640
`
`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
`
`Cellco Partnership d/b/a Verizon Wireless and Com-
`munications Workers of America, AFL–CIO.
`Case 2–CA–35987
`March 28, 2007
`DECISION AND ORDER
`BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
`AND WALSH
`On December 23, 2005, Administrative Law Judge
`Steven Davis issued the attached decision. The Re-
`spondent filed exceptions, a supporting brief, and a re-
`ply brief, and the General Counsel and the Charging
`Party filed answering briefs. The Charging Party addi-
`tionally filed cross-exceptions, a supporting brief, and a
`reply brief, and the Respondent filed an answering
`brief.1
`The National Labor Relations Board has delegated its
`authority in this proceeding to a three-member panel.
`The Board has considered the decision and the record
`in light of the exceptions2 and briefs and has decided to
`affirm the judge’s rulings, findings,3 and conclusions as
`modified herein and to adopt the recommended Order
`as modified and set forth in full below.4
`
`
`1 Pursuant to Reliant Energy, 339 NLRB 66 (2003), the Respondent
`also filed a letter calling the Board’s attention to its recent decision in
`St. Mary’s Hospital of Blue Springs, 346 NLRB 776 (2006). The Gen-
`eral Counsel and the Charging Party each filed a letter response.
`2 There were no exceptions to the judge’s dismissal of complaint al-
`legations that the Respondent (1) interrogated employee Steven Fer-
`rante and warned him not to engage in union activity, in violation of
`Sec. 8(a)(1) of the Act, and (2) disciplined Ferrante, in violation of Sec.
`8(a)(3). As a result, we find it unnecessary to pass on the Respondent's
`exception to the judge’s failure to address its argument that the interro-
`gation and warning allegations were untimely under Sec. 10(b) of the
`Act.
`3 The Respondent has excepted to some of the judge’s credibility
`findings. The Board’s established policy is not to overrule an adminis-
`trative law judge’s credibility resolutions unless the clear preponder-
`ance 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.
`4 We have modified the judge’s recommended Order to more accu-
`rately reflect the violations found and to conform to our standard reme-
`dial language. Specifically, because the Orangeburg, New York facility
`involved in this case has been closed, we have modified the recom-
`mended Order to provide for mailing of the notice to the affected em-
`ployees, rather than posting of the notice at another facility as recom-
`mended by the judge. See Reigel Electric & Central Electric Services,
`341 NLRB 198, 198 fn. 2 (2004). Accord: Indian Hills Care Center,
`321 NLRB 144, 144 (1996) (when the record indicates that the respon-
`dent’s facility has closed, the Board routinely provides for mailing of
`the notice to employees). However, we decline to additionally order
`posting of the notice on the Respondent’s internet website, as requested
`by the Charging Party. In our view, such a measure is not necessary to
`remedy the violations found. We have further modified the recom-
`mended Order to remove the make-whole remedy for discriminatee
`Greg Neubauer, in accordance with the Respondent’s exceptions, as we
`
`349 NLRB No. 62
`
`This case involves allegations that the Respondent
`committed several unfair labor practices in response to
`union organizing efforts at its Orangeburg, New York
`facility. The judge found that the Respondent violated
`Section 8(a)(1) by (1) promulgating and maintaining
`rules prohibiting union solicitation in employee work
`areas and on breaktime; (2) promulgating and maintain-
`ing a rule prohibiting employees from discussing disci-
`pline they received and terms and conditions of em-
`ployment; and (3) disparately and selectively enforcing
`its no-solicitation rules only against those engaged in
`union solicitation. While finding that the Respondent
`did not violate Section 8(a)(3) by discharging employee
`Thai Nguyen, the judge found merit in additional
`8(a)(3) allegations that the Respondent had unlawfully
`issued an oral warning to employee Greg Neubauer on
`August 28, 2003, and two written warnings to Neubauer
`on October 8, 2003, and March 25, 2004. The Respon-
`dent excepts to all of those unfair labor practice find-
`ings, and the Union (Communications Workers of
`America, AFL–CIO) excepts to the dismissal of the
`8(a)(3) allegation related to Nguyen’s discharge.
`We agree with the judge’s findings, except as to the
`written warnings issued to Neubauer on October 8,
`2003, and March 25, 2004. We find for the reasons
`discussed below that those written warnings did not
`violate the Act.5
`
`I. BACKGROUND
`The Respondent, a provider of wireless telecommu-
`nications services, employed roughly 400 to 600 cus-
`tomer service representatives at its customer service
`center in Orangeburg, New York. Those employees
`worked in cubicles in fairly close proximity to their
`immediate supervisors on a single floor of the Orange-
`burg facility.
