Verizon Wireless

National Labor Relations Board - Administrative Judge Opinions

Dec 23, 2005

02-CA-035987 (N.L.R.B. Dec. 23, 2005)

JD(NY)-55-05
Orangeburg, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CELLCO PARTNERSHIP D/B/A/ VERIZON WIRELESS
and Case No. 2-CA-35987
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO
Judith M. Anderson, Esq., New York, NY, for the General Counsel.
Kenneth A. Margolis and Harlan J. Silverstein, Esqs. (Kauff McClain & McGuire LLP),
New York, NY, for the Respondent.
Atul Talwar, Esq. (Semel, Young & Norum, Esqs.), New York, NY,
for the Union.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge. This case was tried in New York, NY, on
13 days between January 25 and April 13, 2005.1 Based on certain charges filed by the
Communications Workers of America, AFL-CIO (Union), a complaint, which was amended at
the hearing, was issued on October 28, 2004 against Cellco Partnership d/b/a Verizon Wireless
(Respondent or Employer).2
The complaint alleges essentially that the Respondent discharged Thai Nguyen, and
disciplined Greg Neubauer and Steven Ferrante because of their activities in behalf of the
Union. The complaint further alleges that the Respondent (a) enforced a no-solicitation rule in a
selective and disparate manner by applying it only against employees engaged in union
activities, and by prohibiting union solicitation while permitting non-union solicitation (b)
promulgated by oral announcement and maintained a rule prohibiting solicitation in employee
work areas and on employee break time and (c) prohibited its employees from discussing their
terms and conditions of employment. The complaint, as amended at the hearing, further alleges
that the Respondent threatened employees with unspecified reprisals if they engaged in union
activities, and that it interrogated its employees regarding their union activities. The
Respondent’s answer denied the material allegations of the complaint, and its answer to the
amendment alleged that it is barred by Section 10(b) of the Act, and the doctrines of laches,
estoppel, and unclean hands.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by all parties, I make the following:

1 The last day of hearing was on April 13. Counsel for the General Counsel requested a
further day of hearing to present a rebuttal case. Thereafter, the General Counsel withdrew that
request and the hearing was closed by Order.
2 An original charge and a first, second, third and fourth amended charges were filed,
respectively, on December 11, 2003, and on January 8, February 19, March 4, and May 27,
2004.
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Findings of Fact
I. Jurisdiction
The Respondent, a partnership having its principal office and place of business located
at 180 Washington Valley Road, Bedminster, New Jersey, has been in the business of providing
wireless telecommunication services to customers throughout the United States. Annually, the
Respondent derives gross revenues in excess of $500,000 from its business, and purchases
and receives equipment and other goods and materials valued in excess of $50,000 directly
from suppliers located outside New Jersey. 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. The Alleged Unfair Labor Practices
A. Background
This matter involves the Respondent’s Orangeburg, New York customer service center,
at which 400 to 600 customer service representatives, supervised by 30 to 40 supervisors and
managers, provided services for the Respondent’s wireless customers. The customer service
representatives were located on the second floor of the facility where they worked in cubicles in
fairly close proximity to their immediate supervisors. Their entry on and off duty was recorded
when they logged onto and off their computer-telephones, called the aspect phone system.
B. Steven Ferrante
1. Facts
a. The Alleged Violation Concerning Ferrante’s Union Solicitation
and Threat Concerning Such Solicitation
Ferrante began work for the Respondent as a customer service representative in
August, 1998, and in December, 2001, received a promotion to technical support coordinator.
Ferrante stated that the Union engaged in efforts in 1999, 2002 and in the summer of
2003 to organize the Respondent’s employees. Ferrante had been a member of the Union for
many years, even before he began work for the Respondent, and he began organizing for it in
1999, about one year after he began work. Ferrante actively supported the Union’s
organizational efforts in each of the campaigns by speaking about the Union to his co-workers
on the work floor and giving them cards to sign in that area. He also posted Union flyers on
bulletin boards in the employee break room. He signed two cards, one on October 1, 2002
which he received at the parking lot gate, and the other on September 17, 2003 at his desk from
a co-worker.
Associate director John Bigley testified that in early October, 2003, he was told by
employee Lilly Budesingh that Ferrante interrupted her while she was talking to a customer,
asking her to sign a Union card. He was also told by employee Tom Regan that Ferrante
interrupted him and later asked him to sign a card, and that Regan noticed Ferrante loudly
asking employees on the work floor for their opinion of the Union. Bigley told Regan that
Ferrante was not prohibited from voicing his opinion about the Union. Bigley mentioned these
complaints to Eileen Akbar, the human resources consultant, who asked Bigley to speak to
Ferrante.
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Ferrante testified that Bigley called him into his office, where they spoke alone. Ferrante
quoted Bigley as follows: “It’s come to my attention that people have seen you soliciting for the
Union on the floor. It’s against company policy to solicit on the floor.” Ferrante falsely denied
soliciting for the Union on the floor. Bigley then said that “they saw you handing out cards,”
adding that “if you want to solicit for the union, you can do so in the break room or off the
property. But there’s no soliciting on the floor.”
Bigley’s version of the conversation is that he told Ferrante what the two employees told
him about Ferrante’s solicitation. Ferrante denied doing anything wrong, and said that he was
“just joking.” Bigley reminded him of the Respondent’s solicitation policy, told him that he is
entitled to his opinion about the Union, but warned that he cannot solicit when employees are on
the phone working. No discipline was imposed on Ferrante. In early November, 2003, Bigley did
not personally know whether Ferrante supported the Union’s efforts at the Respondent, nor did
he see Ferrante engage in any Union activities.
Bigley’s communication time dated October 9, 2003 stated as follows: 3
Spoke with Steve regarding recently reported concerns from
others in the tech support and Roaming teams, that he was
soliciting union cards in rep cubicles and asking reps if they were
going to sign union cards.
Steve advised that he was not passing out union cards in the
team. He did say that he was “joking” about the union to the team
but that’s it. I advised him of the No-solicitation policy and that he
cannot be soliciting to other reps in the workplace. I advised that
he has a right to his opinion of the union, but he cannot solicit
others in the team in the workplace.
Later that month, Ferrante was in the office of supervisor of technical support Anthony
Edwards, where they spoke for about 10 minutes about a call between Ferrante and a
customer.4 Ferrante offered an excuse as to why he did not handle the call correctly, and left the
supervisor’s cubicle to confirm that excuse with a co-worker. He then told Edwards that there
had been a problem that day justifying his alleged error. Edwards then said, according to
Ferrante: “Look, Ferrante, off the record, I don’t give a fuck if the Union gets in here or not. But, I
do know what the company will do. Lay low. Keep out of trouble. And don’t let Bigley get a hard
on for you.”5
Edwards testified that he was not aware that Ferrante was an active supporter of the
Union, had no conversations with him about the Union, and did not see him distribute literature
for it. Nevertheless, Edwards was aware that the Union had been attempting to organize the
employees of the Respondent, and that the company has mentioned the Union on its website.

3 A communication time is a written account of a supervisor’s discussion with an employee.
That document may or may not be shown to the worker, and may be placed in the employee’s
personnel file.
4 It was stipulated that Edwards is a statutory supervisor.
5 Ferrante’s first pre-trial affidavit was silent as to this alleged threat. He stated that he asked
the Board agent not to include it as he did not want to get Edwards “in trouble.” The Union’s
assertion in its brief that the statement was included in Ferrante’s second affidavit is not
supported by the record evidence.
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He has also observed union agents approaching cars in or around the parking lot. However,
Edwards denied initiating a conversation with Ferrante about the Union, and specifically denied
the conversation attributed to him.
b. The Alleged Threatening Conduct Toward a Supervisor
The following month, on November 4, Ferrante and about 11 employees attended a
training session which was scheduled to begin at 2:00 p.m. At the start of the session, two
supervisors announced that if any of their cars were parked in reserved or visitor parking
spaces, they must move their cars or they will be towed. Ferrante, whose vehicle was in a
visitor’s space, and six or seven other employees left to move their cars, and then returned.
Supervisor Frank Pedrayes advised them that since they had to begin the session late, those
employees who moved their cars would be marked late. Ferrante and others protested, saying
that they had been directed to move their cars. Employee Sharif Murray said he was concerned
that his recent promotion would be jeopardized if he is marked late. Supervisor Marvulli told him
that he should not worry about it since supervisor Antonius Thomakos would take care of it.
Other employees then protested that one employee should not be treated differently than the
others. Pedrayes angrily responded that the situation was comparable to an employee arriving
at work on time, but then taking an unauthorized break.
Ferrante testified that during a break in the session, at about 3:30 or 4:00 p.m., he used
the bathroom and then, on his return to the session, saw co-worker Patrick McLoughlin
speaking to Dionne Carter, the manager of technical support. Ferrante, who was about 10 to 15
feet away from Carter, asked her whether those who moved their cars would be marked late.
Carter replied that they would. Ferrante answered “oh, that’s messed up,” and then returned to
the session with McLoughlin.
McLoughlin testified that during the break, Carter asked various workers including him
and Ferrante if they were late. They both denied being late, and Carter asked Ferrante if he had
to move his car. He said he did, but repeated that he was not late. Carter then said that he may
be subject to a “write up” because technically he was late. Ferrante, who stood about nine to
twelve feet from Carter, with McLoughlin between them, replied “that’s messed up,” and they
returned to the training session. McLoughlin denied hearing Ferrante raise his voice, wave his
hands or make any hand gestures which could be considered threatening.
Ferrante testified that within the next week, supervisor Edwards told him that Carter
believed that he was angry at her. Ferrante asked why. Edwards said because of “the other
day.” Ferrante asked whether the issue was parking, and Edwards agreed.6 That day, Ferrante
approached Carter because he was curious as to why she believed he was angry at her. He
stood about two to three feet away, and asked whether she believed that he was angry at her.
She said she was. He asked if it related to the parking matter, and Carter said yes. Ferrante
said he was not mad at her since she was “only the messenger,” and then left.
That night, Ferrante believed that it was “weird” that Carter thought he was angry at her,
and had “not really responded” in their earlier conversation, so one or two hours after their initial
discussion that day, he approached her again, asking did she “really think” he was mad at her.
Carter again said yes. Ferrante again reassured her that he was not mad at her and left.

