Windstream Corp.

National Labor Relations Board - Board Decisions

Feb 7, 2008

352 N.L.R.B. 44 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 9
44
Windstream Corporation and International Brother-
hood of Electrical Workers, AFL–CIO, CLC on
behalf of its affiliated Local Unions 463, 1189,
1507, 1929, 2089, and 2374. Case 6–CA–35290
February 7, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On April 9, 2007, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order2 as modified below.3

1 We agree with the judge that the allegation that the Respondent
unilaterally implemented a “zero tolerance” ethics policy in violation of
Sec. 8(a)(5) is not appropriate for deferral pursuant to Collyer Insulated
Wire, 192 NLRB 837 (1971), and its progeny. In declining to defer
under Collyer, we rely in particular on Arvinmeritor, Inc., 340 NLRB
1035 fn. 1 (2003), where the Board quoted from American Commercial
Lines, 291 NLRB 1066, 1069 (1988), which held, in pertinent part:
[W]hen, as here, an allegation for which deferral is sought is inextri-
cably related to other complaint allegations that are either inappropri-
ate for deferral or for which deferral is not sought, a party’s request for
deferral must be denied.
We find that the unilateral implementation allegation that the Respon-
dent seeks to defer is inextricably related to the direct dealing allegation
covering the same subject matter. The Respondent did not request that
the direct dealing allegation be deferred. Accordingly, we conclude that
deferral of one aspect of the parties’ dispute to the grievance-arbitration
machinery would, under these circumstances, be inappropriate.
Member Schaumber adheres to his position that the Board should
apply a “contract coverage” test rather than the “clear and unmistakable
waiver” standard. See California Offset Printers, 349 NLRB 732, 737
(2007) (Member Schaumber, dissenting). However, none of the parties
have urged the Board to apply that test here and no Board majority
currently exists to adopt the contract coverage standard in any event.
Accordingly, Member Schaumber joins in adopting the judge’s finding
that the Respondent violated Sec. 8(a)(5) by unilaterally implementing
its “zero tolerance policy.”
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
3 Insofar as unit employees may have been terminated as a result of
the unlawfully adopted zero tolerance policy, the Respondent is enti-
tled, during the compliance stage, to demonstrate that it nevertheless
would have discharged the employees under its preexisting ethics pol-
icy, thereby avoiding any backpay and reinstatement obligation. See
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Wind-
stream Corporation, Meadville, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) In the event any unit employee has been termi-
nated as a result of the unilaterally adopted zero tolerance
policy, and that employee would not have been termi-
nated under the preexisting lawful policy, take the fol-
lowing actions: offer the employee full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed; make him whole for any loss of earnings and other
benefits suffered as a result of his discharge; and remove
from its files any reference to the unlawful discharge and
notify the affected employee in writing that this has been
done and that the discharge will not be used against him
in any way.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

Great Western Produce, Inc., 299 NLRB 1004, 1006 (1990). We have
modified the judge’s proposed Order and proposed notice accordingly.
Member Schaumber notes that the judge’s recommended Order in-
cludes a provision requiring the Respondent to post the notice to em-
ployees on its intranet “with a link sent by electronic mail to [unit]
employees.” In his view, such a remedy may be appropriate where it is
shown, through evidence adduced at the hearing, that the respondent
regularly communicates its employment policies to employees through
electronic mail. While it is not clear that this issue was fully litigated at
the hearing, the judge appears to have found that it was, and the Re-
spondent has not excepted to that finding.
WINDSTREAM CORP. 45
WE WILL NOT unilaterally make changes to your wages,
hours, and terms and conditions of employment without
notifying your bargaining representative in advance and
affording your local union an opportunity to bargain re-
garding such changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the zero tolerance policy for viola-
tions of the “working with integrity” guidelines, that was
announced in July 2006, for employees in the bargaining
units represented by Local Unions 463, 1189, 1507,
1929, 2089, and 2374 of the International Brotherhood of
Electrical Workers, AFL–CIO, CLC.
WE WILL offer any employee in the above units who
was terminated pursuant to the unilaterally implemented
zero tolerance policy, and who would not have been ter-
minated under the preexisting policy, reinstatement to his
prior position without loss of seniority or any other rights
or privileges previously enjoyed, and WE WILL, make him
whole for any loss of earnings and other benefits suffered
as a result of the termination, and WE WILL, remove from
our files any reference to such termination and notify the
employee in writing that this has been done and that the
termination will not be used against him in any way.
WE WILL notify your Local Union before making any
changes to your wages, hours, and terms and conditions
of employment and, upon request, bargain with the Local
Union before implementing any changes.
WINDSTREAM CORPORATION
Barton Meyers, Esq., for the General Counsel.
William C. Moul, Esq., for the Respondent.
Jonathan D. Newman, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Pittsburgh, Pennsylvania, on February 1,
2007. International Brotherhood of Electrical Workers, AFL–
CIO, CLC (the Union), on behalf of its affiliated Local Unions
463,1 1189, 1507, 1929, 2089, and 2374, filed the charge on
August 21, 2006,2 and amended it on August 25 and January 8,
2007. Based on this charge, an amended complaint issued on
January 9, 2007, alleging that Windstream Corporation, the
Respondent, violated Section 8(a)(1) and (5) of the Act by uni-
laterally announcing, on July 26, the implementation of a new
“zero tolerance policy” regarding all issues of integrity and
ethics. This conduct is also alleged as direct dealing in viola-
tion of Section 8(a)(1) and (5) of the Act.

