TeleTech Holdings, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 2001

333 N.L.R.B. 402 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
TeleTech Holdings, Inc. and Communications Work-
ers of America, AFL–CIO. Case 3–CA–21862
February 27, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On August 15, 2000, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
only to the extent consistent with this Decision and Or-
der.
The Respondent operates telephone call centers for
corporate clients. At its Niagara Falls facility, it provides
24-hour customer service for customers of a large tele-
communications company. Beginning in late 1998 and
extending into the spring of 1999, some of its Niagara
Falls employees were involved in union organizing ac-
tivities. The General Counsel alleged in the complaint
that, in reaction to these activities, the Respondent en-
gaged in several instances of unlawful conduct. The
General Counsel also alleged that two statements in its
employee orientation booklet constituted unlawful work-
place rules violating Section 8(a)(1). The judge found
that the Respondent violated the Act by engaging in co-
ercive interrogations and polling of employees, and he
otherwise dismissed the complaint.
The General Counsel excepted, among other things, to
the judge’s dismissal of the 8(a)(1) allegations involving
the two rules in the Respondent’s orientation booklet.
We find merit in these exceptions, and, contrary to the
judge, we will find these violations as alleged.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge dismissed the allegation that employee Frank Butry was
discriminatorily discharged because of his activities on behalf of the
Union. We agree with him that the General Counsel did not establish
that the Respondent was aware of Butry’s protected activities, and that
therefore the General Counsel did not meet his initial Wright Line bur-
den. Accordingly, we find it unnecessary to rely on the judge’s alterna-
tive analysis of the Respondent’s Wright Line rebuttal showing.
The Respondent’s formal policy on distribution of lit-
erature, which the General Counsel concedes is lawful, is
set forth in its “Policies and Procedures” document.3 Al-
though employees are not given copies of the “Policies
and Procedures,” the policies found there are reviewed
with new employees during orientation. In addition, the
“Policies and Procedures” can be found on the Respon-
dent’s computer website, and a copy is posted periodi-
cally on the employee breakroom bulletin board. The
“Policies and Procedures” document does not address the
presence of off-duty employees on its property.
There is, however, a property-access rule for off-duty
employees, as well as another no-distribution rule, in a
booklet called the “TeleTech Welcome Book.” This
booklet is provided to all new TeleTech employees when
they begin employment.
Several sections of the Welcome Book are relevant to
our review. The first page of the booklet states the fol-
lowing:

This employee welcome booklet is designed to
help you become better acquainted with the com-
pany. This publication does not include official
TeleTech policies and procedures. For specific an-
swers on those, please contact your immediate su-
pervisor or a human resources representative. They
will be happy to answer your questions and provide
you with any information you need.

At page 11 of the booklet, at the beginning of a section enti-
tled “Professional Standards,” the following statement is set
forth:

This booklet does not catalog TeleTech’s policies
and procedures. Your immediate supervisor or hu-
man resources representative has access to
TeleTech’s Policies and Procedures document and
can answer specific questions. Some of those poli-
cies will be given to you and discussed during orien-
tation. The following abbreviated guidelines are of-
fered here to help you get started on the right foot.

Immediately following on page 11 is a subsection entitled
“Professional Conduct,” with this introduction:

Some examples of infractions that may result in
disciplinary action (up to and including termination)
are listed below. This list is not all inclusive, and
conduct that is not listed here may also result in dis-
ciplinary action. If you have questions regarding
3 It states, in relevant part, that on the Respondent’s premises “em-
ployees may not solicit or distribute literature during working time for
any purpose,” and that “employees may not distribute literature at any
time in working areas.”
333 NLRB No. 56
TELETECH HOLDINGS, INC. 403
these or related issues, please speak to your supervi-
sor or a human resources representative.

