THE OHIO BELL TELEPHONE COMPANY

National Labor Relations Board - Administrative Judge Opinions

Mar 26, 2020

09-CA-233901 (N.L.R.B. Mar. 26, 2020)

JD–14–20
Cleveland, OH

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, DC
THE OHIO BELL TELEPHONE COMPANY

and Case 09–CA–233901
RICHARD WHITMER, an Individual
Zuzana Murarova, Esq.,
for the General Counsel.
Steven J. Sferra, Esq.; Jeffrey A. Seidle, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried in Cincinnati, Ohio,
on July 23, 2019. Rick Whitmer (“the Charging Party/Whitmer”), filed the initial charge in case
09–CA–233901 on January 10, 20191, and the first amended charge was filed on March 8, 2019.
On March 26, 2019, the second amended charge was filed. The Acting Regional Director for
Region 9 of the National Labor Relations Board (“NLRB/the Board”) issued the complaint and
notice of hearing against the Ohio Bell Telephone Company (“the Respondent”) on April 8, 2019.2
The Respondent filed a timely answer denying all material allegations.
The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (“NLRA/the Act”) when about on or about September 25 and 28, and October 5, 8,
11, 12, and 16, the Respondent issued attendance occurrences and placed attendance punctuality
discussion documents in several employees’ files and, or issued written warnings to several
employees because they engaged in concerted protected activities.
1 All dates hereinafter are in 2018, unless otherwise indicated.
2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “CP Exh.” for Charging Party’s exhibits;
“GC Br.” for General Counsel’s brief; “R. Br.” for Respondent’s brief; and “CP Br.” for Charging
Party’s brief.
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2
In the posthearing brief filed on September 9, 2019, counsel for the General Counsel noted
that the complaint inadvertently failed to specify that “employee Anthony Donnelly (“Donnelly”)
received discipline for briefly wearing his street clothes to complain about the condition of his 5
company-issued uniforms on about October 12, 2018 in violation of Section 8(a)(1) and (3) of the
Act.” (GC Br. 20.) The Respondent did not file an objection. Based on the General Counsel’s
argument and the evidence, I will permit the amendment because it is sufficiently related to
existing allegations, has been fully litigated, and the Respondent would suffer no undue prejudice.
10
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the parties, I make the following
FINDINGS OF FACT
15
I. JURISDICTION
The Respondent, a corporation headquartered in Cleveland, Ohio, provides
telecommunications services to customers throughout Indiana, Michigan, Ohio, Wisconsin and a
portion of Illinois.3 During the calendar year ending March 1, 2019, the Respondent in conducting 20
its operations provided services valued in excess of $50,000 for enterprises within the State of
Ohio which are directly engaged in interstate commerce. The Respondent admits, and I find, that
at all material times it has been an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
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II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operation
The Respondent, a subsidiary of AT&T, provides television, internet, and phone services 30
to businesses and residential customers in the five-state Midwest region of Ohio, Indiana,
Michigan, Wisconsin, and parts of Illinois. (Tr. 9–10.) Among other locations, the Respondent
has offices and places of business in Columbus and Dublin, Ohio. Andy Bentz (“Bentz”) was the
Director Internet and Entertainment Field Service (“IEFS”) for Ohio. During the period at issue,
Shawn Jenkins (“Jenkins”) was the area manager network services, technology operations IEFS. 35
Since March 2014, Stephen Hansen (“Hansen”) has been the director of labor relations. His
supervisor, Randy White (“White”), is the vice president of labor relations for the Midwest states.
In late 2006, the Respondent launched U-Verse, “a terrestrial, i.e., underground service that
provides IP-based video, television content, high speed internet and voice service to residential 40
homes via the IP network. In January 2007, Respondent began to hire premises technicians in the
Columbus area to install and repair U-Verse services to customers’ homes.” (Tr. 10–11.) The
3 During the hearing, the parties interchangeably used the names “Ohio Bell” and “AT&T” to
refer to the Respondent.
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premise technicians (“prem techs”) are assigned to various garages throughout the state, including
the facilities at issue, the Respondent’s Ternstedt garage (“Ternstedt”) in Columbus, Ohio and the
Dublin garage (“Dublin”) in Dublin, Ohio. At the beginning of their work day, the prem techs
come to the garages to get their AT&T vans and tools, meet with supervisors if needed, and leave
for a day in the field completing work for customers.4 During the period at issue, Scott Jones 5
(“Jones”) and Corey Peters (“Peters”) were supervisors at Ternstedt. Ed Griffin (“Griffin”) and
Renee Matney (“Matney”) supervised the Dublin location.5 Jones, Peters, Griffin and Matney each
supervise between 12 to 20 prem techs.
The Communications Workers of America, Local 4320 (“the Local”) is a subdivision of 10
the Communications Workers of America, International Union, AFL–CIO (“CWA”). The CWA
has at all material times been the exclusive bargaining representative of the “bargaining unit
employees who work in the company’s operations throughout the traditional five state Midwest
region of Indiana, Michigan, Ohio, Wisconsin, and a small portion of Illinois.” (Tr. 9–10.) The
parties have entered into successive collective-bargaining agreements (“CBA”), the most recent 15
agreement was effective April 12, 2015 through April 14, 2018. “[E]ffective June 14, 2006, and
the result of the negotiations conducted during May 2006, Respondent and other affiliated entities
executed a memorandum of agreement with CWA, known as the premise technician agreement
identified as Appendix F to the part[ies]’ CBA, setting forth the wages and terms and conditions
of employment for the newly created job title of premises technician.” (Tr. 10.) After the 20
expiration of the most recent CBA, the bargaining unit members began working without a contract.
