T-Mobile USA, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 2017

365 NLRB No. 15 (N.L.R.B. 2017)

365 NLRB No. 15
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
T-Mobile USA, Inc., and Communications Workers
of America, Local 7011, AFL–CIO. Case 28–
CA–148865
January 23, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On December 10, 2015, Administrative Law Judge
Amita Baman Tracy issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
the Respondent filed an answering brief, and the General
Counsel filed a reply brief. In addition, the Respondent
filed a cross-exception and a supporting brief, the Gen-
eral Counsel filed an answering brief, and the Respond-
ent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified.2

1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) by promulgating and maintaining a rule prohibit-
ing senior representatives from talking to other employees about the
Union while working without also prohibiting them from talking about
other nonwork-related subjects.
We affirm the judge’s dismissal of the allegations that the Respond-
ent violated Sec. 8(a)(3) and (1) of the Act by isolating employees
Eddie Aranda and Caroline Figueroa and discharging Aranda. Even
assuming the General Counsel met his initial Wright Line burden to
show that the employees’ union activity was a motivating factor in the
seating rearrangement, the judge properly found that the Respondent
met its burden to show that it would have taken the same actions even
absent their union activity. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied, 455 U.S. 989 (1982). In
doing so, we note that “proving that an employee’s protected activity
was a motivating factor in the employer’s action does not require the
General Counsel to make some additional showing of particularized
motivating animus towards the employee’s own protected activity or to
further demonstrate some additional, undefined ‘nexus’ between the
employee’s protected activity and the adverse action.” Libertyville
Toyota, 360 NLRB No. 141, slip op. at 4 fn. 10 (2014) (emphasis in
original), enfd. 801 F.3d 767 (7th Cir. 2015). Acting Chairman Misci-
marra disagrees with the latter statement. In his view, making a partic-
ularized showing that links an employee’s protected activity to the
adverse employment action taken against that employee is exactly
what Wright Line requires. In Wright Line, the Board stated that the
General Counsel must make “a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘motivating factor’ in
the employer’s decision.” 251 NLRB at 1089. In other words, the
General Counsel must establish a link or nexus between the employee’s
protected activity and the particular decision alleged to be unlawful.
See Libertyville Toyota, supra, slip op. at 9 fn. 5 (2014) (Acting Chair-
man Miscimarra, concurring in part and dissenting in part); Starbucks

Coffee Co., 360 NLRB No. 134, slip op. at 6 fn. 1 (2014) (Acting
Chairman Miscimarra, concurring). Acting Chairman Miscimarra
agrees, however, that even assuming the General Counsel made the
required showing, the Respondent demonstrated that it would have
rearranged Aranda’s and Figueroa’s seating even in the absence of their
union activity.
With respect to Aranda’s discharge, even assuming the General
Counsel met his initial Wright Line burden to prove that Aranda’s un-
ion activity was a motivating factor in his discharge, the Respondent
met its rebuttal burden and showed that it terminated him for repeatedly
hanging up on customers (also known as “releasing calls”). As a cus-
tomer service representative, Aranda was tasked with handling custom-
er complaints and inquiries. That was the core function of his job. The
Respondent cited at least eight examples in a 1-month period of Aranda
releasing calls while the customers were still talking. Further, we find
that the Respondent’s examples of employees who were terminated for
releasing calls are sufficiently similar to Aranda to demonstrate that the
Respondent would have discharged Aranda for his released calls re-
gardless of his union activity. Among other things, the evidence shows
that since the current human resources manager joined the Respondent
(2 months before Aranda’s discharge), every employee who was found
to have released even one call has been discharged. Accordingly, the
Respondent established that Aranda would have been discharged absent
his protected activity.
Member Pearce would find that the General Counsel proved that Ar-
anda’s protected activity was a motivating factor in his discharge.
Animus has been established by the Respondent’s unexcepted-to viola-
tion of Sec. 8(a)(1) by prohibiting discussions of the Union, the third-
party activity reports showing that the Respondent documented union
activity outside the Respondent’s facility, and the closeness in time
between Aranda’s increased union activity and his termination. See,
e.g., Metro-West Ambulance Services, 360 NLRB No. 124 (2014) (find-
ing close timing between protected activity and discipline indicative of
animus). Member Pearce agrees, however, that the Respondent met its
rebuttal burden to demonstrate that Aranda would have been discharged
absent union activity.
Acting Chairman Miscimarra agrees with the judge, for the reasons
she states, that the General Counsel failed to prove that Aranda’s union
activity was a motivating factor in his discharge. But even assuming
otherwise, he agrees with his colleagues that the Respondent demon-
strated it would have discharged Aranda for his released calls regard-
less of his union activity.
2 We shall modify the judge’s recommended Order to conform to the
violations found and to the Board’s standard remedial language. In
particular, and contrary to our colleague, we shall include standard
language requiring the Respondent to immediately rescind its unlawful-
ly promulgated and maintained “rule” prohibiting senior representatives
from talking to other employees about the Union while working. See
Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in relevant part
475 F.3d 369 (D.C. Cir. 2007). As our colleague acknowledges, the
Respondent did not except to the judge’s finding that this prohibition
was a “rule.” Thus, the judge’s characterization of the prohibition is
not before us and it is appropriate to remedy the violation accordingly,
notwithstanding our colleague’s apparent frustration with the Respond-
ent’s omission. We shall substitute a new notice to conform to the
Order as modified.
Acting Chairman Miscimarra would not modify the Order to add a
paragraph requiring the Respondent to rescind what has been errone-
ously characterized as a “rule” that ostensibly prohibited senior repre-
sentatives from talking to other employees about the Union while work-
ing without also prohibiting them from talking about other nonwork-
related subjects. Acting Chairman Miscimarra agrees that Senior Hu-
man Resources Manager Mona Otero violated Sec. 8(a)(1) when she
told employee Luis Castaneda that he could only discuss the Union off
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, T-
Mobile USA, Inc., Albuquerque, New Mexico, its offic-
ers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
“(a) Rescind the rule prohibiting senior representatives
from talking to other employees about the Communica-
tions Workers of America, Local 7011, AFL–CIO or any
other labor organization while working but not prohibit-
ing them from talking about other subjects.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

the clock, and Acting Chairman Miscimarra acknowledges that the
Respondent did not file an exception to the judge’s finding that this
violation constituted the unlawful promulgation and maintenance of a
“rule.” However, a statement made to a single employee—even though
it violates the Act—is not the promulgation of a “rule” for the entire
workplace, as the Board has repeatedly held. See Flamingo Las Vegas
Operating Co., LLC, 361 NLRB No. 130 (2014), affirming and incor-
porating by reference 359 NLRB 873 (2013); Food Services of Ameri-
ca, Inc., 360 NLRB No. 123, slip op. at 5 fn. 11 (2014); Teachers AFT
New Mexico, 360 NLRB No. 59, slip op. at 1 fn. 3 (2014); Flamingo
Las Vegas Operating Co., 360 NLRB No. 41, slip op. at 1 & fn. 5
(2014); St. Mary’s Hospital of Blue Springs, 346 NLRB 776, 776–777
(2006). Again, Acting Chairman Miscimarra agrees with the finding
that the Respondent violated Sec. 8(a)(1) based on this statement.
However, he believes it is absurd to characterize this violation as the
unlawful promulgation of a “rule,” and for that reason, Acting Chair-
man Miscimarra believes the Board should not modify the judge’s
Order to require that the Respondent rescind a nonexistent rule.
The Respondent has excepted to the judge’s recommended Order,
which requires the Respondent to cease and desist from preventing
senior representatives from speaking about the Union “while working”
but at the same time allowing other topics of conversation. The Re-
spondent argues that the Order should reflect the general rule that an
employer may prohibit employees from talking about nonwork matters,
including a union, while employees are actively working, provided that
this prohibition extends to all other subjects unrelated to work. We
agree with the Respondent that this is the rule. See, e.g., Jensen Enter-
prises, Inc., 339 NLRB 877, 878 (2003), where the Board stated: “It is
settled law that an employer may forbid employees from talking about
a union during periods when the employees are supposed to be actively
working, if that prohibition also extends to other subjects not associated
or connected with their work tasks.” However, the Board went on to
state that “an employer violates the Act when employees are forbidden
to discuss unionization, but are free to discuss other subjects unrelated
to work . . . .” Id. Here, Respondent violated Sec. 8(a)(1) by allowing
other nonwork-related conversations during work time, but prohibiting
union-related conversations. The judge’s remedy is therefore appropri-
ate. See Fresh & Easy Neighborhood Market, Inc., 356 NLRB 588,
593 (2011), enfd. 459 Fed. Appx. 1 (D.C. Cir. 2012). In connection
with this violation, the Respondent also refers to Board doctrine con-
cerning no-solicitation rules. See, e.g., Essex International, Inc., 211
NLRB 749 (1974). To be clear, this case does not involve a no-
solicitation rule.
Dated, Washington, D.C. January 23, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate and maintain a rule prohibit-
ing senior representatives from talking to other employ-
ees about the Communications Workers of America, Lo-
cal 7011, AFL–CIO or any other labor organization
while working but not prohibiting them from talking
about other subjects.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the rule prohibiting senior representa-
tives from talking to other employees about the Commu-
nications Workers of America, Local 7011, AFL–CIO or
any other labor organization while working but not pro-
hibiting them from talking about other subjects.
T-MOBILE USA, INC.
T-MOBILE USA, INC. 3
The Board’s decision can be found at
www.nlrb.gov/case/28–CA–148865 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
David Garza, Esq., for the General Counsel.
Mark Theodore, Esq., Irina Constantin, Esq., for the Respond-
ent.
Stanley M. Gosch, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case
was tried in Albuquerque, New Mexico, on August 25–26,
2015. The Communications Workers of America, Local 7011,
AFL–CIO (the Charging Party or the Union or CWA) filed the
charge on March 25, 2015, and the General Counsel issued the
complaint on June 8, 2015. T-Mobile USA, Inc. (Respondent
or T-Mobile) filed a timely answer.
The complaint specifically alleges the following violations of
the National Labor Relations Act (the Act): (1) on or about
October 2014, Respondent isolated employees Carolina
Figueroa (Figueroa) and Eddie Aranda (Aranda) thereby violat-
ing Section 8(a)(3) and (1) of the Act; (2) on or about January
30, 2015, Respondent discharged Aranda thereby violating
Section 8(a)(3) and (1) of the Act; and (3) on or about April 9,
2015, Respondent by Mona Otero (Otero) disallowed its senior
representative employees from discussing the Union while
allowing them to discuss non-work topics during work time
thereby violating Section 8(a)(1) of the Act.
As set forth below, I find that Respondent did not violate the
Act when it “isolated” Figueroa and Aranda and when it termi-
nated Aranda. Thus, those portions of the complaint are dis-
missed. However, I do find that Respondent violated the Act
when it disallowed senior representatives from discussing the
Union while allowing them to discuss nonwork topics during
work time thereby violating Section 8(a)(1) of the Act.
On the entire record,1 including my observation of the de-

