Michigan Bell Telephone Company

National Labor Relations Board - Administrative Judge Opinions

Jun 21, 2018

07-CA-161545 (N.L.R.B. Jun. 21, 2018)

JD─40─18
Grand Rapids, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MICHIGAN BELL TELEPHONE COMPANY, AND
AT&T SERVICES, INC., JOINT EMPLOYERS
and CASES 07–CA–161545
07–CA–165384
LOCAL 4034, COMMUNICATIONS WORKERS 07–CA–166130
OF AMERICA (CWA), AFL–CIO 07–CA–170664
07–CA–176618
07–CA–177201
07–CA–182490
07–CA–184669
07–CA–190631
Steven E. Carlson, Esq., for the General Counsel.
Stephen J. Sferra and Jeffrey A. Seidle, Esqs. (Littler
Mendelson, P.C.) and John M. Phelan, Esq., for
the Respondents.
Michael L. Fayette, Esq. (Pinsky, Smith, Fayette &
Kennedy, LLP), for the Charging Party.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This matter is before me on a second
amended consolidated complaint and notice of hearing (the complaint) issued on February 27,
2017, arising from unfair labor practice charges that Local 4034, Communications Workers of
America (CWA), AFL–CIO (the Union or the Local) filed against Michigan Bell Telephone
Company, and AT&T Services, Inc., Joint Employers (the Respondent or the Company).1
Pursuant to notice, I conducted a trial in Grand Rapids, Michigan, on August 15–17,
October 30–November 3, and December 11–15, 2017 at which I afforded the parties a full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence.

1 The Respondents admitted joint employer status for purposes of this case, and they were generally
referenced as one entity throughout the course of the trial. Unless the distinction is otherwise relevant, I will
henceforth refer to them in the singular.
JD─40─18
2
Issues
(1) Did the Respondent, by requiring Administrative Assistant Brian Hooker to resume
performing work as a technician (tech) in the workload on December 13, 2015, and to 5
fill out a union activity log, retaliate against him for his activities on behalf of the
Union and/or make unilateral changes in a mandatory subject of bargaining without
giving the Union notice and an opportunity to bargain?
(2) Since about December 23, 2015, did the Respondent fail and refuse to furnish the 10
Union with relevant information that it requested (RFI) pertaining to Hooker’s
grievance for being placed back in the workload and having to submit union activity
logs?
(3) Did the Respondent retaliate against Hooker for his union activities by taking the 15
following adverse actions against him:
(A) Written warning – March 3, 2016.2
(B) Suspension – April 27.
(C) Final written warning/suspension – May 10.20
(D) Final written warning/suspension – May 10.
(E) Written verbal warning – August 12.
(F) Counseling – September 6.
(G) Counseling – September 6.
(H) Verbal warning – September 6.25
(I) Suspension pending discharge – October 10.
(J) Discharge – October 13.
(4) Since about April 8 and about May 26, did the Respondent fail and refuse to furnish
the Union with relevant information that it requested pertaining to a grievance 30
regarding the Company’s “swapping” of assigned trucks between Hooker and two
other techs on February 28?
(5) Since at least March 22, has the Respondent maintained a corporate confidentiality
policy entitled “Reporting Privacy Related Incidents” that contravenes the Board’s test 35
in The Boeing Co., 365 NLRB No. 154 (2017)?
At trial, counsel for the General Counsel (the General Counsel) orally withdrew
Paragraphs 9, 15, and 16 of the Complaint.
For reasons to be stated, I conclude the following:40

2 All dates hereinafter occurred in 2016 unless otherwise indicated expressly or clear by context.
JD─40─18
3
(1) The Respondent violated both Section 8(a)(3) and (5) of the Act by putting
Hooker back in the load and requiring him to fill out union activity logs.
(2) The Respondent violated the Act by issuing Hooker the various disciplines
listed above, which never would have arisen had the Respondent not 5
unlawfully placed him back in the load. I point out that I am not an arbitrator
with the discretion to weigh the equities in fashioning a remedy that I would
find ideal.
(3) The Respondent violated the Act with regard to part of the RFI regarding 10
placing Hooker in the load and requiring him to submit weekly union activity
logs.
(4) The Respondent violated the Act as to the second truck swap RFI but not the
first such RFI.15
(5) The Respondent’s confidentiality policy violated the Act.
Wtnesses and Credibility
20
The General Counsel called:
(1) Brian Hooker.
(2) Local President Ronald Letts.
(3) Chief Steward Cardesian Campbell, who testified on: (A) his interaction with 25
Hooker on a job on September 20 and what he told Manager Andrew Sharp
thereon at an investigatory interview on September 22; and (B) what he stated
during an asset protection investigation of what Brash averred was Hooker’s
misuse of the GPS in his truck.
The Respondent called:30
(1) George Mrla, Director of Technical Field Services (TFS) for Michigan.
(2) Area Manager Ted Brash.
(3) Manager Andrew Sharp, Hooker’s first-line supervisor since November 2015.
(4) Manager Jeffrey Osterberg, who testified about his observations of Hooker and
his GPS on April 24.35
(5) Judy Vilik, asset protection manager, who conducted the GPS investigation.
(6) Gary Smith, AT&T’s national assistant vice president of compliance
operations, who testified on the confidentiality policy. His credibility is not at
issue.
In making credibility resolutions, I have considered several established precepts. The 40
first is that a witness may be found partially credible; the mere fact that the witness is
discredited on one point does not automatically mean that he or she must be discredited in all
respects. Golden Hours Convalescent Hospitals, 182 NLRB 796, 799 (1970). Rather, a
witness’ testimony is appropriately weighed with the evidence as a whole and evaluated for
JD─40─18
4
plausibility. Id. at 798–799; see also MEMC Electronic Materials, Inc., 342 NLRB 1172,
1183 fn. 13 (2004), quoting Americare Pine Lodge Nursing, 325 NLRB 98, 98 fn. 1 (1997),
enf. granted in part, denied in part 164 F.3d 867 (4th Cir. 1999); Excel Container, 325 NLRB
17, 17 fn. 1 (1997). As Chief Judge Learned Hand stated in NLRB v. Universal Camera
Corp., 179 F.2d 749, 754 (2d Cir. 1950), regarding witness testimony, “[N]othing is more 5
common in all kinds of judicial decisions than to believe some and not all.” Here, many
witnesses were reliable on some matters but not on others.
Secondly, an adverse inference is appropriate when a witness was not questioned
about potentially damaging statements attributed to him or her. L.S.F. Transportation, Inc.,
330 NLRB 1054, 1063 fn. 11 (2000); Asarco, Inc., 316 NLRB 636, 640 fn. 15 (1995), 10
modified on other grounds 86 F.3d 1401 (5th Cir. 1996). More broadly, several witnesses
were not questioned about certain events in which they were involved, and I have generally
credited the uncontroverted testimony of opposing witnesses.
Finally, when credibility resolution is not based on observations of witnesses’
testimonial demeanor, the choice between conflicting testimonies rests on the weight of the 15
evidence, established or admitted facts, inherent probabilities, and reasonable inferences
drawn from the record as a whole. Taylor Motors, Inc., 366 NLRB No. 69 slip op. 1 at fn. 3
(2018); Lignotock Corp., 298 NLRB 209, 209 fn. 1 (1990).
I have taken into account the many events that occurred over a long period of time,
and the natural inability of witnesses to recall every detail in such circumstances. In some 20
cases, however, professed lack of recall was not believable, particularly when opposing
witnesses offered detailed and credible testimony. I now turn to particular witnesses.
Hooker was partially credible, candid and plausible on certain subjects but not on
others. Thus, Hooker was quite frank in admitting that he used intemperate language in
conversations with Mrla. He testified that when Mrla talked to him in January 2014 about his 25
going back in the load, he responded that Letts was his other boss and “that’s the person you
have to check with to get me to put my ass in a truck.” In a mid-August 2015 conversation
about a grievance Hooker had filed on the discipline of employees for driving while talking
on their cell phones, he told Mrla that “if he was goddamn in love with keeping employees
safe,” he should instruct his managers not to drive all over the place talking on the phone or 30
texting. Such candor and lack of attempt to downplay or minimize the immoderate language
he used with a high-level manager bolsters his credibility.
However, Hooker testified unevenly, with certainty and in considerable detail on some
conversations but very vaguely or not at all on others. Notably, he offered no testimony on
several conversations to which Brash and Sharp testified in detail. 35
Certain aspects of Hooker’s testimony lacked credulity. Although Hooker testified
that he submitted activity logs in January–March, he claimed that he did not retain copies of
them. I find this wholly implausible in light of Hooker’s fastidious carefulness in
documenting all of his other contacts with management, no doubt stemming from what he
viewed as the Respondent’s hostility toward him because of his union activities. 40
JD─40─18
5
Hooker testified that at a first-step grievance meeting on March 8 concerning the truck
swap, Sharp commented that Campbell was “arguably the best technician in the whole
district.” Sharp, on the other hand, testified that he stated that Campbell was the most
qualified technician in his crew but that he lacked knowledge of the skill levels of techs in the
nine other garages in the district. I find Sharp’s version more plausible and credit it over 5
Hooker’s, noting that Campbell, who was present at the meeting, offered no testimony on the
subject.
Finally, Hooker’s contradictory testimony concerning problems that he had accessing
his tools prior to April 10 sheds doubt on his version of what occurred that day. More
generally, even taking into account Hooker’s absence from the workload for many years, he 10
reported to management a suspiciously high number of obstacles that he encountered in
performing his work.
Letts testified credibly and consistently on direct and cross examination, and I
generally credit his testimony. In this regard, Letts candidly testified that managers, including
Area Manager Mike Jarema, had voiced issues with Hooker’s conduct as administrative 15
assistant going back to 2012. However, as to several conversations he had with management,
their accounts were considerably more detailed than his, and I credit them.
Campbell’s limited testimony was also credible and did not seem designed to skew the
facts. Thus, he testified that when he had the truck, the GPS became loose but never fell out,
partially but not necessarily fully supporting Hooker’s assertion that it became completely 20
dislodged.
I credit Campbell’s version of what he told Vilik on about April 26, during her asset
protection investigation; that when he first got the truck, he had bumped the new GPS a
couple of times, and it had become lose and needed to be plugged back in. Firstly, his
testimony was consistent with Osterberg, who testified that techs have called him and said 25
their GPS was loose and that he told them to plug it back in; and with an April 19 form email
to Sharp and Brash from Etech Texas, the GPS vendor that services the GPS units. It stated
that one reason Hooker’s GPS could have stopped working on February 28 was that driver
usage could sometimes partially dislodge the device. Secondly, for reasons to be stated, Vilik
was not a reliable witness on what Campbell told her.30
I also credit Campbell as to what he told Sharp at an investigatory interview on
September 22 regarding Hooker’s work on September 20: that Hooker’s misdiagnosis of a
problem on the job that Campbell ended up completing was an easy one to make because of
the nature of the problem. Sharp, on the other hand, could not recall if Hooker or Campbell
said anything along those lines, and therefore did not deny Campbell’s account, and Sharp’s 35
notes of the meeting say at the end, “spotty notes.” (R. Exh. 62 at 2.)
Mrla was in many respects an unreliable witness, and I largely credit other witnesses
where their testimony diverged from his. Mrla testified that Hooker called him in mid-August
2015 concerning the Flores grievance. However, Hooker’s cell phone records corroborated
Hooker’s testimony that Mrla called him. For this reason, and because Hooker’s account was 40
considerably more detailed and more plausible based on other record evidence, I credit it over
Mrla’s abbreviated and sanitized version.
JD─40─18
6
Mrla testified at one point that he only learned in mid-September 2015 that Hooker
was not on the vacation schedule, when Brash so informed him. However, he later testified
that in March 2014, he had determined that Hooker should be on both work and vacation
schedules. In this regard, in early 2014 he raised to both Letts and Hooker the subject of 5
Hooker being placed back in the load. His testimony on this subject was therefore unreliable.
Although Mrla recalled telephone conversations with Hooker in 2014 and around
August 2015, he professed not to recall a telephone conversation with him in early October
2015, a day before Hooker was scheduled to testify in an unfair labor practice proceeding. 10
Hooker’s cell phone records show that Mrla called him on October 5, 2015, at 2:05 p.m., and
I credit Hooker that Mrla stated that the Company had to get him a truck and tools to get him
back to work.
Despite Brash’s testimony and what the parties stipulated was in Brash’s notes of an
October 23, 2015 management-union meeting, Mrla professed not to recall stating at the 15
meeting that Hooker made an RFI to harass the Company.
Mrla was initially evasive in answering whether he would have put Hooker back in the
workload had Hooker been elected rather than appointed as administrative assistant, but he
eventually stated that his main concern was that Hooker was the only appointed official in his 20
organization on full-time union status and that fairness to other stewards was his paramount
consideration. In this regard, Mrla equivocated on the role that workload needs played in the
decision to put Hooker in the load in 2015, but he ultimately testified that he “wanted” but did
not need Hooker in the load and that he would have put Hooker in the load in 2015 regardless
of the amount of rehabilitation work that the Company was performing at the time.3 25
Brash had a generally good recall in light of the many incidents about which he
testified and was candid on certain matters. For example, regarding the October 23, 2015
meeting, Brash testified that Mrla stated that the decision to put Hooker back in the load was
nonnegotiable, and that he thought the RFI Hooker had made was “intentionally burdensome”
and “for harassment.” Moreover, Brash’s testimony was not always fully consistent with 30
Mrla’s.
Brash’s testimony did have the following flaws. Most notably, on direct examination,
Brash equivocated on whether he made the comment at the October 23, 2015 meeting that
“Mr. Hooker was difficult to deal with,” but he then added that he said Hooker “liked to yell a
lot in grievance meetings. I said it wasn’t helpful to the procedure.” However, on cross-35
examination, he backtracked, stating that he could not recall making such statements. This
apparent attempt to recant his earlier testimony raises questions about his candor. I credit his
earlier account, noting that it was similar to the statements that Letts attributed to him and that