1 The original caption in this case identified this party as Local 453.
I have corrected the caption to reflect the correct Local Union number
as evidenced by the collective-bargaining agreement in evidence.
2 All dates are in 2006, unless otherwise noted.
On January 17, 2007, the Respondent filed its answer to the
amended complaint in which it essentially admitted that it made
the announcement alleged to be unlawful and that it did so
without providing the Union with advance notice and an oppor-
tunity to bargain. Respondent denied that it dealt directly with
its employees and further denied that its announcement of a
zero tolerance policy violated the Act asserting, inter alia, that
the alleged change was not substantial enough to warrant bar-
gaining, that the Union had waived any right it had to bargain
over the subject by contract and practice, that none of the Local
Unions had requested bargaining about the subject, and that the
complaint should be deferred to the parties’ contractual griev-
ance and arbitration procedures. The Respondent also asserted
that the Charging Party did not have standing to file the charge
on behalf of the Local Unions with whom the Respondent had a
contractual relationship.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation headquartered in Little Rock,
Arkansas, is engaged in the business of providing voice, data
and video telephonic communication services. It provides such
services through wholly-owned subsidiaries, including Wind-
stream Kentucky, Inc., Windstream New York, Inc., Western
Reserve Telephone Company, Windstream Western Reserve,
Inc., and Windstream Pennsylvania, Inc., with facilities in vari-
ous states, including Pennsylvania. The Respondent and its
subsidiaries annually purchase and receive, at their respective
facilities, goods valued in excess of $50,000 directly from
points outside their respective home states. The Respondent
admits and I find that it, and each of its subsidiaries involved in
this proceeding, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Re-
spondent further admits that the Union and its affiliated Local
Unions are labor organizations within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The Respondent was created on July 17, 2006, when Alltel
Corporation spun off its wireline operations in order to focus on
its wireless business.4 The Respondent and its subsidiaries
retained all of the Alltel employees who previously worked in
the wireline business, recognized the various unions that had
represented these employees for many years, and adopted the
existing collective-bargaining agreements. This case involves

3 After the close of the hearing, and before filing briefs, the General
Counsel filed a motion to consolidate a newly-issued complaint in
another case involving the same parties with this case. By Order dated
March 14, 2007, I denied the motion.
4 The new entity also included wireline employees previously em-
ployed by Valor Corporation, another telecommunications company
which Alltel had acquired.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
six bargaining units that are represented by six locals of the
IBEW. The 363 employees in these units constitute a fraction
of the 8000 employees that the Respondent employs nation-
wide.5 The bargaining units involved in this case are:
The Kentucky Unit
All tellers, cable splicers, customer service technicians,
facility persons, line workers, business system technicians
I, equipment installer/repairmen, network technicians, ser-
vice activation technician II, service activation technician
I, customer engineer data application, employed by Wind-
stream Kentucky West, Inc. at its Kentucky facility, ex-
cluding guards, professional employees and supervisors as
defined in the Act and all other employees.
This unit had been represented by Local 463 and rec-
ognized by Kentucky Alltel, Inc. since August, 2002 when
Alltel acquired Verizon’s Kentucky operations. The col-
lective bargaining agreement in effect when the Respon-
dent began operations was effective through March 13,
2007.
The New York Unit
All employees of the Fulton District, Jamestown Dis-
trict, Regional Office District and State Office District of
Windstream New York, Inc., excluding all engineers, pro-
fessional employees, managerial employees, confidential
employees, guards and supervisors as defined in the Act.
This unit had been represented by Locals 1189 and
2374 and recognized by Alltel New York, Inc. for many
years. The collective bargaining agreement in effect when
the Respondent began operations was set to expire on Oc-
tober 31. While this case was pending, the parties reached
agreement on a new collective bargaining agreement.6
The Ohio Unit
All employees in the Northern Service Area of Wind-
stream Western Reserve, Inc., excluding all traffic de-
partment employees, professional employees, managerial
employees, confidential employees, engineers and guards,
and supervisors as defined in the Act.
This unit had been represented by Local 1507 and rec-
ognized by the Western Reserve Telephone Company, a
subsidiary of Alltel, for many years. The collective bar-
gaining agreement in effect when the Respondent began
operations is effective through May 15, 2007.
The Western Reserve Central District Unit
All employees of Western Reserve Telephone Com-
pany (Central District) except confidential employees, pro-
fessional employees, managerial employees, engineers,
guards and supervisors as defined in the Act.
This unit had been represented by Local 1507 and rec-
ognized by Alltel’s Western Reserve subsidiary for a