6 In this respect, Ferrante later contradicted himself, stating that he did not volunteer that the
issue was because of the parking lot matter. Rather, he was just thinking to himself that that
was the issue.
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Carter testified that on November 4 she was advised by administrative supervisor
Thomakos that several tech support representatives had parked illegally, which he termed a
“recurring problem.” He asked Carter to address this issue with them, mentioning Ferrante,
McLoughlin and two others. She noticed Ferrante that day during a break in the training session
and she called him over. They spoke alone. Carter asked Ferrante if he parked illegally that day.
He said he did. Carter said that he should not be parking in that area. Ferrante said he was
aware of it, but did so because he did not want to be late to work. 7 Carter advised that he
should allow extra time to get to work, and suggested a shuttle bus. Carter stated that Ferrante
did not appear to be taking her seriously. She persisted, repeating that he parked illegally in a
reserved spot.
At that point, according to Carter, Ferrante, whose face was red, loudly and aggressively
asked “what does that mean? Are you going to mark me late for the day?” He began walking
toward her with his elbows bent, palms facing outward at chest height, his chest thrust forward,
causing Carter to back up to avoid contact with him. Carter testified that she was very frightened
and felt threatened, believing that he was attempting to intimidate her. At that moment,
Pedrayes approached from behind her and stood next to her, and repeated the information she
gave him about parking and lateness. She then directed Ferrante to return to the training
session.
Ferrante testified that he was two to three feet away from Carter during their
conversation, and did not raise his voice, flail his arms, or threaten her in any way.
Pedrayes testified that he heard Ferrante speaking very loudly to Carter, and walked
toward the area, behind Ferrante. He observed Ferrante walking towards Carter. No one else
was present. He described Ferrante as being agitated, very loud, red in the face, his chest
thrust out, with his hands outstretched to his sides, saying “what do you mean I’m going to be
marked late?” As Ferrante walked forward, Carter took two steps backward, explaining to him
that he could not park in a reserved space. Ferrante calmed down and left. Pedrayes’
communication time that day described Ferrante’s actions, as follows: “Steve started walking
over to Dionne, he was stepping closer to her stating, ‘if the parking lot is full, I’ll park in any
available spot.’ I noticed his arms were out and Dionne was stepping back almost as if she was
uncomfortable. I stepped in to assist Dionne in explaining the parking guidelines. After this
Steve went back to his desk.”
Carter further testified that five minutes later she called two other employees over,
including McLoughlin. She spoke to both about the importance of not parking in reserved
spaces, and said it was possible that they would be considered late. Ferrante approached, was
very calm and just stood there. Carter first testified that Ferrante said nothing at that time and
that she had no further communication with Ferrante that day, but then testified that she
believed he said something at that time, and in a later communication time memo about the
incident claimed that he again asked if he would be marked late, and she replied that it was
possible but no decision had been made. All three workers then returned to the training session.
Carter then told associate director Bigley what occurred during her first conversation with
Ferrante, and that Pedrayes was a witness. She mentioned that she was frightened, intimidated
and felt unsafe. Bigley asked her to write a communication time about the incident, and asked

7 Ferrante and co-worker Patrick McLoughlin stated that parking spaces were limited, and
each day employees parked illegally.
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her to have Pedrayes write one also. Her communication time was consistent with her
testimony, except that the memo stated that she told Ferrante that he could be disciplined for
parking illegally and for doing so to avoid being late, and that he could be marked late that day.
Bigley’s communication time was consistent with Carter’s testimonial version of the incident.
Carter further testified that two days later, on November 6, she approached Edwards’
desk and saw Ferrante seated there. Ferrante apologized to her for what happened and said he
hoped she did not “take it the wrong way.” Carter replied that she did not feel that way about it,
and that his conduct made her “uncomfortable.” The following week, Ferrante again apologized
to her, saying that it was a case of him “killing the messenger” and he did not mean anything by
it. Carter did not reply, but told Edwards and Bigley about this contact. According to Edwards,
Ferrante apologized to Carter, and then said he hoped she knew that he did not take it
seriously. Carter replied that she took it seriously and it was “very upsetting” to her.
Bigley informed the human resources department of the incident, and was later informed
by consultant Akbar that a decision was made to issue a final written warning to Ferrante. On
November 13, Ferrante received a final written warning for violating the Code of Business
Conduct, which states, in relevant part:
General Behavior –
Verizon Wireless employees are required to treat fellow
employees, vendors and customers with respect, dignity, honesty
and fairness. It is Verizon Wireless’ policy that threatening,
insubordinate violent or obscene behavior by any employee will
not be tolerated. Conduct that encourages or permits an offensive
or hostile work environment will not be allowed. Prohibited
conduct includes, but it is not limited to, derogatory remarks,
discriminatory slurs or harassing jokes. Instead, employees are
expected to communicate with candor and respect, listening to
each other regardless of level or position. When dealing with
customers, vendors and other employees, employees will treat
others with respect, by:
- Being courteous and respectful at all times in person, on
telephone calls and in all correspondence or communication;
Unprofessional behavior or prohibited conduct that is harmful to
the Company’s performance will not be tolerated.
Threats and Violence in the Workplace –
Verizon Wireless will take all steps necessary to protect its
employees and its customers from violent conduct. Employees will
not be permitted to endanger co-workers or customers directly or
indirectly.
Employees are required to maintain a positive work environment.
No one is permitted to behave in a threatening, violent, harassing
or obscene manner.
Engaging in any form of violence that affects the workplace, e.g.,
destruction of Company property or premises, physical
intimidation, assault or threat of violence, regardless of where
these acts occur is prohibited.
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The warning stated that when Carter approached Ferrante to discuss the importance of
not parking in reserved parking spaces, he advised that he parked in the space to avoid being
late, and she replied that parking in a reserved space was a violation, and that this matter was
“previously reviewed with the team.” The warning further stated: “At this time, you were
observed by … supervisor Frank Pedrayes addressing and approaching Dionne in a manner
that was viewed to be a [sic] threatening and hostile. Frank ultimately had to intervene in an
effort to not let the situation get escalated.”
Ferrante received the warning from Bigley and Pedrayes. Bigley told him that he
threatened Carter and violated the Code of Business Conduct. Ferrante denied doing so, and
Pedrayes said he was there, and saw that “you walked up to her and threatened her.” Bigley
said he could not engage in such conduct, that she is a woman and he was face to face with
her.
Both Carter and Pedrayes denied any knowledge of Ferrante’s union activities.
2. Analysis and Discussion
a. The Alleged Interrogation and Warning
Ferrante was an open supporter of the Union, speaking to employees about the Union in
their work area, giving them cards on the work floor, and posting flyers on employee bulletin
boards. He was told by supervisor Bigley that it had come to Bigley’s attention that he had been
seen on the work floor soliciting for the Union. The complaint alleges that Bigley’s remark
constituted an unlawful interrogation of Ferrante.
In Rossmore House, 269 NLRB 1176 (1984), the Board abandoned its per se approach
concerning questioning of employees about their union activities. Instead, the Board examines
all the circumstances surrounding the conversation. Here, I find that Ferrante was an “open and
active” supporter of the Union. I base this finding on Ferrante’s testimony that he spoke to
employees on the work floor about the Union and distributed Union cards to them there,
presumably in plain view of anyone walking by or observing him. Further, I credit Bigley’s
testimony that he was told that Ferrante loudly asked employees their opinion of the Union on
the work floor. Accordingly, questioning of Ferrante about his Union activities, in the absence of
threats or promises, does not violate the Act. Rossmore House, above. I therefore find and
conclude that Ferrante was not unlawfully interrogated by virtue of Bigley’s statement.
The communication time recorded by Bigley regarding their conversation will be
discussed below in the context of the alleged unlawful application of the no-solicitation clause.
I cannot credit Ferrante’s testimony concerning supervisor Edwards’ alleged comment
that he did not care if the Union successfully organized the Respondent’s employees, but that
he was aware of what the company will do, warning him to lay low, keep out of trouble, and
don’t let Bigley get a hard on for him.
First, this conversation came “out of the blue,” during a meeting concerning a customer
call. It was devoid of any context or reason as to why Edwards would raise this matter at that
time. Second, Ferrante’s explanation that he told the Board agent about the comment but
convinced her not to include it in his first affidavit because he did not want to get Edwards in
trouble is less than persuasive. In addition, there is no evidence that the comment was included
in Ferrante’s second affidavit. Further, I find that Ferrante’s credibility was lacking with respect
to his confrontation with supervisor Carter, for the reasons discussed below. I accordingly credit
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Edwards' testimony concerning the alleged warning.8 I therefore find and conclude that Edwards
did not make that comment, and I will recommend that that allegation be dismissed.
b. The Alleged Threatening Conduct Toward Carter
The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by
issuing a final written warning to Ferrante for his allegedly threatening conduct toward Dionne
Carter.
In order to prove such a violation, the General Counsel must establish four elements by
a preponderance of the evidence. First, the General Counsel must show the existence of activity
protected by the Act. Second, the General Counsel must prove that the Respondent was aware
that the employee had engaged in such activity. Third, the General Counsel must show that the
alleged discriminatee suffered an adverse employment action, and finally the General Counsel
must establish a motivational link, or nexus, between the employee's protected activity and the
adverse employment action. American Gardens Management Co., 338 NLRB 644, 645 (2002).
Once the General Counsel has made the showings required above, the burden shifts to the
Respondent to prove that it would have issued the warning even in the absence of Ferrante’s
protected conduct. Wright Line, 251 NLRB 1083 (1980).
First, it is obvious that Ferrante was an open and active Union supporter. He solicited
employees to sign cards and distributed cards to employees on the work floor. He was
admittedly spoken to by supervisor Bigley about such conduct. Although Bigley denied being
actually aware that Ferrante engaged in such conduct, it is clear that Bigley had sufficient
reason to believe that he was doing so. Thus, he was told by two other employees that Ferrante
asked them to sign cards. Bigley told human resources consultant Akbar about those employee
comments, and was directed by her to speak to Ferrante about the Respondent’s solicitation
policy.
Wright Line requires the General Counsel to make an initial showing that the protected
conduct of an employee was a motivating factor in an employer's decision to take disciplinary
action. Proof of such discriminatory motivation can be based on direct evidence of animus
toward the protected activity or can be inferred from circumstantial evidence based on the
record as a whole. To support an inference of unlawful motivation, the Board looks to such
factors as inconsistencies between the proffered reasons for the discipline and other actions of
the employer, disparate treatment of certain employees compared to other employees with
similar work records or offenses, deviations from past practice, and proximity in time of the
discipline to the protected activity. Robert Orr/Sysco Food Services, 343 NLRB No. 123, slip op.
at 2 (2004).
As to the issue whether Ferrante’s union activities was a motivating factor in his being
issued a final written warning, I have recommended dismissal of the two incidents relied on by
the General Counsel to support a finding of animus. Thus, I have not found that Ferrante was
unlawfully interrogated by Bigley or that he was unlawfully warned by Edwards. Accordingly, the
motivational link between Ferrante’s unquestioned Union activities and the warning issued on
November 13 is weak. However, even if I found that Ferrante was unlawfully interrogated and

