T-Mobile USA, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 3, 2015

01-CA-123183 (N.L.R.B. Aug. 3, 2015)

JD(NY)-35-15
Hartford Connecticut, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
T-MOBILE USA, INC.
And Case Nos.
01–CA–123183
COMMUNICATION WORKERS OF 01–CA–129976
AMERICA, AFL–CIO 01–CA–140752
And
COMMUNICATION WORKERS OF
AMERICA, LOCAL 1298, AFL–CIO
Rick Concepcion Esq., for
the General Counsel.
Mark Theodore, Esq. and Irina
Constantin, Esq., for the
Respondent.
Thomas W. Meiklejohn Esq., and
Nicole M. Rothgeb Esq.,
for the Charging Party.
Decision
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in Hartford, Connecticut
on May 8, 2015. The charges and amended charges were filed on February 25, March 14, April
29, June 3, and October 29, 2014. Based on those charges, Region 1 of the National Labor
Relations Board issued a Consolidated Complaint on October 31, 2014. This alleged as
follows:
1. That since August 2, 2011, the Respondent has recognized the Communications
Workers of America (the National Union) and Local 1298 as the representatives of certain
employees in Connecticut.
2. That the most recent collective-bargaining agreement was effective from July
31, 2012 through May 31, 2014.
3. That since January 16, 2014, and prior to the contract’s expiration, the
Respondent issued an Employee Handbook applicable to the bargaining unit employees
that states:
(a) Employment at TMUS is “at will” which means that it is not for any
specific duration and that tan employee or the Company may terminate the
JD(NY)-35-15
2
employment relationship at any time, for any reason, with our without notice.
No one except the President or Chief Executive Officer of TMUS has the
authority to change any employee’s at will employment status, to make any
agreement that an employee will be employed by TMUS for any set period of
time, or to make any other promises or commitments that are contrary to this 5
policy of at will employment. For any such agreement, promise or
commitment to be binding on the Company, and to be valid and enforceable
against it, that agreement, promise of commitment must be part of a written
contract signed by an employee and the President or Chief Executive Officer
of TMUS and, if applicable, have the approval of the Compensation 10
Committee…
4. That since January 16, 2014, the Respondent, by issuing and maintaining the
at-will policy described above, informed bargaining unit employees that the selection of a
bargaining representative was futile. 15
5. That since January 16, 2014, the Respondent, by maintaining the “at will”
policy has failed to continue in effect the terms of the expired contract. 1
6. That since May 29, 2014, the Respondent has unilaterally changed the notice 20
requirements for the use of paid time off, thereby modifying article XVIII of the
agreement.
7. That the foregoing changes were made during the term of the collective-
bargaining agreement and were made without the consent of the Union, it therefore is 25
contended that the Respondent violated Section 8(d) and 8(a)(5) of the Act.
8. That since October 8, 2014, the Respondent has refused to meet with the
Union to negotiate a successor collective-bargaining agreement.
30
Among other things, the Respondent asserts that it did not modify the collective-
bargaining agreement and that its notice to 40,000 nonunit employees regarding their
status as “at will” employees, cannot be construed as changing the status of the
employees covered by the union contract. The Respondent also asserts that it has not
withdrawn recognition and has continued to notify and offer to bargain with the Union 35
regarding any changes in working conditions. Its position is that it has merely
suspended bargaining until a question of representation is resolved via an election.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following 40
45

1
The complaint asserted that the revised handbook provisions also modified the company’s policy
regarding absenteeism in that they provided that an employee may be deemed to have abandoned his
employment if absent for 3 or more days without notice. However, this contention is not mentioned in
either the General Counsel’s or the Charging Party’s Brief. I therefore deem that this allegation has been
abandoned.
JD(NY)-35-15
3
Findings and Conclusions
I. JURISDICTION
It is admitted and I find that the Respondent is an employer engaged in commerce within 5
the meaning of Section 2(2), (6) and (7) of the Act. I also find that the Unions are labor
organizations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
10
The Respondent is a phone service provider that employs about 40,000 employees
throughout the United States. Most of these employees are not represented by any labor
organization.
Pursuant to an election held in 2011, the Respondent recognized the CWA and 15
its affiliated Local 1298 as the exclusive collective-bargaining representative in a unit
consisting of:
All full-time and regular part-time field technicians switch technicians and
material handlers employed by T-Mobile USA in the State of Connecticut, 20
but excluding all other employees, contractors and supervisors and guards
as defined in the Act.