1 The transcripts in this case are generally accurate, but I make the
following correction to the record: Transcript (Tr.) 107, Line (L.) 7:
“interview” should be “intermittent”; Tr. 130, L. 5 and Tr. 131, L. 1:
“parameter” should be “perimeter”; Tr. 184, L. 11: “pot” should be
“pod”; Tr. 190, L. 23: “J-O-E-K” should be “J-O-E-L”; Tr. 197, L. 11:
“is” should be “us”; “Tr. 207, L. 1: “doing” should be “going”; Tr. 212,
meanor of the witnesses,2 and after considering the briefs filed
by the General Counsel, the Charging Party and Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with offices and places of busi-
ness throughout the United States, operates a call center for its
cellular mobile phone service at its facility at 1201 Menaul
Boulevard, NE, Albuquerque, New Mexico, 87107 (Menaul
Call Center), where it annually performs services valued in
excess of $50,000 in states other than the State of New Mexico.
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Respondent’s Operations
A majority of the relevant facts are not in dispute. Respond-
ent operates two customer service call centers in Albuquerque,
New Mexico. The events at issue in this complaint took place
at the Menaul Call Center. Respondent admits, and I find, that
the following individuals are supervisors within the meaning of
Section 2(11) of the Act and agents within the meaning of Sec-
tion 2(13) of the Act: Nikki Kozlowski (Kozlowski), Respond-
ent’s senior manager, customer service; Cesar Ortiz (Ortiz),
Respondent’s team manager, closed loop customer service
team; Eliana Lugo (Lugo), Respondent’s coach, closed loop
customer service team; Joel Guerrero (Guerrero), Respondent’s
bilingual retention coach; Jason Lachioma (Lachioma), Re-
spondent’s manager, general care; Karen Viola (Viola), Re-
spondent’s director, customer service; and Otero, Respondent’s

L. 12: “are” should be “our”; Tr. 258, L. 7: “san” should be “an”; Tr.
259, L. 8: “talk” should be “walk”; Tr. 302, L. 2: “the” should be
“they”; Tr. 315, L. 13: “art” should be “at”; Tr. 343, L. 13: “Kelly”
should be “Lugo”; Tr. 419, L. 17: “it’s” should be “it”; Tr. 451, L. 24:
“cause” should be “calls”; and Tr. 464, L. 6: “our” should be “are”. In
addition, throughout the transcript, Aranda’s first name is misspelled as
“Eddy” but should actually be spelled “Eddie”.
2 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations but rather on my review and
consideration of the entire record for this case. I further note that my
findings of fact encompass the credible testimony and evidence pre-
sented at trial, as well as logical inferences drawn therefrom. A credi-
bility determination may rely on a variety of factors, including the
context of the witness’ testimony, the witness’ demeanor, the weight of
the respective evidence, established or admitted facts, inherent proba-
bilities and reasonable inferences that may be drawn from the record as
a whole. Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive
Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx.
516 (D.C. Cir. 2003). Credibility findings need not be all-or-nothing
propositions—indeed nothing is more common in all kinds of judicial
decisions than to believe some, but not all, of a witness’ testimony.
Daikichi Sushi, 335 NLRB at 622.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
senior human resources manager (GC Exh. 1(c), 1(e)).3
With respect to the Menaul Call Center, Respondent operates
several departments including the bilingual retention depart-
ment. The role of the bilingual retention department is to at-
tempt to save Spanish-speaking customers from cancelling their
cellular phone service with Respondent (Tr. 249). Due to the
nature of the employees’ job duties in the bilingual retention
department, many, if not all, of the calls may not be easy to
handle due to upset customers (Tr. 50–51, 311). Within the
bilingual retention department, Respondent groups employees
in 6 to 7 teams consisting of 15 customer service representa-
tives II (CSR), 1 senior representative (SR), and 1 coach.
The employees are grouped in pods which are rectangular
shaped areas with the CSRs’ cubicles around the perimeter and
the SR and coach’s desk in the middle of the cubicles (R. Exh.
54).4 The coach supervises the CSRs in the pod and reports to
the Team Manager who reports to Call Center Manager. The
SR provides assistance to the CSRs and the coach and also
takes escalated calls (Tr. 20–21).5 Ninety percent of the work-
day of a SR is spent talking to the CSRs, including both work
and non-work topics such as current events and politics (Tr.
147). Management encourages SRs to talk with CSRs to de-
velop a rapport and team work (Tr. 147–149, 184). In between
calls, CSRs would talk with one another about work and non-
work related topics.
Lugo was the coach of the bilingual retention department
from the end of 2013 until June 2015.6 As the coach, Lugo
employed a variety of coaching and feedback methods includ-
ing listening to recorded calls and scoring six customer calls
per month (known as calibration calls) and providing feedback
to the CSRs. Lugo assessed the calls by the metrics of courtesy,
concern, and resolution with a numerical score for each catego-
ry of 2, 3, or 4 (GC Exh. 5; Tr. 33–34). A national call team
also reviewed 2 of the CSRs’ monthly customer calls and pro-
vided feedback and scores to the CSRs via Lugo. Lugo also
had the ability to listen to live customer calls either from her
desk or from the desk of the CSR (known as a “side-by-side”)
(Tr. 44). Lugo would send the CSR emails with feedback and
scores, and would provide verbal feedback, often in the coach-
ing room (known as a “one-on-one”) (Tr. 45).7 Lugo constant-
ly coached her employees, including Aranda, on how to im-
prove their performance (Tr. 252–253, 320). For example, she
noted in a November 29, 2014 email to Aranda to let him know
that his performance was his responsibility but that she was
available to help him and he should let her know what he need-
ed from her (R. Exh. 9; Tr. 321–322).

3 Some of the job titles for Respondent’s supervisors and agents dif-
fered at the time of the events that led to this complaint. The job titles
during the relevant time period will be clarified within the decision.
4 The witnesses consistently described the pod as a small area but the
exact size of the pod is unclear from the record.
5 Calls may be “escalated” to a SR or coach when a customer feels
as though his issue is not being resolved by the CSR (Tr. 139).
6 Lugo testified in a direct and forthright manner. Her testimony did
not waver on cross-examination, and she recalled details thoroughly
and consistently. I found her testimony to be generally credible.
7 Respondent also used the coaching rooms to discuss disciplinary
issues with employees (Tr. 39).
Several types of disciplinary options exist at Respondent but
the disciplinary steps are not automatically progressive (GC
Exh. 7; Tr. 39).8 The disciplinary process is described as per-
formance improvement planning with various options along
with termination.
 Clarifying Discussion: A supervisor may have a
clarifying discussion with an employee, which is a
conversation concerning behavior observed and
expectation monitored thereafter (Tr. 40, 95).
 Review of Expectations: A review of expectations
is similar to a clarifying discussion where a super-
visor reviews expectations with a CSR (Tr. 97–99).
 Formal Reminder: A supervisor may issue a formal
reminder in which a CSR is taken out of “good
standing” whereby the employee is not eligible for
a bonus or incentive and cannot apply for another
internal position during the same month (Tr. 41,
95–96).
 Decision Time: In decision time, a supervisor may
suspend a CSR. When the CSR returns to work af-
ter the suspension, the supervisor and employee
may discuss what occurred, and often, Respondent
asks the CSR to prepare a commitment for how the
behavior will change (Tr. 42). The CSR may also
incur a loss of good standing (Tr. 96).
and
 Termination: A CSR may be discharged but this
decision remains with human resources, not the
coach or manager (Tr. 96).
Lugo testified that coaching or feedback was not considered
a disciplinary action. Furthermore, as bilingual retention coach,
Lugo could not terminate an employee but could issue other
disciplinary actions.
B. Union Organizing Campaign
The Union has been organizing at Respondent since at least
2013 (Tr. 112, 191). Luis Casteneda (Casteneda), a SR, and
Caroline Figueroa (Figueroa), a CSR, are current employees at
Respondent and active, open union supporters (Tr. 164, 191).
Figueroa speaks to employees on a daily basis while on duty
about the benefits of a labor organization (Tr. 192–193).
While on duty, Figueroa spoke to Aranda about the Union,
and in September or October 2014, he joined her in supporting
the Union (Tr. 254).9 Aranda helped Figueroa by talking about
the Union with other employees and giving employees cards to
sign (Tr. 202). In late October 2014 or early November 2014,
Aranda also joined other union supporters by wearing a red
union T-shirt or union pin on the same coordinated day (Tr.
217, 257, 260–261). Aranda testified that Lugo would have
been aware of his prounion activities because once while asking
her a question he adjusted his union pin and Lugo gave a short