Consequently, the parties engaged in negotiations throughout 2018.
Since fall 2013, the Charging Party has been employed as a prem tech at Ternstedt; and
continued to work there until the spring of 2019, when he went on leave for a medical condition. 25
At all relevant times, Jones was Whitmer’s supervisor.
B. The Respondent’s Dress Code Policy
The Premises & Wire Technician Guidelines (“the Guidelines”) govern workplace30
expectations for prem techs and wire technicians; and was last updated in April 2016. The
Guidelines were in effect during the period at issue. Included in the Guidelines is a section setting
forth the terms of the mandatory Branded Apparel Program (“BAP”) for prem techs and other
employees. According to the Guidelines, the BAP is “to ensure that AT&T technicians project
and deliver a professional, business-like image to our customers and community.”6 The Guidelines 35
require that “All technicians will be prepared to work at the start of the work day, in proper branded
apparel.” Moreover, section 14.2 of the Guidelines states:
4 After the end of their work shifts, an unknown number of prem techs are allowed to house their
AT&T vans at their homes. The company-provided vans bear the AT&T logo on multiple sides.
5 Manager Network Services, Internet and Entertainment Field Services is the official title for
Jones, Peters, Griffin, and Matney.
6 Premises Technician Guidelines, sec. 14.1
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BAP is mandatory for all SD&A Premises & Wire Technicians on work time. No other
shirt, hat, pants/shorts, shorts or jacket will be worn without management approval. Shirts
must be tucked into the technician's pants/shorts at all times. Technicians must wear a belt,
threaded through the pant/short belt loops. Pants/shorts must be worn around the waist with
no undergarments showing.5
(R Exh. 3.) During a period designated by the Respondent, prem techs are allowed to order
company-branded apparel through a company approved online vendor. The Respondent gives
prem techs money to order five pairs of branded navy pants, five pairs of polo shirts with the
AT&T logo on them, and in some circumstances a hat, jacket, or socks.7 Management has been10
flexible in allowing employees to wear nonbranded coats or jackets in severe cold weather.
Supervisors also have allowed nonbranded pants if they are neutral blue, black or navy, and
nonbranded hats as long as they are also plain and without a logo.8 Prem techs are not allowed to
wear denim jeans. Pursuant to the Guidelines, “If the clothing or boots are deemed inappropriate,
the technician will be sent home unpaid. This will be considered an unexcused absence until the 15
technician returns to work in the proper attire.” (R. Exh. 3.) While working in the field, prem techs
must also wear AT&T identification badges, which include their photograph and the Respondent’s
logo.
The Respondent developed the Midwest Manager’s Guide to Corrective Action20
(“MMGCA”) to instruct supervisors on the appropriate disciplinary actions to take against
nonmanagement employees for work infractions. Included in the MMCGA is a directive that prem
tech supervisors are authorized to issue a written warning and a 1-day suspension to prem techs
who failed to comply with the BAP. 9 Generally nonconforming coats and pants, so long as they
are the appropriate color and style, have not resulted in disciplinary action against prem techs.25
Witnesses agreed that if supervisors observed prem techs in the garage (or the field) wearing
nonconforming hats, they would usually instruct them to remove the hat, and the prem tech would
comply.
30
7 There was conflicting testimony about the frequency with which prem techs were allowed to
order company-branded apparel.
8 At least one supervisor testified that he does not allow prem techs to wear nonbranded hats. This
will be discussed in more detail later in the decision.
9 Testimony differs in some respects on this count. Hansen testified the MMGCA lists the expected
discipline but conceded on cross-examination that he had no direct knowledge of it being followed.
(Tr. 270–272). In his 3 years as a prem tech and steward, Aaron VanVickle (“VanVickle”) testified
that he could not recall a single instance of discipline related to dress code violations. (Tr. 164.)
Matney and Griffin acknowledged that for the dress code violations they have observed, they have
not issued discipline. (Tr. 304, 309; Tr. 335–336.) Matney, Griffin, and Jones also declined on
various occasions to discipline three employees who wore jeans to customers’ homes. (Tr. 292,
304, 320–321.)