8 In view of my recommendation that the allegations of an unlawful interrogation of, and
warning to Ferrante, be dismissed, it is unnecessary to discuss the Respondent’s arguments
that the complaint was improperly amended, in violation of Section 10(b) of the Act, to include
those allegations.
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warned, I would find that the Respondent has met its Wright Line burden.
Thus, the evidence supports a finding that the Respondent was justified in issuing the
final written warning, and would have done so even in the absence of Ferrante’s Union
activities. Wright Line, above. Thus, I have credited the consistent, mutually corroborative
testimony of Carter and Pedrayes as to Ferrante’s conduct on November 4. It is true that there
are minor variations between the two versions, including Pedrayes’ testimony that he
approached the scene from behind Ferrante, while Carter testified that Pedrayes appeared from
behind her while she faced Ferrante. Nevertheless, regardless of where Pedrayes happened on
the scene, he was able to observe the nature of the confrontation.
The mutually corroborative written account of the encounter recorded by Carter and
Pedrayes contemporaneously with its occurrence lends credence to their version of the incident.
In addition, it is likely that Ferrante, who admittedly protested when first told by Pedrayes that he
had to move his car and would be marked late, would have reacted strongly at this supposed
unfairness when Carter repeated that comment.
Ferrante’s admitted remark to Carter that she was the “messenger” implies that she was
the bearer of bad news, and he acted out against the messenger. I understand that he
explained that remark by saying that since she was only the messenger he was not angry at
her, but Carter’s version of the statement, that Ferrante told her that it was a case of “killing the
messenger” is more believable, and supports a finding that Ferrante considered his strong
reaction to Carter’s statement uncalled for. Along these lines, Ferrante stated that he asked
Carter twice in one evening after the incident whether she believed that he was angry at her.
She said she did. It is significant that Ferrante did not ask her why she thought he was angry at
her. Although it is true that either Ferrante volunteered or Edwards mentioned that the issue
was the parking matter, nevertheless, I believe it odd that Ferrante did not question Carter as to
precisely why she believed that he was angry at her, particularly since his admitted comment to
Carter, “that’s messed up,” was quite innocuous. If that comment was all he said or did at the
time, he would surely have questioned her as to why she believed that inoffensive remark would
have caused her to believe that he was angry at her. The obvious answer is that something
more than that harmless statement was made. It is clear that Ferrante knew that his conduct in
confronting her in an intimidating manner caused her to believe that he was angry at her, and he
did not have to ask her for more information.
It is thus likely that Ferrante would have been angered at the allegedly unfair prospect of
being marked late, and would have had a more outspoken protest than “that’s messed up,”
especially in view of his vocal protest to Pedrayes earlier, and his belief that another, recently
promoted employee would receive special treatment by being excused for the alleged lateness.
Further, Carter’s credited testimony that Ferrante apologized on two occasions for his conduct is
corroborated by supervisor Edwards who was present during one of the apologies.
This is not a situation which was contrived by the Respondent in order to retaliate
against Ferrante for his union activities. It clearly was begun by Ferrante’s confrontation of
Carter in an intimidating manner. I accordingly find that Ferrante’s conduct was in violation of
the Respondent’s Code of Business Conduct, set forth above, and the final written warning was
not improperly issued. Accordingly, I shall recommend that this allegation of the complaint be
dismissed.
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C. Greg Neubauer
1. Facts
a. Neubauer’s Union Activities
Greg Neubauer, a customer service representative who began work in March, 2001, was
an active union supporter. Neubauer testified that in 2003 and 2004 he distributed 30 to 40
cards in behalf of the Union, and wore a T-shirt which had the Union’s logo and name and the
words “UNION YES” in large letters imprinted on it. He wore the shirt sporadically about two
times each week, possibly on “casual Fridays” in 2002 and 2003. Nothing was said to him by
any management official about his wearing the shirt. On June 30, 2003, Neubauer was
identified in a New York Times article entitled “Union and Verizon at odds on focus of talks,” as
being a customer service representative at the call center in Orangeburg, NY. He was quoted as
saying “the unionization campaign there failed because of management’s campaign against it. A
lot of people are for the union, but people are afraid – some of them are intimidated.” Neubauer
stated that that newspaper was sold in the Respondent’s cafeteria. No management official
spoke to him about the article.
In July, 2003, employees Neubauer, Nguyen, and Scott Nappi recorded a video
presentation behind the Respondent’s premises in which they spoke about the benefits of
unionization. It was released in the period January to March, 2004. After its release, Neubauer
saw it on the Union website. No management official spoke to him about his appearance in the
video.
In August, 2003, a staff meeting was held which was attended by 60 employees, and
Christopher Grennan, the general manager, Matt Antonek, a Verizon attorney, and Carolyn
Collins, the director of customer service. Antonek described the recent union contract with the
wireless technicians. Neubauer asked why those employees were able to negotiate job
responsibilities and obtain a grievance procedure and merit raises, while the customer service
representatives were not. Antonek did not respond. No management official told Neubauer that
he or she was upset by his question at that meeting. Neubauer continued to receive
commendations for his work after he was outspoken about the Union at that meeting.
b. The Warnings
Associate director of customer service Loraine Smith testified that in August, 2003,
supervisor Janet Parker told her that employee Danaya Hilton complained to her about
unwanted text messages and visits to her desk by Neubauer, and that Hilton asked him to stop
the messages but he did not. Smith consulted director of customer service Collins, who told her
that it was not a company issue at that point, and that she should tell Neubauer to stop. About
one week later, Parker told Smith that Hilton reported to her that Neubauer was continuing his
messages and visits, that he was trying to have her sign for the Union, and continually
interrupting her work.
Smith stated that on August 27, Hilton again complained to her that Neubauer continued
to text message and visit her, asking her to sign for the Union. According to Smith, Hilton
described his conduct as “relentless.” Two of the messages she received that day at work
denigrated the company. Smith said she would talk to Neubauer. Smith told Collins that this was
a second complaint against Neubauer by Hilton, and that Hilton told her that Neubauer was
harassing her.
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Smith met with Neubauer on August 28, and according to her, she told Neubauer that
Hilton complained about receiving text messages. He replied that he knew that Smith would
speak to him because Hilton told him a supervisor was “pressuring” her to stop text messaging
him. Smith told Neubauer that Hilton asked that he stop “harassing” her. Smith told him to stop
text messaging Hilton, visiting her while she was at work and interrupting her while she spoke to
customers with a discussion about the Union and a request that she sign for it. He replied that
he told Hilton that he would stop such conduct. A couple of days later, Smith told Hilton that she
spoke to Neubauer.
Neubauer’s version of the August 28 meeting is that Smith told him that she received a
complaint from Hilton that he was “harassing” her at her desk about signing up for the Union.
Neubauer replied that he was not “aware of this going on” and asked if there was something in
writing concerning the matter. Smith said no. Neubauer asked for a meeting with the human
resources department. Neubauer stated that Smith refused the request, saying that it is a matter
just between them, and could not be discussed with human resources personnel. She also said
that he should “not go onto the floor and talk to any of the co-workers or the managers or even
talk about non related work issues, including the Union, on the floor.” He further quoted her as
saying that he could not talk about the Union on his break time, and that “if I did speak to
somebody on the floor that I could be terminated; disciplined also.”
The Respondent apparently invited its employees to an informational meeting about the
Union, and on September 23, Neubauer sent an e-mail asking “how can I attend the anti-union
meeting with Matt Antonek? Me and a few others have questions that [sic] would like to be
answered. I really would like to participate.”
On October 2, an e-mail was sent by management to all employees entitled “CWA
SAYS ‘we won’ did they?” which contradicted the Union’s September 10 claim of victory over
management in recent negotiations. The Respondent’s e-mail stated that the Union could not
brag about the wireless contract just negotiated since it achieved none of its goals, and although
management did not want to “diminish” the contract it agreed to which it termed “fair,” it stated
that it was “nowhere near the deal the union demanded.”
Neubauer immediately sent a reply which stated “oh by the way, why don’t you tell
everyone wireless techs make over $50,000 your [sic] a disgrace smearing you [sic] own
employees.” He printed his reply and brought it to the desk of co-worker Kim Rivieccio, who was
not speaking on the phone to a customer at that time. They discussed the two e-mails.
Neubauer stated that he told her to show it to her supervisor and other workers. Neubauer at
first testified that he did not recall telling Rivieccio to show his response to her “fucking
supervisor,” but later denied doing so.
Smith stated that in early October, 2003, Myra Rivas told her that Neubauer had been
frequently visiting her at her desk while at work, interrupting her, asking her to sign a card for
the Union, trying to give her information and a Union card, and “getting on her nerves.” He put a
picture of himself on her desk which she removed but he replaced. Finally, she spoke to her
supervisor Constance Crews Young 9, about the matter, who advised her to remove it.
Neubauer asked Rivas where it was and she replied that she did not know. Neubauer answered
that he knew that that “bitch” Crews took it as she hates him. Rivas did not testify.

9 She will be referred to hereafter as “Crews.”
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On October 8, Neubauer was called into a meeting with supervisor Robin Nowak and
official Loraine Smith, who told him that following the complaint she received from Hilton in
August, she received additional complaints from Rivieccio and Myra Rivas that he was
“harassing” his co-workers on the work floor, including forcing Rivas to sign a card for the Union,
and using foul language. Neubauer responded that he was “not aware” of this, and denied
forcing Rivas to sign a card. At hearing, he conceded having “casual” conversations with Rivas
about the Union on non-work time, but denied repeatedly trying to have her sign a card at her
desk. His request to meet with the human resources department and Rivas was denied by the
two supervisors. Neubauer testified that Smith advised that he would be informed shortly what
steps would be taken, but that he “shouldn’t go on the floor to speak to anybody about it,
employees or managers, because if I do there could be additional discipline or even [sic]
terminated.”
Smith testified about her early October meeting with Neubauer, at which Nowak was
present. Smith stated that they reviewed their August 28 discussion regarding Hilton. Neubauer
denied continuing to text message Hilton. They said they received complaints from two other
employees. Neubauer denied cursing when he gave Rivieccio his e-mail response. He also
denied cursing in referring to supervisor Crews, and denied speaking to Rivas at her desk about
the Union. Smith told him that a total of three employees complained about his harassing them
by speaking to them at their desk about the Union and attempting to have them sign for the
Union, and that he was asked to stop and has not. Neubauer accused Smith of believing the
others and not him.
Smith spoke to director of customer service Collins, and on October 8, Neubauer
received a written warning issued by Smith. The warning stated, in relevant part:
On August 28 you were verbally warned for soliciting employees
during work time after concerns about violations of our policy were
brought to my attention by co-workers. At that time, we reviewed
our No-solicitation Policy and my expectations about general
behavior in the workplace. On October 1, I received a second
complaint from another co-worker about further violations on your
part, including both engaging in solicitation during working time
and making inappropriate and insubordinate remarks about your
former supervisor (referring to her as “that bitch”). Additionally a
second employee came forward on October 2 to share that you
had used offensive language again. As a result of these repeated
violations of the solicitation and distribution policy and of other
requirements of the Code of Conduct, you are being placed on a
Written Warning.
The warning quoted management’s policies on solicitation, distribution and offensive
conduct. Neubauer told Nowak and Smith that the complaints were “false.” At hearing,
Neubauer stated that he did not recall referring to his former supervisor as a “bitch.”
Thereafter, Smith and the human resources department told Neubauer that the warning
would expire after 90 days. Following the issuance of the warning, Smith noticed that Neubauer
wore his union shirt more often than before.
Neubauer stated that he first spoke to Hilton on November 8 regarding her complaint
about him. He waited more than two months after the August 28 warning to speak to her
because he was afraid of being discharged due to Smith’s warning that he not speak to anyone
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about it. He did not want to say anything to anyone and tried to “lay low,” hoping that the matter
would “go away.” 10 He and Hilton were friends, and according to Neubauer, Hilton told him that
she had not complained about him, and the alleged harassment “did not happen.”
Neubauer testified that in December, Hilton told him that she was “very upset” that
management claimed that she accused him of harassing her and attempting to make her sign
for the Union. Neubauer asked her to give him a signed letter to that effect. She agreed “as long
as it’s between us.” On December 16, he asked Hilton to write her version of the incident. He
denied waiting until then to ask her because he received a final written warning on December 8
and believed that he would be discharged.11
Instead of her writing it, Neubauer typed a letter and left it with Hilton at her desk.
According to Neubauer, Hilton asked him to return later at which time she would give it to him.
One hour later he did so. The letter states: “12/16/03. I Danaya Hilton never was solicited or
harassed by Greg Neubauer for Union activity nor did I make any complaint to Verizon Wireless
management.” It bears a signature, but at hearing, Hilton denied signing it, as set forth below.
Neubauer kept the letter and did not give it to management, but he produced it at the hearing.
Neubauer stated that he occasionally used his cell phone to text-message his co-
workers during work time, conceding that he sent such messages to Hilton, but he denied going
to Hilton’s work area to “press” her to sign a union card. He did not recall attempting to talk to
her regarding nonwork matters while she was assisting customers on the phone. He did
concede that Hilton told him to stop sending her test messages, but that was after he received
the warning on October 8.
In December, 2003, Neubauer spoke to Rivieccio about the October 8 warning, asking
whether she complained about him harassing her regarding signing with the Union at her desk
and using obscene language. Rivieccio denied making a complaint.
On March 25, 2004, Neubauer received a revised written warning issued by Nowak,
which replaced the October 8 warning. He was told that the earlier warning concerning
solicitation of employees was removed from his file, and indeed that matter was absent from the
new warning which was issued by Smith, and which stated, in relevant part:
On October 1, I received a complaint from a co-worker about your
making inappropriate and insubordinate remarks about your
former supervisor (referring to her as “that bitch”). Additionally a
second employee came forward on October 2 to share that you
had used offensive language again, in regard to an e-mail of yours
that you told her to show to her “fucking supervisor friends.” As a
result of these repeated violations of the Code of Conduct, you are
being placed on a Written Warning.
Neubauer testified that the use of obscenities was commonplace at the premises, with
“everyone” using foul language, including supervisor Nowak who used the terms “shit” and
“damn.” Nowak did not testify. Neubauer stated that the heard the word “fuck” about five to ten