For the calendar year 2014, there were 20 bargaining unit employees, including
about six former employees of Metro-PCS who were added to the bargaining unit in 25
December 2013.
The parties stipulated that David Karpinski held the position of Market Manager,
Connecticut, for T-Mobile’s Engineering and Operations in the State of Connecticut.
They also stipulated that in that capacity, Karpinski has been a supervisor within the 30
meaning of Section 2(11) of the Act and an agent within 2(13) of the Act.
It also was stipulated that Christopher Cozza and Christopher Cocola have been
union stewards for Local 1298 and have been designated as contact persons for
bargaining unit employees by the local union. 35
The Board certified the union on August 2, 2011. Bargaining commenced in the
fall of 2011, and concluded in the summer of 2012. A collective-bargaining agreement
was reached in July 2012, and that contract ran from July 31, 2012 through May 31,
2014. This contract was executed by William Henderson and Paul Bouchard on behalf 40
of the Unions and by Mark Appel, who is the Respondent’s area director.2 A number of
provisions of that contract are relevant to the issues in this case.
The contract contains a broad management rights clause, which among other
things, states that management has the right “to suspend, discipline, discharge, demote 45

2
The parties stipulated that Mark Appel was neither the president of the company, the chief executive
officer, nor a member of the company’s executive office. There is however, no doubt that Mr. Appel had
authority to execute this contract on behalf of the employer and the Respondent does not contend
otherwise. At no time after the contract’s execution, has the Respondent asserted that the contract was
invalid or inoperative because it was executed by a person without authority.
JD(NY)-35-15
4
or take any other disciplinary action for just cause” The management rights clause also
states: “The foregoing management rights are expressly reserved to be decided by the
company on a unilateral basis and shall not be subject to any dispute resolution
procedure.”
5
At Article XVIII there is a clause that provides that employees are eligible to
participate in various company benefits, including paid time off. It also states that:
“During the term of this Agreement, the Employer shall have the right, in its sole
discretion, to alter or eliminate entirely these benefits currently offered, provided such
revisions match those of employees outside the bargaining unit.” At paragraph 2, the 10
contract states that the “Company will give notice to the Union of any such changes,”
and that the “Company’s right to alter or eliminate these benefits shall not be subject to
Article XII – Grievance and Arbitration.”
In addition, the contract contains a seniority clause that affects layoffs and 15
recalls. It states inter alia, that “if skill and ability are equal, in the Employer’s opinion,
then seniority shall prevail. The Employer shall not make decisions on the skill and
ability in a capricious or arbitrary manner.”
Finally, the contract contains a grievance/arbitration clause at Article XII. 20
Coupled with that part of the management rights clause that allows disciplinary actions
vis a vis employees based on “just cause,” the contract therefore permits an arbitrator in
a grievance proceeding to conclude, for example, that the discharge of an employee was
not for just cause and therefore that the employee would be entitled to reinstatement and
backpay. 25
It should also be noted that although the Company, pursuant to Article XVIII (described
above), has the right to alter or modify various benefits during the life of the collective-
bargaining agreement, there is a limitation of that right by virtue of the Company’s obligation to
notify the Union of such changes. 30
The contract described above expired on May 31, 2014, and no new contract has been
negotiated. Although the General Counsel is asserting that certain limited provisions of the
contract have been unilaterally changed, the evidence is that for the most part, the terms and
conditions of employment as they existed prior to the contract’s expiration, have remained in 35
effect.
In August 2012, and subsequently in August 2013, the Company revised its nationwide
employee handbook. This was accomplished by posting the changes on its company-wide
website that was available to its 40,000 employees. Needless to say, the changes were made 40
available to the 20 employees who were covered by the collective-bargaining agreement in
Bloomfield, Connecticut. These postings contained language to the effect that employment with
the Respondent was on an “at will” basis. As far as I know, there was no discussion between
the Union and the Respondent, during the term of the contract, as to what effect, if any, these
handbook “at will” provisions would have on the “just cause” provision contained in the 45
collective-bargaining agreement.
On or about January 16, 2014, the Respondent again posted a newly revised handbook
covering its employees on a nationwide basis. However, as to its California and Puerto Rico
employees, the posting indicated that they would be covered by slightly different provisions. 50
JD(NY)-35-15
5
Neither the notices posted on January 16 and 20, nor the handbook itself, state that certain
provisions would not apply to employees covered by a collective-bargaining agreement.