3 Tr. 2589, 2670. Brash similarly testified that management wanted, but did not need, to place Hooker in
the load and that the work volume in 2015 vis-à-vis prior years had no effect on their decision. Tr. 1042, 1816–
1817. Such testimony fatally undercuts any contention that workload factors were of any major concern.
Accordingly, I reject any claims by the Respondent that they were, and I will not further address them.
JD─40─18
7
Mrla offered no testimony thereon. Additionally, Brash offered no explanation for why he
did not provide to Vilik the Etech Texas email referenced above.
Sharp had a generally very good recall and testified in greater detail on a more
consistent basis than any other major witness. To the extent that Hooker did not rebut Sharp’s
accounts of certain conversations that they had, I credit him. However, on two matters, 5
Sharp’s testimony was questionable. Firstly, he testified that when he introduced himself to
Hooker as the new supervisor of the garage and laid out his goals, Hooker stated, “I will
absolutely never work with anyone with the Company” or “I refuse to work with . . . anyone
from the Company,” and that Sharp did not respond. Granted, the record demonstrates that
Hooker could be far from tactful, but I am skeptical that he would have made such an 10
outrageous statement at the outset of their relationship. Moreover, based on Sharp’s
demeanor and record evidence, Sharp struck me as an assertive individual who would not
have let such a statement go by without any response. Also, as noted above, Sharp, despite
his generally very good recall, testified that he could not remember if Hooker or Campbell
said anything on September 22 along the lines that Hooker’s misdiagnosis on September 20 15
was an error easy to make.
Turning to Osterberg, I have no reason to question Osterberg’s truthfulness in
reporting what he observed on April 24. I do have a serious issue concerning his testimony
about what Brash instructed him to do that day and why. According to both Brash and
Osterberg, Brash told him there was an open asset protection investigation of Hooker’s use of 20
his GPS, and he directed Osterberg to observe Hooker, pull his GPS, and make sure that it
was working.
Osterberg testified that Brash gave him no specific instructions about how to
accomplish this and that he made the decision on his own to observe Hooker’s work
throughout the day. Respondent’s Exhibit 43(a) reflects that Osterberg’s observations went 25
far beyond the scope of anything relating to the GPS by encompassing everything that Hooker
did, minute-by-minute. I highly doubt that Osterberg as a first-line supervisor would have sua
sponte engaged in such lengthy and detailed observation unless Brash, his manager, directed
him to do so. Moreover, Brash later asked him to prepare a detailed timeline of everything
that he observed Hooker do that day. I note, too, Vilik’s testimony that she could not recall 30
ever before seeing such a detailed report describing what an individual did on a daily basis—
an indication that this was highly unusual.
Significantly, Osterberg testified that he had no reason to go to the jobsite to check if
Hooker’s GPS was working because he located Hooker at the jobsite through U-Dash, which
is linked to the GPS. Furthermore, Osterberg admitted on cross-examination that he did not 35
need to be at a worksite to see if Hooker’s GPS was reporting; he could have checked that in
his Lansing office as long as he had internet service. Lastly, Osterberg had no explanation for
why Vilik stated in her notes (R. Exh. 67 at 5) that “Osterberg stated he went to the office and
ran the VTS report for Hooker’s vehicle at various times throughout the late morning and
early afternoon and found the VTS had not reported since 10:19 a.m. . . .”40
As to Vilik, I find wholly baffling why she, a trained investigator, meticulously
recorded in her notes what various witnesses reported to her yet failed to mention whatsoever
JD─40─18
8
therein, or in her report, the telephone conversation she had with Campbell on about April 26.
She admitted that she had “no reason” not to put it in her report. Significantly, she failed to
deny Campbell’s testimony about what he told her but averred lack of recall. I therefore
specifically discredit her testimony that Campbell told her that he had experienced no
problems with the GPS. I also find somewhat suspicious her failure to document in her notes 5
anything that was said in her conversation with Mrla when he called her on April 19, and her
testimony that she could recall nothing of their conversation. On the other hand, I do credit
her detailed account of her investigatory meeting with Hooker on April 27, about which
Hooker did not testify and therefore failed to refute.
10
I will discuss other incident-specific credibility determinations below.
Facts
Based on the entire record, including testimony and my observations of witness 15
demeanor, documents, written and oral stipulations, and the thoughtful posttrial briefs that the
General Counsel, the Union, and the Respondent filed, I find the following. All written
communications were by email unless otherwise specified. I will not overburden the reader
by including a verbatim account of every single instance of what can best be described as an
ongoing war between Hooker and the Local and company management.20
At all times material, the Respondents have been corporations with an office and
facilities in Grand Rapids, Michigan, engaged in providing a range of nonretail
telecommunications services. The Respondents have admitted jurisdiction as alleged in the
complaint, and I so find.25
In August 2016, the Respondent created the Technical Field Services (TFS)
organization, in which two groups of technicians (techs) were placed. One group consisted of
techs who performed work on the Respondent’s network infrastructure, including the
installation and repair of non-accessible cable. These techs had previously worked for 30
Network Infrastructure Business Services (NIBS).4
A TFS tech “in the load” is on the work schedule to perform either (1) demand work –
customer service problems; or (2) non-demand work or rehab – bad plants conditions (BFCs)
or something wrong in the network that does not affect service. “In the load” also refers to 35
being on the work schedule. Techs bid on the work schedule in order of seniority, in 5-week
increments. They can select different schedules weekly. The standard or regular shift is
Monday through Friday, 8 a.m. to 4:30 or 4:45 p.m. (depending on the length of the lunch
break). There are also “off shifts,” either Monday through Friday starting at 10 a.m. (late
shift), or shifts that include working on a Saturday or Sunday. Techs also bid in order of 40
seniority on the vacation schedule for the coming calendar year, normally starting in about
October. Only a certain percentage of techs can be off any given week, depending on the
anticipated workload.

4 For additional details about the various organizational changes made since January 1, 2014, see Jt. Exh.
1 at 2, as well as Jt. Exh. 2, a stipulated glossary of terms.
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9
George Mrla, based in Detroit, was director of NIBS since January 2014 and then
became director of TFS. At all times, he has had responsibility over all of Michigan. Nine to
12 area managers, approximately 100 first-line supervisors (managers), and 1400 employees
have reported to him. Ted Brash has been a TFS area manager since April 2015, with 5
responsibility over several garages, including the one on 36th Street in Grand Rapids (the
garage), where Hooker was based; and others in Comstock Park (Grand Rapids), Howell, and
Lansing, Michigan. In November 2015, Andrew Sharp replaced Sidney Bragg as manager of
the garage and assumed direct supervision of about 14 technicians, including Hooker. Jeffrey
Osterberg has been manager of the Lansing garage since March 2014. 10
For many years, the Communications Workers of America, AFL–CIO (CWA), has
been the collective-bargaining representative for unit employees who work in the
Respondent’s operations throughout Michigan. CWA District 4 is a geographical subdivision
of CWA. One of its locals is Local 4034 (the Union or the Local), which represents about 15
450 of the Respondent’s employees, including those in TFS, in central and west Michigan.
The Respondents and other affiliated entities have been parties with the CWA to a
series of collective-bargaining agreements (CBAs) through the years. The parties’ most recent
CBA (GC Exh. 2), effective April 12, 2015, through April 14, 2018, covers bargaining-unit 20
employees who work in the Respondents’ network telephone operations throughout the
traditional five-state “Midwest” region that includes Michigan (see Appendix B of the CBA).
Article 10, Union Officers and Representatives, contains provisions regarding union
representatives getting excused time to conduct union business under two categories, 25
Company paid and Union paid:
(Company) Payment for Joint Meeting Time (MXUP)5
Art. 10.05 – “For purposes of processing grievances, the Company agrees for 30
authorized Union representatives to confer with representatives of the Company
without loss of pay during such employees’ regularly scheduled working hours,”
including traveling for grievance meetings.
Art. 10.06 – “When the Company meets with a Union representative(s) during 35
such employee’[s] regularly scheduled working hours for purposes other than the
processing of grievances and further agrees to pay for the time involved,” the
employee will be paid.
Art. 10.07 – “Employees who are excused in accordance with the provisions 40
of this Section . . . shall give their immediate Supervisor reasonable advance notice of
the intended absence and of the probable duration of the absence.”

5 Such meetings include full committee, joint, disciplinary, and investigatory meetings (Letts’
uncontroverted testimony).
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10
(Union paid) Absence for Union Business (MXUU)
Art. 10.08 – “The Company, insofar as work schedules permit, agrees to grant
to any employee who is an Officer or properly designated representative of the Union 5
reasonable time off up to [1,080] hours during a calendar year, unless mutually agreed
otherwise, without pay, to transact business of the Union, provided that the Company
is given reasonable advance notice of such absence.”
The GCAS system is the Company’s time-keeping attendance report that all 10
employees complete daily. It contains employee records, including benefits and vacation
information. Employees performing union business input in GCAS as non-production
exempted or excepted time MXUP and MXUU, in quarter-hour increments, and assign a
specific activity code for the MXUP (see GC Exh. 5, a sample screenshot).
15
The Local’s membership elects its officers: President Ryan Letts, Executive Vice
President Pam Beach, and Secretary-Treasurer Ralph Prince. Since encumbering those
positions, they have been on union business full-time and performed no work for the
Company. Letts and Prince are in Mrla’s organization; Beach is not. The Local’s president
appoints chief stewards and stewards, whereas lead stewards are elected annually by their 20
work group peers. See General Counsel’s Exhibit 4, a list of the local’s officers and other
representatives as of July 2017.
The Local president also appoints to the administrative assistant (AA) position in the
Local. No other local representing employees in Mrla’s district has had an AA position (see 25
R. Exhs. 23, 25). Letts became an AA in late 2003 and served in that position until he became
president in late 2010. At around the same time, Beach, the other AA, became executive vice
president, and Letts appointed Hooker AA. Prior to Hooker being placed in the load in 2015,
everyone in the AA position going back at least as far as Letts in late 2003 was on full-time
union business status.30
Hooker’s Employment Prior to December 2015
Hooker began employment with the Company in 1996 and was a field tech in TFS or
its predecessors for about 12 years until his discharge on October 13. Prior to his appointment 35
as AA in late 2010, Hooker had served as a steward, lead steward, and chief steward, starting
in 1999. In all of these positions, he occasionally worked in the load. He did not normally
give his supervisor advance notice for MXUP time but rather did so more casually at the last
minute, depending on when he learned of a meeting. When Hooker was appointed AA in
2010, he became full-time union, and management took him off the workload and vacation 40
schedules.
As the AA, Hooker engaged in a wide range of duties, including editing the
newspaper; developing and administering the website; directing social media; streamlining
grievance processing; training stewards; chairing all second-step grievance meetings and 45
assisting Letts at third step grievance meetings; and involvement in NLRB, other
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11
administrative proceedings, and arbitrations. Letts assigned him at times to assist other locals
in those functions. In late 2013 or 2014, District 4 appointed him as safety coordinator for
CWA locals in Michigan, and around the same time, the CWA appointed him as a part-time
health and safety instructor for locals in the Midwest and nationally.
5
Hooker’s only reporting requirement was to enter his union time in GCAS, as
described above. He was never denied MXUP and never had to give advanced notice for
either MXUP or MXUU time, comporting with the practice of the Local’s other full-time
union officers. If Hooker was out of town on travel and had no access to GCAS, he called
his supervisor and asked him to input Hooker’s MXUP and MXUU time. Hooker coded 10
phone calls from managers as MXUP, depending on their substance, but preparing for
grievance meetings or preparing RFIs he coded as MXUU.
Events Prior to December 2015
15
On January 3, 2014, Mrla called Hooker (see GC Exh. 81) and introduced himself as
the new TFS manager for Michigan. I credit Hooker’s considerably more detailed account of
their conversation, as follows, noting that Mrla’s more summary version was not necessarily
inconsistent. Mrla stated that he was thinking that Hooker would really do well if he got
some training and a new truck and could be in the load. Hooker sarcastically replied that 20
sounded “awesome,” but he would have to check with his boss.6 Mrla said that he was
Hooker’s boss, and Hooker replied that Letts was his other boss and “that’s the person you
have to check with to get me to put my ass in a truck.”7
In March 2014, Mrla first raised with the Union the subject of changing Hooker’s 25
status from full-time union, in a phone call with Letts that Mrla initiated. Letts’ testimony
was rather sketchy and did not address anything that Mrla specifically said about Hooker.
Mrla, on the other hand, gave a detailed and fully coherent account, and I credit it where there
were differences in their versions. Mrla asked Letts why Hooker was not in the workload, to
which Letts answered that was the way his organization was set up and that the AA was 30
always excused from the workload. Mrla asked if there was a local agreement somewhere,
and Letts replied that there was no written agreement, but it was just agreed upon. Mrla stated
that he considered the AA to have the responsibilities of a chief steward and that his
experience was that anybody in the position was in the workload. The call ended with Mrla
saying that they needed to start planning to get Hooker in the load and that the matter would 35
be revisited later. Mrla testified that he took no action to follow up on this because he had
other priorities.
On May 11, 2015, Lansing technician Ronald Flores was involved in a motor vehicle
accident. As part of the accident investigation, Brash followed his practice of pulling VTS 40
records (GPS report) and Flores’ cell phone usage records (COU report) for the entire day.
As a result, management determined that during that day, Flores had been talking on his
mobile phone while driving. At the investigatory interview, Flores admitted this, and for that

6 Tr. 408.
7 Ibid.
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12
offense he received a written warning and 1-day suspension for violation of safety standards
(GC Exh. 36). At around this time, another employee at the same garage admitted to the same
misconduct and received the same discipline. Brash testified that the disciplines were based
on the employees’ admissions, not on company records.
5
On June 1, Prince filed a grievance and RFI regarding Flores’ warning and suspension
(the Flores grievance) (GC Exh 37) concerning the Company’s use of monitoring equipment
to look at an employee’s activity the entire day on which a motor vehicle accident occurred.
The grievance was denied on July 15 at the first step.
10
On August 10, Mrla called Hooker (see GC Exh. 82, Hooker’s phone records). Mrla
began their conversation with, “What the hell is going on with all of this crap I’m hearing
about your objections to—to making your members safer by making sure they’re not driving
with cell phones?”8 Hooker responded that the policy conflicted with a memorandum of
understanding in the CBA on employee monitoring, and might discourage an employee from 15
reporting an injury or an accident. Mrla replied that he did not agree, and he said that Hooker
was being stubborn and that he (Mrla), unlike Hooker was trying to keep the employees safe.
Hooker responded that “if [Mrla] was goddamn in love with keeping employees safe,” he
should instruct his managers not to drive all over the place talking on the phone or texting.9
Mrla stated that Hooker had raised a good point and he would do so. 20
On August 13, Hooker filed a voluminous RFI (GC Exh. 38) regarding the Flores
grievance, consisting of over 2-1/2 pages of single-spaced items and requesting, inter alia,
detailed information about the monitoring technology operator training, monitor technology
data, monitor technology accuracy, and a complete list of all employees who were involved in 25
a motor-vehicle accident or occupational injury within the geography covered by the Midwest
CBA (five-state region) for the last 3 years.
On September 24, Steward Eric Buker reported to Hooker conversations that he had
had with Jarema and Manager Don Amante (see R. Exh. 21). None of the three testified. The 30
following day, when Hooker and Buker were speaking before work, Jarema interrupted them
and asked Buker to confirm that Jarema had not denied him a steward. Later that morning,
Jarema asked Hooker to come to his office for a few minutes, but Hooker said that he could
not do so because he had a scheduled meeting. Jarema asked with whom he was meeting, and
Hooker replied that was confidential. After Amante began the regular morning meeting, 35
Jarema returned and warned Hooker not to interrupt the meeting.10
An unfair labor practice hearing was scheduled on October 6 in Case 07–CA–150005,
on charges that Hooker had filed alleging that the Company had unlawfully failed to provide
requested information to the Union (see GC Exh. 41, the transcript). A day before the 40