5 A much larger group of employees, approximately 1600, are repre-
sented by the Communications Workers of America (CWA).
6 The Respondent proffered evidence of certain correspondence be-
tween the parties which occurred in the context of these negotiations. I
shall address that evidence later in this decision.
number of years. The collective bargaining agreement in
effect when the Respondent began operations is effective
through May 15, 2007.
The Waynesburg Unit
All employees of Windstream Pennsylvania, Inc. in its
Waynesburg, Pennsylvania service area, excluding engi-
neers, confidential employees, guards, and professional
employees and supervisors as defined in the Act.
This unit had been represented by Local 1929 and rec-
ognized by Alltel Pennsylvania, Inc. for a number of
years. The collective bargaining agreement in effect when
the Respondent began operations is effective through No-
vember 18, 2008.
The Meadville Unit
All employees employed by Windstream Pennsyl-
vania, Inc. in the Meadville, Pennsylvania service area,
excluding all confidential employees, professional em-
ployees, engineers, guards and supervisors as defined in
the Act.
This unit had been represented by Local 2089 and rec-
ognized by Alltel Pennsylvania, Inc. for a number of
years. The collective bargaining agreement in effect when
the Respondent began operations is effective through June
18, 2007.
On July 26, shortly after the Respondent began operations, it
distributed to all its employees, including those in the above-
bargaining units, Windstream’s working with integrity guide-
lines. The distribution was done electronically via an e-mail
from the Respondent’s chief operating officer, Keith Paglusch.
Employees could access the guidelines by a link in the e-mail.
With the exception of the introductory letter from Jeffrey R.
Gardner, Respondent’s president and chief executive officer,
the guidelines were identical to a document that Alltel had dis-
tributed to employees in March, before the spin-off was com-
plete. The guidelines were also the latest iteration in a series of
documents publishing the employer’s code of conduct going
back at least to 1978. There is no dispute that all of these pro-
nouncements, whether issued by Alltel or one of its predecessor
companies, were conveyed to union and nonunion employees
alike without any advance notification to the various Unions
representing the unionized employees.7
The series of rules or codes of conduct in evidence address a
number of topics relating to ethical work practices. The most
recent versions, distributed by Alltel in March and by the Re-
spondent in July, contain the same language regarding the con-
sequences of a violation of these guidelines:

7 The Respondent offered evidence that Alltel followed the same ap-
proach when it distributed workplace violence and workplace harass-
ment policies to employees in 2000 and 2003, respectively. Although
Alltel did not provide the local unions with advance notice and an
opportunity to bargain before implementing these policies, neither
policy contained “zero tolerance” language similar to that at issue here.
On the contrary, these policies, similar to Alltel’s ethics and integrity
policies, advised employees they would be subject to discipline “up to
and including termination” if they engaged in violence or harassment.
WINDSTREAM CORP. 47
Compliance with applicable laws and these guidelines will be
strictly enforced. If you fail to comply with them, you will be
subject to corrective action, up to and including termination of
employment [emphasis added].
The General Counsel and the Charging Party do not take issue
with the Respondent’s distribution of the guidelines them-
selves. Rather, the crux of this case turns on statements made
by Paglusch in his e-mail transmitting the guidelines to the
employees, and in Gardner’s introduction to the guidelines.8
Paglusch, in his e-mail, emphasized the importance of ethics
and integrity to the Respondent’s corporate culture. His e-mail
contained the following statements to illustrate the new com-
pany’s approach to this subject:
. . . [W]e will hold each other accountable for a zero tolerance
policy regarding lying, cheating and stealing. Implementation
of this policy makes it very clear regarding the integrity that
we will exhibit as a new company . . . . A few examples of
violations of the zero tolerance policy are:
• Falsification of company records, in-
cluding time and expense reporting.
• The use of company property outside
of normal business practice.
• Not being truthful in communications
within the company, or with outside
contacts such as suppliers and cus-
tomers.
• Any inappropriate use of company
funds or cash receipts.
While this is a short list for this category, a more com-
prehensive description of violations will be provided in the
Working with Integrity on-line course that will be avail-
able in September. . . .
Windstream has a need for creative, talented and dedi-
cated team members. However, a zero tolerance policy on
ethics means that if individuals are found to be in viola-
tion, their employment will be terminated, regardless of
previous years of service or past performance.
There is no dispute that none of the previous or existing Alltel
guidelines or rules of conduct contained such “zero tolerance”
language.
As referenced in Paglusch’s e-mail, a training course was in-
stituted about September 21. The on-line training program
involved, inter alia, employees reading the guidelines on-line
and affirming their “commitment to the standards described in
the Working with Integrity program” and their understanding

