board has required us to
post this notice and to honor the promises we now make
to our members and the help desk technicians.
Accordingly,
We give our members and the help desk technicians
the following assurances.
WE WILL NOT accept recognition from the Employer as
the exclusive collective-bargaining representative of the
Employer’s help desk technicians at a time when we do
not represent a majority of those employees and will not
accept such recognition in the future unless and until we
are certified by the Board as their representative.
WE WILL NOT apply our contract with the Employer,
including its union-security provisions, to the help desk
technicians unless and until we are certified by the Board
as their representative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1282
WE WILL NOT inform the Employer’s help desk techni-
cians that our contract with the Employer, including its
union-security provisions, applies to them.
WE WILL NOT collect union-security payments either
directly from the help desk technicians or indirectly from
the Employer who provides such payments after collect-
ing them from the technicians.
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 withdraw, disclaim and refuse any role as the
exclusive collective-bargaining representative of the help
desk technicians unless and until we are certified by the
Board as their representative.
WE WILL jointly and severally with the Employer make
whole all help desk technicians for any and all union-
security payments made by those employees to the union
directly or indirectly by payment to the Employer pursu-
ant to a collective-bargaining agreement’s union-security
language, with interest.
ROCHESTER TELEPHONE WORKERS ASSOCIATION
Beth Mattimore, Esq. and Nicole Roberts, Esq., for the General
Counsel.
Richard M. Reice, Esq. and Gregory B. Reilly, Esq. (Brown
Raysman Millstein Felder and Steiner LLP), of New York,
New York, for the Respondent Frontier Telephone.
Michael T. Harren, Esq. and Michael A. Sciortino, Esq.
(Chamberlain, D’Amanda, Oppenheimer and Greenfield),
of Rochester, New York, for the Respondent Rochester
Telephone Workers Association.
Mark Gaston Pearce, Esq. and Josie K. Lipsitz, Esq. (Creigh-
ton, Pearce, Johnson, and Giroux), of Buffalo, New York,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. These
consolidated cases were heard before me in Webster and
Parma, New York, on October 21–25, 30, and 31, December
16–20, 2002; February 11, 12, and 14, and March 11–13, 2003,
pursuant to an original charge filed in Case 3–CA–23502 on
February 28, 2002, by the Charging Party, the Communications
Workers of America, AFL–CIO (CWA), against Frontier Tele-
phone of Rochester, Inc.1 (Frontier); on April 3 and 22, and
June 24, 2002, the CWA filed amended charges in this case.

1 In the original charge and subsequent charges, Frontier Telephone
is described as Frontier Communications, and Frontier Communica-
tions, a Subsidiary of Citizens Communications Company. As will be
explained later herein, the Respondent, its different appellations not-
withstanding, will be referred to as Frontier Telephone of Rochester,
Inc. or Frontier.
On March 27, 2002, CWA filed an original charge against
Frontier in Case 2–CA–23535; the CWA filed amended
charges in this case on March 29, April 8 and 19, 2002.
On April 24, 2002, an individual Charging Party, Daryl R.
Albright (Albright), filed an original charge against Frontier in
Case 3–CA–23575 and the Respondent, Rochester Telephone
Workers Association (RTWA), in Case 3–CB–7932; the charge
in Case 3–CA–23575 was amended by Albright on June 24,
2002.
On July 3, 2002, the Regional Director for Region 3 of the
National Labor Relations Board (the Board) issued her Order
consolidating the aforementioned cases for hearing and issued a
consolidated complaint against both Frontier and RTWA with a
notice of hearing originally scheduled for September 9, 2002.
The consolidated complaint alleges that Frontier violated
Section 8(a)(1), (2), and (3) of the National Labor Relations
Act (the Act) on numerous occasions and that RTWA violated
Section 8(b)(1)(A) of the Act.2
On July 12, 2002, Frontier timely filed a responsive answer
essentially denying the commission of any unfair labor prac-
tices. On July 19, 2002, RTWA answered the charges against
it, denying the commission of any violations of the Act and
asserting certain affirmative defenses to the complaint allega-
tions.
At the hearing, the parties were represented by counsel and
were afforded full opportunity to be heard, examine and cross-
examine witnesses, and introduce evidence. On the entire re-
cord, including my observation of the demeanor of the wit-
nesses and after considering the posthearing briefs filed by the
General Counsel, the CWA, Frontier, and RTWA, I make the
following3
FINDINGS OF FACT
I. JURISDICTION—THE BUSINESS OF THE RESPONDENT FRONTIER
Frontier Telephone of Rochester, Inc., a New York corpora-
tion, with offices and places of business in Rochester, New
York, including Rochester facilities located at 1225 Jefferson
Road, and 180 South Clinton Avenue, has been engaged in
providing local exchange telephone services throughout the
Rochester metropolitan area. Frontier annually purchases, and
receives at its Rochester facilities, goods valued in excess of
$50,000 directly from points outside the State of New York.
Frontier admits, and I find and conclude, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.

2 On October 8, 2002, the General Counsel filed a notice of intention
to amend the consolidated complaint and petition for injunction. See
GC Exh. 1(ee). For purposes of the instant matter, the General Counsel
at the hearing sought to add the names of Clifford Edington, human
resource representative, and Gail Noyes, manager of human relations,
to par. VI(a) of the complaint; substitute Gail Noyes and Clifford Ed-
ington for Gregg Wergin in par. VII(f); and substitute Respondent
Frontier for Respondent RTWA in par. XI(a), L. 2. I approved these
amendments during the hearing.
3 Counsel for the General Counsel’s motion to correct transcript,
dated July 2, 2003, is granted.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1283
II. THE LABOR ORGANIZATIONS
A. The Respondent RTWA
It is admitted (by the parties), and I find and conclude, that
Rochester Telephone Workers Association has been a labor
organization within the meaning of Section 2(5) of the Act.
B. The Charging Party CWA
It is admitted, and I find and conclude, that Communication
Workers of America, AFL–CIO has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE APPROPRIATE UNIT FOR COLLECTIVE BARGAINING
The parties admit that the employees, whose occupations are
represented by the wage schedules attached to the current col-
lective-bargaining agreement between Frontier and RTWA,
constitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.4
A. The Nature of the Complaint Allegations
The consolidated complaint at its core owes its genesis to
what may be described a singular event—Frontier’s agreement
to recognize the RTWA as the exclusive collective-bargaining
representative of its Internet help-desk technicians as an accre-
tion to the existing RTWA bargaining unit on February 26,
2002. The charges brought by the Charging Parties here—
CWA and an individual, Daryl Albright, one of the help-desk
technicians—stem from this recognition. So to a significant
extent and degree, this allegedly unlawful accretion, as opposed
to the other instances of alleged illegal conduct by either or
both Frontier and RTWA, forms the matrix or an epicenter of
sorts for this litigation.
Accordingly, Frontier is charged with rendering unlawful as-
sistance and support to the RTWA by acceding to its demand
for recognition of the help-desk employees and entering into a
memorandum agreement incorporating, applying, and enforcing
generally the terms of the existing collective-bargaining agree-

4 The collective-bargaining agreement in question is contained in GC
Exh. 2. This agreement, with an effective term of January 26, 2000,
through February 28, 2003, includes the following occupations or job
classifications along with their wages schedules (omitted):
Group Coordinator Draftsman
Senior Draftsman Service Assistant
Consumer Affairs Representative Communications Center
Coordinator
Observer Commercial Service Observer
Unirep Composite Machine Operator
Credit/Collection Coordinator Special Clerk
Special Account Representative Senior Operator
Coin Box Collector Office Clerk
Systems Engineering Coordinator Operator
Systems Support Administrator General Clerk
Media Operator II Clerical Assistant
Representative Traffic Administrator
Directory Listing Coordinator
It should be noted that the Respondent Frontier denies the appropri-
ateness of this unit to the extent that occupation/classification Internet
help-desk employees employed at its Jefferson Road facility is not
included. Of course, this matter is a material issue in this litigation.
ment to these employees. RTWA, obversely, is charged with
unlawfully receiving assistance and support from Frontier by
accepting the recognition when it allegedly did not represent an
uncoerced majority of the help-desk technicians; entering into
the memorandum agreement; and accepting dues and/agency
fees deducted from help-desk employees’ wages pursuant to the
accretion in violation of Section 8(b)(1)A of the Act.
Frontier is also charged with a number of 8(a)(1) violations
stemming from certain statements and actions allegedly made
and done by its agents and supervisors prior to and after the
accretion. Additionally, Frontier is charged with two violations
of Section 8(a)(3) of the Act by dint of its having discharged
two employees (postaccretion) essentially because they joined
or otherwise assisted the CWA’s efforts to organize the Internet
help-desk workers.
Thus, as will become clearer, this case boiled to the essence
is about a competition between two unions to represent a select
group of employees at the Respondent’s Jefferson Road facility
or, as it will often be referred to hereafter, the call center.
B. Historical Background5
1. Frontier Telephone of Rochester, Inc.
The Respondent Frontier, since at least 1980, was called
Rochester Telephone Company and its principal business was
providing basic telephone (voice) service to business and resi-
dential customers in Rochester and its surrounding communi-
ties. As such, Frontier was what is described in industry par-
lance as an LEC or local exchange company. Rochester Tele-
phone was a separate corporate entity, not a subsidiary of any
company. Sometime in 1994, by virtue of Frontier’s purchase
of the local telephone network, Rochester Telephone became
Frontier Telephone. During 1999–2000, another telecommuni-
cations company, Global Crossing, purchased Frontier. In June
2001, Global Crossing sold certain of Frontier’s corporate as-
sets, in particular the LEC component, to Citizens Communica-
tions Company (Citizens); however, Global Crossing retained
ownership of Frontier’s long-distance telephone network.
Thus, as of June 2001, Citizens owned (the Frontier) local tele-
phone service as well as associated networks and thereby pro-
vided the local dial tone for its residential and business custom-
ers. As part of this acquisition, Citizens also became owner of
Frontier’s Jefferson Road call center, which figures promi-
nently in this litigation.
Citizens operates nationally on a regional basis. Prior to its
June 2001 acquisition of Frontier, Citizens’ business was con-
centrated in the Western part of the United States with some
presence in the Midwest. With the acquisition of Frontier,
which had a large presence on the East Coast, Citizens provided
a nationwide telecommunication service. Presently, Citizens is
divided into the West Coast, Central, East Coast, and Rochester
regions. Citizens maintains six centers located in Rochester,

5 This part of the decision will relate matters that are not seriously or
at all disputed by the parties. I have considered pertinent testimony, the
pleadings of the parties, and have drawn reasonable inferences there-
from in setting out this history. To the extent these findings are incon-
sistent with other evidence of record, I have discredited any such con-
trary or inconsistent evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1284
Gloversville, and Monroe, New York; Kingman, Arizona;
Burnsville, Minnesota; and Sacramento, California. Thus, as a
consequence of the June 2001 acquisition of the Frontier local
telephone exchange, Citizen/Frontier now provides a fairly
sizeable amount of local telecommunications service nation-
wide.
2. Union representation at Frontier; the Jefferson Road
call center
Both the RTWA and CWA have represented Frontier’s em-
ployees for nearly 30 years. RTWA traditionally has repre-
sented what may be described as the “inside” employees, work-
ers performing clerical, technical, sales, billing collection, op-
erator services, and similar tasks at the call centers or other
facilities. CWA, on the other hand, has traditionally repre-
sented employees performing “outside” occupations and job
functions, such as linemen, plant engineering, construction, and
installation of telephone lines and equipment.6 During the
times material to the instant litigation, RTWA represented
about 750 clerical and technical employees at five Frontier call
center sites, including those at the Jefferson Road call center.
Prior to February 26, 2002, RTWA represented about 150 of
the 350 employees working at Jefferson Road. CWAs repre-
sented employees are not physically located at the Jefferson
Road call center but are called in to install or service telephone
equipment or lines.
3. The Frontier Internet help-desk function; and its installation
at the Jefferson Road call center
With the advent of the Internet or the worldwide web, many
telecommunications companies witnessed a sea change in their
traditional role as pots (plain old telephone companies) provid-
ing local and long-distance services to their customers. Many
companies like Frontier responded to the new communications
modality by introducing Internet services to their residential
and business customers. In the early 1990s, Frontier had no
Internet product. However in 1994–1995, responding to the
popularity of the Internet and, of course, having existing line
capability to deliver the service, Frontier began providing dial-
up Internet service to its customer base. Over time as the Inter-
net’s popularity grew and the technology to access the Internet
developed, Frontier expanded its Internet product beyond the
slower dial-up service and included high-speed digital sub-
scriber line (DSL) service.7
As one would expect with a new and sophisticated telecom-
munications system, customers may and do experience prob-
lems getting the Internet services to work for them. Frontier

6 Respondents Frontier and RTWA have introduced inside/outside
appellations to the discussion. They are not formal descriptions and, in
my view, are simply useful to give some flavor to the types of employ-
ees the RTWA and CWA have historically represented. By no means
have I considered these shorthand designations dispositive of the issues
herein.
7 Frontier dial-up Internet services are available to businesses and
residential subscribers. The dial-up service uses the same access lines
relied upon to provide customers with a dial tone. The DSL Internet
customers are provided the service by means of a separate high-speed
telecommunications line to the customer’s home or place of business.
Notably, DSL service was not introduced by Frontier until early 2000.
responded to this essentiality by establishing in 1994–1995 an
Internet help team at its 180 South Clinton Street call center.
Customer service was provided by what the Company called
the Internet team. The team was comprised of RTWA repre-
sented consultants whose duties and responsibilities included
selling and providing customer (including technical) support
and services with respect to the high-speed Internet access from
Internet providers (IP), such as America On Line (AOL).8 For
example, if a customer was faced with an Internet installation
problem with the installation discs provided by Frontier, the
Internet team member would walk him/her through the program
to accomplish the Internet connection.
During the early years, the Internet team performed primarily
a customer sales and support service for Frontier’s nascent
Internet product; however, they also performed telephone-
related customer services.9
The Internet team was in existence for about a year, perhaps
longer. Around 1996, however, Frontier sought to transform
the Internet team into the Internet help desk (IHD), which was
to be staffed with consultants hired from outside sources as
well as from within Frontier’s work force. The new IHD posi-
tion requirements were changed by Frontier to mandate not
only more technical knowledge, computer language, external
computer systems, and Internet applications, but also additional
training to meet the demands of Frontier’s new upgraded Inter-
net service, “Frontier net.” Frontier decided that the new team
would not perform any telephone sales and service work but
only answer technical service questions about the installation
and use of Frontier net.10 The IHD representatives were to be
designated help-desk technicians and would not be part of the
RTWA bargaining unit. They were to be considered part of a
lower level group of managers called “individual contributors”
because Frontier’s management viewed the Internet product as
part of its information technology (IT) function. 11 Historically,
employees serving in IT were not represented by any collec-
tive-bargaining representative.

8 The team was officially called to the Internet/ISDN team, recruited
from, and comprised of 13 RTWA residential and business office rep-
resentatives. As members of the Internet team, they were described as
“service consultants.” Notably, these workers were either trained in-
house by Frontier management or by outside consultants.
9 The Internet team members spent about 90 percent of their time do-
ing Internet sales and support and about 10 percent doing regular tele-
phone-related work. (See GC Exh. 5.)
10 Frontier’s management determined that having Internet help-desk
technicians perform telephone sales and service functions was prob-
lematic in that Internet-related calls often took longer to handle than the
Public Service Commission mandated 20 second call/answer time. By
the same token, Frontier’s Internet product was not PSC regulated.
Accordingly, this rationale was a prime ingredient in the Company’s
decision to transform the Internet service operations and eliminate the
telephone sales and service component therefrom.
11 Frontier considers certain employees to be individual contributors
and part of its management team. They are not part of any bargaining
unit. According to Frontier’s system, individual contributors have no
supervisory authority; that is, they have no hire/fire authority, do no
scheduling, have no policymaking authority, and cannot direct or trans-
fer employees; they report to a manager.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1285
Frontier established the new IHD sometime in 1996 and ef-
fectively disbanded the old Internet team whose original 13
members were absorbed in other jobs in the call center at South
Clinton Avenue.12
The new IHD technician jobs were posted within the Com-
pany as well as with outside sources. The RTWA-represented
members of the old Internet team, along with any other RTWA-
represented employees, were entitled to bid on the new tech
jobs. In the end, none of the former Internet team members
transferred into the new IHD, although around four other call
center representatives applied for and were accepted as help-
desk technicians. By 1997, the IHD employed about 20–30
individual contributor technicians who, in the main, were hired
from outside sources.13 The new IHD originally supported only
the Rochester area Internet customers but, over time, took on
the Internet support of Frontier’s other regions.
Sometime between 1997 and 1999, as the popularity of and
resulting demand for Internet access grew, Frontier purchased a
company, Global Center located in Phoenix, Arizona. Global
Center’s primary business was providing Internet products and
support. Global Center actually operated an Internet call center
in Phoenix. Consequently, Frontier’s management decided to
take advantage of Global Center’s competencies and moved the
IHD function to Phoenix in 1999, disbanding the Rochester
based IHD.14 Rochester IHD technicians were offered reloca-
tion packages to Phoenix, but few, if any, accepted and were
absorbed in other jobs at Frontier. The new Phoenix-based
IHD techs also were not represented by any union.
As noted earlier, Global Crossing had purchased Frontier
and, more particularly, the Phoenix IHD function. Global
Crossing then sold certain of Frontier’s assets to Citizens
Communication. However, Global Crossing did not include the
Phoenix IHD operation in the sale, leaving Frontier/Citizens
with an Internet product but no help-desk operation to service
it. Notably, by May 9, 2000, Frontier had opened the Jefferson
Road call center. Ultimately, Frontier’s management deter-
mined that the IHD function should be centralized in Rochester
and, in November 2000, Frontier began hiring for help-desk
positions at the Jefferson Road facility; by December 2000, the
Jefferson Road IHD became operational.

12 The IHD moved to several locations in Rochester over a period of
years. In 1997 (98), the IHD moved from South Clinton Avenue to
West Henrietta Road; then, from West Henrietta Road to Plymouth
Avenue; and, then, ultimately back to South Clinton.
13 According to RTWA president, Rodgers, as part of the quid pro
quo for removing the help-desk functions from the RTWA bargaining
unit, RTWA unit members were allowed to bid on the current and
future IHD positions and several job titles in the bargaining unit were
upgraded in pay. However, there was no written memorialization of
this agreement.
14 It should be noted that the term of then current collective-
bargaining agreement between RTWA and Frontier was 1997 through
August 2000. Negotiations for the current contract began in November
1999. The current contract, to be discussed later herein, commenced on
January 26, 2000, and expired on March 5, 2003. By the time the new
contract was negotiated, the IHD had been transferred to Phoenix.
Consequently, the IHD (and the Internet team) jobs were no longer in
existence and, therefore, were not subject to any negotiations between
RTWA and Frontier.
4. Frontier’s recognition of the RTWA as the collective-
bargaining representative of the IHD technicians
On January 26, 2000, RTWA and Frontier entered into a col-
lective-bargaining agreement15 wherein, inter alia, Frontier
recognized the RTWA as the exclusive representative of the
unit employees for collective-bargaining purposes.
On February 26, 2002, based on a written demand16 by the
RTWA on February 15, 2002, Frontier agreed to include the
IHD function in the existing RTWA-Frontier labor agreement
and to recognize RTWA as the exclusive bargaining agent for
the functions performed by the IHD.
On March 13, 2002, RTWA and Frontier entered into a
memorandum of agreement which, inter alia, formalized the
February 26 agreement, identified, and clarified the coverage
and application of a number of the provisions of the existing
collective-bargaining agreement. The memorandum agreement
essentially brought the IHD employees in various help-desk
technician job classifications under the existing collective-
bargaining agreement.17 As a result of the agreement, about
120 Internet technicians were included and “accreted” within
the RTWA’s existing 750-employee unit.
C. The Accretion Issue: The Applicable Legal Principles
The complaint, as noted, basically charges RTWA and Fron-
tier with violations of the Act by recognizing the Union and
agreeing to accrete or add the IHD function and the associated
help-desk technicians to the existing bargaining unit covered by
their collective-bargaining agreement. The complaint charges
the Respondents with incorporating, applying, and enforcing
the allegedly unlawful accretion to and against the Internet
help-desk technicians when RTWA did not represent an unco-
erced majority of these employees. The Respondents both
contend that the accretion was appropriate and lawful.
It would be helpful in my view to discuss applicable accre-
tion principles under Board (and circuit court) decisions before
examining the parties’ respective positions.
Under the Act (in Section 9(a)), generally a union must be
“designated or selected for purposes of collective bargaining by
the majority of the employees in a unit appropriate for such
purposes.” The accretion doctrine is an exception to this statu-
tory requirement.
The accretion doctrine ordinarily applies to new employees
who have common interests with members of an existing bar-
gaining unit and who would have been included in the certified