8 The testimony of General Counsel’s witnesses implied that Re-
spondent’s disciplinary process is progressive but I reject this implica-
tion as it is not supported by Respondent’s description of its discipli-
nary process (GC Exh. 7; Tr. 210–211).
9 I find Figueroa testified generally credibly although at times her
testimony was based on conjecture which I do not credit.
T-MOBILE USA, INC. 5
response and turned away (Tr. 255, 257). He also testified that
Lugo should have known about the union activity in the pod
because Figueroa would talk in normal tones about various
union activities and meetings, and Figueroa and he were the
most vocal union supporters in the pod (Tr. 255–256).
On October 31, 2014, for 10 minutes, Figueroa and Aranda
assisted 2 union officials passing out union goody bags marked
with a large red colored CWA sticker and filled with candy and
union brochures to celebrate Halloween and publicize the Un-
ion (GC Exh. 26; Tr. 193, 258). Figueroa and Aranda passed
out the bags during a portion of their break outside of Respond-
ent’s facilities. They then went back to their pod, began log-
ging into the computer system and handed out the remaining
bags to their pod teammates who wanted a bag (Tr. 194–196,
259). Figueroa offered a goody bag to a CSR sitting next to
her, and the employee yelled out, perhaps jokingly, either that
he did not want her “union propaganda” or did not want a bribe
to join the Union (Tr. 197, 260).10 Figueroa testified that upon
hearing the employee yell out loud, Lugo turned around and
looked straight at her (Tr. 197, 260). Aranda testified that Lugo
looked at him as well (Tr. 260).
Aranda also spoke up during Lugo’s five to six team meet-
ings about a variety of matters including a cockroach outbreak
in the break room where he said to everyone that they needed to
unionize (Tr. 266, 302). In late December 2014 Aranda hung a
union calendar on his cubicle wall with extras on his desk for
other employees (GC Exh. 15; Tr. 267). Aranda testified that
human resources employee Larissa Johnson (Johnson) should
have been aware of his union activity since she saw the calen-
dar when she came to his cubicle on January 23, 2015, to eval-
uate his ergonomics after he requested an ergonomic desk (GC
Exh. 14; Tr. 269). Lugo likely also would have seen the union
calendar (Tr. 273).
When Otero began working at Respondent on November 10,
2014, Amanda Armento, a senior human resources manager at
the other Albuquerque Call Center, told Otero to complete third
party activity (TPA) reports on any activities occurring on the
perimeter of the facilities (Tr. 130). Along with Otero prepar-
ing and sending the TPA reports, Johnson did the same. To
prepare the TPA report, Otero gathered information from the
security team who completed an incident report (Tr. 112). The
TPA reports submitted into evidence concerned only the Un-
ion’s activities but did not name any individuals involved.
These TPA reports were emailed to an unidentified email group
and sometimes carbon copied to Respondent’s officials Viola
and Kozlowski along with a few other individuals (GC Exh.
21–35). Significantly, Johnson completed a TPA report for the
Halloween goody bags Aranda and Figueroa distributed on
October 31, 2014 (GC Exh. 26). This TPA report, sent to Viola
and Kozlowski along with other officials on November 1, 2014,
noted the nature of the activity as “two individuals with fliers
and candy” and the length of the activity as 1 hour. Again this
TPA report did not name any participants.11

10 Aranda and Figueroa’s testimony differ as to what the CSR said
out loud, but this difference is irrelevant.
11 Figueroa and Aranda testified that they assisted two union officials
for only 10 minutes since their break was 15 minutes long. Thus, the
C. Aranda’s employment with Respondent
Aranda began working as a CSR at Respondent in January
2014. Aranda attended orientation, and was informed that re-
leasing calls could result in termination (R. Exh. 4; Tr. 309).
Specifically, Aranda learned that Respondent may terminate a
CSR for any of the following: releasing calls with a customer
before a call is completed, releasing calls when you are close to
your lunch or break time, dead air calls, and call avoidance
when releasing calls due to difficult and escalated customers
(R. Exh. 4).
Lugo became Aranda’s supervisor in September 2014. The
work schedule for the employees in Lugo’s pod was that they
worked 10-hour shifts on Sunday, Monday, Friday, and Satur-
day (Tr. 425). Aranda performed generally well throughout his
tenure with Respondent with no prior disciplinary actions taken
against him until his termination (R. Exh. 2; GC Exh. 5, 10, 16;
Tr. 30).
Prior to becoming Aranda’s supervisor, on August 28, 2014,
Lugo sent a message to the pod employees she would be super-
vising, introducing herself and motivating her new team. Lugo
included a seating assignment chart in her email, and also not-
ed, “I like to change things up so we may change desks every
couple months” (GC Exh. 2a, 2b; Tr. 25). Lugo also became
Figueroa’s supervisor at this time. Per Lugo’s August 2014
seating chart, Figueroa and Aranda sat close to one another,
with only one CSR between them in one corner of the pod (Tr.
199). They spoke frequently during the work shift about the
Union as well as other personal matters (Tr. 202).
Change in Seating Assignments
In October 2014, Lugo changed seating assignments in the
pod. Ultimately, most employees shifted over by two cubicle
spaces while Aranda was moved to a cubicle across the pod
from his original seating assignment (GC Exh. 13; Tr. 28,
201).12 Lugo testified that she could not recall specifically why
she moved the CSRs, and did not recall giving Aranda a reason
for the reassignment (Tr. 365). Lugo testified that since she
began coaching at Respondent she always reassigned cubicles
to build camaraderie (Tr. 364). She denied reassigning cubicles
due to Union activity.13 After the cubicle move, Aranda and
Figueroa continued to speak during breaks and would send one
another text messages but they could no longer speak in be-
tween customer calls unless they raised the volume of their
voices (Tr. 202, 264, 318–319).
December 2014 to January 2015
On December 8, 2014, Aranda failed to meet a specific met-
ric (CTS) during his prior shift, and explained via email and in

TPA, listing only two participants, logically concerned only the partici-
pation of the two union officials, and not Aranda and Figueroa.
12 This was the only time while Aranda was employed by Respond-
ent that Lugo changed seating assignments (Tr. 297).
13 Aranda testified that Lugo told him she moved him so she could
give him closer feedback, listen to his calls more, and help him succeed
(Tr. 264). I do not credit Aranda’s testimony. Aranda performed gen-
erally well with high metrics; Lugo admitted that Aranda performed
well during his tenure. It seems unlikely that given Aranda’s adequate
performance Lugo would tell him she moved him to help him succeed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
person to Lugo that he needed to log off a couple times during
the day to go to the restroom for which he was seeing a doctor
(GC Exh. 8; Tr. 53). Aranda did not mention in his email that
medications affected his increased need to use the restroom. 14
Lugo observed Aranda log off to use the restroom, and she
testified that she “was okay with that” (Tr. 53, 384). Lugo
testified that she told him he could go the bathroom when need-
ed, but before he did so, he would need to log out (Tr. 404). In
contrast, Aranda testified that Lugo did not reach out to help
him with regard to his need to use the restroom (Tr. 353).
On December 12, 2014, Lugo sent Aranda an email remind-
ing him of not taking a lunch longer than the allocated time of
30 minutes (previously, he took a long lunch break in Novem-
ber 2014), which affected his ability to achieve CTS (R. Exh.
9). Lugo asked Aranda, “What do you need from us?” and
provided Aranda an opportunity to provide a commitment as to
what he would do to prevent the long lunch period from occur-
ring again.
On December 14, 2014, Lugo sent Aranda an email congrat-
ulating him for achieving CTS and stating that he was “one step
closer” to reaching month to date (MTD) target goals for the
amount of time he spent on the phone with customers (Tr. 31;
GC Exh. 3).
On January 3, 2015, Lugo sent Aranda a congratulatory
email for reaching his 1-year anniversary with Respondent, and
wrote that he was a great person to have on the team (GC Exh.
4, Tr. 32).
On January 8, 2015, Aranda applied for intermittent leave
under the Family Medical Leave Act (FMLA) (GC Exh. 11).
The form, dated January 8, 2015, stated that Aranda’s health
condition began in April 2014, and was anticipated to continue
until June 2015. Aranda would be unable to perform “timely
resolution of problems, ability to focus” due to migraines,
headaches, depression, and loss of appetite which led to loss of
energy due to anxiety at work. Aranda would need intermittent
leave of 2 days per week up to 10 hours per day. He would
also need to be absent from work during flare-ups for mi-
graines, headaches, and acute anxiety which prevented him
from work duties. The doctor indicated that Aranda was not
prescribed medications (R. Exh. 51).
On January 15, 2015, Respondent’s benefits center approved
Aranda’s intermittent FMLA request of up to 2 absences per
week, each lasting 10 hours, from January 9 through July 9,
2015 (GC Exh. 12). Aranda receive further instructions from
the benefits center that it was his responsibility to confirm and
follow his department’s call-out procedures (GC Exh. 12). The
benefits center informed Lugo of the parameters of the leave
approval but not the basis for the approval which remained
confidential (Tr. 383). Other than a request for FMLA, Aranda
did not request a reasonable accommodation for any medical
issue he suffered (Tr. 105, 128). Aranda used leave under
FMLA five times in January 2015 including 3 full days (R.
Exh. 2).

14 At the hearing, Aranda produced a health record indicating that he
had been prescribed medications on December 16, 2014.
Aranda’s Termination
Respondent terminated Aranda on January 30, 2015, for re-
leasing customer calls in the middle of a call without warning.
The events leading to his termination are as follows: In early
January 2015, Lugo opened a trace report for remote monitor-
ing of Aranda’s calls because there were some released calls
the national team and she scored (R. Exh. 2; Tr. 365, 393).15
Lugo testified, “When a call is incomplete, that’s just a red flag
for myself. It’s not normal to listen to a call and have it cut off
at the end unless there’s a system issue or there’s something
wrong” (Tr. 393).
There was a significant amount of testimony on when re-
leased calls (also referred to as incomplete calls) or hanging up
on customers, occur, and which are appropriate released calls
and which are not (Tr. 150, 174–177, 203). One type of re-
leased call occurs when the CSR and customer end their call
but the customer does not disconnect immediately; the CSR
then releases the call which is appropriate conduct. Another
appropriate released call occurs when a customer acts abusive
towards the CSR, the CSR provides a few warnings, and then
the CSR releases the call (Tr. 382). Managers may also instruct
CSRs to release a call and call back a customer due to statistical
reasons (Tr. 154). An inappropriate released call occurs when a
CSR hangs up on a customer without warning during a conver-
sation. Respondent terminated Aranda for releasing these types
of calls.
Lugo does not recall whether she spoke to Aranda about
what she noticed because there could be many reasons for a
released call (Tr. 393). However, Aranda’s personnel records
show that in January 2015 Lugo continued to coach Aranda
when she spoke to him on January 12 after she observed that he
“shuts down” when he has a difficult customer (R. Exh. 2).
Later on January 25, 2015, Lugo conducted a side-by-side
observation on Aranda, listening to a call remotely (R. Exh. 2;
Tr. 366). Aranda began his greeting, and as soon as the cus-
tomer came on the line, the call dropped. Lugo began to walk
towards Aranda when she overheard Aranda tell a coworker
about the dropped call and how it would affect his performance
metrics.
This incident triggered her memory to ask for the trace re-
ports she previously requested.16 She received two reports (R.
Exh. 22, 45), where she noticed at least 15 released calls since
the beginning of the month including the call on January 25.
Lugo documented nine of these findings in a chart she made (R.
Exh. 21). Between January 25 and 30, 2015, she listened to
many of the recordings of the released calls (Tr. 372, 378, 413–
414). Prior to listening to the calls, essentially prior to conduct-
ing her investigation of the trace reports’ results, Lugo testified
that she did not inform her supervisor, Ortiz, or any other man-
agement official including human resources of her call review
(Tr. 415). Lugo discovered some “appropriate” released calls