8 The General Counsel contends that Gardner’s letter was included
with the version of the guidelines distributed in July. The Respondent,
in amending its answer at the hearing, asserts that the Gardner letter
was distributed on September 21, when the Respondent initiated an
electronic training program for its employees on the guidelines. Nei-
ther party was able to establish through testimony or documents the
precise date the letter was communicated to employees. Since it is the
General Counsel’s burden to prove all allegations of the complaint and
no evidence was offered to establish the earlier date, I shall assume for
purposes of deciding this case that the Gardner letter was not distrib-
uted until September 21.
that “a violation could be the basis for disciplinary action, in-
cluding, if appropriate, termination of employment.” When an
employee clicked the “YES” button, he would be recorded in
company records as successfully completing the training. A
record of employees who clicked the “No” button in response
was also recorded and maintained in their personnel folder. If
an employee did not click either button, his name would appear
on a report of employees who had not completed training that
would be sent to managers for further action, i.e., reminding the
employee of the need to complete the training. There is no
dispute that this is the same training program and procedures
that Alltel had used when it distributed the March version of the
integrity guidelines. Alltel had been utilizing this approach to
train employees and electronically record their response to the
request for affirmation since at least 2003.
The letter from CEO Gardner, which appeared as the first
page of the guidelines no later than September 21, when the
training program started, reiterates Paglusch’s strict approach to
ethical violations. In the second paragraph of his letter, Gard-
ner tells the employees:
It is important that Windstream employees act with the high-
est ethics and have integrity in all we do. For that reason, we
will hold each other accountable for a zero tolerance policy
regarding unethical behavior. Implementation of this policy
makes it very clear regarding the integrity that we will exhibit
as a new company. Windstream maintains a compliance pro-
gram that outlines ethical guidelines for employees and mem-
bers of the board of directors. This Working with Integrity
brochure provides an overview of those guidelines.
As previously noted, the Respondent admitted in its answer that
it distributed Paglusch’s e-mail and Gardner’s letter to employ-
ees in the units involved in this proceeding without providing
their respective local unions with advance notice or an opportu-
nity to bargain over the “zero tolerance policy” announced in
those communications.
Since the Respondent began operations and distributed the
guidelines to employees, there have been few instances of dis-
cipline for violations of these rules. Records subpoenaed by the
General Counsel and the Charging Party show only two in-
stances of discipline involving unit employees. Neither em-
ployee was terminated. Records showing discipline imposed
by the Respondent’s predecessor Alltel for alleged ethics viola-
tions show that a range of discipline was employed based upon
the circumstances, the employee’s records and input from the
employee’s bargaining representative. This evidence does not
suggest that Alltel ever followed a “zero tolerance policy” with
respect to such violations.
Katherine Warn, the Respondent’s director of labor relations
who held the same position with Alltel for about 6 years before
the Respondent was spun off from that company, testified that
the Respondent did not provide advance notice to the local
unions involved in this case because the issuance of the guide-
lines was not intended to change the relationship between the
Respondent and the unit employees in terms of discipline.
Specifically, Warn testified that the “just cause” provisions in
its collective-bargaining agreements with the unions would
apply to any discipline that issued under the ethics and integrity
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
rules. Warn also testified that the Respondent believed that
most of its collective-bargaining agreements gave the Respon-
dent the right to make and amend rules and that the unions had
the right to challenge individual application of the rules through
the grievance procedure.
In support of Warn’s testimony, the Respondent proffered a
letter that Warn wrote to the presidents of Locals 1189 and
2374, which represented the New York bargaining unit, while
the parties were in negotiations for a new collective-bargaining
agreement. The General Counsel and the Charging Party ob-
jected to the admission of this letter as a statement made in the
course of settlement under Rule 408 of the Federal Rules of
Evidence. I conditionally received the letter, allowing the par-
ties to argue the matter in their briefs, and have now re-
considered my ruling. The letter, dated October 30, begins by
referring to the instant charge and the General Counsel’s deci-
sion to issue complaint in this matter. Warn then states that the
purpose of her letter is “to advise you of the Company’s posi-
tion, and the reasons for the Company’s concerns.” She then
sets out the Respondent’s position on the unfair labor practice
charge and “explains” how Paglusch’s e-mail did not change
employees’ terms and conditions. Attached to the letter is a
copy of a settlement proposal the Respondent had received
from the General Counsel. Warn testified that she presented
this letter to the Local presidents and a staff representative from
the IBEW, John Amodeo, who was assisting the Locals in ne-
gotiations, after a negotiation session. According to Warn,
when she asked Amodeo if he and the local unions would meet
with her to discuss the letter, Amodeo said they weren’t inter-
ested in bargaining over this subject at the bargaining table. On
cross-examination, she acknowledged that Amodeo explained
that the local unions did not want to bargain about the subject at
that time because they believed it would not be appropriate to
do so since the charge had been filed at the International level.
According to Warn, Amodeo also cited the stage of bargaining,
i.e., close to agreement on the contract, as another factor in not
wanting to bring this matter to the local negotiations.
Having reconsidered the matter, I now agree with the Gen-
eral Counsel and the Charging Party that Warn’s letter and her
conversation with Amodeo was a statement made in the context
of settlement discussions which is being proffered by the Re-
spondent to prove the invalidity of the complaint’s allegations.
Warn’s reference in the letter to the Region’s decision to issue
complaint and her attachment of the Region’s proposed settle-
ment agreement make this abundantly clear. The statements
made by Warn in her letter were also self-serving, post-hoc
justifications for the Respondent’s actions that were the subject
of the complaint. Any offer to “bargain” in Warn’s letter and
any “refusal” by the Unions to whom it was addressed is thus
inadmissible to disprove a violation of the Act. See Contee
Sand & Gravel Co., 274 NLRB 574 fn. 1 (1985).
The Respondent, in support of its waiver defense, cites lan-
guage from each of the collective-bargaining agreements that
purportedly gives the Respondent the right to unilaterally make
and amend rules of conduct. The language relied upon appears
primarily in the management rights, just cause and the griev-
ance/arbitration clauses. The management rights clauses cited
are worded generally and, with one exception, do not specifi-
cally refer to the right to make and amend rules. Only the man-
agement rights clause in the collective-bargaining agreement
covering the Western Reserve Central District unit explicitly
includes the right “to establish reasonable rules and regulations
(subject to the Union’s right to grieve the reasonableness of
such rules and regulations).” The management rights clause in
this contract, as well as those in the contracts covering the other
unit in Ohio and the New York unit, specifically provide that
the Respondent’s exercise of its rights is subject to the right of
an employee to file a grievance under the contract.9 Four of the
collective-bargaining agreements, i.e., all except those covering
the two Ohio units, also contain the following language in the
management-rights clause:
Nothing contained in this Agreement shall be deemed to limit
the Company in any way in the exercise of the regular and
generally recognized customary functions and responsibilities
of management. Moreover, such functions of management as
may be included herein shall not be deemed to exclude other
functions of management not specifically included herein.
Other contract provisions cited by the Respondent generally
require employees to work efficiently and to obey company
rules. A clause in the collective-bargaining agreement covering
the Kentucky unit specifically provides that the Union will
“cooperate with the Company in replacing any employee cov-
ered by this Agreement found guilty of not performing his or
her duties in a reasonably efficient manner, or who consistently
acts in an objectionable manner to his fellow employees, cus-
tomers of the Company or the Company.” The grievance and
arbitration provisions cited generally provide that all discipline
issued by the Respondent is subject to grievance and arbitration
with just cause the standard for review of such discipline.
The Respondent also cites provisions in the collective-
bargaining agreements that specifically require the Respondent
to provide the respective local union with advance notice before
implementing certain changes, such as those affecting medical
benefits, pensions, and subcontracting. None of the collective-
bargaining agreements contains a similar provision requiring
advance notice before making or changing rules regarding em-
ployee conduct.
The parties also offered evidence that, on two occasions,
both in early 2002, two local unions objected to discipline im-
posed on employees which was based, in part, on Alltel’s ethics
and integrity guidelines. Grievances filed by Local Union 2374
in Jamestown, New York, and Local Union 2089 in Meadville,
Pennsylvania, challenging discipline issued for motor vehicle
accidents, objected to the employer’s reference to the ethics
policy on the basis that it had not been negotiated with the Un-
ion.
B. Analysis
1. Procedural issues
The Respondent has raised several procedural defenses
which must be addressed before turning to the merits. Respon-