15 The entire agreement is contained in GC Exh. 2. This agreement,
as noted, expired on March 5, 2003.
16 The demand letter, supposedly sent by RTWA President Maria
Rodgers on February 15, 2000, was not produced at the hearing. Rod-
gers indicated in an affidavit she submitted to the Board agent investi-
gating the charges that she sent this letter to Frontier. (See GC Exh. 5.)
Frontier’s vice president of operations at Jefferson Road, Angela Chris-
tian, testified that Rodgers told her days before that the demand letter
was going to be sent to the Company. According to Christian, she was
informed of the letter demand by Frontier's vice president of labor
relations, Michael Wieborzyski, that he had received the letter from
Rodgers. I have credited Rodgers and Christian regarding the existence
of the letter, its sending, and receipt prior to February 26, 2002.
17 The memorandum of agreement is contained in GC Exh. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1286
unit or are covered by a current collective-bargaining agree-
ment. Renaissance Center Partnership, 239 NLRB 1247
(1979), cited with approval in King Radio Corp., 257 NLRB
521 (1981).
Thus, the additional employees are then absorbed into the
existing unit without first having an election and are governed
by the unit’s choice of bargaining representative. Consolidated
Papers, Inc. v. NLRB, 670 F.2d 754 (7th Cir. 1982).
The Board follows a restrictive policy in determining
whether an accretion has occurred because the accreted em-
ployees are not able to decide for themselves whether to be
represented by a labor organization, and the Board seeks to
insure that the employer’s rights in this regard are not improp-
erly foreclosed. Towne Ford Sales, 270 NLRB 311 (1984),
affd. sub nom. Machinists District Lodge 190 v. NLRB, 759
F.2d 1477 (9th Cir. 1985).
Accretion promotes the policy of industrial stability by al-
lowing adjustment in bargaining units to conform to new indus-
trial conditions without requiring an adversary election every
time new jobs are created or other alterations in industrial rou-
tine are made. However, accretion can preclude self-
determination and therefore should be narrowly applied to
situations where the smaller group has lost its separate inde-
pendent identity. Local 144 (Brooklyn Hospital Center) v.
NLRB, 9 F.3d 218 (2d Cir. 1993).
Accordingly, the Board will find a valid accretion “only
when the additional employees have little or no separate group
identity, and thus cannot be considered to be a separate appro-
priate unit, and when the additional employees share an over-
whelming community of interests with the preexisting unit to
which they are accreted. Safeway Stores, 256 NLRB 918
(1981).
Said another way, where the two groups of employees can be
classified appropriately into separate viable bargaining units, an
accretion is not permitted. Factors considered by the Board in
determining whether employees should be accreted into an
existing bargaining unit without an election include the follow-
ing: (1) geographic proximity, similarity of skills and func-
tions, similarity of conditions of employment, centralization of
the employer's administration, managerial and supervisory
control, interchange between the employees, functional integra-
tion of the employer, and bargaining history, Stevens Ford, 773
F.2d 468, 473 (2d Cir. 1985); (2) size of the group to be ac-
creted relative to the size of the existing unit, id.; (3) whether
the group to be accreted was in existence at the time the exist-
ing bargaining unit was recognized, id. at 474; (4) whether the
existing group is the result of prior accretions, id; (5) views of
the employees to be accreted, id; and (6) an independent deter-
mination “whether the group of employees to be accreted con-
stitutes an appropriate unit.” Id. at 473. If the group to be ac-
creted does not constitute its own appropriate unit, then the
employees should be accreted so long as the accretion does not
cast into doubt the majority status of the bargaining representa-
tive. Id. Where the group does constitute a separate bargaining
unit, the employees of that unit have a right to choose whether
or not they wish to elect a different bargaining representative or
no representative.
It should be noted that the Board and the Courts have given
certain factors more weight than others. For instance, the size
of the group to be accreted relative to the size of the existing
unit is considered of crucial importance because the larger the
size of the accreted group, the more doubt there is or may be as
to the wishes of the employees in the enlarged unit. Universal
Security Instruments, Inc. v. NLRB, 649 F.2d 247, 255 (4th Cir.
1981), cert. denied 454 U.S. 965 (1981). Another factor often
dispositive of the issue is whether the group to be accreted was
in existence at the time the existing bargaining unit was recog-
nized. If the group was in existence and excluded from an elec-
tion, then an accretion should normally not be permitted. La-
conia Shoe Co., 215 NLRB 573, 576 (1974); Caesars Palace,
Inc., 209 NLRB 950 (1974); King Radio Corp., 257 NLRB 521
(1981).
Another factor given seemingly more weight than others is
the degree of interchange of employees between the employees
of the existing unit and the accreted employees. Mac Towing,
Inc., 262 NLRB 1331 (1982). Moreover, the Board will accord
no weight to a claim that interchange is feasible when in fact
there has been no actual interchange of employees. Combus-
tion Engineering, 195 NLRB 909 (1972).
The Board also assigns significant importance to the day-to-
day supervision of employees, that is whether the day-to-day
supervision of employees is the same in the group sought to be
accreted. Save-It Discount Foods, 263 NLRB 689 (1982);
Weatherite Co., 261 NLRB 667 (1982). This element takes on
added significance since daily problems and concerns on the
job among one group of employees may not necessarily be
shared by another group of accreted employees. Renzetti’s
Market, 238 NLRB 174 (1978). However, on balance, the
Board in at least a recent case has emphasized that employee
interchange and common day-to-day supervision are the two
most important factors. Archer Daniels Midland Co., 333
NLRB 673, 675 (2001).18
In addition to its factor analysis approach, the Board will be
sensitive to any evidence of what it perceives to be a conscious
manipulation of the accretion factor by unions or employers to
justify the accretion. Safeway Stores, supra.
The Board has long held that in public utility industries a
systemwide unit is optimal. New England Telephone & Tele-
graph Co., 280 NLRB 162 (1986); New England Telephone &
Telegraph Co., 90 NLRB 639 (1950); TRT Telecommunications
Corp., 230 NLRB 139 (1977). See also Baltimore Gas & Elec-
tric Co., 206 NLRB 199 (1973); Gulf States Telephone Co.,
118 NLRB 1039 (1957). In Baltimore Gas & Electric, the
Board stated:19
That judgment has plainly been impelled by the economic re-
ality that the public utility industry is characterized by a high
degree of interdependence of its various segments and that the
public has an immediate and direct interest in the maintenance
of the essential services that this industry alone can adequately
provide. The Board has therefore been reluctant to fragmen-
tize a utility’s operations. It has done so only when there was

18 Citing Towne Ford Sales, 270 NLRB 311 (1984); New England
Telephone & Telegraph Co., 280 NLRB 162 (1986).
19 206 NLRB at 201.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1287
compelling evidence that collective bargaining in a unit less
than system-wide in scope was a “feasible undertaking” and
there was no opposing bargaining history.
On balance then, the test for a valid accretion can be stated as
follows:
Whether a community of interests exists between the employ-
ees of each of the separate [occupations] and the existing bar-
gaining unit or whether the employees had a separate group
identity sufficient to be considered a separate bargaining unit.
Sara Lee Bakery Group v. NLRB, 296 F.2d 292 (4th Cir.
2002).
Notably, the Board also rejects accretion unless two prereq-
uisites have been satisfied: (1) the Board must find that the
new employees have an insufficient group identity to function
as a separate unit; and (2) it must find an “overwhelming com-
munity of interest,” such that the accreted employees have in-
terests [that] are so closely aligned with those of the preexisting
bargaining unit that the Board can safely assume that the ac-
creted employees would opt into the unit if given the opportu-
nity. Baltimore Sun Co. v. NLRB, 257 F.3d 419, 426–427 (4th
Cir. 2001).
Thus, the Board employs a balancing test to determine
whether a smaller group of employees share an overwhelming
community of interest with the preexisting unit of employees so
as to warrant their joinder. The factors identified above are
utilized to arrive at this conclusion.
D. Contentions of the Parties
As an initial preliminary matter, as noted previously herein,
Frontier’s RTWA-represented employees are organized into a
number of job classifications. For purposes of the accretion
issue here, the dispute revolves around the addition of the
Internet help-desk technicians (techs) into the existing bargain-
ing unit by virtue of the Frontier and RTWA agreement and
whether the techs shared a community of interest (with no sepa-
rate identity) with other customer service representatives
(CSRs) in the bargaining unit.20 Accordingly, the discussion to
follow the parties’ respective positions on the validity of the
accretion will treat only with techs vis a vis the CSRs, and not
the other job classifications covered by the collective-
bargaining agreement between Frontier and RTWA.
Furthermore, it should be noted that the techs and the CSRs’
share a single building at Jefferson Road. The building itself
was at one time a retail establishment in a strip mall. Frontier
leases this 50–55 thousand square-foot facility which was con-
verted by the lessor to Frontier’s call center requirements.

20 Frontier calls its customer service representatives “consultants.”
Customer service employees are divided administratively and opera-
tionally into three groups—the residential accounts office employees
(RAO); the business accounts office employees (BAO), and the save
team. The particular functions of these employees will be discussed
later in this decision. It should be noted that actually there are two
“Save Teams” at the Jefferson Road call center. One save team works
with customers to avoid cancellation of service, and the IHD save team
works with Internet customers who have special service Internet-related
problems
Anticipating a need to expand the operation there, Frontier,
at the time it acquired the site, also secured a right of first re-
fusal to lease adjacent space in the same building. The adjacent
space originally was used as a health club and was separated
from the larger building by a fire wall.
Frontier’s plan was to use this additional space to house the
call center’s Internet operations, which were ultimately situated
in the health club space. On this point at the hearing, Frontier
adduced a building schematic and explanatory testimony from
Angela Christian, vice president of the Jefferson Road call
center and operator services.21 The schematic and the testi-
mony of Christian show certain essential characteristics and
accouterments of the Jefferson Road site. The call center has a
primary entrance that is used by the majority of the center em-
ployees who gain access with an identification/security badge.
All employees, irrespective of where they work in the facility,
use this badge to access the building. The majority of Fron-
tier’s employees, including the techs, use this primary entrance;
other entrances of the building are used by employees at their
discretion. Frontier does not require employees to use one
entrance or the other, nor are there company rules restricting
their using any particular entrance.
The Jefferson Road center has several conference and train-
ing rooms (located in a central portion of the building), which
are available to and used by any call center working groups,
including the IHD, RAO, and BAO groups. The center has a
common cafeteria which may be used by all employees during
its hours of operation—7:30 a.m. to 2 p.m.; there are also ven-
deterias or snack room facilities for all employees.22 Call cen-
ter bathrooms are available to all employees without restriction.
However, as with the employee entrances, many employees use
restroom facilities that are most conveniently located. The
center has one supply room from which various and sundry
office supplies are dispensed to all employees working at the
center.
The BAO group of employees is divided into three separate
BAO groups located on the left side of the main entrance to the
building towards the front; the RAO group is on the same side
but toward the back part of the building. The IHD techs are
located on the right-hand side of the primary entrance. The
area utilized by the techs is separated by a fire wall so that
some techs are on one side of the area; others are on the other
side. There is a doorway connecting the two areas, and there is

21 The schematic is contained in R. Exh. 13; it reflects the call cen-
ter’s layout during February 2002. Christian was a highly credible
witness in my view. First, she has been working for Frontier (originally
as a Rochester Telephone Company worker) for many years; she
worked her way through the ranks, starting as a repair clerk and CSR in
1980 and was promoted to her current position in 2001. She presented
as a very knowledgeable and competent historian of the call center.
She was consistent in her testimony and testified in a matter-of-fact and
businesslike way. Her testimony was in the main unrebutted, especially
in the area of call center history, layout, and operation.
22 Frontier’s normal business hours are 7 a.m. to 6 p.m.; the help
desk, however, is a 24-hour/7-day per week operation. Accordingly,
techs who work in the evening and early morning shifts do not have
access to the company cafeteria and use the vendeteria and snack rooms
for their breaks. RAO/BAO workers generally work only the normal 7
a.m.–6 p.m. shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1288
a common entrance to the area from the parking lot.23 The save
team is located in a rearward area adjacent to the RAO group.
The RAO, BAO, and IHD employees all work at cubicle-like
workstations with low walls and similar dimensions in their
respective work areas.
All in all, the Jefferson Road call center has common en-
trances, conference and training rooms, cafeterias, breakroom,
bathrooms, and supply rooms, all of which call center employ-
ees are at liberty to use without restriction.
In my view, the call center is a common facility which the
IHD techs share with the RTWA-represented employees and,
more particularly, the CSRs.
It is also noteworthy as a preliminary matter that the parties
are not in disagreement that many of the alleged unfair labor
practices here turn on the legality of the accretion of the Inter-
net techs to the preexisting RTWA bargaining unit. Specifi-
cally, if the accretion is deemed valid, then Frontier cannot be
found in violation of Section 8(a)(2) and (1) of the Act by rec-
ognizing the RTWA as the exclusive bargaining representative
of the techs; nor could the RTWA be in violation of Section
8(b)(1)(A) by accepting that recognition. Fountain Care Cen-
ter, 317 NLRB 1286 (1995). By the same token, Frontier, in
such a case, cannot be deemed to have violated Section 8(a)(3)
and (1) by executing and maintaining the pertinent collective-
bargaining agreement (the memorandum agreement)—not oth-
erwise alleged to be illegal—which requires the techs, as a
condition of their employment, to pay to RTWA periodic union
dues; RTWA would not, in turn, have violated the Act (Section
8(b)(1)(A)) by agreeing to apply the collective-bargaining
agreement to the techs. Hi Temp, Inc., 203 NLRB 753 (1973),
enfd. 503 F.2d 583 (7th Cir. 1974).
We turn to the contentions of the parties regarding the issue
of whether the accretion of the techs was lawful. Consistent
with the factors utilized by the Board in resolving the issue, the
parties have asserted that the accretion was either lawful or
unlawful based on each party’s application of the pertinent
factors. Therefore, each factor, as identified and discussed by
the parties here, will be discussed. My findings and conclu-
sions will follow based on the evidence of record.
1. Employee interchange
The General Counsel contends that the Respondents have of-
fered, in her words, absolutely no evidence of employee inter-
change and further submits that the techs and CSRs have such
fundamental differences in their skills and functions that pre-
clude each from filling in for the other.24

23 The techs, as noted earlier, are located in the formerly separate
health club building, which has its own entrance. Many techs use this
entrance out of personal convenience. The fire wall in question was
part of the original structure and use of the two buildings and had to be
retained by Frontier to satisfy local building codes.
24 Interchange generally connotes accreted and existing bargaining
unit employees filling in for each other, or being capable of filling in
for each other, or having regular contact between the groups (emphasis
added). Notably, the CWA concedes that there is slight interchange
between the CSRs and the techs. Towne Ford Sales, 270 NLRB 311,
312 (1984). Safeway Stores, Inc., 256 NLRB 918, 929 (1981).
The Respondents, Frontier and RTWA, counter that the
RTWA-represented employees have multiple contacts with the
techs throughout the typical business day. Frontier submits that
IHD coaches provide training to both techs and residential and
business office CSRs; its IHD manager and CSR manager fill
in for one another; its escalation coaches fill in for both tech
and CSR problematic situations; moreover, that CSRs, over
time, have migrated over to tech positions.
The Evidence
The parties presented a substantial number of employee wit-
nesses, i.e., CSRs, techs, and managers, to establish their re-
spective positions on the relevant accretion factors. Essentially,
the witnesses testified about what their job duties and responsi-
bilities entailed. The credible evidence gleaned from this tes-
timony discloses the following regarding the employee inter-
change factor associated with accretion.
CSRs—RAO and BAO—employees specifically provide
support for inbound calls from residential and business cus-
tomer calls to establish initial service, move service, and an-
swer questions regarding services or their telephone bills. CSR
employees handle calls from customers to set up Internet ser-
vice accounts—dial-up and DSL; they ensure that databases are
correct; they obtain certain information from the customer, e.g.,
what type of computer he has, the computer’s memory capac-
ity, and specific information about the customer’s account. The
CSR then enters information into the Company’s billing system
and other databases. The CSR assigns telephone numbers and
user names and, in general, gets the customer on board for
regular telephone service and Internet service.
The help-desk employees have as their primary responsibil-
ity receiving inbound calls from business and residential cus-
tomers from all of Frontier’s nationwide call centers and resolv-
ing their problems about and with the Company’s Internet
products.
The save team employees are, as the name suggests, respon-
sible for saving or maintaining customer accounts that are in
danger of being lost because of the customer’s dissatisfaction
with the service she is receiving. The save team has at its dis-
posal certain marketing tools to preserve those accounts such as
discounted rates coupled with continued service commitments.
The save team is administratively located within the RAO and
consists of about 12 RTWA-represented employees.
The CSRs, help-desk techs, and the save team employees
have a functional interrelationship or interdependence, which is
best illustrated by the following scenario.25
A customer with established Internet or DSL service calls the
RAO (or BAO) with a complaint or problem with the estab-
lished service or even a question about his account. The CSR
attempts to resolve the problem by employing certain trouble-
shooting queries, e.g., personal computer type, software type,
memory capacity, and talking the customer through the process.
The CSR may, through the process, resolve the customer’s
issues. However, if the CSR is not successful because, for
instance, the customer’s problems center on computer/Internet

25 These scenarios were provided by the various management and
employee witnesses by way of examples of how each performed his/her
job and how business is conducted generally at the call center.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1289
technicalities, the customer is then transferred to the IHD.
CSRs, as noted earlier herein, under New York PSC rules must
answer 85 percent of all inbound calls within 20 seconds. Ac-
cordingly, while dealing with the customer issues, the CSR
consults a display called a Simon Board which is available in
all customer service departments to determine how many cus-
tomers are waiting online (queue) and if the CSR is spending
too much time with the customer, he is transferred to another
department for resolution of the issue.
However, as in the usual case, where the CSR cannot resolve
an Internet-related problem, the customer is transferred “warm”
to the IHD. The IHD tech then attempts to resolve the cus-
tomer’s problem. In the course of resolving the problem, the
tech may suggest to the customer that one of the Company’s
other services may be advisable and helpful for better utiliza-
tion of the Internet product the customer is using. In this in-
stance, the tech may then make a warm transfer back to the
CSR to establish the additional service.
In the event the customer is not satisfied with the tech’s ef-
forts to resolve the problem and appears adamant about cancel-
ing the service, the tech will then transfer the customer to the
save team CSR who will attempt to mollify the customer to
retain the business. The save team representative may in turn
bring the IHD tech on the line to help the customer and salvage
the account.
Then there is the scenario wherein the IHD is initially called
through the IHD’s direct telephone number by a customer seek-
ing technical Internet assistance. The customer may have ques-
tions relating to his account—nonpayment, billing mistakes,
upgrade of service. In such a case, the IHD tech will transfer
such queries to the RAO/BAO consultants.
Regarding training of the CSRs and IHD techs, such training
has occurred in groups or “classes” comprised of both groups
of employees, especially for joint training on the Company’s
Internet products.
CSRs and IHD techs have only occasional face-to-face con-
tact or interaction. Both groups of employees are assigned
nearly identical work cubicles in specific areas of the call cen-
ter facility and as a general proposition perform their job func-
tions on individual or personal computers and by telephone;
CSRs and IHD techs use headsets and take inbound calls.
However, CSRs and IHD techs do not work in isolation from
each other. First, all center employees are free to use and do
use, at their discretion and convenience, all employee parking
lots and entrances irrespective of their particular assigned place
in the facility; they are also free to use any of the employee
bathrooms. Center employees may use a common employee
cafeteria and vending area26 and have access to the center con-
ference room. Center employees also frequent a nearby
bar/restaurant.27 While there is a “fire wall” separating the IHD

26 The employee cafeteria is open for only a limited period during
the workday—7 a.m. to 2 p.m. Employees who work late afternoon
and midnight shift do not have access to the cafeteria. However, the
vendeteria is open and accessible during those irregular shifts.
27 This bar is known as Tully’s and is located very close to the call
center. It seems to serve as a social outlet for the center employees and
a place to celebrate employee special events such as going-away par-
ties.
from the RAO/BAO, this wall is simply part of the preexisting
part of the architecture of the facility and does not operate to
segregate in any meaningful way the IHD employees from the
CSRs; employees may freely (without a key) enter and exit the
area through a doorway.
CSRs and IHD techs also utilize in a coordinated way the
Company’s Simon Boards to keep tabs on customers calling
into the call center. The information contained on these real
time displays alert the CSRs and techs to the amount of time
customers have been in the service queue. In the event there
appears to be a long wait for Internet service, the CSRs will not
transfer a call to the help-desk techs.
CSRs and IHD techs receive overlapping training to do their
respective jobs. CSRs receive about 8 weeks of training and
techs receive around 2 weeks. CSRs and techs have been
trained together on occasion, especially regarding Frontier’s
Internet product.28
CSRs and IHD techs have never filled in for each other; but
there have been a number of transfers of CSR employees (six)
to the IHD tech position;29 there have been no transfers of techs
to CSR positions.
2. Common supervision
The General Counsel (and the CWA) contends that although
the IHD techs and CSRs answer to a common upper manage-
ment, there is no common management or supervision at the
lower level supervisory level; that different supervisors super-
vise the CSRs and the techs on a day-to-day basis. The General
Counsel asserts that under Frontier’s management plan, the
IHD techs are separately interviewed, hired, evaluated, pro-
moted, and disciplined by direct supervisors who deal with
problems and concerns unique to them. She argues that accre-
tion of the techs under this evaluative criterion is inappropriate.
Frontier and RTWA essentially contend that the CSRs and
IHD techs share not only common management but also cen-
tralized and local management in the call center, with one cen-
tral manager acting as a single monolithic supervisory entity for
the entire call center, namely Angela Christian. Frontier con-
cedes that Christian’s subordinates handle the day-to-day ad-
ministration of the pertinent departments—BAO, RAO, and the
IHD—but that all of these managers report to her. Christian is
directly involved in promotions, wage increases, employee
discipline, labor relations, and collective bargaining in the call
center. The Respondents submit that placing the techs in a dif-
ferent bargaining unit with a separate bargaining unit would be
unworkable. On the other hand, the Respondents submit that
the centralized managerial and operational system at the call
center augurs well for the decision to accrete the IHD techs into
the existing bargaining unit and should be validated.

28 IHD coach Londa Jericho (called by Respondent Frontier) and
former IHD tech Kitty Maier (called by the General Counsel) testified
credibly about their providing joint training of CSRs and IHD techs on
the Internet products offered by Frontier.
29 See GC Exh. 36, which shows that between December 4, 2000,
and March 18, 2002, six CSR employees transferred from RAO to the
IHD.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1290
The Evidence
Ultimate management authority at the Jefferson Road care
center resides in Angela Christian (see Respondent Frontier
Exh. 12) who serves as vice president of customer care at the
call center. Below and directly reporting to her are Mike
Canova, the director of technology and reporting. Gregg Wer-
gin, the manager of technical support and the highest-level
supervisor of IHD, reports directly to Canova. Jean Hogan
serves as the director of customer care. Pam Nebbia and Reva
Jones serve as managers of the RAO and BAO, respectively.30
Hogan for the RAO/BAO operation and Canova for the tech-
nology side are primarily responsible for the day-to-day man-
agement of their respective departments.
Administratively, the CSRs and IHD techs are directly su-
pervised by lower-level managers or supervisors described by
Frontier as coaches; CSR coaches report directly to Nebbia
(RAO) and Jones (BAO). IHD coaches report to Wergin.
The personnel or human resources component of Frontier’s
operations at the Jefferson Road center is not physically located
there. Rather, this function operates out of the Company’s 180
South Clinton Street headquarters in Rochester. Gail Noyes
and Cliff Edington are the human resources representatives
assigned to the call center; Noyes is the primary human re-
sources liaison for the call center.
Christian testified about her role as the highest-ranking man-
ager of the call center. According to Christian, the RAO, BAO,
technical staff, and the IHD are all under her administrative
purview. She is responsible for preparing and presenting annual
budgets for each of their departments and reporting on budget
activity for each on a monthly basis to her superiors.31
Regarding personnel matters, Christian, in consultation with
Canova and Hogan, establishes staffing levels for the center
and works with them to create pools of prospective employees
for the CSRs and IHD techs and other employees. Christian
consults with Noyes and works with her and other responsible
managers about employee-related issues, including recruitment
and terminations. In the latter case, Canova and Hogan consult
with her and brief her on employee problems that, because of
their repeated or recurring nature, may require a serious job
action, including but not exclusively termination; Christian
stated that she charges Wergin and Canova with lesser disci-
plines. She also stated that although she consults with human
resources regarding terminations, she does not always follow its
recommendations.
Christian’s duties also include determining employees’ terms
and conditions of employment, establishing measurement stan-
dards for employee accountability and evaluation, and setting
the employee dress code for the center. Additionally, her re-

30 Canova and Wergin both testified at the hearing. Hogan, Nebbia,
and Jones did not.
31 Christian is also responsible for the preparation of call center
business plans affecting the RAO/BAO and IHD. These plans include
dealing with expense reviews and approvals for the entire call center
such as office supplies, travel expenses, and capital purchases of the
RAO/BAO and IHD, as well as the clerical and technical (now IHD)
staff and other management employees.
sponsibilities include wage and salary issues.32 Regarding rep-
resented employees, Christian stated that she participates in all
negotiations covering these workers, which include the CSRs
and recently the IHD techs.
Christian stated that regarding employee promotions, she is
informed by her managers but is not ordinarily directly in-
volved with the associated interviews. She stated that regard-
ing hiring, she may minimally review resumes, ask questions,
and occasionally sit in on interviews. Christian further stated
that she approves employee leave, including leaves of absence
for the CSRs and IHD techs. Conceding that she does not di-
rectly supervise RAO/BAO and IHD employees, Christian says
she nonetheless monitors their calls from customers very fre-
quently for quality control.
Christian noted that she has regularly scheduled meetings
with Canova, Hogan, and other managers involved with the
RAO/BAO and IHD; some of their meetings are one-on-one
with these managers to deal with special issues of their respec-
tive departments.
According to Christian, during Wergin’s tenure as manager
of the IHD, she has probably met with him once per day to deal
with employee and/or customer issues, along with general ques-
tions concerning the Internet product. Christian stated that
Wergin and Canova are her primary management resources on
the help desk. Christian stated that Wergin and Hogan have
stood in or covered for each other. She conceded that a
RAO/BAO coach rarely covers for an IHD coach and vice
versa. According to Christian, managers from the RAO/BAO
side have authority to discipline help-desk employees observed
engaging in improper conduct; IHD managers, likewise, are
similarly authorized to discipline RAO/BAO workers.
Canova testified that as director of technology and reporting,
he is primarily responsible for managing the technology for all
of Frontier’s call centers, including installation of new techno-
logical applications and equipment. He also is responsible for
all capacity planning within the Company and financial report-
ing for all call centers, including the RAO/BAO and IHD.33
Canova stated that the management of the call center is as a
practical matter centralized, with specific managers assigned to
various operational components. The managers in question
have responsibilities that cover both the RAO/BAO and the
IHD. Canova, directing himself to a Jefferson Road call center
organization chart, cited certain examples of the centralized
management approach: Rene Thornton, listed as coach for
workforce administration, coordinates all capacity planning for
Rochester and the other call centers across the country; she
reports to Canova. Thornton’s responsibilities extend to the
BAO/RAO, IHD, and save team and entails scheduling the
workforce and determining the “head count” needs for these
departments. Thornton is assisted by Mary Napoli, who han-
dles the IHD component, and Scott Bird, who manages the

