Verizon New York, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 19, 2008

03-CA-026036 (N.L.R.B. Mar. 19, 2008)

JD–16–08
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
VERIZON NEW YORK, INC.
Respondent
and Cases 3–CA–26036
3–CA–26284
COMMUNICATIONS WORKERS OF AMERICA 3–CA–26319
LOCAL 1115,
Charging Party
Ron Scott, Esq., and Jessie Feuerstein, Esq.,
for the General Counsel.
E. Michael Rossman, Esq. (Jones Day), of
Columbus, Ohio, for the Respondent.
Thomas Oakley (CWA Local 115), of Spring Hill,
New York, for the Charging Party.
DECISION
Statement of the Case
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Buffalo, New
York, on December 4, 2007. The complaint in Case 3–CA–26036 issued February 28, 2007.
The Communications Workers of America (the Charging Party or Union), alleges the
Respondent, Verizon New York, Inc., violated Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act) by: (1) on or about September 13, 2006, threatening an employee, who
is a union officer, that another employee would be disciplined if the Union filed a grievance; and
(2) on or about September 20, 2006, issuing a disciplinary warning to its employee, Scott Folts,
and docking him a half an hour of pay because Folts engaged in concerted activities on behalf
of the Communications Workers of America, Local 1115 (the Union).1 An amended
consolidated complaint, adding Case 3–CA–26284, issued June 29, 2007. It alleged an
additional 8(a)(1) violation that on or about April 18, 2007, the Respondent threatened
employees with more onerous working consisting of less favorable starting work times because
they filed grievances. A second amended consolidated complaint, adding Case 3–CA–26319,
issued August 31, 2007. It alleged that on or about April 19, 2007, the Respondent denied the
request of its employee, David Pustulka, to be represented by the Union during an interview by
supervisors, which Pustulka reasonably believed would lead to disciplinary action against him.
In its timely answers to the foregoing, the Respondent denied the material allegations.

1 All dates are from September 16, 2006, to August 31, 2007, unless otherwise indicated.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Charging Party and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, a corporation engaged in providing telecommunication services, has
its principal place of business in New York, New York, where it annually derives gross revenues
in excess of $100,000, and operates a facility in Olean, New York, where it purchases annually
goods and services valued in excess of $5,000. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Parties
The Respondent’s relevant operations involve its New York State western region. The
western region includes approximately 20 garages from which field technicians and
telecommunications technical assistants (TTA) are dispatched in trucks to field assignments.2
The relevant facilities include garages located in Arcade, Olean, Wellsville and East Aurora.
John Boyd is the area manager. Local managers, including Paul Zandi, Charles Konesky, and
John Clendening, supervise the field technicians. Amy Walker serves as a global positioning
systems (GPS) manager.3 Thomas Oakley and Mark Rumfola are field technicians assigned to
the Arcade garage. Scott Folts is a field technician assigned to the Olean garage.
The Union’s jurisdiction covers a geographical area that includes the area south of
Buffalo, New York. Oakley serves as the Union’s local vice president. Rumfola serves as the
area representative for the East Aurora and Arcade garages. Since the 1960’s, the Union or its
predecessors have been the exclusive bargaining representative for field technicians, TTAs,
office technicians, and certain clerical employees employed by the Respondent and its
predecessors. The collective-bargaining agreement between the parties includes, at Article 11,
a grievance process. Pursuant to that process, the Union has filed many grievances each year.4

2 TTAs and field technicians perform similar job duties, but TTA’s have additional
responsibilities and are compensated at a higher hourly wage rate. (Tr. 29, 191–192.)
3 The Respondent concedes that Boyd, Zandi, Konesky, Clendening and Walker functioned,
at all relevant times here, as statutory supervisors and/or agents under the Act.
4 The Respondent provided statistics that, over the past 10 years, the Union has filed
grievances against the Respondent in New York State on an annual basis ranging from 8,200 to
32,000. There was no breakdown as to the portion attributable to the western region, but the
suggestion was that many are filed each year. (Coulton Tr. 151–152.) The Union, on the other
hand, introduced evidence that, in 2006, 31 grievances were filed by field technicians or other
employees assigned to the Wellsville, Arcade, and Olean garages. (GC Exh. 2.) While
introduced for the purpose of showing the Respondent’s alleged discriminatory motive against
field technicians in the Wellsville garage, discussed infra, grievances filed by field technicians
from the three aforementioned garages appear to be a relatively minor fraction of the overall
number of grievances filed by the Union against the Respondent on a statewide basis.