15 Lugo rarely ran trace reports (Tr. 417–418).
16 Figueroa testified that she “would think” management could run
reports to become aware of released calls and other than a report, she
speculated that management would not know why a call was released
(Tr. 213–214). Figueroa’s testimony was based on speculation, and I
do not credit her testimony.
T-MOBILE USA, INC. 7
where Aranda released the phone call after resolution for the
customer but also discovered many calls where Aranda hung up
on the customer without warning (Tr. 378, 413). Examples
discovered by Lugo include Aranda releasing a call on January
5, 2015, while a customer was speaking: the customer stated
that he had some questions, and rather than allowing the cus-
tomer to speak, Aranda recapped the conversation and then
released the call. Also during a call where the customer was
“escalated” and wanted to speak to someone else, Aranda re-
leased the call instead of seeking assistance from the SR or
coach (R. Exh. 22). Lugo did not hear any calls where a cus-
tomer mistreated or was abusive toward Aranda (Tr. 381). In
contrast, Aranda could not recall how many released calls he
had but could recall a conversation with a customer who was
derogatory and abusive towards him (Tr. 305–306).
Lugo testified that in her experience she had not seen any-
thing like this in terms of released calls (Tr. 379). She then
spoke to Otero because she felt Aranda’s actions were “blatant
mistreatment” (Tr. 379, 417).
On January 30, 2015, Lugo, along with Lachioma, who at-
tended the meeting instead of Ortiz who was on paid time off,
met with Aranda in a conference room used for coaching (R.
Exh. 57).17 Lachioma reviewed the trace reports and Lugo’s
summary before the meeting with Aranda but did not listen to
the actual phone calls (Tr. 464; R. Exh. 21, 22, and 25). Lugo
began by telling Aranda that they noticed an “alarming rate” of
released customer calls by him (Tr. 275). Lugo generally dis-
cussed with Aranda how she investigated these released calls
but did not go over each call detail with Aranda (Tr. 64–65).
Aranda readily admitted that he released calls (Tr. 325). It is
undisputed that Aranda never brought the released calls (i.e.,
the calls where the customer became “beyond irate” and the
times he needed to release calls to use the restroom) to Lugo,
the SR, Ortiz, human resources, or any other member of man-
agement (Tr. 329, 384). Lachioma asked him what these re-
leased calls concerned.
Aranda provided several reasons why he released calls (Tr.
80, 276–280). Aranda explained that he had released calls due
to his medical condition from a couple of prescription medica-
tions that he took as well as due to anxiety and stress (Tr. 276).
Aranda further explained that he was under new medication
after teeth extraction surgery on January 6, 2015. This medica-
tion caused him to go to the restroom more often because of the
need to drink water; sometimes due to urgency to the use the
restroom, he would disconnect with a customer but said he
would try to call the customer back immediately if the custom-
er’s issue was unresolved (Tr. 276–278, 328). Aranda testified
that he told Lugo in early January 2015 about the issue with not
feeling well due to his teeth extraction, and his desire to use
FMLA leave which she could not approve (Tr. 294). The first
time Aranda raised an issue that his medications affected his

17 Lachioma provided consistent testimony which was generally un-
contradicted. In preparation for the Board hearing, Lachioma prepared
another summary of the trace reports and Lugo’s summary (R. Exh.
23). Because Respondent did not rely on this evidence when terminat-
ing Aranda and is duplicative of evidence already entered into the rec-
ord, I give it little weight.
ability to work was during the January 30, 2015 meeting with
Lugo and Lachioma. He also never requested an accommoda-
tion for the side effects from medications that he was taking
(Tr. 345). He testified that he told Lugo and Lachioma the
names of the medications he took (Tr. 276–277).18
Aranda also explained that he released calls when customers
were “beyond irate” which caused him anxiety (Tr. 284–285).
In his Board affidavit, Aranda told Lugo and Lachioma that
sometimes customers were upset and were not going to listen to
what he had to say, so in order to avoid wasted time, Aranda
would hang up on the customer (Tr. 326–328).
When customers become irate on the phone including the use
of abusive language, Figueroa and Casteneda testified uncon-
tradicted that a CSR may release the call with the customer
after giving at least 1 warning (Tr. 157, 220). The CSR should
also note in the customer’s file if they needed to hang up the
call due to irate behavior. Figueroa admitted to releasing a call
with a customer when she felt ill, but later told her supervisor
about her actions because she “didn’t want to get in trouble”
(Tr. 204–205). Figueroa was not disciplined (Tr. 206). Cas-
teneda also testified about an incident in January 2015 when he
hung up on a customer after the customer had been abusive to
his coach and him (Tr. 157, 177). Casteneda promptly in-
formed his coach, and was not disciplined.
After Aranda’s explanation, Lachioma and Lugo told Aranda
that his released calls disturbed customers’ experiences, and put
pressure on his coworkers (Tr. 280––282). Neither supervisor
asked follow-up questions concerning Aranda’s medications
nor how they affected him (Tr. 81). They did not discuss spe-
cific calls with Aranda or review any recordings with him (Tr.
281, 413). But Lugo brought the trace reports and her summary
to the meeting (Tr. 380). Lugo stated that they had not played
the recordings for Lugo because he readily admitted to releas-
ing calls (Tr. 380).
Lachioma and Lugo asked Aranda to prepare a statement
documenting their discussion, and they both prepared their own
statements, all of which were given to human resources (GC
Exh. 6; R. Exh. 24; Tr. 281–284).19 Lachioma and Lugo asked
Aranda for his statement to obtain his version of events (Tr.
327).20 Aranda wrote, “I have released calls due to high anxie-

18 Neither of the medications mentioned by Aranda as causing him to
release calls was noted by Aranda’s doctor on his FMLA form to affect
his ability to work (Tr. 333).
19 All three statements are consistent with the testimony provided at
the hearing.
20 Curiously, Aranda testified that Lachioma and Lugo asked him to
write the statement so he could put it in his personnel file so human
resources “can know that we touched base on this” (Tr. 285). Aranda
also stated that Lachioma and Lugo said that their discussion was not
official and simply to touch base to see what was going on with Aranda
(Tr. 282). Aranda also testified that they told him that he would receive
a phone call later informing him the status of his employment. Aran-
da’s varying testimony gave the impression that Lachioma and Lugo
were not forthcoming in the gravity of the situation. Ultimately, I
accept Aranda’s testimony from his Board affidavit as a more accurate
version of events since the statement was given closer in time to the
events at issue. Overall, although Aranda provided sincere testimony,
his testimony at times appeared exaggerated and embellished, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ty, stress & needing to go to the restroom. Sometimes when a
customer is beyond irate & I have been having to take owner-
ship of call & find a resolution for the customer & still unable
to help customer due to customer being irate [sic] I have re-
leased those type of call due to high anxiety. Sometimes I need
to go to the restroom due to a new medication & feel like I need
to go right then & there. Forget to put myself in after call to log
out & another call comes in.” He also noted, “[H]ave not
reached to HR regarding medications nor my coach for this”
(GC Exh. 6). Lachioma and Lugo then sent Aranda home with
pay, essentially on a decision time (Tr. 285), and hand-
delivered Aranda’s statement to human resources (Tr. 84).
Later that same day, Lachioma and Lugo each followed up
with an email to Otero summarizing the discussion with Aranda
(R. Exh. 24; Tr. 86, 385).21 Lachioma wrote at 10:20 a.m.,
Today myself, Eliana Lugo and Eddie Aranda had a discus-
sion surrounding reporting, recorded calls and experiences
that display Eddie releasing calls before and during conversa-
tions with customers. Eddie admitted that he released calls
for a couple of different reasons. He advised that he released
calls by accidently hitting the headset button instead of the
mute button, forgetting to go into ACW and releasing the call
that came in so he could, that he had to use the bathroom for
some new medication that he was taking and that he would re-
lease calls if they were escalated or if he felt he couldn’t help
a customer due to high anxiety of the customer being upset.
[. . .] We inquired if Eddie had ever inquired for help from his
coach or senior to assist with high anxiety calls and he ex-
plained that he didn’t and didn’t feel the outcome would be
different. [. . .].
Eddie explained that he did not make Human Resources
aware of the medication that he was on that required him to
use the bathroom more frequently. We explained that seeking
a solution from HR for any medical condition is a means to
find a solution instead of driving a customer impacting behav-
ior to solve for it.
Eddie agreed that he released calls and that he did not call
some of the customers back and that he did not notify the cus-
tomer why the call was being released.
We asked Eddie to write a statement of what he explained to
us and agreed to have him to go home paid until a conclusion
and discussion could be made.
[R. Exh. 25.]
Lugo wrote at 1 p.m.,
Jason Lachioma and I spoke with Eddie about releasing calls.
The first thing he said he said was “yeah I release calls.”
He stated that he does release calls due to customers being
irate and him not wanting to “lose it”. He said that he gets
anxiety and feels that he needs to hang up on his customers.
When we spoke about the effects that this has on the site, his