8 Tr. 378.
9 Ibid.
10 Management, including Jarema, had complained to Letts about Hooker’s conduct as AA as far back as
2012.
JD─40─18
13
hearing, Mrla called Hooker (see GC Exh. 82). I credit Hooker’s unrebutted account that
Mrla stated that he had to get Hooker a truck and some tools and back on a truck.
On October 6, Hooker testified at the hearing. During the course of the trial, Area
Manager Mike Ten Harmsel and Andrew Maki, another manager, characterized Hooker’s 5
behavior and demeanor in his meetings with managers as intimidating and bullying.
The following day, Letts spoke by phone with Mrla, who said that he wanted to talk
about Hooker’s union status. Their versions of the conversation were substantially consistent,
with no conflicting additional details, and the following is a composite. Mrla stated that 10
Hooker was the only appointed union official in his entire organization not working in the
load and that he was going to be put on the work schedule like every other appointed steward.
Letts asked if they could negotiate, and Mrla replied no. Letts objected, stating that there was
no distinction in the CBA between elected and appointed, and he pointed out that Hooker took
phone calls and had meetings. Mrla replied that phone calls were not MXUP under the 15
contract and that MXUP required face-to-face meetings. Letts asked if company labor
relations (LR) was on board, and Mrla replied that he had read the contract and talked with
LR. Mrla further stated that Hooker, as did other stewards, would have to tell the Company
with whom he was meeting, where, and the duration of the meeting, for MXUP payroll
verification purposes. Mrla suggested that they have regular monthly meetings, and Letts 20
agreed.
Before this, Letts had always reported as MXUP phone calls with managers in which
they discussed work-related matters or grievances. He based this on practice, not on any
specific provision in the CBA.25
In a mid-October regular planning call with his area managers, Mrla polled them on
whether they had a nonelected union official excused full-time from the load. Brash aside,
they all said no.
30
On October 20, Brash called Hooker. Brash gave considerable details of their
conversation, whereas Hooker’s testimony thereon was very conclusionary but not
inconsistent with Brash’s. I therefore credit Brash as follows. Brash advised Hooker that he
was going to have to put in a vacation bid for 2016 and to bid on the work schedule. He
stated that the Company would train him, get him a truck, and tool him up to work in the load. 35
Hooker said that he did not agree, had discussed it with Letts, and had many questions about
how management would proceed. Brash replied that he knew Hooker had been absent from
the load for a few years, that he was going to have an off shift (based on his seniority) and
would be needed for work outside regular shift hours, and that he would get a truck, tools, and
training. Hooker brought up Art. 10.08 and said it guaranteed 1080 MXUU hours, to which 40
Brash replied that it was not automatic and required supervisory approval.
Brash further said that Hooker would have to request his MXUP in advance according
to the CBA. Hooker replied that he had many confidential phone calls that were MXUP and
could not be requested in advance, and had too chaotic a schedule to request time in advance. 45
Brash replied that he could not have a confidential meeting that the Company paid for; as area
JD─40─18
14
manager, Brash had to verify with whom he was meeting but did not need to know the
content. Brash also stated that a manager calling Hooker to schedule a grievance in a 3-
minute phone call would not count as MXUP and that it should be coded as whatever he was
doing at the time, not as 15 minutes of MXUP. Hooker continued to object, particularly to
reporting MXUP, and Brash suggested that they could devise a way for him to keep track by 5
writing it down. Hooker requested a union steward, and the call ended. I further find that, as
Hooker testified, Brash specifically stated that Hooker had to provide union activity logs (see
GC Exh. 43, an email that Hooker sent to Letts that day).
After a grievance meeting at the Lansing garage on October 21, Brash and Hooker had 10
a conversation during which Brash repeated to Hooker what he had said the day before.
Brash further stated that Hooker would have to work when he was scheduled on non-regular
shift hours; and fill out union activity logs for MXUP time, indicating the names of
supervisors with whom he met, the hours, and the nature of the business. Hooker stated that
he considered these unilateral changes and in retaliation for his participating in the NLRB 15
hearing on October 6 and his union activities in general. Brash said that he would create an
Excel sheet for Hooker to report his MXUP; if he was not able to report it in advance, he
could do so each afternoon. Brash testified that this was an accommodation to Hooker
because all other stewards were expected to request time in advance.
20
October 23, 2015 Management-Union Meeting
Mrla, Brash, Letts, and Beach met at the Lansing garage for about 2 hours, to discuss
the Flores grievance RFI and Mrla’s decision to place Hooker in the workload.11 Prior to the
meeting, Mrla and Brash had already made the decision that the AA position would no longer 25
be full-time union.12
Brash’s recollection of the meeting, as refreshed by the notes he took (which were not
offered in evidence), was considerably more detailed than Letts’ or Mrla’s. The parties
stipulated that his testimony comported with his notes, and Brash appeared to be candid in 30
relating what was said. I therefore credit his testimony. Based on what Letts and Hooker said
at other times, I also believe their testimony that they made statements that were not included
in Brash’s account. None of the versions varied in overall substance, and I find the following.
After Mrla discussed his good relationships with other locals, he brought up the Flores 35
grievance RFI and stated that he did not understand it inasmuch as both drivers had admitted
during the investigation to talking on the phone while driving; the Company had not told them
that their records were pulled and had not relied on those records in issuing the disciplines.
Mrla went over several items one by one and asked the relevance to the grievance, to which
Letts repeatedly answered “functional knowledge” (Brash and Mrla) or “constructive 40
knowledge” (Letts).13 Mrla then said that there was no point in discussing the RFI any further

11 These same individuals attended all subsequent monthly management-union meetings hereinafter
referenced.
12 Tr. 1672 (Brash).
13 Tr. 134, 1084, 2616.
JD─40─18
15
if that was going to be the only thing Letts was going to say, and that he thought the RFI
Hooker had made was “intentionally burdensome” and “for harassment.”14
Mrla then discussed Hooker returning to the workload, saying that he would have to
select a work schedule, participate in vacation scheduling, and report his MXUP to his 5
manager. Mrla explained that Hooker was a non-elected union official and that he (Mrla) did
not have any other non-elected union official in his organization excused from the load full-
time; returning Hooker to the work schedule would be fair and consistent with his
organization. Mrla showed them the latest weekly report that Debbie Schall of his staff had
prepared, showing month-to-date use of MXUU and MXUP time by union officials in Mrla’s 10
organization (the Schall Report) (see R. Exh. 23, the report of November 23, 2015, admitted
to illustrate the format of the document). Mrla commented that Hooker was one of the highest
and would have to report that time to be excused from the workload. He further said that he
knew which ones on the report were elected or non-elected. The Union requested a copy of
the Schall Report.15 During the discussion, Mrla repeated that MXUP required face-to-face 15
meetings and did not include off-the-record discussions with managers.
Letts and Beach protested that this was a big change to the way they had done
business and would adversely affect the Union, including grievance handling. Mrla
responded that he was not completely taking Hooker away from the organization and that 20
Hooker would have to work off shifts, likely a Sunday shift, but not Monday through Friday
for the present. Letts again asked if the decision to put him in the workload was negotiable,
and Mrla replied no.
During the course of the meeting, Brash stated that dealing with Hooker was difficult 25
and that Hooker “liked to yell a lot in grievance meetings” which was not helpful to the
procedure,16 to which Letts said that he was aware of Hooker’s style.
Over the following week, Letts and Mrla had several phone calls discussing the
subject in which they reiterated their respective positions. Mrla testified that he emphasized 30
that no other appointed union representative in his organization was off the load.
On November 10, Letts emailed Mrla (GC Exh. 8), formally objecting to Mrla’s
stance as to Hooker and requesting a copy of the Schall Report.
35
November 16, 2015 Management-Union Meeting
Once again, the testimony of Letts, Brash, and Mrla was largely reconcilable. This
meeting took place at the same location. Letts asked for the Schall Report. Mrla showed it to
the Union and went through who was appointed and who was elected. 40

14 Tr. 1697 (Brash).
15 Mrla testified that he did not give the report to the Union because he did not know if it was
“proprietary.” However, he never provided this explanation to the Union and offered no elaboration at trial.
16 Tr. 1100 (Brash).
JD─40─18
16
Mrla and Brash brought up the union activity log that Brash had created and stated that
Hooker would be required to fill it out after he met with a manager, indicating with whom,
when, and where he met. Letts asked why, when no one else was required to do so, and Mrla
and Brash answered that they could not get Hooker to give advanced notice. Brash stated that
he would need Hooker in the workload 1 day per month for compliance training (leader-led 5
training at the garage on subjects such as defensive driving or handling new equipment).
Letts agreed that the Union would assist in this. Another meeting was scheduled for
December 16.
Both Letts and Brash testified about at least one phone call they had following the 10
meeting, on about November 30. Their description of the subject matters discussed leads me
to believe that they had two separate calls. In any event, neither Letts nor Brash disputed the
other’s version, and I credit them both.
In one call, Brash stated that Hooker had to fill out the work schedule that was being 15
circulated. Letts replied that at the November 16 meeting, Brash had stated he needed Hooker
only 1 day a month. Brash agreed that was true but said they also needed him to fill out the
work schedule because he would be in the workload as any other appointed steward. Letts
asked him to send over a copy of the union activity log. Brash said he would and later that
day sent it to Letts (GC Exh. 9). 20
In the other call, Brash told Letts that Hooker needed to select some training dates
during the week because not all training or safety meetings could take place on the Sundays
that Hooker had chosen. Letts stated that this went against their agreement on October 23.
Brash said no, that training such as safety meetings and competencies needed to be conducted 25
during the week when he had his management staff available; that Letts agreed Hooker would
come in to attend a safety meeting once monthly; and that Brash would give Hooker as much
advance notice as possible and try to accommodate as much as possible Hooker’s needs to
conduct union activity.
30
Tech training is provided in a variety of forms. All techs are required to attend one
safety meeting a month (compliance training), and each of Brash’s managers conducts a
weekly safety meeting with the crew, held Monday–Friday. Managers also hold safety
training and competency tests in the garage. Other training can be done electronically via
iPad. Finally, there is “ride-along” or on-the-job training with another tech.35
On December 2, Sharp advised Hooker that starting next week (December 6–12), he
wanted Hooker to do 1 full day ride-along weekly (R. Exh. 2 at 3). This triggered a series of
emails (R Exh. 2, continued in R. Exh. 24), summarized as follows. The same day, Hooker
responded that he had pre-scheduled union commitments the entire next week and would be 40
available to train on December 13 and 20, and January 2, 3, and 10. On December 4, Brash
told Letts that that was unacceptable and that Hooker would need to make himself available 1
weekday each week for training. On December 8, Letts objected to what the Company was
requiring, and he set out Hooker’s MXUP and MXUU commitments in the coming weeks.
The same day, Brash clarified that Hooker needed weekday training, as opposed to Sundays 45
when he would have ride-along training, and that his non-Sunday training would be deferred
JD─40─18
17
until after January 4 and scheduled in advance so it would work best for both company and
union schedules. On December 14, Letts stated that advanced scheduling beyond the current
(5-week) work schedule would be difficult.
In mid-December, Brash told Sharp to set up ride partners for Hooker for the next 5
several Sundays, or whatever day he was going to be in the load, so Hooker could observe and
re-familiarize himself with how to perform work. I credit Brash’s unrebutted testimony that
within a week of December 13, he called Hooker and told him that Sunday, December 13,
would be his first day back in the load and that he would be doing ride-along training.
Hooker renewed his objection to being put in the load, to which Brash replied that was the 10
Company’s directive.
Hooker’s Return to the Load
On November 30, 2015, for all of the 5 weeks beginning on December 13, Hooker bid 15
for shifts having Sunday as one of the days off (GC Exh. 50). His first day working in the
load was December 13, when he did ride-along training. He also did ride training on
December 20 and January 2, 3, 19, 23, 24, and 28, 2016. He first worked on his own on
January 31 (see R. Exhs. 27, 29).17 Hooker had not touched a tool for at least 7 years, during
which time he had not received any training and many technological changes had occurred. 20
Brash anticipated that Hooker could function on his own in the field within about 2 months
after finishing training.
When Hooker was assigned to work on his own, Brash instructed the load balance
manager at the network dispatch center to pre-assign Hooker POTS (“plain old telephone 25
service”) residential repair work (entry-level work) the night before. All other techs were
assigned by their hitting the dispatch button in GCAS.
Early on, Brash came to believe that Hooker was not paying full attention during his
ride-alongs, not taking steps to ensure that his vehicle was completed stocked, and creating 30
excuses not to perform tech work. Hooker’s conduct at times reinforced these conclusions.
Union Activity Logs
Brash testified that he made the decision to require Hooker to fill out a union activity
log. After creating it, he emailed it on November 5, 2015 to Bragg, who forwarded it to
Hooker via company email and asked Hooker to email him the activity logs weekly (R. Exh. 35
17). When Sharp took over Bragg’s position, he assumed this responsibility.
On December 8, Hooker and Brash exchanged a series of emails (GC Exh. 45),
summarized as follows. Brash reminded Hooker to get in his activity log for last week to
Sharp. Hooker said that it would take him some time to reconstruct his calendar and asked 40
how he should code his time for filling it out. Brash replied that Hooker should complete it as