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B. The Folts Tour Change
Field technicians regularly work an 8-1/2 hour tour, which includes a required one half-
hour lunch break. On or about September 11, Oakley received complaints from several Olean
employees assigned to the 7:30 a.m. to 4 p.m. shift that management permitted Scott Folts, a
field technician on that shift, to change his tour during the previous Saturday to 7 a.m. to 3 p.m.
The hours worked meant that Folts skipped lunch and worked an 8-hour tour—something that
would constitute a work rule violation if not previously approved by management.5
Oakley did not speak with Folts about the matter at that point.6 Instead, he contacted
Konesky, his Arcade supervisor. Oakley asked Konesky whether Paul Zandi, the Olean
supervisor, allowed Folts to change his scheduled hours on September 9. Konesky did not
know, but said he would ask Zandi. Konesky contacted Zandi, who denied any knowledge of a
schedule change. Konesky reported this information to Oakley during a follow-up call by the
latter on September 13. Oakley doubted the accuracy of that information and requested a
grievance number in order to file a charge that management, by allowing Folts to change his
tour, improperly used the “call list.” It was Oakley’s contention that the collective-bargaining
agreement required management, any time it changed a tour, to offer it first to the employee at
the top of the call list. Konesky reiterated Zandi’s denial that management permitted Folts to
modify his schedule, but asserted that the collective-bargaining agreement permits the
Respondent to alter work schedules.7
Konesky also passed along Zandi’s statement that he would discipline Folts if Oakley
filed a grievance. Konesky was referring to a work rule prohibiting employees from changing
their tour schedules without supervisory approval.8 Oakley responded that such a threat violated
the Act. In any event, Konesky gave Oakley a grievance number. Oakley then filed a
grievance.9

5 Oakley was concededly vague as to the date (“I think it was the previous weekend”), but
indicated the alleged tour change occurred on a Saturday. (Tr. 34–35, 46, 50.)
6 I did not credit Oakley’s uncorroborated hearsay testimony that another union official
approached Folts on or about September 3 and was told to "mind your own business.” (Tr. 16.)
7 Oakley and Konesky agreed as to this part of the exchange. (Tr. 14–15, 161.)
8 Although no document was introduced to support this assertion, the parties essentially
agreed that employees are prohibited from changing their tours without management approval.
(Tr. 16–17, 161, 172.)
9 I based the finding that Konesky relayed Zandi’s threat to Oakley on Oakley’s credible
testimony. (Tr. 17, 31–32.) Zandi and Konesky, on the other hand, provided inconsistent
explanations of the events that transpired between September 11 and 18. While Oakley and
Konesky were not specific as to the date of the alleged Folts’ tour change, Zandi testified that,
prior to the September 18 grievance session, he thought the date of the alleged infraction was
September 9. He allegedly determined after September 18 that the date of the infraction was
actually September 3. He met with Folts, confirmed that was the case, and disciplined him. I find
it incredible that Zandi did, after the September 18 grievance session, what he could have done
before that date—met with Folts and determined that he changed his tour on September 3. (Tr.
169–172, 182–184.) Even more confusing, the credible evidence indicates that the alleged tour
change occurred on a Saturday, but September 3 is a Sunday, not a Saturday. Konesky was
also present at the September 18 meeting and made no reference to a misunderstanding as to
the date of Folts' tour change. (Tr. 162–164.) Lastly, Konesky’s testimony supports the notion
that Zandi did not investigate the facts prior to September 18. He testified that Zandi simply told
him that no one had been given permission to change his/her tour and made no reference to
Continued
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On September 18, 2006, the Respondent and the Union held a first-step grievance
meeting. Konesky, Zandi, and Oakley attended. Oakley reiterated his contention that the
Respondent permitted Folts to change his work hours on September 9. Oakley also alleged, for
the first time, that Zandi permitted the entire Olean crew to work through lunch on September 9.