Several examples of prohibited conduct are listed, including
“soliciting products or distributing literature without proper
authorization,” and “unauthorized presence on the premises
while off duty.” These two rules are the basis for the alleged
violations at issue before us.4
The judge found that the statement on the Welcome
Book’s first page and the first statement under “Profes-
sional Standards” on page 11 were “clear and unambigu-
ous disclaimers.” He further opined that, in view of these
disclaimers, the listed examples of prohibited conduct on
page 11 were intended to serve merely as “guidelines”
and did not reflect the Respondent’s official policies. He
noted that the General Counsel had conceded the lawful-
ness of the Respondent’s literature distribution policy in
its “Policies and Procedures.” He concluded that in the
circumstances, the allegedly unlawful no-distribution and
off-duty employee access rules were not coercive of Sec-
tion 7 rights, and he dismissed these allegations. We
disagree. Each of the allegations are addressed separately
below.
A. The No-Distribution Rule
A rule prohibiting distribution of literature on employ-
ees’ own time and in nonworking areas is presumptively
invalid. See, e.g., Our Way, Inc., 268 NLRB 394 (1983);
Stoddard-Quirk Mfg., 138 MLRB 615 (1962). A no-
distribution rule which is not restricted to working time
and to work areas is overly broad and presumptively
unlawful. See, e.g., MTD Products, Inc., 310 NLRB 733
(1993). The mere existence of an overly broad rule of
this kind tends to restrain and interfere with employees’
rights under the Act, even if the rule is not enforced.
Brunswick Corp., 282 NLRB 794, 795 (1987). Further,
any distribution rule that requires employees to secure
permission from their employer prior to engaging in pro-
tected concerted activities on an employee’s free time
and in nonwork areas is unlawful. Id.
The statement on page 11 of the Welcome Book pro-
hibits employees from “distributing literature without
proper authorization,” with disciplinary sanctions up to
and including discharge. It is presented as a rule of con-
duct. It is overbroad because it is limited neither to work-
ing time nor to working areas. It also requires employees
to secure “proper authorization” before engaging in any
distribution. Accordingly, this no-distribution rule is pre-
sumptively unlawful.
When a rule of this kind is found presumptively
unlawful on its face, the employer bears the burden to