32 Christian noted that for nonrepresented and management employ-
ees, she approves their salaries and increases in consultation with her
superiors and managers consistent with the center budget.
33 Capacity planning entails the scheduling and forecasting of em-
ployee/ workforce needs based on call volume and distribution (fre-
quency and length of calls) coming into the call centers.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1291
RAO/BAO; Cindy Brennan supervises a team that controls and
manages the “Aspect” system.34 Darcy Graham manages the
financial and performance measurements aspects of the call
center. Graham analyzes basic call center performance criteria,
including calls per hour handled by CSRs or techs, their avail-
ability to take calls, work to be done after completing a call
within the Company’s billing or ticketing system, and general
schedule adherence of the CSRs and techs.
According to Canova, all center employee groups are re-
quired to “punch in,” that is to log in and out of the Aspect
system, and all groups are amenable to the technical measure-
ments which include observations and monitoring by both the
CSR and tech coaches.35
Wergin testified that during the relevant period and cur-
rently, he was and is the manager of the IHD. Wergin stated
that he supervises directly about 11 to 12 supervisors, including
about 7 coaches who, in turn, supervise about 84 help-desk
technicians. According to Wergin, the coaches are his “eyes
and ears” with respect to the help-desk techs and serve as the
first line of management’s contact with them.
Wergin said that before he assumed his current position of
managing the IHD at the Jefferson Road center, he served first
as a coach (first-level supervision) in the BAO and supervised
CSRs and then later became a manager of the BAO side and
held that position until 1999. As the BAO manager, Wergin
was also responsible for Frontier’s Internet help desk function
as it existed at the time and supervised both CSRs and help-
desk staff for about a 2-year period.36 Wergin confirmed that
as manager of the IHD, he often receives directions about job-
related matters from Christian and speaks to her daily about call
center day-to-day activities covering such areas as employee
discipline and coach salaries.
Gail Noyes testified that she is employed by Frontier as a
human resources manager and has been so employed for about
30 years; she has her office at 180 South Clinton Street in
Rochester. According to Noyes, her duties and responsibilities
extend company-wide and include dealing with day-to-day
labor relations with the two bargaining units at the Company—
the CWA and RTWA; she handles all collective bargaining and
grievance matters relating to the two unions.
Noyes stated that with reference to the Jefferson Road cen-
ter, she handles human resources functions for all (bargaining
unit and nonbargaining unit) employees there and specifically
interfaces with and supports Christian in all human resources
matters37 and has conducted meetings with employees and su-

34 “Aspect” is the call center’s automatic call director system that re-
ceives customer calls and distributes them to the appropriate groups—
CSRs or IHD techs or save team for handling.
35 Canova stated that Frontier utilizes a system called “Witness” to
observe and monitor employees who are given scores with regard to
their dealings with customers. Both CSRs and techs are observed about
five calls each per month by their coaches for other managers.
36 Wergin was responsible for the Internet help-desk function when it
was located in Phoenix and later relocated to Rochester. Wergin stated
that he physically was located in Rochester at this time and worked
through a subordinate manager in Phoenix.
37 Cliff Edington, another human resource manager employed by
Frontier, testified at the hearing; he has been employed by Frontier for
pervisors regarding various employment-related issues, e.g.,
compensation and benefits at Jefferson Road.
Londa Jericho testified she has worked for Frontier about 5
years, hired originally as a Tier One help-desk tech, then pro-
moted to the highest tech position—lead tech—and then to her
current position as training manager. Jericho stated that she
started her employment with Frontier in Arizona but was relo-
cated by the Company to Rochester in November 2000 and
charged with setting up the help desk. According to Jericho,
her duties and responsibilities as training manager include all
initial training of help-desk techs and RAO/BAO consultants
on any and all Internet products offered by the Company as
well as other non-Internet-related products.38 Jericho stated she
reports to Wergin.
3. The functional integration of operations39
The Respondents argue that the RTWA-represented CSRs
and the accreted help-desk techs essentially perform the same
function—providing customers (potential and existing) the
kinds of telecommunication services they desire and are willing
to pay for. The Respondents submit that inasmuch as both the
CSRs and IHD techs take inbound customers calls, determine
the customers’ needs (e.g., a specific service or problem with
existing service or product), and address/resolve the customers’
needs with the goal of establishing or maintaining the custom-
ers’ businesses, although utilizing different modalities, in a
functionally integrated way, they are performing the same func-
tion. The Respondents submit that this functional integration
validates the accretion.40
The General Counsel concedes that there is, in her words,
“limited” functional integration between the help-desk techs
and the CSRs and that there may be a kind of product integra-
tion, but that these employees do not perform the others’ work
and that, on balance, the work of one group is not so dependent
on the work of the other, that one could not effectively function
without the other (GC Br., p. 60). The General Counsel sub-
mits that the accretion of the techs was more in the way a mat-
ter of administrative convenience; that the help-desk function is

about 4 years. Edington basically corroborated Noyes in terms of his
role and function as a human resource manager. He also stated that
managers meet regularly (about every other week) with call center
operational personnel—managers and staff—regarding benefits, com-
pensation, collective bargaining, and other like issues. Edington stated
that he and Noyes are colleagues and have met with employees both
singly and together on occasion.
38 Jericho did not indicate that she actually supervised CSRs directly
when she trained them; that is she did not evaluate them or direct their
day-to-day work. However, as a tech coach, she performs these types
of duties and evaluates techs weekly on a one-on-one basis, and gives
them their annual evaluations.
39 Functional integration of operations means in the context of an ac-
cretion that the work of one group of employees is functionally de-
pendent upon or closely related to that of a preexisting unit. Progres-
sive Services Die Co., 323 NLRB 183, 186 (1997).
40 Respondent RTWA also notes that even the product line of Fron-
tier is integrated, since the CSRs provide sales and service assistance to
the Internet product, while the IHD techs provide technical assistance
and on occasion may facilitate additional product sales in the course of
providing technical advice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1292
both fungible and transferable and could easily be moved to
anywhere in the country and still function as it does on its own.
The Evidence
If the record is clear on no other point, it abundantly estab-
lished that, as attested by managers and employees alike, Fron-
tier’s business is to provide the consuming public a service-
telephone and Internet access service in particular. The tele-
communications industry is highly competitive and Frontier’s
response to the marketplace has been to put in place a business
plan to attract and keep its customers. Pursuant to this plan,
Frontier’s work force—the CSRs and the techs—work in tan-
dem. I have previously discussed the interaction of the CSRs
and the IHD techs which basically outlined their functional
relationship. Essentially, in order to provide Frontier’s custom-
ers with service, the CSRs receive the calls and make the sale-
telephone installation and other features, dial-up Internet or
DSL Internet, handle accounts, and troubleshoot within their
purview. Where the CSR cannot handle the customer issue
because of time constraints or its technical nature, CSRs hand
these customers over to the techs. Techs then troubleshoot the
customer’s problem and, if successful, are encouraged to sell an
appropriate product to the customer.41 If the tech is persuasive
and makes the sale, he refers the customer back to the CSRs
who finalize the deal. In the event, the tech cannot solve the
customer’s problem and the customer wants to discontinue
service, the tech will refer or hand off the irreconcilable and/or
irate customer to the save team. The save team may mollify the
customer and, in turn, hand the customer back to the tech to
resolve a technical issue or offer incentives to the customer to
remain with Frontier. Through this essentially team concept or
function, Frontier attempts to attract customers and build on its
customer base and reduce attrition through customer dissatis-
faction.
4. Similarities in the hours and types of work, skills, execution,
and training of the CSRs and IHD techs
The Respondents argue that the CSRs and IHD techs share
essentially the same or similar working conditions. The Gen-
eral Counsel concedes that the two groups do share certain
working conditions but that these are limited. The General
Counsel submits that there are in contradistinction far larger
differences between the working conditions of the CSRs and
the techs, which make the accretion invalid.
With regard to training, the Respondents assert that CSRs
and techs receive similar, if not identical, training to perform
the service function each is assigned. The Respondents submit
that tech and CSR positions require similar education and ex-
perience, at least a modicum of customer service experience,
and a high school diploma.
The Respondents also argue that irrespective of the fact that
each group performs tasks that are distinguishable in some
degree, both groups, by design, are set up to provide service to
Frontier’s customer base.
The General Counsel agrees that while both groups service
Frontier’s customers, this is not a compelling reason to support

41 Through Frontier’s "Take the Lead" incentive program, techs re-
ceive a bonus commission if they sell a company product.
the accretion in that every one of its employees can be said to
be service providers. Further, she contends, techs perform in
the main a specialized technical function—troubleshooting
Internet connectivity problems for customers—and are grouped
in a specialized team to accomplish their mission. In contrast, a
CSR’s primary job is to sell Frontier’s products and services
and meet certain sales objectives, as well as handle account
management and billing issues. Accordingly, she argues that
the qualifications, training, and skills of the techs and CSRs are
very different. The General Counsel submits that techs are
trained to handle technical aspects of establishing rules and
Internet connections and e-mail for the customer. CSRs are
trained to handle customer complaints or questions regarding
bills, rates, or available services and, of course, to sell product,
which is a major component of their job at Frontier. Techs, she
asserts, are not required to sell product.
The Evidence
The working conditions of the CSRs and the IHD techs in
some aspects are fairly identical and where, not identical, are
very similar. As noted earlier, both the CSRs and IHD techs
work out of cubicles and use personal computers, similar soft-
ware, and telephone headsets to perform their basic job func-
tions. Both groups take inbound calls from customers, have
similar break procedures and, with only minor deviation, must
conform to the same dress code.42 Both groups are subject to
the same employee handbook and must follow the Company’s
“Acceptable Use” policy.43 CSRs and IHD techs both consult
the Company’s Simon (or banner) Board to track call volume;
both groups are subject to call monitoring by their respective
managers and supervisors for quality control purposes, using
the same computer (Witness) software. Both groups are subject
to the Company’s TCS system, a monitoring program that
tracks call length and assists in scheduling personnel.
CSRs and IHD techs also are issued security identification
badges with which they enter and use the secured parts of the
call facility; and both CSRs and techs account for time and
attendance by logging in and out of the call center’s Aspect
system. CSRs and IHD techs receive similar pay and health
benefits.
Additionally, CSRs and IHD techs have similar work hours,
noting, however, that the IHD techs work on a 24-hour, 7-day
week basis (three shifts) and, to cover holidays, “rotate” in their
assignments. CSRs generally work Monday through Friday,
7:30 a.m.–6 p.m. and, on Saturdays, 7 a.m. to 5 p.m.; they gen-
erally do not work on holidays when the center is closed.
Regarding job requirements, in practice CSRs and IHD techs
must have at a minimum a high school diploma and some cus-
tomer experience; as a general matter, the employees in both
groups have the same or similar educational background and

42 Although not altogether clear, CSRs may be allowed to dress dif-
ferently from the standard “business casual" on certain days. The techs,
it seems, are required to follow the business casual code on all work-
days. This is an insignificant difference in my view.
43 This policy will be discussed in more detail later in this decision.
Essentially, the Acceptable Use Policy governs all center employees in
the use of the facility and Frontier’s equipment and property at the
Jefferson Road call center.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1293
have worked other jobs providing some prior customer service
experience.44
Each group receives training to perform their job functions;
techs receive 2 weeks and CSRs 6 to 8 weeks. Notably, there is
some overlap in the training each receives. For example, both
groups receive instruction regarding the technical aspects of
their respective job, including software applications, modem
availability and line hookups, and both groups receive “trouble
shooting” training, with the techs’ training placing particular
emphasis on Internet connectivity problems and CSRs receiv-
ing training heavily emphasizing Frontier’s total product line
and ancillary matters dealing with customer accounts and bill-
ing. As noted by Christian, the training received by the two
groups is similar but because CSRs must have more informa-
tion and be more familiar with Frontier’s entire operation, they
receive more extensive training.
Presently, the CSRs and IHD techs are subject to different
leave and benefit policies. Techs receive 19 paid time off
(PTO) days annually, which may be used for vacation, personal
days, and sick leave at their discretion. CSRs’ leave and bene-
fits are subject to the collective-bargaining agreement. The
leave benefits, as contained in the agreement, are very different
from those of the techs. For example, CSR employees may
receive up to 5 weeks paid vacation, depending on years of
service, and have as many as 11 paid holidays.45
In terms of compensation, techs receive wages, at least as of
the time of the accretion, ranging from $13.56 to $17.56 per
hour and receive no commissions or extra pay except for mon-
ies earned through the “Take the Lead” bonus program. CSRs
receive wages training from about $11.68 per hour as basic pay
but may receive commissions of up to 10 percent of their
hourly rate based on their level of sales, consistent with the
wage rates contained in the collective-bargaining agreement,
and additional monies may be earned through a contract-
sanctioned “pay for performance” program. As such, the com-
pensation formula for each group is fundamentally different
although both CSRs and IHD techs are both evaluated, in sig-
nificant part, on call availability and calls per hour. Techs,
unlike CSRs, are required to take tests showing technical profi-
ciencies in order to be promoted to the next tier or level. Both
CSRs and techs can participate in the Company’s “Take the
Lead” program, which provides bonuses for employees whose
efforts result in additional sales for the Company.

44 The job description for a Tier II tech (GC Exh. 42) indicates Fron-
tier’s preference for an associate’s degree and/or applicable job-related
experience. Techs also must posses 1 to 2 years of customer service
experience. The job description for CSRs requires a high school di-
ploma or equivalent but notes that 2 or more years of posthigh school
education is preferred. Customer service experience and ability are
emphasized. (See GC Exh. 41.) Frontier management, as attested by
Christian and Wergin, gives greater weight to customer service experi-
ence, as opposed to formal education and technical competence for
both CSRs and techs.
45 Actually, the collective-bargaining agreement, as noted by the
General Counsel, has contained a veritable plethora of benefits and
policies of benefit to the represented CSRs. I would agree with the
General Counsel’s assessment that in terms of benefits, the techs and
CSRs are worlds apart.
5. Size of group to be accreted relative to the size of
existing unit
The General Counsel contends that Frontier failed to meet its
burden to show that the size of the group to be accreted (the
techs) was not larger than the existing unit—the CSRs and the
RTWA-represented employees. Accordingly, she submits that
this failure invalidates the accretion.
The Respondents submit that at the time of the accretion, the
RTWA-represented about 750 clerical and technical employees
working at Frontier call centers around the country; that of
these, about 100–120 were IHD techs stationed at Jefferson
Road and about 200 were CSRs located at that call center. The
Respondents argue that the 120 IHD techs accreted to the exist-
ing unit of over 600 CSRs clearly does not jeopardize the ma-
jority status of the existing Union, and that on this score, the
accretion was valid.
The Evidence
CSRs are situated at several call centers located around the
country and perform their job functions on a local or regional
basis; all IHD techs, by comparison, have a national coverage;
they are merely physically located at Jefferson Road. There-
fore, the record clearly shows that at the time of the accretion,
approximately 120 IHD techs were accreted to one existing unit
of around 600 or more CSRs.46
6. Bargaining history
The General Counsel contends that the RTWA had no bar-
gaining history covering the IHD techs at the Jefferson Road
call center as they (the techs) existed in 2002, the year of the
accretion, and that the techs presently have never been included
in the RTWA unit. Citing the history of the RTWA vis a vis
the help-desk operation at Frontier over time, she asserts that
the bargaining history does not support the accretion.
The Respondents counter that the collective-bargaining his-
tory discloses that the RTWA has been the “inside” collective-
bargaining representative for Frontier’s employees for 30 years
and that, as such, Frontier acted properly to RTWA’s demand
to accrete the “inside” working IHD techs.47
The Respondents submit that, historically, in the early years
of the Internet at Frontier, the RTWA represented consultants
who performed essentially the same jobs as the IHD techs per-
form today. They argue that only because of certain vicissi-
tudes, including public service commission rules, changes in
corporate ownership, relocations of the help-desk functions,
and complexities associated with the advent and evolution of

46 Christian and Edington of Frontiers’ human resources department
credibly provided these employee estimates. Christian testified that
there were about 350 workers employed at Jefferson Road. Edington
testified that there were about a “couple hundred” CSRs and about
100–120 IHD techs.
47 Recognizing that Board law requires the party seeking accretion to
make its demand prior to the expiration of any existing collective-
bargaining agreement, the IHD was restarted at Frontier in December
2000 and the applicable bargaining agreement’s term was January 26,
2000, to February 28, 2003. RTWA’s demand for recognition was, as
noted, made on about February 15, 2002, a year before the expiration of
the agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1294
the Internet, did this situation change. Nonetheless, the Re-
spondents contend that at no time did any other union represent
the IHD employees, nor were these employees ever excluded
from the existing unit, although they concede that there was a
period when the employees providing Internet services were
considered “management” and not represented by any union.
The Respondent contends that a bargaining history does not
exist and, on balance, supports the accretion.
The Evidence
The bargaining history between Frontier and the RTWA was
comprehensively and credibly related by the president of
RTWA, Marie Rodgers.48
Rodgers testified that in 1995, Frontier established the ISDN
(integrated subscriber digital network) Internet team to sell and
provide customer services, including technical support for the
Company’s new high speed Internet access service. The Inter-
net team was to be comprised of employees who were to con-
centrate on the Internet product, to sell and service it. How-
ever, this team also would be required to perform regular tele-
phone-related work. According to Rodgers, these workers were
to work 90 percent of their time on the Internet product and 10
percent on telephone work. Frontier posted these positions
internally, and approximately 180 RTWA-represented employ-
ees bid on the positions. Ultimately, 13 employees were se-
lected for the team, all of whom were covered by the then cur-
rent collective-bargaining agreement. These employees were
all located at the company headquarters at South Clinton Street
along with the other bargaining unit employees and were paid
on the same scale as the CSRs.
Rodgers stated that the collective-bargaining agreement be-
tween Frontier and RTWA covering the period January 1997
through August 2000 included the Internet team employees as
bargaining unit members who continued performing the Inter-
net and ISDN work, selling residential customers a second
telephone line for the high speed Internet service, and assisting
customers installing the Internet programs on discs provided by
Frontier by walking them through the installation program.
The Internet team also continued selling telephone services
such as call waiting and dealt with disconnections and billing
disputes.
According to Rodgers, in late 1998, Frontier’s management
informed RTWA that the requirements of the Internet team
positions were to be expanded and that employees were to pos-
sess more technical knowledge of the Internet and have more
training so as to service the Company’s new Internet service
dubbed “Frontier net,” which was to compete with other Inter-
net pertinent service providers such as America On Line
(AOL). Frontier advised her that in order to implement and
properly service Frontier net, the tech employees would have to

48 Rodgers has held this position since 1981 or 1982. She is also a
CSR and has been in this position since 1974 and works at the Jefferson
Road call center. The General Counsel called Rodgers as one of her
witnesses. I have included Rodgers’ affidavit given to the Board agents
as part of her testimony. See GC Exh. 5. I note that in making my
credibility findings regarding Rodgers’ testimony, the record evidence
as whole, and specifically the testimony of Angela Christian, corrobo-
rates her version of the relationship between Frontier and the RTWA.
answer technical service questions about the Internet and be
able to assist the customer with installing the new system.
Thus, the employees would have to be knowledgeable about
computer languages and Internet computer systems. According
to Rodgers, these employees were to be called Internet help-
desk technicians and organized into a group of six to eight em-
ployees. They would be deemed (low level) management, as
opposed to bargaining unit employees.
Rodgers stated that the RTWA agreed ultimately with Fron-
tier to the assignment of some of these Internet functions out-
side of the bargaining unit to these unrepresented employees.
However, according to Rodgers, the RTWA struck a deal with
Frontier which included principally the Company’s agreement
to allow RTWA employees to bid on the new tech positions49
then open and in the future, and to upgrade several bargaining
unit position/titles resulting in higher pay for the affected posi-
tions. 50 The Internet team members (13) were allowed to re-
main in the call center and assumed the normal duties of CSRs,
including selling Internet and telephone services and handling
customer billing and other inquiries. In the end, RTWA and
Frontier came to no agreement that the RTWA could or would
seek to have the Internet function returned to the unit at a later
date.
Rodgers stated that the 1997–2000 contract due to expire in
August 2000 was, by agreement, reopened for negotiation by
RTWA and Frontier in November 1999. The new contract thus
went into effect in January 2000 with a March 5, 2003 expira-
tion date. However, Rodgers noted that the entire help-desk
function had by then been moved to Phoenix as part of Fron-
tier’s purchase by Global Crossing and, therefore, there was no
ISDN/Internet job description or position to negotiate for this
latest contract.
In May 2000, Frontier’s call center operation was moved
from the South Clinton address to Jefferson Road. In due
course, Rodgers stated that she was advised by Frontier that a
former health center adjacent to the call center was to be occu-
pied by the new Internet help desk but she had no idea of the
number of techs planned for the center.51
According to Rodgers, in late 2000, the help desk was relo-
cated back to Rochester at Jefferson. RTWA employees were
advised that they could bid on the help-desk positions; positions
were also advertised in the local newspaper.52
By June 2001, Rodgers noted that Frontier had been acquired
by Citizens. By around July 2001, she became aware of the
IHD techs’ concerns about possibly seeking unionization
through Albright, a tech who e-mailed her, stating that he had
spoken to about 30 techs who were receptive to either joining

49 Rodgers stated that none of the existing ISDN/Internet Team
members transferred to the IHD. However, four call center CSRs did
obtain jobs on the help desk.
50 As noted, the parties’ entire agreement was not committed to writ-
ten form.
51 Rodgers stated that at about the time the new help desk function
was relocated to Phoenix, there were about 13 techs working this desk.
52 Rodgers noted that some RTWA-represented CSRs applied for
and were accepted in the new IHD tech jobs.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1295
or starting a union because of issues surrounding their terms
and conditions of employment at the IHD.53
Rodgers stated that she replied to the e-mail, indicating her
willingness to speak to the sender about unionizing but that she
would consult with the RTWA attorney before taking any
steps.54 Rodgers said she spoke with the RTWA attorney who
advised that she make demand on Frontier to accrete the techs
or, failing in that regard, file a unit clarification petition with
the Board.55
Rodgers said that she underwent surgery in August 2001,
and was unable to pursue the matter until late August 2001,
when she approached a management representative, Pam Pre-
ston, vice president of human resources, and requested Fron-
tier’s recognition of RTWA as the techs’ representative. Ac-
cording to Rodgers, Preston refused the request initially but
later said that the Company could not respond at that time be-
cause of the recent acquisition of Frontier by Citizens; Preston
indicated that she would have to confer with the new manage-
ment.
Rodgers said that she became aware of the IHD techs’ inter-
est in the CWA in January 2002, at a meeting with a tech
whose name she could not recall. However, any interest in the
CWA was not discussed generally around the facility. Rodgers
said she did not discuss the CWA with management but did
speak with a representative of the IBEW in mid-February 2000.
Through this discussion, Rodgers said she learned that if she
were to renew her demand for recognition by Frontier, the
Company would accede to an accretion of the techs.56
Rodgers stated that RTWA made a formal demand for rec-
ognition by letter on February 15, 2002, and, on February 27,
Frontier agreed to recognize her Union. On March 13, 2002,
RTWA and Frontier negotiated a memorandum agreement with
respect to the inclusion of the IHD function into the parties’
existing labor agreement.
7. The manipulation of the accretion issue
The General Counsel argues that Frontier knew that the techs
wanted the CWA to represent them and, moreover, that Frontier
was opposed to the CWA's representation. She submits that
this point is established by Frontier’s recognizing RTWA a day
or two before the CWA filed its representation petition with the
Board. The General Counsel also notes that Rodgers admitted