9 The New York unit contract also makes the Respondent’s exercise
of its management rights “subject . . . to the provisions of the Agree-
ment.”
WINDSTREAM CORP. 49
dent first challenges the Board’s jurisdiction to resolve this
dispute on the basis that the IBEW lacked standing to file the
instant charge. Respondent relies upon the fact that the Interna-
tional Union is not a party to any of the six collective-
bargaining agreements involved here, nor is it the certified or
recognized bargaining agent of any of the units in question.
The Respondent also cites provisions in the International Un-
ion’s constitution and bylaws that appear to limit the right of
the local unions to act as agents of the International and vice
versa.10 Respondent’s defense must be rejected. The Board
and the courts have historically recognized, consistent with
congressional intent, that “anyone for any reason may file
charges with the Board.” Operating Engineers Local 39 (Kai-
ser Foundation), 268 NLRB 115, 116 (1983). See also Postal
Service, 309 NLRB 309 (1992); Bagley Products, 208 NLRB
20, 21 (1973); Section 102.9 of the NLRB’s Rules and Regula-
tions. As the Supreme Court said, many years ago:
The charge is not proof. It merely sets in motion the machin-
ery of an inquiry. When a Board complaint issues, the ques-
tion is only the truth of its accusations. The charge does not
even serve the purpose of a pleading. Dubious character, evil
or unlawful motive, or bad faith of the informer cannot de-
prive the Board of its jurisdiction to conduct the inquiry.
NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17–18
(1943).
The Respondent next raises the defense of improper joinder
of charges and parties. The Respondent argues that it has been
unduly prejudiced by the General Counsel’s decision to allege
in a single proceeding unfair labor practices involving six sepa-
rate bargaining units, each represented by a different local of
the Union with its own collective-bargaining agreement and
separate bargaining history with the Respondent’s predecessor.
I must reject this defense as well. Section 3(d) of the Act gives
the General Counsel exclusive and final authority over issuance
and prosecution of unfair labor practice complaints, independ-
ent of Board review and supervision. Beverly California Corp.
III, 326 NLRB 232, 236–237 (1998). The General Counsel is
accorded wide latitude in the exercise of this prosecutorial dis-
cretion, including choosing whether to consolidate cases, sub-
ject to review only for an abuse of discretion. Service Employ-
ees Local 87 (Cresleigh Management), 324 NLRB 774 (1997).
Here, the General Counsel’s decision to prosecute the alleged
unfair labor practice which affected six separate bargaining
units in a single proceeding can hardly be called an abuse of
discretion. Although each unit may have had its own contract
and bargaining history, the alleged unilateral change and direct
dealing affected all equally. It was not necessary to hold sepa-
rate proceedings to litigate any issues as to whether a particular
contract or past practice waived a particular local union’s bar-
gaining rights. Accordingly, I find that the Respondent was not
unduly prejudiced by the General Counsel’s exercise of its
prosecutorial discretion in this case.