inconsistent. I credit Aranda’s testimony only to the extent it is corrob-
orated by contemporaneous statements and his Board affidavit.
21 Lugo also summarized the event in Aranda’s coaching log (R.
Exh. 2; Tr. 388).
peers and most importantly the customer he did not show any
remorse for doing it and just continued to give reasons on
why he is doing it. Main reason was that he becomes anxious
with customers so just needs to hang up on them. He did state
he never reached out to coach or senior for help. In our con-
versation he was focused on a lot on what he could not do for
customers as well as blaming actions on others. He also
spoke about the fact that he has to take calls that make him
feel anxious for example: store did not do what they were
supposed to or previous offers that make customers upset. He
said that he does release calls but feels that it is also T-
Mobile’s fault because we let these actions happen that cause
him to become anxious. We let Eddie know that we are all T-
Mobile and we have to own every customer experience, that
is part of our job. He said he understood but that he knows
that customers will not calm down so he feels that hanging up
is what needs to be done. He seems to assume what will hap-
pen and is not focusing on what HE can do to help the cus-
tomer.
He also mentioned that he does have to log off to use the re-
stroom and if he forgets to place himself into ACW he will
just immediately hang up on the customer. He said that he
did not speak to HR about this due to it is a side effect from
his medication and that it should go away.
This is extremely concerning. We have details of numerous
customer impacts. We had him write a statement of why he is
releasing calls and let him know that due to the severity of the
situation would be sending him home until further notice. Let
me know if you need anything else from me.
Thank you,
Eliana
[R. Exh. 24, emphasis in original.]
Meanwhile, Aranda sent a text message to Figueroa and ex-
pressed concern that he would be terminated due to releasing
calls. Figueroa wrote, “I know you did something wrong but
they are watching us and I have sent calls up about other people
hanging up and they don’t ever do anything” (R. Exh. 52). The
text messages also indicate that Figueroa spoke to Lugo while
Aranda was suspended; Figueroa told Aranda that Lugo “made
it seem like you were coming back” and said he could get his
inner circle points “when he comes back.” Aranda doubted that
he would be coming back to work at Respondent. Aranda fur-
ther wrote to Figueroa that he told Lugo and Lachioma at the
morning meeting that “my management doesn’t want to take
escalations which causes me to suffer from further anxiety be-
cause I don’t feel supported.” However, Aranda, Lugo, and
Lachioma’s contemporaneous notes do not reflect this state-
ment. Aranda stated to Figueroa when asked what he wrote in
his statement to Respondent, “I have released calls due to med-
ical reasons and high anxiety due to stress caused by customers.
Jason L [Lachioma] made me write that I never reached out to
management or hr.”
Later that same day, Otero along with Kozlowski and Viola
decided to terminate Aranda for hanging up on customers (Tr.
T-MOBILE USA, INC. 9
92).22 They relied upon the evidence Lugo gathered in her
investigation that Aranda released customer calls, as well as the
statements of Aranda, Lugo, and Lachioma (GC Exh. 6; R.
Exh. 21, 25, and 49; Tr. 93, 436). The three managers also
looked at comparable disciplinary actions and the coaching logs
(known as “PMT”) to ensure that Aranda was treated consist-
ently (Tr. 93, 436).23 Otero testified that since she has been
employed at Respondent, November 10, 2014, no employee
who has hung up on multiple customers has remained em-
ployed at Respondent; these employees have been terminated
(Tr. 442).
Thereafter, Lugo and Otero spoke with Aranda via telephone
at 4:40 p.m. (R. Exh. 2).24 Otero informed Aranda that he was
terminated for having several released calls which impacted
Respondent’s values (Tr. 67, 101, 286–287). Respondent did
not provide any paperwork to Aranda documenting his dis-
charge.
It is uncontested that Respondent did not investigate the
medical excuses asserted by Aranda during the in-person meet-
ing with Lugo and Lachioma (Tr. 59). Otero and Lugo
acknowledged that Aranda generally maintained good metrics
by which his performance was measured, and had no prior dis-
cipline, including released calls (Tr. 93–94, 287). Furthermore,
Respondent did not provide any feedback or counseling to Ar-
anda for the released calls nor did they give him an opportunity
to provide a commitment prior to his termination (Tr. 455–
456).
Figueroa testified that after Aranda was terminated, she re-
ported incidents of alleged CSR misconduct of dropped calls to
Lugo, but neither of these CSRs she reported was terminated
unlike Aranda (GC Exh. 42–43; Tr. 208–209, 243, 245). The
examples provided by Figueroa included a customer who com-
plained of a dropped call by a CSR when the customer sought
to cancel four phone lines. In another example, a customer
complained to Figueroa that a CSR refused to honor a request
to cancel phone lines. Before Respondent terminated Aranda,
Figueroa would also report incidents of alleged CSR miscon-
duct to Lugo but none of these incidents concerned similar
types of released calls Aranda allegedly conducted (Tr. 246–
247). Lugo testified that she would have investigated the com-
plaints if the employees were on her team (GC Exh. 43), but
could not recall any specific examples brought forth by
Figueroa to her (Tr. 423–425).
Respondent’s Discipline of Other Employees
Respondent considered the following comparators when de-
termining the disciplinary action to take against Aranda:
 CSR Christian Rodriguez (Rodriguez): In May
2014, Rodriguez also released calls, and was sus-
pended and then terminated based on her responses

22 Kozlowski and Viola did not testify.
23 Otero testified that Aranda’s action of hanging up on customers
was considered by Respondent to be a “mistreat” (Tr. 439). Thus,
Otero, Kozlowski and Viola reviewed other cases of mistreats. For
example, Respondent terminated one employee for a single incident of
using profanity against a telephone dealer (R. Exh. 39; Tr. 443–445).
24 Otero’s testimony was credible, and corroborated by her contem-
poraneous notes.
to the commitment and lack of accountability (R.
Exh. 35). Prior to termination, Respondent played
the released calls for Rodriguez. Rodriguez indi-
cated that she did not regret her actions because the
customer was abusive towards her but committed
to not engaging in that conduct again.
 CSR Niurka Delgado (Delgado): On October 11,
2014, Respondent, who was supervised by Lugo,
immediately terminated Delgado as a final incident
for customer mistreatment after she cursed at a
customer (R. Exh. 46; Tr. 390). In her investiga-
tion, Lugo listened to the call to verify that Delga-
do cursed at the customer (Tr. 419). Delgado said
that the customer “said some things and [I] just re-
acted” (R. Exh. 46). Prior to her termination, Del-
gado had been given a decision time by Respond-
ent for her poor attendance.25
 CSR Janae Ashley Javis (Javis): In December
2014, Javis was terminated after Respondent dis-
covered that she released 17 phone calls, many
which occurred after the customer asked to cancel
a phone line (R. Exh. 32). Respondent asked Javis
to write a statement but she refused (Tr. 437).
Javis had prior discipline for customer mistreat and
cancel avoidance (Tr. 452–453).
 CSR Stokey Pearson (Pearson): In January 2015
Respondent terminated Pearson after he was ob-
served using profanity with a telephone dealer (R.
Exh. 39). Pearson admitted using profanity when
he thought that the phone was on mute.
The General Counsel sought to distinguish Respondent’s de-
cision to terminate Aranda with the decision it made in other
disciplinary actions. For example, in December 2012, Re-
spondent gave employee Anthony Rael (Rael), who was not in
good standing at the time, an opportunity to write a commit-
ment after decision time for releasing calls without warning
customers. A SR observed Rael release a call and slam his
headset. When the SR approached Rael, he said that he needed
to cool down so he would not get fired for “taking it out on the
next customer” (GC Exh. 39). Respondent listened to the call,
and decided to send Rael home and come back with a commit-
ment on how he would handle “escalated” situations in the
future. Rael returned to work providing an inadequate com-
mitment, and only when his second commitment opportunity
was deemed inadequate, did Respondent discharge him (GC
Exh. 39; Tr. 118–120).
In another example brought forth by the General Counsel, in
June 2013, Michael A. Sanchez (Sanchez) released several calls
in one day according to a trace report (GC Exh. 40; Tr. 120–
122). Respondent played three released calls for Sanchez,
which all ended abruptly. Sanchez responded that he had called
the customers back but the evidence showed that he had not
called the customers again. Sanchez responded that the trace
report must be incorrect. Respondent sent Sanchez home and

25 Delgado worked in the same pod as Aranda and Figueroa. It
seems likely that Lugo reassigned the cubicles in the pod after October
11, 2014, when Delgado was terminated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
asked him to provide a commitment about the behavior occur-
ring again. Sanchez would not admit that he released calls.26
In a final example presented by the General Counsel, in Au-
gust 2014, Benjamin Black (Black) also released calls when he
was not sure how to handle a customer’s issues (GC Exh. 41;
Tr. 124–125). Black provided a commitment for immediate
improvement, and Respondent stated that he would not be in
good standing for 90 days.
After Aranda’s termination, Respondent terminated another
employee Jayce Lynne Kelly (Kelly) for similar misconduct (R.
Exh. 33). Before her termination, Respondent reviewed the
released calls with Kelly (R. Exh. 34; Tr. 448–449).
D. Casteneda’s Complaints
Casteneda testified that he filed an internal complaint with
Respondent regarding Ortiz, his second line supervisor, on
March 18, 2015 (GC Exh. 37). One of the complaint allega-
tions included an incident which occurred in the summer of
2014 between Casteneda and Ortiz, where Ortiz accused Cas-
teneda of being pro-Union due to the red shirt he was wearing
(Tr. 142). Other allegations included Ortiz’s favoritism, and
requirement to Casteneda that he track union activity and name
employees who participated in union activities. Casteneda met
with Otero and Johnson on March 23, 2015, and with Otero and
another supervisor from human resources again on April 9,
2015, to discuss these issues (GC Exh. 36; Tr. 141–142, 163).
In anticipation of her April 9, 2015, meeting with Casteneda,
Otero prepared points of discussion she wanted to cover (R.
Exh. 49; Tr. 428). Otero wrote, in part, “Follow-up: with re-
spect to your conversations with others regarding the Union—
while at work you may have such conversations during appro-
priate times—not when you are working or when other EE
[employee] is working.” Otero did not read these notes to Cas-
teneda verbatim (Tr. 432, 457).
During this meeting, Casteneda expressed his discomfort
with Ortiz due to Ortiz’ antiunion sentiment (Tr. 142–143).
Otero understood Casteneda’s passion for the Union but also
explained that other people might feel uncomfortable by his
union advocacy (Tr. 143). This discussion segued into Cas-
teneda interrupting Otero, and telling her that he knew “where
you’re going with this” (Tr. 143). Casteneda testified:
There’s a girl, a CSR, who had come to my attention who had
complained about me for signing her up. And she said that
she felt tricked by me into signing a Union card, that I had
been deceiving. And I proactively brought this up and said,
you know what, she was lying. She said that I had signed her
up while she was on the phone and she couldn’t understand
what I was really giving her or handing her, and that she felt
tricked by me. So the incident was not as she had laid it
down. She was actually on lunch, and she was in my pod,
and she was on her cell phone maybe playing on an applica-
tion, but not on a call with a customer.
[Tr. 143.]