4 The General Counsel does not contend that the “soliciting prod-
ucts” portion of the first rule violates the Act.
show that it communicated or applied the rule in a way
that conveyed a clear intent to permit distribution of lit-
erature in nonworking areas during nonworking time.
Ichikoh Mfg., 312 NLRB 1022 (1993), enfd. 41 F.3d
1507 (6th Cir. 1994). A clarification of an ambiguous
rule or a narrowed interpretation of an overly broad rule
must be communicated effectively to the employer’s
workers to eliminate the impact of a facially invalid rule.
Laidlaw Transit, Inc., 315 NLRB 79, 83 (1994). Any
remaining ambiguities concerning the rule will be re-
solved against the employer, the promulgator of the rule.
See Norris/O’Bannon, 307 NLRB 1236, 1245 (1992).
The Respondent argues in support of the judge’s view
that the existence of the lawful no-distribution rule in its
“Policies and Procedures” document cancels any unlaw-
ful impact of the rule set forth in the Welcome Book.
Critical to this theory is the presence of the two state-
ments in the Welcome Book which the judge identified
as “disclaimers.”
In this case, a finding of a disclaimer of the invalid
rule would require that the Respondent demonstrate that
it clearly disavowed or repudiated it. The general state-
ment found on the first page of the Welcome Book does
not disavow or repudiate anything. The statement that
the booklet “does not include official TeleTech policies
and procedures” seems reasonably to mean that a formal
rendition of such policies and procedures is available
elsewhere. It does not suggest that the information in the
Welcome Book is false or inaccurate. It is also 10 pages
removed from the rule at issue, and thus does not specifi-
cally address it.
The statement on page 11, at the beginning of the Pro-
fessional Standards section, also does not constitute an
effective disclaimer. Rather than disavowing any of the
booklet’s contents, it points out only that the Welcome
Book generally is not a complete listing of the Respon-
dent’s practices and procedures, i.e., it is not a “catalog.”
It also states that the booklet comprises “abbreviated
guidelines” for employee conduct, and by explicitly list-
ing the no-distribution rule, emphasizes that infraction of
that rule may result in discharge.
We find that nothing in the Welcome Book operates as
a disclaimer of the presumptively unlawful no-
distribution rule. In addition, the fact that the Respondent
may discuss with new employees its lawful no-
distribution policy at their orientation, and the policy’s
availability on the Respondent’s website and periodically
on bulletin boards, are simply inadequate to offset the
impact of the rule in the Welcome Book. It was the Re-
spondent’s obligation to disavow the unlawful rule to its
employees, or otherwise to affirmatively communicate
its clear intention to allow appropriate distribution of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
literature. The Respondent did not establish that it met
this obligation. Finally, it is noteworthy that when em-
ployees were engaged in organizational activities in the
spring of 1999, the Respondent reaffirmed the unlawful
rule to employees in its “Weekly Memo” by reminding
them that distribution of leaflets required company ap-
proval.5
For the reasons above, we find that the Respondent has
not rebutted the presumptive unlawfulness of the no-
distribution rule in its Welcome Book, and accordingly
that its maintenance of the rule violated Section 8(a)(1).
B. The No-Access Rule
As discussed above, page 11 of the Welcome Book
also identified as prohibited conduct “unauthorized pres-
ence on the premises while off duty.” A no-access rule
for off-duty employees is valid only if it limits their ac-
cess solely with respect to the interior of the plant prem-
ises and other working areas; it is clearly disseminated to
all employees; and it applies to off-duty employees seek-
ing access to the plant for any purpose and not just those
employees engaging in union activity. In addition, a rule
denying off-duty employees access to parking lots, gates,
and other outside nonworking areas is invalid unless suf-
ficiently justified by business reasons. Tri-County Medi-
cal Center, 222 NLRB 1089 (1976). See also, e.g., Fair-
fax Hospital, 310 NLRB 299, 308–309 (1993). Applying
the Tri-County principles, it is clear that the rule at issue
is both substantially overbroad and improperly requires
prior authorization for off-duty access. See Brunswick
Corp., supra, 282 NLRB at 795.
The Respondent offered no business justification for
its no-access rule. Consistent with our analysis of the no-
distribution rule above, there is no disclaimer of this rule
in the Welcome Book or elsewhere, and the Respondent
did not otherwise repudiate it. Moreover, unlike the no-
distribution rule, there is no lawful no-access rule in the
Respondent’s “Policies and Procedures” document. For
these reasons, we find that the Respondent maintained an
unlawful no-access rule in violation of Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set out in full below, and orders that the
Respondent, TeleTech Holdings, Inc., Niagara Falls,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

5 The General Counsel did not allege or litigate a separate 8(a)(1)
violation concerning this statement in the “Weekly Memo.”
(a) Coercively interrogating and systematically polling
its employees concerning their union sympathies.
(b) Maintaining an overly broad rule which prohibits
the unauthorized distribution of literature.
(c) Maintaining an overly broad rule which prohibits
the unauthorized presence of off-duty employees on its
property.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule on page 11 of its TeleTech Wel-
come Book which prohibits “distributing literature with-
out proper authorization.”
(b) Rescind the rule on page 11 of its TeleTech Wel-
come Book which prohibits “unauthorized presence on
the premises while off duty.”
(c) Within 14 days after service by the Region, post at
its facility in Niagara Falls, New York, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since April 30,
1999.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

6 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.”
TELETECH HOLDINGS, INC. 405
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT interrogate or poll our employees
concerning their union sympathies.
WE WILL NOT maintain any overly broad rule which
prohibits the unauthorized distribution of literature.
WE WILL NOT maintain any overly broad rule which
prohibits the unauthorized presence of off-duty employ-
ees on our property.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the rule on page 11 of our TeleTech
Welcome Book which prohibits “distributing literature
without proper authorization.”
WE WILL rescind the rule on page 11 of our TeleTech
Welcome Book which prohibits “unauthorized presence
on the premises while off duty.”

TELETECH HOLDINGS, INC.