10 Neubauer’s pre-trial affidavit states that he first spoke to Hilton about the matter one
month after the August 28 warning.
11 That warning related to a different matter – being away from his desk while his phone was
available for customer calls.
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times per day at work.
Neubauer was discharged in May, 2004. A charge was filed concerning the discharge
but it was subsequently withdrawn.
c. The Testimony of Danaya Hilton
Danaya Hilton testified that in August, 2003, Neubauer text messaged her at work about
once or twice per day on her personal cell phone, and visited her desk once per day while she
was working. During the visits, he put Union cards on her desk nearly every day and told her
that the workers needed to sign cards for the Union because the Respondent does what it
wants. She found this conduct “annoying,” and told him to stop visiting her but he persisted,
although not as often as before. She said that company policy permitted the receipt of
emergency cell phone calls, but that text messaging and talking at one’s desk is prohibited.
Hilton complained to her supervisor Janet Parker and associate director of customer
service Loraine Smith about Neubauer’s conduct because she wanted it to cease. She showed
Smith certain of the text messages, in which he spoke about their jobs and Respondent, but not
the Union. Hilton denied responding to the messages.
Hilton stated that in late August or early September, 2003, one or two weeks after she
complained to Smith, Neubauer asked her if she complained to Smith that he was harassing
her. Hilton said no, adding that she complained that he was “annoying” her and she wanted it to
stop. Neubauer asked if she would sign a letter stating that she did not complain that he was
harassing her. Hilton agreed.
The following day, Neubauer brought her a letter which stated: “I Danaya Hilton never
was solicited or harassed by Greg Neubauer for Union activity nor did I make any complaint to
Verizon management.” Hilton told Neubauer that she would not sign it because it was not what
she agreed to sign. Neubauer agreed to write another letter and give it to Hilton, but he never
did so. The letter, produced by Neubauer at the hearing, but not given to management, contains
a signature “D Hilton” which Hilton denied she wrote. Neubauer stated that he did not see her
sign the letter. Hilton stated that she never signed her name with the initial of her first name and
full last name. The documents received in evidence bearing her signature support that
testimony.
I credit Hilton’s testimony in this regard. If she had actually signed the letter, it would
have supported Neubauer’s claim that he did not harass her, and it seems logical that he would
have presented it to management. Why would Neubauer ask her for the letter if he did not
intend to rebut management’s claim of harassment with her signed letter stating that he did not
harass her. But Hilton believably testified that she refused to sign the letter because it contained
the false statements that Neubauer did not solicit her for the Union, and that she did not
complain to management about his conduct. In fact, he did solicit her, and she did complain.12
d. The Testimony of Kim Rivieccio
Kim Rivieccio stated that Neubauer often discussed the benefits of the Union with her,
and if she disagreed, he would argue the matter, pointing out its positive features. She testified