53 Rodgers acknowledged receiving an e-mail from IHD lead tech,
Alan Costa (see RTWA Exh. 2), on July 2001, in which he, among
other things, mentioned concerns about working conditions for techs at
the call center and sought her counsel about how the RTWA and unions
in general could help resolve these issues.
54 Rodgers’ reply also expressed her concerns about confidentiality,
her fears that Frontier may retaliate against him, and not running afoul
of any “boundaries” that could be used against them to halt the pro-
ceedings. I note that this documented concern undermines any argu-
ment that the RTWA and Frontier were in any sweetheart arrangements
or manipulations regarding the techs’ representation matter.
55 According to Rodgers, Frontier’s management learned of
RTWA’s interest in the techs and mounted an antiunion campaign.
Little, if anything further, was adduced at the hearing on any alleged
antiunion campaign by Frontier.
56 Rodgers stated that she did not know what the IBEW’s source of
information was and did not ask.
that she knew of the CWA’s interest in the techs in January
2002 and further that, in fact, word of the CWA’s campaign
was widespread at the center in early February 2002. The Gen-
eral Counsel contends that Frontier had a strong motivation to
accede to the RTWA’s demand in that the CWA was viewed as
a strong union, while RTWA was viewed as weak. Thus, Fron-
tier harbored an animus against the CWA, or at least a strong
preference for the RTWA to represent the techs. The General
Counsel submits that Frontier lacked good faith in agreeing to
the accretion and that essentially the accretion came about
through a manipulation.
The General Counsel also submits that Frontier exhibited
bad faith in that Frontier’s management never consulted the
techs about terms and conditions of employment before the
accretion was accomplished. She also submits that Frontier
acted on the accretion with no apparent deliberation and actu-
ally in a rush motivated by its knowledge that it was facing an
imminent demand for recognition or the filing of a petition with
the Board by the CWA.57 In short, the General Counsel con-
tends that Frontier and RTWA essentially manipulated the ac-
cretion to avoid the CWA’s efforts to represent the IHD techs
and to frustrate the desires of the techs to choose their own
collective-bargaining representative.
The Respondent Frontier argues that, first, it was unaware of
CWA’s organizing campaign because the CWA’s plan, as the
hearing testimony disclosed, was to keep it a secret or under
wraps; second, that comments about union organizing appear-
ing on the Company’s message board in early January 2002,
did not mention CWA except with respect to a reference to a
link to that Union’s website.58 The Respondent asserts that any
suggestion of manipulation of the accretion is merely based on
speculation and conjecture of the General Counsel’s witnesses,
whose biased claims that Frontier’s managers were aware of the
CWA campaign were emphatically denied by those self-same
managers.
Regarding the issue of CWA’s majority support, Frontier as-
serts that this was not established on the record before the ac-
cretion. Frontier asserts whatever level of support the CWA
had did not manifest itself until after the accretion because
authorization cards were not distributed until mid-February
2002, and not collected until the end of February. The final
tally was unknown, although claimed by the CWA to be mini-
mum for a card check.59 However, even this, Frontier asserts,
has not been established.
Frontier submits that the General Counsel’s contentions
about its alleged manipulation of the accretion does not rest on
hard facts but mainly on theoretical possibilities and specula-
tion. Frontier maintains that the reality is that it was in the dark

57 The Charging Party in his brief makes a similar “good faith” ar-
gument basically echoing the General Counsel’s point that the timing of
the recognition is suspicious and suggests that Frontier knew of the
CWA organizing drive prior to February 26, 2002, the accretion date,
and that both the RTWA and Frontier knew that the techs themselves
wanted the CWA to represent them.
58 Respondent also notes that the United Auto Workers (UAW) was
mentioned in the chatter on the message board, but that Union had no
part in the organization of the techs. See. GC Exh. 25.
59 The CWA authorization cards were not adduced at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1296
about the CWA campaign and agreed to the accretion of the
techs only for good and lawful reasons.
Discussion and Conclusions Regarding the Accretion Issue
At the end of the day, after examining the relevant accretion
factors and the evidence adduced at the hearing, we arrive at
some inescapable conclusions. Jefferson Road is a singular call
center whose primary purpose and premise is providing tele-
communications service of the modern variety to its customers.
Frontier provides the service essentially by taking calls (on an
incoming basis) from customers. As such, the call center is an
integrated facility wherein all employees in various capacities
work toward achieving the Company’s goals and objectives—
mainly keeping, maintaining, and increasing its customer base
through the provision of state-of-the-art telephone and Internet
service. I believe that Frontier expresses my view of the accre-
tion best in its brief as follows:
The Call Center employees work together in performing [cus-
tomer service] using inter alia, the same equipment, under [es-
sentially] the same working conditions, with similar skills,
education and comparable training, common management
and labor relations all at the same location. The Call Center is
[an] integrated facility where the [CSR] consultants and the
IHD [techs] work hand in glove to perform [the Company’s]
raison d’etre, customer service [at page 84].
In my view, the accretion of the techs did not violate Section
8(a)(1)(2) and (b)(1)(A) of the Act. I would recommend dis-
missal of this aspect of the complaint.60
E. The Remaining Unfair Labor Practice Charges
1. The 8(a)(1) allegations
The complaint in paragraph VII lists six separate violations
of Section 8(a)(1) of the Act by alleged agents and supervisors
of Frontier during the period covering the end of January 2002
through around April 10, 2002. They will be discussed as fol-
lows:
a. Stephanie Rodgers’ direction to employees to contact the
RTWA as opposed to the CWA
The General Counsel called current IHD tech Marc Per-
golizzi to establish this charge.61 Pergolizzi stated that he be-
came aware of the CWA organizing campaign around Decem-
ber 2001, or possibly January 2002; he also said that he at-
tended CWA organizational meetings in January and February
2002.
According to Pergolizzi, sometime near the end of January
2002, he spoke to Stephanie Rodgers62 who he knew to be the

60 I note in passing that I specifically do not find that Frontier or
RTWA in any way manipulated the accretion either individually or in
their negotiations with one another to arrive at the agreement to recog-
nize the RTWA as the exclusive collective-bargaining representative of
the techs and the resulting memorandum of agreement.
61 Pergolizzi has been employed by Frontier for about 4 years and
started as a CSR; he is now a tier 3 lead tech.
62 I will refer to Stephanie Rogers henceforth as Stephanie to avoid
confusion with her mother, Marie, previously referred to (as is the
Board’s custom) solely by her last name.
daughter of RTWA president, Marie Rodgers, as they were
passing each other in the center hallways; there was no other
person present.
According to Pergolizzi, Stephanie said that she had heard a
rumor that the techs were looking into the CWA but that she
did not think this was a good idea. Stephanie suggested that the
techs should speak with the RTWA before going any further.
Pergolizzi said that Stephanie also said that if the CWA did
take over or if the techs chose the CWA, the IHD would be
transferred to a different call center. Pergolizzi stated that he
interpreted the comment to mean that the techs would lose their
jobs.
According to Pergolizzi, Stephanie also said in this conversa-
tion that the RTWA was a better union and suggested that he
(Pergolizzi) should have someone speak to her mother and
mentioned that “someone” could be Alan Costa.63 Pergolizzi
said the conversation with Stephanie ended with discussions of
matters of a personal nature. However, Pergolizzi said that he
later spoke with Costa and related Stephanie’s conversation to
him and suggested that it may be in our (the techs’) best interest
to look into the RTWA.
The General Counsel also called Stephanie Rodgers as her
witness.64 Stephanie acknowledged knowing Pergolizzi as an
acquaintance who worked as a tech and that he spoke to her
about being represented by the RTWA in July 2001.
Stephanie stated that Pergolizzi approached her around
breaktime and asked about the RTWA. According to Stepha-
nie, she told him she could not give him any information and
that he should speak to her mother; but that neither the CWA
nor any other unions were discussed. Stephanie stated that
Costa’s name did not come up and, in fact, she did not know
him. Stephanie said that Pergolizzi said that he had someone
“on his side” who was interested in the RTWA and what did
she (Stephanie) know about that Union.
Stephanie stated that she was not sure why Pergolizzi was
questioning her but acknowledged that she was sometimes
viewed or may have been viewed as a member of management
by the employees.65 Accordingly, she told him to speak to her
mother, as she could not address his questions. Stephanie said
that the balance of her conversation with Pergolizzi covered
small talk and general inquiries about how each was doing in
their jobs.

63 It may be remembered that Costa is the tech who initially con-
tacted Marie Rodgers on July 27, 2001, and made inquiries about orga-
nizing the techs.
64 I permitted examination of Stephanie Rodgers as a 6(11)(c) wit-
ness. I note that she appeared not forthcoming and very reserved, if not
openly hostile to the General Counsel’s questions.
65 Stephanie is a current 10-year employee, serving at the time of the
hearing as a CSR since March 11, 2001. From July 27, 2002, however,
she occupied the position of statistical coordinator, a salaried nonbar-
gaining unit position. Stephanie is alleged to be an agent or apparent
agent of Frontier within the meaning of Sec. 2(13) of the Act. This
matter will be discussed later. Of note, the General Counsel stipulated
in agreement with Respondent Frontier that Stephanie was not a super-
visor at any time material to this litigation within the meaning of Sec.
2(11) of the Act.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1297
Discussion and conclusions
I would agree with the General Counsel that statements made
by a statutory agent or supervisor to an employee directing him
to contact one union over another and at the same time warning
of a loss of his job or closure or relocation of his department
were he to select the disfavored union poses a possible viola-
tion of the Act, as this kind of speech could reasonably lead
employees to conclude there would be detrimental results, i.e.,
loss of their jobs and/or relocation, if they selected the CWA
over the RTWA. Palagonia Bakery Co., 339 NLRB 515
(2003).66
In resolving this charge, the first question is whether Stepha-
nie made the statements in question. I would find and conclude
that she did indeed make the remarks. Stephanie, in my view,
did not present as a credible witness. As noted earlier, she was
not forthcoming and somewhat evasive when examined by the
General Counsel, and her denials did not seem sincere. Per-
golizzi, on the other hand, struck me as giving an honest and
straightforward version of his encounter with Stephanie in the
hallway. Therefore, it seems unlikely to me that Pergolizzi
would distort a casual conversation he had with his friend.
Stephanie acknowledged that she and Pergolizzi were friends or
acquaintances and it certainly is within the realm of plausible
experience that Stephanie would tout her mother’s Union over
the CWA. I note that Pergolizzi seemed to have divided loyal-
ties with respect to the two Unions, supporting the CWA but
also lending some support to the RTWA. All in all, I would
credit his testimony regarding the hallway encounter with
Stephanie in January 2002.
The second question relates to Stephanie’s alleged statutory
agency status. There is little or no dispute between the parties
that Stephanie’s job at the crucial time—statistical coordina-
tor—entailed basically keeping statistics on CSR individual and
team sales performance and making and reporting on sales
investigations covering CSR claims of entitlement to compen-
sation for sales of Frontier’s products; that she supervises no
employees and received a salary; and that she was considered
by management as an unrepresented management employee (an
individual contributor) that as a statistical coordinator, she
trained and advised CSRs regarding the company policy on
claiming commissions and new Company sales progress.67

66 The General Counsel acknowledges that the statement predicting
the relocation of the call center was not alleged in the complaint. It is
also noteworthy that the statements could also be violative of Sec.
8(a)(2) of the Act as they clearly show the employer’s preference for
one union over another. Respondent was not charged with this viola-
tion either.
67 By a stipulation, the General Counsel concedes that Stephanie is
not a statutory supervisor. Gail Noyes, Frontier’s human resources
manager, testified that Stephanie, as a statistical coordinator, was a
“management” employee and considered as a nonexempt employee
who manages no other employees, had no authority to hire or fire em-
ployees, and had no authority to establish company policies or interpret
policies, and had no authority to bind the Company by contract. She
claims that “management” is generally applied to employees not repre-
sented by a collective-bargaining representative. I would find and
conclude that Stephanie is not a statutory supervisor.
The General Counsel contends that Stephanie was a statutory
agent and, in the alternative, was imbued with apparent agency
by dint of her role and functions as a statistical coordinator as
well as her employment history at Frontier.
The Respondent contends Stephanie was in no sense a statu-
tory agent nor could she be viewed as having apparent agency
status so as to bind Frontier for her statements to Pergolizzi.
The Respondent also contends that even if, arguendo, Stephanie
were found to be its agent, her statement was an isolated speech
made in a casual conversation with a fellow employee and
could not reasonably be interpreted as a sentiment or action of
the Company. The Respondent asserts that the conversation
was a one-time event between low-level employees who hap-
pen to have been friends, without Frontier’s knowledge or rati-
fication. That neither Pergolizzi (nor any other employee)
could or would reasonably believe that Stephanie was speaking
and acting for or on behalf of management.
The Board applies common law principles of agency when
examining whether an employee is an agent of the employer in
the course of making a particular statement or taking a particu-
lar action. Under those principles, the Board may find agency
based on either actual or apparent authority to act for the em-
ployer. Tim Foley Plumbing Services, 332 NLRB 1432 (2000).
“Apparent authority results from a manifestation by the princi-
pal to a third party that creates a reasonable basis for the latter
to believe that the principal has authorized the alleged agent to
perform the acts in questions.” Cooper Industries, 328 NLRB
145 (1999); Southern Bag Corp., 315 NLRB 725 (1994), and
cases there cited. See also Alliance Rubber Co., 286 NLRB
645, 646 (1987). Under Board precedent, an employer may
have an employee’s statements attributed to it if the employee
is “held out as a conduit for transmitting information [from
management] to the other employees.” Debber Electric, 313
NLRB 1094, 1095 fn. 6 (1994).
With regard to Pergolizzi’s conversation with Stephanie,
first, as he credibly stated, he knew that she was a management
employee but, as he said, she was not to him supervisory. She
was not a union member, rather a management employee; but
she was not his or anyone’s boss. He realized that at Frontier
some employees were not bosses but also not members of the
Union. Second, Pergolizzi acknowledged that he viewed the
conversation as simply one between friends.
Thus, at least for Pergolizzi, it cannot be gainsaid that the
Respondent held her out as a conduit for transmitting informa-
tion (about a preferable union) from management.68 As to other
employees, there was no other testimony adduced as to how
they may have regarded her. Accordingly, it would appear that
the very person to whom she spoke did not regard her as having
authority to speak for management.
In spite of Stephanie’s former job as a hiring coordinator69 at
Frontier some years before she assumed the statistical coordina-
tor job, there does not seem to be a reasonable basis of record

68 It should be noted that Stephanie did transmit information to
CSRs, but it was part of her job to convey limited information about
CSR entitlements.
69 Respondent concedes that Stephanie’s former hiring coordinator
job may satisfy the Act’s requirement for supervisor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1298
to believe that Frontier authorized—which it clearly did not—
her to speak on its behalf and thereby be bound by her state-
ments. For purposes of an unfair labor practice finding, I
would find and conclude that the offending statements were
made by Stephanie but that the General Counsel has not estab-
lished that she was a statutory agent, nor was she imbued with
apparent agency by virtue of her then job as statistical coordi-
nator—a basically clerical function in my view—nor because
of other so-called management jobs she held with Frontier. I
would recommend dismissal of these charges.70
b. Londa Jericho’s alleged threat on February 8, 2002, at
Tully’s Bar to discharge employees selecting a union
The General Counsel called current employee and former
employee Dmytro Skrlnyk and Adam Shepard, respectively, to
establish these charges.
Skrlnyk71 testified that on about February 8, 2002, he and
about 12–14 fellow techs attended an initial CWA organiza-
tional meeting at which 12–14 techs interested in union repre-
sentation by the CWA were present.72 Skrlnyk said that he and
a fellow tech, Adam Shepard, decided to go to a local
bar/restaurant, Tully’s, for some refreshments after this meeting
at around 9:30 to 10 p.m. At Tully’s, which is located near the
call center and is frequented by call center employees, Skrlnyk
said that he saw one of the supervisor/coaches, Londa Jericho,
and a number of other Frontier employees seated at a table.
Shepard and he asked to join the group and sat with them.
According to Skrlnyk, Jericho mentioned the poor economy
and that several techs were beating down her door trying to get
jobs at the call center. She mentioned essentially that most
people who no longer work at the center were terminated, that
very few had left of their own volition. According to Skrlnyk,
Jericho said that the burnout rate was 6 months and that was a
good time to replace them.
Shepard testified that when he and Skrlnyk joined the
group,73 there was a general conversation, but that Londa Jeri-
cho did most of the talking. According to Shepard, Jericho
related stories about her experience as a tech in Arizona and
concluded that the Arizona techs were better and more knowl-
edgeable workers; and that the Rochester techs never would
have been hired in Arizona.
Shepard described Jericho’s tone in the conversation as abu-
sive. Shepard said that Jericho stated that the economy was so

70 I note in passing that my recommendation to dismiss is heavily in-
fluenced by the nature of conversation in question, plainly a rather
personal conversation between work friends and acquaintances. The
Act, in my view, would not be served by finding conversations of this
genre to be actionable as there was no interference with rights of em-
ployees not privy to the conversation. Notably, Pergolizzi did speak to
Costa about the RTWA but Costa had already talked to Marie Rodgers
in July 2001, and had made his decision to go with the CWA by Janu-
ary 2002, and was actively working for that Union.
71 Skrlnyk was hired on January 23, 2001, by Frontier and holds an
IHD tech, tier 2 position at Jefferson Road. He works currently Mon-
day through Friday on the 12 midnight–8:30 a.m. shift.
72 The meeting took place at a church in the Rochester area.
73 Shepard identified by name Frontier employees Dave Alton and
Phillip Plowe also to be in the gathering. Neither Alton nor Plowe
testified at the hearing.
bad that people should be thankful for the jobs they have, that
she had 18 people banging on her door for jobs, and that if
people don’t like it (at Frontier) they can leave. According to
Shepard, Jericho complained that she had never known a bigger
bunch of whiners at one place. Shepard stated that he believed
that Jericho said that she had heard rumors that techs were con-
sidering organizing and, with a very sarcastic tone, went on to
say that the techs could go ahead and organize, they will lose
their jobs that much faster; they (the techs) do not know how
expendable they are. Jericho then said let them organize, let
them have their little meetings.74
Jericho was called by Frontier to meet the allegations in
question.
Jericho acknowledged knowing Skrlnyk and having trained
him as a tech; but she denied having coached him. Jericho also
stated that she knew Shepard but never had a discussion with
him because she did not care for him and avoided him when-
ever she could. Jericho also acknowledged conversations in
which she participated at Tully’s bar in the presence of Skrlnyk
and Shepard.
Jericho explained how the conversation came about. Ac-
cording to Jericho, a fellow coach, Jeff Brown, had decided to
quit Frontier and return to Phoenix. Brown had been employed
at Frontier in Phoenix, as was she, and when the Company
decided to relocate to Rochester, Brown was offered a coaching
position in Rochester. Around March 1, 2002, Brown made
clear his intentions to leave Rochester and return to Phoenix.
Because Brown was popular among the Frontier employees, he
had about three going-away parties between March 1 and 15,
his anticipated departure date which happened to coincide with
coaches receiving their scheduled annual bonuses.
In any event, Jericho said that she attended two of the three
parties, both of which took place at Tully’s, the local hangout
for Frontier workers. One of the parties took place on March 8,
and there were a lot of people in attendance, including Shepard
and Skrlnyk.
Jericho explained that on March 8, she and Brown were talk-
ing about his quitting his job and leaving for Phoenix with no
job prospects there. To her, Brown was quitting in the face of a
bad economy and would have had a hard time finding a job.
According to Jericho, she and Brown were talking along these
lines while Skrlnyk and Shepard were standing there, saying
nothing but simply apparently listening to her conversation
with Brown. Jericho said that she, Dave Alton (another Fron-
tier coach) and Brown decided to go to another table. The three
of them (Brown, Jericho, and Alton) continued to talk about her
comments about Brown’s leaving without a job in hand. In the
meantime, Shepard and Skrlnyk approached the table uninvited,
asked to sit with her and Alton, and did so without waiting for
their answer.