Ron Scott, Esq., for the General Counsel.
Peter M. Panken and Jeffrey D. Williams, Esqs. (Epstein, Becker & Green, P.C.), of New York,
New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case was tried in Buffalo, New
York, on October 28 and 29, 1999, and on April 24, 2000, upon a complaint issued on Septem-
ber 24, 1999, alleging that the Respondent, TeleTech Holdings, Inc. violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act). The charges were filed by Communica-
tions Workers of America, AFL–CIO (CWA) on April 5, 1999, as amended on June 14 and on
September 21, 1999. The Respondent, filed a timely answer in which the jurisdictional allega-
tions were admitted and the substantive allegations of unfair labor practices were denied.
The issues are whether the Respondent (a) coercively interrogated and polled employees
about their union sympathies; (b) maintained an overly broad no-distribution rule and a rule
restricting employees from being on the company premises; (c) solicited employees to report
the union activities of other employees and told employees that union literature was not permit-
ted on company premises; and (d) discharged employee Frank Butry because of his union
activity.
On the entire record, including my observation of the demeanor of the witnesses, and after
consideration of the briefs filed by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
JURISDICTION
The Respondent, a Delaware corporation with an office and place of business in Niagara
Falls, New York (Niagara Falls facility), is engaged in the operation of call centers for corpo-
rate clients. With services valued in excess of $50,000 directly to customers located outside the
State of New York, and purchases and receipts at its Niagara Falls facility of goods and materi-
als valued in excess of $50,000 from points outside the State of New York, the Respondent is
admittedly engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Union is admittedly a labor organization within the meaning of Section 2(5) of the Act.
The Facts
The Respondent employs more than 1000 employees, including about 400 “advisors” at its
Niagara Falls facility to provide 24-hour customer service to customers of GTE Communica-
tions. The work of advisors consists of answering the incoming customer service calls about
GTE’s telephone service, including questions about the repair, sale, and costs of telephones.
TeleTech routinely conducts random surveys of GTE’s customers to assure quality service.
Frank Butry was one of Respondent’s advisors who had engaged in union activities and
who was discharged after his performance scores fell below acceptable standards. Butry
worked for the Respondent from August 15, 1998, to April 1, 1999. He described his job as
follows (Tr. 36–37):

Well, I’ll try to be as brief as possible. Actually, what
an Advisor does is take incoming telephone calls from the
GTE customers in either California, Texas, the State of
Washington, and the State of Florida. These calls are, I
guess [are] just like catch-all calls. You don’t know what
type of call you’re going to get. You could get a general
repair issue. It could be something about an internet prob-
lem. It could be for a sale. It could be for billing. Just
general questions. So basically you’re answering the tele-
phone and you were trying to do the best you could, an-
swering the customers’ questions when they did call you.

When Butry was hired, he, like all newly hired advisors, took a 6-week training program
and was given an employee brochure called “TeleTech Welcome Book” (GC Exh. 18). The
booklet contains a summary of employee benefits, a brief history of the Company and a state-
ment of “Professional Standards,” including a set of rules defining “Professional Conduct.”
Listed among the examples of infractions resulting in disciplinary actions are, “Soliciting
products or distributing literature without proper authorization” and “unauthorized presence on
the premises while off duty” (GC Exh. 18).
Throughout Butry’s employment, his job performance was subject to periodic monitoring.
Indeed, employees were expected to sign a “Monitor Agreement”, which Butry had signed on
August 10, 1998 (R. Exh. 1). He had received 6 weeks of training and testified that he was
familiar with the quality assurance rules (Tr. 94):

I understood the quality assurance rules to be concise
on the phone and clear, not to speak fast, select you dic-
tion, what you say, what you shouldn’t say, to identify
sales opportunities and basically when you end the call,
end the call correctly, as well, thanking them for calling or
thank you for calling GTE.

Advisors were expected to meet a monthly cumulative score of at least 85 percent. An-
thony Quarantillo, advisor supervisor for the Respondent, testified as follows (Tr. 343–344):

The quality scores were the most important aspects of
an agent. It’s a direct, we represent GTE Communica-
tions. And we’re, in our center and the other centers are
the only people that anyone who calls to sign up for GTE
Service will speak with.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406
Q. And was there any score that, that advisors were
expected to maintain in quality?
A. Advisors must maintain a minimum monthly aver-
age of 85 percent.
. . . .