10 Respondent acknowledges that the International Union has histori-
cally assisted the local unions in contract negotiations with Alltel and
has continued to perform this role since the Respondent recognized the
local unions in July 2006.
The Respondent also raised, as an affirmative defense, that
the case should be deferred to the parties’ contractual grievance
and arbitration provisions under the Board’s Collyer11 deferral
policy. Counsel for the General Counsel opposed deferral on
the basis that the alleged unilateral change and direct dealing
occurred on a corporatewide basis and that deferring to six
different contractual grievance procedures could lead to incon-
sistent results. The General Counsel also argues that in three of
the collective-bargaining agreements, the arbitrator’s decision
is final and binding only as to questions of fact, not as to ques-
tions of law.12 It is also not clear that an arbitrator would be
able to address the direct dealing allegation. Based on the ar-
guments of the General Counsel, I shall decline to defer this
case pursuant to Collyer.
2. Alleged unilateral change
The complaint alleges that the reference to a “zero tolerance
policy” for violations of the Respondent’s working with integ-
rity guidelines, found in CEO Gardner’s introduction to the
guidelines and in COO Paglusch’s July 26 e-mail, amounted to
a unilateral change in unit employees’ terms and conditions of
employment. The Respondent contends that these statements
did not materially and substantially change the Respondent’s
ethics and integrity program, which it had adopted from its
predecessor Alltel. The Respondent argues further that, assum-
ing there was a material and substantial change, the Respondent
had no obligation to notify and bargain with the Local Unions
in advance because each union had waived its right to bargain
over the subject by contract and practice.13
It is well established that an employer violates Section
8(a)(5) and (1) of the Act if it makes material or substantial
changes in employees’ wages, hours, or other terms and condi-
tions of employment unilaterally during the term of a collec-
tive-bargaining agreement. NLRB v. Katz, 369 NLRB 736
(1962). Accord: United Cerebral Palsy of New York City, 347
NLRB 603 (2006). The Board has specifically found that
changes in an employer’s work rules and disciplinary policies
that alter the scope of the discipline and the method for deter-
mining the level of discipline are material and substantial
enough to require bargaining, absent waiver. Toledo Blade Co.,
343 NLRB 385 (2004); Bath Iron Works Corp., 302 NLRB
898, 902–903 (1991). Cf. Berkshire Nursing Home, LLC, 345
NLRB 220 (2005); LaMousse, Inc., 259 NLRB 37, 49–50
(1981). Here, the Respondent argues that the “zero tolerance
policy” announced by Paglusch and Gardner did not materially
or substantially change the ethics and integrity guidelines that
had existed for many years under Alltel. The Respondent
points to the fact that the section in the guidelines addressing
discipline was identical to language in the Alltel policy. The
Respondent also relies on the fact that, even after announcing a
“zero tolerance policy,” the Respondent has not terminated

11 Collyer Insulated Wire, 192 NLRB 837 (1971).
12 This language appears in the collective-bargaining agreements
covering the two Pennsylvania units and the New York unit.
13 Respondent admitted in its answer that the subject of a zero toler-
ance policy was a mandatory subject of bargaining within the meaning
of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
employees for violations of the policy when they have oc-
curred.
I find, in agreement with the General Counsel, that the an-
nouncement of a “zero tolerance policy,” meaning that an em-
ployee found to have violated one of the Respondent’s ethics
and integrity rules would be automatically terminated without
regard to his work record or the particular circumstances, repre-
sented a “material, substantial and significant” change in em-
ployees’ terms and conditions of employment. United Cerebral
Palsy of New York City, supra at 607; Toledo Blade Co., supra
at 388.14 This language necessarily alters the “just cause” pro-
vision in the Respondent’s collective-bargaining agreements
with the six local unions here because it removes from consid-
eration by an arbitrator factors such as an employee’s prior
work record or the circumstances of the alleged violation. Al-
though the Respondent argued at the hearing and in its brief
that the collective-bargaining agreement would govern any
discipline imposed under the guidelines, there is nothing in
Paglusch’s or Gardner’s letters to employees to suggest that
would be the case. On the contrary, the tone of their communi-
cations with employees is absolute.
Warn’s testimony at the hearing that the Respondent did not
intend to change the contractual just cause provision, or its
existing disciplinary procedures is nothing more than a post hoc
rationalization of the Respondent’s unilateral action. Until such
time as the Respondent explicitly disavows the “zero tolerance
policy” announcement in a communication to employees, it
remains in force and available to the Respondent in the applica-
tion of discipline to unit employees. Similarly, although the
Respondent did not in fact utilize the “zero tolerance policy”
when it had the opportunity to do so, this is not proof that a
change did not occur. I note that the two instances where em-
ployees were alleged to have violated the ethics and integrity
rules occurred after the Union had filed the instant charge. The
Respondent may well have chosen not to apply its “zero toler-
ance policy” in these cases in order to avoid liability for a vio-
lation of the Act. Accordingly, I find that, absent waiver, the
Respondent would have a duty under the Act to provide the
Local Unions here with advance notice and an opportunity to
bargain before the announcement of a “zero tolerance policy”
for violations of its ethics and integrity rules.
With respect to waiver, the Board and the courts have long
held that waivers of statutory rights are not to be lightly in-
ferred, but instead must be “clear and unmistakable.” Metro-
politan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); C & P
Telephone Co. v. NLRB, 687 F.2d 633, 636 (2d Cir. 1982);
Georgia Power Co., 325 NLRB 420 (1998). To establish a
waiver by contract, the language must be specific and related to
the particular subject or it must be shown that the issue was
fully discussed and that the union consciously yielded its inter-
est in the matter. Georgia Power Co., supra. See also Allison
Corp., 330 NLRB 1363, 1365 (2000). The Board has held that