`
`
`
`
`agree with the Respondent that Neubauer suffered no monetary loss by
`virtue of the discipline unlawfully issued to him, and therefore is enti-
`tled only to expunction of that discipline. Finally, we have substituted
`a new notice to comport with all of the foregoing modifications.
`5 While adopting the judge’s finding that the Respondent violated
`Sec. 8(a)(1) by prohibiting employees from discussing discipline they
`received, Chairman Battista and Member Schaumber find it unneces-
`sary to pass on the judge’s related finding that the Respondent unlaw-
`fully prohibited discussion of terms and conditions of employment, as
`such a finding would be cumulative and would not materially affect the
`remedy.
`Chairman Battista would similarly find it unnecessary to pass on the
`judge’s finding that the Respondent violated Sec. 8(a)(1) by disparately
`and selectively enforcing its no-solicitation rules only against employ-
`ees engaged in union solicitation. In view of the violation concerning
`promulgation and enforcement of the no-solicitation rule, he finds this
`unfair labor practice to be cumulative, having no material effect on the
`remedy.
`
`

`

`VERIZON WIRELESS
`
`641
`
`In the spring of 2003,6 the Union began a campaign
`to organize the Respondent’s customer service repre-
`sentatives at Orangeburg. At all times while this cam-
`paign was underway, the Respondent maintained a writ-
`ten policy prohibiting solicitation “during the working
`time of either the employee making the solicitation or
`the employee who is being solicited.” Notwithstanding
`this written policy, the record reflects that the Respon-
`dent in fact permitted various kinds of solicitation on
`working time. For example, employees were seen dur-
`ing working time going from cubicle to cubicle selling
`items (such as candy, meals, and Girl Scout cookies) to
`their coworkers.
`In August, employee Danaya Hilton complained to
`her managers that fellow employee and union supporter
`Greg Neubauer had repeatedly disturbed her while she
`was working to encourage her to sign a union authoriza-
`tion card. On August 28, in response to Hilton’s com-
`plaint, Associate Director of Customer Service Loraine
`Smith asked Neubauer to stop “harassing” Hilton at her
`desk about the Union. Smith orally warned Neubauer
`that he should not talk about “non related work issues,
`including the Union, on the [work] floor.”
`In early October, the Respondent received a similar
`complaint about Neubauer from employee Myra Rivas.
`Rivas reported to Associate Director of Customer Ser-
`vice Smith that Neubauer had been visiting her cubicle
`while she was working, interrupting her with requests
`that she sign a union authorization card, and generally
`“getting on her nerves.” During one of those visits,
`according to Smith, Neubauer had placed a picture of
`himself on Rivas’ desk. When Rivas removed the pic-
`ture, Neubauer replaced it. Rivas again removed the
`picture after consulting Supervisor Constance Crews
`Young (Crews) about the situation. Neubauer later
`questioned Rivas about what happened to the picture
`and told her that he knew “that bitch” took it, referring
`to Supervisor Crews.
`At about the same time, the Respondent sent an e-
`mail critical of the Union to its Orangeburg customer
`service employees. Neubauer immediately replied with
`his own e-mail criticizing the Respondent’s position
`with regard to the Union. He printed this e-mail re-
`sponse and took it to fellow employee Kim Rivieccio at
`her cubicle. Neubauer presented the e-mail to Riviec-
`cio and told her to “show this to your fucking supervi-
`sors.” Annoyed by Neubauer’s behavior, Rivieccio
`loudly told Neubauer to leave her alone.7 Rivieccio
`later related the entire incident to her supervisor.
`
`
`6 All dates hereafter are in 2003, unless otherwise indicated.
`7 Rivieccio initially testified that she was on the telephone with a
`customer when Neubauer made this comment to her, but then later
`
`Based on the complaints from Rivas and Rivieccio,
`the Respondent issued a written warning to Neubauer
`on October 8. The warning cited Neubauer’s solicita-
`tion of employees during working time as well as his
`“inappropriate and insubordinate remarks” about a su-
`pervisor and his use of “offensive language.” After the
`Union filed an unfair labor practice charge concerning
`the warning, the Respondent withdrew it and issued a
`revised written warning on March 25, 2004, based on
`the same complaints from Rivas and Rivieccio. The
`revised written warning deleted
`references
`to
`Neubauer’s solicitation on working time and, instead,
`focused solely on Neubauer’s “inappropriate and insub-
`ordinate” remarks about Supervisor Crews and his use
`of offensive language in discussing the Union with
`Rivieccio.