This newly revised handbook included the provision that employment was considered to
be on an “at will” basis. Further, employees were notified that when new employees were hired, 5
they would be required to sign a statement acknowledging their “at will” status. Neither the
handbook nor the notices state that this “at will” status would be applicable only to nonunion
employees. On the other hand, there is nothing in the handbook or the notices that states that
the Bloomfield employees’ contract would not be honored including the grievance/arbitration
provisions which permit the Unions to contest whether a discharge or other adverse action was 10
taken without “just cause.”
No employee at the Bloomfield facility covered by the collective-bargaining agreement
has been required to sign any statement acknowledging that his or her employment is on an “at
will” basis. 15
The General Counsel also contends that prior to the expiration of the contract, (May 31,
2014), the Respondent modified the contract by failing to notify the Union regarding a change it
made to the employees’ paid time-off benefits. In this regard, the alleged change to the
collective-bargaining agreement is not the change in the actual time-off benefits, but rather the 20
failure to give notice to the Union before making the change. The General Counsel concedes
that pursuant to Article XVIII, the Respondent had the right to make the change, provided (a)
that the change offered unit employees the same benefit given to employees outside the
bargaining unit and (b) that the Company gave notice to the Union of the change. My reading of
this provision is that it only requires notice and does not require bargaining about a benefit 25
change.
Under the old policy, effective during the term of the contract, employees were required
to provide 1 day of advance notice for 1 day of paid time off; 72 hours of notice for 2 paid days
off; and 5 days of notice for 3 or more days of paid time off. 30
On May 29, 2014, Karpinski notified unit employees that they would be required to
provide 2 weeks of notice if they were asking for 4 or more days of paid time off. This change
was announced 2 days before the contract’s expiration.
35
Although shop stewards, as unit employees, were aware of the May 29 notice,
which they forwarded to the Union, no official notice was given by the Respondent
directly to the CWA or to the local Union.
On March 28, 2014, one of the employees filed a decertification petition in 1–RD–12542 40
seeking an election to determine if a majority of the employees in the unit wished to be
represented by the Union. That petition was supported by a showing of interest, which means
that at least 30 percent of the bargaining unit employees signed something to indicate that they
no longer wished to be represented. The decertification petition has not been dismissed, but its
processing has been blocked by this unfair labor practice case. 45
At some time later, the Respondent received a petition to remove the Union as the
representative of the employees. This was signed by a majority of the employees in the
bargaining unit.
50
JD(NY)-35-15
6
Notwithstanding the filing of the RD petition and the receipt of the employee petition, the
Respondent has not withdrawn recognition from the Union. And in fact, it continued to bargain
for a period of time and continues to deal with the Union with respect to various grievances and
other matters.
5
On October 8, 2014, Mark Theodore, the Respondent’s attorney sent the following letter
to Patrick O’Neil, which in effect, suspended contract negotiations.
This letter is to inform you that T-Mobile has received from the employees in
the Connecticut Area market, objective evidence of a loss of majority support 10
of bargaining unit employees, a majority of whom no longer wish to be
represented by the CWA. Under NLRB case law the Company would be
privileged to withdraw recognition at any time after the expiration of the
parties’ agreement…. The collective bargaining agreement expired on May
31, 2014. 15
The Company always has maintained that an election is the best course of
action when it comes to deciding questions concerning union representation
and twice has been willing to proceed to such an election in this bargaining
unit. As you are aware, employees in the bargaining unit filed a timely 20
certification petition several months ago. Unfortunately, their efforts to seek a
simple election have been blocked by the CWA’s unfair labor practice
charges.
Given the CWA’s lack of majority status, the Company is going to suspend 25
bargaining while the question concerning representation is sorted out.
If the election on the employee petition is held, and should the Union prevail,
bargaining will resume. In this period of suspension, the Company will abide
by the terms of the expired collective bargaining agreement, as well as any 30
other interim bargaining obligations that may arise.
By letter dated October 15 2014, O’Neil wrote to Theodore as follows:
I have one question about your letter. You state that the Company will abide 35
by the terms of the expired collective bargaining agreement. Does this include
the just clause provision of the contract? Is the Company prepared to arbitrate
any disputes that arise concerning discipline, despite the suspension of
negotiations?
40
On October 27 2014, Theodore replied:
In your letter, you asked what suspension of bargaining for a successor
contract means. It is simple: T-Mobile will abide by the law just as it always
has done. This means that certain provisions of the parties’ expired contract 45
will remain unchanged by force of law: other provisions do not survive contract
expiration….
