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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`JD(NY)-55-05
`
`Findings of Fact
`
`I. Jurisdiction
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`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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`JD(NY)-55-05
`
`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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`JD(NY)-55-05
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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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`JD(NY)-55-05
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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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`JD(NY)-55-05
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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 –
`fellow
`treat
`to
`required
`Verizon Wireless employees are
`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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`JD(NY)-55-05
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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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`JD(NY)-55-05
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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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`JD(NY)-55-05
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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.
`
`5
`
`10
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`15
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`20
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`25
`
`30
`
`35
`
`40
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`45
`
`50
`
`

`

`JD(NY)-55-05
`
`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