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C. September 7 Premise Technician Demonstration
During a Friday morning “huddle” in August 2018, the prem techs were notified that
effective September 2018, the Respondent would implement a mandatory 6-day workweek.10 The
prem techs complained: (1) the window to order apparel was not offered with sufficient frequency; 5
and (2) the “wear and tear” on the branded clothing and vendor mistakes in the ordering process
left employees with an insufficient number of branded items to wear, especially for a 6-day
mandatory workweek. Prem techs claim that for several years leading to the events of September
7, they made management aware of the complaints about torn and tattered branded apparel and the
insufficient number of opportunities to order branded apparel. However, they felt management’s 10
responses were ineffective and apathetic with regard to resolving the BAP problems. On the
whole, management denied that prior to September 7, prem techs had complained to them about
the poor quality of their branded clothes. 11
As a result of the announcement about the mandatory 6-day workweek, several of the prem 15
techs began to communicate among themselves about organizing a collective action to protest the
change.12 A prem tech (name unknown) suggested coming to work on Saturday, September 8 in
“street clothes” to indicate their displeasure to management about the change. However, Whitmer
recommended engaging in the action on Friday (September 7), “because then everybody will see
it. They will hear us, and maybe we can get something done, and we can get the uniforms taken 20
care of.” (Tr. 53.) Whitmer spoke with several prem techs in Ternstedt and Dublin encouraging
them to participate in the protest on September 7;13 and other prem techs also spread word of the
idea to those in other garages. Ultimately, only about 30 prem techs from Ternstedt and Dublin
participated in the protest. The goal of the September 7, protest was described differently by the
witnesses. The various articulated goals were to draw management’s attention to the prem techs’ 25
objection to the mandatory 6-day workweek; force management to acknowledge and resolve
10 Supervisors at Terndstedt and Dublin held weekly morning meetings with prem techs on Fridays
to discuss safety items, and other work-related issues. The meeting is called a “huddle” and lasts
from 30 minutes to an hour.
11 Whitmer, Tom Phillips (“Phillips), VanVinckle, and Ryan Stephens (“Stephens”) heard
complaints from coworkers to this effect; and they had conversations with management so felt
management was aware of the problem. They also testified that their first-level supervisors would
hear their complaints, but then blame bargaining or other issues for the delay, or simply fail to act.
Matney, however, denied ignoring complaints about the branded apparel but instead would go
through the process to have them replaced by the manufacturer. She further claimed that no one
on her team ever came to her with an issue with branded apparel in 2018 up until September 7.
Griffin recalled only one complaint, which was resolved within a couple of days. Jones stated he
did not recall whether Whitmer ever complained to him about his branded apparel.
12 Communication about a possible job action to protest the mandatory 6-day workweek occurred
in the form of texts and, or telephone calls.
13 Whitmer specifically recalled speaking about the possible job protest with VanVickle, McNess
(first name unknown), Phillips, Jalen Smith (“J. Smith”), Tim Hall (“Hall”), Derrick Kinsey
(“Kinsey”), Hollis Brown (“Brown”), and Stephens.
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problems prem techs had getting uniforms; show unity during contract negotiations; and give
validity to their collective “irritation and outrage”. (Tr. 54, 169, 206.)
On September 7, the huddle was scheduled to begin at 8 a.m. at Ternstedt and Dublin for
all the crews. Approximately 30 prem techs came to work at Ternstedt and Dublin in jeans and, 5
or other noncompliant clothing.14 The Ternstedt supervisors, Jones and Peters, appeared for the
Friday huddle for their respective crews and noticed that some of the prem techs were wearing
jeans. About 8 to 12 prem techs on Jones’ crew were in nonbranded apparel, and an unstated
number in Peters’ crew. Instead of starting the huddles, Jones and Peters left the meeting room
to confer with Shawn Jenkins (“Jenkins”), area manager, about what action to take to address the 10
situation. Jones acknowledged, “I think we [Jones and Peters] recognized that it was a possible
work action. We weren’t sure.” (Tr. 316.) Jones and Peters proceeded with the huddle until
about 40 minutes into the meeting when Jenkins responded by instructing them to tell the prem
techs to change into their company-branded clothes; and if they had to leave work to get their
clothing, they would be on unpaid time for that period.15 Consequently, Supervisor Peters 15
instructed the prem techs in his crew in nonbranded apparel to put on their branded apparel and
get to work. Jones gave a similar instruction to his crew. Eight of the 15 prem techs who wore
jeans and, or other nonbranded clothes to the huddle had company-branded apparel in their work
or personal vehicle. They changed into their branded apparel in the garage. Ultimately, all of the
Ternstedt prem techs in nonbranded apparel, except Whitmer, changed into company-branded 20
apparel and returned to work the same day. Whitmer went home for the remainder of the day.
On September 7, prem techs arrived in the crew rooms at Dublin for the huddle with their
respective supervisors, Matney and Griffin. Matney started the huddle with her crew but noticed
that all except one of the prem techs were wearing jeans. Consequently, she briefly stepped 25
away from the meeting to contact Area Manager Travis Vandermark (“Vandermark”) for
guidance on addressing the situation. Matney continued with the meeting while waiting to hear
from Vandermark. Approximately 10 minutes later she received instructions on handling the
matter; and told the prem techs that those in nonbranded apparel had to change into their
company-branded apparel ready to work. The prem techs complied. However, prem techs who 30
had to leave the premises to change into proper clothing were not paid for that time.
Prior to starting the huddle on September 7, Griffin saw several prem techs enter the crew
room in jeans. He began the meeting but about 15 minutes later Jason Cook (“Cook”), assistant
to the director, and Matney called him into the hallway to tell him to notify all the prem techs 35
14 Although the testimony is undisputed that about 30 prem techs came to work on September 7 in
nonbranded apparel, the witnesses’ recollection differed from the documentary evidence on the
exact number of prem techs in each crew was present on September 7 and the number of prem
techs who participated in the action. (GC Exhs. 2–8.)