Zandi denied the allegations. The Respondent denied the Union's grievance at the conclusion of
this first-step meeting.10
After the grievance meeting, Oakley spoke with Folts. Folts confirmed that he did not
have management approval to change his schedule on September 9. As a result, Oakley
withdrew his grievance. Zandi, on the other hand, met with Folts and each member of the
Olean’s crew. Folts, accompanied by a union representative, admitted he was the only crew
member to admit that he changed his work hours on September 9. He also conceded that he
did so without supervisory approval. As a result, on or about September 20, Folts received a
verbal warning and his pay was reduced by one-half hour because he unilaterally altered his
schedule. In addition, Zandi held a subsequent meeting to reiterate that employees are
prohibited from working through lunch without permission.11
C. Zandi’s Conference Call
As previously noted, Zandi supervises the 19 field technicians who report to the Arcade,
Olean, and Wellsville garages for the 7:30 a.m. to 4 p.m. shift. His office is located in the
Olean’s garage. On a typical day, Zandi receives constant telephone calls with questions from
field technicians during the first half-hour of the shift. Frequently, they cannot reach him
because he is busy or on the telephone, many times with other field technicians. This has
created problems for some field technicians in those three garages. In addition to complaining to
Zandi, some have even filed grievances.12
Subsequently, Zandi discussed ways to increase his accessibility with field technicians
and union officials. As a result, he provided employees with his cellular telephone number and
told them they could reach him as early as 6:15 a.m. He also installed a fax machine in his
office so they could reach him through fax communications. When possible, Zandi also initiated
conference calls to the Arcade and Wellsville garages inquiring whether any field technicians
had questions. The communications problems persisted, however, and he continued to receive
telephone calls after the group conference calls.13
_________________________
having conducted an investigation. (Tr. 160–162.)
10 No documentation was provided regarding the grievance and its disposition. (Tr. 35–36,
162–164, 171.)
11 Folts did not testify and, as such, we are left with only Zandi’s testimony as to the alleged
tour change. As previously noted, I do not credit Zandi’s statement that the alleged tour change
occurred on September 3, a Sunday. (Tr. 34, 171–174.)
12 It is not disputed that field technicians frequently have trouble contacting Zandi and that,
as a result, grievances have been filed. (Tr. 62–63, 67, 73, 80, 90–91, 98, 102, 108, 174–175.)
Richard Coulton, a labor relations specialist for the Respondent, explained that the Respondent
does not hold its managers accountable for the number of grievances filed in their areas. (Tr.
152–153). That may be the view of upper management, but the facts conveyed a volatile
relationship between the parties’ local representatives – Oakley and Zandi.
13 These facts are not disputed. (Tr. 173–179.)
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On April 18, 2007, Zandi conducted a group conference call to all three garages.
Approximately 20 employees participated in the conference call, which lasted about 15 minutes.
Zandi discussed several items during the 15-minute conference call, including the accessibility
issue. On that issue, he noted that grievances had been filed as to his lack of accessibility and
that, if it continued to be a problem, he was considering changing the starting times at the three
garages to 7:00, 7:30, and 8:00 a.m. To further illustrate his point, he suggested Olean’s
employees would start at 7:00 a.m., the start time for Arcade employees would remain at 7:30
a.m., and the start time for Wellsville staff would change to 8:00 a.m. Zandi further explained
that such an approach would provide each garage’s employees with a half-hour period of time
to reach him at the beginning of their shift.14 No questions were posed or comments made on
this subject during the conference call. Zandi had no idea of the extent as to whether employees
favored earlier or later starting times. After the meeting, however, Zandi was approached by
several employees, who expressed preferences for different start times. Some wanted to start
earlier than 7:30 a.m., while others wanted to start at 9:30 and 11:00 a.m. In any event, the
proposal was never implemented.15
D. The GPS Review
Since 2006, the Respondent has equipped most service trucks used by field technicians
and TTAs with global positioning system (GPS) devices. A GPS device transmits information to
the Respondent’s database regarding that truck’s locations and the time it took to move
between locations during the workday. The Respondent uses that information, in conjunction
with the employee’s time records, to identify problems with employee performance and
productivity, and process inefficiencies. Productivity issues include field technicians taking too

14 The credible evidence indicates that Zandi mentioned filed grievances as a reason why
he was considering staggered start times for the garages. Zimmerman, the Wellsville field
technician, vaguely testified, in response to leading questions, that Zandi proposed staggered
start times at some point during the conference call. On cross-examination, he could not answer
whether Zandi presented the change as a proposal or a certainty. (Tr. 54–56, 63.) Brinkman
was the most credible of the General Counsel’s witnesses on this point. He testified that Zandi
referred to the grievance and said that if it became a problem again, the start times would
change to 7:00, 7:30, and 8:00 a.m. for the three garages. (Tr. 68, 74–75.) Arcade employee
Todd Lester testified that Zandi said that he might have to stagger start times because of all the
grievances that were filed. He did not recall, however, the specifics of the staggered schedule.