12 The letter bore a date of December 16, 2003, which Hilton denied was on the letter when
he asked her to sign it.
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that in the Fall of 2003, Neubauer sent her an e-mail relating to the Union, then went to her desk
and showed her a document, perhaps the October 2 e-mail referred to above, that claimed that
the Respondent was “keeping something” from the workers, and told her to “show this to your
fucking supervisors.”
Rivieccio, who was on the phone with a customer at that time, found this approach
annoying, and loudly told him that she was on the phone, or asked him to leave her alone. Her
supervisor Bridget Armstrong, looked over toward them. Neubauer at first testified that he did
not recall telling Rivieccio to show his response to her “fucking supervisor,” but later denied
doing so.
Later, Rivieccio explained to Armstrong the nature of the conversation with Neubauer in
order to “cover” herself, and explain her possibly disrupting others with her loud rebuke of
Neubauer. She told Armstrong that she was “tired” of his conversations about the Union,
showed her the document Neubauer gave her, and repeated the obscene remark he made. She
also told Armstrong that she did not want her name involved, and was assured by Armstrong
that the matter would just be between customer service director Caroline Collins and Armstrong.
Rivieccio denied telling Armstrong that she was complaining about Neubauer. Thereafter,
Neubauer did not speak to her regarding any complaint she might have made to management.
Later that day, Rivieccio was called into a meeting with Collins and Armstrong. Collins
told her that she was permitted to speak about the Union, but such discussions could not affect
the performance of anyone’s job, by soliciting or approaching a worker’s desk and interrupting
them while they were working. Collins asked if Neubauer’s conduct bothered her. Rivieccio
replied that Neubauer was not bothering her and she was not making a complaint, but just
wanted it known that she was at her desk working, and that Neubauer constantly spoke about
the Union and was “lobbying” for it. Collins said that “nothing will be done” and that she should
not worry about it.
Rivieccio stated that she has heard the word “fuck” used at work, usually in the break
room or outside the building, but it was not commonly heard on the work floor during work time.
She noted that she was not offended when Neubauer used the term “fucking supervisor.” She
also stated that occasionally, when she was not speaking to a customer on the phone, she
spoke to co-workers, and at times her co-workers came to her desk and they asked each other
for help.
e. Solicitation by the Respondent’s Employees
The Respondent’s Code of Business Conduct was effective March 1, 2003. Regarding
solicitation and distribution of materials, it states as follows:
Solicitation – Solicitations are prohibited during the working time
of either the employee making the solicitation or the employee
who is being solicited. The term “working time” does not include
meal times, break periods, or other times the employee is not
required to be working.
Distribution – Distribution of non-work related literature is
prohibited in work areas at all times. Employees may distribute
literature in non-work areas on non-working time. “Non-work
areas” include places such as lunchrooms, washrooms, lounges
or any other area specifically set aside for non-work purposes.
The distribution of literature in such a manner as to cause litter on
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Company premises is prohibited.
Ferrante testified that between August 1 and November, 2003, he saw employees on the
work floor selling food and other items. Specifically, he saw Donald Byrd selling Coca Cola for
his church, and observed supervisor Edwards buying it without comment. Edwards denied doing
so, adding that he did not see Byrd selling that beverage. In October, employee Ingrid
Chockwells sold homemade jam which an employee bought. He also saw Girl Scout cookies
and candy being sold, with candy being sold nearly every two weeks. Those sales were
witnessed by supervisor Marvulli in October. Neither supervisor told the sellers that they could
not sell those items on the work floor. Ferrante was at work at each time he observed these
sales.
McLoughlin stated that in the year encompassing January, 2003 to January, 2004, he
saw employees selling similar items, and specifically saw employee Will Humphrey selling
meals prepared by his wife for $5.00 during the last quarter of 2003. In fact, McLoughlin
purchased them during his work time, and when he was on break. McLoughlin and his son sold
candy on his day off to workers who were then on work time. He observed supervisors on duty
at such times, and in fact, he sold candy to supervisor Pedrayes and associate director
Christopher Grennan. He was not advised to refrain from this solicitation. He also saw
supervisors purchase candles. Neither Pedrayes nor Grennan contradicted such testimony.
Neubauer testified that he saw employees solicit others in selling products or in making
donations. In the Fall of 2003, he saw employee Christine Johnson selling cookies and candy
for her children, and he made a purchase while on work time.
Nguyen testified that in 2003 he saw employees walking from cubicle to cubicle, selling
and buying products such as Girl Scout cookies, candy bars, and catalog items on the work
floor. Such solicitation, which occurred while he was on the phone with customers, occurred
once every few months that year. He specifically stated that he observed supervisors Crews
and Hahn purchase candy bars from an employee selling them for her child’s school’s fund-
raiser. Crews did not deny any of the above events. Hahn did not testify.
Nancy Percent, the Respondent’s executive director of human resources, testified that
solicitation is not permitted during work time in work areas, regardless of the reason for the
solicitation. She was aware of the employee who delivered lunches on company time, and she
was counseled to stop violating the no-solicitation policy. Similarly, if an employee’s selling
candy in violation of the policy was brought to management’s attention, it would be stopped.
On March 10, 2004, supervisor Marcella Cernaro wrote a communication time regarding
her conversation with employee Felicia Wooten. Cernaro observed her selling cookies and
candy on t*he work floor. Wooten explained that she had taken one-half day vacation to
undertake this activity. Cernaro told her that she could not solicit on the floor during work and/or
work break times or days off. Cernaro warned that any further violation of the no-solicitation
policy would result in further disciplinary action. On March 19, associate director Noreen Stack
wrote a communication time in which she told employee Jennifer Zaldivar on February 27 that
she could not sell Girl Scout Cookies in the work area. None of those mentioned in the two
communication times testified at the hearing. It should be noted that both communication times
were written after the filing of the third amended charge on March 4, 2004, which alleged, for the
first time, that the Respondent “enforced a no-solicitation policy selectively and disparately
whereby the Employer prohibited union solicitation and permitted nonunion solicitation.”
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2. Analysis and Discussion
a. The Pronouncement and Maintenance of Rules Prohibiting
Solicitation by Employees and their Speaking to Employees
about their Discipline and Terms and Conditions of
Employment
The complaint alleges that the Respondent orally announced a rule prohibiting
solicitation in employee work areas and on break time, and prohibited its employees from
discussing their discipline and terms and conditions of employment with their co-workers.
As set forth above, Neubauer testified that when he received the verbal warning on
August 28, Smith concluded the meeting by telling him that this matter was only between them
and that he should “not go onto the floor and talk to any of the co-workers or the managers or
even talk about non related work issues, including the Union, on the floor.” He further quoted
her as saying that he could not talk about the Union on his break time, and that “if I did speak to
somebody on the floor that” he could be disciplined or terminated.
Neubauer further testified that when he was given the written warning on October 8, he
was again told by Smith in Nowak’s presence that he “shouldn’t go on the floor to speak to
anybody about it, [the written warning] employees or managers, because if I do there could be
additional discipline or even [sic] terminated.”
In early October, supervisor Bigley admittedly told Ferrante that he received reports that
he was soliciting employees to sign cards, and he advised Ferrante of the no-solicitation policy,
and that he could not solicit employees “in the workplace.” A communication time dated October
9, set forth above, memorialized this message to Ferrante.
I credit Neubauer’s testimony regarding what he was told by Smith on August 28 and
October 8, because such testimony was not contradicted by Smith, and Nowak did not testify. I
find further support for my finding that the statements were made since the identical direction
was admittedly given to Ferrante by supervisor Bigley, set forth above, that he could not solicit
employees in the workplace. Additional support for my finding derives from director Blasko’s
admission that he advised Nguyen not to discuss the information he learned while witnessing
Nappi’s termination interview.
Thus, three rules were announced: Employees could not discuss or solicit for the Union
on the work floor or on their break time, they could not discuss non-related work issues, and
they could not discuss their discipline with their co-workers.
In determining whether the maintenance of certain work rules violates Section 8(a)(1) of
the Act, “the appropriate inquiry is whether the rules would reasonably tend to chill employees in
the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998). If the
rule explicitly restricts activities protected by Section 7, it is unlawful.
“It is well established that employees have the right under Section 7 to engage in union
solicitation on the employer’s premises during nonwork time, unless the employer can
demonstrate the need to limit the exercise of that right in order to maintain production or
discipline. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945). Absent such a
justification, a rule prohibiting employee solicitation which is not by its terms limited to working
time violates Section 8(a)(1) because the rule explicitly prohibits employee activity that the
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Board has found to be protected by Section 7. Lutheran Heritage Village-Livonia, 343 NLRB No.
75, slip op. at 1, 9-10 (2004); Our Way, Inc., 268 NLRB 394 (1983). “It is axiomatic that merely
maintaining an overly broad rule violates the Act.” Beverly Health & Rehabilitation Services, 332
NLRB 347, 349 (2000). The Respondent’s direction that Neubauer not discuss non-related work
issues presumably refers to his terms and conditions of employment.
In deciding whether a rule unlawfully prohibits employee discussion of discipline or
disciplinary investigations, the Board determines whether the employer’s asserted business
justifications for the prohibition outweighs employees’ Section 7 right to discuss such terms and
conditions of employment. Caesar’s Palace, 336 NLRB 271, 272 (2001).
In Westside Community Mental Health Center, 327 NLRB 661, 666 (1999), the Board
held that the respondent maintained an overly broad confidentiality rule by prohibiting
employees from discussing their discipline with other workers. There was no proof of a
legitimate business justification for the imposition of this prohibition. The Board held that such a
rule “constitutes a clear restraint on employees’ right to engage in concerted activities for mutual
aid and protection concerning undeniably significant terms of employment… Early in the history
of the administration of the Act the Board recognized the importance of freedom of
communication to the free exercise of organization rights.”
It is important that employees be permitted to communicate the circumstances of their
discipline to their co-workers so that their colleagues are aware of the nature of discipline being
imposed, how they might avoid such discipline, and matters which could be raised in their own
defense. In Phoenix Transit System, 337 NLRB 510 (2002), the Board found violative a
confidentiality rule prohibiting employees from discussing their sexual harassment complaints
among themselves. Here, the Respondent has not offered any business justification for
prohibiting Neubauer from discussing his written warning, and accordingly I find that it violated
Section 8(a)(1) of the Act in doing so.
I accordingly find and conclude that the Respondent’s oral promulgation of rules during
the conversations with Neubauer on August 28 and October 8 prohibiting union solicitation on
the work floor and on employees’ break time, prohibiting employees from discussing non-related
work issues, and prohibiting them from discussing their discipline, as set forth above, were
overly broad, and violated employees’ Section 7 rights in violation of Section 8(a)(1) of the Act.
b. The Warnings to Neubauer
The complaint alleges that on August 28 and October 8, 2003, the Respondent
selectively and disparately enforced its no-solicitation rule by applying it only against employees
engaged in Union activities, and by prohibiting Union solicitation while permitting non-Union
solicitation. The complaint alleges that the warnings given to Neubauer on August 28, October
8, 2003 and March 25, 2004 violated the Act in that they were issued (a) pursuant to the
Respondent’s unlawful application of its no-solicitation clause and (b) because of Neubauer’s
support of the Union.
The complaint does not allege that the Respondent’s no-solicitation clause is unlawful. It
is a facially lawful clause. What is alleged, however, is that in oral and written warnings to
Neubauer, the rule was set forth in such a way as to be unlawful, and that the rule was
selectively applied to prohibit union solicitation while permitting non-union solicitation.
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I find that although the Respondent’s no-solicitation policy was facially valid, it was
disparately applied by enforcing it against union solicitation, and not against other types of
solicitation.
Solicitations not involving the Union were frequent, widespread, openly conducted, but
did not result in any discipline. Thus, as set forth above, various food items were sold to
employees and supervisors on the work floor who were at work at the time. Those supervisors
who testified did not deny that such sales took place, with the exception of Edwards, who
denied seeing a sale attributed to him, and Percent who testified that she counseled one
employee not to sell food items.
The only documented instance of management’s awareness of such sales were two
communication times which were written only after a charge was filed alleging that the no-
solicitation clause was “selectively and disparately enforced.” No discipline was issued relating
to those two incidents. In contrast, Neubauer was issued a verbal warning on August 28, and
written warnings on October 8, 2003 and March 25, 2004, for engaging in solicitation in behalf of
the Union. Proof that the Respondent enforced its no-solicitation policy after the Union filed its
charge concerning this matter does not negate a finding that the warnings, when issued,
constituted disparate enforcement of the policy.
It must be noted in this context that the brief interruptions in work, if there were any, due
to Neubauer’s conversations with his co-workers consumed much less time than the
presentation of food items for sale, their examination and their purchase by employees.
The Board has held that an employer violates Section 8(a)(3) of the Act by issuing
disciplinary warnings to employees for violations of its no-solicitation rule in the context of a
union organizing campaign and in a manner disparate from past practices. The discipline of an
employee for violating a no-solicitation rule by engaging in union activity violates Section 8(a)(3)
of the Act when the discipline amounts to disparate enforcement of the rule. Discipline based on
such disparate treatment may be found to be motivated by union animus. Promedica Health
Systems, 343 NLRB No. 131, slip op. at 12, 31 (2004); Clinton Electronics Corp., 332 NLRB 479
(2000).
In ITT Industries, 331 NLRB 4 (2000), enf. 251 F.3rd 995, 1006 (D.C. Cir. 2001), the
Board stated that "it is well established that where an employer forbids employees to discuss
unionization on work time but permits discussion of other subjects unrelated to work, the
disparate rule is itself unlawful.” The Board noted that, notwithstanding the existence of a
facially valid no-solicitation rule, the employer permitted employees and managers to engage in
discussion and solicitation on the production floor. As occurred here, when certain employees
complained about an employee’s union solicitation, the employee was issued a warning not to
engage in any discussion of the union with any employee on the floor. The Board found that the
warning constituted disparate treatment, and violated the employee’s statutory rights.
Neubauer was an open and active Union supporter. The warnings that he was issued on
August 28, October 8, 2003 and March 25, 2004 related to his solicitation in behalf of the Union,
and were motivated by union animus inasmuch as he was disciplined for engaging in Union
solicitation, while others engaging in other types of solicitations were not disciplined. The
warnings related to his solicitations were inextricably intertwined with the warnings regarding his
conversations with Hilton and Rivieccio. Accordingly, his activities in behalf of the Union were
the motivating factor in the discipline given to him.
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The August 28 verbal warning issued to Neubauer was based on a complaint made by
Hilton concerning his attempt to have her sign a card for the Union. An employee’s effort to
persuade another employee to sign a union authorization card is activity that the Act protects.
Such activity may lose that protection if the activity is “sufficiently abusive or threatening.”
However, improperly limiting a soliciting employee’s activity results in limiting an activity that is
“central to the purposes of the Act.” Patrick Industries, 318 NLRB 245, 248 (1995).
Although official Smith told Neubauer that Hilton complained that he was “harassing”
her, Hilton expressly denied that she believed that he was harassing her. Nor did she testify that
she told Smith that Neubauer was harassing her. She stated that she told Smith only that she
found his conduct “annoying” and wanted it to cease. While it is true that Hilton brought her
concerns to her supervisors and the investigation into the complaint was prompted by Hilton, it
is equally clear that Smith embellished and exaggerated Hilton’s report by incorrectly accusing
Neubauer of harassing Hilton.
The Respondent asserts that it disciplined Neubauer because of its good faith belief that
he engaged in improper conduct. But there is nothing in Neubauer’s conduct which was
prohibited by the Respondent’s Code of Business Conduct. He did not harass, threaten or
intimidate Hilton. Rather, the warnings were based on solicitations which were clearly protected
activity. Neubauer did nothing which would forfeit the protection of the Act. Hilton’s subjective
reaction to his solicitation, simply that she was “annoyed,” cannot deprive him of that protection.
In addition, when Hilton first complained about Neubauer’s conduct, director of customer service
Collins said that it was not a company issue at that point.
The Respondent has not shown that it would have issued the three warnings to
Neubauer even if his solicitation of Hilton had not been in behalf of the Union. Thus, there is no
evidence that he said or did anything that could reasonably be interpreted as “harassment,” as
alleged by the Respondent. He simply spoke to her about the Union and asked her to sign a
card for it. He made no verbal threats or threatening gestures. Although Hilton testified that she
was annoyed by his frequent solicitations, there was no showing that she feared that he would
be violent. It was the Respondent’s supervisor who asserted that Neubauer “harassed” her. In
fact, Hilton expressly denied being harassed by Neubauer. Even if Hilton believed that she was
harassed, the Board has held that an employee’s subjective belief that union solicitation
constitutes harassment cannot, without more, deprive that solicitation of the protection of the
Act. Nicholas County Health Care Center, 331 NLRB 970,982-983 (2000).
“Although an employer may lawfully discipline an employee for making prounion (or
antiunion) statements that threaten fellow employees (for example, with physical harm), an
employer may not lawfully discipline an employee for making prounion (or antiunion) statements
that merely cause another employee to feel uncomfortable.” Chartwells, 324 NLRB No. 121, slip
op. at 3 (2004), or “annoyed.” Alpine Log Homes, 335 NLRB 885, 894-895 2001); RCN Corp.,
333 NLRB 295, 300 (2001). Union solicitations do not lose their protection simply because a
solicited employee is the subject of persistent solicitation and feels “bothered,” harassed” or
“abused” by them. Frazier Industries Co., 328 NLRB 717, 718-719 (1999).
Similarly, the October 8 warning issued to Neubauer involved his solicitation for the
Union and his making “inappropriate and insubordinate remarks” to co-worker Rivas about his
former supervisor, referring to her as “that bitch,” and another alleged remark that he asked
Rivieccio to show his e-mail, which discussed the Respondent’s attitude toward the Union, to
her “fucking supervisors.”
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Rivas did not testify, but Rivieccio testified that Neubauer did tell her to show his e-mail
to her “fucking supervisors.” Rivieccio, too, found his approach “annoying,” but made no
complaint to her supervisor about it. Rather, she loudly asked him to leave, but then in order to
“cover” herself for uttering a loud rebuke, explained to supervisor Armstrong that she was “tired”
of his conversations about the Union. Rivieccio insisted to her supervisor that Neubauer’s
conduct did not bother her and she was not making a complaint. Although supervisor Collins
assured her that nothing would be done about it, nevertheless Neubauer received a written
warning for his conduct.
The written warnings issued to Neubauer on October 8, 2003 and March 25, 2004,
stated that his use of “offensive language” violated the Code of Conduct, specifically his use of
“inappropriate and insubordinate remarks” about his former supervisor. Obscene language, of
the type used by Neubauer in these conversations, is apparently not uncommon in the
Respondent’s workplace, as set forth above. The remark about his supervisor was not made to
the supervisor, but to Rivieccio, who was not offended by Neubauer’s use of the obscenity.
Fieldcrest Cannon, Inc., 318 NLRB 470, 544 (1995); Meco Corp., 304 NLRB 331, 333, 335
(1991).
The e-mail referred to by Neubauer while making the comment about the supervisor,
related to his response to the Respondent’s assessment of its recent contract with technicians,
and thus constituted protected activity. The obscenity, uttered in connection with his protected
activity of handing a copy of his response to Rivieccio, could hardly be considered unprotected,
particularly where she was not offended by it.
Accordingly I find that the three warnings issued to Neubauer on August 28, October 8,
2003, and March 25, 2004 violated the Act because they constituted disparate enforcement of
the solicitation policy and because they were motivated by union animus. I cannot find that the
Respondent would have issued the warnings in the absence of Neubauer’s activities in behalf of
the Union. Each warning related in some way to his Union activity – the solicitation of
employees, and his response to the Respondent’s e-mail concerning the Union. Wright Line,
above.
The Respondent argues that its withdrawal of the October 8 written warning requires that
the allegation relating to that warning and the prior August 28 verbal warning be dismissed. As
set forth above, on March 25, 2004, a revised warning was issued to Neubauer which omitted
any reference to the two prior warnings relating to solicitation.
In order to effectively negate a prior unlawful statement, a
subsequent clarification must, inter alia, be timely and
unambiguous, must specifically disavow the prior coercive
statement, and must be accompanied by assurances against
future interference with employees’ Section 7 rights. President
Riverboat Casinos of Missouri, 329 NLRB 77, 78 (1999).
I find that the Respondent’s omission of Neubauer’s prior warnings from the re-issued
March 25 warning did not effectively repudiate them. First, the purported repudiation was not
timely. It was issued 5½ months after the October 8 warning and more than seven months after
the August 28 warning.13 It was not unambiguous. The March 25 warning did not specifically