15 This differs from Whitmer’s statement in which he asserted that Scott and the managers were on
their phones when the meeting was scheduled to start. According to Whitmer, Scott walked into
the meeting about 8:40 a.m. and told employees to get into their branded apparel and go to work.
The prem techs complied, except for him. Whitmer went home and did not return until the next
day.
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that they had to change into company-branded apparel before they could begin work. He
reentered the crew room and relayed the directive to the prem techs. All of the prem techs on his
crew had company-branded clothes in their vehicles or on the premises and were able to quickly
change and go to work. Between Ternstedt and Dublin, management estimates that the
Company lost about 25 hours in work productivity because of the action.165
D. Discipline of Involved Premise Technicians
Hansen learned of the September 7, prem techs’ protest while he was on the bargaining
team for a new CBA and saw a post about it on the Respondent’s internal managers’ website. 10
Bentz also telephoned Hansen that at “a couple of garages” there were a large number of
employees who came to work on September 7, in nonbranded apparel. Hansen discussed the
situation with his supervisor, Randy White (“White”), and other [managers] on the bargaining
team. Their immediate response was not to pay the prem techs who came to work on September
7 for the time they needed to change into their company-branded apparel. Factors that went into 15
this decision were if they would allow employees to work if they did not have the proper branded
apparel and if the answer to that question is no, then those employees should not be paid because
they did not come to work prepared to work.17 Hansen believed the September 7 action was a
violation of the prem tech Guidelines, explaining they were concerned it would spread to other
garages in other states at a particularly sensitive time during contract negotiations. However, 20
Hansen admitted that he realized the prem techs coming to work on September 7 was “a planned
event. . . .” (Tr. 260–261.) After discussing the situation with White and his “peers,” Hansen
recommended to Bentz that the prem techs who wore nonbranded apparel to work on September
7, receive a written warning and 1-day suspension. He also discussed his disciplinary
recommendations with business unit managers, Liz Millet (“Millet”) and Valerie Hunter25
(“Hunter”). According to Hansen, due to the ongoing bargaining over a new CBA, management
tried to be lenient in meting out discipline which is why they settled on the 1-day suspension and
verbal warning.
On or about September 28, Scott began meeting individually with prem techs and Whitmer,30
as their union steward, to interview and discipline them about their action on September 7. Jones
and Whitmer, however, quickly agreed to allow Jones to meet collectively with and issue
documented verbal warnings to all except two employees who participated in the September 7
action. (GC Exh. 5.)18 Whitmer was also issued the same discipline in his capacity as a prem tech
because he wore jeans to work on September 7. Jones inadvertently failed to discipline Paul 35
16 Hansen testified that the lost in work productivity was based on an estimate that included the
overtime some prem techs had to work to cover for others who were not available to work. He
also claimed that some customers had to be delayed or rescheduled. (Tr. 278.) He conceded later
on cross-examination that he did not have any first-hand knowledge of any customer or employee
impacted by the protesting employees’ actions. (Tr. 280.)
17 Hansen insisted that the prem techs were treated no differently than in other instances when
employees were sent home without pay to retrieve a driver’s license, company identification card,
work boots, or other items necessary for the performance of their duties.
18 The verbal warning letters list either Peters or Jones as the letters’ author. (GC Exh. 5.)
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Holmes (“Holmes”) and Jeremy Mitchell (“Mitchell”) because they were not working at Ternstedt
on September 7. He never corrected the error. Last, Jones acknowledged that he does not recall
ever disciplining anyone for nonconformity with the company-branded apparel requirement.
On October 5, 8, 11, 12, and 16, Matney issued discipline for both crews in the Dublin 5
garage because Griffin was on paternity leave. She met with each prem tech and asked them a
series of questions before issuing the punishment. She retained notes of the interviews showing
that several of the prem techs told her they wore jeans on September 7 to protest conditions of
employment. (GC Exh. 8.) Although Matney initially denied that any of the prem techs told her
the reason they wore jeans on September 7, she later acknowledged that during the disciplinary 10
interview on October 5, a few employees informed her that they wore jeans as part of a union
effort. (Tr. 306–309; GC Exh. 8.) In a meeting with Matney, VanVickle was issued discipline
later than the other prem techs because he was on vacation. (GC Exh. 6.) Similar to Jones, Matney
testified that she has never disciplined a prem tech for wearing non-apparel pants that closely
resemble the branded pants. Although Matney has told prem techs wearing nonbranded hats to 15
remove them, she has not disciplined them for it. Griffin has, however, in the past issued
documented discussions (“coaching”) when “a couple” of prem techs were caught by him wearing
nonbranded hats. (Tr. 344.) In response to the prem tech’s action on September 7, the Respondent
also placed attendance punctuality discussion documents in the “files” of employees from both
Tendstedt and Dublin who had to leave work to get their uniforms before they could begin work. 20
The union filed grievances disputing the disciplinary actions issued to all of the prem techs
for their actions on September 7. According to the Respondent, it agreed to remove the attendance
discussions from the employees’ files. However, the General Counsel contends that the grievances
were denied at the third step of the grievance process and have not been resolved. Moreover, the 25
General Counsel insists the grievances cannot be arbitrated because the CBA has expired. (GC Br.