17 In approximately May or June, he bid for and secured a Monday through Friday late shift.
JD─40─18
18
quickly as possible, and in the future update it during the week so that he could turn it in on
Monday morning. As far as accounting time, Brash referred to the 20 minutes of
administrative time at the start and end of the shift, for which coding was based on the activity
after or before it, and pointed out that the time Hooker needed should be minimal. Hooker
then asked how he should code filling out the activity log. Brash replied that it should only 5
take a minute or so to input an entry and that it would be regular paid time.
Brash met with Hooker in Sharp’s office on July 28, 2016, on a number of matters.
Regarding the activity logs, Brash stated that Hooker had not complied with his directive to
submit them. Hooker replied that he would need all of his time records from June 6 or 9 from 10
Sharp so he could recreate his calendar, figure out with whom he met, and why he charged
MXUP because he could not remember. Brash initially denied his request but then had Sharp
pull Hooker’s attendance summary from eLink and give it to Hooker, who stated that he
would comply under protest.
15
That afternoon, Hooker advised Sharp by email that he could not complete the activity
log because the information that Sharp had provided was inadequate, and that Hooker would
have to wait until Prince returned from vacation the following week to cross-reference union
payroll records (R. Exh. 50).
On August 12, at the garage, Brash and Hooker had a meeting at which they discussed 20
the activity log. Only Brash testified about what was said on the subject, and I credit his
unrebutted account as follows. Brash asked if Hooker had brought a completed activity log
with him that day. Hooker replied that he had not because he still had not had time, and Brash
reminded him of his commitment on July 28 to submit such by August 5. He then issued
Hooker a written verbal warning for violation of non-management expectation, for failing on 25
August 5 to provide joint meeting activity details as required by management (GC Exh. 29;
also R. Exh. 53). Hooker repeated a threat to schedule grievance meetings only on Mondays
and Fridays, and to suspend all of the Local’s stewards and personally take over the grievance
process for the entire district. Brash told Hooker that scheduling grievances only on the days
that he was supposed to do company business was unacceptable. 30
General Counsel Exhibits 46 and 47 are the activity logs that Hooker turned in. The
first is one page, with entries for June 16 and 17, and July 21; the second is one page with an
August 19 entry. They do not show on what dates Hooker actually submitted them, and
Brash’s uncontroverted testimony was that Hooker turned in both on August 19. On the July 35
21 entry, Hooker wrote “attendees confidential.” He gave conflicting testimony on whether
Brash told him that was unacceptable, first saying yes but later that he could not recall.
Hooker subsequently submitted activity logs for union time on the days of September
19, October 3, and October 7 (GC Exhs. 48, 49).40
The Respondent’s counsel represented that Hooker received one warning for not
turning in the union activity logs (on August 12, described above) and that it was not a reason
for his termination, that he was never disciplined for taking improper MXUP or MXUU, and
JD─40─18
19
that his termination was not based on either his filling out activity logs or his claims for
MXUP.
December 23, 2015 Grievance and RFI
5
Hooker filed a grievance contending that he was discriminated against for union
activity (GC Exh. 51), and on the same date he made a RFI consisting of about 2-1/2 single-
spaced pages and over 60 individual requests (GC Exh. 52). I will address the items on which
Hooker offered testimony as to why he considered them relevant.
10
For items 2–6, the requested information pertained to NIBS or its predecessors in the
Grand Rapids FAA (force adjustment area) since January 1, 2010: (2) all work-group
schedules; (3) all work-group vacation-selection schedules; (4) a list of each day’s starting
workload and each day’s ending workload which was not completed that day or carried over
to the next day; (5) a list of all dates during which employees were “loaned” into or from 15
other organizations within the Company; and (6) a list of all personnel who received training,
including name of the trainee, name of the training, dates and duration, and type.
Hooker testified that RFI items 2–6 were based on the Company’s assertions that it
needed him back in the load because of heavy workload needs. However, Hooker conceded 20
on cross-examination that no one in management actually said this to him. On the other hand,
management never stated that workload considerations were irrelevant to their decision.
Item 7 had two parts: (1) a list of all designated CWA representatives in Mrla’s
organization, including names and titles, reporting unit, union title, whether appointed or 25
elected, and whether required to fill out a special timesheet; and (2) the genesis of the “special
timesheet,” the company policy that mandated it, how it would be stored, the length of
retention, and who would have access to it.
Hooker testified that his was for the purpose of challenging the Company’s position 30
that he was the only full-time, non-elected representative in Mrla’s organization and had the
most MXUP time in Mrla’s territory, and to confirm that he was the only one required to fill
out a special time sheet.
Brash replied to Hooker on February 5, 2016 (GC Exhs. 54, 55), attaching 39 35
documents. He raised as general objections to the RFIs as being overly broad in timeframe
and as being for the purpose of obtaining information for use in pending ULP charges that the
Union had filed. On the following specific items, he responded:
(2) The Company will provide the requested work schedules for 2015 on.40
(3) Please explain the relevance.
(4) The Company does not maintain the requested records in the normal course of
business but will provide responsive records in its possession.45
JD─40─18
20
(5) The Company does not maintain or possess records in the form requested.
(6) The Company will provide the records it has in its possession from the
previous 6 months.
5
(7) Part 1 – The Company objects on the grounds that the Union, not the
Company, possesses this information. Part 2 – The Company does not
maintain documents known as “special timesheets.” In accordance with the
CBA, time for conducting union business requires advance notice to the
employee’s immediate supervisor; in the event advance notice is not provided, 10
time reporting and record retention is handled on the local level.
Hooker responded on March 4 (GC Exhs. 56, 57), averring that the requested
information was relevant to the subject of the grievance. As to item 3, in particular, Hooker
stated that it was relevant to the Company’s assertion that “schedule fairness” was one of the 15
reasons for putting him back in the load. Brash replied on March 21 (by email and letter) (GC
Exhs. 58, 59), adhering to the Company’s prior objections but attaching 14 documents
covering the 2015 and 2016 annual vacation reports in response to item 3. Finally, on April
18, Hooker renewed the arguments that he had earlier raised (GC Exh. 60).
20
In late February or early March, Brash and Hooker discussed the RFI when they
attended a grievance meeting at the Lansing union office. Regarding item 2, Brash objected
on over-breadth grounds—that the workloads were completely different from last year, let
alone 5 years earlier. As to item 3, Brash raised the relevance objection, agreeing with
Hooker that Hooker was not on the vacation schedule after he became AA. On items 4 and 5, 25
Brash questioned the relevance to the decision made in December 2015 and also stated that
there was no way to get accurate information. As to item 6, Brash questioned the relevance of
documents going back to 2010 but said that the Company would provide a limited number of
records. Regarding item 7, Brash stated that Hooker was the only union representative asked
to fill out the activity log. Hooker restated his belief that he needed everything that he had 30
requested.
Ongoing Dispute over Hooker’s Placement in the Load
General Counsel’s Exhibit 11 is a series of emails from February 25–March 14,35
summarized as follows. In addition to Brash and Letts repeating their respective positions
concerning placing Hooker in the load, (1) Sharp asked Hooker to attend weekly Wednesday
safety meetings required of all techs, to which Hooker responded that most of his annual
Wednesdays were already booked for union business; (2) Brash advised Letts that Sharp
would coordinate with Hooker once a month to come in for a safety meeting and coverages on 40
a weekday according to Hooker’s availability; (3) Hooker asked Brash if his training could
not take place on Sundays, to which Brash replied no, because of limited resources and
JD─40─18
21
available managers; and (4) Letts questioned Brash whether safety meetings had to be
conducted during the week when the Company had an on-duty manager on Sundays.18
On March 17, Brash advised Letts that Hooker had to be available in the workload for
days other than Sunday and that Hooker and the Local had not been cooperative (GC Exh. 5
74). Therefore, beginning with the weekly schedule of April 3, Hooker would be required
under Art. 10.07 to provide advance notice each week for any and all union time; and for
MXUP, the time needed, the person(s) with whom he would meet, and the nature of the
meeting, for payroll verification. If he failed to comply, Hooker’s time would be coded 10.08
(MXUU) (charged to the Union).10
In an April 1 email to Letts (GC Exh. 12), Brash contended that Hooker was not
providing his schedule needs on an upfront basis each week for his needed time to conduct
union business under Art. 10.07. The same day, Letts stated that he would continue to utilize
Hooker within his organization when Hooker was scheduled on days that fell Monday through 15
Friday (GC Exh. 13).
Letts exchanged emails with Sharp or Brash on June 3 and 4 (GC Exh. 17–19; also in
R. Exh. 44). In the first of these, Sharp stated that he needed Hooker in the load on Monday,
June 6, Thursday, June 9, and Friday, June 10, and that Hooker would be attending a training 20
class for the entire week. Letts replied that Hooker had union responsibilities and needed to
be out of the load all of next week, and Brash replied that Hooker was expected to report on
those dates or face possible discipline.
Sharp later approved Hooker being off on union time from June 7–9 but not June 6. 25
Hooker did not report on June 6, and Brash emailed Letts on June 9 (GC Exh. 20), setting out
in detail the Company’s expectations relating to Hooker’s union reporting time obligations.
Hooker would have to report to work at the start of his scheduled shift unless leave was
approved in advance, and at the end of each week in which he reported payment for MXUP,
he would have to provide the following information on the weekly union activity log: (a) 30
managers at the meeting; (b) date, time, location, and duration of the meeting; (c) the purpose
of the meeting; and (d) if the meeting was not for the purpose of processing grievances, the
name of the Company manager who approved the meeting time as paid time. Brash also
stated that Hooker was on a final written warning for failing to meet Tech Expectations
because of his failure to report for his scheduled shift on June 6, which would be treated as an 35
incidental (unexcused) absence (see GC Exh. 30).
Regarding the events of June 10, I credit Sharp’s clear and more detailed account of
what occurred over Hooker’s, although their versions were not inconsistent. I find the
following.40
On June 10, a grievance meeting was scheduled at the garage. Starting at 8 a.m.,
Hooker worked on preparing the grievance at the union hall. When he did not report to the

18 Brash’s managers rotate more or less weekly in serving as the weekend duty manager. There is a
specific duty manager phone number for techs to call.
JD─40─18
22
garage at 8 a.m., Sharp tried unsuccessfully to reach him on his company and personal cell
phones, and left voicemails. At about 8:45 a.m., Sharp called Hooker again and asked where
he was and why he had not been at the garage at 8 a.m. Hooker replied that he was in a
grievance meeting down the hallway (in the garage). They met in the hallway. Sharp stated
that he did not give Hooker approval to have the day off out of the load, and Hooker replied 5
that he was in the calendar invitation from Steward Charles Johnson for the meeting (GC Exh.
69). Sharp replied that was insufficient.
I credit Sharp’s and Brash’s uncontroverted testimony of the events that followed.
Sharp called Brash, who arrived at the garage at about 10:30 a.m. They met with Hooker (and 10
Campbell and Johnson). Brash reiterated what Sharp had said about the calendar invitation
not constituting an approval. Brash brought the email he had sent to Letts the previous day,
and he read out verbatim a document concerning what management expected from Hooker
regarding union time. Brash said that it was standard for everyone else to request union time
in advance so that the Company could properly build the load and that Hooker would have to 15
do this or be marked as an attendance violation. Hooker stated that Brash’s stance was illegal
and threatened to file unfair labor practice charges. I credit Sharp’s testimony that Hooker
was very upset and that both sides were angry when the meeting ended.
In June 15–16 and July 1 and 25 emails, Letts and Brash disagreed over Brash’s 20
assertion that any bargaining concerning application of Article 10 of the CBA with respect to
MXUP and MXUU was at the CWA District 4 level (GC Exhs. 20–24). Brash reiterated what
he expected of Hooker, including the requirement that Hooker give his supervisor reasonable
advance notice of the absence, which would be granted if work schedules permitted.
25
On July 27, Hooker submitted his schedule bids for the weeks of August 14–
September 11, all for regular shift, but stating that under Art. 10 of the CBA (reasonable time
to transact union business), he was notifying Sharp that he would be transacting union
business for all scheduled hours during those weeks (R. Exh. 49 at 1). The following day,
Sharp denied his request to be full union time for the entirety of that 5-week schedule (ibid).30
Brash and Sharp testified about a meeting they had with Hooker and Campbell in
Sharp’s office on July 28 concerning a number of matters; Hooker and Campbell did not.
Based on their testimony, I find as follows. Brash stated that Hooker would not automatically
be excused Monday through Friday for union business just because he requested it and that 5 35
weeks out in advance was very far off absent a planned trip; a week or two would work better
for the Company. Brash further stated that if Hooker was scheduled to work and wanted to
attend a grievance meeting, he had to inform Sharp in advance and ask him, not just later put
it on his activity log. Hooker replied that he would schedule his grievance meetings only on
Mondays and Fridays because Sharp had told him those were the busiest days and he was 40
most needed in the load. Brash accused him of being obstructive.
Brash presented Hooker with an attendance counseling for his unexcused absence on
June 6; for tardiness on June 10 when he attended a grievance meeting in the morning without
Sharp’s permission; and a verbal warning for those incidents (see GC Exh. 17) plus a sick day 45
on June 18, for which Hooker’s request for a vacation day had been denied.
JD─40─18
23
Unless the Company approves FMLA leave, reporting off ill is treated as a chargeable
absence. Chargeable absences are accrued over a 12-month period; a chargeable absence
stays extant for 12 months. Because the counselings and verbal warning erroneously included
an early June 2016 violation that had dropped off, they were not issued that day; rather, Brash 5
issued corrected versions to Hooker on September 6 (GC Exhs. 30–32).
RFI over Truck Reassignments
Techs use three basic types of vehicles: (1) utility van or truck for the simplest work; 10
(2) bucket truck, assigned to someone qualified for in-the-air as well as ground work; and (3)
underground truck, a bucket truck specially equipped for work underground or in close
spaces, for a tech who is also qualified to perform such work. Prior to February 28, Jim Smith
drove a bucket truck, and Campbell had an underground truck.
15
Starting in January, Hooker worked in the load 1 day a week. He is 6-foot-4-inches
tall and found that the first truck to which he was assigned, a full-size van, too small. As a
result, he did not fit behind the wheel and had trouble reaching the brakes. In about late
January, he backed the vehicle into another company vehicle in the parking lot and was
assigned a different utility truck. He found the vehicle comfortable, but on February 11, the 20
brake lines blew out while he was operating it.
Brash and Safety Manager Steven Roden conducted an accident investigation
involving the first truck. Hooker stated that its cab was too small for him to drive safely, and
Roden had him drive Campbell’s underground truck or a similar truck, in the garage. He told 25
them that it was comfortable. On February 28, the Company effectuated a switch of vehicles
among Hooker, Campbell, and Smith. The General Counsel does not contend that the truck
swap itself violated the Act. Hooker was assigned Campbell’s underground truck, a new
vehicle; Campbell was assigned Smith’s bucket truck; and Smith was assigned Hooker’s
original utility van or a very similar vehicle.30
On February 29, Hooker filed a grievance over the truck swap (GC Exh. 61),
contending that the Company violated the mutual respect provision (article 4) in the CBA.
Hooker testified that he believed Sharp was retaliating against the Union by sowing dissent
among the crew, particularly within the Union inasmuch as Campbell was Hooker’s chief 35
steward and liked doing underground work. The Union proposed keeping Campbell in the
specially-equipped bucket truck and trading Hooker and Smith.
On March 8, a first-step grievance meeting was held at the garage between Hooker,
Campbell, and Johnson; and Brash and Sharp. Hooker asked for information that became the 40
basis for his subsequent RFI. Sharp stated during the conversation that Campbell was the
most qualified technician in his crew. The Company denied the grievance at the first step.
Management stated that they were going to have underground equipment installed in what had
been Smith’s bucket truck so that Campbell could continue to perform underground functions.
After such equipment was later installed in Campbell’s new truck, Campbell informed Sharp 45
that he was happy with it (Sharp’s unrebutted testimony).
JD─40─18
24
On April 7, Hooker filed an RFI (GC Exh. 62), requesting, inter alia, item (1), a list of
vehicles provided to Campbell, Hooker, and Smith since January 1, 2009, and the reason for
each change of vehicle for each employee; (2) a list of all factors considered for the truck
swap on February 24; (3) the estimated date for completion of the removal of air equipment 5
from Hooker’s truck and placement of same in Campbell’s truck, and the cost estimate.
Further, in reference to Sharp’s purported statement at the March 8 meeting that Campbell
was the “most qualified employee in the district,” Hooker requested (item 4) a list of all
employees in the district and their qualifications.
10
On April 8, Brash responded (GC Exh. 63), questioning the relevance of the request in
view of the Company’s discretion to assign tools and equipment in accordance with business
needs, and the relevance of documents going back more than 6 months. On April 11, Hooker
suggested a meeting at which he could answer the Company’s questions and concerns (GC
Exh. 64). Brash responded on April 25 (GC Exh. 66). Brash emphasized at the start that 15
Sharp had informed the Union that the special equipment was installed on Campbell’s vehicle
because Sharp deemed him to be the most qualified member in his crew to use the equipment,
and because Campbell had more qualifications listed on the call out list than any other tech in
the crew. Brash voiced the general objection that the requests were not relevant to the
Union’s statutory duties inasmuch as the Company had the discretion to distribute work tools, 20
including vehicles, as business needs required.
Brash stated that as to: item 1, the Company did not maintain this information or have
it reasonably accessible; item 2, those reasons had already been provided to the Union, the
Company had discretion to assign work tools, and all three were assigned work trucks based 25
on their qualifications to do different jobs; and item 3, the switch of equipment on the trucks
had been completed, and Campbell’s new truck had been in service since April 20. The cost
was not relevant to the Union’s statutory duties but such information had already been
provided.
30
As to item 4, Brash stated that he was repeating information that had already been
provided to the Union, and he referred to the call out list. Brash did provide a list of all
technicians in Sharp’s crew and the call out sheet for the week April 22–29, containing checks
by the types of work they were qualified to perform.
35
On May 26, Hooker responded (GC Exh. 67), asking as to item 1 what obstacles
prevented the Company from providing such information, including a description of how the
information was collected, maintained, stored and/or accessed; as to item 2, the specific tasks
and business requirements contemplated by the Company when it moved Campbell and Smith
into different vehicles, including a detailed listing of training and/or other requirements for 40
“underground work” and “air work” as referenced by the Company in explaining Campbell’s
move into his current vehicle, and the date prior to the conversion of Campbell’s truck in
which any other bucket truck was converted within the geographical scope of Mrla’s
responsibility; and as to item 3, details regarding the method and manner by which the
information was provided to the Union. Concerning item 4, Hooker requested the dates 45
Campbell, Hooker, and Smith achieved the qualifications listed on the call-out list, a
JD─40─18
25
comprehensive list of the criteria used to assign a “qualified” designation for employees in the
district; and any and all company material describing how to assign qualifications to
employees within the work-group. Hook reiterated the request for a list of employees and
their qualifications district-wide.
5
Hooker testified that his request for information pertaining to training for underground
and air work related to the Company’s assigning him a bucket truck and then an underground
truck and not another basic utility truck, the only vehicle for which he was trained. As far as
conversion of other trucks, Hooker testified that he found it unbelievable that the Company
would go to the expense of duplicating equipment already installed on a vehicle.10
The Company did not respond to the May 26 RFI.
Adverse Actions Relating to Hooker’s Performance
15
Expectations for field techs, including those in Mrla’s organization, are set out in
Respondent’s Exhibit 5. Brash was the decision-maker in all of the disciplines that Hooker
received.
February 18 Management-Union Meeting20
This meeting took place at the Lansing garage. Letts’, Brash’s, and Mrla’s versions
were quite similar. Mrla brought a copy of the Schall Report (R. Exh. 25), which he again
showed but did not give to the Union. Mrla and Brash recited what they viewed as
deficiencies in Hooker’s work performance and his noncompliance with turning in the work 25
sheet, amounting to insubordination, work avoidance, and obstruction. The Union expressed
disagreement with the Company’s characterizations. Mrla asked if Letts condoned Hooker’s
behavior, and Letts responded that he wished every one of his members was like Hooker.
Mrla then stated that he could see he would get no help from the Union, he now knew who
Letts was, and there was no reason to continue talking. Mrla ended the meeting and left.30
A. Written warning for violation of non-management (tech) expectations – March 3, 2016
(GC Exh. 26), for misusing time on February 14 and 21, and working overtime
without permission on February 11
35
As to February 11, the warning states that Sharp had reassigned the job because
Hooker stated he could not work overtime; Hooker did not answer or respond to Sharp’s
phone call voicemail or text; and he worked overtime without Sharp’s knowledge or
permission.
40
That afternoon, Hooker worked on a residential job with Training Manager Russ
Jordan, who was training him on the use of new meters that Hooker had never used. At about
3:50 p.m. Hooker messaged Sharp that he would not be able to finish the job without working
overtime (past 4:30 p.m.) because he had another commitment. Sharp tried unsuccessfully to
reach Hooker on his company cell phone and then arranged to have John Root, a tech from 45
another garage, take over the job. Root came to the site, but Hooker ended up finishing the
JD─40─18
26
job and arriving back at the garage at about 5:15 p.m. Sharp encountered him and asked why
he was working overtime and why he did not respond to Sharp’s calls or texts. Hooker
replied that it was a new phone, and he had not had enough time to read the instructions.
Hooker testified that he had received his company cell phone fresh out of the box that 5
day. It had no volume button, with the result that he did not hear when it rang or received a
text. On the other hand, Sharp testified that the phone was not an iPhone but a simple “flip”
phone, with a green on button and red off button. He had never given instructions to any tech
on operating a flip phone and did not believe Hooker’s explanation that he had not had time to
read the instructions. 10
Techs are expected to notify management if they think that their jobs may run into
overtime, which is voluntary. Brash testified that techs do not need permission for incidental
overtime if a job runs over, but Hooker had called to have the job removed and then stayed
and worked overtime. Because Hooker ended up working overtime, the Company had to pay 15
overtime to both him and Root.
Concerning February 14, the warning states that Hooker misused his time on the first
job as he started his shift at 8 a.m., did not dispatch until 9:30 a.m., and then called the duty
line at 11:03 a.m., saying that there was nothing to do at the BPC address, and the narrative in 20
his job detail report for the day (R. Exh. 28 at 6) reflected no trouble. The report has his
dispatch time as 8:08 a.m. and completion time as 1:21 p.m.
Hooker testified that the job was BPC, a type of job on which he had never before
worked. When he arrived, the work appeared to have been completed, but he inspected the 25
work from one end to the other to make certain. Another tech showed up at the jobsite and
was there for 30–40 minutes. When Hooker was satisfied there was nothing else to do on the
job, he called Sharp.
However, Sharp testified that Hooker’s job was a simple BPC cross bar or cosmetic 30
pedestal (ped) job requiring no line testing or diagnosis. Occasions do occur when another
tech has already fixed a ped, but Hooker should not have waited until 11:03 a.m. to contact
him but instead should have closed it out earlier and gotten another dispatch.
Regarding February 21, the warning states that Hooker dispatched at 9:30 a.m. even 35
though his shift started at 8 a.m. and that the expectation was for him to dispatch, get any
necessary stock, and leave the garage within 20 minutes of his shift.
Hooker testified that he was dispatched at 9:30 a.m. through his iPad. Before then,
when he pressed the dispatch button, he got the message that no work was available. 40
However, Sharp testified that on Sundays, three techs worked out of the garage. They reported
at 8 a.m., and if they did not have an assignment, they were expected to immediately contact
the load balance manager or the duty manager using the fixed duty manager phone number.
Hooker admitted that Sharp had told him earlier that if he got such a message, he should
“SmartChat” with the dispatch center to get work, and that Sharp had sent out an email to his 45
crew stating that they should call him if they failed to get a dispatch.
JD─40─18
27
On February 22, Sharp held an investigatory interview with Hooker concerning what
occurred on February 11, 14, and 21. Hooker had no specific recall of what was said at the
meeting (“I don’t remember much. . . . ”).19 I credit Sharp’s better recall and find the
following. As to February 11, Hooker stated that he had not yet read the instructions for his 5
cell phone. As to February 14, Sharp asked what he did in the 3 hours that morning, and
Hooker answered that he could not remember. Regarding February 21, Sharp asked what he
did between 8 and 9:30 a.m. Hooker replied that he did not want to do administrative work
when dispatched on a job and that he had to get stock and supplies. Hooker had never asked
Sharp prior to February 21 to come in early or for more time to get stock and supplies.10
B. Suspension pending investigation – April 27. This related to the intelligent vehicle
device (IVD) or GPS warning/suspension that was issued on May 10, below
C. Final written warning/3-day suspension for code of business violation/violation of
tech expectations – May 10 (GC Exh. 28), for tampering with his intelligent vehicle 15
device (IVD) on February 28 and April 24 and causing it to stop reporting
IVD or GPS devices are black hard plastic, a little bigger than a pack of cigarettes that
are plugged in under the dash board. Typically, nonreporting by a GPS is due to software or
programming issues and sent to EtechTexas, which does the diagnostics (see CP Exh. 2, R.
Exh. 41 at 18). 20
Hooker testified that on February 28, his first day using the truck, he found the GPS
on the floor. Sharp testified that Hooker never informed him of this, and there are no
documents of record to the contrary.
On April 17, Jason Bigelow, the duty manager on April 17, discovered that Hooker’s
GPS was not recording, and he advised Brash on April 18 that he had put in a repair ticket for25
it. Brash asked Sharp to pull GPS records from Telogis to see when it had stopped recording.
Those records showed that it had not been reporting since February 28. Sharp related this to
Brash.
The GPS was reinstalled in Hooker’s truck on April 18. Hooker testified that on April
24, his first day in the load since April 18, he hit the device with his foot while applying the 30
parking brake, and it popped out.
On April 19 (between the two dates in question), Brash reported to the asset protection
office that Hooker had tampered with the GPS unit in a company vehicle. The case was
assigned to Judy Vilik, senior investigator with the asset protection office, who conducted an 35
investigation. She maintained an event log of her step-by-step actions during the
investigation (R. Exh. 67 at 1–8) and prepared a 36-page report, including attachments (R.
Exh. 41, dated May 2). Vilik recalled no other times when she was asked to investigate a
non-reporting GPS unit.
40