26 Exhibit 40 does not indicate what, if any, discipline Respondent
imposed on Sanchez other than following up on the decision time con-
versation. Otero also was unclear as to what discipline was imposed on
Sanchez because she did not work for Respondent at that time.
Casteneda then told Otero that he was simply trying to or-
ganize based on the Board notice posting from a prior settled
case, and based on his interpretation of the notice, he had not
“done anything wrong because she was not on a call” (GC Exh.
9; Tr. 143–144, 183). Specifically, the notice section to which
Casteneda referred states, “WE WILL NOT discriminatorily
disallow employees who wear Union T-shirts to remain at our
facility after their shift and talk to fellow employees who are
not on phone calls” (GC Exh. 9, emphasis in original; Tr. 145).
Casteneda explained that he felt he spoke to the employee dur-
ing the permitted time since he and she were not on the phone.
Casteneda testified that Otero told him that since he does not
regularly take incoming calls due to his job duties, the defini-
tion of being on a call for him is that he could organize before
or after work or during lunch, but not while on the clock (Tr.
145–146, 149, 183). Later, on cross-examination, Casteneda
testified that he could not recall the exact words Otero used
when she conveyed information to him on when he could dis-
cuss the Union but that he “had to be off the clock or on break
and the other employee did as well” (Tr. 173). Casteneda fur-
ther testified regarding Otero’s statement, “[S]he definitely
made it clear that I can organize while I’m not working [. . .]
but I don’t remember the term, whether it was on the clock, off
the clock. I don’t remember those specific details” (Tr. 174).27
Otero testified that she told Casteneda regarding conversa-
tions about the Union, “[I]t was appropriate for him to have—
such conversations when he—when he’s not expected to be
working. When he is supposed to be working or the other em-
ployee is supposed to be working, he shouldn’t have some con-
versation” (Tr. 432). Casteneda responded that he understood.
Otero further testified that Casteneda asked a clarifying ques-
tion about discussing the Union and customer calls because he
does not take phone calls on a continuous basis (Tr. 433).
Otero told Casteneda, “No. But when you’re supposed to be
supporting your team as a senior rep would be considered when
you’re supposed to be working” (Tr. 433). Otero denied telling
Casteneda that he could not speak about the Union while on the
clock or during working hours (Tr. 434). Otero acknowledged
that as a SR, Casteneda would be talking about a wide variety
of topics throughout the workday to develop rapport with the
CSRs (Tr. 457–458).
One month after the April 2015 meeting, Otero followed up
Casteneda to check if he had any other issues or concerns (Tr.
188). Casteneda said everything was fine (Tr. 434).
III. DISCUSSION AND ANALYSIS
A. 8(a)(3) and (1) Allegations
The complaint alleges that Respondent violated Section
8(a)(3) and (1) of the Act when (1) on or about October 2014,
T-Mobile isolated employees Figueroa and Aranda, and (2) in