11; Tr. 61–62, 270, 281; GC Exhs. 2, 3.)
III. DISCUSSION AND ANALYSIS
30
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 to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection.” See Section 7 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 35
the rights guaranteed in Section 7 of the Act.
In Meyers Industries (Meyers I), 268 NLRB 493 (1984), and in Meyers Industries (Meyers
II), 281 NLRB 882 (1986), the Board held that “concerted activities” protected by Section 7 are
those “engaged in with or on the authority of other employees, and not solely by and on behalf of 40
the employee himself.” However, “the activity of a single employee in enlisting the support of his
fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary
group activity.” Whitaker Corp., 289 NLRB 933 (1988) (quoting Owens-Corning Fiberglass
Corp. v. NLRB, 407 F.2d. 1357, 1365 (4th Cir. 1969). Individual action is concerted if it is engaged
in with the object of initiating or inducing group action. A conversation can constitute concerted 45
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activity when “engaged in with the object of initiating or inducing or preparing for group action
or [when] it [has] some relation to group action in the interest of the employees.” Meyers II, supra,
281 NLRB at 887 (quoting Mushroom Transportation Co., 330 F.2d 683, 685 (3 Cir. 1964)). The
object of inducing group action, however, need not be expressed depending on the nature of the
conversation. See Sabo, Inc. d/b/a Hoodview Vending Co., 359 NLRB 355, 358–359 (2012) 5
(vacated but incorporated by law Hoodview Vending Co., 362 NLRB 690 (2015). Moreover,
Meyers I and II does not require that concerted activity be well-organized or effective, it needs
only be engaged in for other employees for mutual benefit. See also Stephens Media, 356 NLRB
661, 679 (2011) (finding the wearing of red arm bands to be protected concerted activity even
where no evidence was offered showing management was aware of their purpose). 10
1. Charging Party and other prem techs engaged in concerted protected activity
I find that the evidence establishes Whitmer and the other prem techs engaged in concerted
activity. It is undisputed that the prem techs and several union stewards at Ternstedt and Dublin15
discussed among themselves that the Respondent had failed to address their complaints about
giving them a sufficient supply of BAP-compliant clothing, especially with the mandate to work a
mandatory 6-day workweek. After talking with union stewards and coworkers on ways to bring
their complaints to management’s attention, the prem techs decided to take collective action and
wear street clothes to the huddles on September 7. Whitmer’s and the prem techs’ actions are the 20
epitome of protected union and concerted activity because they came together in an attempt to
force management to address their complaints about an insufficient supply of company-branded
apparel. See New River Industries, Inc., 945 F.2d 1290, 1294 (4th Cir. 1991) (quoting City
Disposal Systems, Inc., 465 U.S. 822, 830 (1984) (under the Act the term “concerted activity”
“clearly embraces the activities of employees who have joined together in order to achieve 25
common goals.”).
I also find that despite the Respondent’s protestations to the contrary, it was aware that the
prem techs were engaging in a concerted protest. Hansen testified that he believed the prem tech’s
September 7, action was “a planned event. . . .” (Tr. 260–262.) Hansen noted various 30
demonstrations had occurred in the midst of the parties bargaining over a new contract. In 2018,
the Respondent’s other Midwest employees had worn union buttons, picketed, and engaged in
various demonstrations to protest workplace conditions. Hansen’s knowledge of the prem techs’
action being a concerted activity is buttressed by his admitted concern, in light of the sporadic
2018 employee demonstrations, that the prem techs’ actions could spread to other garages. 35
Likewise, Jones testified that he and Peters, “recognized it was a possible work action. We weren’t
sure.” (Tr. 316.) Matney admitted that during the disciplinary interviews, a few prem techs told
her they wore jeans on September 7 to protest working conditions (i.e., insufficient supply of
uniforms and the mandatory 6-day workweek). (Tr. 306–307; GC Exh. 8.) See Kysor Industries
Corp., 309 NLRB 237 (1992) (finding that the employer knew that employees who assembled at 40
a supervisor’s desk to seek clarification of their work assignments were engaged in protected
concerted activity notwithstanding that the employees did not explain their confusion was related
to two notices the employer recently issued.).
45
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2. Charging Party and other prem techs concerted activity was protected
Pursuant to section 7 of the Act, concerted activity is protected if it is undertaken for the
mutual aid or protection of the employees, 29 U.S.C. § 157 (1976). However, exceptions exist,
including where concerted activity constitutes a partial strike or slowdown. First National Bank of 5
Omaha, 171 NLRB 1145, 1149 (1968) (“A concerted stoppage, or strike . . . which is ‘partial,’
‘intermittent,’ or ‘recurrent’ is commonly cited as a type of unprotected activity”). Employees
engage in an unprotected partial strike by “refusing to work but remaining in their work areas or
withholding their labor from certain portions of their work while continuing to perform other
portions.” Johnnie Johnson Tire Co., 271 NLRB 293, 265 (1984). Partial strikes are not protected 10
by the Act because they are attempts by workers to establish working conditions without taking
on the risk of the usual consequences associated with a legal strike, such as “loss of pay and risk
of being replaced.” First National Bank, 171 NLRB at 1151.