Q. Number two, they had to maintain at least a score of
a 75 per randomly monitored call?
A. Yes. Because the, the difference in scores is an ad-
visor can be scoring high in the 90s and get a bad call.
What I mean by bad call is they don’t score well on all the
categories. It may fall under 75. But their average still
can be, or usually will be above 85, even if they get a bad
call in there.

According to Respondent’s Consumer Performance Guidelines which in great detail set
forth the Respondent’s monitoring policy, scores of 50 percent or less trigger an automatic
written warning to the advisor (GC Exh. 20). The performance monitoring is done by three
entities. They are TeleTech assurance specialists, GTE personnel, and a third party vendor, as
explained by Lynn Jasper, quality assurance manager in the Niagara Falls Center (Tr. 259):

Let me give you an idea of who does monitoring.
TeleTech employs me and my team, the Quality Assur-
ance Specialists, to monitor. GTE, themselves, in their
Ervine, Texas site, has a team that also does the monitor-
ing. They also, at times, outside, hire outside vendors to
monitor, as well.

She estimated that one percent of all incoming calls are monitored by TeleTech alone.
These specialists are required to complete a quality assurance evaluation form (R. Exh. 3). The
TeleTech monitoring guidelines establish the criteria to guide the evaluators in filling out the
evaluation form (R. Exh. 2). When asked how the monitoring process works and how incom-
ing calls are monitored, Jasper testified, evaluators listen to the calls (Tr. 258):

Oh, there’s several different ways that we can monitor.
What we have is each QA Specialist has a terminal, a cas-
sette recorder, a headset, and access to the same systems
that the Advisors have, so that we can see what they’re do-
ing and hear what they’re doing simultaneously with them.
At the same time that we’re hearing the live content, we’re
also recording it for review, because it takes more than one
listen to evaluate a conversation.

From October 14, 1998, to April 1, 1999, Butry was evaluated by different quality assur-
ance specialists on 25 occasions (GC Exh. 6). He exceeded the 85-percent passing grade on
eight different occasions. The remaining scores fell below the expected average. Butry re-
ceived the lowest scores on March 17, 1999, with a 36.84 percent and on April 1, 1999, when
he received a 28.57 percent.
Supervisor Tony Quarantillo, counseled Butry on several occasions in an effort to assist
him to improve his scores (GC Exh. 13). On December 1, 1998, Quarantillo gave Butry a
verbal warning because of Butry’s score of 78.8 percent in November 1998 (GC Exh. 21).
Quarantillo developed a “success action plan” for Butry on March 18, 1999 because of several
low scores in March 1999 (GC Exh. 9). And on March 22, 1999, Quarantillo met with Butry
again for a counseling session because of scores which fell below the expected average scores.
Butry also received a final warning on March 25, 1999 (GC Exh. 22).
On April 1, 1999, after Butry had received his lowest score of 28.5 percent, Quarantillo met
with Butry and another supervisor, James LaMoy, and informed Butry that he was discharged.
The counseling notice of April 1, 1999, states (GC Exh. 25):

Frank received a score of 28.5 on April 1, 1999. Be-
cause of Frank’s previous discipline for unsatisfactory
work quality, this performance will result in termination.

Butry noted on this form: “I do not agree with any proceedings by TeleTech. I want an in-
vestigation in this matter.” Butry testified about his exit interview as follows (Tr. 89–90):

I just felt that I guess I knew this was coming and I felt
horrible about it. . . While Tony was writing, I guess, on
the termination notice or whatever, when Tony was writ-
ing that, I told Tony, I says “I think we both know the real
reason why I got fired.” And Jim [LaMoy] leaned back
and that’s when he softly spoke the word “Union.”