(Tr. 99–100.) Olean field technician Patrick Smith also testified that Zandi referred to staggered
start times as something that “might happen” and that he related it to the filing of grievances.
(Tr. 106–107, 113.) Rumfola agreed, in response to a leading question, that Zandi’s proposal to
stagger start times related to grievances that have been filed. (Tr. 82.) On cross-examination,
he clarified that Zandi was merely throwing out possibilities. (Tr. 91–93.) Zandi conceded that
part of his motivation in proposing staggered start times was due to the grievances that had
been filed. (Tr. 179.) He also did not refute the assertions by several witnesses that he referred
to the garages specifically when he threw out a possible schedule for staggered start times. (Tr.
178.)
15 Given the collective testimony of the General Counsel’s witnesses that no one asked
questions or made comments about Zandi’s proposal, I find that any comments made to Zandi
were made after the conference call. In any event, his contention that there were some
employees in favor of later start times was conceded by Brinkman, the Wellsville field
technician. (Tr. 75, 181.) More importantly, while Zimmerman and Brinkman testified that most
field technicians preferred earlier start times, there was no proof offered that Zandi knew or was
told that during the conference call or at any other time. (Tr. 56, 68–69.)
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long to leave their assigned garages, taking coffee breaks before finishing the first assignment
of the day, or returning to the garage too long before the end of his or her shift. Since 2006, the
Respondent has conducted more than 100 GPS reviews. GPS reviews typically involve two
managers, who review an employee's previous workday’s GPS data, drive the work route that
the employee traveled, and meet with the employee to discuss the data. When a GPS has
uncovered performance or productivity problems, the Respondent has responded with
efficiency-related training or by assigning the employee to ride with a more senior technician.16
To date, the Respondent has not disciplined employees as a result of information
uncovered through GPS reviews. The subject of discipline was initially discussed on February 7,
2006 when Angelo Grande, the Respondent’s representative, rolled out the GPS review process
during a union-management meeting. Grande stated that employees would not be disciplined as
the result of information obtained from GPS reviews. Attempting to alleviate the Union’s
concerns, Grande provided examples of employee time abuse uncovered through GPS reviews,
which did not result in discipline.17 Nevertheless, the Respondent has not ruled out discipline as
the result of information obtained through a GPS review.18 In fact, in a March 20 memorandum
about GPS reviews to garage managers, John Boyd, the area manager, stated, in pertinent
part:
My call with Joe DeMauro went well this morning. I was prepared, and he was
appreciative of our efforts at improving our productivity. He asked that we not let up and
ramp up more quickly.
Your reviews are getting better. I still need some of you to dig a little deeper and not let
the tech lead you down their ‘victim” alley so easily. Push back and press on excuses
that lend themselves toward blaming the DRC, Cal, or GPS. While some of these may
be valid, we need to focus on those things that we control. Improving our inefficiency and
holding the associate accountable for their days work is the key to our improving. Using
questions such as, how do you account for the 45 minutes at the Xbox? What were you
doing out of district? What took so long at the customer location? What did you do while
you were there?
That being said going forward my expectation is that you ride the route of the field
technician’s prior day, and conduct the interview that afternoon or at the latest the next
morning. This minimizes the memory loss affect. Begin including the SABIT activity
report. In fact have it available for your ride and meeting with the tech. It gives more
detail on the movement of the vehicle.

16 There was evidence to dispute the Respondent’s contention that the primary purpose of
the GPS system was to identify problems and inefficiencies. (Tr. 189–195, 207–208, 220, 230,
234; GC Exh. 3.)
17 Grande’s assertion at that meeting regarding the interrelationship of a GPS review with
the disciplinary process was not refuted and is corroborated by the written agenda. It is also
noted that, as explained by Podyma, minutes are not kept at such meetings. (R. Exh. 1; Tr.
204–205.)
18 Boyd and Clendening denied that information obtained from a GPS review could lead to
discipline. (Tr. 220, 230.) However, Podyma, the Respondent’s executive director and person
who oversaw development of the GPS review process in 2006, conceded that such information
could result in and lead to discipline if it constitutes a violation of the Respondent’s code of
conduct. (Tr. 191–195, 199–201, 204.)