`The Respondent’s code of business conduct prohibits
`“[c]onduct that encourages or permits an offensive or
`hostile work environment.” Although the record evi-
`dence shows that profanities were sometimes used on
`Respondent’s premises, there is no evidence that pro-
`fanities were commonly heard on the work floor.
`Rivieccio testified that the word “fuck,” in particular,
`was not commonly heard on the work floor during
`worktime.
`
`II. DISCUSSION
`The judge found that the August 28 oral warning and
`the October 8 and March 25, 2004 written warnings
`issued to Neubauer were predicated on his engaging in
`union solicitation and
`therefore violated Section
`8(a)(3). The Respondent excepts to this finding, main-
`taining that it lawfully disciplined Neubauer based on
`his grossly inappropriate behavior in his interactions
`with other employees, including his use of insubordi-
`nate and offensive language. For the reasons explained
`below, we find merit in the Respondent’s exceptions in
`regard to the two written warnings at issue.
`The allegedly
`inappropriate behavior for which
`Neubauer was orally disciplined on August 28 consisted
`of Neubauer’s repeatedly approaching Hilton, while she
`was working in her cubicle, to encourage her support
`for the Union. There is no evidence that Neubauer used
`offensive language in soliciting Hilton or threatened her
`in any way. As such, our inquiry here is limited to
`whether Neubauer’s solicitations alone were lawfully
`subject to discipline. We agree with the judge that they
`were not.
`
`
`
`
`indicated that she was not sure if she was actually on the telephone at
`the time. Neubauer affirmatively testified that Rivieccio was not on the
`phone when he approached her about the e-mail. The judge did not
`address this testimonial conflict, but generally relied on Rivieccio’s
`account of what happened.
`
`

`

`642
`
`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
`
`As stated above, the Respondent maintained a rule
`prohibiting solicitation for any purpose on working
`time. Such rules are presumptively lawful. Our Way,
`Inc., 268 NLRB 394, 394 (1983). However, the pre-
`sumption of lawfulness is effectively rebutted here, as
`the record reflects that the Respondent permitted a vari-
`ety of nonunion solicitations during working time and
`sought to enforce its rule only against Neubauer’s union
`solicitation. Id. at 395. In these circumstances, the
`Respondent’s discipline of Neubauer, based on its
`unlawful and disparately applied rule, violated Section
`8(a)(3). SNE Enterprises, 347 NLRB 472 (2006) (“an
`employer violates Section 8(a)(3) and (1) by imposing
`discipline or discharge pursuant to an otherwise valid
`no-solicitation rule, when it intentionally targets union
`solicitors while tolerating nonunion solicitations by
`other employees”).
`The Respondent’s subsequent written warnings to
`Neubauer stand on somewhat different footing. Those
`warnings were triggered, in part, by Neubauer’s contin-
`ued solicitation on behalf of the Union in October, but
`they were also based on Neubauer’s allegedly egregious
`conduct while soliciting two particular employees: first,
`in seeking employee Rivas’ support for the Union,
`Neubauer referred to Supervisor Crews as “that bitch”;
`and,
`second,
`in
`soliciting employee Rivieccio,
`Neubauer told her to show a union-related e-mail to her
`“f–king supervisors.” Although Neubauer’s profane
`comments were made during the course of his protected
`efforts to promote the Union, it does not follow that
`Neubauer was thereby immunized from discipline.
`“[A]lthough employees are permitted some leeway
`for impulsive behavior when engaging in concerted
`activity, this leeway is balanced against an employer’s
`right to maintain order and respect” in the workplace.
`Piper Realty Co., 313 NLRB 1289, 1290 (1994). The
`Board has found that even when an employee is en-
`gaged in protected activity, he or she may lose the pro-
`tection of the Act by virtue of profane and insubordi-
`nate comments. See, e.g., DaimlerChrysler Corp., 344
`NLRB 1324, 1330–1331 (2005); Aluminum Co. of
`America, 338 NLRB 20, 21–22 (2002); Atlantic Steel
`Co., 245 NLRB 814, 816 (1979). The Board carefully
`balances four factors in determining whether the protec-
`tion of the Act has, in fact, been lost in a given situa-
`tion:
`(1) the place of the discussion; (2) the subject mat-
`ter of the discussion; (3) the nature of the em-
`ployee’s outburst; and (4) whether the outburst
`was, in any way, provoked by an employer’s unfair
`labor practice.