13 An attempted repudiation more than five months after the issuance of unlawful no-
solicitation instructions was deemed untimely. Red Arrow Freight Lines, 289 NLRB 227, fn. 1
Continued
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state that by its issuance it was expressly withdrawing those parts of the prior warnings relating
to Neubauer’s solicitation of employees. Nor did it specifically disavow the previous warnings, or
give Neubauer any assurance that the Respondent would not interfere with his Section 7 rights
thereafter.
D. Thai Nguyen
1. The Facts Concerning Nguyen’s Employment and Discharge
Thai Nguyen began work in August, 2002 as a customer service representative, and was
discharged on January 12, 2004 for lateness. He was an active supporter of the Union, which
had begun its organizing drive before he was hired. In April or May, 2003, he spoke to his co-
workers about the benefits of the Union, and about one month later he began wearing a Union
T-shirt which he wore about every other Friday from May or June, 2003 until mid October,
2003.14 Nguyen signed three Union cards - in March, 2003, August 22, 2003 and October 20,
2003, in the parking lot of the Respondent’s premises.
Nguyen also distributed Union literature in the Respondent’s parking lot, and solicited
employees to sign cards for the Union from April or May, 2003 to mid October, 2003, in the
parking lot or cafeteria during their breaks. In June or July, 2003, he participated in a Union
video with co-workers Neubauer and Nappi which was filmed behind the Respondent’s building.
In the video, Nguyen mentioned that the Union was needed in order to obtain better salaries
and benefits, and to have a voice in Respondent’s policies which affect the workers.
Nguyen received numerous commendations for his work and compliments from his
supervisor Crews, some received after he began organizing in behalf of the Union.
Nguyen received a number of warnings for lateness prior to the new lateness policy of
April 1, 2003 which defined lateness as being tardy in excess of five minutes. Under the prior
policy, an employee was late if he was tardy in excess of one minute:
(a) Verbal warning issued on February 1, 2003 for four
latenesses, one of which was for four minutes, and two of
which, for 90 and 119 minutes, Nguyen questioned because
he made up the time at the end of the day, and therefore
believed that they were excused.
(b) Written warning issued on March 17, 2003 for five latenesses,
four of which were for latenesses of one or two minutes.
Under the new policy effective April 1, 2003, the March 17 written warning would expire
six months after its issuance, or in September, 2003, if he had not had any further lateness
occurrences by then. However, he was late again in July, 2003.
Associate director of customer service Blasko testified that he spoke to Nguyen in July
concerning two latenesses that month. Blasko told him that he could issue a final written
warning, but did not want to because it would prevent him from obtaining career opportunities
_________________________
(1988).
14 He testified later that he wore the shirt on every “Casual Friday.” The record is not clear
whether such an event occurs every Friday.
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with the Respondent. He warned Nguyen that if he was late again, he would receive a final
written warning.
Nguyen received a final written warning for lateness dated August 12, 2003.15 At a
meeting with Crews and Blasko, Nguyen disagreed with the warning because the warning letter
listed nine latenesses of one or two minutes, and he claimed that the clock used to record his
arrival time was inaccurate, being off by one or two minutes. In any event, those latenesses
would not count as lateness occurrences since they were less than five minutes.16
Nevertheless, three latenesses set forth in the warning – two for six minutes and one for seven
minutes on August 7, violated the Respondent’s policy on lateness. That policy, effective on
April 1, 2003, defines lateness as being in excess of five minutes. The warning stated that
Nguyen’s next lateness “will result in further disciplinary action up to and including separation
from Verizon Wireless payroll.” The warning further stated that he was eligible to apply for leave
under FMLA or could request help from the Employee Assistance Program.
On August 25, 2003, Nguyen was 19 minutes late due to highway construction. When he
arrived, he told Crews why he was late. He testified that Crews said that she was aware of the
construction, and also said that his lateness would not be a problem, or “it would be okay” as
long as he made up the time at the end of the day, which he did. His e-mail to Crews stated that
he was late due to highway construction, and stated that he would make up the time. Crews
stated that after she received his e-mail, she called in an “exception,” and later told him that he
should have left his residence earlier. She denied telling him that his lateness was excused or
that it would not be a problem as long as he made up the time.
Nancy Percent, the Respondent’s executive director of human resources, testified that
upon being advised of the August 25 lateness, her assistant showed her the final written
warning dated August 12, and recommended that Nguyen be terminated upon his August 25
lateness, which is permitted if the employee is late following his final written warning. She
concluded that the reason for the August 25 lateness, highway construction, was not
“compelling.”
However, Percent further testified that managers have at times excused employees for
being stuck in traffic, but such an action typically occurs regarding a “known traffic jam or
something extenuating.”
Percent was “reluctant” to terminate Nguyen at that time. She examined his prior
attendance record, and observed that his latenesses, which took place in five of the past six
months, were not “egregious” – only seven to eight minutes. She stated that it was “not
uncommon” to give an employee extra chances at that point even if they had been issued a final
written warning. She also believed that she had to be “careful” and “extra sensitive” in making
sure the termination would be lawful inasmuch as Nguyen, an Asian, was in a “protected” class,
and had been observed wearing a Union shirt, and she did not want to violate the law by
unlawfully discharging an employee based on his protected status. Accordingly, Percent

15 A final written warning dated August 8 was apparently replaced by one dated August 12.
The August 8 warning contained two alleged latenesses, June 3 and June 5, which were
withdrawn and not included in the August 12 warning. They were apparently for lateness for
overtime work, which does not count toward a lateness under the attendance policy.
16 In this connection, Crews stated that the time displayed on the computer terminal differed
by about one minute from the time on the aspect reader board and the aspect phone system,
but that discrepancy did not affect his late arrival to work.
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decided to give Nguyen an extra chance, and recommended that he be given a second final
written warning. Accordingly, a second final written warning, dated August 28, based on the
August 25 lateness, was given to Nguyen.
That warning was given to Nguyen by Blasko on September 2. The warning was based
on the August 25 lateness. At their meeting, according to Nguyen, Blasko told him that Crews’
comment that his lateness was not a problem “did not matter.” Blasko testified that he told
Nguyen that he could be terminated now, but that management decided to reissue the final
written warning, but it was not excusing the August 25 lateness. Blasko denied that Nguyen told
him that Crews excused that lateness.
It is the Respondent’s argument that although Nguyen was permitted to make up the
time on August 25 that he was late that day, the lateness was not excused, and in fact he was
marked 19 minutes late for that tardiness. Accordingly, Nguyen received a second final written
warning dated August 28 for the August 25 lateness. That warning listed the prior three
latenesses exceeding six minutes.
Thereafter, from mid October, 2003 to January 1, 2004, Nguyen did not engage in any
activities on behalf of the Union, including wearing a Union shirt because he was told by a Union
agent that he should “lay low,” allegedly because of some agreement between the Respondent
and the Union. On January 2, he resumed wearing a Union shirt because he believed that with
the start of a new year he should resume speaking with employees about the Union’s benefits.
On October 31, Nguyen was seven minutes late, and customer service management
requested that he be reviewed for termination. Blasko testified that supervisor Crews told him
that Nguyen said he was late because he switched his shift that day with another worker.
Percent reviewed his total lateness record, and decided not to terminate him since his latest
lateness was only seven minutes, and it had been two months since he was late prior to that.
She wanted to give him “the benefit of the doubt,” and “every opportunity to turn it around and
change the pattern.” Accordingly, Percent decided to give him another chance.
Nguyen was also late on December 29 because employee Edward Gerwin, who picked
him up and drove him to work, forgot to do so. Nguyen was scheduled to begin work at 11:30
a.m., but he clocked in at 11:44 that morning. Upon his arrival, he told Crews that Gerwin failed
to pick him up on time, and according to Nguyen she said that as long as he made up the time
that day, it was “okay” and it “would not be held against me.” Gerwin testified that he spoke to
Crews and apologized for failing to pick up Nguyen on time. He stated that, although he could
not remember her exact words, he believed that Nguyen’s lateness would be “excused.” Crews
denied excusing the lateness.
That evening, Nguyen sent an e-mail to Crews, asking her to “call in an exception”
because he would be working 15 minutes after his shift “to make up the time from this morning.”
Crews’ e-mail reply stated that she was sorry to hear that he was late, and that she called in the
exception “for the make up time.” While acknowledging at hearing that Crews’ reply did not state
that his lateness was excused, Nguyen insisted that a supervisor’s calling in an exception
means that his lateness was excused, but Crews testified that in notifying resource
management of the exception she did not intend to excuse his lateness, and denied telling
Nguyen that she had done so.
Blasko became aware of this newest lateness, and reviewed Nguyen’s complete record
with the human resources department, and it was again requested that he be reviewed for
termination. On January 6, 2004, Laurie Severino, the associate director for human resources,
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sent an e-mail to associate director of human resources Annette Lowther, requesting his
lateness record, adding that as to the most recent lateness, she knew that he was being driven
to work, “however ultimately it is his responsibility for being there on time.” Severino sent
another e-mail to Lowther and Percent, saying “unless this lateness was weather related, not
sure why we would give him another chance … would be interested in the feedback from
[company attorney]. Has he had any [less than 5 minute [latenesses] from the time we issued
his 2nd [final written warning]? I want to be mindful of our thought process as I [terminate] for the
other locations.” Lowther sent an e-mail to Percent, essentially as follows, which set forth
Nguyen’s lateness record:
Written warning on 3/17/03.
Transitioned [moved on to the new lateness policy] on 4/1/03 on a
written warning.
Late 3 times over 5 minutes) 7/7/03; 7/14/03; 8/7/03.
Late 9 times under 5 minutes from April through August 7.17
Issued a final written warning on 8/12/03.
Late 19 minutes on 8/25. Issued a second final written warning.
Late 7 minutes on 10/31.
Late 14 minutes on 12/29.
It should be noted that under the new lateness policy which became effective on April 1,
2003, following a written warning, the employee is given one “free” lateness, and upon the
second lateness may be issued a final written warning. As set forth above, Nguyen could have
been issued a final written warning upon his lateness of July 14. Instead, he was issued the final
written warning only upon his lateness of August 7. In addition, upon the next lateness, he is
reviewed for termination and could be dismissed. As set forth above, he could have been
terminated for his lateness of August 25. Instead, he was issued a second final written warning.
He could also have been fired upon his next lateness on October 31, but he was not. Finally, he
was discharged upon his final lateness of December 29.
Lowther testified that Blasko told her in late December, that Nguyen was late again and
had been recommended for termination. Lowther asked Blasko to review the matter with
director of customer service Collins. In early January, Collins told Lowther than she agreed with
Blasko’s recommendation for termination in that Nguyen received two final written warnings,
and was late twice thereafter, in contrast with others who had been terminated in the past month
who had received less lenient treatment.
Lowther then reviewed Nguyen’s entire disciplinary record – including his latenesess,
absences, and a final written warning in early 2003 concerning his confrontation with a
supervisor.
Percent asked Lowther to take an “extra step” and give her examples of employees who
had been terminated in the last two to three months so that a decision to terminate Nguyen
would be “absolutely clean and consistent” - “butt them up against Nguyen” - with recent
discharges.
Lowther reviewed the final disciplinary records of four employees, Barbara Lolagne,