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Remember this is a process. This becomes the first step in what may become further
action if you choose to do so. [Emphasis supplied]19
The “action” that Boyd was referring to included discipline. The Respondent’s policy in
this regard, as articulated by Jim Podyma, its executive director, is that GPS information can be
used for disciplinary purposes, but only in addition to a code of conduct violation directly
observed by a manager in the field.20 Examples of situations where GPS information could be
used for disciplinary purposes, if also observed by a manager, include employees taking an
excessive amount of time for lunch, or being at home or an entertainment venue, instead of
working.21
On April 19, 2007, Clendening and GPS Manager Amy Walker conducted a GPS review
of work performed on April 18 by David Pustulka, a TTA assigned to the East Aurora garage
and a former union shop steward. In accordance with the GPS review protocol, Clendening and
Walker reviewed Pustulka's GPS information and work performed, and traversed the same
routes that he traveled on April 18. Later that day, at approximately 3 p.m., Clendening and
Walker visited Pustulka in the field to discuss the GPS information. At the time, Pustulka was on
a ladder repairing telephone wires. As they approached him, Clendening complimented
Pustulka as to his safe work approach and told him they were there to perform a GPS review.
Clendening informed Pustulka that he and Walker were conducting a “GPS followup” of his
previous day’s work. Pustulka was familiar with GPS reviews, as Clendening conducted an
earlier one with him a few months earlier.22
Pustulka descended from the ladder and they engaged in some brief, friendly
conversation. Clendening previously supervised Pustulka at the East Aurora garage and they
had a good working relationship. After Clendening spoke, Walker proceeded to read information
about Pustulka’s movements the day before. Pustulka confirmed the accuracy of the
information. Either Walker or Clendening then asked Pustulka why particular movements
between assignments took so long. Pustulka responded to the question, but asserted they
should have called his supervisor for that information and were wasting the Respondent’s
money. Clendening responded that he was the “enforcer,” while Walker added that Pustulka’s
productivity was the lowest in the garage. Pustulka then asked whether he would need union
representation. Clendening said that he did not need representation, as a GPS review was “not
disciplinary.” Pustulka started to walk away, but returned after Clendening stated that a refusal
to cooperate would be considered insubordination. The interview proceeded briefly, but
Pustulka remained belligerent. Eventually, Pustulka took out a telephone and stated that he was

19 GC Exh. 3.
20 This finding is based on the statement in Boyd’s memorandum and Podyma’s testimony
that such action could include discipline under certain circumstances. (GC Exh. 3; Tr. 206–207.)
21 Podyma’s explanation of the distinction between the Respondent’s code of conduct and
workplace rules was not challenged. The code of conduct is a companywide publication that
addresses major issues such as drugs, alcohol, and violence in the workplace. Local workplace
rules are implemented by each of the Respondent’s districts that address day-to-day activities.
(Tr. 198–200, 202–203.) However, Podyma also explained that GPS information showing that
an employee “spent the entire day at a strip club or spent the entire day at his house rather than
in the workplace,” or took “excessive lunch time” would constitute a code of conduct violation if it
was directly observed by a manager. He added that, “in this case, it’s done as a post ride.” (Tr.
202–203, 205–206.)
22 Pustulka and Clendening each confirmed that Pustulka had a prior GPS review. (Tr. 122.,
221.)
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calling a union steward. Clendening asked whether Pustulka was using a company telephone.
Pustulka acknowledged that it was and Clendening directed him to hand it over. Pustulka
complied, at which point Clendening told him to pack up his equipment and return to the garage.
As Pustulka packed up his truck, Clendening opened the truck door and placed Pustulka’s
telephone on driver’s seat.23
Pustulka returned to the garage a few minutes before 4 p.m. However, the job that
Pustulka was working on was not finished and he had been approved for 2 hours of overtime
that day.24 Shortly after arriving at the garage, Pustulka encountered John Boyd, the area
manager. He approached Boyd and asked him, “Can we talk? Find out what’s going on here.”
Boyd, whom Clendening had discussed the GPS review incident a short while earlier, simply
told Pustulka to go home. As a result, Pustulka did not work the previously authorized 2 hours of
overtime work.25
III. Analysis
A. Zandi’s Alleged Threats
The General Counsel alleges that the Respondent violated Section 8(a)(1) when it
conveyed unlawful threats to employees on the following two occasions: (1) Zandi’s statement
to Oakley, through Konesky, that Folts would be disciplined if Oakley grieved that management
improperly permitted Folts to change his tour; and (2) Zandi’s statement to field technicians from
the Arcade, Olean, and Wellsville garages that he would stagger their starting times because
employees filed grievances that they had been unable to reach him at the beginning of their
tour. The Respondent denies making such threats.