`
`Atlantic Steel Co., supra at 816.
`Here, the first of these factors, the place of the dis-
`cussion, weighs heavily in favor of a finding that
`Neubauer lost the protection of the Act. Neubauer ap-
`proached Rivas and Rivieccio at their cubicles, on
`working time. Rivas and Rivieccio worked in a large
`open area full of cubicles in close proximity to each
`other occupied by both supervisory and nonsupervisory
`personnel. In such a place, Neubauer’s profane com-
`ments were likely to be heard by others, as well as
`Rivas and Rivieccio, and “would reasonably tend to
`affect workplace discipline by undermining the author-
`ity of the supervisor[s] subject to his vituperative at-
`tack[s].” DaimlerChrysler Corp., supra at 1330.8
`By contrast, the second factor in the analysis, the sub-
`ject matter of the discussion, favors a finding that
`Neubauer did not lose the protection of the Act.
`Neubauer made the profane comments at issue while
`exercising his Section 7 right to engage in self-
`organization: he was encouraging Rivas and Rivieccio
`to support the Union.
`The third factor, the nature of the outburst, weighs
`heavily in favor of a finding that Neubauer lost the pro-
`tection of the Act. Although Neubauer’s two outbursts
`were brief, they were profane and insubordinate. In the
`Respondent's workplace, where profanities (and, par-
`ticularly, the one used by Neubauer) were not com-
`monly heard on the work floor, Neubauer’s profane
`references to supervisors would necessarily have drawn
`attention and had a destructive effect on workplace dis-
`cipline. Indeed, Rivieccio’s reaction to Neubauer’s
`outburst, although not determinative, provides some
`measure of its seriousness: Rivieccio, who often dis-
`cussed the Union with Neubauer, loudly commanded
`him to leave her alone, and she promptly reported
`Neubauer’s outburst to her supervisor.
`The fourth factor, the presence of an unlawful provo-
`cation for the outburst, similarly weighs in favor of a
`finding that Neubauer lost the protection of the Act.
`Neubauer’s profane outbursts were not a reaction to any
`unfair labor practice committed by the Respondent. In
`his outburst directed at Rivieccio, it is arguable that
`Neubauer was reacting to an e-mail sent earlier by the
`Respondent to all employees, in which the Respondent
`criticized the Union. In sending this e-mail, however,
`
`
`8 As acknowledged above, the Respondent had earlier disparately
`applied its workplace solicitation policy when it disciplined Neubauer
`for soliciting Hilton on August 28. It does not follow, however, that the
`locus of Neubauer’s subsequent solicitations is irrelevant under an
`Atlantic Steel analysis. Indeed, as Atlantic Steel makes clear, the locus
`of the conduct, in this instance a densely populated work space, is an
`important element of the inquiry.
`
`

`

`VERIZON WIRELESS
`
`643
`
`the Respondent acted within its rights under Section
`8(c) to express its opinion of the Union. The egregious
`nature of Neubauer’s outburst, thus, is not mitigated by
`reference to the e-mail.
`Based on our analysis, it is apparent that only the sec-
`ond factor, subject matter, favors a finding
`that
`Neubauer’s outbursts were protected. On these facts,
`that factor is far outweighed by the remaining factors.
`We therefore find that, by making his profane remarks,
`Neubauer lost the protection of the Act.
`that
`Our
`dissenting
`colleague
`acknowledges
`Neubauer’s profane comments were unprovoked by the
`Respondent, but disagrees with the balance we have
`struck in considering the remaining Atlantic Steel fac-
`tors. In particular, he contends that we have attached
`too much weight to the fact that Neubauer made his
`profane comments in a work area, because the com-
`ments were not made directly to any supervisor. Even
`so, the record shows that the work area was full of cu-
`bicles occupied by employees and supervisors alike. It
`is thus reasonable to assume that others likely over-
`heard Neubauer’s outbursts, and that his comments
`would reasonably tend to undermine the Respondent’s
`supervisors’ ability to maintain order and respect. Cf.