27 Casteneda testified general credibly but I do not credit this portion
of his testimony regarding what exactly Otero told him about when he
could discuss the Union. Casteneda could not recall the exact termi-
nology used by Otero which is significant; Casteneda’s testimony
changed on this point multiple times. Instead, I credit Otero’s testimo-
ny as to what she told Casteneda about when he could discuss the Un-
ion.
T-MOBILE USA, INC. 11
January 2015, T-Mobile terminated Aranda. The General
Counsel contends that Lugo separated Figueroa and Aranda to
“impede their union activities” (GC Br. at 34–35). The General
Counsel also alleges Respondent terminated Aranda because of
his union activities and sentiments (GC Br. at 31). Respondent
contends that its move of Figueroa and Aranda’s cubicle seats
was based on a legitimate business reason, and that it terminat-
ed Aranda for releasing customer calls (R. Br. at 22, 33).
Under the Board’s Wright Line decision, in cases alleging
discrimination in violations of Section 8(a)(3) and (1), where
motivation is at issue, the General Counsel bears the initial
burden of showing that Respondent’s decision to take adverse
action against an employee was motivated, at least in part, by
antiunion considerations. 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); American Red Cross Missouri-Illinois Blood
Services Region, 347 NLRB 347 (2006). To prove a violation
under Wright Line, the General Counsel must establish that: (1)
the employee engaged in union and/or protected activity, (2)
the employer knew about the union activity, and (3) the em-
ployer harbored animosity towards the union activity. Camaco
Lorain Mfg. Plant, 356 NLRB 1182–1185 (2011); ADB Utility
Contractors, 353 NLRB 166, 166–167 (2008), enf. denied on
other grounds 383 Fed. Appx. 594 (8th Cir. 2010). Animus
may be inferred from the record as a whole, including timing
and disparate treatment. Brink’s, Inc., 360 NLRB No. 136, slip
op. at 1 fn. 3 (2014); Camaco Lorain Mfg. Plant, supra.
For the first prong of Wright Line, there is no question that
Figueroa and Aranda engaged in Union activity by expressing
support for the Union. Since at least 2013 Figueroa has been
organizing on behalf of the Union, and eventually recruited
Aranda to join her in either September or October 2014. In late
October or early November 2014, Aranda also began wearing a
union pin or a red union shirt on a specific day of the week in
solidarity with other employee union supporters. In addition,
Aranda engaged in protected activity at unspecified times when
he spoke up at his pod’s meetings, and raised issues about
health conditions. Aranda and Figueroa also handed out Hal-
loween goody bags provided by the Union to employees. Thus,
Aranda and Figueroa engaged in Union and protected activity,
during all times relevant to these proceedings.
The next question turns to the second prong of Wright Line,
whether the employer knew of such activities. It is reasonable
to infer that Lugo was aware of Figueroa and Aranda’s union
activities. Windsor Convalescent Center of North Long Beach,
351 NLRB 975, 983 fn. 36 (2007), enfd. in relevant part 570
F.3d 354 (D.C. Cir. 2009) (knowledge of an employee’s union
activity may be established by reasonable inference). Working
within their pod of approximately 15 CSRs, Lugo likely would
have seen them wear their red union t-shirt on the same day as
other union supporters. Lugo also would have observed
Figueroa and Lugo come back to the pod after their break on
October 31, 2014, passing out remaining union goody bags.
Due to the relatively small physical size of the pod, Lugo likely
heard them talking to one another about the Union. Although it
is uncontested that Lugo never made any statements or com-
ments to Aranda or Figueroa regarding their Union activity,
Lugo also never denied having knowledge of Figueroa and
Aranda’s union and protected activity. Thus, Lugo was pre-
sumably aware of such activities.
Lugo, who made the decision to reassign cubicles, however,
did not make the recommendation or decision to terminate Ar-
anda. The decision to terminate Aranda came from human
resources. The evidence is scant as to whether Otero, Ko-
zlowski, and Viola were actually aware of Aranda’s union ac-
tivity. The primary evidence presented by the General Counsel
as to knowledge on the part of human resources is the TPA
reports. The TPA reports concerned only union activity, and
were sent by Otero and Johnson to named and unnamed recipi-
ents including Kozlowski and Viola. However, these TPA
reports did not include the names of the employees who partic-
ipated in union activities. The General Counsel also postulated
that Johnson knew of Aranda’s union support because on Janu-
ary 23, 2015, she came to perform an ergonomic evaluation at
his desk, and would have likely seen his union calendar. John-
son, though, did not make the decision to terminate Aranda.
Under Board law, supervisory knowledge of union activity is
imputed to Respondent’s human resources in the absence of
credible evidence to the contrary. See State Plaza Hotel, 347
NLRB 755, 757 (2006); Dobbs International Services, 335
NLRB 972, 972–973 (2001). Otero never denied knowledge of
Aranda’s Union and protected activity, and Kozlowski and
Viola did not testify. Thus, absent credible evidence to the
contrary, I find that Lugo’s knowledge of Aranda’s union and
protected activity imputed to Otero, Kozlowski, and Viola.
The General Counsel and the Charging Party also argue that
Respondent has created an atmosphere of animus towards un-
ion activity by engaging in surveillance of employees with the
TPA reports, and by a recent informal settlement agreement
with the Board (GC Br. at 1, 13–14; CP Br. at 2–6). I disagree.
First, the allegation of surveillance is not before me, but Re-
spondent does not dispute that it has admitted to using TPA
reports to document outside their premise’s activity which con-
sists primarily, if not entirely, of union activity. Nevertheless,
the reports contain no names or identifiers. Furthermore, a
settlement agreement with a non-admissions clause “may not
itself be used to establish anti-union animus” unless Respond-
ent has failed to comply with the settlement agreement or en-
gaged in independent unfair labor practices. Steves Sash &
Door Co., 164 NLRB 468 (1967), enfd. in pertinent part 401
F.2d 676, 678 (5th Cir. 1968). Here, the settlement agreement
contains a nonadmissions clause, stating that the employer
“does not admit that it violated the National Labor Relations
Act.” There is no evidence that Respondent has failed to com-
ply with the settlement agreement or engaged in independent
unfair labor practices. Thus, the settlement agreement cannot
be used to establish antiunion animus.
The remaining question, the third prong of the Wright Line
analysis, turns on Respondent’s motivation for reassigning
cubicles to Figueroa and Aranda, and for terminating Aranda.
If an unlawful motive cannot be established, even if an employ-
er’s reason for the adverse action is poor, nonexistent, or vio-
lates a law other than the Act, a violation cannot be found.
A discriminatory motive or animus may be established by
circumstantial evidence, inferred from several factors, includ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
ing pretextual and shifting reasons given for the adverse action,
the timing between the employees’ protected activities and the
adverse employment action, inconsistent treatment of employ-
ees, and the failure to adequately investigate alleged miscon-
duct. Temp Masters, Inc., 344 NLRB 1188, 1193 (2005); Pro-
medica Health Systems, Inc., 343 NLRB 1351, 1361 (2004);
Flour Daniel, Inc. 311 NLRB 498 (1993). Discriminatory mo-
tive may also be established by showing departure from past
practice or disparate treatment. See JAMCO, 294 NLRB 896,
905 (1989), affd. mem. 927 F.2d 614 (11th Cir. 1991), cert.
denied 502 U.S. 814 (1991); Naomi Knitting Plant, 328 NLRB
1279, 1283 (1999).
If the General Counsel establishes discriminatory motive, the
burden shifts to the employer to demonstrate that it would have
taken the same action absent the protected conduct. Camaco
Lorain Mfg. Plant, supra; ADB Utility, supra. Respondent can-
not meet this burden merely by showing that misconduct fac-
tored into the decision. Rather, Respondent’s burden is to show
that the misconduct would have resulted in the same action
even in the absence of the employees’ union and protected
activity. Monroe Mfg., 323 NLRB 24, 27 (1997).
(1) Respondent’s Isolation of Aranda and Figueroa
Turning first to the General Counsel’s allegation that Lugo
isolated Aranda and Figueroa, I find that the General Counsel
failed to show the requisite animus. The timing of events is
crucial. First, Lugo announced in late August 2014, before she
began supervising Figueroa and Aranda, that she liked “to
change things up so we may change desks every couple
months”. Two months later, sometime in October 2014,
Lugo announced a change in seating assignments. Lugo made
the decision alone. Although all the CSRs moved over approx-
imately 2 cubicles, Aranda moved to the opposite side of the
pod.
At first glance, this move seems suspicious since Aranda al-
so did not move over 2 cubicle spaces which could infer animus
as suggested by the General Counsel and the Charging Party.
However, the direct and circumstantial evidence does not point
to any Union animus on the part of Lugo due the timing of
events. Most, if not all, of Aranda’s Union activity occurred in
late October or early November 2014, after Lugo rearranged
the seating assignments in the cubicle. At the time of the reas-
signment, Aranda had only agreed to join Figueroa in Union
organizing, but had not yet made any proactive, outwards steps
such as wearing a red Union t-shirt, wearing his Union pin, and
handing out the Union goody bags. Aranda had spoken up
during pod meetings regarding a health issue of cockroaches in
the break room but Aranda’s testimony did not clarify when he
made this statement. Furthermore, before any knowledge of
Figueroa or Aranda’s Union activity, Lugo informed the entire
pod that she would likely reassign seats. Lugo did not arbitrari-
ly depart from a past practice which may support an inference
of unlawful motive. See Corliss Resources, Inc., 362 NLRB
No. 21 (2015) (arbitrary departure from past practice may sup-
port inference of unlawful motive).
The fact that Lugo could not recall why she decided to reas-
sign seats in October 2014 is insignificant; I find it more likely
than not that she reassigned the seats because she has always
done so as a coach to build camaraderie. Thus, I find that the
General Counsel failed to prove that Lugo’s decision to reas-
sign the seats in the pod was even partially motivated by anti-
Union animus.
In addition, Lugo did not separate Aranda and Figueroa by
assigning them to different pods or different shifts. Figueroa
and Aranda admitted that they continued to talk and send text
messages during the work shift and away from work but they
could no longer speak between customers and needed to raise
their voices to hear one another across the pod. Unlike the
employer in Fabric Mart Draperies, Inc., 182 NLRB No. 55,
slip op. at 10 (1970), cited by the General Counsel, Respondent
did not isolate Figueroa and Aranda from other employees. In
Fabric Mart Draperies, the employer violated the Act when it
punished an employee who participated in a prior Board pro-
ceeding by assigning her to a “remote and essentially isolated
work station.” Supra, slip op. at 1. The General Counsel also
cites to Hall of Mississippi, Inc., 249 NLRB 775 (1980), to
support its argument that Respondent illegally isolated Figueroa
and Aranda. In Hall of Mississippi, the employer violated the
Act when it physically isolated a union organizer from other
employees by reassigning her to another department which was
inoperative. In contrast, Lugo merely reassigned cubicles as
she said she would, and did not isolate Figueroa and Aranda
from other employees. The only “isolation” faced by Figueroa
and Aranda was their inability to talk in between customers as
easily as they could before the reassignment.
In American Red Cross Missouri-Illinois Blood Services Re-
gion, cited by the Charging Party, the Board held that the em-
ployer violated the Act when a supervisor instructed a sched-
uler to schedule all four union supporters together and apart
from other employees “to keep them from infecting others.”
Supra, slip op. at 2. Eventually these employees did work with
other employees but on a less frequent basis than before there-
by limiting their contact with other employees. Again as set
forth above, the fact pattern presented here differs considerably.
The Charging Party also argues that a strong inference for ani-
mus towards Aranda and Figueroa can be made due to the “in-
tense union animus at the Call Center” especially due to Ortiz’s
alleged demanding of the names of Union supporters (CP Br. at
35). However, this “intense union animus” has not been estab-
lished in this record, and even assuming such animus existed,
the General Counsel and the Charging Party have not proven
that this animus improperly motivated Lugo to reassign cubi-
cles in October 2014.
Even if one assumes, contrary to the weight of the evidence
here, that the General Counsel met its required initial showing
under Wright Line, Respondent has shown that it would have
reassigned the cubicles of Aranda and Figueroa, absent protect-
ed concerted and Union activity. Lugo announced at the begin-
ning of her tenure as coach that she would reassign seats every
couple of months. She credibly explained that she reassigns
cubicles to promote camaraderie. In August 2014, when Lugo
announced the anticipated reassignments, there is no evidence
to show that she was aware of Figueroa’s Union support, and
clearly Aranda had not yet joined the Union organizing cam-
paign.
Accordingly, I find that the General Counsel failed to prove
T-MOBILE USA, INC. 13
that Respondent violated Section 8(a)(3) and (1) of the Act
when it reassigned Aranda and Figueroa’s cubicles, and rec-
ommend that this allegation be dismissed.
(2) Respondent’s Termination of Aranda
Now turning to Respondent’s termination of Aranda, I also
find that the General Counsel failed to show that Aranda’s ter-
mination was motivated by union animus, the third prong of
Wright Line. Again, the timing is suspect. It is well settled that
an adverse employment action occurring at a time proximate to
an employee’s protected activity constitutes evidence of unlaw-
ful motivation. See, e.g., Relco Locomotives, Inc., 358 NLRB
298, 311 (2012) (timing of employee discipline, less than 2
months after employer learned of protected activities and 2
weeks following union election, evinces unlawful motivation);
Sears Roebuck & Co., 337 NLRB 443, 451 (2002) (timing of
discharge, “several weeks” after employer learned of protected
concerted activities, indicative of retaliatory motive). Aranda
began to be more outwardly vocal regarding his support of the
Union in late October and early November 2014. At that time,
Aranda participated in handing out Union goody bags, and
began wearing a red union T-shirt and a union pin on certain
days of the week. Aranda’s performance had been generally
good but in December 2014 it is undisputed that he encountered
some difficulties with maintaining a specific performance met-
ric. Lugo and the SR questioned Aranda, and Aranda men-
tioned his need to log off and use the restroom for which he
was seeing a doctor. Lugo kept reminding Aranda about his
need to improve this metric, and when he began to achieve
these targets, she congratulated him.
Thereafter, Aranda’s only outward Union activity occurred
in late December 2014, when he placed a Union calendar in his
cubicle. Then in January 2015, Lugo and the national call team
noticed incomplete or released calls which were unusual.
Without informing her supervisor or human resources, Lugo
initiated a trace report to discover what happened. Only after
she encountered a similar issue of released calls with Aranda,
did Lugo remember to check the trace reports. Her investiga-
tion revealed many inappropriately released calls. When con-
fronted, Aranda did not deny releasing the calls, and instead
laid blame on his medications and anxiety. Presumably Aranda
continued to wear his union pin and red union t-shirt on desig-
nated days of the week, but the General Counsel presented no
other evidence of union or protected activity near the time of
his termination. Protected or union activity need not necessari-
ly occur near or at the time of an adverse action but in this in-
stance there is no direct or circumstantial evidence supporting
animus for union activity directed at Aranda. Thus, the timing
of the termination does not demonstrate or infer animus to Ar-
anda’s union or protected activity.
The General Counsel argues that Respondent failed to inves-
tigate adequately Aranda’s released calls, and instead the meet-
ing on January 30, 2015, was a fait accompli (GC Br. at 37–
40). The evidence shows otherwise. First, Lugo credibly testi-
fied that she made the decision to investigate the released calls
after suspicions were raised. Lugo explained that she does not
recall talking with Aranda about the released calls because
there could be a number of reasons for why the released calls
took place such as a systems’ error. Lugo’s explanation seems
reasonable in light of the circumstances at the time. Even dur-
ing the month of January 2015 Lugo continued to coach Aranda
on issues she observed; on January 12, 2015, Lugo spoke with
Aranda about his trouble with handling calls with difficult
claimants. At the end of January 2015, it took Lugo a few days
to review some of the released calls and create a spreadsheet to
document her findings. Even though Lugo did not listen to
every single released call by Aranda, she compiled a significant
number of released calls in her summary. She went to human
resources only after she determined that Aranda hung up on a
number of customers which she felt was “blatant mistreat-
ment.” Thereafter, Lugo and Lachioma held a meeting with
Aranda to discuss the released calls, and submitted their written
summaries along with Aranda’s statement to human re-
sources.28 Human resources then made the decision to termi-
nate Aranda. Overall, Respondent’s investigation was not in-
adequate.
The General Counsel elicited a considerable amount of tes-
timony on Aranda’s medical conditions and argued that Re-
spondent failed to consider and investigate his condition which
demonstrates animus. However, before the January 30, 2015
meeting, Respondent’s benefits team had already approved
Aranda’s FMLA leave for his inability to perform “timely reso-
lution of problems, ability to focus” due to his migraines, head-
aches, depression, and loss of appetite due to anxiety at work.
In fact, Aranda used FMLA five times in the month of January,
including 3 full workdays. Thus, contrary to the General Coun-
sel’s argument, Respondent clearly provided instructions and
guidance to Aranda on how to use his FMLA leave which is
evident by his usage. Furthermore, Aranda admitted that he
had not told anyone at Respondent about the effects of his med-
ication on his ability to perform his job such that he would
release customer calls. I do not detect animus on the part of
Lugo and Lachioma for asking Aranda to note on his written
statement the same. In addition, the General Counsel provided
no comparable CSRs who released calls and had medical issues
and who were treated differently than Aranda.