It is an 8(a)(1) violation for an employer to engage in conduct which reasonably tend to
interfere with, threaten, or coerce employees in the exercise of their Section 7 rights to self-
organization, to form, join, or assist a labor organization. Alliance Steel Products, 340 NLRB 495

23 I relied mostly on Clendening’s version of his encounter with Pustulka on April 19 (Tr.
222–224.), as Pustulka’s testimony strongly suggests that he became antagonistic. Pustulka
conceded as much when he testified to telling Clendening and Walker that “I can’t believe they
sent you all the way out here to ask me something neither one of you knew about.” He also
“thought it was unusual” that they would come out to his job, noted that he had “a lot of stock
with Verizon” and told them “this doesn’t seem very efficient, sending two people all the way out
to Bliss to ask me about something that they could have made a phone call to my boss and got
the answer for.” (Tr. 123–128, 137–138.)
24 Pustulka’s assertion that he had approval for 2 hours of overtime was not effectively
refuted by Clendening, who had a good recollection of the other events of that afternoon, but
could not recall whether Pustulka told him that. (Tr. 119, 128, 224.) Moreover, I found
Clendening less than credible and evasive when asked whether he had ever seen the March
20, 2006 memorandum from Boyd. (Tr. 226–227; GC Exh. 3.)
25 Boyd testified that Pustulka approached him in the garage and asked if there was anything
they needed to speak about. Boyd responded by asking Pustulka if “he was done for the day.”
Pustulka allegedly said “yes” and Boyd told him to go home. (Tr. 231–232.) Pustulka simply
testified that he wanted to speak with Boyd, but the latter told him to just go home. (Tr. 128.)
Given the fact that Pustulka had already been sent back to the garage, the lateness in the day,
and the distance and time in returning to the Bliss location, this discrepancy has no bearing on
my finding that Pustulka had not yet finished his work when Clendening told him to go back to
the garage.
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(2003); Philips Petroleum Co., 339 NLRB 916 (2003); Gissel Packing Co., 395 U.S. 575 (1969);
Almet, Inc., 305 NLRB 626 (1991); and American Freightways Co., 124 NLRB 146, 147 (1959).
In making this determination, the Board uses an objective standard as to whether the statement
reasonably tends to coerce the employee. Smithfield Packing Co., 344 NLRB 1, 2 (2004). As
such, the employer’s motive for the inquiry, or the success or failure of the coercion, is
irrelevant. American Tissue Corp., 336 NLRB 435, 441 (2001).
Oakley told Konesky that he wanted to file a grievance asserting that management
unilaterally changed work hours by permitting Folts to change his tour without first going to the
seniority list. Konesky advised Oakley that Zandi would discipline Folts if Oakley insisted on
filing a grievance. Oakley filed a grievance anyway and Folts was disciplined. Konesky’s
statement constituted an unlawful threat in violation of Section 8(a)(1). NLRB v. Exchange Parts
Co., 375 U.S. 405 (1964); Palms Hotel & Casino, 344 NLRB 1363, 1387 (2005). As noted by
the General Counsel, the fact that the threat was directed to the employee-grievant, rather than
the disciplined employee, does not vitiate the violation. Schrock Cabinet Co., 339 NLRB 182
(2003).
With respect to Zandi’s conference call to the field technicians on April 18, there was not
much dispute as to what he said. Zandi addressed the accessibility issue and noted that
grievances had been filed. He explained that he was considering changing the starting times at
the three garages to 7:00, 7:30, and 8:00 a.m. Zandi also provided an example consisting of the
Olean’s employees starting at 7:00 a.m., Arcade employees starting at 7:30 a.m., and Wellsville
employees starting at 8:00 a.m. He also explained that staggered starting times would give each
garage’s employees a half hour to communicate with him. The only issues here are whether (1)
Zandi’s reference to Wellsville employees starting at 8:00 a.m. imposed a less favorable
working condition on the field technicians from that garage and, if so, (2) whether employees
could reasonably construe such comments as retaliation for those complaints.
It is true that Wellsville employees filed most of the grievances in 2006. However, there
was no proof as to the extent to which Wellsville employees, in particular, complained about
accessibility. Moreover, the testimony was mixed as to whether the employees in the
conference call preferred earlier, the same or later starting times. From an objective standpoint,
Zandi’s proposal cannot be construed as coercive or a threat. There was no evidence to refute
the notion that staggering start times was a logical approach to the accessibility problem. More
importantly, however, it is far from certain that a later start time for the Wellsville field
technicians would be less favorable to them. Accordingly, this charge is dismissed.
