Cellco Partnership d/b/a Verizon Wireless, (2017)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
Cellco Partnership d/b/a Verizon Wireless and Communications Workers of America, AFL–CIO. Case 29–CA–158754
June 9, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
On August 1, 2016, Administrative Law Judge John T. Giannopoulos issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief. The Respondent also filed a motion to reseal record.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions,2 to
1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit.
2 In affirming the judge’s finding that the Respondent violated Sec. 8(a)(1) and (3) of the Act by discharging employee Bianca Cunningham, we find it unnecessary to rely on the 8(a)(1) violations found in Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38 (2017), to find animus.
Further, because we agree with the judge that the General Counsel presented sufficient other evidence to sustain his evidentiary burden, we do not rely on GC Exh. 49 and we find it unnecessary to pass on the Respondent’s exceptions to the judge’s determination that any attorneyclient privilege with respect to that exhibit had been waived.
Chairman Miscimarra disagrees with the judge’s waiver analysis and his application of the factors identified in Lois Sportswear, U.S.A. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D. N.Y. 1985). However, he agrees with the majority that the General Counsel met his evidentiary burden even without GC Exh. 49.
Chairman Miscimarra disagrees with the judge’s statement that the General Counsel does not have to prove a connection between an employer’s antiunion animus and the adverse employment action, the lawfulness of which is at issue. In Wright Line, the Board stated that the General Counsel must make “a prima facie showing sufficient to support the inference that protected conduct was a ‘motivating factor’ in the employer's decision.” 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Thus, Chairman Miscimarra would find that under Wright Line, the General Counsel must establish a link or nexus between the employee's protected activity and the employer's decision to take the employment action
amend the remedy, and to adopt the recommended Order as modified and set forth in full below.3
The National Labor Relations Board orders that the Respondent, Cellco Partnership d/b/a Verizon Wireless, Basking Ridge, New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees for engaging in activities on behalf of the Communications Workers of America, AFL–CIO, or any other labor organization.
(b) Discharging or otherwise discriminating against employees for engaging in concerted activities protected by Section 7 of the Act.
alleged to be unlawful. See Libertyville Toyota, 360 NLRB 1298, 1306 fn. 5 (2014) (then-Member Miscimarra, concurring in part and dissenting in part), enfd. 801 F.3d 767 (7th Cir. 2015); Starbucks Coffee Co., 360 NLRB 1168, 1172 fn. 1 (2014) (then-Member Miscimarra, concurring); see also AutoNation, Inc. v. NLRB, 801 F.3d 767, 775 (7th Cir. 2015) (holding that “there must be a showing of a causal connection between the employer's anti-union animus and the specific adverse employment action on the part of the decisionmaker”); Nichols Aluminum, LLC v. NLRB, 797 F.3d 548, 554–555 (8th Cir. 2015), denying enforcement of 361 NLRB No. 22 (2014) (“Simple animus toward the union is not enough. While hostility to a union is a proper and highly significant factor for the Board to consider when assessing whether the employer's motive was discriminatory, general hostility toward the union does not itself supply the element of unlawful motive.”) (alterations and internal quotations omitted). Applying this standard, Chairman Miscimarra finds the General Counsel made the requisite prima facie showing required under Wright Line in this case.
Because he finds that Cunningham did not lie, Chairman Miscimarra finds it unnecessary to rely on the judge’s alternative rationale that any untrue statements by Cunningham during the investigation were protected under the rationale of Paragon Systems, Inc., 362 NLRB No. 182 (2015).
3 In accordance with our recent decision in King Soopers, Inc., 364 NLRB No. 93 (2016), we shall order the Respondent to compensate Cunningham for her search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings. Searchfor-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). For the reasons stated in his separate opinion in King Soopers, 364 NLRB No. 93, slip op. at 9-16, Chairman Miscimarra would adhere to the Board’s former approach, treating search-for-work and interim employment expenses as an offset against interim earnings.
With respect to the reporting requirement for allocation of backpay, we do not rely on the judge’s citation to Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). Instead, we rely on AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), which the judge properly applied in his recommended Order.
We shall modify the judge’s recommended order to reflect these remedial changes, to conform to the Board’s standard remedial language, and in accordance with our decision in Excel Container, Inc., 325 NLRB 17 (1997). We shall also substitute a new notice to conform to the Order as modified.
365 NLRB No. 93
(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Bianca Cunningham full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make whole Bianca Cunningham for any loss of earnings and other benefits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the judge’s decision as amended in this decision.
(c) Compensate Bianca Cunningham for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 29, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years.
(d) Within 14 days from the date of the Board’s Order, remove from its files any reference to the unlawful discharge of Bianca Cunningham, and within 3 days thereafter notify her in writing that this has been done and that the discharge will not be used against her in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its retail stores in Brooklyn, New York, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 29, 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. In addition to physical posting of paper notices, the notices shall be distributed electroni
4 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.”
cally, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed any of the facilities involved in these...
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