17 Although a lateness less than five minutes does not count against the employee, Percent
testified that this could be considered a “pattern of lateness,” and she considered that in
deciding to terminate Nguyen.
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Katia Muehl, Kalisha Ross and Julia Sierra all of whom, except Sierra, were terminated in
December, 2003. Lowther asked human resources consultant Akbar to obtain the records for
those specific employees. None had engaged in Union activity, but all were female, two were
African American, and one was Hispanic. The records revealed:
(a) Barbara Lolagne – received a verbal warning, and then a
written warning after four more latenesses. She received a final
written warning for a 62 minute lateness, and then terminated after
a further 12 minute lateness. She was given two extra chances
beyond policy between the verbal and written warning.
(b) Katia Muehl – received a written warning after five latenesses,
and a final written warning after an 87 minute lateness. She was
terminated after a further lateness of 8 minutes due to a flood in
her home. She received one extra chance beyond policy.
(c) Kalisha Ross – received a written warning for a 78 minute
lateness. She received a final written warning after three
additional latenesses, including a 46 minute lateness, and was
late again for 47 minutes. She resigned in lieu of termination. She
was given one extra chance beyond policy, which was before she
received the final written warning.
(d) Julia Sierra – received a written warning after being late four
times. She received a final written warning [on December 12,
2003] after being late two times. She was late again but
termination was not pursued because it was a lateness of only five
minutes. She was late again, for 35 minutes because her car
broke down. She was then terminated. She was given two extra
chances beyond policy, two before the final written warning, and
one after it, partly because she had a “personal issue” that
management was aware of, and worked with her regarding it.
When Sierra’s record was being reviewed, she had not yet been
terminated, but was being reviewed for termination.18
Lowther either sent this summary to Percent, or reviewed it with her before January 12,
the date Nguyen was terminated. Lowther also testified that her mandate as associate director
of human resources is to ensure that employees are treated fairly and consistently, according to
the law. Lowther testified that it is extremely important that customer service representatives be
at work according to their schedules since employee lateness may cause customer calls to be
taken in a less than timely manner. Lowther recommended to Percent that Nguyen be
terminated, noting that he had received more lenient treatment than the four other workers who
had been terminated.
In reviewing the matter with Percent or with in-house counsel Celeste Como, Lowther

18 The Union disputes Sierra’s record, as testified by the Respondent’s witnesses.
According to G.C. Ex. 51(a), Sierra was issued a final written warning on June 2, 2003, had
seven latenesses thereafter, but received only a written warning on October 12. In testimony
concerning Sierra, that final written warning was not mentioned. Accordingly, the Union argues
that the June 2, 2003 final written warning was “ignored.”
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mentioned Nguyen’s union activity, which she noted, was similar to an employee being in a
protected class. In fact, in early January, Lowther was aware that Board charges were then
pending against the Respondent, but not involving Nguyen. She stated that it made her more
cautious in ensuring that Nguyen’s case was being carefully reviewed.
Percent testified that she decided to terminate Nguyen because he was unreliable or he
demonstrated a pattern of being unreliable. She noted that management had tried to “work with”
Nguyen by giving him extra chances, but she concluded that his overall record of reliability was
poor, and the last incident of lateness was “not compelling enough” to warrant another chance.
She reasoned that Nguyen was required to arrive at work on time regardless of whether the
person he rides with mistakenly picked him up late.
Percent also considered that Nguyen had been given four extra chances beyond what
was permitted under the disciplinary policy. Thus, after he received a written warning he could
have received a final written warning after being late two times, but he received the final written
warning after being late three times. In addition, he could have been terminated the first time he
was late after his first final written warning of August 12. Instead, he was given a second final
written warning for the August 25 lateness. He also could have been terminated upon his
October 31 lateness after the second final written warning, but was not. Instead, he was
terminated only after he was late again on December 29.
On January 12, 2004, Nguyen was discharged for lateness. At his termination interview
with Blasko and Crews, Blasko reviewed with him the fact that he had received a final written
warning in August for lateness, discussed above, and that he was late on October 31 and
December 29, as set forth above. Blasko and Crews stated that Blasko reviewed all the
latenesses with Nguyen, who refused to look at the back-up reports. Nguyen said that he did not
agree with a couple of the latenesses, and denied being late on October 31, because he did not
recall switching his shift. Nor did he recall being late on August 25, but he did not claim that he
was excused for any of the latenesses Blasko reviewed with him. Instead, Nguyen claimed that
the Respondent did not “consistently” apply its lateness policy, stating that other, unnamed
employees did not receive warnings for lateness. Blasko denied that Nguyen claimed that he
was being fired for union activity.
Nguyen testified that he told Blasko that he did not recall being late on October 31
because he had traded shifts with another employee so that he could work 8:00 a.m. to 5:00
p.m. He told Blasko that his wife drove him to work that day and he began work at 8:00 a.m. At
hearing, Nguyen claimed that he logged in before 8:00, and began work at 8:00 a.m. In fact,
however, the phone record shows that he logged in at 8:07 a.m. Regarding the December 29
lateness, Nguyen told Blasko that Crews had excused his lateness. Blasko replied that
whatever Crews told him was irrelevant because it was his final decision to discharge Nguyen
for lateness. Nguyen protested that he believed that he was being fired for his Union activities,
but Blasko reiterated that “excessive lateness” was the reason for the termination.
Lowther stated that, other than Nguyen, she was not aware of any other employee who
received two final written warnings for lateness, and then was late twice thereafter without being
terminated.
Perecent denied that Nguyen’s Union activity played any part in the decision to terminate
him. Neither Lowther nor Crews were aware that he appeared in a Union video, and neither saw
that video. Nevertheless, Lowther was aware, from Nguyen’s supervisors, that he believed that
unions were a “good idea” which was a view that he openly expressed through his wearing a
Union shirt. Crews admitted having two conversations in April, 2003 with Nguyen
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about the Union.
In addition to latenesses, Nguyen had been absent on about 5 occasions from
November, 2002 to March 21, 2003, and received verbal, written and final written warnings for
absenteeism. His 2002 performance appraisal stated that development was needed in the area
of attendance.
The General Counsel argues that records of other employees, which were not reviewed
by Lowther prior to Nguyen’s termination, reveal that Nguyen was subject to disparate treatment
inasmuch as certain of their absences were excused, and others were late more often than
Nguyen without having been terminated. The Respondent asserts that those records are
irrelevant inasmuch as they were not reviewed by the decision-makers who determined to
discharge Nguyen.
2. Excused Latenesses
There was much testimony concerning excused latenesses. As set forth above, Nguyen
claimed that certain of his latenesses were excused by Crews, and she denied excusing them.
At one time, according to Blasko, with the implementation of the new attendance policy on April
1, 2003, supervisors were given the authority to excuse latenesses. However, a few months
later, they were told that, in order to “maintain consistency in the department,” such excused
latenesses must be done through the associate directors.
Blasko identified an exception as a term used by the supervisor in making the resource
management team aware that an employee was not adhering to his schedule that day. That is
done because the workforce communications center manages the call volume by the second
each day, and must know whether the employee is on his phone. If an employee arrives late
without prior approval, the supervisor calls in an exception. Blasko said that an exception is
unrelated to an employee being excused for the lateness. Also, if an employee is off-line, due to
a meeting, an exception must be called in so that management is aware that his phone would
not be in operation during that time. Blasko stated that an employee could be disciplined for a
lateness for which the supervisor called in an exception.
Blasko also stated that if an employee is late, his supervisor may permit him to stay late
at the end of his shift to make up the time, but such permission does not excuse the lateness.
Crews stated that if an employee comes in late due to a traffic accident, she permits the worker
to make up the time at the end of the day, so that they are paid for their full shift. If they do not
make up the time, they are not paid.
Generally, according to supervisors who testified, a lateness may be excused if many
employees in the call center were impacted, such as a highway accident which blocks traffic, or
in cases of extreme weather.
Specific examples of individual employees whose latenesses were excused included
employee Ulondia Irvin, who advised supervisor Armstrong on September 5, 2003 that she may
be late on September 8 due to a child-care matter. A memo recorded that her 24 minute
lateness on September 8 was “excused as an exception due to her childcare issues.” However,
Armstrong testified that she excused the lateness as a “courtesy,” and not as an “exception” as
the term is used by resource management. Armstrong also gave an example of an excused
lateness where an employee spoke with her when her shift began, causing her to sign in late.
Employee Suzanne Bouchard received an award in September, 2003, which permitted
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her to park in a reserved space for one month. She was late to work several times because
another vehicle was parked in her space. Her latenesses were excused because they were not
caused by her actions. The General Counsel argues, in this regard, that Nguyen’s final lateness
was also not caused by his own actions in that his carpool driver Gerwin failed to pick him up on
time. However, the Respondent legitimately discounted that reason since ultimately it was
Nguyen’s responsibility to arrive on time. In Bouchard’s case, she would have been on time but
for another employee’s taking her reserved parking space.
On October 31, 2003, employee Katia Muehl arrived at work on time with her children
because her child care person had not come to her home. Armstrong permitted Muehl to leave
work to take the children to a family member and return to work, and excused her two hour
latneess. It should be noted that although these supervisors approved the latenesses, authority
may have been received from the associate directors.
As set forth above, Nguyen claimed that as long as he made up the time by working later
on a day he arrived late, the lateness would be excused. In support of this testimony, Katia
Muehl was 14 minutes late on September 23, 2003 due to highway flooding. She worked 19
minutes later that evening. Her supervisor Rigo Villafuerte issued a written warning on October
29, which expressly stated that her lateness of September 23 was excused.19 Accordingly, I
cannot accept Villafuerte’s testimony that that lateness was not excused, or the implication that
because the lateness was listed on an occurrence log it was not excused. All latenesses, even
those which do not count toward discipline, are listed on the log. Thus, that log listed latenesses
of one minute even though they do not count as a lateness occurrence under the policy in effect
at that time. He further stated that a lateness is not excused because the worker made up the
time by remaining at work later. But in any event, that lateness may have been excused
pursuant to the general policy of excusing latenesses caused by highway conditions affecting
many workers, so it is of little help to Nguyen. Muehl was also 78 minutes late on September 25.
Her occurrence log states that that lateness was excused by Armstrong. At hearing, Armstrong
did not recall excusing that lateness.
Employee Brian Mackle was seven minutes late on November 12, 2003. A notation on
his occurrence log stated that the lateness was “excused – parking lot incident.” Thomakos
testified that Mackle either was in an accident in the lot or was involved in an argument about a
parking space at that time.
3. Analysis and Discussion
Pursuant to Wright Line, the General Counsel has proven that Nguyen engaged in
activity in behalf of the Union. Such activity included signing cards for the Union, speaking to co-
workers about its benefits and soliciting them to sign cards for it, appearing in a Union video,
and wearing a Union T-shirt for four months in 2003, and then again in early January, 2004
shortly before his discharge. His Union activity was well known to the Respondent from the
supervisor level to the highest echelon at the call center. Thus, supervisor Crews, and director
of the call center Caroline Collins, saw him wearing the T-shirt, and those deciding to discharge
him, Lowther and Percent, were aware of his support of the Union.
I have found, above, that union animus has been proven in that the Respondent
committed violations of the Act in the oral promulgation of rules prohibiting solicitation on the
work floor and on break time and in speaking to employees concerning discipline and working