14 The cases relied on by the Respondent are distinguishable. In
those cases, the administrative law judge found that minor changes in
existing disciplinary procedures were not material and substantial be-
cause they did not alter the just cause provision of a collective-
bargaining agreement. See, e.g., LaMousse, Inc., supra.
generally worded management rights clauses or zipper clauses
will not be construed as waivers of statutory bargaining rights.
Hi-Tech Cable Corp., 309 NLRB 3, 4 (1992); Johnson-
Bateman Co., 295 NLRB 180, 184–188 (1989). Finally, with
respect to bargaining history, the Board has held that a union’s
past acquiescence in unilateral changes does not operate as a
waiver of its right to bargain over such changes in the future.
Bath Iron Works, supra at 900–901, and cases cited therein.
See also Exxon Research & Engineering Co., 317 NLRB 675
(1995).
None of the collective-bargaining agreements in the instant
case contain specific language authorizing the Respondent to
adopt a zero tolerance policy for discipline. On the contrary, all
of the collective-bargaining agreements contain “just cause”
language, which is antithetical to a “zero tolerance” approach to
discipline. As previously noted, only one contract includes the
right “to establish reasonable rules and regulations” within the
management rights clause. However, that particular manage-
ment right is subject to the particular local union’s right to chal-
lenge the reasonableness of any rule through the grievance
procedure. This hardly amounts to a waiver of the right to bar-
gain over a significant change in the level of discipline the Re-
spondent can impose for violation of its rules. Other language
in the collective-bargaining agreements requiring employees to
abide by the Respondent’s rules of conduct is also not specific
enough to clearly and unmistakably waive the union’s right to
bargain over the manner and means or the degree of discipline
to be imposed for an employee’s failure to obey the rules. The
Union’s agreement to a grievance and arbitration procedure and
to “just cause” language in these contracts does not show a
waiver with respect to the subject at issue. If anything, such
language shows the unions interest in the fairness of the Re-
spondent’s application of discipline. As previously noted, a
“zero tolerance policy” for discipline would be devoid of fair-
ness. Accordingly, I find that the Respondent has not demon-
strated that any of the local unions here have “clearly and un-
mistakably” waived by contract any bargaining rights with
respect to the zero tolerance policy announced in July 2006.
In order to establish a waiver by practice, or bargaining his-
tory, the Respondent relies essentially on the history of rela-
tions between the local unions and Alltel, which is not the em-
ployer in this case. There is very little bargaining history be-
tween the Respondent and these Local Unions on which to base
a finding of waiver. Moreover, both Paglusch and Gardner
were hired specifically to lead the Respondent and had no prior
history of dealing with the unions at Alltel. Their desire to
establish a new corporate culture is evident from the communi-
cations at issue here. Thus, whatever might be said of the un-
ions’ acquiescence in Alltel’s previous distributions of its ethics
and integrity policies can hardly be construed as a waiver of the
right to bargain over such a change in the corporate approach to
discipline as that announced by this new employer. Accord-
ingly, I find that the Respondent has not demonstrated that any
of the Local Unions here have waived their bargaining rights by
practice or bargaining history.15

15 I also note that it is undisputed that Alltel had never adopted a
“zero tolerance policy” for discipline in its dealings with unit employ-
WINDSTREAM CORP. 51
The Respondent also raised, as an affirmative defense, that
none of the local unions ever requested bargaining over the
“zero tolerance policy” announced by Paglusch and Gardner. I
reject this defense because the Board has consistently held that
a union is not required to request bargaining when a change in
employees’ terms and conditions of employment is presented as
a fait accompli, or where it would be futile to do so. See Ciba-
Geigy Pharmaceuticals Div., 264 NLRB 1013, 1017–1018
(1982), and cases cited therein. The evidence here clearly es-
tablishes that the Respondent’s announcement of its “zero tol-
erance policy” was a fait accompli. The local unions received
notice of the new policy at the same time as the unit employees.
Nothing in the announcement indicated that it would not be
immediately effective. A request to bargain after the policy had
already been announced and implemented would be futile.16
Accordingly, I reject this affirmative defense and find, as al-
leged in the complaint, that the Respondent violated Section
8(a)(5) and (1) in July 2006, when it unilaterally announced a
“zero tolerance” disciplinary policy.
3. Alleged direct dealing
The complaint alleges that the Respondent’s unilateral an-
nouncement of its zero tolerance policy also constituted direct
dealing in violation of Section 8(a)(5) and (1) of the Act. The
General Counsel and the Charging Party rely on the fact that
the Respondent communicated the new policy directly to the
employees, before notifying their respective bargaining repre-
sentatives of this significant change in their terms and condi-
tions of employment. The Charging Party, in its brief, also
cites the evidence that, as part of the Respondent’s on-line
training program, employees were required to affirm their
agreement with the policy. The Respondent argues that the
mere communication to employees of a change, even if made
unilaterally, does not amount to direct dealing.
The Board has long held that the obligation to bargain col-
lectively requires “recognition that the statutory representative
is the one with whom [the employer] must deal in conducting
bargaining negotiations, and that it can no longer bargain di-
rectly with the employees.” General Electric Co., 150 NLRB
192, 194 (1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied
397 U.S. 965 (1970). See also Medo Photo Supply Co. v.
NLRB, 321 U.S. 678 (1944). In Georgia Power Co., 342
NLRB 192 (2004), the Board found that the employer bypassed
the union and dealt directly with its employees by communicat-
ing directly to the unit employees regarding the formation of its
workplace ethics program. In that case, however, the employer
solicited its unit employees to participate in the formation of
work teams and processed employee concerns through the eth-
ics program. Here, the Respondent’s announcement of the zero