B. The Respondent’s Denial of Pustulka’s Request for Union Representation
The General Counsel alleges that the Respondent violated Section 8(a)(1) on April 19 by
denying Pustulka’s rights pursuant to NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256–261
(1975). The Respondent denies that Pustulka had Weingarten rights during the GPS review.
An employee has a right to union representation during an investigatory interview if the
employee has a reasonable belief that the interview will result in discipline. Southwestern Bell
Tel. Co., 338 NLRB 552 (2002). The request is also valid if it is raised as a question. Clendening
responded to Pustulka’s question by telling him that a GPS interview was not disciplinary in
nature. Such advice by a manager significantly to a long time employee and former union official
weighs heavily in favor of what a reasonable employee would have believed under the
circumstances. Spartan Stores, Inc. v. NLRB, 628 F.2d 953, 958 (6th Cir. 1980).
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There was evidence and testimony exposing the Respondent’s belief that, under certain
circumstances, it could take disciplinary action based on information gained from a GPS review.
There is no indication, however, that such a belief was known or made known to the Union or
any of its members. To the contrary, the Respondent addressed this issue at the February 7,
2006 union-management meeting and provided a specific example to illustrate that information
of employee misfeasance of worktime would not lead to discipline. This scenario presents an
interesting situation where, in spite of the Respondent’s beliefs, the evidence, from an objective
standpoint, did not support a reasonable belief on Pustulka’s part that his answers to a GPS
interview could lead to discipline. The fact that Pustulka may or may not have been aware of the
Respondent’s assurances at the February 7, 2006 meeting is not determinative. The
assurances were conveyed to his labor organization. Those meetings have an important role in
the labor-management relationship and, as such, it is not unreasonable to attribute knowledge
obtained during such meetings to the Union’s members. Notwithstanding some subjective
beliefs on the part of management to the contrary, its assurances to Union officials at formal
meetings are all we have to rely on in this case. The irony here is that, while such testimony
may have ramification for future GPS reviews, it does not change the determination that
Pustulka, under the facts, did not have a reasonable belief that he could be disciplined by virtue
of his cooperation in a GPS review. Accordingly, this charge is dismissed.
C. The Respondent’s Disciplinary Actions
The General Counsel alleges that the Respondent violated Section 8(a)(3) and (1) by:
(1) issuing a verbal warning to Folts and docking his pay because Oakley filed a grievance on
September 13 claiming that management permitted Folts to modify his tour schedule on
September 3; and (2) denying Pustulka overtime pay on April 19 because he requested union
representation. The Respondent denied the material allegations. It contends that the Folts
discipline was imposed in accordance with the Respondent’s work rule prohibiting employees
changing their tours without management approval. With respect to Pustulka’s request for union
representation, the Respondent contends that Clendening sent Pustulka back to the garage
because Clendening thought he had finished his work and believed Pustulka was insubordinate
for not cooperating in a GPS review.
Section 8(a)(3) provides, in pertinent part, that it is “an unfair labor practice for an
employer to discriminate in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization.” Under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), the General Counsel must establish that an employee engaged in protected concerted
activity, the employer was aware of that activity, and the activity was a substantial or motivating
reason for the employer’s action. See also Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999).
If the General Counsel establishes its prima facie case, the burden of persuasion shifts to the
employer to “demonstrate that the same action would have taken place even in the absence of
the protected conduct.” Septix Waste, Inc. 346 NLRB 494 (2006). Simply presenting a
legitimate reason for its actions is not enough. Donaldson Bros. Ready Mix, Inc., 341 NLRB
958, 966 (2004); T&J Trucking Co., 316 NLRB 771, 771 (1995); GSX Corp. v. NLRB, 918 F.2d
1351 (8th Cir. 1990).
Most of the Wright Line factors cannot be disputed. Oakley filed a grievance, which
constitutes knowledge on the part of the Respondent, as well as protected concerted activity. LB
& B Associates, Inc., 340 NLRB 214, 216 (2003); Prime Time Shuttle International, 314 NLRB
838, 841 (1994). As discussed above, Zandi’s unlawful threat, as conveyed by Konesky,
constitutes compelling evidence of motivation to discipline Folts if Oakley filed a grievance.
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Finally, the Respondent took adverse action against Folts by verbally warning him and docking
his pay.