The General Counsel’s position agrees with Butry’s comment that his union activity—not
his working record—was the real reason for his discharge. In this regard, the record shows that
Butry was a union supporter and activist. In November 1998, he contacted the Union, Commu-
nications Workers of America (CWA) in Washington, D.C. which referred him to Jeff Lacher,
the Union’s district organizing coordinator. Lacher met Butry at his home in December 1998.
Butry spoke to 20 fellow employees and invited them to a union meeting in January 1999 held
at an employee’s home. About 14 employees attended. The meeting was held in secrecy,
because as Butry testified, “fearing for jobs, we were very selective and secretive on who we
asked” (Tr. 41). Butry and his fellow employees held another meeting in January at a local
union hall to which about 70 people were invited. Only about 15 employees actually showed
up. The attendance was disappointingly low, so Butry and his friends decided to hold a party
with flyers announcing a “March madness” party. Butry and other employee organizers
distributed about 60 flyers. Although the party did not feature the Union, Butry used the
occasion to solicit for the Union many of the 50 employees who had attended the March
madness party.
Within a few days of the March madness party, The Weekly Memo, a publication distrib-
uted to the employees by management, featured a reminder that the solicitation and distribution
of leaflets required company approval.
Following Butry’s termination, the Union’s campaign continued. In late April and early
May 1999, for a period of about 4 weeks, Lacher and other union members stood outside
Respondent’s facility on a sidewalk to solicit employees and pass out union literature. On April
27, 1999, Lacher and several other employees observed a security guard for the Respondent
standing at the entrance as follows (Tr. 192):

Yeah, a few minutes after we got there, a person in
kind of a black or navy suit jacket with a red tie, that
looked like some kind of official position there, he had a
little marker on him, stepped out of the front doors and
stood kind of in the middle of that alcove area, watching
us, looking directly at us.

People would walk by and kind of wink to us, ac-
knowledging that we were there, but they, you know,
would kind of signal that we’re not coming over now.
And we assumed it was because of the security guard, so
we decided to move down to the very end of the road,
which was quite a distance from the door at that point.
Even though Lacher and the employees had moved, the security guard continued to observe
them and the following ensued (Tr. 195):

So I asked him if he was a security guard. He said yes,
and began walking closer to the door, so I asked him “Is
this where you’re normally posted?” He says, “No, I’m
usually on the other side of the building” . . . So I ex-
plained, you know, “We are Union representatives and it is
illegal for management to have you out here surveilling
us.” And his reaction was kind of to throw up his hands
and say “Well, I didn’t” and then he turned around and
walked inside.

TELETECH HOLDINGS, INC. 407
Shortly thereafter, Paul Hennigan, Respondent’s manager for safety and loss prevention,
confronted Lacher saying, “I hear that you threatened my security guard” (Tr. 196). The two
men argued until one of them called the police. The local police arrived, spoke to the individu-
als and left without taking any action.1
Another union-related incident occurred in late April 1999. Donna Woods, a former em-
ployee, testified that Supervisor Melinda Scott approached her at her workstation, known as a
“pod,” with a paper pad and a union leaflet. Woods described the encounter as follows (Tr.
152):

She started on the other side. At first I didn’t realize
what she was doing until she came around to my side. She
had a pad of paper with her and a flyer that had been, they
had been passing out, and the Union had been passing out
about the meeting that night. She was, would look, we all
had name plates up on the desk. She looked at the name-
plate, wrote my name down and asked if that was my
name. I said yes. I didn’t know what she was doing at the
time, so she sat down and showed me the flyer about the
Union. She said, she asked me if I was aware of what was
going on. I said yes. And, at that time I could see what
she had written on some of the other employees she had
already spoke to. Basically, she was writing down com-
ments on their views of the Union. She came right out and
told me that, in her opinion, a call center environment does
not need a union and then asked me what my opinion was.
While she was going through that, I could read that she
had written down on some people “It doesn’t affect them,”
“They don’t care about it.” I didn’t see what she wrote on
mine, but I didn’t really give her an answer one way or the
other, if I was for it or against it.