ees. The new policy represented such a dramatic change in the em-
ployer’s approach to discipline that the unions’ past practice with All-
tel, even if relevant, would not show a waiver.
16 I previously rejected the Respondent’s proffer of evidence pur-
portedly showing that Local Unions 1189 and 2374 refused to bargain
when offered the opportunity to do so during contract negotiations in
October. This offer was made in the context of settlement negotiations
and cannot be relied upon to show a disinterest by the Unions in bar-
gaining over the subject.
tolerance policy did not invite any feedback from employees,
nor solicit them to negotiate with the Respondent over the pol-
icy. In Sonic Automotive, 343 NLRB 1058 (2004), the Board
adopted the judge’s finding that merely informing employees of
a predetermined course of action does not amount to direct
dealing. See also Huttig Sash & Door, 154 NLRB 811, 817
(1965).
The Charging Party cites United Cerebral Palsy of New York
City, supra, in which the Board found direct dealing where the
employer distributed a new handbook, which unilaterally
changed employees’ terms and conditions of employment, and
required the employees to sign a receipt acknowledging they
had received the handbook and agreed to comply with it. Al-
though there are some similarities to the Respondent’s conduct
here, the key difference is that the acknowledgement in United
Cerebral Palsy also required the employees to agree that the
employer could unilaterally change terms and conditions of
employment in the future. See also Heck’s, Inc., 293 NLRB
1111, 1120 (1989). The affirmation utilized by the Respondent
as part of its on-line training program is different. It does not
require unit employees to agree that the Respondent may make
future changes in their terms and conditions of employment
without prior notice.
I find that the Respondent’s communication of its new zero
tolerance policy directly to unit employees did not amount to
direct dealing in violation of the Act because it did not invite
the employees to bypass their representative and negotiate with
the Respondent over any term or condition of employment nor
did it undermine the Unions’ role as the employees’ exclusive
bargaining representative by requiring the employees to agree,
in advance, to future unilateral changes. Accordingly, I shall
recommend dismissal of this allegation of the complaint.
CONCLUSIONS OF LAW
1. By unilaterally implementing a zero tolerance disciplinary
policy for violations of its ethics and integrity rules, the Re-
spondent has failed and refused to bargain collectively with the
local unions representing its employees and has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
2. By announcing the zero tolerance policy directly to unit
employees without soliciting or inviting the employees to nego-
tiate with it, the Respondent did not engage in direct dealing
and did not violate Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In order to remedy the unlawful
unilateral change found here, I shall recommend that the Re-
spondent rescind the zero tolerance policy announced on July
26, 2006, via e-mail from COO Paglusch and reaffirmed by
letter from CEO Gardner and restore the status quo ante. The
Respondent shall further be ordered to communicate the rescis-
sion to all employees in the bargaining units involved in this
proceeding via electronic mail, which is the Respondent’s pre-
ferred and customary method of communicating with employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
ees. See National Grid USA Service Co., 348 NLRB 348 fn. 2
(2006).17 No unit employees had been terminated under this
policy as of the date of the hearing. However, should it be
determined at the compliance phase of this proceeding that the
Respondent has in fact terminated any unit employees pursuant
to the unilaterally adopted policy, I shall recommend that it be
ordered to offer reinstatement to said employee and expunge
from the employee’s record any reference to the termination. I
shall also recommend that the Respondent provide advance
notice and an opportunity to bargain to the respective local
unions before making any future changes to unit employees’
wages, hours, and terms and conditions of employment.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The Respondent, Windstream Corporation, Little Rock, Ar-
kansas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making changes to the wages, hours, and terms and con-
ditions of employment of employees in the bargaining units
represented by IBEW Locals 463, 1189, 1507, 1929, 2089, and
2374 without first providing those unions with notice and an
opportunity to bargain.
(b) 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 effec-
tuate the policies of the Act.
(a) Rescind the zero tolerance policy for violations of the
“working with integrity” guidelines, that was announced in July
2006, and notify employees in the units represented by the local
unions identified above that this has been done. Such notifica-
tion to be by electronic mail and any other manner in which the
Respondent customarily communicates such policies to its em-
ployees.
(b) In the event any unit employee has been terminated as a
result of the unilaterally adopted zero tolerance policy, rescind
the termination and offer the employee reinstatement to his
prior position, without loss of seniority or other benefits, make

17 For the same reason, I shall also recommend that the Respondent
post the attached notice to employees electronically.
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
him whole for any wages and benefits lost as a result of the
termination and expunge from its files any reference to the
termination.
(c) Notify the local unions identified above and, on request,
bargain with them as the exclusive collective-bargaining repre-
sentative of their respective units, before making any changes
to unit employees’ wages, hours, and terms and conditions of
employment.
(d) Within 14 days after service by the Region, post at its fa-
cilities covered by its collective-bargaining agreements with
Locals 463, 1189, 1507, 1929, 2089, and 2374, copies of the
attached notice marked “Appendix.”19 Copies of the notice, on
forms provided by the Regional Director for Region 6, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive 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 Re-
spondent has gone out of business or closed any of the facilities
involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent
at that facility at any time since July 26, 2006.
(e) Within 14 days after service by the Region, post the at-
tached notice marked “Appendix” electronically on the Re-
spondent’s intranet with a link sent by electronic mail to em-
ployees in the units represented by the above local unions.
(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 inso-
far as it alleges violations of the Act not specifically found.

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”