Although Theodore might be accused of being a bit coy, it would be clear to any
experienced labor relations practitioner that in accordance with present law, an arbitration 50
JD(NY)-35-15
7
clause, unlike most other provisions of a collective-bargaining agreement, does not continue
after the contract’s expiration.
III. ANALYSIS
5
Among other things, Section 8(d) provides that when a contract is made, the duty to
bargain “shall not be construed as requiring either party to discuss or agree to any modification
of the terms and conditions contained in a contract for a fixed period, if such modification is to
become effective before such terms and conditions can be reopened under the provisions of the
contract” The purpose of this provision, (enacted to modify the decision in NLRB v. Sands Mfg. 10
Co., 306 U.S. 332, 342 (1939)), was to insure a degree of stability once the parties to a
collective-bargaining relationship have established a contract for a fixed term. (A bargain made
is a bargain to be kept). To allow either party to require the other to bargain about an issue that
has been set for a fixed period of time, would, in a sense, make the agreement somewhat
illusory and insert a degree of instability into the relationship between the parties. (There is, 15
however, nothing unlawful if both parties to a collective-bargaining agreement voluntarily and
mutually agree to a mid-term modification).
Pursuant to Section 8(a)(5), the Act also imposes a duty to bargain when an employer
chooses to make a change in an existing term and condition of employment where that change 20
is not covered by terms and conditions of a collective-bargaining agreement. This obligation
exists during the term of an existing contract and, in most respects, after the contract expires, so
long as a union remains the legally recognized bargaining representative. The duty to bargain
in such cases involves the obligation to give notice to a union about the desired change and a
reasonable opportunity to bargain about the change. However, the duty to bargain attaches 25
only to changes that materially affect terms and conditions of employment.
It is the contention of the General Counsel and the Charging Party that by issuing a new
employee handbook in January 2014, the Respondent effectively modified the existing
collective-bargaining agreement by telling the bargaining unit employees that they were “at will” 30
employees and that they could, in effect, be terminated with or without just cause.
The Respondent asserts that this claim is incorrect and that a handbook written for and
issued to 40,000 employees, was never intended to modify, nor could it legally modify, the terms
of the existing collective-bargaining agreement. It notes that there is no evidence to suggest 35
that the Company by any of its agents or representatives, ever directly told, claimed, or
suggested to the Union, or to the employees, that the grievance/arbitration or the “just cause”
provisions of the contract had been changed, modified or superseded by the handbook
provisions. And if the Company had chosen to take that position, there were plenty of
opportunities to do so when union representatives met with the Company to discuss a variety of 40
matters after the handbook was issued.
I don’t think that the issuance of an employee handbook that included a statement
reiterating a long standing company assertion that it considers its employees to be “at will”
employees, can reasonably be construed as an attempt to modify the “just cause” provisions of 45
the collective-bargaining agreement, which in this case, covers 20 out of about 40,000
employees. There is no evidence of any communication by the Company to the Union or to the
employees, that the revised handbook was somehow meant to nullify any of the terms of the
collective-bargaining agreement. In my opinion, this assertion is a creative but incorrect
interpretation of a document that was clearly not intended to modify, alter or change the existing50
contract.
JD(NY)-35-15
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Based on the above, I conclude that by issuing the handbook with the statement about
“at will” employment, the Respondent has not violated Sections 8(a)(5) and 8(d) of the Act. I
also conclude that the Respondent has not notified employees that bargaining would be futile.
5
On May 29, 2014, the Company notified the bargaining unit employees that there were
some changes in the amount of notice time that would be required if they wanted to take 4 or
more days of paid time off. Basically, they were required to give 5 more days of notice than had
previously been required. (Two weeks instead of 5 days).
10
The General Counsel and the Charging Party do not contend that the Company could
not make the change in the paid time off policy. Rather, they contend that the Respondent
modified the existing contract by failing to give notice of the change.
As described above, the contract allows the Company, in its sole discretion, to change 15
existing benefits, including paid time off, provided that the change is the same as given to
nonbargaining unit employees; and provided that it gives notice of the change to the Unions.
The contract does not require the Company to maintain the existing benefit until such time as
the parties have either reached an impasse or reached an agreement on the change. Indeed, it
does not require bargaining at all. 20
In my opinion, this was a change in a contractual provision and it did occur a couple of
days before the contract expired. So technically, this could be considered a modification of the
existing contract. Nevertheless, it is also my opinion, that this change, which related only to the
contractual notice procedure, was not sufficiently material so as to justify a finding that the 25
Respondent violated the Act. In short, I conclude that this alleged violation was de minimus.