Based on the evidence I find that the prem techs’ action was protected under the Act. Under 15
the “mutual aid and protection” clause of the Act, employees are protected if the engage in an act
for the common purpose of improving their “terms and conditions of employment or otherwise
improve their lot as employees through channels outside the immediate employee-employer
relationship.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). There is a myriad of working
conditions that employees may seek to improve, including the imposition of dress codes. See New 20
River Industries, Inc., supra at 1294 (“The conditions of employment are sufficiently well
identified to include . . . dress codes . . . and the like.”) Accordingly, I find that the September 7,
protest pertained to their working condition (effort to obtain a sufficient supply of branded
apparel); and therefore, was for their “mutual aid and protection”. The question then becomes
whether the prem techs’ action lost the protection of the Act.25
The Respondent argues that the prem techs’ action on September 7 lost the protection of
the Act because it is “a classic partial strike.” (R. Br. 16.) The reasons the Respondent cites to
support its position are: (1) branded apparel is necessary to perform their positions and the prem
techs arrival at work without the apparel show they refused to perform one of their assigned duties; 30
(2) most of the prem techs who participated in the action, changed into company-branded apparel
immediately when directed because they understood the rule did not allow them to work in jeans;
and (3) case law supports the Respondent’s position that by wearing jeans to work the prem techs
were engaged in an unprotected partial strike. The General Counsel counters the Respondent’s
position by arguing: (1) even a presumptively valid rule violates the Act if, as in the present case, 35
it is applied disparately; (2) when instructed to change into branded apparel, every prem tech
except for Whitmer immediately complied; and (3) the Respondent was aware of the concerted
protected nature of the prem techs’ action.
I do not find the Respondent’s arguments persuasive. According to the Respondent’s 40
witnesses, prem techs have to wear branded apparel so that customers are able to readily identify
them as AT& T employees. Therefore, they need to be in branded apparel when they arrive at
customers’ homes or businesses. There is no evidence, however, any of the prem techs who
participated in the protest arrived at customers’ homes or businesses in street clothes. The record
is clear that when instructed to do so all (except Whitmer) of the prem techs who attended the 45
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huddle in street clothes, quickly changed into their branded apparel and went into the field. There
is no evidence that other than Whitmer any of the prem techs refused to change into branded
apparel or perform any of their duties. Even Whitmer did not refuse to partially perform his job.
Rather, he took off the remainder of the day because he did not have clean company-branded
apparel to wear for work that day.5
Moreover, there was credible evidence that the rule requiring the prem techs to wear
branded apparel was not consistently applied. Prem techs and, or union stewards Whitmer,
Phillips, VanVickle, and Stephens credibly testified that either themselves or other prem techs
have worn nonbranded caps and pants to work without being disciplined; and are allowed to wear 10
nonbranded coats in frigid temperatures. Supervisors Matney and Jones also acknowledged that
despite observing violations of the branded apparel rule, they have never issued a prem tech
discipline because of it. Although Griffin has given a “coaching” to “a couple” of prem techs for
wearing nonbranded hats, he admits to allowing prem techs to wear nonbranded pants without
repercussions. Likewise, he did not issue discipline to employees he observed wearing nonbranded 15
shirts or coats but rather told them to take it off and they complied. It is also undisputed that prem
techs Holmes and Mitchell, who participated in the September 7 action, were not disciplined. It
was an oversight, but Jones admitted that once it was discovered the error was not corrected. Based
on the evidence, I find that the Respondent did not consistently adhere to its rule that prem techs
have to wear company-branded apparel to work.20
Second, the Respondent’s argument that the prem techs were engaged in a partial strike
because they knew that one of the Company’s rules mandated that they wear branded apparel to
work is equally unpersuasive. The evidence shows that while the prem techs knew they were
required to wear branded apparel, the supervisors’ inconsistent enforcement of the rule rendered 25
the rationale behind it, security, almost meaningless, especially if one considers that employees
have to carry company identification badges and drive company-branded vehicles.
Third, I find the cases the Respondent relied on to support its arguments are inapposite. In
the present case, the prem techs’ intent was to make management aware that there was insufficient 30
access to branded apparel, thus making it difficult to work a mandatory 6-day workweek and
comply with the branded apparel rule. Each of the cases cited by the Respondent in support of
their unprotected partial strike theory involves specific work duties or tasks that the employees
refused to perform, or certain shifts the employees refused to work. See Honolulu Rapid Transit
Co., 110 NLRB 1806 (1954) (employees refusing to work on Saturdays or Sundays in several 35
consecutive weeks constituted an unprotected partial strike), Yale University, 330 NLRB 246, 247
(1999) (student teaching assistants refusing to submit grades but performing their other duties
constituted an unprotected partial strike), and Audubon Health Care Center, 268 NLRB 135 (1983)
(nurses refusing to cover duties in one section of the hospital while continuing to complete duties
in their respective assigned sections was an unprotected partial strike). These cases are 40
distinguishable from the matter at hand because, here, the prem techs were willing to perform their
actual job duties (participating in the Friday huddle, gathering their tools, and going to customers
locations to perform maintenance and installation, etc.). Moreover, all of the prem techs, except
Whitmer, quickly complied with the directive to change into company-branded apparel; and there
JD–14–20

12
is no objective evidence that the prem techs’ action caused, if at all, anything more than a de
minimis delay in serving customers.