19 Tr. 564.
JD─40─18
28
Brash and Sharp on April 19 received a form email from Etech Texas, the
Respondent’s vendor that services the GPS system, regarding GPS nonreporting issues. It
stated in relevant part, “Driver usage can sometimes partially dislodge the device, especially
when releasing the parking brake.” (CP Exh. 2.) Brash never provided this email to Vilik.
He had seen this form email on previous occasions. On April 25, Brash raised the April 24 5
date to Vilik as a result of what Duty Manager Osterberg reported to him about Hooker’s GPS
stopping reporting at 10:19 a.m. that day.
On April 27, Vilik conducted an interview with Hooker at the Lansing garage, with
Brash and Beach present as witnesses. I credit her unrebutted account as follows. She asked
Hooker questions and wrote down his answers, which she typed out and printed out as a 10
statement and then gave to Hooker to make any additions or corrections. She incorporated
those into his final statement, which he reviewed and affirmed was true and accurate but
refused to sign (R. Exh. 41 at 34–35).
The following summarizes the statement. On February 28, Hooker did not know what
the IVD was when, as he went to push down the emergency brake, he knocked it to the floor 15
and then placed it in the driver’s side storage container. He then reported this to Sharp, who
told him to submit a repair ticket to Fleet. On April 12, Hooker was advised at a union
meeting that the device was the GPS unit for the vehicle. He was also advised at the meeting
that the GPS had caused malfunctions in some company vehicles. On April 18, in a repair
ticket for issues with the vehicle, Hooker included a reference to a “strange device” laying in 20
the driver’s side door storage (see R. Exh. 41 at 28). Vilik asked why he referred to the GPS
as a “strange device” when he had been told what it was, and Hooker replied no reason.
Regarding April 24, Hooker accidentally knocked the GPS out of its plug when he went to
apply the parking brake. Vilik asked him why he did not submit a repair ticket for the GPS,
and he replied that he did not have time at the end of his shift and had been disciplined in the 25
past for misuse of time. Vilik asked why he did not notify the duty manager, and he replied
that it did not occur to him. Hooker denied that he had intentionally unplugged the GPS.
At the interview, according to both Vilik and Brash, Hooker voluntarily demonstrated
how he had kicked out the GPS with his feet when he set the parking brake. At the
conclusion of the interview, Hooker was suspended (with pay) pending the outcome of the 30
investigation.
Brash later tried himself and found it very difficult to dislodge the GPS device and
almost impossible to dislodge with his feet. After the interview, Vilik examined a vehicle
similar to Hooker’s. She found that it had a zip-tie securing the unit to the plug (although 35
there was no zip- tie on the GPS unit in Hooker’s vehicle at either time) (R. Exh. 41 at 5).20
However, she concluded that, based on the GPS report, Osterberg’s statement, and Hooker’s
statement, Hooker would have been releasing, not applying, the parking brake (ibid).
Vilik’s investigative findings (ibid at 3, 4) were:

20 Osterberg testified that he likes zip-ties around the GPS, so that the tech who wants to pull the GPS out
has to cut the zip-tie, but that he does not require them. I have to wonder why no one in management ever
suggested this to Hooker or, on the other hand, why Hooker did not know this from other techs.
JD─40─18
29
(1) On April 18, an email from Fleet was sent to Hooker advising him that the
“strange device” he reported was the GPS unit and the unit was plugged back
in.
(2) On April 24, Hooker’s first day working in the load since the GPS was
plugged back in, the GPS device lost power at 10:19 a.m. During a safety 5
inspection by the duty manager (Osterberg), the unit was found unplugged and
in the driver’s side door of Hooker’s work vehicle. Hooker never told the duty
manager about it being unplugged or submitted a repair ticket.
(3) What Hooker stated in their April 27 interview (set out above).
(4) Sharp stated that Hooker never mentioned the GPS device being knocked to 10
the floor board in February, and Sharp never directed him to submit a repair
ticket for it. Fleet Manager John Asaro stated that Hooker submitted no such
repair ticket.
Vilik’s notes (R. Exh. 67 at 3) state that “Mrla called Vilik to discuss the case” but say
nothing about their conversation, and she testified that she could not recall anything about it. 15
Vilik’s notes say nothing about the phone conversation she had with Campbell on about April
26, and I credit Campbell as follows. Vilik asked him questions about the GPS, and he told
her that when he got the vehicle it was brand new and had the new (plug-in) GPS placed in a
different position than the old GPS, which was mounted. Because it was not reading
properly, Bragg came out and informed him that the GPS was moved and that the plug-in unit 20
was under the driver’s seat. Campbell also told her that after, he had a couple of incidents
when he bumped it, it became loose, and he just plugged it back in.
When techs have called Osterberg and said their GPS units were loose, he had told
them to plug them back in; the only times when they reported that the GPS had fallen out was
after the truck had been in for service at the dealership, where they were pulled out.25
Osterberg testified that the Friday preceding April 24, when he was scheduled to be
duty manager, Brash called, informed him that there was an open asset investigation against
Hooker, and asked him to observe Hooker on Sunday and to pull his GPS and make sure that
it was reading. I further find that Brash directed Osterberg to observe Hooker to determine if
he was misusing time.30
On April 24, Osterberg drove to the jobsite at which Hooker was working after
locating it through U-Dash, which was receiving signals from Hooker’s GPS. He arrived at
about 9:25 a.m. and parked 100 yards away so that Hooker would not detect his presence.
Osterberg proceeded to observe in great detail everything Hooker did that morning and to
record his observations, which he put into a timeline (at Brash’s request) and sent to Vilik and 35
Brash on April 25, along with photographs that he took inside Hooker’s truck relating to the
GPS (R. Exh. 43(a)). Osterberg’s timeline indicates that he tried to pull Hooker’s GPS at
10:34 a.m. but it showed nothing after 10:19, meaning that it stopped reporting at that time.
Osterberg and Brash gave differing accounts of which one of them initiated a safety 40
observation or inspection of Hooker’s truck that afternoon. Under either version, Osterberg
went to Hooker’s truck and took pictures of the non-reporting GPS unit, which was in the
door cubby and not in the vehicle plug (R. Exh. 41 at 11–13; R. Exh. 43(b) at 2, 4–6).
JD─40─18
30
After reading Vilik’s report, Brash concluded that as to February 28, Hooker falsely
(1) stated that he removed the GPS while moving into the truck and setting the parking brake,
but it did not report at all that day, indicating that the GPS was removed before the truck was
even started; (2) claimed that he reported or put in a repair ticket into fleet; and (3) claimed 5
that Sharp told him to be in a repair ticket, when Sharp was unaware of any such problem.
Regarding April 17, Brash concluded that Hooker had engaged in misconduct by (1)
never telling Osterberg that he had removed the GPS; (2) referring on the repair ticket to the
GPS as a “strange device” when he was already aware what it was); (3) claiming that he 10
crossed his right foot over his left leg to set the parking brake when he would have used his
left foot; (4) never mentioning anything to Sharp about knocking any device out of place in
his truck.
D. Final written warning/3-day suspension for violation of tech expectations – May 10 15
(GC Exh. 27), for misusing time on April 10 (claiming he could not access his tools)
and on April 24 when observed by the duty manager
Dated May 9, the discipline was issued to Hooker the following day. On April 10,
Hooker was assigned to work on a PC in Grand Rapids. As reflected in his 9:37 a.m. email to 20
Duty Manager Bragg (R. Exh. 40), he encountered a “roadblock” in that he did not have the
right code to open the padlocks on the truck for access to his tools. Hooker testified that the
code he had been given (the last four digits of the truck identification number) did not work.
Hooker and Sharp offered conflicting accounts of what thereafter occurred, in particular,
Bragg’s involvement and whether the last four digits were the correct code. However, I need 25
not get into the details of their contradictory testimony inasmuch as neither the discipline
itself nor Brash’s testimony addressed the matter of the correct code. Rather, Brash testified
that he issued the discipline because Hooker was late in dispatch on April 10; after initially
calling Bragg for the right code, waited over an hour to tell Bragg that the lock still was not
working; and then did not perform basic work on the ped. I do note that Hooker offered 30
inconsistent testimony on whether he had previously experienced problems opening the locks.
As earlier noted, Osterberg observed Hooker on April 24, presumably in connection
with the GPS investigation. Based on those observations and Hooker’s emails and
communications with him, Osterberg testified that he concluded Hooker’s misuse of time that 35
morning included: (1) taking his iPad to a job that did not need it (replacing a ped); (2)
“fumbling” in and around his truck; (3) not taking the necessary equipment out to the job; (4)
saying that he did not have the necessary safety gloves for working near a potential electrical
hazard; (5) claiming that there was a roadblock in digging up the ped; and (6) taking 30
minutes’ excess time for lunch. During Osterberg’s afternoon safety inspection, he reviewed 40
Hooker’s work and determined that no work had been done on the job; further, Hooker did
not complete all of the necessary work that afternoon.
Brash and Sharp met with Hooker and Campbell on May 10 in Sharp’s office. Brash
was the only one of the four who testified about this meeting, and I credit his following
uncontested testimony. On the April 10 padlock matter, Brash asked why Hooker took an 45
JD─40─18
31
hour after he spoke with the duty manager to tell the duty manager that the code was still not
working; Hooker answered that he had no specific reason but had not realized how much time
had passed. As to April 24, Brash asked him no questions about the GPS. He showed
Hooker Osterberg’s timeline reflecting what Osterberg had observed. Brash asked why, when
he needed material from another tech, he sat in the garage for 30 minutes instead of going to 5
the worksite and having the tech meet him there (the site was only 5–10 minutes away).
Hooker replied that he did not know or consider it but that he was busy looking at prints and
job aids (however, Brash testified that replacing a ped was a straightforward job not requiring
the use of prints). Brash told Hooker that if his behavior continued, he might well be
terminated. Hooker responded that he was being retaliated against, which Brash denied. 10
Brash brought up Hooker’s availability for the load, stating that it was very difficult to
get him to do training. Hooker replied that he had three bosses, and AT&T was only one of
them. Brash responded that AT&T facilitated his involvement with the others and that he
needed to take care of his job. Brash also said that Hooker had turned in only a few activity
logs to date and that he needed to request his time in advance. Hooker replied that many 15
things happened quickly, and he threatened to suspend all stewards and be the only union
representative who filed and sat in on grievances.
Prior to this meeting, Hooker generally worked Sunday through Thursday, but he had
already selected a Monday through Friday late shift. Brash testified that he had previously
told Letts and Hooker that if Hooker worked a late shift, Brash wanted him to report by 2 or 20
2:30 p.m. At the meeting, Hooker stated that as per Mrla’s conversation with Letts last
October, anything between 8 a.m. and 4:30 p.m. Monday through Friday belonged to Letts,
and he would show up to work at 4:30 p.m. and work until 6:30 p.m. Brash said this was
unacceptable.
E. Suspension pending discharge – for violation of tech expectations including time 25
management and violation of company policy on September 20, 21, and 23 and
October 3–October 10 (GC Exh. 33)
F. Termination – October 14 (GC Exh. 34)
The CBA provides that suspension pending dismissal is required before a termination 30
(see GC Exh. 2 at 19). Brash made the decision to terminate Hooker because he did not
believe that Hooker would change his attitude of fighting the Company despite repeated
warnings.
Concerning September 20, Hooker’s testimony about the chronology of events was
confusing and contradictory. He testified that Campbell came out to the jobsite about 4 or 5 35
hours after he started, but he also testified that in the midmorning, Campbell was present at
the jobsite. According to both Sharp and Campbell, Campbell was never there in the
morning. Hooker testified that he had problems accessing his VPN to access network
blueprints (Translore) and that he attempted to contact Brash and Sharp by email and
telephone, possibly also by text message, at different times, starting with a phone call to Sharp 40
about half an hour or an hour after he was dispatched in the morning. However, the only
written communication in the record was a text sent by Hooker at 3 p.m., stating that the VPN
was still not working (GC Exh. 78). I doubt that Sharp and Brash would have ignored any
JD─40─18
32
such emails and phone calls. Moreover, Hooker’s descriptions of his communications with
Sharp were sketchy and lacking in detail.
Sharp, in contrast, provided a much more detailed account of the day’s events,
refreshed by his notes of his meeting with Hooker on September 22 (R. Exh. 61), and
Campbell corroborated him in part. Accordingly, I credit his testimony and Campbell’s more 5
limited testimony as to what occurred and find as follows.
On September 20, Hooker dispatched out at 8:46 a.m. on a POTS job, restoring dial
tone service (R. Exh. 28 at 32, Hooker’s job ticket). He encountered several roadblocks, one
of which was that his iPad was not working correctly and he was unable to connect to the
company’s VPN to access Translore to determine to which circuit the customer belonged. 10
Hooker went to the jobsite, where he tested the F1 cable pairs and found a problem, and also
tested the F2 cable pairs.
Hooker returned to the garage in the afternoon. Sharp asked what he was doing back.
Hooker replied that he needed some safety supplies and a water cooler and that his VPN was
not working, and Sharp told him that he should have called or texted him while in the field 15
and then contacted tech support, rather than returning to the garage. Hooker returned to the
jobsite but called Sharp at 1:18 p.m. and stated that he needed a hut key to access central
office (OE) equipment. Sharp told him to come back to the garage and get the key from
Campbell. Hooker came back to the garage and stayed for about 40 minutes. Sharp saw him
outside talking on the phone and asked to whom he was talking. Hooker replied Letts. Sharp 20
asked what he was still doing there, and he said he had taken his lunch break and talked to
Campbell about the job.
Hooker and Campbell went to the jobsite. Hooker explained what he had done and
said that he had isolated the F1 cable pair and changed it but still had no dial tone. They
worked on it together for a short period. When the end of the shift approached, Hooker called 25
Sharp at about 3:30 p.m. and said that he could not work overtime. Sharp directed Campbell
to take over the job, and Hooker returned to the garage. Campbell concluded that the pair that
had been assigned was not correct, and he changed the pair. There was still no dial tone, and
he realized that the trouble was on the OE, managed by the central office. Because of the
time, no techs were at the central office, and Campbell had to wait for the roving tech to come 30
to the site to make the switch in equipment. As a result, Campbell had to work overtime to
finish the job.
As to September 21, Hooker offered no testimony about the day’s events, the General
Counsel relying on documentary evidence (GC Exhs. 78–80), and I credit Sharp’s unrebutted
account of what took place beyond those documents. 35
That morning, Hooker and Sharp had various communications, by email, text, or
phone. At 8:21, Hooker texted Sharp that his VPN was again switching itself off (GC Exh.
78). At 8:52, he sent Sharp another text, stating that his VPN did connect but he still could
not get into the LTE app (ibid). He also brought up another roadblock—that the automobile
charger for his iPad was missing. He explained that he had enough battery life left to pick up 40
a job but needed it to be charged.
JD─40─18
33
Hooker dispatched out at 8:53 (R. Exh. 28 at 33) on a POTS job. At 9:35, while still
at the garage, Hooker texted Sharp that severe weather was hampering his morning start (GC
Exh. 79). He also stated that he had been unsuccessful finding a charging cord for his iPad,
that he had not heard back from Sharp, and that he would continue to look for one in the
garage until it was safe to leave. No other techs experienced a delay in leaving the garage due 5
to weather conditions that morning.
At 10:11, Hooker sent Sharp another email (GC Exh. 80), stating that he had found his
charger shoved down between the metal box and power inventor because someone else must
have shoved it there when using his truck. He also said that he was reporting a work injury
that he had received while retrieving the cord. Hooker further said that as to Sharp’s 10
instruction to “go to work,” he could not get on the network yet because the last lightning
strike was .4 miles from him within the last 30 minutes.
Sharp called Hooker and asked about his injury. Hooker said that he had hurt his
hand, and Sharp asked if he needed to go to Concentra, the Company’s medical center.
Hooker said no, that it was just a scrape but that he would monitor it.15
Hooker left the garage at 10:13 but returned at 2:45 p.m. He called Sharp and stated
that his hand was getting worse, and he thought it needed medical attention. Sharp told him to
go to Concentra. Thereafter, Sharp reassigned the job to Dan Quick, who finished it in 45
minutes to an hour by replacing a defective F1 pair.
September 22 and October 5 Interviews20
On September 22, Sharp interviewed Hooker about his conduct on September 20 and
21 because he believed that Hooker had misused time on both days. Campbell and Manager
Dean Miller were also present. Hooker did not testify about what was said at the interview;
Sharp relied primarily on his notes (R. Exh. 62, an email to Brash), which were not
necessarily inconsistent with Campbell’s testimony. I find the following.25
As to September 20, Campbell stated it was easy to assume (as Hooker had) that the
F1 was bad rather than the OE because problems with OE were less common. Campbell
opined at trial that Hooker had isolated the trouble fairly well aside from the OE issue, but
there is no evidence that he said this at the meeting.
30
Regarding September 21, Hooker explained the work that he had done at the jobsite,
including testing the F2. Sharp testified that this made no sense because Hooker said the
trouble was in the F1.
Following the interview, Sharp sent Brash a chronology of events for September 20 35
and 21 (R. Exh. 61).
On October 5, at Brash’s direction, Sharp had a second interview with Hooker
concerning Hooker’s activities on September 21 (see R. Exh. 63, Sharp’s notes emailed to
Brash that day). Campbell and Miller were again also present. Only Sharp testified about the 40
meeting, and he once more relied on his notes for refreshment. He concluded that Hooker
JD─40─18
34
provided no new information. Brash concurred with Sharp that Hooker had misused time on
both days, including misrepresenting the work he performed on September 20.
The September 23 and October 3 conduct involved paid training hours for which
Hooker put in. Brash was the only witness who offered testimony on this, and I credit his 5
account. All technicians have required monthly trainings or courses that they take on the
mLearning app on their iPads, and Hooker had required trainings due for August and
September on three subjects (see R. Exh. 57). As per mLearning, the total estimated course
length for all three was 1-1/2 hours. As of the week of September 19, Hooker had not
completed them. Sharp provided him paid time on September 23 to do so, and Hooker 10
reported 2.75 hours for training on his time card. He completed no training that day.
On October 3, Sharp provided Hooker further training time. Hooker reported 3 hours
for training but completed no courses that day. However, the following day, he did complete
them, as well as two other courses, when he was on MXUU (unpaid time) (see R. Exh. 58).15
Brash conceded that if a tech leaves the mLearning application open on his/her iPad,
accrued time continues to be recorded even if the tech is not actually taking the training. If the
tech goes into the app on more than one day, time accumulates.
20
Brash testified that Hooker had billed the Company for 5.75 hours of training whereas
they should have taken less than 2 hours. He rejected Hooker’s explanation that VPN issues
and interruptions by coworkers had delayed him.
Confidentiality Policy25
The Company’s confidentiality policy in effect since at least March 22 (GC Exh. 35,
effective that date), entitled “Reporting Privacy Related Incidents,” applies to all business
activities and employees at AT&T. The purpose is described as preserving employees’ and
customers’ private data. The Definitions section that follows lists (1) CPNI, customer 30
proprietary network information – about existing services and service usage); (2) PI/PP,
personally identifiable information – information that directly identifies or reasonable can be
used to figure identity of a customer or user; and (3) SPI, sensitive personal information –
information that identifies or can link to the customer and lead to identify theft. After that is
the policy that employees report improper use or disclosure of customer or employee 35
information, giving as examples fraudulent, intentional, or accidental disclosure, and “other
customer or employee privacy-related issues or incidents that may negatively impact
employees or customers or result in negative financial and/or reputational consequences to
AT&T.”
40
AT&T Vice President Gary Smith testified that the policy is designed to be in
compliance with Federal and state laws and that “employee information” means CPNI, PI/PP,
and SPI, as set out in the Definitions section, and no other information. He pointed out that
the rule does not apply to self-disclosure.
45
JD─40─18
35
Analysis and Conclusions
Hooker’s Placement in the Load
An employer violates Section 8(a)(5) and (1) of the Act when it unilaterally makes 5
substantial changes on subjects of mandatory bargaining; to wit, employees’ wages, hours, or
other terms and conditions of employment, without first affording notice and a meaningful
opportunity to bargain to the union representing the employees. NLRB v. Katz, 369 U.S. 736
(1962); United Cerebral Palsy of New York City, 347 NLRB 603, 608 (2006).
10
A specific working condition or benefit that is a mandatory subject of bargaining does
not need to derive from the express terms of the governing CBA; rather, it may be the result
of a longstanding practice or custom that employees can reasonably expect to continue or
recur on a regular and consistent basis. See Philadelphia Coca-Cola Bottling Co., 340 NLRB
349, 353–354 (2003); Eugene Iovine, Inc., 328 NLRB 294, 297 (1999); Central Illinois 15
Public Service Co., 139 NLRB 1407, 1415 (1962), enfd. 324 F.2d 916 (7th Cir. 1963). If so,
it cannot be changed without affording the collective-bargaining representative notice and an
opportunity to bargain, absent a clear and unequivocal waiver of this right. Sunoco, Inc., 349
NLRB 240, 244 (2007), citing, inter alia, Granite City Steel Co., 167 NLRB 310, 315 (1967);
DMI Distribution of Delaware, 334 NLRB 409, 411 (2001). This holds true even if the 20
practice is denominated as a “privilege” voluntarily instituted or bestowed by the employer.
Central Illinois Public Service Co., above at 1415.
As the Board stated in Axelson, Inc., 234 NLRB 414, 415 (1978), enfd. 599 F.2d 91
(5th Cir. 1979), employer benefits conferred on an employee who performs union functions 25
“inure to the benefit of all of the members of the bargaining unit by contributing to more
effective collective-bargaining representation and thus ‘vitally affect’ the relationship between
an employer and employee.” In accordance with this principle, the remuneration of union
representatives for time spent administering a CBA, including grievance processing, is a
mandatory subject of bargaining. BASF Wyandotte Corp., 276 NLRB 1576 (1985); BASF 30
Wyandotte Corp., 274 NLRB 978 (1985), enfd. 798 F.2d 849 (5th Cir. 1986); American Ship
Building Co., 226 NLRB 788 (1976), affd. sub nom., 574 F.2d 636 (D.C. Cir. 1978)
(unpublished opinion), cert. denied, 439 U.S. 860 (1978). Therefore, an employer cannot
unilaterally change the wages, hours, or working conditions of employee union
representatives or stewards that have been established by practice. American Ship Building 35
Co, above.
Here, there is no question that the past practice going back at least as far as late 2003
was that the AA was on full-time union status and not in the load; and prior to 2015, Hooker
was in that situation at all times for approximately 5 years. The Respondent admittedly made 40
the decision to put him back in the load without any consultation with the Union and
announced it as a fait accompli in October 2015. Far from waiving any right to bargain, the
Union repeatedly protested the Company’s decision both before and after it was effectuated.
That the Respondent might have been willing to engage in bargaining over the details of
Hooker’s return to the load does not change the fundamental fact that the key change was 45
removing him from full-time union status. Accordingly, by unilaterally requiring Hooker to
JD─40─18
36
return to the load on December 13, 2015, after 5 years of being full-time union, the
Respondent violated Section 8(a)(5) and (1).
Turning to whether the Respondent also violated Section 8(a)(3) by placing him back
in the load, Hooker had not performed tech work for 5 years. The Respondent has not 5
contended that this was a disciplinary action. Therefore, the four-factor test set out in Atlantic
Steel Co., 245 NLRB 814, 816 (1979), is not applicable. Rather, the issue is employer
motivation that is analyzed under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
10
Under Wright Line, the General Counsel must make a prima facie showing sufficient
evidence to support an inference that the employee’s protected conduct motivated an
employer’s adverse action. The General Counsel must show, either by direct or
circumstantial evidence, that the employee engaged in protected conduct, the employer knew
or suspected the employee engaged in such conduct, the employer harbored animus toward 15
the protected conduct (which may be inferred from all of the circumstances), and the
employer took action because of this animus.
If the General Counsel establishes a prima facie case of discriminatory conduct, it
meets its initial burden to persuade, by a preponderance of the evidence, that protected 20
activity was a motivating factor in the employer’s action. The burden of persuasion then
shifts to the employer to show that it would have taken the same adverse action even in
absence of such activity. NLRB v. Transportation Management Corp., 462 U.S. 393,
399−403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002); Manno Electric,
Inc., 321 NLRB 278, 280 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam). To 25
meet this burden, “[A]n employer cannot simply present a legitimate reason for its action but
must persuade by a preponderance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano Painting, 332 NLRB 1363,
1366 (2000), citing Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
30
If the employer’s proffered defenses are found pretextual, i.e., the reasons given for
the employer’s actions are either false or were not, in fact, relied on, the employer fails by
definition to show that it would have taken the same action for those reasons, and there is no
need to perform the second part of the Wright Line analysis. On the other hand, further
analysis is required if the defense is one of “dual motivation,” that is, the employer defends 35
that, even if an invalid reason might have played some part in the employer’s motivation, the
employer would have taken the same action against the employee for permissible reasons.
Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
Hooker’s activities on behalf of the Union, the Employer’s knowledge thereof, and the 40
action of putting him back in the load, are undisputed. The only question is whether the
Respondent’s motivation was retaliation against him for his union activities.
Undoubtedly, company management found Hooker difficult and abrasive. However,
during the course of Hooker’s performing his union duties prior to December 2015, the 45
Company never averred that his conduct was so egregious that it was removed from the Act’s
JD─40─18
37
protection. Indeed, employees who engage in demonstrative, vulgar, and defamatory displays
when they are engaged in protected activity ordinarily will not forfeit the Act’s protection.
See, e.g., Leasco, Inc., 289 NLRB 549, 552 (1988); Consumers Power Co., 282 NLRB 130,
132 (1986). Contrast, situations where the employee commits violence or advocates
insubordination or a work slowdown. See, e.g., Hillside Ave. Pharmacy, Inc., 265 NLRB 5
1613, 1622 (1982); Richmond Dist. Neighborhood Ctr., 361 NLRB No. 74, slip op. at 1–3
(2014); DaimlerChrysler Corp., 344 NLRB 1324, 1325 (2005).
The timing of Mrla’s placing Hooker in the workload raises a serious question about
the Company’s motivation. Mrla first questioned Hooker in January 2014 and Letts in March 10
2014 why Hooker was not in the workload. At one point, Mrla testified that he knew in 2014
that Hooker was not in the work schedule or on the vacation schedule, yet not until October 5,
2015—over a year-and-a-half later—did Mrla again bring up the subject of placing Hooker in
the workload to either Letts or Hooker. Thus, only 1 day before a scheduled NLRB hearing
on charges that Hooker had filed against the Company, Mrla called Hooker and stated that he 15
had to get Hooker a truck and tools and back in the load. Both Mrla and Brash testified that in
2015 they did not need Hooker back in the load and would have placed him in the load
regardless of any workload considerations. Mrla therefore offered no legitimate justification
for his sudden resurrection of the subject after its long dormancy.
20
Additionally, both Mrla and Brash testified that Mrla considered Hooker to be in a
steward position because he was appointed and not elected, and that “consistency” with the
treatment of other stewards in Mrla’s organization motivated their decision to put him back in
the load. However, Mrla announced the decision to the Union and Hooker before he polled
his area managers to determine whether they had any nonelected union officials on full-time 25
union status. The only logical conclusion is that at the time Mrla made and announced the
decision, he did not know as a fact that Hooker was the only union representative in that
status.
Significantly, certain statements by Mrla demonstrated hostility toward Hooker 30
because of his conduct as a union official. On August 10, 2015, Mrla called him regarding
the Flores grievance and started the conversation with, “What the hell is going on with all this
crap I’m hearing about your objections to—to making your members safer by making sure
they’re not driving with cell phones?” Moreover, Mrla stated at a management-union meeting
on October 23, 2015, that he considered that Hooker had filed a (voluminous) August 13 RFI 35
in connection with the Flores grievance to harass management. Granted, the RFI was
exceedingly lengthy, and the Respondent certainly had the right, which it exercised, to object
to production on relevance and other grounds (this holds true of all RFIs at issue in this case);
however, any retaliation against Hooker in his terms and conditions of employment was not a
proper vehicle to express opposition to the way he was conducting union business. 40
Furthermore, at the February 18 management-union meeting, Mrla and Brash averred that
Hooker’s noncompliance in turning in activity logs amounted to insubordination, and the
meeting ended with Mrla accusing Letts of condoning Hooker’s misconduct and, in essence,
walking out.
45
JD─40─18
38
Based on the above, I find both express and implied animus. In particular, the timing
of Mrla’s call to Hooker on October 5, 2015 on the subject—the first since January 2014, and
only a day before the NLRB hearing—raises a strong inference of unlawful motive. See State
Plaza Hotel, 347 NLRB 755, 756 (2006); La Gloria Oil & Gas Co., 337 NLRB 1120 (2002),
enfd. 71 Fed. Appx. 441 (5th Cir. 2003).5
I therefore conclude that the General Counsel has met all four elements in establishing
a prima facie case of unlawful action. I now turn to whether the Respondent has rebutted this
prima facie showing. Again, the Respondent’s justification for putting Hooker back in the
load was not that it needed him for workload considerations but that Mrla wanted 10
“consistency” in his organization as far as the treatment of stewards. I find this argument
flimsy in light of (1) no evidence that any stewards or union members ever complained to
management that Hooker was not in the load, (2) the practice was long established that the
AA was on full-time union status, and Hooker had enjoyed such status for approximately 5