74 Notably, Skrlnyk did not provide nearly as detailed a picture of the
meeting and Jericho’s alleged statements. As to the threat to discharge
the techs, Skrlnyk merely said that Jericho said something to the effect
of let them organize and we will fire them faster if they do. Skrlnyk
identified David Alton and two other men as being at the table when
Jericho was speaking.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1299
Nonetheless, she continued to speak with Jeff Brown about
his plans to leave. According to Jericho, she told Brown that
she had people from the help desk in Phoenix calling her in
Rochester about job availability and asked him how he ex-
pected to find a job in Phoenix.
At this juncture in the conversation, Skrlnyk and Shepard
joined the party and, according to Jericho, she ceased talking
because she did not like Shepard and had no desire to talk about
anything in his presence.
Jericho said in the course of the conversation with Brown, he
stated that at least part of his motivation to leave was the tech
burnout rate, which he said was 6 months. According to Jeri-
cho, she disputed this, saying the industry standard for tech
burnout—techs getting sick and tired of answering the phones
daily—is about 18 months.
Jericho emphatically denied discussing unions—any unions
at all—in the presence of the group and specifically denied
saying anything to the effect of “go ahead let them organize a
union, they will lose their jobs that much faster, they don’t
know how replaceable they are.” Jericho also said she had no
idea of union meetings on any of the days she was at the bar
celebrating Brown’s departure and denied saying that “most
techs get fired.”75
Jericho and Skrlnyk/Shepard’s versions of the events occur-
ring at Tully’s bar are at great variance; hence, credibility
looms large in resolving the charge in question.
Jericho’s supervisory status under the Act is not disputed and
is, in fact, admitted by Frontier. The record clearly shows that,
based on her job responsibilities and functions as the training
manager in the technical support department, she is a statutory
supervisor, and I would so find and conclude. In my view, if
Jericho made the statements regarding the threat to discharge
employees for selecting a union as their collective-bargaining
representative, a violation of the Act would be made out.
The General Counsel submits that Shepard and Skrlnyk testi-
fied credibly and memorialized the meeting in separate e-mails
they sent out on the Yahoo union mailing list to which they
subscribed.76 She contends that both e-mails implicate Jericho
in this violation as charged. The General Counsel argues that
Jericho’s denials should not be credited for lack of corrobora-
tion—David Alton, Frontier system administrator, nor Jeff
Brown for that matter was not called. Accordingly, she submits
that a violation of the Act should be found.
The Respondent asserts that Shepard and Skrlnyk were not
credible. As to Shepard, the Respondent notes that he was a
problematic employee who had been disciplined for improper

75 Jericho also stated that she at one time was aware of the CWA or-
ganizing campaign or activities. Jericho also said that she used to be a
member of the CWA when she was in Arizona, which she described as
a right-to-work State, and that she voted, paid her dues, and picketed on
behalf of the Union. Jericho also noted that she was hired as a tier 1
tech on the IHD by Frontier in Arizona, later promoted to tier II, and
ultimately became lead tech. She now serves as a trainer/manager at
Rochester and helped set up the IHD there.
76 See GC Exh. 6. Shepard sent his e-mail on February 9, 2002, at
3:31 a.m.; Skrlnyk, known as “Meachy Me,” sent his e-mail on Febru-
ary 9, 2002, at 5:14 p.m.
conduct and later discharged for abusive behavior to a cus-
tomer.
Frontier also notes that the affidavit77 Shepard provided, pos-
sibly several weeks after the incident, touching on the Jericho
conversation does not mention the e-mail or that Jericho said,
“let them organize, let them have their little meetings.”
As to Skrlnyk, Frontier argues that in his e-mail, he does not
corroborate his testimony regarding Jericho’s having said, “Let
them organize and we will fire them faster if they do.”
On balance, Frontier submits that both Shepard and Skrlnyk
were either lying or were victims of both drinks and frenzied
imaginations stemming from their enthusiasm for the CWA.
On the other hand, the Respondent argues that Jericho testi-
fied plausibly and in clear detail about Brown’s resignation and
her concerns about his not having a job lined up in a bad econ-
omy; that unions were not in any way connected to this conver-
sation. On the latter score, Frontier submits that if Shepard and
Skrlnyk are to be believed, Jericho, one day after Edington of
human resources advised coaches to be neutral in any union
organizational effort, made threats in an open discussion in the
presence of the two employees. The Respondent also points to
Jericho’s having been a member and supporter of the CWA in
Arizona and that the accusation of her harboring a general un-
ion animus is simply not credible.
If one were to perform a numerical exercise to resolve credi-
bility issues in unfair labor practice cases, the General Coun-
sel’s two witnesses in the instant case outnumber the Respon-
dent’s one and, given the unlawful nature of the offending
statements attributed to Jericho and the Respondent, the viola-
tion would be found. However, the process is not that simple.
First, Jericho was an impressive witness—confident, sure of
her dates, and candid—she readily admitted she did not care for
Shepard and generally answered all questions posed to her
without hesitation or evasion. There is nothing of record to
suggest that Jericho was against unions—either CWA or
RTWA—except from employees who clearly were enthusiastic
CWA supporters and therefore may have a motive to accuse
Jericho of making unlawful statements.
This brings me to Skrlnyk and Shepard. On balance, it was
clear to me that Skrlnyk was well disposed to answering ques-
tions posed by the General Counsel and not quite as forthcom-
ing with the Respondent’s counsel. Granted, he is a current
employee and testified at some pecuniary risk as the Board
recognizes; but he has made it clear that he was a CWA sup-
porter and has experienced nothing adverse on the job because
of that support. Skrlnyk’s affidavit testimony also reflects
some personal antipathy toward Jericho.78
Shepard, also a strong CWA supporter, has been discharged
by Frontier for conduct-related reasons. Moreover, Jericho
clearly did not like him, and probably the feeling was mutual.

77 RTWA Exh. 1. Shepard provided an (undated) affidavit to the
Board investigator on, as he says, prior to his termination, perhaps
shortly after the incident or in March 2002. He was not sure of the
dates on which he made the statements to the Board.
78 It seems that some of the techs would disparagingly refer to Jeri-
cho as coming from her own place or land, “Londaland.” See GC Exh.
6 wherein Skrlnyk alludes to this, as does another tech who testified at
the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1300
Then there is the e-mail that Shepard disseminated in the early
morning of February 9. The e-mail is not nearly as detailed as
his testimony at the hearing and contains much in the way of
Shepard’s own take on what was allegedly said by Jericho. The
only definitive remarks he attributes to her is “let them organ-
ize, they will be just fired faster.”
On balance, Jericho simply did not strike me as the type of
person who would make the type of statements attributed to her
among employees who were working in her shop, employees
that she was trying to exhort to give better service to the cus-
tomers. I recognize that Skrlnyk and Costa both testified that
the Jericho conversation occurred in February, about a month
before Jericho admitted to participating in a conversation with
them. That is indeed a great disparity. I also recognize that
Dave Alton or Brown was not called to corroborate her version,
and no reason was given for the failure. Nevertheless, I paid
careful attention to Jericho as she testified because of her in-
volvement in several charges associated with the case and she
impressed me and came off as a strong witness. Thus, I cannot
conclude that she made the statements in question. The evi-
dence on credibility grounds is in equipoise and, accordingly,
the General Counsel has failed in her burden to establish the
charge by the preponderance standard.79
I would recommend dismissal of this charge.
c. Londa Jericho’s alleged threat to discharge employees for
engaging in union activities; and d. Jericho’s alleged creation
of an impression of surveillance of employees’ union activities
The complaint alleges that Jericho violated the Act in two
separate instances on March 5, 2002, with respect to her deal-
ings with one employee, Alan Costa, on March 5.
Costa testified that he was very active in the cause of union
organization at the Jefferson Road call center as early as the
summer of 2001.80 Between the summer and through the accre-
tion in February 2002, he became a staunch supporter of the
CWA. According to Costa, he “pretty openly” went around
talking to the techs at their workstations; he actually went desk-
to-desk soliciting their interests in and concerns for the union
issue. Costa stated that before and after the accretion, he
openly distributed authorization cards for the CWA and be-
lieved that two of the coaches, Mazi Bakari and Sonya De-
nysenko, saw him circulating the CWA cards at some point.81
Costa recalled one day in late February, around the 26th,
when the CWA had scheduled a 5 p.m. meeting. Costa, who
worked the 12 midnight to 8:30 a.m. shift on Tuesday through
Saturday, said that he made a special trip to work before the
meeting to distribute authorization cards to techs he believed

79 There is to me an inherent problem with crediting or discrediting
witnesses who by their own admission were at a bar drinking, in all
likelihood, alcoholic beverages when the offending conversations al-
legedly were had. The possibility of exaggeration and memory loss is
all too obvious under these circumstances.
80 Costa, it may be recalled, is the lead IHD tech who e-mailed the
RTWA in July 2001, about his interest in having a union at the call
center.
81 Costa conceded that while distributing those cards, he did not go
out of his way to be seen by anyone in management—he just did not
actually attempt to conceal his activities.
had not received one in an earlier distribution effort.82 Costa
stated that when he returned to work the next week, on his first
day back, Londa Jericho, a supervisor who initially trained him
for his tech job at Frontier, took him to her office (cubicle) and
began a conversation with, “Alan, Alan what are we going to
do with you?”83 According to Costa, Jericho proceeded to say
that he had been observed in the tech support area distributing
union pamphlets and cards in working areas and that he was not
on duty at the time. According to Costa, Jericho said it was
against (union) bylaws to distribute union cards or pamphlets in
work areas during worktime. Costa said that Jericho did not
identify who had observed him or the specific bylaw to which
she was referring. Costa stated that Jericho also said that it was
a fireable offense to distribute these items anywhere on com-
pany property. Costa said there were no witnesses to this con-
versation.
Costa stated that the Company allows employees to distrib-
ute various items during worktime, including magazines, soft-
ware, greetings and event cards, as well as candy, and other
items sold for school fundraisers; these activities have been
conducted on company property during worktime and actually
in front (or in the presence of) management. Costa stated that
managers themselves have purchased various items. He related
a recent signing and circulation of a going-away banner for a
departing employee. He also identified one of the coaches,
Mazi Bakari, who brought in a catalogue for his daughter’s
school fundraiser and distributed it around the center.
Jericho was called by the Respondent to rebut the charges.
Jericho readily admitted that she had a discussion with Costa
about his distributing union materials around March or April;
she was not sure but thought more likely that the conversation
took place in April 2002.
Jericho explained her version of the encounter, saying that
she called Costa to her cubicle because it had been reported to
her that he had come in prior to his scheduled tour and was seen
approaching and distributing union fliers to other techs who
were on the telephone handling calls.
Jericho, describing the conversation as casual, stated that she
told Costa that he should not be distributing anything not work-
related84 on worktime. According to Jericho, Costa stated that
he was not on worktime, that he was distributing during his off
hours. Jericho said she told Costa that although he was not on
worktime, the techs he approached were working; he could not
distribute on company time. Jericho said she then proceeded to

82 Costa said he had been distributing cards at the IHD from the be-
ginning of the third week of February.
83 Costa could not pinpoint the actual day he spoke with Jericho but
could say it was postaccretion (February 26, 2002), some time during
the following week. The first week after February 26, covered the
dates March 4–8.
84 The transcript (at 2179) reads that Jericho said “. . . I told him that
he shouldn’t be distributing anything work related on work time.” In
my view, this is a mistake in transcription, given the total context of
Jericho’s testimony and is not consistent with my notes of her testi-
mony on this charge.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1301
explain to Costa that if he wanted to distribute materials, he
could do so in the breakroom on noncompany time.85
According to Jericho, Costa wanted an explanation as to why
he could not distribute the materials. Jericho said that she told
Costa that his activity, she believed, was prohibited somewhere
in the contract and referred him to a poster in the breakroom
listing the things employees could and could not do. For in-
stance, you could not sell gift wrap on company time. She also
mentioned that an employee who sold Pampered Chief products
did so in the breakroom.
Jericho stated that Costa responded by stating that the reason
he was being spoken to was because he was distributing CWA
materials. Jericho said that she told him the CWA had nothing
to do with the matter, pointing out to him that actually she was
a supporter and former member of the CWA and the issue was
about his generally engaging in a prohibited activity (nonwork-
related) on company time.
Jericho specifically denied telling Costa that his activity was
a dischargeable offense,86 stating that she did not think distrib-
uting literature merited such action. However, she stated that
she actually did not know whether it was or not.
Jericho recalled only one occasion when an employee selling
Girl Scout cookies solicited her. She told the employee she
could not sell to the techs on the floor, that the employee should
try to sell the cookies in the breakroom. Jericho stated that in
her view, their conversation was a simple and casual discussion
and contained no warnings about consequences.87
The General Counsel contends that Jericho’s statements to
Costa were unlawfully coercive. She submits that Jericho’s
telling Costa that his distribution of the CWA materials was a
fireable offense in the context of the Respondent’s allowing or
having allowed distribution of these items by other employees,
including at least one manager, poses a violation of Section
8(a)(1).88 The General Counsel further submits that the coer-
cive nature of the encounter between Jericho and Costa is un-
derscored by her telling him in that self-same encounter that
since the Company had moved her from Phoenix to Rochester,
had previously moved the help desk from Rochester to Phoe-
nix, that the Company could move the help desk anywhere it
wanted, or any department for that matter, and for any reason.89

85 Here again, the transcript states that Jericho said, “I explained to
[Costa] if he wanted to do [his distribution], it would be something to
do in the break room or non company time.” This is an error; my notes
reflect Jericho’s saying on noncompany time.
86 The transcript states (at Tr. 2181) “a finable expense.” This, too,
is an error in transcription. I have substituted what my notes reflect
was the nature of the question posed by the Respondent’s counsel. The
transcript should read “a fireable offense.”
87 Jericho said that part of the conversation with Costa at the time
was light discussion about his girlfriend in Canada and his personal
health issues, which included an episode involving a collapsed lung.
88 Mazi Bakari, the manager in question, supervised Costa in 2000
and perhaps in 2001. Bakari testified at the hearing and acknowledged
that he openly sold candy for his children’s school fundraisers. Bakari
said everyone brings candy in to sell to the employees; however, he did
not solicit or sell candy when people were working. Evidently, Bakari
received no warnings or counseling for his solicitation activities.
89 The General Counsel concedes this statement was not the subject
of a charge. Jericho explained the context of her admitted remarks,
The General Counsel also argues—consistent with the com-
plaint allegation—that Jericho’s telling Costa that his union-
related distribution activities had been reported to her was
unlawfully coercive because it created an impression that Costa
was being surveilled by management, which reasonably would
lead him to believe that his activities on behalf of the CWA
were being closely monitored. She submits that Jericho’s
statements, in toto, pose a violation of the Act.
The Respondent argues that Jericho’s testimony, being more
complete and candid and in material part unrebutted, should be
credited and Costa’s rejected. The Respondent submits that
Jericho credibly denied telling Costa that his distribution of the
materials was a fireable offense and that in no way did she
threaten him with termination; she merely told him to distribute
the material during nonworktime and in a nonwork area—the
breakroom. The Respondent argues that even Costa acknowl-
edged that no disciplinary action was taken against him by the
Respondent. Furthermore, Jericho’s credibility was further
buttressed by her support of the CWA and her patient explana-
tion to Costa that she harbored no ill will toward the CWA.
By contrast, the Respondent submits that Costa was not
credible. First, the Respondent notes that Costa was later ter-
minated by Jericho because she had previously placed him on a
formal warning status for poor attendance. At his exit meeting,
he called her an unholy concubine. Accordingly, his ill will
towards her makes him unworthy of belief in the one-on-one
situation presented and established on the record. The Respon-
dent notes that when Costa was called as a rebuttal witness, he
did not address Jericho’s alleged threats or the surveillance
issue.90
Regarding the surveillance allegation, the Respondent asserts
that it did not create an impression that it was surveilling Costa,
but Jericho (and whoever reported Costa’s activities to her) was
merely doing her job, monitoring the work activities of the tech
employees—a lawful prerogative of management.
Credibility, as in the other Jericho-related charges, again is
integral to resolution of at least the threat-to-discharge charge.
It merits repeating that the Respondent is charged with threat-
ening Costa with discharge for his union activities. The law-
fulness of the Respondent’s solicitation policy as enunciated by
Jericho is not at issue.
Turning to Costa, I believe he, like a number of techs, had
personal problems with Jericho and that, for reasons not en-
tirely clear on the record, he seemed to resent her. Perhaps it
was because she put him on final warning. I did not find him to
be a credible witness regarding his conversation with Jericho.

saying that in the course of her discussion with Costa, he blurted out,
“Could they [the Company] just move the desk, Londa?” Jericho ad-
mitted that she told him that the Company could move the help desk,
but that was essentially her opinion. Jericho denied that there was any
conversation about the anger or frustration of the techs being the reason
for their interest in the CWA and that Costa’s question was not asked in
that context.
90 When he testified at hearing, the first day in fact, Costa was em-
ployed by Frontier. The General Counsel called him back as a rebuttal
witness on March 11, 2003. It was disclosed then that Costa had been
terminated by Jericho for the reasons stated above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1302
Thus, I would conclude that the threat to discharge allegation
is not established, because I would credit Jericho’s denial of the
statement attributed to her. As I have indicated, Jericho pre-
sented as a strong and forthright witness and not solely when
testifying under examination by the Respondent’s counsel. She
also gave what I consider a fuller more complete version of her
actions and those of Costa. Second, it seems likely that in her
position, if she truly felt that Costa’s actions were serious
enough to cause him to be terminated, she would have taken a
more formal approach by documenting the violation.91 I note
that Costa said that when he was brought in by Jericho, she
said, “Alan, Alan, what are we going to do with you.” This
does not strike me as a prelude to a threat to fire some one.
Rather, it corresponds more to Jericho’s testimony that she
viewed the meeting as one wherein she merely informed Costa
casually of what he should not be doing, but also how he could
distribute the CWA materials without running afoul of work-
place rules.
I would recommend dismissal of this charge.
Turning to the surveillance charge, established Board law
holds that a respondent’s surveillance of its employees is
unlawful (under Section 8(a)(1)) regardless of whether the em-
ployee knows of the surveillance. Consolidated Edison Co. v.
NLRB, 305 U.S. 197 (1938); Impact Industries, 285 NLRB 5
(1987), remanded 847 F.2d 379 (7th Cir. 1988). Also, an em-
ployer violates Section 8(a)(1) if it even creates the impression
among employees that it is engaged in surveillance. Link Mfg.
Co., 281 NLRB 294 (1986), enfd. mem. 840 F.2d 17 (6th Cir.
1988). However, the Board has found no violation of the Act
in the case of management’s close observation of an em-
ployee’s activities while the employee was on duty or during
break periods during the normal course of business. See
American Medical Waste Systems, 311 NLRB 77 (1993).
The Board has enunciated the following test for whether an
employer has created an impression that it is surveilling the
employees.
[T]he test for determining whether an employer has created an
impression of surveillance is whether the employee would
reasonably assume from the statement that their [sic] union
activities had been placed under surveillance . . . . The idea
behind finding “an impression of surveillance” as a violation
of Section 8(a)(1) of the Act is that employees should be free
to participate in union organizing campaigns without the fear
that members of management are peering over their shoul-
ders, taking note of who is involved in union activities, and in
what particular ways. [(Flexsteel Industries, 311 NLRB 257
(1993).)]
I will be brief in treating with this allegation. Under the cir-
cumstances already discussed, I would find and conclude that
there was no surveillance or creation of an impression of sur-
veillance by Jericho. I note that Costa stated that he had been

91 It is not clear exactly when Jericho placed Costa on “final warn-
ing” for attendance issues and no documentation was adduced. How-
ever, the record is clear that with respect to final warnings, performance
improvement programs (PIPs), and other notices of employees’ per-
formance and attendance deficiencies, Frontier’s managers generate
written documents for the problem at hand.
circulating cards and pamphlets before and after the accretion,
and that he did not “actively” conceal his activities. Thus, he
did not seem to fear a supervisor’s seeing him handing out the
materials.
When he was brought in by Jericho, he was told essentially it
had been reported to her that he was engaged in these activities
while other employees were working. She thereupon told him
that he could not do that but that he could distribute his materi-
als in the breakroom and not on his or other workers’ worktime.
Thus, in my view, Costa (or other employees) could not rea-
sonably assume his activities were being monitored in a surrep-
titious and harassing manner. Jericho’s statement clearly did
not interfere with his rights to distribute the materials to the
techs. She merely advised him to distribute in a way consistent
with company policy. Moreover, Board law, as recited above,
allows the employer to monitor employees to insure they are
doing their jobs.
Clearly, Jericho received a report that Costa was approaching
employees who were talking to customers and that he, himself,
was off duty at the time. Jericho did not identify the person or
persons who made the report. The General Counsel seemingly
attaches a sinister connotation to this in support of the surveil-
lance charge. However, in my view, under the totality of the
circumstances here, the source of the report, in my view, is
immaterial. On balance, Jericho had a legitimate business-
related interest in bringing to Costa’s attention that he could not
distribute the CWA materials in his chosen way, which, in Jeri-
cho’s view, distracted other techs from their work. She advised
him and corrected him in such a way that in my mind no rea-
sonable employee should fear that management was peering
over his shoulders and taking note of his involvement in union
activities. Caterpillar, Inc., 322 NLRB 674 (1996). Accord-
ingly, I would recommend dismissal of this charge.
e. Mazi Bakari’s alleged creation of an impression of
surveillance
The complaint alleges that admitted supervisor Mazi Bakari
created an impression that employees’ union activities were
under surveillance on or about March 14, 2002.
By way of background, it is undisputed that in early Febru-
ary 2002, near the time of the first CWA organizing meeting on
February 7, alleged discriminatee Ron Boulware created an
Internet web page, “frontier_union@yahoogroups.com.”
Boulware created this website for CWA supporters among the
Frontier techs so that they could communicate with one another
about union issues. Boulware, as webmaster, managed and
controlled access to the site and only those he approved of were
allowed to subscribe to the mailing list and otherwise partici-
pate in discussions. Boulware testified that he never knowingly
allowed management access to the site.
The General Counsel called Charging Party Daryl Albright,
an IHD tech, who testified about conversations he claimed to
have had with Bakari about union issues.92 Albright stated that
in early January 2002, he asked Bakari if he knew the differ-
ences between the CWA and RTWA because he was interested

92 At the time of the hearing, Albright was employed as a tier I, level
2 tech working on the 3 to 11:30 p.m. shift.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1303
in unions at the time. According to Albright, Bakari said it
really did not matter because the techs were a part of manage-
ment and could not have union representation. Albright said
this conversation was a general one had to satisfy his curiosity
about the two unions. Albright said that he did not tell Bakari
that he personally was interested in joining a union; he simply
wanted to know the difference between the two.
Albright said that at about the end of February 2002, after
the accretion, he and Bakari had a conversation at his (Al-
bright’s) cubicle. According to Albright, the conversation
turned to the (Boulware’s) Yahoo Groups and Bakari said, “Do
you think you are the only one who reads the Yahoo Group,
Lucifer Prime.”93 Albright stated that Lucifer Prime was his
online name and he had not told Baker that he used that moni-
ker.
The General Counsel also called IHD tech Paul Christodou-
lou, who also subscribed to Boulware’s mailing list. Christo-
doulou related a conversation he had with Bakari and another
employee, Jared Coletti,94 in the help-desk breakroom. Accord-
ing to Christodoulou, Coletti came into the room and asked him
what was going on with the two unions and a brief discussion
ensued between them. Bakari then came into the room, and
Coletti asked Bakari what he thought about the union.95 Ac-
cording to Christodoulou, Bakari, with “passion,” said that he
knew about a message96 Daryl Albright had sent to the Yahoo
Groups but that things were very good at the help desk; that
when the techs complained about situations, they did not bring
these matters to management’s attention.
Christodoulou stated that he was surprised by Bakari’s
knowledge of the Yahoo Groups, which he thought was not
accessible by management and was exclusively for the help-
desk employees who wanted to discuss the CWA and supported
the effort to have that Union represent the techs.
Christodoulou acknowledged that Bakari did not say how he
knew what was submitted by Albright and that he assumed that
Bakari was referring to a particular message Albright had
posted on the site.97 According to Christodoulou, this conver-
sation occurred about a week before Boulware was fired in
March 2002.98 Christodoulou said that he believed that Bakari