The Respondent has proffered no case law indicating that violation of a dress code
constitutes failure to complete an essential work duty that can be considered an unprotected partial 5
strike. To the contrary there is case law that wearing casual clothing, shirts, or armbands in protest
of a work rule is protected concerted activity. See American Arbitration Assn., 233 NLRB 71
(1977) (addressing employee protest actions including wearing jeans to work and sending
questionnaires and letters to arbitrators working with the employer, finding the Act did not protect
the actions due to the disparagement and ridicule of the employer in the letters and questionnaires, 10
but not for a failure to complete job duties constituting a partial strike); See also Stephens Media,
supra; Medco Health Solutions, 357 NLRB 170 (2011) (finding employee wearing a shirt critical
of a company policy in violation of dress code to be protected concerted activity). There is also an
extensive series of cases protecting violations of dress codes in the form of wearing union apparel
as a protected concerted activity, even where customers might see the non-conforming apparel. 15
See, e.g., Chinese Daily News, 353 NLRB 613 (2008) (employer violated the Act by creating a
dress code policy prohibiting employees from wearing clothing with the name or logo other than
the employer, specifically including the union); P.S.K. Supermarkets, Inc., 349 NLRB 34 (2007)
(the Board held the exposure of customers to union buttons, standing alone, is not a special
circumstance, nor is the fact that the rule prohibited all buttons, not just union buttons); Wal-Mart 20
Stores v. NLRB, 400 F.3d 1093 (8th Cir. 2005), enfg. as modified 340 NLRB 637 (2003) (employer
violated the Act because there was no evidence that shirts with union logos interfered with the
operation of the store); Goodyear Tire & Rubber Co., 357 NLRB 337 (2011) (employer ban on
employees wearing T-shirts that said, “scab” in relation to contract employees was not justified by
special circumstances).25
Under Washington Aluminum,19 employees can lose protection of the Act if their protests
are “unlawful,” “violent,” in “breach of contract,” or “indefensible” because it exhibits “a
disloyalty to the workers’ employer which . . . [is] unnecessary to carry on the workers’ legitimate
concerted activities.” 370 U.S. at 17. There is no accusation (or evidence) that the prem techs’ 30
action was unlawful, violent or exhibited an indefensible disloyalty to the Respondent. While the
Respondent may argue that the prem techs violated the branded apparel rule, there is no evidence
that their action rose to the level of a “breach of contract.” Except for Whitmer, none of the prem
techs involved in the action refused to perform their duties that day. Moreover, the majority of the
prem techs were able to change into their branded apparel, leave the huddle at their normal start 35
time, and complete their daily assignments. The evidence is nonexistent to minimal that the
Respondent suffered financial or other operational harm as a result of the September 7 action.
Accordingly, I find that on September 7, the prem techs engaged in concerted protected
activity and did not lose protection of the Act. The next question is whether the Respondent 40
disciplined the prem techs for that reason; and I find in the affirmative.
19 370 U.S. 9 (1962).
JD–14–20

13
The Respondent’s managers testified that they issued discipline because the prem techs
wore jeans and, or other nonbranded apparel; and I previously found that before issuing discipline
several managers were aware of the reasons the prem techs were taking such action. Investigatory
notes from some of the discipline interviews establish that a few of the prem techs made clear to
management that the September 7 was to protest a condition of employment. Moreover, the formal 5
discipline step forms specifically note that they were being issued because the prem techs wore
jeans to work; and two of the supervisors acknowledged that on the day the prem techs wore jeans
to the huddle, they highly suspected it was a group action to protest working conditions
(insufficient supply of company-branded apparel). Hansen testified that when he learned on the
same day of the action that some of the prem techs had branded apparel in their car, he concluded 10
that “it was a planned event. . . .” Jones admitted that he and Peters recognized that the prem techs
were engaged in a protest action. Furthermore, the fact that the prem techs only wore the jeans to
the huddle and not with customers, the majority of the prem techs had their company-branded
apparel in their vehicles, they immediately changed into their company-branded apparel when
instructed, and there is no persuasive evidence that their protected activity negatively impacted the 15
Respondent’s operations. Consequently, this indicates that the disciplines were based entirely on
the prem techs protest regardless of whether they refused to perform their job.
Accordingly, I find that the Respondent violated Section 8(a)(1) and (3) of the Act.
20
CONCLUSIONS OF LAW
1. The Respondent, The Ohio Bell Telephone Company, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
25
2. The Respondent violated Section 8(a)(1) and (3) of the Act by the following conduct:
a. when about September 25, 2018, it issued attendance occurrences and placed attendance
punctuality discussion documents in the files of Tyler Hill, Brian Hinkle, and Jalen Smith.
b. when about October 12, 2018, it issued attendance occurrences and placed attendance 30
punctuality discussion documents in the files of Anthony Donnelly, Douglas Faiella, and Jesse
Canter.
c. when about October 16, 2018, it issued an attendance occurrence and placed an
attendance punctuality discussion document in the file of Richard Whitmer.
d. when about September 28, 2018, it issued written warnings to employees Richard 35
Whitmer, Sammy Muoy, Willie Cooley, Nick Kness, Derek Kinsey, Kyle Kemper, Scott
McAndrew, Thomas Phelps, Tyler Hill, Brian Hinkle, Jalen Smith, Nick Phillips, and Douglas
Orr.
e. when about October 5, 2018, it issued written warnings to employees John Senn, Phillip
Rengifo, Dennis Kelty, and Justin Doyle.40
f. when about October 8, 2018, it issued written warning to employees Brandon Baliuff,
Jason Damron, Ryan Stevens, Rajpal Punia, and Ian McMahon.
g. when about October 11, 2018, it issued written warnings to employees Jesse Lewis,
Douglas Faiella, Jesse Canter, and Aaron VanVickle.