28 The General Counsel argues that Otero’s solicitation of statements
from Lugo and Lachioma “demonstrates this documentation activity
was not standard operating procedure for addressing potential employee
discipline” (GC Br. at 39 fn. 23). It is unclear to which “documentation
activity” the General Counsel refers but the record is devoid of any
evidence that Respondent solicited statements from Lugo and Lachio-
ma after their meeting with Aranda for merely “setting the framework
for Aranda’s termination” (GC Br. at 39). Similarly, there is no evi-
dence that Respondent’s disciplinary investigation of Aranda strayed in
any way from its investigation of other disciplinary matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
The General Counsel argues that Respondent rushed to ter-
minate Aranda by having Lachioma attend the January 30,
2015, meeting rather than Ortiz who was on paid time off. It is
unclear from the record how Ortiz’s presence would have made
a difference especially since under the General Counsel’s theo-
ry of anti-Union animus at Respondent, Ortiz is the antagonist.
Again Lugo investigated the actual released calls the week of
January 25, without informing anyone including Ortiz, and the
meeting on January 30, 2015, was to discuss why those calls
occurred, not Aranda’s day-to-day performance as the General
Counsel argues Ortiz could have provided.
Contrary to the General Counsel and the Charging Party’s
assertion (GC Br. at 40–41; CP Br. at 29), Respondent does not
have a progressive discipline policy. I do not find that Re-
spondent has a progressive discipline process as asserted by the
General Counsel and the Charging Party. None of Respond-
ent’s witnesses agreed that Respondent had a progressive disci-
pline process, and its own orientation materials did not indicate
as such. The orientation material compared T-Mobile’s pro-
gram to other companies which use a “typical progressive dis-
cipline model” where an employee is given sequentially a ver-
bal warning, written warning, and final warning, and ultimately
terminated. In contrast, Respondent permits its supervisors to
use a variety of techniques for disciplining its employees (clari-
fying discussion, formal reminder, review of expectations, and
decision time) along with termination. One need not come
before the other. In addition, during his new employee orienta-
tion, Aranda was informed that releasing calls could be cause
for termination.
The comparable disciplinary actions raised by the General
Counsel and set forth by Respondent also do not necessarily
support a legitimate argument for disparate treatment. The
General Counsel and the Charging Party argue that other em-
ployees were given “chances to correct their conduct” (GC Br.
at 2, 41–43; CP Br. at 28). Arguably, this is the General Coun-
sel’s strongest argument. It is true that Respondent gave Ro-
driguez, Javis, Rael, Sanchez, and Black an opportunity to pro-
vide a commitment prior to terminating them all but Black.
However, Respondent also immediately terminated Delgado
and Pearson, without providing an opportunity to provide a
commitment, for customer mistreats. In contrast to Aranda,
and the other comparable employees, Respondent did not ter-
minate Black. Furthermore, an opportunity to provide a com-
mitment is not an option as part of the disciplinary process, but
is rather appears to be an option while Respondent considers
what further disciplinary action to implement, if any. Overall, it
appears that Respondent handled released call situations differ-
ently for the CSRs depending on the specific circumstances.
The General Counsel and the Charging Party argue that Re-
spondent should have played the released calls for Aranda dur-
ing the January 30, 2015 meeting. However, it was realistic for
Lugo and Lachioma not to play the released calls for Aranda
because he admitted that he released the calls which left most
of the focus of the meeting on why he released the calls. Un-
like CSRs Rodriguez, Delgado, Sanchez, and Kelly (who were
disciplined or terminated for released calls or customer mis-
treats), Aranda admitted that he released the calls and explained
why he did so. Thus, I do not find that Respondent departed
from past practice when it made the decision to terminate Ar-
anda.
In sum, I find that the General Counsel failed to establish an-
imus on Respondent’s part towards Aranda for his union and
protected activity. As found above, Respondent likely became
aware of Aranda’s activities but there is no indication here that
Lugo’s investigation and human resources’ termination of Ar-
anda were at all connected to Aranda’s union and protected
activity. Lugo discovered the released calls but sought to in-
vestigate the matter to see what happened. Only after Lugo
conducted her investigation did she go to human resources
since the released calls were numerous. Aranda also admitted
to releasing the calls. Human resources, after reviewing Aran-
da and its two managers’ statements as well as comparable
disciplinary actions, decided to terminate Aranda. While it is
true that the three human resources officials who made the
decision to terminate Aranda received the TPA reports which
included the October 31, 2014 union event, the names of the
participants were not on the reports. The evidence, even cir-
cumstantial, cannot establish that Aranda’s union and protected
activity was a motivating factor in Respondent’s decision to
terminate him.
Assuming that the General Counsel met its initial burden of
proof, the evidence shows that Respondent would have dis-
charged Aranda even in the absence of his prounion actions.
As set forth at Aranda’s orientation, releasing customer phone
calls is immediate grounds for termination. Furthermore, it is
undisputed that Aranda admittedly released calls and never
informed Lugo or any other management official of this. In
contrast, Figueroa and Casteneda, who are vocal union support-
ers, both admitted that when they have released calls they have
immediately informed their coaches of their actions.
Accordingly, I find that the General Counsel has failed to
prove that Respondent violated Section 8(a)(3) and (1) of the
Act when it terminated Aranda, and recommend that this alle-
gation be dismissed.
B. 8(a)(1) Allegation
The complaint alleges on or about April 9, 2015, Respondent
by Otero disallowed its senior representative employees from
discussing the Union while allowing them to discuss non-work
topics during work time thereby violating Section 8(a)(1) of the
Act.
Section 8(a)(1) of the Act provides that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed in Section
7 of the Act. The rights guaranteed in Section 7 include the
right “to form, join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
T-MOBILE USA, INC. 15
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.” Further-
more, an employer violates Section 8(a)(1) when employees are
forbidden to discuss unionization while working, but are free to
discuss other subjects unrelated to work, particularly when the
prohibition is announced in response to employees’ activities in
regard to the union organizational campaign. Fresh & Easy
Neighborhood Market, Inc., 356 NLRB 588 (2011), enfd. 459
Fed. Appx. 1 (D.C. Cir. 2012); Orval Kent Food Co., 278
NLRB 402, 407 (1986); Teledyne Advanced Materials, 332
NLRB 539 (2000).
As an initial matter, the record is undisputed that Respondent
permits its employees to discuss non-work related matters when
they are not taking customer calls. As for the discussions re-
garding the Union, based upon the credited testimony, I con-
clude that Otero told Casteneda on April 9, 2015, that he could
not discuss the Union when “he is supposed to be working or
the other employee is supposed to be working” (Tr. 432). Upon
clarification as to the definition of “working” for Casteneda
since he does not routinely take customer calls, Otero told Cas-
teneda that he could not discuss the Union “when you’re sup-
posed to be supporting your team as a senior rep” (Tr. 432).
Respondent argues that because Otero did not bar Casteneda
from talking about the Union during work hours, or when on
the clock, that she essentially informed him that he could talk
about the Union during work hours (R. Br at 35–37). In Essex
International, 211 NLRB 749, 750 (1974), the Board held that
“a rule prohibiting solicitation during “working hours” is prima
facie susceptible of the interpretation that solicitation is prohib-
ited during business hours, and thus invalid.” The burden falls
on the employer to show by extrinsic evidence that the “work-
ing hours” rules was communicated in such a way as to convey
clearly to permit solicitation to periods when employees are not
actively working. Essex International, supra; see also Our Way
Inc., 268 NLRB 394 (1983) (discussion of the term “working
hours”); Alert Medical Transport, 276 NLRB 631, 663–664
(1985) (employer’s use of the term “company time”); BJ’s
Wholesale Club, 297 NLRB 611 (1990). While it is true that I
credited Otero’s testimony that she did not tell Casteneda that
he could only discuss the Union while off the clock, her own
testimony confirms that she restricted Casteneda’s union speech
to times when he was not working supporting CSRs. The prob-
lem with this argument is that as a SR, other than his two 15-
minute breaks and a lunch break, Casteneda is always “work-
ing” supporting the CSRs. Casteneda does not take customer
calls but constantly works with the CSRs building rapport and
helps them when needed. Furthermore, even though Otero
reached out to Casteneda to see if he had any further issues or
concerns to which he had none, I find that Otero’s definition of
working as applied to Casteneda unlawfully placed restrictions
on when he could discuss the Union. Otero failed to clarify
with Casteneda when he could speak about the Union, and in-
stead told him when he could not, leaving an ambiguity as to
when he could speak about the Union. See Lafayette Park
Hotel, 326 NLRB 824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999) (any ambiguities are construed against the promulgator
of the rule). Moreover, the issue regarding when Casteneda
could speak about the Union arose during a meeting concerning
a complaint he had about his supervisor and his own Union
activity.
Thus for the above reasons, I find that by promulgating and
maintaining a rule unlawfully restricting senior representative’s
ability to discuss the Union while working but not prohibiting
them from talking about other subjections, Respondent violated
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By disallowing its senior representatives from discussing
the Union while allowing them to discuss non-work topics dur-
ing work time, Respondent has engaged in unfair labor practic-
es affecting commerce within the meaning of Section 2(2) (6),
and (7) of the Act and violated Section 8(a)(1) of the Act.
4. All other allegations are dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
I will order that Respondent post a notice in the usual man-
ner, including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, at 15–16 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended29
ORDER
The Respondent, T-Mobile, USA, Inc., Albuquerque, New
Mexico, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Promulgating and maintaining a rule prohibiting senior
representatives from talking to other employees about the
Communications Workers of America, Local 7011, AFL–CIO
or any other labor organization while working but not prohibit-
ing them from talking about other subjects.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days after service by the Region, post at its fa-
cility in Albuquerque, New Mexico, copies of the attached
notice marked “Appendix.”30 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being

29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
30 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
signed by Respondent’s authorized representative, shall be
posted by Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if Respondent customarily
communicates with its employees by such means. Reasonable
steps shall be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, Respond-
ent has gone out of business or closed the facility involved in
these proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by Respondent at any time since
April 9, 2015.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. December 10, 2015
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate and maintain a rule prohibit-
ing senior representatives from talking to other employ-
ees about the Communications Workers of America, Lo-
cal 7011, AFL–CIO or any other labor organization
while working but not prohibiting them from talking
about other subjects.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.
T-MOBILE USA, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-148865 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.