93 Albright provided no particular context for this conversation other
than that it occurred and included the question allegedly posed by
Bakari. Albright could not recall how the conversation came up.
94 Coletti was subsequently fired by Frontier according to Christo-
doulou. Coletti did not testify at the hearing.
95 Christodoulou said that Coletti did not mention the CWA or
RTWA by name in his question to Bakari.
96 Albright in this message described how he had taped a meeting
with management and he thought the taping had protected him from
being fired. See CP Exh. 3, an e-mail from Albright a/k/a Lucifer
Prime to the Yahoo Groups dated March 13, 2002.
97 Christodoulou conceded that he did not actually know what spe-
cifically Bakari was referring to, saying that, “Well, when Mazi men-
tioned that he knew about the message, I was assuming that he meant
the message that Daryl had posted on the group about the taped conver-
sations . . . Just given the time that’s what it seemed like it was.” (Tr.
777.)
98 Christodoulou recalled the accretion because he was called in to a
meeting by his boss, Wergin, in early March 2002. However, he is not
wanted to let him and Coletti know he knew something they did
not. This was somewhat intimidating to him because it seemed
that Bakari knew he was a Yahoo Groups member.
Bakari testified at the hearing. Bakari stated that on a day af-
ter the accretion, he arrived at work and was greeted by various
employees who said that he was (in effect) the butt of some
widely circulating joke. Later, another tech, Daniel Wood,
forwarded to him the e-mail that Albright sent to the Yahoo
Groups on March 13, 2002.99 According to Bakari, he had no
knowledge of the existence of the Yahoo Groups until that day
when he found himself the butt of a joke.100
Bakari explained the background to the e-mail and Al-
bright’s reference to “Victory is sweet.” According to Bakari,
Albright, who was on his team, was about to be put on final
warning because of some performance and ethical issues. At
the meeting were a RTWA representative, Cliff Edington from
human resources, Albright, and himself. Bakari said when he
saw Albright’s e-mail, he thought it was quite amusing but he
did not know the CWA was involved. So when Albright said
“Victory is sweet, CWA all the Way,” Bakari said he was con-
fused, but thought it was a big joke and paid the matter no more
attention.
Bakari stated that he was familiar with Internet groups like
Yahoo; for example, you can also create a Microsoft group.
Bakari knew that anyone can create a group list but the creator
has the control of the list and gives access only to those whom
he chooses. Bakari said he did not know who set up the group
to which Albright subscribed and he, himself, was not a part of
it and never attempted to access it. In fact, until Daniel Wood
gave him the e-mail, he did not know it existed.
Bakari stated that the e-mail itself identified Albright as
Lucifer Prime by reference to “dalbright1@rochester.com,” but
that he only referred to him as Lucifer Prime on one occasion,
sometime in July or August 2002 when he solicited an invita-
tion to a big party Albright was having.
Bakari said that he gave a copy of the Albright e-mail to his
boss, Wergin, about a week later, but at no time told anyone in
management that he had access to the union Internet list.
Regarding his alleged conversation with Coletti and Christo-
doulou, Bakari was not examined by Frontier’s counsel or any
other of the parties. As such, the only evidence of that conver-
sation stands unrebutted.
The General Counsel asserts that Bakari was monitoring em-
ployees on the Yahoo site and in these conversations both Al-
bright and Christodoulou (and Coletti) created the impression
that he was surveilling them and their union activities. The

sure whether the Bakari/Coletti conversation occurred after this meet-
ing.
99 Bakari identified CP Exh. 3 as the e-mail in question. Bakari said
that a tech, Daniel Wood, provided him with a copy of the this e-mail.
This e-mail is identical to R. Frontier Exh. 29 except that in the latter
the address is whited out. Bakari identified this exhibit also. Daniel
Wood testified that he e-mailed this to Bakari on March 13, 2002, at
Bakari’s request because although he thought the e-mail was funny,
Bakari was actually being “bashed” by another employee.
100 It seemed that Bakari was very friendly with the techs and joked
around with them. He said he was somewhat taken aback by this
“joke” because he did not know what was going on.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1304
General Counsel submits that Bakari was not worthy of belief
because not only was he, in her view, evasive but his testimony
regarding how he got the Albright e-mail conflicts not only
with Albright and Christodoulou but also with Wood, who was
called by Frontier. The General Counsel submits that Bakari’s
direct reference to the Yahoo Groups, that a CWA supporter
created and controlled, would reasonably lead the employees to
believe their union activities were under surveillance.
The Respondent argues that there is insufficient evidence to
support a finding that Bakari either surveilled or created an
impression that he was surveilling employees. The Respondent
first attacks Albright’s credibility by asserting that he had an
axe to grind with Bakari who had placed him on final warning
in January 2002, and that Albright admitted that he was not
even on speaking terms with him around that time. Frontier
also notes that on cross-examination, Albright could not say
when the conversation with Bakari occurred, that it could have
taken place as late as April 2002, considerably past the accre-
tion and after the CWA had filed its representation petition.
Frontier submits that the General Counsel’s reliance on
Bakari’s one-time reference to Albright as Lucifer Prime, under
the totality of the circumstances surrounding the matter, is mis-
placed. Frontier contends that Bakari’s version of any conver-
sation he may have had with Albright is more credible. Conse-
quently, no violation should be found.
Regarding Albright’s claim that Bakari said, “Do you think
you’re the only one who reads the Yahoo Group, Lucifer
Prime,” I would be of the view that this statement could under
the extant circumstances constitute an unlawful creation of an
impression of surveillance. However, I am not persuaded that
Bakari made the statement. First, Albright had a motive to be
untruthful about Bakari who had disciplined him and had at-
tended the meeting on March 13. Evidently, Albright’s job was
on the line. Moreover, Bakari’s version of his discovery of the
existence of the Yahoo Groups through Wood’s providing him
with the e-mail and, hence, discovery of Albright’s online name
seems more plausible. If nothing else, Bakari provided a be-
lievable context for the entire matter. Albright’s version in a
sense comes out of whole cloth and, on balance, given his pos-
sible antipathy to Bakari, is not believable. I would recom-
mend dismissal of this aspect of the complaint.
Turning to Bakari’s alleged conversation with Christodoulou
and Coletti. As I noted earlier, Christodoulou's testimony is
unrefuted. I therefore conclude that as he testified, Bakari, in
partial response to Coletti’s question of what he (Bakari)
thought about the Union, said (paraphrased) that he (Bakari)
knew about a message Albright had sent to the Yahoo Groups
and that things were not very good at the help desk and that
when the tech’s complained about situations, they did not bring
these matters to management’s attention. Furthermore, I would
find and conclude that these statements in total context could
reasonably cause an employee to believe that his or fellow em-
ployees’ union activities were being surveilled.
I would agree with the General Counsel that it is not of legal
significance that Bakari may have obtained knowledge of the
Yahoo Groups legitimately from a fellow employee subscriber.
The clear message conveyed by Bakari is that management not
only knew of the list but its objective, its mission, participants,
and the content of the employees’ concerns. This reasonably
could have a chilling effect on employee/subscribers who
thought the list was secure and privileged only to them.
Granted, as employee Woods demonstrated, the list was not
indeed secure, but the employees like Christodoulou had no
actual knowledge that other subscribers were giving manage-
ment information about the list. Their (and any employees’)
reaction to Bakari’s revelation—intimidation—was normal and
reasonable in my view.
Managers like Bakari, in my view, must be very circumspect
while speaking to employees about sensitive matters affecting
employee rights, even when the information in question is ob-
tained legitimately. By the time of this conversation, which I
believe occurred more like sometime after March 14, and well
past the accretion, as pointed out by the Respondent, the CWA
had filed its petitions, its interest in representing the techs was
known. However, the matter was not a dead issue as a number
of techs were still very interested in having the CWA represent
them. Thus, a fear of surveillance could chill, reasonably so,
employees like Christodoulou in the exercise of their Section 7
rights.
I would find a violation of Section 8(a)(1) regarding Bakari’s
breakroom conversation with Coletti and Christodoulou.
f. Gail Noyes and Clifford Edington’s alleged threat to dis-
charge the techs for failure to pay dues and fees to the RTWA
on April 10, 2002
After the accretion, Frontier’s human resources department
held a number of meetings with the techs to explain the accre-
tion and its ramifications to their jobs in view of Frontier and
RTWA’s having entered into the memorandum agreement on
March 13, 2002. The meetings were held shortly after the exe-
cution of the agreement, most notably in early April, and were
scheduled to cover the three shifts the techs and other employ-
ees worked.
The complaint alleges that essentially, at one of these meet-
ings, two of Frontier’s human resources managers threatened to
discharge employees who did not pay dues and fees to the
RTWA.101
The General Counsel called a number of employees who tes-
tified about what they were told in the April 2002 meetings
with Frontier’s managers.
Albright said that he met with Edington and Noyes; other
techs were present, but no representatives of the RTWA at-
tended. According to Albright, the primary topic presented
related to the payment of dues. Albright said he was required
to sign a form that would permit an RTWA dues deduction
from his paycheck. According to Albright, the forms were
distributed, and he was not given any of the alternative payment

101 This allegation forms the basis for an alleged violation of Sec.
8(a)(2) of the Act by Frontier which is accused of unlawfully assisting
the RTWA on April 12, through the memorandum agreement between
it and the RTWA. See par. IX of the complaint. The RTWA also is
charged with violating Sec. 8(b)(1)(a) of the Act by dint of its receiving
support from Frontier by accepting dues/agency fees which were de-
ducted from employees’ wages by Frontier pursuant to the memoran-
dum agreement. See par. XI of the complaint. My disposition of the
8(a)(1) violation will per force dispose of these allegations.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1305
options, although at a later time he was told that the dues de-
duction authorization was not the only way he could pay the
dues. Albright stated that Edington and Noyes told him (and
the others) at this April meeting that if they did not sign the
forms, they would be terminated.102
Richard Carno, currently a lead help-desk tech at Jefferson
Road, testified that in 2002—he was unsure of specific dates—
he attended two meetings along with about 20 other techs at-
tending on each occasion, whereat union deductions were dis-
cussed by management representatives. At the second of these
meetings, about a week after the accretion, Carno stated that
Edington (and possibly Noyes) told the assembled techs that
because we were part of the (RTWA) Union if you don’t pay
dues, the RTWA could have you fired. Carno could not recall
Edington’s exact words. He also stated that he currently pays
his RTWA dues.
Kitty Maier103 said that she attended a meeting with Fron-
tier’s human resources managers, specifically Edington and a
woman whose name she could not recall; several techs were
also present. According to Maier, Edington explained what a
closed shop was, that employees don’t have to participate in the
Union but have to pay dues. He said that if an employee did
not pay her dues, the Union could ask the Company to termi-
nate her. Maier stated that automatic dues deduction forms
were distributed, and the employees were given a date on which
to return them to management. She also noted that no alterna-
tive procedure for paying union dues was mentioned by Eding-
ton.
Douglas Daly, currently employed as a tech on the help desk,
related a meeting in April convened by management to address
the RTWA contact. Daly stated that Edington, along with
Noyes and his boss, Wergin, led the meeting. Daly said that the
assembled techs were told, among other things, that they were
now covered by an addendum to the collective-bargaining con-
tract with RTWA.
Daly stated that someone at the meeting asked about dues
and whether the techs had to pay dues. According to Daly,
Edington said the dues would be $3.50 per week. Daly stated
that he asked Edington whether he could be fired if he did not
sign up to have dues taken out or did not pay by other means.
According to Daly, Edington said if the RTWA approached the
Company and asked for termination for nonpayment of dues,
the Company would have no choice but to terminate him be-
cause Frontier operated as a closed shop.
Noyes and Edington testified, and both confirmed that in the
meetings they held with the techs, the issue of dues and failure
to pay them was raised and addressed by them.
Noyes said that she was asked by Wergin to conduct about
five meetings dealing with compensation issues with the techs

102 Albright admitted that he taped a meeting with Edington and
Mazi Bakari which, he said occurred on April 11, and that a transcript
was created of the recording which was shown to and identified by him
at the hearing. The transcript was identified by Frontier’s counsel as R.
Frontier Exh. 3, dated May 20, 2002. Albright agreed that after review-
ing the transcript, there was no mention by anyone that he would be
terminated if he did not pay union dues at this meeting.
103 Maier was no longer employed by Frontier at the time of the
hearing.
because the Company had just negotiated the memorandum
agreement with the RTWA; the meetings were designed to
reach both techs and their supervisors on all of the shifts.
Noyes prepared a “talking point” memorandum for her and
Edington’s use to aid them in the presentation of the agreement,
which covered wages, holidays, vacations, promotions, and
agency shop provisions, including the techs’ obligation to pay
union dues.
Noyes stated that she told the employees that Frontier was an
agency shop company, that covered bargaining unit members of
both the CWA and RTWA were obligated to pay dues or their
equivalent, and that a payroll deduction procedure was avail-
able as one optional way to pay dues. Noyes said that she
never threatened to discharge any employees who failed to pay
dues and fees to the RTWA; she claimed merely to have in-
formed them of their contractual obligation.
Noyes admitted that she was questioned by the techs regard-
ing the consequences of not paying dues and specifically
whether they would be terminated. According to Noyes, she
told them if the RTWA came to management and requested
termination for nonpayment, the Company would have to look
at the issue and consider the request in conjunction with the
contract.104
Noyes denied (saying she did not believe) that she ever said
to the techs that under the contract she would have no choice
but to comply with the Union’s request to terminate an em-
ployee who elected not to pay dues. Noyes insisted that for
such an employee, she told the techs that should the Union
come forward and request termination for that reason, the Com-
pany would have to take a look at the situation pursuant to the
contract. Noyes, however, admitted at the hearing that in her
view, under the contract, even a good employee could be ter-
minated for a failure to pay dues.
Edington testified and basically corroborated Noyes, with
whom he was paired on occasion105 to make presentations to
the techs about the memorandum agreement. Edington says he
utilized Noyes’ talking points memorandum in his presenta-
tion.106 Edington recalls a question from a tech regarding the
failure to pay dues. According to Edington, he recalls explain-
ing to the employees that he really did not know what would
happen but that, technically in such a case, either Union
(RTWA or CWA) could petition to terminate the nonpaying
employee because the contracts for both contained agency shop
provisions.
Edington stated that neither he nor Noyes threatened the em-
ployees with termination for not paying dues but merely in-
formed them of the pertinent provision of the agreement which

104 See R. Frontier Exh. 26, summary of memorandum of agreement.
Noyes stated that she was involved in the negotiation of this agreement
along with company representatives Miles Wolzinski, the Company’s
labor negotiator, April Christian, and Mike Canova; Marie Rodgers,
and Darlene Kelly represented the RTWA.
105 Edington stated that Noyes joined with him at all but two meet-
ings with the techs.
106 Edington stated that the talking points memorandum did not serve
as a script. It seems that he and Noyes used it to cover questions they
anticipated would be asked of them about the coverage of the memo-
randum of agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1306
required, under agency shop principles, that all unit members
be dues-paying participants or pay an equivalent amount. Ed-
ington insisted that he did not tell the techs what would happen
if an employee failed to pay dues, that he said the bridge had to
be crossed when they got to it; but that under the agreement, the
Union could petition to have the employee terminated.
Edington recalled telling employees that the payroll deduc-
tion plan for paying dues was available to make payments eas-
ier for the employees.
Edington conceded that he (or perhaps Noyes) may have said
to the employees that if an employee elects not to pay his dues
or an equivalent amount, the Union’s president can approach
management and ask that the employee be terminated and that
he (or Noyes) may have said that they would have no choice
because paying dues is part of an agency shop. However, Ed-
ington stated that he and Noyes were trying to answer the techs’
questions without causing them any alarm. Edington was fairly
sure that neither he nor Noyes told the techs in any meeting that
the Company would fire employees if they failed to pay dues.
The General Counsel asserts that Edington and Noyes informed the
techs that if they failed to pay the RTWA dues, they would be dis-
charged, that their statements constituted an unlawful threat to dis-
charge. The General Counsel submits that, irrespective of the exact
words employed by the human resource representative, the employees
reasonably concluded that they had to pay the dues or they would be
fired for failing to pay them.
The Respondent contends that Edington and Noyes merely
informed the help-desk employees that the memorandum of
agreement required the payment of dues, and a failure to pay
could cause the RTWA to ask Frontier to terminate nonpaying
employees. The Respondent asserts that even one of the Gen-
eral Counsel’s witnesses—Maier—corroborated Edington and
Noyes on the dues issue. Furthermore, the talking points
memorandum does not mention that employees would be fired
for nonpayment of their dues. Frontier points out that, in addi-
tion, RTWA never requested the termination of any employees.
The Respondent submits this charge should be dismissed.
It is undisputed that the extant collective-bargaining agree-
ment between Frontier and RTWA contains in article 22 thereof
a union-security clause. This clause has not been asserted as
unlawful by the General Counsel. It is also undisputed that the
memorandum of agreement provides in paragraph 9:
The provisions of Article 22 Agency Shop [of the RTWA]
Contract shall take effect as of the date that the memorandum
is signed [March 13, 2002] thus providing 30 days for em-
ployees in the job classifications herein to commence paying
the Union dues/agency fee.
It is not contended that this provision is unlawful.
The issue, first, is what Frontier’s management may have
told the gathered employees in terms of the consequences of
their failure to pay the dues and fees associated with the agency
shop provisions. The employee witnesses (with notable excep-
tion of Maier) all testified that Edington and Noyes said they
would be fired for such failure. If they said this, then, in my
view, under the circumstances at the time, a violation of the Act
would be made out. It is noteworthy on this point that irrespec-
tive of Frontier and RTWAs coming to agreement on the accre-
tion of the techs, there were still a number of employees who
supported the CWA, which had by April 10, filed its represen-
tation petition. If Edington and Noyes directly or indirectly
threatened to discharge employees who elected not to pay dues,
then, clearly and reasonably, their Section 7 rights were inter-
fered with in an unlawfully coercive way.
As noted, article 22 of the collective-bargaining agreement
essentially states that each bargaining unit member, irrespective
of union affiliation, must pay dues or an equivalent amount to
the RTWA as a condition of employment rather than 30 days of
the member’s employment. This provision, often referred to as
a union-security clause, according to Respondent’s managers,
was to be applied to the newly accreted techs. Article 22, by its
terms, however, allows employees to revoke their dues authori-
zation and Frontier is authorized to discontinue the takeout and
is required to notify the RTWA of the revocation.
The collective-bargaining agreement does not further address
specifically or generally what would happen if a unit member
declined to pay his or her dues.
Thus, if Edington and Noyes told the techs and other em-
ployees that they would be fired for failing to pay dues or fees
as required by the contract, this, in my view, would be a serious
misstatement or even a misrepresentation of the contract’s
terms. Given the context of the employee meetings, including
the questions asked by the techs and questions and controversy
surrounding the accretion at the time, these statements would
be in my mind highly coercive and would constitute a violation
of the Act.
However, if Edington and Noyes, in the context of their
meetings with the new bargaining unit members,107 told them
that they could be terminated by the Company for failing to pay
dues if asked to do so by the RTWA, there would be no viola-
tion in my view. In such a case, an employee would understand
that termination was only a possibility, which, in my view,
militates against a charge of unlawful coercion. Employees
could, for instance, still support the CWA without fear of dis-
charge if they elected not to pay the dues/fees called for by the
contract. Therefore, there is a significant difference between
“could” and “would” terminate for failure to pay the dues and
fees in issue under the then-extant circumstances surrounding
the statements in issue.
It is clear that Frontier, at some point after signing the
memorandum of agreement, deemed it necessary to meet with
the newly accreted help-desk employees and explain what this
meant for them under the collective-bargaining agreement to
which they were now subject. Edington and Noyes conducted a
number of meetings with these employees toward that end. As
one would expect, the employees, not all of whom were pleased
about the accretion, had questions based on Noyes and Eding-
ton’s talks. Notably, the employees evidently raised the ques-
tions regarding the failure to pay dues and the human resources
managers responded.
I found both Noyes and Edington to be highly credible wit-
nesses. Both were experienced personnel managers—Noyes
with over 30 years and Edington with 15 in the field—and testi-

107 Notably, the techs were not then in a position to have revoked any
authorizations but were clearly subject to the union-security clause
condition of employment language.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1307
fied candidly and with professionalism. It seems highly
unlikely that professionals would simply threaten to discharge
employees under any circumstances, but surely not in the
course of the meetings, which all would admit were charged
with controversy. It also seems highly unlikely that either
Noyes, Edington, or both would misrepresent or mischaracter-
ize the original collective-bargaining agreement or the memo-
randum of agreement. Noyes’ talking points memorandum
underscores, in my view, their concern for not making mistakes
about important parts of the memorandum, including the dues
requirement. Regarding the employees who testified that they
heard Noyes and Edington say employees would be discharged,
I believe they were mistaken. I would credit Noyes and Eding-
ton’s versions.108
Thus, I would find and conclude that Noyes and Edington, in
their several meetings with the newly accreted help-desk em-
ployees, were merely explaining to them that the payment of
dues/fees to the RTWA was a condition of employment at
Frontier under the memorandum of agreement and the collec-
tive-bargaining agreement.
I do not believe that in so explaining the memorandum of
agreement’s ramifications for the employees, Noyes and Eding-
ton told them that they would be discharged for failing to pay
dues. Also, I do not believe that telling the employees that they
could be terminated upon request by the RTWA could reasona-
bly be construed by the employees to mean they would be ter-
minated for failing to pay the required dues. I would recom-
mend dismissal of this aspect of the complaint.109
2. The 8(a)(2) and 8(b)(1)(A) allegations
The complaint in paragraph IX charges Frontier, in essence,
with rendering unlawful assistance and support to the RTWA
by virtue of its granting recognition to that Union as the exclu-
sive collective-bargaining representative of the Company’s
help-desk techs on February 26, 2002. Frontier is also charged
with unlawfully assisting and supporting the RTWA by enter-
ing into the previously discussed memorandum of agreement
on March 13, 2002. Specifically, with regard to the memoran-
dum’s agency shop provisions, Frontier is charged with unlaw-

108 It is of persuasive significance that both Noyes and Edington in-
dicated no leaning towards either the RTWA or CWA in their testi-
mony. In short, there was no animus or bias against or for either the
CWA or RTWA that I could glean from their testimony or demeanor.
Notably, Noyes, to a greater extent, and Edington, to a somewhat lesser
extent, have been dealing with both of the Unions for some time and
have probably spoken to many employees over that period about the
collective-bargaining agreements and their consequence. I do not be-
lieve they would, in this instance, threaten employees while explaining
the contract in question.
109 I note in passing that I have previously found that the accretion
was lawful. It follows that the memorandum of agreement was in turn
also lawful and legitimate. To the extent the General Counsel argues
that the actions of Noyes and Edington were in violation of the Act
based on her contention that the accretion was not lawful, I would
reject that argument. See, for comparison, Lanco, 277 NLRB 85, 96
(1982), where the Board upheld the judge’s holding that the employer’s
unlawful recognition of the union-security clause rendered the subse-
quent contract unlawful and that the employer’s explanation of the
terms of the security clause was likewise unlawful.
fully assisting and supporting the RTWA by maintaining and
enforcing the agreement and applying its terms to the help-desk
techs. Frontier is also charged with unlawful assistance and
support of the RTWA by deducting dues/agency fees from the
help-desk techs’ wages and remitting these to the RTWA from
about April 12, 2002, to the present. The complaint alleges that
these actions were undertaken by Frontier even though the
RTWA did not represent an uncoerced majority of the help-
desk techs whose accretion to the RTWA unit was not lawful,
all in violation of Section 8(a)(1) and (2) of the Act.110
In paragraph XI of the complaint, obversely, the RTWA is
charged essentially with violating Section 8(b)(1)(A) of the Act
by dint of the unlawful accretion; by receiving assistance and
support from Frontier; accepting recognition from Frontier111 as
the exclusive collective-bargaining representative of the help-
desk techs without representing an uncoerced majority thereof;
bargaining for and entering into the memorandum of agree-
ment, and incorporating and applying the agency shop provi-
sions thereof; maintaining and enforcing the memorandum of
agreement; requiring the help-desk techs to pay dues/agency
fees to the RTWA as a condition of their employment with
Frontier; and accepting dues/agency fees deducted by Frontier
from the help-desk techs’ wages pursuant to the aforemen-
tioned memorandum of agreement.
I have previously concluded that based on my review and
analysis of the relevant accretion principles and guiding case
authority that the accretion of the IHD techs was lawful. The
aforementioned violations of Section 8(a)(1), (2), and (3) as
well as 8(b)(1)(A) are, at bottom, based upon the accretion.
Therefore, I would find and conclude that the General Counsel
has failed to establish these charges and, accordingly, I would
recommend dismissal of those charges.
3. The 8(a)(3) discharge allegations; Ron Boulware
and David Carmer
The complaint in paragraph X essentially alleges that Fron-
tier on about March 21 and 27, 2002, respectively, discharged
IHD techs Ronald (Ron) Boulware and David Carmer because
of their activities on behalf of and in support of the CWA
and/or to encourage employees to join and assist the RTWA;
the complaint also alleges that the discharges were based on
Boulware and Carmer’s being engaged in protected concerted
activities.
It is undisputed that Boulware and Carmer were discharged
on or about the dates as alleged.112