45
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14
3. The above violations are unfair labor practices that affects commerce within the meaning
of Section 2(6) and (7) of the Act.
4. The Respondent has not violated the Act except as set forth above.
5
REMEDY
Having found that the Respondent has engaged in certain unfair 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.10
The Respondent having discriminatorily disciplined named employees must remove from
its files (both official and unofficial) all references to the discipline relating to the events of
September 7.
15
Backpay for said employees because of the discriminatory discipline shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
20
The Respondent shall file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. The Respondent shall also compensate named
employees for the adverse tax consequences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB 101 (2014).25
Further, the Respondent will be required to post and communicate by electronic post to
employees the attached Appendix and notice that assures its employees that it will respect their
rights under the Act.
30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended20
ORDER
35
The Respondent, Ohio Bell Telephone Company, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
40
20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD–14–20

15
(a) Disciplining or otherwise discriminating against its employees in retaliation for their
protected concerted activities.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.5
2. Take the following affirmative action necessary to effectuate the purposes and policies
of the Act.
(a) Within 14 days from the date of the Board’s Order, make Richard Whitmer, Tyler Hill, 10
Brian Hinkle, Jalen Smith, Anthony Donnelly, Douglas Faiella, and Jesse Canter whole for any
loss of earnings and other benefits suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Within 14 days from the date of the Board’s Order, remove from its files any reference 15
to the unlawful discipline of Ian McMahon, Justin Doyle, Rajpal Punia, Ryan Stevens, Dennis
Kelty, Phillip Rengifo, Anthony Donnelly, Aaron VanVickle, Douglas Faiella, Jesse Lewis, Jason
Damron, Brandon Balluff, John Senn, Jesse Canter, Richard Whitmer, Sammy Mouy, Willie
Cooley, Nick Kness, Derek Kinsey, Kyle Kemper, Scott McAndrew, Thomas Phelps, Tyler Hill,
Brian Hinkle, Jalen Smith, Nick Phillips, and Douglas Orr, and within 3 days thereafter notify the 20
same in writing that this has been completed and that the disciplines will not be used against them
in any way.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board 25
or its agents, all payroll records, social security payment records, timecards, personnel records and
reports, and all other records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its Dublin and Ternstedt garages in 30
Columbus, Ohio, copies of the attached notice marked “Appendix.”21 Copies of the notice, on
forms provided by the Regional Director for Region 9 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 and members are
customarily posted. In addition to physical posting of paper notices, the notices shall be distributed 35
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
40
21 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
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16
(e) 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.
5
Dated: Washington, D.C. March 26, 2020
10
Christine E. Dibble (CED)
Administrative Law Judge
JD–14–20

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered
us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discipline you or issue you attendance occurrences or attendance/punctuality
discussions because you briefly, as a group, wear your street clothes during employee meetings as
a way of complaining to us about the condition of your company-issued uniforms or other terms
and conditions of your employment.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise
of your rights guaranteed under Section 7 of the Act.
WE WILL remove from our files all references to the discipline of Ian McMahon, Justin Doyle,
Rajpal Punia, Ryan Stevens, Dennis Kelty, Phillip Rengifo, Anthony Donnelly,
Aaron VanVickle, Douglas Faiella, Jesse Lewis, Jason Damron, Brandon Balluff, John Senn, Jesse
Canter, Richard Whitmer, Sammy Mouy, Willie Cooley, Nick Kness, Derek Kinsey, Kyle
Kemper, Scott McAndrew, Thomas Phelps, Tyler Hill, Brian Hinkle, Jalen Smith, Nick Phillips,
and Douglas Orr for briefly wearing their street clothes to complain about the condition of their
company-issued uniforms and WE WILL notify them in writing that this has been done and that
the discipline will not be used against them in any way.
WE WILL remove from our files any attendance occurrences or attendance/punctuality
discussions given to Richard Whitmer, Tyler Hill, Brian Hinkle, Jalen Smith, Anthony Donnelly,
Douglas Faiella, and Jesse Canter for time spent changing into their uniforms after briefly wearing
their street clothes to complain about the condition of their company-issued uniforms, and WE
WILL notify them in writing that this has been done and that the occurrences or
attendance/punctuality documents will not be used against them in any way.
WE WILL pay employees Tyler Hill, Brian Hinkle, Jalen Smith, Anthony Donnelly, Douglas
Faiella, and Jesse Canter for the wages and other benefits they lost because we sent them home to
change into their uniforms.
JD–14–20

The Ohio Bell Telephone Company
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
National Labor Relations Board
550 Main St. Room 3003
Cincinnati, OH 45202-3271
Telephone: (513) 684-3686, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/09-CA-233901 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH
ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 505-248-5128.