years; (3) business considerations were essentially irrelevant, and the Respondent provided no 15
cogent legitimate justification for the timing of its conduct. Accordingly, I conclude that the
Respondent has not met its burden of persuasion of showing that it would have placed Hooker
back in the load in December 2015 had it not been for his engagement in union activity as the
Local’s AA. Therefore, the Respondent also violated Section 8(a)(3) and (1) by such conduct.
20
Requiring Hooker to Complete Union Activity Logs
Prior to Hooker’s returning to the load in December 2015, Brash created an activity
log form for Hooker to fill out to document his MXUP time after the fact. Brash attempted to
portray this as an accommodation to Hooker, inasmuch as all other stewards had to give 25
advanced notice before they took such time, and the Respondent’s brief reiterates this
argument (Br. at 131, et. seq.). Clearly, Hooker resisted complying with the requirement.
However, absent the Respondent’s unlawful removal of Hooker from full-time union status
and placing him in the load, the matter of activity logs would never have materialized. That
aside, none of the elected union officials or Hooker prior to December 2015 had to do 30
anything other than enter their MXUP and MXUU, and code the former, in the electronic
recordkeeping program. If the Respondent did have issues concerning whether Hooker was
properly claiming MXUP as a full-time union representative, it had the option of disputing his
claim for such and having the Union grieve any denials of such time if it so chose.
35
The Respondent argues (Br. 135–136) that the activity log was not a unilateral change
“but a contractual prerogative.” However, the cases cited involved modification or more
consistent enforcement of existing policies, not imposition of new reporting requirements on
an AA where none previously existed. Nor do I conclude, as the Respondent contends (Br.
137 – 138), that it was not required to bargain over their imposition because they were “so 40
minimal that they lack[ed] an impact.” Rather, they must be viewed in conjunction with the
Respondent’s unilateral change in compelling Hooker to go back in the load—a change that
Hooker and the Union clearly viewed as seriously detrimental and retaliatory.
Accordingly, for the same reasons that I stated for finding Hooker’s return to the load 45
a violation of Section 8(a)(3), (5), and (1), the Respondent violated the Act by imposing on
JD─40─18
39
Hooker the requirement that he complete activity logs for his union activities. The August 12
written verbal warning flowed directly from the activity log requirement and was therefore
similarly unlawful.
Adverse Actions Pertaining to Hooker’s Performance5
I will treat the various adverse actions in the aggregate since each one cannot be
considered separately and in a vacuum. The record demonstrates, and I conclude, that
management long considered Hooker to be difficult and overbearing in his conduct of union
business, and that from the outset of Hooker’s return to the load, (1) management believed 10
that he misused union time and was suspicious of his willingness to perform tech work; (2)
Hooker suspected that management was targeting him and looking to find faults in his
performance; and (3) Hooker was clearly peeved at being placed back in the load and did not
act in a manner that diffused management’s negative perceptions. The result of the
confluence of these factors was incessant and escalating conflict.15
Again, the appropriate framework for analysis is Wright Line, since employer
motivation is key. I previously discussed why the elements of union activity and employer
knowledge have been established. As to actions, the Respondent imposed various disciplines
on Hooker, ultimately resulting in his termination. The animus that I found was behind his 20
being put back in the load has to be considered to have continued when he returned to work
rather than having been magically extinguished. This is especially so when, after Hooker
returned to the load, he continued to have friction with management over the way he
conducted union business. Accordingly, the General Counsel has established a prima facie
case that the disciplines were unlawfully motivated. 25
The remaining issue is whether the Respondent has rebutted that prima facie case.
The answer is no. First and foremost, an employer may not discipline an employee for
conduct that would not have occurred but for the employer’s unfair labor practice. This is
based on the principle that an employer should not be allowed to benefit from its own 30
unlawful actions. See E.I. Dupont De Nemours & Co., 362 NLRB No. 98 (2015) (employer
prohibited from disciplining employee based on statements made during investigative
interviews where employee was unlawfully denied union representation); Preferred
Transportation, Inc., 339 NLRB 1, 3 (2003), in which the Board stated: “[M]isconduct
provoked by an employer’s unfair labor practice is not grounds for discharge. The common35
law principle is that employers should not be permitted to take advantage of their unlawful
actions, even if employees may have engaged in conduct that—in other circumstances—
might justify discipline (internal citation omitted).”
None of Hooker’s disciplines would have occurred had the Respondent not placed 40
Hooker back in the load in violation of Section 8(a)(3) and (5), and to allow the Respondent
to benefit from the direct consequence of its initial commission of unfair labor practices
would be an untenable result. Significantly, the accusations against Hooker related to how he
performed his work as a tech and not to any allegations of gross misconduct such as violence
against others, destruction of company property, malicious maligning of the Company to the 45
public, or the like. Accordingly, I find that any derelictions in his conduct were not egregious
JD─40─18
40
to the point where they severed the causal connection between the Respondent’s disciplines
and its original unlawful act.
Additionally, certain conduct on management’s part after Hooker returned to the load
gives rise to an inference of continued animus. Thus, Brash’s handling of the GPS 5
investigation reflected a desire to find cause to discipline Hooker rather than have impartial
fact-finding: Brash did not furnish to Vilik a document from the GPS contractor that might
have lent credence to Hooker’s version of the problems that he had with his GPS, and Brash
used the GPS investigation as a means of having Osterberg spend a good part of a day
observing Hooker to find fault with his conduct wholly unrelated to the GPS matter. 10
Moreover, trained investigator Vilik thoroughly documented her investigation of Hooker’s
nonreporting GPS but offered no explanation for her failure to include her conversation with
Cardesian, who offered evidence that might have supported Hooker’s version of his problems
with the GPS. Finally, Sharp did not take into account Cardesian’s statement on September
22 that Hooker’s mistake in diagnosing a problem on September 20 was an easy one for a tech 15
to make.
The Respondent cites (R. Br. 161) Section 10(c) of the Act and decisions thereunder,
for the proposition that Hooker was terminated for cause and therefore barred from
reinstatement and backpay; in particular, the Respondent relies on Anheuser-Busch, Inc., 351 20
NLRB 644, 644 (2007) as holding that reinstatement is barred by Section 10(c) where an
employee engages in misconduct, even if that misconduct is connected to a unilateral change.
However, the employees in that case were disciplined as a result of unilaterally-installed
security cameras detecting their misconduct; the unilateral change had discovered but not
caused or contributed to any misconduct, contrary to the situation here. Moreover, I have 25
found that the Respondent’s disciplines of Hooker were motivated by animus for his union
activities. This case therefore squarely fits within the exception to management’s right to
discharge employees enunciated in Anheuser-Busch, above at 644: an employer “may not
discharge when the real motivating purpose is to do that which [the Act] forbids. . . .”
30
I therefore conclude that the Respondent violated Section 8(a)(3) and (1) of the Act by
imposing on Hooker the various disciplines, including discharge, which stemmed from its
unlawfully placing him in the load.
Failure to furnish Relevant Information35
An employer is obliged to supply information requested by a collective-bargaining
representative that is relevant and necessary to the latter’s performance of its responsibilities
to the employees it represents. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v.
Truitt Mfg. Co., 351 U.S. 149 (1956). To trigger this obligation, the requested information 40
need only be potentially relevant to the issues for which it is sought. Pennsylvania Power &
Light Co., 301 NLRB 1104, 1104–1105 (1991); Conrock Co., 263 NLRB 1293, 1294 (1982).
Relevance is determined on a case-by-case basis. Columbus Products Company, 259 NLRB
220, 220 fn. 1 (1981).
45
JD─40─18
41
Requests for information concerning the terms and conditions of bargaining-unit
employees are presumptively relevant. Postal Service, 359 NLRB 56, 56 (2012); LBT, Inc.,
339 NLRB 504, 505 (2003); Uniontown County Market, 326 NLRB 1069, 1071 (1998). An
employer must furnish presumptively relevant information on request unless it establishes
legitimate affirmative defenses to production. Detroit Newspaper Agency, 317 NLRB 1071, 5
1071 (1995).
Because a bargaining representative’s responsibilities include the administration of the
collective-bargaining agreement and the processing and evaluating of grievances thereunder,
an employer is obliged to provide information that is requested for the processing of 10
grievances or potential grievances. Acme Industrial, supra at 436; Postal Service, 337 NLRB
820, 822 (2002); Beth Abraham Health Services, 332 NLRB 1234, 1234 (2000).
When information is presumptively relevant, the employer has the burden of rebutting
the presumption by showing that the information is either not relevant or cannot, in good 15
faith, be supplied. Coca Cola Bottling Co., 311 NLRB 424, 425 (1993).
If an employer effectively rebuts the presumption of relevance or otherwise
demonstrates a valid reason for not providing the information, the employer is excused from
providing the information or from providing it in the form requested. United Parcel Service 20
of America, Inc., 362 NLRB No. 22, slip op. at 3 (2015), citing Coca Cola Bottling, above.
RFI – Hooker’s Placement in the Load and
Having to Submit Union Activity Logs
25
Items 2–6 of Hooker’s December 23, 2015 RFI requested over 60 individual requests
for information going back to January 1, 2010 for techs in the Grand Rapids FAA. Brash
initially responded on February 5, 2016, along with sending 39 email attachments. On
specific items, he responded:
30
Item 2 – work group schedules – Brash objected on relevance but provided the work
schedules for 2015 on. At a grievance meeting in late February or early March, Brash
explained that the workloads were completely different from last year, let alone 5 years
earlier.
35
Item 3 – vacation schedules – Brash objected on relevance but later provided the 2015
and 2016 annual vacation reports.
Item 4 – each day’s starting workload and ending workload not completed that day or
carried over to the next day – Brash responded that no such documents were maintained but 40
responsive records in the Company’s possession would be provided.
Item 5 – dates during which employees were “loaned” into or from other organizations
within the Company – Brash responded that the Company did not maintain or possess records
in the form requested.45
JD─40─18
42
Item 6 – personnel who had received training – Brash objected on relevance but
provided such information for the preceding 6 months.
Concerning items 4 and 5, I conclude that the Respondent satisfied its obligation to
timely disclose that no such requested information existed. See Graymont PA, Inc., 364 5
NLRB No. 37 (2016), citing Endo Painting Service, Inc., 360 NLRB 485, 486 (2014). In this
regard, Hooker requested a great deal of information, and the Respondent’s response 5 weeks
later in this context was not unduly dilatory. Contrast this with the 13-month delay in Endo
Painting and the 6-month delay in Graymont, both found unlawful. The Union did not
thereafter ask the Respondent for further information or whether any alternative sources10
existed.
Regarding items 2, 3, and 6, the Respondent only partially complied, providing no
documents prior to 2015. Here, I note Hooker’s testimony that although these RFIs were
based on the Company’s assertions that it needed him back in the load because of heavy 15
workload needs, no one in management actually said this to him prior to his making the RFI.
However, the Respondent did not, in its objections to the RFIs, clearly state that the
documents were irrelevant because workload needs played no part in its decision to place him
back in the load in 2015. Had the Company done so, then its relevance objection to those
documents would have been justified. Because management did not, the Respondent did not 20
rebut the presumptive relevance of documents concerning work levels between 2010 and
2015. In this regard, Brash’s conclusionary statement at the grievance meeting that workloads
were completely different from year to year did not answer the question of whether the
workload changes between 2010 and 2015 provided a basis for Hooker being placed back in
the load in 2015. 25
Based on Hooker’s testimony regarding the purpose for the RFIs, I do see a relevance
issue as to item 6. However, it was up to the Respondent to explain why the information was
irrelevant, and by furnishing 6 months of training records, the Respondent tacitly conceded
the relevance of the subject matter (although not for the period sought).30
Turning to item 7, relating to the union activity logs, part 1 requested information
concerning all designated CWA representatives in Mrla’s organization, including whether
they were appointed or elected, and whether they were required to fill out “special
timesheets”; and part 2 requested information regarding the “special timesheet”: the genesis 35
of the “special timesheet,” the company policy that mandated it, how it would be stored, the
length of retention, and who would have access to it.
Hooker testified that this was for the purpose of challenging the Company’s position
that he was the only full-time, non-elected representative in Mrla’s organization and had the 40
most MXUP time in Mrla’s territory, and to confirm that he was the only one required to fill
out a special time sheet.
Brash responded on February 5 that the Union, not the Company, possessed the
information in Part 1. As to part 2, he replied that the Company did not maintain documents 45
JD─40─18
43
known as “special timesheets.” At the grievance meeting in February or early March, Brash
told Hooker that he was the only union representative asked to fill out the activity log.
As to part 1, Mrla represented to the Union that Hooker was the only full-time union
non-elected union representative in his organization and advanced that reason for putting him 5
in the load. At meetings with the Union, he cited the Schall Report as corroboration. He
allowed union representatives to look at the document but not give them a copy, as they
requested, because it might have been “proprietary.” Neither at those meetings nor at trial did
Mrla provide any basis for such a conclusion. Such information was clearly relevant to the
grievance and not in any way burdensome. That the union might have had alternative means 10
to obtain it, i.e., from sister locals, is unavailing as a defense. River Oak Center for Children,
Inc., 345 NLRB 1335, 1335–1336 (2005), citing Hospital Care Center, 307 NLRB 1131,
1135 (1992), enf. denied on other grounds 35 F.3d 828 (3d Cir. 1994).
Therefore, the Respondent was obliged to furnish the Schall Report in response to part 15
1. Regarding part 2, the communications between the parties established that Brash
originated the activity log specifically for Hooker, so that its genesis was already known to
Hooker and the Union. On the other hand, Hooker had a legitimate interest in knowing how
the timesheet would be stored, length of retention, and who would have access to it. The
Respondent did not provide any of this information. 20
Accordingly, I conclude that the Respondent violated Section 8(a)(5) and (1) by not
providing all of the documents requested in items 2, 3, 6, and 7.
RFI – Truck Swap Grievance25
Hooker’s April 7 RFI request stemmed from his grievance over the truck swap, which
contended that the Company violated the mutual respect provision (Article 4) in the CBA.
Hooker testified that he believed Sharp was retaliating against the Union by sowing dissent
among the crew, particularly within the Union inasmuch as Campbell was Hooker’s chief 30
steward.
Hooker requested, (1) a list of vehicles provided to Campbell, Hooker, and Smith
since January1, 2009, and the reason for each change of vehicle for each employee; (2) a list
of all factors considered for the truck swap on February 24; (3) the estimated date for 35
completion of the removal of air equipment from Hooker’s truck and placement of same in
Campbell’s truck and the cost estimate; and (4) in reference to Sharp’s purported statement
at the March 8 meeting that Campbell was the “most qualified employee in the district,”
Hooker requested a list of all employees in the district and their qualifications. As I stated, I
credit Sharp that he said Campbell was the most qualified employee in his crew. Therefore, 40
the Company was not required to provide such information district-wide.
Brash responded the next day, questioning the relevance of the request in view of the
Company’s discretion to assign tools and equipment in accordance with business needs, and
the relevance of documents going back more than 6 months. On April 25, Brash answered the 45
specific requests:
JD─40─18
44
Item 1 – the Company did not maintain the information or have it reasonably
accessible.
Item 2 – the Company had already provided those reasons to the Union (at the first-5
step grievance meeting), the Company had discretion to assign work tools, and all were
assigned work trucks based on their qualifications.
Item 3 – the refitting of Campbell’s truck had been completed, and the truck had been
in service since April 20. The cost had already been provided to the Union.10
Item 4 – Brash provided a list of all technicians in Sharp’s crew and the call-out sheet
for the week of April 22–29, which checked off the types of work for which they were
qualified.
On May 26, Hooker filed a second RFI. He asked as to item 1 what obstacles
prevented the Company from providing such information, including a description of how the 15
information was collected, maintained, stored, and/or accessed. The burden then shifted back
to the Company to justify its position that the information was not maintained or reasonably
accessible. As to item 2, Hooker requested a wide range of information regarding the
business justifications for the truck swap, and the conversation of other vehicles. On item 3,
Hooker requested details regarding the method and manner by which the information was 20
provided to the Union. Concerning item 4, Hooker requested the dates Campbell, Hooker,
and Smith achieved the qualifications listed on the call-out list, a comprehensive list of the
criteria used to assign a “qualified” designation for employees in the district; and any and all
company material describing how to assign qualifications to employees within the work-
group. The Company never responded to his second RFI.25
Although the RFIs were based on Hooker’s suspicion as to the motive behind the truck
swap, Southern Nevada Builders Assn., 274 NLRB 350, 351 (1985), cited by the Respondent
(Br. 170), is inapposite because it held that a union “must offer more than mere ‘suspicion or
surmise’ for it to be entitled to the information” it requests concerning nonbargaining unit 30
employees.
As to the first RFI, the Respondent timely answered that it did not maintain or have
readily available the requested information or had already provided the information, and I find
no violation of Section 8(a)(5). 35
However, the Respondent failed to respond in any way to the Union’s second RFI,
which asked for further information supporting the Company’s claim that certain documents
were not maintained or readily available and its claim that certain information had already
been provided to the Union. The Respondent could easily have elaborated on these 40
contentions. Nor did the Respondent respond to the request for additional information
regarding item 2. The Respondent might well have been justified in timely objecting to
furnishing certain information on the grounds of relevance, burdensomeness, or other
legitimate grounds, but it did not enjoy the prerogative of simply ignoring the request. See
JD─40─18
45
Columbia University, 298 NLRB 941, 945 (1990), citing Ellsworth Sheet Metal, 232 NLRB
109, 109 (1977). Therefore, the Respondent violated Section 8(a)(5) and (1) by not furnishing
such information (other than Hooker’s renewed request for information pertaining to the
qualifications of employees district-wide, which was overly broad).
5
Respondent’s Confidentiality Policy
The policy of Reporting Privacy Related Incidents applies to all business activities and
employees at AT&T. The rule mentions nothing explicitly about employees’ compensation or
benefits. AT&T Vice President Smith testified that the policy is designed to be in compliance 10
with Federal and state laws and that “employee information” means customer proprietary
network information (CPNI), personal information/identifiable information (PI/PII), and
sensitive personal information (SPI), and no other information. The rule does not, however,
contain that clarification.
15
In The Boeing Co., 365 NLRB No. 154 (2017), the Board overturned Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004), and set out a new test to evaluating rules
that are not explicitly unlawful: balancing (1) the rule’s potential impact on protected
concerted activity; and (2) the employer’s legitimate business justifications for maintaining
the rule. As the Board explained, if the justifications for the rule outweigh the potential 20
impact on employees’ rights, the rule is lawful; conversely, if the potential impact on
employees’ rights outweighs the justifications for the rule, it is unlawful. The Board set out
three categories of employer rules:
Category 1 – (1) the rule, when reasonably interpreted does not prohibit or interfere 25
with the exercise of NLRA rights, such as rules governing the harmonious interactions and
relationships or requiring employees to abide by basic standards of civility; or (2) the rule’s
potential adverse impact on protected rights is outweighed by justifications associated with
the rule.
30
The Board in Boeing found that the Company’s numerous justifications for its non-
camera rule, among which were limiting the risk that employees’ personally identifiable
information would be released, and complying with federally mandated requirements,
outweighed any potential adverse (“comparatively slight”) impact on protected rights. Ibid at
slip op. 4–5. Accordingly, the Board concluded that the rule was a lawful “Category 1” rule. 35
Category 2 – rules requiring individualized scrutiny on whether they would prohibit or
interfere with NLRA rights and, if so, whether any adverse impact on protected conduct is
outweighed by legitimate justifications.
40
Category 3 – rules that are unlawful to maintain because they would expressly prohibit
or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed
by justifications associated with the rule.
I agree with the parties (GC Br. at 68, et. seq.; R. Br. at 178, et seq.) that the rule is 45
facially neutral and that its justifications must be weighed against the degree to which it
JD─40─18
46
negatively impacts employees’ protected activity, placing it in category 2. The Respondent
contends that it has a compelling interest in protecting the privacy of customer and employee
information, and that the rule has an “insignificant impact” on Section 7 rights (R. Br. at 181).
The General Counsel, on the other hand, argues that the rule has a “severe” impact on those
rights, chilling employees from discussing among themselves, or sharing with others 5
(including union representatives), information relating to their wages, hours, or working
conditions (GC Br. at 71).
Because the Definitions section specifies the three types of information to which the
disclosure requirement pertains (CPNI, PI/PII, SPI), the inference is weakened that employees 10
would construe the rule as applying to their wages and other terms and conditions of
employment. The Respondent certainly has a strong and legitimate interest in protecting such
information from disclosure; even a legal obligation to do so. However, the last example that
is given is “other customer or employee privacy-related issues or incidents that may
negatively impact employees or customers or result in negative financial and/or reputational 15
consequences to AT&T.” This ambiguous and open-ended description tends to undermine a
reasonable reading of the rule as applying only to CPNI, PI/PII, and SPI and might well lead
employees to believe that sharing each other’s wages and benefits might run afoul of the
policy and subject them to discipline for engaging in protected activity. The exception for
self-disclosure does not cure this defect because the wages and benefits of a single employee 20
cannot be viewed in isolation or properly evaluated in a vacuum apart from his or her
coworkers. Indeed, collective activity by definition is conduct by employees in the plural.
Accordingly, I conclude that the potentially adverse effects on protected activity
outweigh the rule’s justifications. I note that the addition of a simple clarification could cure 25
the policy’s defect.
I therefore conclude that the confidentiality policy violates Section 8(a)(1).
CONCLUSIONS OF LAW30
1. The Respondents are employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the 35
Act.
3. By unilaterally placing Hooker in the load and requiring him to fill out union
activity logs, the Respondents have engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(3), (5), and (1) 40
of the Act.
4. By issuing disciplines to Hooker, culminating in his discharge, the
Respondents have engaged in unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(3) and (1) of the Act.45
JD─40─18
47
5. By not providing the Union with relevant and necessary information
concerning (A) Hooker’s grievance over his placement in the load and the activity log
requirement, and (B) the “truck swap,” the Respondents have engaged in an unfair labor
practice affecting commerce within the meaning of Section 2(6) and (7) of the Act and
violated Section 8(a)(5) and (1) of the Act.5
6. By maintaining a confidentiality policy that is unlawful under the test that the
Board enunciated in The Boeing Co., supra, the Respondent has engaged in an unfair labor
practice affecting commerce within the meaning of Section 2(6) and (7) of the Act and
violated Section 8(a)(1) of the Act.10
REMEDY
Because I have found that the Respondents have engaged in certain unfair labor
practices, I find that it must be ordered to cease and desist and to take certain affirmative 15
action designed to effectuate the policies of the Act.
The Respondents having discriminatorily terminated Brian Hooker, must make him
whole for any losses of earnings and other benefits suffered as a result of his discharge. A
make-whole remedy is appropriate because a remedy should “restore as nearly as possible the 20
situation that would have prevailed but for the unfair labor practices.” E.I. Dupont, 362
NLRB No. 98, slip op. at 7 (2015), quoting State Distributing Co., 282 NLRB 1048, 1048
(1987).
Specifically, the Respondents shall make Brian Hooker whole for any losses, earnings, 25
and other benefits that he suffered as a result of his unlawful discharge. The make-whole
remedy shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance
with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. 30
Cir. 2017), the Respondents shall compensate Brian Hooker for search-for-work and interim
employment expenses regardless of whether those expenses exceed his interim earnings.
Search-for-work and interim employment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center, supra. In accordance with Don 35
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), the Respondents shall
compensate Brian Hooker for the adverse tax consequences, if any, of receiving a lump sum
backpay award, and, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), the Respondents shall, within 21 days of the date the amount of backpay is fixed
either by agreement or Board order, file with the Regional Director for Region 7 a report 40
allocating backpay to the appropriate calendar year for Brian Hooker. The Regional Director
will then assume responsibility for transmission of the report to the Social Security
Administration at the appropriate time and in the appropriate manner.
The Respondents having discriminatorily discharged Brian Hooker must also offer 45
him full reinstatement to his former job or, if that job no longer exists, to a substantially
JD─40─18
48
equivalent position, without prejudice to his seniority or other rights or privileges previously
enjoyed.
The Respondents shall expunge from their records any and all references to the
disciplines and discharge of Brian Hooker.5
The Respondents shall rescind the requirements that Brian Hooker perform technician
work and submit union activity logs.
The Respondents shall provide additional information requested by the Union in its 10
December 23, 2015 and May 26, 2016 requests for information.
The Respondents shall rescind the confidentiality policy in question, or modify it so
that it does not interfere with employees’ protected rights.
15
The Respondents shall post a notice to employees as set out below.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended21
20
ORDER
The Respondents, Michigan Bell Telephone Company, and AT&T Services, Inc., Joint
Employers, Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall
25
1. Cease and desist from
(a) Unilaterally changing the terms and conditions of employment of union
officials.
30
(b) Changing the terms and conditions of employment of union officials or
disciplining, terminating, or otherwise discriminating against them because they engage in
activities on behalf of Local 4034, Communications Workers of America (CWA), AFL–CIO
(the Union).
35
(c) Failing and refusing to provide information that the Union requests that
is relevant and necessary to its processing of grievances under the collective-bargaining
agreement.
(d) Maintaining a confidentiality policy that interferes with employees’40
protected rights.