110 The Respondent is also charged with violating Sec. 8(a)(3) and
(1) through the actions alleged in para. IX. My disposition of the
8(a)(1) and (2) charges will in turn dispose of this allegation.
111 On October 8, 2002, the General Counsel requested an amend-
ment correcting a clerical mistake in the original charge by substituting
Frontier for the RTWA. I granted the amendment.
112 R. Frontier Exh. 29 indicates that Boulware was terminated on
March 19. This exhibit is actually a notice sent by Frontier’s security
officer, William J. Barnes, notifying the security force that Frontier
regarded Boulware and Carmer as persona non grata, and cites their
termination dates and reasons for termination. It is not in my view a
personnel action-type of document. Boulware credibly testified that he
was terminated on March 20, 2002.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1308
It is also undisputed on this record that both employees were
IHD employees who supported the CWA’s bid to represent the
techs at the Jefferson Road call center before and after the ac-
cretion.
The General Counsel argues that both were terminated dis-
parately because of their support of the CWA and for activities
they engaged in on behalf of that Union. The Respondent
(Frontier) insists that both employees were fired for legitimate
reasons unrelated to any union-related activities or support on
their part. Furthermore, the Respondent contends that the Gen-
eral Counsel did not meet her initial burden to show that Boul-
ware’s and Carmer’s union activities and the Company’s hostil-
ity—animus—to the Union were the reasons for their termina-
tion.
Applicable Legal Principles
In cases where employers are charged with violations of Sec-
tion 8(a)(3)113 and (1)114 of the Act, the Board set forth its test
of causation in the case of Wright Line, 251 NLRB 1083
(1980), enfd. F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). Under this test, for determining, as here, whether
an employer’s discharge of an employee was motivated by
hostility toward union membership or union activity, the Gen-
eral Counsel has the burden of persuasion to show that pro-
tected conduct was a substantial or motivating factor in the
employer’s decision. Buckeye Electric Co., 339 NLRB 334
(2003).
A prima facie case is made out where the General Counsel
establishes union or protected activity, employer knowledge of
that activity, animus, and adverse action against those involved,
which has the effect of encouraging or discouraging union ac-
tivity. Farmer Bros. Co., 303 NLRB 638, 649 (1991).
If this initial burden is met, then the burden of persuasion
shifts to the employer to prove its affirmative defense, that it
would have taken the same action even if the employee had not
engaged in protected activity.115 If the reasons advanced by the
employer for its action are deemed pretextual, that is, if the
reasons either did not exist or were not in fact relied upon, it
follows that the employer has not met its burden and the inquiry
logically ends. Where an employer asserts a specific reason for
its action, then its defense is that of an affirmative defense in
which the employer must demonstrate by a preponderance of
the evidence that the same action would have taken place even
in the absence of protected conduct. Thus, an employer cannot
simply present a legitimate reason for its action but must per-
suade by a preponderance of the evidence that the same action

113 Sec. 8(a)(3) of the Act (29 U.S.C. §158(a)(3)) makes it an unfair
labor practice for an employer to discriminate “in regard to hire or
tenure of employment or any term or condition of employment to en-
courage or discourage membership in any labor organization.”
114 Sec. 8(a)(1) of the Act makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in section 7 of the Act.”
115 The protected activity includes not only union activities but also
invocation and assertion of rights guaranteed employees under Sec. 7 of
the Act. NLRB v. City Disposal Systems, 465 U.S. 822 (1984); Inter-
boro Contractors, 157 NLRB 1295 (1966).
would have taken place. Kellwood Co., 299 NLRB 1026, 1028
(1990).
Notably, the Respondent’s defense does not fail simply be-
cause not all of the evidence supports it, or even because some
evidence tends to negate it. [Fn. omitted.] Merrilat Industries,
307 NLRB 1301, 1303 (1992).
It is well settled under Board precedent that the timing be-
tween the employer’s action and known union activity can sup-
ply reliable and competent inherent evidence of unlawful mo-
tive for purposes of the Wright Line analysis. Whirlpool Corp.,
337 NLRB 726, 739 (2002). Grand Rapid Press, 325 NLRB
915 (1998); Kinder Care Learning Centers, 299 NLRB 117
(1990); Alson Knitting, Inc., 301 NLRB 758 (1991). Also,
where an employer accelerates a discharge or layoff of an em-
ployee in close proximity to union activity, this, too, may sup-
ply evidence of unlawful motive. IMAC Energy, 305 NLRB
728, 736–737 (1991); American Wire Products, 313 NLRB 989
(1994).
With the foregoing serving as a backdrop, we turn to the
charges involving first Ron Boulware and then David Carmer.
a. Ron Boulware’s termination
Boulware testified at the hearing about events and circum-
stances leading to his discharge. Boulware began his employ-
ment with Frontier on December 4, 2002, as a tier II lead tech
and by the time he was discharged on March 20, 2002, had
risen to a tier III lead tech. Boulware was hired by Wergin and
supervised over his time with Frontier by several supervisors or
coaches, namely Jennifer Fioc, Jeff Brown, Mazi Bakari, and
Londa Jericho.
Boulware claimed that he became involved in the CWA or-
ganizing effort around January 2002, attending meetings, dis-
cussing organizing with his fellow techs, wearing CWA but-
tons, and posting a small CWA sign on his cubicle wall.116
Boulware also created on his personal web sever an Internet
web, frontier_union@yahoogroups.com, on about February 8,
2002, to promote discussion regarding the unionization of the
Internet help desk. Boulware’s user name was “Bitzer.” Boul-
ware said he also engaged in certain other activities in support
of the CWA, including distributing and collecting CWA au-
thorization cards, which activities were conducted mostly at his
workstation.117
Regarding his Yahoo Groups website, Boulware stated that
he alone governed access to this site, that it was password pro-
tected. Anyone could gain access to the web page but unless
the person had requested membership to the list and had been
approved by him, Boulware stated access would be denied

116 See GC Exh. 15, a button that declared “CWA Yes!” which
Boulware said he pinned to his shirt or tie or his book bag and wore at
work. Boulware said he had a jar of these on his desk. According to
Boulware, the sign was on the outside wall of his cubicle (facing the
aisles or walkways used by employees) and said, “If Union; why not
CWA . . .” (See GC Exh. 16.)
117 Boulware identified a diagram indicating where his work area
was located in the call center, as compared to the entrance of the call
center, and an area frequently used by techs called the “war room.” See
GC Exh. 14.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1309
beyond the home page.118 Boulware said that he has declined
membership to only one person during the time the site has
existed because the requester would not identify himself.
Boulware stated that he never admitted anyone from manage-
ment to the site and that the persons on the mailing list are all
techs employed by Frontier who had concerns and questions
about union organizing.
Boulware stated that on March 13, 2002, he created a CWA
mission statement website to inform the help-desk techs about
the need for representation by the CWA. Boulware said that
he, as a member of the CWA organizing committee, established
the site for techs who were unable to attend meetings. The
mission statement was broached and discussed and drafted by
the committee.
Interested techs were invited to add their names to the mis-
sion statement both at the meeting and, after he created the
website, online.119 According to Boulware, the site was acces-
sible through the Internet; one merely had to type in the web
page address, http://www.bitzer.org/CWA, to gain access to the
site. According to Boulware, he never gave anyone from Fron-
tier’s management access to the site.
Boulware acknowledged that he was placed on a perform-
ance improvement plan (PIP) by his supervisor, Jeff Brown, on
February 1, 2002,120 because he was deficient in terms of his
availability (to handle calls) statistics, which had fallen below
the Company’s goal of 95 percent availability. According to
Boulware, he improved his availability within the month121 and
received his yearly review from Brown on March 14, 2002.
Boulware also admitted that in January 2002, he began e-
mailing (forwarding) work-related mail to his personal account
at his residence. Boulware stated that around March 4, he was
approached by Jericho around 4 p.m. (at the beginning of his
shift) as to why he had been at work since 2 p.m. Boulware
said he told her then that he forwarded e-mail he received at
work to his residence when he was not at work. According to
Boulware, Jericho told him not to do this. Boulware said he

118 See GC Exhs. 18 and 19. GC Exh. 18 shows Boulware’s website
that one would access on the Internet. GC Exh. 19 shows the website
after a subscriber gained full access to the site and, thus, could partici-
pate in the discussions of the moment and generally browse the site.
119 The mission statement is contained in GC Exh. 17. It includes its
stated mission and purpose, lists the organizing committee members,
and provides an on-line submission form for persons desirous of adding
their names to the effort. According to Boulware, he included the
names of the techs listed in the exhibit because they had signed on
earlier, others were added later as they signed on by submitting their
names online.
120 See Exh. 21, the performance improvement plan signed by Boul-
ware and Brown. The PIP required Boulware to improve his perform-
ance over the next 60 days or face additional action, including termina-
tion.
121 It should be noted that Boulware’s evaluation for the month of
February 2002, given him by his then-supervisor, Londa Jericho,
showed that he had improved his availability to 98.03 percent. Jeri-
cho’s comments regarding his availability statistics states that Boulware
did an “awesome job.” Boulware’s performance in other areas ranged
from “premier” (the highest rating) to unsatisfactory (the lowest). See
GC Exh. 22. Boulware stated that at this time the CWA organizing
drive was in full swing. (Tr. 1062.)
told her he would cease the practice that same evening. How-
ever, according to Boulware, he experienced a systemic prob-
lem with having the forwarding feature removed from his com-
puter and went to the mail server department at Frontier to re-
solve it; however, that department could not help him.
Boulware said that, eventually, Jericho gave him some in-
formation to remove the feature. Even with her input, Boul-
ware said that he was not able to resolve the problem without
causing additional problems. Boulware explained that if he
removed the forwarding feature, the system responded by delet-
ing all of his e-mails. So if the forwarding was turned off, he
received no e-mails at work.
Boulware said that he recontacted the mail server department
on March 14, and there spoke to an individual, John Blum, to
whom he explained the problem. However, as it happened, his
annual review was also scheduled for March 14, so he had to
break off with Blum to attend the review meeting. Boulware
said that he told Blum he would call him back and then set out
to tell Jericho about the actions he was taking to resolve the
problem; Jericho’s office was near the conference room where
his annual review was to take place.
According to Boulware, when he got to Jericho’s office, he
observed her looking at his CWA mission statement web page
while on the telephone describing it to someone and revealing
the names of those listed on the site as supportive of the CWA.
According to Boulware, Jericho said she would e-mail the web
page address of the mission statement and began typing in the
web address.122
Boulware stated that he told Jericho that he was going to a
meeting and would call the mail server department afterwards
regarding the e-mail forwarding problem.
Boulware said that he went to the review meeting with
Brown who explained how he could resolve the e-mail forward-
ing problem. Following Brown’s instructions, Boulware said
that he was able to turn off the forwarding feature. Boulware
said he then e-mailed Jericho, telling her of his success on
March 14.123 According to Boulware, at no time did Jericho
indicate that he would be disciplined for the e-mail forwarding
matter.
Boulware stated that even before he became actively in-
volved in the unionization efforts at Frontier, there were con-
cerns about unions expressed by employees. Boulware ex-
plained that the Company used to maintain an internal web
message site for all employees, who could speak about almost
any topic of choice; e.g., building temperatures, troublesome
customers, gripes about management, dress codes, professional
responsibility, and general employee conduct. Boulware stated
there was in addition much in the way of random discussion
about unions, and that managers utilized the message board.

122 Boulware said Jericho’s back was to him as he made these obser-
vations as he walked into her office. She was viewing the site, scroll-
ing the page interactively. According to Boulware, the Company used
a “Witness” system, which enabled it to take a screen shot of any com-
puter’s ongoing programs. However, Boulware stated that Jericho was
using the website as if she had gained complete access to it, and not just
taking a screen shot.
123 Boulware identified GC Exh. 24 as a copy of the e-mail he sent
Jericho on March 14, at 6:06 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1310
Boulware cited Jericho and another supervisor, Andy Cramer,
who also participated in discussions on the message board.124
Boulware noted that the techs had a web page of their own and
there were a series of links that connected that page to this mes-
sage board which was not password protected.
Boulware stated that on February 3 or 4, 2002, although the
Company erased the contents of the message board, he and
other employees continued to use it. Boulware claimed that
there was a reference to the CWA on the message board prior
to February 5, 2002, through a link to the CWA’s national
home page.125
Boulware recalled the March 20, 2000 meeting at which he
was terminated. Boulware said that Edington, Jericho, Rick
Harvey for the Company, and Art Keeler representing the
RTWA were present at the meeting.126
Edington began by asking him about the mail forwarding is-
sue and stated that he (Edington) had been told that Boulware
was told to stop the practice but had not. Boulware told Eding-
ton that the matter had been resolved for over a week; he had
discontinued forwarding his e-mail. After some discussion
among themselves, the management representatives, according
to Boulware, seemed satisfied that he had ceased forwarding
his e-mail home and the issue was dropped.
However, Edington then raised another topic and told him
that it had been brought to his attention that Boulware had sent
proprietary information beyond the Company’s network secu-
rity—fire wall—system. Boulware said he denied this, where-
upon Edington asked if he had sent information on the message
board to the Yahoo Groups. Boulware admitted that he had,
but that he did not consider anything on the message board
proprietary.127
According to Boulware, Edington said that Frontier consid-
ered the message board’s contents proprietary and that by send-
ing its contents to an outside source, he had violated the com-
pany policy. Edington asked him if he were familiar with the
Yahoo Groups and whether he knew Don DePerma. Boulware
said he acknowledged being familiar with the Yahoo Groups
and knowing Don DePerma as a CWA organizer helping the
techs with the organizing campaign.
Boulware said he also told the assembly managers that he
forwarded the message board’s contents to the Yahoo Groups
because a Board agent investigating matters at Frontier wanted
to attempt to obtain those parts of the message board that had

124 Boulware identified GC Exh. 25, which appears to be a series of
anonymous messages covering dates from October 20–December 27,
2001, and January 2–February 8, 2002, as part of the contents of the
employees’ message board.
125 Boulware recalled that the CWA website appeared on the mes-
sage board http//www.CWA–Union.org and that he visited the site to
verify that it was that Union’s web page.
126 Boulware stated that prior to this meeting, he asked management
whether he could have a CWA representative. He was told he could
not. He also noted that at the time of this meeting, the CWA organizing
drive was ongoing; authorization cards had been distributed and col-
lected, buttons and shirts were being worn in the workplace, and meet-
ings were being held every week.
127 Boulware identified GC Exh. 26 as the message board informa-
tion he sent to the group on March 7, 2002, and which was the subject
of the meeting.
been erased and see that which remained. Boulware told the
managers he felt that since he was acting pursuant to the Board
investigation, it was okay to send the message board’s contents.
Boulware said that he also told them he did not think there was
anything of consequence (to the Company’s interests) in the
submission. According to Boulware, the managers did not
really respond to his proffered Board investigation rationale.
However, according to Boulware, Harvey stated that since a
both customer user’s name and a web-based service utility used
by the Company were mentioned in the messages, that these
were important from the Company’s point of view.
According to Boulware, Edington asked him (Boulware)
whether he knew about the Company’s Acceptable Use Policy
(AUP) and what was his understanding of the policy. Boulware
said that he responded at some length about his understanding
of the policy, along with some of his concerns he had raised
with Wergin months earlier regarding its application and effect
on the normal tech job functions. According to Boulware, he
acknowledged at the hearing that he generally understood that
the AUP required employees to keep non-Frontier communica-
tions separate from company-related communications and pro-
hibited employees from using the Company’s computer system
to violate any other corporate policy. Boulware realized that
violations of the AUP could result in termination.
Boulware, however, told Edington (and the others) that he
did not believe the proprietary information restrictions con-
tained in the policy applied to techs because techs, in simply
doing their jobs, violate the policy by installing customer soft-
ware systems on their computers to resolve problems with the
Internet. Boulware said that he brought this problem to his
boss’ (Wergin) attention months before he was made aware of
the new AUP in January 2002. Boulware said that he told
Wergin that techs do any number of things to perform their jobs
that technically violated the AUP. Boulware stated that after
getting verbal assurances from Wergin that there was no prob-
lem, he signed the AUP on January 7, 2002.128 Boulware said
that he explained his views of the policy at some length to the
meeting participants.
At the hearing, Boulware, however, acknowledged receiving
an e-mail from Wergin to the coaches on January 22, 2002,
reminding the tech teams in very strong language that the techs
had signed a document clearly stating anything on their com-
puters would have to be “corporate standard” and that games
and other inappropriate “stuff” should not be on their com-
puters. The e-mail warned that violations would be punished
by final warnings or termination based on Wergin’s earlier
warning on the subject on May 24, 2001.
Boulware said that the PIP was not mentioned at the March
20 meeting, nor was there any mention of his being disciplined
because of e-mail forwarding.
Boulware claimed that Frontier’s supervisors had, on occa-
sions themselves, violated the AUP, but with little or no conse-
quence to his knowledge. Boulware stated that shortly after he
started at the help desk, Jericho made available to the techs a
program called Secure CRS which allowed the user to commu-
nicate with a server to perform certain network functions; e.g.,

128 See R. Frontier Exh. 8.
FRONTIER TELEPHONE OF ROCHESTER, INC. 1311
testing computer connectivity. According to Boulware, Jericho
also provided them with another program that would allow
them to avoid the registration requirement that would permit
authorized (licensed) use of Secure CRS. Boulware said that,
in his mind, Jericho’s use of unauthorized computer software
violated the AUP. Boulware also stated that Bakari violated the
AUP when he played “pirated” movies on the Company’s com-
puter screens in the “war room” area of the center. However,
according to Boulware, Bakari’s boss, Wergin, permitted
Bakari to do this as long as he did so in the evening.
Boulware said that regarding the e-mail forwarding issue,
Frontier’s managers allowed him to forward work-related items
home. He identified a DSL escalation form that he created for
use by the techs on the floor as an example of an item he e-
mailed to his home, worked on it there, and then sent it back to
work with the knowledge and approval of supervisor Andy
Crane and Jericho.129 Boulware said that former coach Jeff
Brown told him he had forwarded his e-mail home, but Boul-
ware could provide no dates for this.130
Boulware said that at the March 20 meeting he admitted that
he could see the Company’s point of view regarding the for-
warding of the messages to the Yahoo Groups and apologized
for violating the policy because he was trying to save his job.
Boulware stated that he may have said as a consequence, “it
was my major fault here.” Boulware noted that at the end of
the meeting he was terminated.
The Respondent called several management witnesses to re-
but the claim that Boulware was unlawfully terminated.
Gregg Wergin, the help-desk manager, testified about the
Company’s Acceptable Use Policy. Wergin said that first, the
AUP is of such importance that all coaches and employees at
the call center are made aware of it, asked to read it and under-
stand it, and then sign a document indicating that they indeed
had these understandings. Additionally, all employees are pro-
vided with the document as part of their initial training. Wer-
gin viewed adherence to the policy as very important and con-
sidered the AUP the law of the call center, a point he said he
had made clear to all of the techs.
Wergin said that at least as early as June 5, 2001, he sent a
security awareness letter to the techs outlining his concerns
about techs installing unauthorized operating systems on their
company computers. According to Wergin, installing unli-
censed software, instant messages, or any software used for

129 See GC Exh. 13, an exhibit, “bitzer’s 1337 DSL Escalation
form.”
130 Alan Shepard testified and claimed to have on many occasions
forwarded work and nonwork-related e-mails to his home from work.
In the fall of 2001, in a casual conversation with a coach, Eric Saxe,
Shepard said that Saxe did not seem to have any problem with e-mail
forwarding and seemed neutral on the matter. Shepard conceded that
no one from management, including Saxe, actually permitted the for-
warding of e-mails and there was no company policy that would permit
forwarding. He admitted that company policy actually prohibited send-
ing information obtained at work beyond the fire wall. Shepard said,
however, e-mail forwarding was a common practice at Frontier and that
to his knowledge, only Boulware and another employee, Kevin Justice,
were disciplined for the infraction. Notably, Saxe testified at the hear-
ing and said that he could not recall any employee telling him of their
forwarding e-mails to their home to work on company matters there.
chatting without authorization, misusing the Company’s mes-
saging (e-mail) system, playing games, shopping by computer,
or visiting inappropriate sites exposes the Company to large
fines or other liability. Wergin said that the message he tried to
convey was that the network system was to be used for Frontier
business only and that misuse compromised network security;
that violations could result in discipline, including termination.
Wergin stated that employees were required to sign AUP forms
as early as 2001, based on these concerns and his notices.131
Wergin also noted that Frontier’s employee handbook132 ex-
pressly deals with use of company e-mail, Internet access, and
the Company’s intranet. Wergin specifically referred to the
following provisions of the handbook at pages 26–27 to under-
score his concern about compliance with the AUP:
3. Inappropriate Use
Inappropriate use of email, internet access and intranet
access by employees is prohibited. Examples of such use
include but are not limited to:
b. Transmitting internet bulletin boards, chat rooms, and
other public forums, individuals, business or organizations
that are not affiliated with the Company information from
or about Citizens Communications that is sensitive, confi-
dential, restricted, proprietary or that has not been made
available to the public.
4. Copying Information
Distribution of any Company information through the
internet or intranet, email and messages systems, bulletin
board systems, public or private newsgroups or other
means is strictly prohibited unless authorized by an appro-
priate official of Citizens Communications. Without prior
approval, employees are not authorized to contribute or
post material to or through the internet under Citizens
Communications’ name and may not use Citizens Com-
munications’ facilities for these purposes.133
Wergin could not recall having a specific conversation prior
to March 2002, with Boulware about the AUP. Rather, he
communicated with techs as a group via e-mail and instructed

131 See R. Frontier Exh. 14, an e-mail to call center employees dated
June 5, 2001, advising them that several employees were not following
the AUP and advising that a copy of the policy had been delivered to
their desks, and was also available online. The exhibit also included a
security awareness article dated August 6, 2001, from what appears to
be Frontier’s newsletter. The article outlines a number of impermissi-
ble uses of the Company’s computer network. Wergin notes that this
security awareness article or its contents were issued on June 5, 2001.
132 See R. Exh. 15, a copy of the handbook Wergin said was in use at
Frontier since January 2000. According to Wergin, the handbook is
revised and updated occasionally but remained in effect for the years
2000 through 2002. Wergin could not definitely say it was distributed
in hard copy to all employees but that it was available online on the
Company’s internal network. He could not say with certainty whether
all employees signed the acknowledgment form on the last page of the
handbook.
133 These provisions of the handbook are in accord generally with
part II of the AUP that Boulware signed in January 2002. Neither the
handbook nor the AUP are alleged as unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1312
them to follow it “exactly;” no one was permitted not to follow
the AUP.
Turning to events leading to Boulware’s discharge. Wergin
identified the documents that were shoved under his door by an
unknown person on March 7 or 8, 2002,134 which said:
Gregg, this was done on company time and was taken off the
message board and posted to Yahoo Groups which then is
forwarded to the CWA and other techs that have signed up.
Doesn’t this violate company policy.
Wergin noted that the address portion of the document clearly
identified that Boulware had sent it to a website, fron-
tier_union@yahoogroups.com, on March 7, 2002, at 7:14 p.m.,
and the contents of the document originated from the Com-
pany’s internal message board.135 Wergin said that once he saw
the documents, he went to the message board site and person-
ally viewed the comments. Later, he showed the document to
corporate security and Jericho, Boulware’s coach. Wergin said
he also later spoke with Boulware about the matter with spe-
cific reference to the AUP. However, Wergin said that he did
not attend Boulware’s termination meeting.
Jericho testified about Boulware’s termination and other
matters regarding his employment at Frontier.
Jericho said that she knew Boulware as one of the first hired
help-desk employees; and she trained him personally. He re-
ported to her for about 1-1/2 months of his total time with the
Company.
Jericho said that in February 2002, Canova, Christian, and
Wergin decided to have the techs report to one coach to deal
with extensive problems surrounding the techs’ availability and
calls per hour statistics. Jericho said she selected herself to be
one of these coaches. Her job was basically to whip the techs
into shape. She became Boulware’s coach after this fashion.
Jericho said, however, that she knew that Boulware had had
job performance problems, especially when he reported to
coach Jennifer Fioc, who advised her that Boulware’s credibil-
ity was at issue because he stretched the truth regarding his
whereabouts and performance during the workday.136
Because of his problems, Boulware was placed on a PIP in
February 2002 because of his poor availability and calls per