Finally, the record contains the testimony of Jeffrey Paonessa, employed by TeleTech as a
coordinator, who initially failed to appear as a witness pursuant to a subpoena and whose
testimony was finally compelled by a subpoena enforcement action. As a witness, Paonessa
gave inconsistent and vague answers. His demeanor was uncooperative. His prior deposition
and his unsigned affidavit were made part of the record (GC Exh. 28). Paonessa testified, as is
also reflected in his prior disposition, that his Supervisor Edward Everett told the employees
that union literature was not permissible during job work hours. Paonessa also testified, albeit
reluctantly, that the substance of his unsigned affidavit was true (GC Exh. 28). However, he
also stated, referring to the affidavit (Tr. 418): “I disagreed with the whole thing, considering
the circumstances.” And when asked whether his prior statements were untrue, he responded:
“Like I said to you previously, it was just strictly hearsay . . . [h]earing something through the
grapevine.” I found the entire testimony of this witness to be so evasive and unresponsive that
it lacked the degree of credibility and trustworthiness, necessary for any evidentiary findings.
Analysis
According to the General Counsel, the Respondent’s handbook, titled TeleTech Welcome
Book, contains two provisions, which violate the employees’ Section 7 rights. The first is a
restriction on the distribution of literature without proper authorization and the other the
“unauthorized appearance on the premises while off duty” (GC Exh. 18). Acknowledging that
those statements do not necessarily reflect the Respondent’s official policy, and that the Re-
spondent has a formalized policy on solicitation and distribution of literature, the General
Counsel’s nevertheless argues that the statements are coercive because the messages in the
handbook are generally disseminated to the employees. While it is true that employee’s
protected concerted activity may be restrained by a rule prohibiting the distribution of union

1 This episode is alleged to show antiunion animus, but was not al-
leged as a violation of the Act.
literature or a restriction on access to company premises, a cursory examination of the hand-
book informs the reader on page one:

This publication does not include official TeleTech policies and procedures. For specific an-
swers on those, please contact your immediate supervisor or a human resources representative.
They will be happy to answer your questions and provide you with any information you need.

Again, under the general heading of “Professional Standards” and “general guidelines”
where the alleged violative restrictions are found, the lead paragraph states as follows:

This booklet does not catalog Teletech’s policies and procedures. Your immediate supervisor
or human resources representative has access to Teletech’s Policies and Procedures document
and can answer specific questions. Some of those policies will be given to you and discussed
during orientation. The following abbreviated guidelines are offered here to help you get started
on the right foot.