Since the General Counsel established a prima facie case, the burden of persuasion
shifted to the Respondent to prove, by a preponderance of the evidence, that it would have
disciplined Folts even in the absence of Oakley’s union activity. Monroe Mfg., 323 NLRB 24
(1997). To meet its burden of persuasion, the Respondent was required to do more than show
that it had a legitimate reason for its actions. Hicks Oil & Hicksgas, 293 NLRB 84, 85 (1989),
enfd. 942 F.2d 1140 (7th Cir. 1991). It did not do so. Zandi had 7 days before the Step 1
grievance meeting to investigate the facts, but did not do so. Instead, he waited until after the
meeting to interview Folts about the allegations. Moreover, I also found that the investigation he
did conduct was not a credible one, since he testified that the day of the alleged tour change
was a Sunday, when in fact it occurred on a Saturday. As such, we are left with the clear
implication from Zandi’s unlawful threat that, in the absence of a grievance, Folts would not be
disciplined. Based on the foregoing, I find that the Respondent disciplined Folts in violation of
Section 8(a)(3) and (1).
With respect to Pustulka’s Weingarten charge, Pustulka became belligerent and was
uncooperative throughout the GPS interview. During the discussion, Clendening and Walker
referred to Pustulka’s productivity, but that apparently arose within the context of Pustulka’s
commentaries questioning their function that day. Pustulka asked whether he would need union
representation. Clendening assured him that the GPS review was “not disciplinary.” The
interview continued, but only after Pustulka was threatened with a charge of insubordination.
However, Pustulka remained combative and eventually began to make a cellular telephone call
to a union representative. After confirming that Pustulka was using a company telephone,
Clendening confiscated it and directed Clendening to return to the garage. Pustulka complied
and returned to the garage around the regular end of his tour—4 p.m. Once there, he
encountered Boyd, who told him to go home. As a result, Pustulka did not work the previously
authorized 2 hours of overtime work.
Pustulka was directed to return to the garage and, thus, denied the opportunity to
perform previously authorized overtime work. Clendening ordered him to do that because he
was using a company-owned cellular telephone to call his union representative. However, as
previously noted, Pustulka did not have a reasonable expectation that the GPS review could
lead to discipline. He simply did not want to answer any more questions and resorted to calling
his union representative. Under the circumstances, Pustulka was not engaged in protected
concerted activity as he attempted to call a union representative. Accordingly, this charge is
dismissed.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By threatening Oakley on September 13 that it would discipline Folts if Oakley filed a
grievance, the Respondent violated Section 8(a)(1).
3. By disciplining Folts because Oakley filed a grievance, the Respondent violated
Section 8(a)(3) and (1).
4. By engaging in the conduct described above, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 2(2), (6) and (7) of the Act.
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5. The Respondent has not violated the Act in any other manner.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having discriminatorily warned an employee and docked him for a half hour of pay, the
Respondent must remove any reference from its files to such disciplinary action and make him
whole for any loss of earnings and other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended26
ORDER
The Respondent, Verizon New York, Inc., New York and Olean, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Disciplining or otherwise discriminating against any employee because the Union or
an employee has filed a grievance.
(b) Threatening an employee that it will discipline an employee if a grievance is filed.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Scott Folts whole for any earnings and other benefits lost on or about
September 20, 2006 because we disciplined him.
(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful warning issued to Scott Folts and, within 3 days thereafter, notify the
employee in writing that this has been done and that the suspension will not be used against
him 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

26 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.
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Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its Olean, Arcade and Wellsville,
New York, facilities copies of the attached notice marked “Appendix.”27 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 altered, 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
facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by the
Respondent at any time since February 13, 2007.
(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.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., March 19, 2008
_____________________________
Michael A. Rosas
Administrative Law Judge

27 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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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 or otherwise discriminate against any of you for filing a grievance or
otherwise engaging in protected concerted activity.
WE WILL NOT threaten you or any other employee with discipline if you file a grievance.
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 make Scott Folts whole for any earnings and other benefits, lost on or about
September 20, 2006, plus interest, because we disciplined him,.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discipline of Scott Folts, and WE WILL, within 3 days thereafter, notify him in writing
that this has been done and that the suspension will not be used against him in any way.
VERIZON NEW YORK, INC.
(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.
130 S. Elmwood Avenue
Suite 630
Buffalo, New York 14202
Hours: 8:30 a.m. to 5 p.m.
716-551-4931.
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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, 716-551-4946.