134 Wergin identified R. Exh. 17 as the 16 pp. of comments taken
from the Frontier message board. Wergin said that these pages were
the entirety of the documents shoved under his door.
135 Wergin noted that the message board was not part of roc.info,
roc.lead, or roc.talk websites. Rather, the message board was estab-
lished to allow the techs to make comments on and about the Com-
pany’s web page and as such was part of the Company’s link on the
IHD support page.
136 The Respondent called Jennifer Fioc, a coach who supervised
Boulware from December 2000 through September 2001. Between
February 18, 2001, and September 6, 2001, Fioc wrote Boulware up
numerous times regarding his job performance, ultimately threatening
him with termination if he did not improve. (See R. Frontier Exh. 31–
37.) According to Fioc, Boulware‘s main problems were schedule
adherence, availability, and not following instructions. It should be
recalled that Boulware was put on the PIP by coach Jeff Brown, who
succeeded Fioc as Boulware’s supervisor.
hour statistics.137 Jericho admitted that during the time she
coached Boulware his performance improved quite substan-
tially.
Jericho also addressed the issue of the Company’s alleged
permissive use of unauthorized software at the call center.
Jericho said that she was familiar with Secure CRS, a soft-
ware program one could use remotely to connect with a com-
puter or another server; for example, a home computer. Jericho
said that right before Boulware was terminated he approached
her and said, “out of the blue,” that he was extremely concerned
about the Company’s using unauthorized or illegal software at
the center. Boulware mentioned specifically the Company’s
possible unlicensed use of Secure CRS.
Jericho said she explained to him that Frontier had applied
for a license to use Secure CRS and had gotten approval from
Frontier’s information technology department through Christian
to make the purchase for around $22,000. However, later the
Company cancelled the order because one of the Company’s
programmers (John Morrisey) advised her of downloadable and
free programs equal to Secure CRS available on the Internet for
use without a license. Jericho said that based on this, the Se-
cure CRS order was cancelled; the Company stopped using
Secure CRS around the end of March or early April 2002.
Jericho said that she became aware of Boulware’s forward-
ing his e-mail in early March 2002, by virtue of her discovery
that he was e-mailing work-related tips to a help-desk mailing
list (tech info) in the morning and early afternoon when he was
not scheduled for work; Boulware’s scheduled tour of duty was
4 p.m. to 12:30 a.m. According to Jericho, she advised him that
such forwarding violated company policy and ordered him to
remove the forwarding feature from his computer. According
to Jericho, on about March 6, Boulware questioned her and
demanded to know the specific policy prohibition. Jericho
responded by sending him an e-mail that included the company
policy and the appropriate company office (FTS Security) to
answer additional questions he might have.138 However, ac-
cording to Jericho, Boulware did not remove the feature and, in
further discussions with him, Boulware said others, including
coach Jeff Brown, continued to forward their e-mail.139
Jericho said that because she felt that Boulware was not fol-
lowing her instructions, she drafted an employee conversation
note on the forwarding issue on March 13.140 Jericho says she

137 Jericho noted that other techs had been placed on PIPs because of
similar performance issues. Jericho also stated that at the time she had
no knowledge of CWA organizing activities, and that the PIP, in his
view, had nothing to do with his support for the CWA or any union.
138 Jericho identified R. Frontier Exh. 9 as the e-mail she sent to
Boulware on March 6, 2002. Notably, in the “email string,” Boulware
states that he could not find a direct reference to the forwarding matter
in the AUP. Jericho’s response included a copy of the text of the policy
that addressed his concern.
139 Jericho recalled that Wergin at some point reprimanded Brown
for forwarding e-mails because Brown told her that he had gotten in
trouble for doing this.
140 A conversation note is a document employed by Frontier’s man-
agers to express their concerns about an employee’s performance. The
conversation note is contained in R. Frontier Exh. 36 and is dated
March 14, 2002. In this document, Jericho sets out her conversations
with Boulware and the actions he had supposedly taken to eliminate the
FRONTIER TELEPHONE OF ROCHESTER, INC. 1313
wrote the note out of frustration with Boulware’s apparent re-
fusal to follow her instructions regarding the removal of the
forwarding feature and to document what she viewed as his
insubordination, as well as his violation of company policy.
Jericho felt that Boulware was also telling her a “made up
bunch of stories” when he really was not sincerely taking care
of the problem. Jericho said that Boulware sent her the e-mail
on March 14, indicating that he had resolved the problem itself
about 2 hours after she had the last discussion with him.
Turning to Boulware’s violation of the AUP on March 7.
Jericho said that Wergin gave her a copy of the e-mails (along
with the interoffice envelope) that Boulware had sent to an
outside website, advising her that it had been pushed under his
office door; Wergin asked her to investigate the matter. Jericho
said she was familiar with the contents, that the e-mail mes-
sages were copied and posted from the internal message board
and were evidently sent to the Frontier Union’s Yahoo website
by Boulware on March 7, 2002.
Jericho stated that Wergin instructed her to consult with the
Company’s human resources department; she spoke with Ed-
ington about her concerns on the telephone.
According to Jericho, her conversation with Edington was
very lengthy (about an hour) because he was unfamiliar with
some of the technical (language and concepts) aspects of the
documents taken from the message board and could not under-
stand why Boulware was sending internal documents beyond
the corporate fire wall. While on the telephone with Edington,
she directed him to Boulware’s own website (as it appeared on
the documents), Ron[Bo]ulware wrote:
To all
He was written up and put on probation for this, After spend-
ing Hr with this customer. Who’s problem was herself and
her computer. He did everything he could to help her, and got
it shoved up his ass. On the word of a customer, who was
lame to begin with. This is outrageous.
Carmer said that Boulware responded as follows to his message
on March 13, at 12:31 p.m.

157 Carmer said he established another message online group, Tech
support union @yahoogroups.com, about 3 days before he was termi-
nated. Carmer said that he controlled access to this site and screened
members, much in the same way as Boulware.
I say we fucking spam marie rodgers with bitch-fest style
emails about this whole sorted cherade. she should soon re-
gret “absorbing” such a pissed off group of people who have
the means to cripple mail servers.
*cackles with insane glee*
--rb
Carmer then responded as follows on March 13, at 7:11 p.m.
Cripple Email, , Hell we could bring down the Corp
network, and the ISP if we all put our minds to it . . . .
HEHEHEHE, I got this Linux trojan that, , , , ,
Carmer also admitted that he authored another comment to the
Yahoo Groups 2 minutes later on March 13, at 7:13 p.m.
Well hey, the corp network runs like shit any way, if we took
it down it would probably be a improvement, , , ,
HAHAHAHA158
Carmer said on March 26, while at work, Wergin asked to
see him in his office. Upon arrival at Wergin’s office, he met
with Wergin and Frontier’s head of corporate security, William
(Billy) Barnes.
At the meeting,159 Carmer said he was asked about the
March 13 e-mails and he admitted that he had sent them but
they were merely meant to be jokes as indicated by the laughter
language contained in the messages; that Boulware and he were
joking with each other and just blowing off steam.160
Carmer said he asked Barnes where he had obtained the e-
mails; Barnes said he did not know. Carmer said that Wergin
told him that he posed a threat to the corporate network and
corporate security. At the end of the meeting, Carmer said he
was terminated.
According to Carmer, he had joked with managers, mainly
Brown and Jericho, about the network “quite a bit,” saying on
those occasions that it would be doing the Company a favor if it
were taken down, the Company would have to start over. On
those occasions, everyone just laughed. Carmer said that he
was not reprimanded for these “jokes” which he had made (be-
fore the offending e-mails were sent) during periods when the
network was having substantial problems.161 Carmer said that

158 The comments are contained in GC Exhs. 8 and 9.
159 Carmer said he gave his consent to Wergin to tape record the
meeting. Carmer also acknowledged that Barnes and Wergin told him
he had a right to have a RTWA representative present at the meeting.
He declined the offer.
160 To underscore the joking nature of his remarks, Carmer said that
with regard to “Linux Trojan,” he does not believe that there is a Tro-
jan, a virus introduced into a system disguised as something else, that
would work in the Linux operating system, that he had never seen a
Linux Trojan although he conceded Trojans could be introduced on
Microsoft systems.
161 Interestingly, on the issue of jokes, Jericho testified that on the
day of his termination, she and Carmer were taking a smoke break
together and Carmer appeared upset and rattled over Boulware’s termi-
nation. According to Jericho, Carmer, whom she described as plain-
spoken, said he was so irritated about Boulware’s termination that he
would bring down the network. Jericho said she told him not to joke
about this. Carmer said it was not a joke. However, Jericho said she
did inform management about his comments because she knew he was
FRONTIER TELEPHONE OF ROCHESTER, INC. 1321
he acknowledged to Barnes that it was possible to view his
comments as threatening, and that at the time Frontier was at a
heightened state of security in the aftermath of “9/11.”162
Carmer said that the Yahoo Groups’ mailing list was a web-
site where techs could talk privately about issues going on in
the workplace. Carmer said, therefore, his e-mail conversation
was meant only for members of the site, that no one from man-
agement was to have access to it.
Carmer stated that Boulware’s name came up in the meeting
with Wergin and Barnes who asked if he knew Boulware and
whether Boulware was angry about something.
Regarding his union activity, Carmer conceded that no one
from management ever asked him to remove his CWA buttons,
nor was he ever threatened with discipline for wearing the but-
tons. Carmer knew of no other CWA supporters among the
techs who were ever disciplined for wearing buttons and most,
to his knowledge, were still working for Frontier.
Carmer conceded that he was aware of and signed the AUP
and that the policy covered and prohibited the conduct con-
tained in the offending e-mails.163
Wergin testified about Carmer’s discharge.
Wergin stated that copies of the Carmer e-mails, like those of
Boulware, were put under his office door by an unknown per-
son—he believed perhaps about a week after March 13.164 In
response, Wergin said he contacted both Frontier Internet secu-
rity personnel as well as Corporate Security Director Barnes.
Wergin stated that he took the threats contained in Carmer’s e-
mails very seriously165 because he did not think it was a joke,
and coincidentally the corporate computer network did go
“down” for about a day, one day before he received Carmer’s
messages,166 which included the “bring down the network”
language. According to Wergin, Frontier had not determined
why the system went down, and Carmer’s e-mails heightened
his concerns that someone may have sabotaged the system.
Wergin said the matter was investigated by corporate secu-
rity, IT security, and himself. Wergin said he discussed the
matter with Barnes of corporate security but the local police
were not contacted. Wergin said Carmer was terminated be-
cause of his threats to bring down Frontier’s network.

to have a disciplinary meeting to discuss the matter. On rebuttal, Car-
mer denied having any such conversation with Jericho on the day he
was terminated.
162 This date refers to the September 11, 2001 attack on the World
Trade Center Buildings in New York City and the Pentagon in Virginia.
163 Carmer signed a copy of the AUP on January 22, 2002. (See R.
Exh. 6.) Part 4 of the AUP generally prohibited interference with or
disruption of Frontier’s network and specifically described propagation
of worms and viruses as a prohibited act, as well as providing assis-
tance to another to do this. Carmer said he had also signed a similar
AUP when Global Crossing owned Frontier.
164 Wergin identified GC Exhs. 8 and 9 as copies of the e-mails from
Carmer. Wergin said that he queried his management teams whether
they had seen someone place anything under his door; no one evidently
saw anything.
165 Wergin at the hearing emphatically stated his concern by saying
in response to counsel’s query whether he took the e-mails seriously,
“Oh you better believe it, darn right, especially after September 11.”
166 Wergin said that the network goes down perhaps four to five
times per year, but he could not explain why this happened.
Barnes167 testified that he was requested to conduct a formal
interview of Carmer on March 27 by Wergin who provided him
with a copy of the messages Carmer was thought to have e-
mailed.
Barnes and Wergin met with Carmer on March 27. Barnes
stated that Carmer was told of the formal nature of the meeting
and the investigation and his right to union representation,
which Carmer declined; and that the interview would be taped.
According to Barnes, Carmer initially denied receiving an e-
mail from Boulware and, once shown the e-mail message,
agreed that he had received it from Boulware and replied as it
appeared on the e-mail.
Barnes confirmed that Carmer said that the messages were
just a joke, that he was just kidding, and that Frontier was mak-
ing a mountain out of a mole hill. Barnes said that he told
Carmer that it was not a joke to him—it was a very serious
threat against the Company and one suggesting a conspiracy
between two people to do damage to the Company. Barnes
stated that his former law enforcement experience, as well as
the events in the aftermath of 9/11, influenced his thinking.168
Barnes stated that, to him, Boulware was speaking of crip-
pling the system and Carmer was providing the weaponry, the
Trojan, to accomplish the deed. Barnes said he told Carmer he
did not believe he was joking and Carmer agreed that he (Car-
mer) could see his point of view. Barnes said that Carmer told
him he initially denied the e-mail to see what information Bar-
nes possessed.
Barnes stated that Wergin did not tell him where or how he
obtained the e-mails. However, Barnes thought the source of
the e-mail was not important and did not inquire about this.
Barnes agreed that Carmer told him he had sent the e-mail from
his residence, to which Barnes said he attached no significance;
Barnes said that his concern was that Carmer had escalated
Boulware’s (spam) remarks to a definite threat against the
Company.
Barnes stated that Carmer was terminated by Wergin and he
personally was asked to escort him from the call center. Later,
Barnes said he prepared and distributed to corporate security a
flier, with Boulware's and Carmer’s pictures, declaring them
persona non grata and barring them from the premises.169 Bar-
nes said that Boulware was included in the notice because he
believed that Boulware was a co-conspirator with Carmer.
Barnes stated that he did not know prior to Carmer’s termi-
nation whether Carmer had any affiliation with the CWA.170

167 Barnes described himself as Frontier’s manager of investigations
whose responsibilities include investigations of security-related matters
affecting the Company. Barnes’ previous occupation was detective for
the Rochester Police Department, a position he had held for 25 years.
168 Barnes referred to reports after 9/11 that an FBI agent’s warnings
were not taken seriously prior to the attack. Barnes stated that it was
his view that had they been taken seriously, 9/11 may have been pre-
vented.
169 See R. Exh. 27, Barnes’ memo/flier to Burns Security. Barnes
said that the Company also denied the pair access to the Frontier net-
work.
170 On cross-examination, Barnes said that at the time of Carmer’s
termination he was aware that something was going on regarding a
union campaign and because there were only two Unions at Frontier,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1322
Barnes volunteered that until the hearing he had not even no-
ticed that Carmer’s e-mail header referred to Frontier union
Yahoo groups; he did not read the complete header but concen-
trated on Carmer’s name and the message for purposes of the
investigation he conducted.
The General Counsel contends that at the time of his dis-
charge, Carmer was a known supporter of the CWA, having
signed onto Boulware’s CWA mission statement,
www.bitzer.org/CWA, which declared the signer’s support for
CWA representation of the help-desk employee; and that Car-
mer overtly showed his support for that Union to Frontier’s
managers before he was discharged. In agreement with the
General Counsel, I would find and conclude that prior to and at
the time of Carmer’s discharge, Frontier was aware of his sup-
port for the CWA or unions in general. First, I would credit
Carmer’s testimony regarding his demonstrated support for the
CWA at the workplace, including his wearing of buttons in the
presence of supervisors and handing out cards. Notably, also,
the CWA campaign at the call center was a highly visible mat-
ter around March 13, 2002. Additionally, the headers on the
Internet messages between Boulware and Carmer prominently
declared “cwa bitzer” frontier_union@yahoogroups.com. and
clearly indicated a CWA or union connection between Carmer
and Boulware, and these messages form the basis for Carmer’s
discharge.171
The General Counsel argues that Carmer’s comments on the
Yahoo Groups’ website in question were protected by the Act
because this site was, like the message board, used by him for
union organizing and to discuss terms and conditions of em-
ployment with fellow subscribers and union supporters. Fur-
ther, unlike the message board, the Yahoo site was not owned
or operated by Frontier. Carmer considered the Yahoo site a
private communications forum for employees and supporters of
the CWA organizing effort at the call center. Moreover, she
submits, Carmer made and received the communications from
his residence. The General Counsel submits that the Yahoo
Groups was a forum created and used by Frontier employees
for protected behavior and accuses the Company of an unlawful
surveillance of private e-mails which led to Carmer’s discharge.
In agreement with the General Counsel, I would find and
conclude that Carmer, like Boulware, engaged in protected
activity in their discussions on the Yahoo site. However, in
disagreement with her, I would not find any evidence of sur-
veillance by the Respondent regarding its general knowledge of
Carmer’s comments. Wergin credibly explained how he re-
ceived Carmer and Boulware’s comments. Evidently, there
were members of the Yahoo Groups or some other person(s)
with access to the site. Seemingly, they were not sympathetic

the RTWA and CWA, he deduced they would be involved. Barnes
recalled some union activities a couple of years before in the context of
an attempt by one of the unions, as he put it, trying to take over another
union.
171 It should also be noted that Mazi Bakari, on or about March 13,
had given Wergin a copy of Wood’s e-mail received from Albright
which, inter alia, proclaims “Victory is sweet, CWA all the way.”
Albright’s e-mail header included frontier_union@yahoogroups.com.
This e-mail also spoke of a CWA general membership meeting on
March 18.
to Carmer’s cause and provided the messages to Wergin.
Clearly, Carmer was discharged for the comments he made in
the context of protected activity. Therefore, in my view, the
General Counsel has established a connection between pro-
tected conduct and the adverse action of Frontier.172
As with Boulware, the timing of Carmer’s comments sug-
gests animus by Frontier against his support for the CWA after
the accretion, if not the CWA itself. Accordingly, I would find
that for purposes of Wright Line, the General Counsel estab-
lished a prima facie case of violation of the Act.
Turning to the Respondent’s defense of its discharge of
Carmer, the Respondent contends that Carmer’s comments to
“take down” or disable its network were facially threatening to
the Company and, as its cyber security expert Joseph Aina testi-
fied, could result in no less than a complete catastrophe for its
operation.173
Furthermore, given the post 9/11 atmosphere, the Respon-
dent submits that Wergin took Carmer’s comments seriously
and consulted with no less than three of its network security
components and later, along with its security chief met with
Carmer to discuss his e-mail.
As a result of the interview with Carmer, the Respondent ar-
gues that it justifiably determined that Carmer’s threat consti-
tuted punishable misconduct and that he, as an employee with
direct access to its computer system, could no longer remain
with the Company. The Respondent asserts that Carmer’s ter-
mination was based solely on his threat to the network.
With respect to the Carmer discharge, I will be brief.
In my view, it is beyond any serious doubt that Carmer’s e-
mail comments, irrespective of where they originated (his per-
sonal residence not withstanding) could reasonably be con-
strued to be of a threatening nature by anyone reading them.
Although if one were of a liberal mind, one could view the
comments as a joke—the General Counsel’s position. How-
ever, it goes without saying that humor, to the extent it can be
found, derives its quality or jocular effect from the context in
which the so-called humorous statement or act is made. In the
context of the aftermath of the 9/11 attack on the United States
which includes, even as I write, a much heightened concern for
security—we are on a war footing if not in a declared war—

172 I should note that the offending message or comments in question
by Carmer are fairly commingled with or in response to clear work-
related “terms and conditions” comments from Albright.
173 Summarized, Aina outlined the following possible consequences
of an interruption of its network operations:
1. If 9–1–1 [emergency] service is disabled, then customers
will be unable to contact law enforcement agencies, paramedics
and fire departments. This can literally cause life or death harm.
2. Frontier could be sued for any deaths, injuries or property
damage that may result from service interruptions.
3. Frontier stands to lose revenue if its customers cannot rely
on its services, and they switch to a competitor.
4. Customers could be lost and/or Frontier sued if customers’
private information stored on Frontier’s network is released to the
public.
(5) Frontier could have to pay substantial fines imposed by the
Public Service Commission for service interruptions. [R. Fron-
tier’s Br. p. 124.]
FRONTIER TELEPHONE OF ROCHESTER, INC. 1323
Carmer’s comments, in my view, were, if not irresponsible,
highly ill-advised.
Carmer’s comments, simply said, were not funny and, based
on his conversation with Jericho, he may well have not been
joking. Notably, Barnes, a man with substantial experience
dealing with criminality, credibly testified that Carmer’s con-
duct, along with Boulware’s threat to spam Rodgers, was con-
spiratorial and that Carmer, by virtue of his job, has not only
the means but also ample opportunity to disrupt, at the least, the
Company’s network. Barnes and Wergin viewed the matter
seriously from a security perspective and concluded that Car-
mer’s comments were threatening. I would find and conclude,
given the extant circumstances, their response was reasonable.
The General Counsel contends that Frontier permitted joking
banter threatening of company property or persons on other
Frontier e-mail listings such as rock.info and roc.talk. She
contends that techs, speaking in their own lingo called “elite
speak,” often spoke with bravado of hacking into company
computer network and used language that suggested threats to
the system. Further, that management was aware of this and
tolerated the comments. By discharging Carmer for similar
conduct, she contends the Respondent treated him disparately.
The General Counsel asserts that Frontier’s reasons for dis-
charging Carmer are pretextual.
I have considered the evidence of jokes asserted by the Gen-
eral Counsel on this point and, in all candor, these communica-
tions between the techs and other employees are rather silly
contextually and substantively. In my view, these remarks in
no reasonable way could be construed to be threatening to
Frontier’s security or other interests. In fact, some appear to
reflect a friendly competition between tech teams to provide
more and better service to Frontier’s customers. This, of course,
is beneficial to the Company. On the other hand, I cannot find
that Carmer’s comments, in context, were the equal of the
rather playful banter the General Counsel argues demonstrates
disparate treatment and pretext.
In conclusion, I would find and conclude that the Respon-
dent has met its Wright Line burden, clearly establishing that it
would have discharged Carmer for the comments in question
irrespective of his having engaged in union or other protected
activity. I would recommend dismissal of this charge.
CONCLUSIONS OF LAW
1. The Respondent Frontier is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. By creating an impression among its employees that their
union activities were under surveillance, the Respondent vio-
lated Section 8(a)(1) of the Act.
3. By discharging Ronald Boulware because he engaged in
union and other protected activity, the Respondent violated
8(a)(3) and (1) of the Act.
4. The aforementioned unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent has not violated the Act in any other
manner or respect.
REMEDY
Having found that the Respondent Frontier has violated Sec-
tion 8(a)(1) and (3) of the Act, which action warrants a reme-
dial Order, I shall recommend that it cease and desist from
engaging in such conduct and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having discriminatorily discharged Ronald Boulware, I shall
recommend that the Respondent Frontier be ordered to make
him whole for any loss of earnings and other benefits he may
have suffered by virtue of the discrimination practiced against
him, but only consistent with my findings and conclusions re-
garding his discharge and its aftermath herein; mainly, that any
loss of earnings and benefits that he may have suffered be reck-
oned from the time of his discharge to the date of the Respon-
dent’s discovery of conduct on his part not protected by the
Act.
I shall further recommend that the Respondent be ordered to
expunge from its records any reference to Boulware’s unlawful
termination and to give Boulware written notice of such ex-
punction and to inform him that its unlawful conduct will not
be used against him as a basis for any future personnel-related
actions. Backpay shall be computed in accordance with the
formula approved in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]