With such clear and unambiguous disclaimers, it is clear that the professional standards are
intended to serve as general guidelines only and expressly do not reflect the Company’s official
policies. The General Counsel concedes that the Respondent’s formalized policies on solicita-
tion and distribution of literature do not offend the Act.
Under these circumstances, it is difficult to imagine how these guidelines have any coercive
impact on the employees’ Section 7 rights. I, accordingly, dismiss these allegations.
The complaint next alleges that the Respondent unlawfully interrogated and polled the em-
ployees about their union sympathies. Employee Donna Woods’ testimony shows that Super-
visor Melinda Scott approached Woods at her work station in April 1999 holding a union
leaflet which the employees had passed out the night before. Scott told Woods that the Com-
pany does not need the Union. Scott then asked Woods what her opinion was. Woods uncon-
tradicted testimony shows that Scott carried a writing pad. Written on it were the names of the
other employees and their comments about the Union. Scott also made notes about Woods’
reaction, although she had not expressed her opinion about the Union one way or another. The
testimony clearly shows that Scott had methodically approached the employees, expressed her
opposition to the Union, then questioned them about the Union, and recorded their comments.
The employees’ comments that Woods could read appeared ambivalent, suggesting a reluctance
on the part of the employees to freely express their true reaction. Considering the totality of the
circumstances, it is clear that Respondent’s conduct consisting of interrogating and polling the
employees about their union sympathies was coercive. Rossmore House, 269 NLRB 1176
(1984). I, therefore, find that the Respondent violated Section 8(a)(1) of the Act, as alleged in
the complaint.
The discharge of Frank Butry in violation of Section 8(a)(1) and (3) of the Act is vigorously
contested by the Respondent and for good reason. Although the General Counsel has shown
that Butry was the instigator of the union activity in November 1998 and was ultimately
discharged in April 1999, the record is not persuasive that the Respondent knew of Butry’s role
as a union activist or that the Butry’s discharge was motivated by his union activity. The record
shows that Butry had contacted the Union in November 1998, that he organized and attended
three union meetings, one in December 1998, the other two in January 1999. According to his
testimony, Butry had acted in secrecy, avoiding any participation by supervisors or members of
management. His March madness party featured the college basketball championship and
carefully avoided any publicity of the ulterior motive of the union organizers. According to
Butry, his supervisor may have seen the flyer for the party. But the flyer did not say anything
about the Union. Butry’s discharge, occurred on April 1, 1999, well prior to any further union
activities by the employees. The record therefore does not show that the Respondent had any
knowledge of Butry’s union activity. In this connection, I have not relied upon the hearsay
testimony of Nick Cumbo, an employee, to the effect that another employee had told him that
the Respondent had a list of 10 union organizers, nor Butry’s testimony expressing an assump-
tion that a telephone call from the Union might have been overheard by management. Indeed,
as to knowledge, the General Counsel relies upon Butry’s testimony that supervisor LaMoy
silently whispered the word “union” at the exit interview in April, when Butry inquired about
the real reason for his discharge.
LaMoy was called as a witness, and he denied silently mouthing the word “Union.” Faced
with a direct conflict in the testimony on a crucial point, I credit LaMoy, although I believe that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
Butry was generally a credible witness. First, I believe that it is exceedingly difficult to read a
person’s lips accurately so as to know whether the single word, union, was spoken. Second,
LaMoy who was not involved in the decision to discharge Butry, had no reason to participate in
the conversation or express an opinion. Third, I found LaMoy’s brief testimony more plausi-
ble, because he as a supervisor would more likely side with management than with Butry.
Moreover, the record also shows that the Respondent had a plausible and convincing basis for
Butry’s discharge. As explained above in detail, it is clear that Butry’s performance evalua-
tions fell repeatedly below acceptable levels. His supervisor, Quarantillo, made several at-
tempts to boost Butry’s scores by training him. Butry admitted that his scores were very low.
They had not only failed to improve but had actually deteriorated. The General Counsel
concedes that there is no evidence that the scores were somehow manipulated. Such a hypothe-
sis would, in any case, be difficult to prove given the documentary evidence showing that
different “specialists” randomly evaluated the advisors. The record further shows that Butry
ranked “sixth from last” out of 122 advisors and that most of the lowest 5 were no longer
employed (R. Exh. 14). But even assuming that the Respondent had made out a prima facie
case, the Respondent has carried the burden to show that it would have terminated the employ-
ment of Butry even in the absence of any union considerations. Wright Line, 251 NLRB 1083
(1980). The Respondent showed that the Respondent’s quality assurance department ranked its
more than 100 advisors at the Niagara Falls Center in March 1999, and that Butry was 6th from
the last. Even though Lynn Jasper, Respondent’s quality assurance manager, could not specifi-
cally identify two of the five advisors who had ranked below Butry, she believed that all five
were no longer employed. Butry had consistently the lowest scores on Quarantillo’s advisor
team, yet Butry conceded that his supervisor tried to help him to improve his scores until the
very end. Butry also conceded that he had an awful record. Under these circumstances, it is
clear that the 8(a)(1) and (3) allegations in the complaint should be dismissed.
With respect to the remaining allegations in the complaint, the issues relating to supervi-
sor’s Edward Everett were the subject of the testimony by Paonessa. For the reasons already
discussed, I discredited his testimony, and I accordingly dismiss those allegations. As to the
other issues raised by the General Counsel’s amendment to the complaint in paragraph 5(d), I
find that the amendment was superfluous, because its sole purpose was not to add an allegation
of a violation of the Act, but to show antiunion animus, as a result of the conduct of Paul
Hennigan, TeleTech’s head of security. The General Counsel has demonstrated antiunion
animus in connection with the 8(a)(1) violations, which were considered in connection with the
discharge of Frank Butry.
CONCLUSIONS OF LAW
1. The Respondent, TeleTech Holdings, Inc., is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, CWA, is a labor organization within the meaning of Section 2(5) of the Act.
3. By coercively interrogating and by the systematic polling of employees regarding their
union sympathies, the Respondent violated Section 8(a)(1) of the Act.
4. The Respondent did not commit any other violations of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall rec-
ommend that it be ordered to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]