Finally, the complaint alleges that the Respondent has unlawfully suspended
negotiations for a contract in violation of Section 8(a)(5) of the Act.
30
In this regard, the facts show that on October 8, 2014, the Company, by its counsel,
wrote a letter to the unions suspending negotiations until such time as an election determined
that the union still represented a majority of the unit employees. The Company did not withdraw
recognition from the unions and since October 8, it has continued to deal with the unions on a
variety of matters affecting the terms and conditions of the employees, including grievances. 35
The Respondent’s defense is based on the fact that an employee filed a decertification
petition and that it also received a petition from more than 50 percent of the unit employees
indicating their desire to not be represented by the Unions.
40
In Levitz Furniture Company of the Pacific, 333 NLRB 717 (2001), the Board held
that an employer could not legally withdraw recognition from an incumbent union based
only on its “good faith” belief that the union no longer represented a majority of the
bargaining unit employees. However, the Board did hold that by “demonstrating good-
faith reasonable uncertainty (rather than disbelief) as to unions’ continuing majority 45
status, an employer could file an RM petition.” (Thereby permitting the Board to hold a
secret ballot election). The Board also held that an employer could legally withdraw
recognition if it could prove by objective evidence that a union had lost its majority
support. As to the legality of an employer’s withdrawal of recognition, the Board stated:
50
JD(NY)-35-15
9
[W]e hold that an employer may rebut the continuing presumption of an
incumbent union’s majority status, and unilaterally withdraw recognition, only
on a showing that the union has, in fact, lost the support of a majority of the
employees in the bargaining unit. We overrule Celanese and its progeny
insofar as they hold that an employer may lawfully withdraw recognition on 5
the basis of a good-faith doubt (uncertainty or disbelief) as to the union’s
continued majority status.
We have also decided to allow employers to obtain RM elections by
demonstrating good-faith reasonable uncertainty (rather than disbelief) as
to unions’ continuing majority status. We adopt this standard to enable 10
employers who seek to test a union’s majority status to use the Board’s
election procedures—in our view the most reliable measure of union
support—rather than the more disruptive process of unilateral withdrawal of
recognition. 3
We emphasize that an employer with objective evidence that the union has 15
lost majority support—for example, a petition signed by a majority of the
employees in the bargaining unit—withdraws recognition at its peril. If the
union contests the withdrawal of recognition in an unfair labor practice
proceeding, the employer will have to prove by a preponderance of the
evidence that the union had, in fact, lost majority support at the time the 20
employer withdrew recognition. If it fails to do so, it will not have rebutted
the presumption of majority status, and the withdrawal of recognition will
violate Section 8(a)(5).
Notwithstanding the presentation of objective evidence showing that a union has,
in fact, lost its majority status, an employer’s withdrawal of recognition may still be 25
unlawful, if that withdrawal is tainted by other unfair labor practices. But in order to show
a “taint” the Board has held that “there must be specific proof of a causal relationship
between the unfair labor practice and the ensuing events indicating a loss of support.”
See Lexus of Concord, Inc., 343 NLRB 851 (2004), and cases cited therein.
30
In the present case, the employer has presented evidence showing that the
unions have lost their majority support. Further, as I have concluded that the
Respondent has not engaged in the alleged unfair practices, there is no reason to find
that the loss of majority status was caused by those alleged violations.
35
Based on the above, it would be permissible to conclude that the employer could
have completely withdrawn recognition. Nevertheless, it chose not to do so; instead
merely suspending contract negotiations until an election could be held to determine
majority status or lack thereof. If the employer could have legally withdrawn recognition,
then surely it could have taken the lesser path of suspending negotiations on a 40

3
While proof that a union lacks majority support will allow an employer to completely withdraw from its
bargaining obligation, evidence showing only doubt as to majority status will only permit an employer to
ask the Board to hold an election. In the latter instance, even where an election is scheduled, the
employer is still required to negotiate in good faith; albeit any contract made will be deemed to be null and
void if the Board thereafter certifies that the union failed to obtain a majority of the valid votes counted. In
this case, since a decertification petition had already been filed, there was no need for the Employer to
file its own election petition.
JD(NY)-35-15
10
temporary basis. I therefore conclude that the Respondent has not violated the Act in
this respect.
Conclusion
5
For the reasons stated above, I conclude that the complaint should be dismissed.
Dated: Washington, D.C. August 3, 2015
___________________10
Raymond P. Green
Administrative Law Judge