19 Respondent’s exhibit 39(g).
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conditions, in the Respondent’s warnings to Neubauer concerning his solicitation of employees,
and in enforcing its no-solicitation clause in a disparate manner so as to prohibit union, but not
other solicitations.
However, the facts as set forth above, do not permit me to find that the Respondent’s
animus toward the Union was a motivating factor in its discharge of Nguyen. If it had such
animus, it could have discharged him when he began wearing the Union T-shirt, or when it
became known that he solicited in behalf of the Union. In addition, it could have terminated him
at the first opportunity it could have for lateness. It did not do so. His Union activities were well
known for many months prior to his discharge, yet no improper disciplinary actions were taken
against him at any time. In addition, he was given numerous awards and commendations
notwithstanding his contemporaneous support for the Union. The Respondent also withheld
discharging him when it could have done so in accordance with its lateness policy.
I accordingly find that the Respondent was not motivated by union animus in discharging
Nguyen, and even if such motivation was found, I conclude that the Respondent would have
discharged him even in the absence of his Union activities. Wright Line.
Thus, as set forth above, Nyguen was late numerous times, and was not treated more
harshly than the Respondent’s lateness policy permitted, and was not even subject to the letter
of that policy. Rather, certain latenesses were overlooked and not made the basis of discipline
although they could have been. It has been noted above that Nguyen could have been issued a
final written warning upon his lateness of July 14. Instead, he was issued a final written warning
only upon his lateness of August 7. In addition, he could have been dismissed upon his next
lateness of August 25. Instead, he was issued a second final written warning. He could also
have been fired upon his next lateness on October 31, but he was not. He was discharged upon
his final lateness of December 29. These instances of extra chances being given demonstrates
that Nguyen was (a) not treated in a discriminatory fashion and (b) properly discharged.
It simply has not been proven that the latenesses which Nguyen claimed to have been
excused for, were in fact excused by Crews. There was no credible evidence that by calling in
an “exception,” Nguyen’s latenesses were excused. Rather, credible evidence was presented
that excused latenesses were usually made for extenuating circumstances which did not
encompass the reasons for Nguyen’s lateness.
In this regard, I agree with the General Counsel that there are certain instances of
excused latenesses in the record which are not explained, and may have included situations
where individual employees were excused because of personal, singular situations, which did
not involve highway incidents affecting many workers or in cases of extreme weather. However,
the vast majority of excused latenesses cited by the General Counsel in her brief involved
highway issues, weather problems and vehicle accidents.
The Union argues, and the record establishes that employee Lovely Woods was treated
more leniently in certain respects than Nguyen. (G.C. Ex. 49). For example, Woods’ final written
warning for lateness was due to expire on August 11, 2003, but she was late on June 16, which
should have prevented that warning from expiring. She was late thereafter on September 10,
22, 23, October 19, December 2, 8 and 17, and received only a written warning for her lateness
on December 17. Pursuant to the Respondent’s policy, she should have been terminated for
lateness after her final written warning.
The Union also argues that Nguyen was treated in a disparate manner under the old
lateness policy which was in effect prior to April 1, 2003. Specifically, the Union argues that he
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was transitioned onto the new policy on a written warning, whereas that warning was issued
when he had fewer latenesses than other employees who did not receive a written warning.
However, if he was treated in an inconsistent manner at that time, it was clearly not because of
his union activities. His activities in behalf of the Union did not begin, according to his testimony,
until sometime in April or May, 2003, when he spoke to his co-workers about the benefits of the
Union, and only in May or June did his activities become open and notorious when he began
wearing a Union T-shirt.
The Respondent’s officials examined the records of three employees who were
discharged in the month prior to Nguyen’s being reviewed for termination in order to be certain
that his discharge was consistent with theirs. It is appropriate that their records be examined
from the period following their receipt of a written warning inasmuch as Nguyen became subject
to the new lateness policy with a written warning. Their records disclose the following:
Barbara Lolagne was issued a written warning on October 23, 2003. Thereafter, she was
62 minutes late, and given a final written warning on November 6. According to the
Respondent’s policy, where a lateness is more than 60 minutes, discipline may be accelerated
to the next level. Accordingly, instead of being given one “free” lateness after the written
warning, Lolagne was accelerated to the next level of discipline, final written warning, after her
62 minute lateness. On November 17 she was late again and was terminated.
Katia Muehl received a written warning on October 29. Thereafter, she was 87 minutes
late on November 1 and was given a final written warning. The same acceleration applied to
Muehl as to Lolagne, above. Thereafter, she was 8 minutes late, and was terminated.
Thus, Lolagne and Muehl were treated strictly according to the Respondent’s lateness
policy following the issuance of their written warnings. Their next lateness was accelerated to a
final written warning because they were more than 60 minutes late. In addition, they were late
once more after that and were discharged.
Kalisha Ross received a written warning on August 11. Thereafter, she was late three
times and received a final written warning on September 30. In this regard, she was given one
extra lateness before receiving the final written warning. She was late again on November 8,
and was due to be terminated on December 10, but she resigned in lieu of termination.
After Nguyen received a written warning he was late three times, being given one extra
lateness, similar to the treatment accorded Ross. After receiving the final written warning,
Lolagne, Muehl and Ross were discharged upon their next lateness in accordance with the
Respondent’s policy. In contrast, after receiving his final written warning, Nguyen was permitted
two additional lateness, and was therefore late twice before being fired for his third lateness. In
addition, there is no record of an employee being given two final written warnings for lateness.
Nguyen could have been discharged upon being late once after the first final written warning.
Instead, he was discharged after his third lateness.
I have considered the evidence of disparate treatment, and find that the record
establishes that the Respondent did, in fact, discharge employees with excessive latenesses, as
it discharged Nguyen, but also, as in the case of Woods, failed to terminate a worker following
her excessive latenesses after a final written warning. However, I return to Nguyen’s latenesses
which exceeded the Respondent’s legitimate lateness policy, and for which it could properly
discharge him. I have also considered that when the Respondent was considering terminating
Nguyen, the employees’ records selected for comparison - Lolagne, Muehl and Ross, showed
that they were treated more leniently than Nguyen.
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Under these circumstances, I find that the General Counsel has not proven a Section
8(a)(3) violation by a preponderance of the evidence. Ronin Shipbuilding, Inc., 330 NLRB 464
(2000).
In view of my decision finding no violation in Nguyen’s discharge, I need not discuss
other issues including whether he falsified his employment application or made an obscene
phone call to the Respondent following his discharge.
Conclusions of Law
1. By issuing warnings to employee Greg Neubauer on about August 28, 2003, October
8, 2003, and March 25, 2004 because of the Respondent’s disparate application of its no-
solicitation clause and because he engaged in union activities, the Respondent violated Section
8(a)(1) and (3) of the Act.
2. By promulgating by oral announcement and maintaining a rule prohibiting union
solicitation in employee work areas and on break time, the Respondent violated Section 8(a)(1)
of the Act.
3. By promulgating by oral announcement and maintaining a rule prohibiting its
employees from discussing their discipline and terms and conditions of employment, the
Respondent violated Section 8(a)(1) of the Act.
4. By enforcing its no-solicitation rule by selectively and disparately applying it only
against employees engaged in union activities, and by prohibiting union solicitation while
permitting non-union solicitation, the Respondent violated Section 8(a)(1) of the Act.
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.
It will be recommended that the Respondent rescind the disciplinary warnings issued to
employee Greg Neubauer on about August 28, 2003, October 8, 2003, and March 25, 2004;
remove any reference to those warnings from all of the Respondent’s records; and make him
whole for any loss of earnings and other benefits, computed on a quarterly basis 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).
Having found that the Respondent orally promulgated rules unlawfully prohibiting union
solicitation in employee work areas and on break time, and prohibiting its employees from
discussing their discipline and terms and conditions of employment, I shall order that the
Respondent rescind the unlawful rules and to notify its employees, in writing, that it has done
so.
Inasmuch as the facility at issue here in Orangeburg, New York, was closed in about
September, 2004, I shall order that the Notice to be posted herein be posted at the
Respondent’s facility in Wilmington, North Carolina to which certain of its employees were
relocated.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended20
ORDER
The Respondent, Cellco Partnership d/b/a Verizon Wireless, Bedminster, New Jersey,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily issuing warnings to, or otherwise disciplining employees by issuing
such warnings pursuant to the Respondent’s disparate application of its no-solicitation clause,
and because employees engaged in union activities.
(b) Orally promulgating and maintaining a rule prohibiting union solicitation in employee
work areas and on break time.
(c) Orally promulgating and maintaining a rule prohibiting its employees from discussing
their discipline and terms and conditions of employment.
(d) Enforcing its no-solicitation rule by selectively and disparately applying it only against
employees engaged in union activities, and by prohibiting union solicitation while permitting non-
union solicitation.
(e) 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 Greg Neubauer whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him 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 to the unlawful disciplines of employee Greg Neubauer, and within 3 days thereafter
notify him in writing that this has been done and that the disciplines will not be used against him
n any way.
(c) Rescind and cease maintaining unlawful rules prohibiting its employees from
soliciting for a union in employee work areas or on break time, and notify employees that such
rules has been rescinded.
(d) Rescind and cease maintaining unlawful rules prohibiting its employees from
discussing their discipline or terms and conditions of employment, and notify employees that
such rules has been rescinded.

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.
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(e) Within 14 days after service by the Region, post at its facility in Wilmington, North
Carolina, copies of the attached notice marked “Appendix.”21 Copies of the notice, on forms
provided by the Regional Director for Region 2, 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 facility
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 August 28, 2003.
(f) 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., December 23, 2005.
____________________
Steven Davis
Administrative Law Judge

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.”
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 discriminatorily issue warnings to, or otherwise discipline you by issuing warnings pursuant to our disparate
application of our no-solicitation clause, and because you engage in union activities.
WE WILL NOT orally promulgate or maintain rules prohibiting union solicitation in employee work areas or on break time.
WE WILL NOT orally promulgate or maintain rules prohibiting you from discussing your discipline or terms and conditions of
employment.
WE WILL NOT enforce our no-solicitation rule by selectively and disparately applying it only against those of you who engage in
union activities, or by prohibiting union solicitation while permitting non-union solicitation.
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 Greg Neubauer whole for any loss of earnings and other benefits suffered as a result of the discrimination against
him.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful disciplines of
employee Greg Neubauer, and within 3 days thereafter notify him in writing that this has been done and that the disciplines will not
be used against him in any way.
WE WILL rescind and cease maintaining unlawful rules prohibiting you from soliciting for a union in employee work areas and on
break time, and we will notify you in writing that such rules have been rescinded.
WE WILL rescind and cease maintaining unlawful rules prohibiting you from discussing your discipline or terms and conditions of
employment, and notify you in writing that such rules have been rescinded.
CELLCO PARTNERSHIP D/B/A/ VERIZON WIRELESS
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.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
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, 212-264-0346