21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD─40─18
49
(e) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.5
(a) Within 14 days from the date of the Board’s Order, offer Brian Hooker
full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously
enjoyed.10
(b) Make Brian Hooker whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the remedy
section of the decision.
15
(c) Within 14 days from the date of the Board’s Order, remove from its
files any reference to the unlawful disciplines and discharge of Brian Hooker, and within 3
days thereafter notify him in writing that this has been done and that the disciplines and
discharge will not be used against him in any way.
20
(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 designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the 25
terms of this Order.
(e) Rescind the requirements that Brian Hooker perform technician work
and fill out union activity logs.
30
(f) Provide the Union with information that it requested that is relevant and
necessary to its processing of its grievance over Brian Hooker’s assignment to the load and
requirement that he fill out union activity logs, and to its grievance over the reassignment of
trucks.
35
(g) Rescind the confidentiality policy, or modify it so that it does not
interfere with employees’ protected rights.
(h) Within 14 days after service by the Region, post at their facilities in
Michigan where the Union represents technicians, copies of the attached notice marked 40
“Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 7,
after being signed by the Respondents’ authorized representative, shall be posted by the
Respondents and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as by email, posting on an 45
intranet or an internet site, and/or other electronic means, if the Respondents customarily
JD─40─18
50
communicate with their employees by such means. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondents have
gone out of business or closed the facility involved in these proceedings, the Respondents
shall duplicate and mail, at their own expense, a copy of the notice to all current employees 5
and former employees employed by the Respondents at any time since December 13, 2015.
(i) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to comply.10
I FURTHER ORDER that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, Washington, D.C. June 21, 201815
Ira Sandron
Administrative Law Judge
20
Qýj
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
Local 4034, Communications Workers of America (CWA), AFL–CIO (the Union) is the
collective-bargaining representative of certain of our employees.
WE WILL NOT make changes in the working conditions of your union representatives without
first providing the Union with notice and an opportunity to bargain.
WE WILL NOT change the working conditions of, discipline, discharge, or otherwise
discriminate against your union representatives because they have engaged in activities on
behalf of the Union.
WE WILL NOT require Brian Hooker to work in the load or fill out union activity logs.
WE WILL NOT fail and refuse to provide the Union with information that it requests that is
relevant and necessary for it to represent unit employees.
WE WILL NOT maintain a confidentiality policy that unlawfully interferes with your rights to
engage in the protected activities described above.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the Act, as set forth at the top of this notice.
WE WILL within 14 days from the date of the Board’s Order, offer Brian Hooker full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously
enjoyed.
WE WILL make Brian Hooker whole for any loss of earnings and other benefits he suffered as
a result of our discrimination, with interest.
WE WILL remove from our files any references to Brian Hooker’s disciplines and discharge,
and we will, within 3 days thereafter notify him in writing that this has been done and that the
disciplines and discharge will not be used against him in any way.
WE WILL provide the Union with the information that it requested regarding (1) the Union’s
grievance over our placing Hooker in the load and requiring him to fill out union activity logs,
and (2) the Union’s grievance over our reassignment of trucks between Hooker and other
employees.
WE WILL rescind our “Reporting Privacy Related Incidents” policy, or modify it to make it
clear that it does not prohibit you from engaging in protected activities, and notify you in
writing of this rescission or modification.

MICHIGAN BELL TELEPHONE COMPANY,
AND AT&T SERVICES, INC., JOINT
EMPLOYERS
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2543
(313) 226-3200. Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/07-CA-
161545 or by using the QR code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W.,
Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER (313) 335-8042.