`Aluminum Co. of America, 338 NLRB 20, 22 (2002)
`(employee lost the protection of the Act where his pro-
`fane outbursts were not directed at the specific supervi-
`sor involved but overheard by other employees). For
`similar reasons, we are not persuaded by our col-
`league’s effort to downplay the serious nature of
`Neubauer’s comments. Indeed, unlike our colleague,
`we can hardly find Neubauer’s profane comments
`“harmless.” Neubauer’s profane characterization of
`Supervisor Crews
`in particular was a purely ad
`hominem attack unrelated to any legitimate workplace
`concern.9
`In the end, our colleague’s argument rests
`principally on the fact that Neubauer was engaged in
`the “core” Section 7 activity of union solicitation. We
`have given that factor due weight, but, unlike our col-
`league, we find that this lone factor is overcome by the
`place and nature of Neubauer’s outbursts and the ab-
`sence of any provocation.
`In addition, we disagree with our dissenting col-
`league’s view that the issuance of written warnings
`based on Neubauer’s outbursts constituted an unlawful
`acceleration in his discipline in violation of Respon-
`dent’s own progressive discipline policy. Although the
`record suggests that the Respondent applied progressive
`discipline, there is no evidence that it progressed by
`
`
`9 Neubauer was questioning employee Rivas about who removed a
`picture of Neubauer from Rivas’ desk.
`
`specific increments. The record suggests, in fact, that
`the Respondent sometimes accelerated discipline (i.e.,
`skipped a level of discipline) in order to levy a punish-
`ment more closely fitting the severity of the employee’s
`work infraction.10
`In view of all these considerations, we find that the
`Respondent did not violate Section 8(a)(3) by issuing
`written warnings to its employee Greg Neubauer on
`October 8, 2003, and March 25, 2004.
`ORDER
`The National Labor Relations Board orders that the
`Respondent, Cellco Partnership d/b/a Verizon Wireless,
`Orangeburg, New York, its officers, agents, successors,
`and assigns, shall
`1. Cease and desist from
`(a) Orally promulgating and maintaining a rule pro-
`hibiting union solicitation in employee work areas and
`on breaktime.
`(b) Orally promulgating and maintaining a rule prohib-
`iting its employees from discussing their discipline.
`(c) Selectively and disparately enforcing its no-
`solicitation policy against employees engaged in union
`solicitation.
`(d) Issuing warnings or other discipline to employees
`for engaging in union solicitation based on a selective
`and disparate application of its no-solicitation policy.
`(e) In any like or related manner interfering with, re-
`straining, 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) Rescind and cease maintaining unlawful rules pro-
`hibiting its employees from soliciting for a union in em-
`ployee work areas or on breaktime, and notify employees
`in writing that such rules have been rescinded.
`(b) Rescind and cease maintaining unlawful rules pro-
`hibiting its employees from discussing their discipline,
`and notify employees in writing that such rules have
`been rescinded.
`(c) Within 14 days from the date of this Order, remove
`from its files any reference to the unlawful August 28,
`2003 oral warning issued to Greg Neubauer, and within 3
`days thereafter, notify him in writing that this has been
`done and that the unlawful warning will not be used
`against him in any way.
`(d) Within 14 days after service by the Region, dupli-
`cate and mail, at its own expense, copies of the attached
`
`
`10 For example, the Respondent sometimes issued “final written
`warnings” for extreme cases of tardiness, in the absence of earlier writ-
`ten warnings.
`
`

`

`644
`
`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
`
`notice marked “Appendix”11 to all current employees and
`former employees employed by the Respondent at its
`Orangeburg, New York facility at any time since August
`28, 2003. Copies of the notice, on forms provided by the
`Regional Director for Region 2, shall bear the signature
`of the Respondent’s authorized representative and shall
`be mailed to the last known address of each of the em-
`ployees.
`(e) Within 21 days after service by the Region, file
`with the Regional Director a sworn certification of a re-
`sponsible official on a form provided by the Region at-
`testing to the steps that the Respondent has taken to
`comply.
`IT IS FURTHER ORDERED that the complaint is dismissed
`insofar as it alleges violations of the Act not specifically
`found.
`MEMBER WALSH, concurring in part and dissenting in
`part.
`The Respondent sought to suppress union solicitation
`at its Orangeburg, New York facility by various unlawful
`means, focusing its efforts on employee Greg Neubauer,
`a prominent supporter of the Union. In particular, the
`Respondent announced an unlawfully broad no-
`solicitation rule to Neubauer and issued oral and written
`warnings to Neubauer for his union solicitation while
`allowing other kinds of solicitation to continue un-
`checked. The majority finds that the oral warning was
`unlawful, but declines to find that either the written
`warning that shortly followed, or a revised version of that
`written warning, were unlawful. The majority asserts
`that the written warnings were lawful because Neubauer
`lost the protection of the Act on account of his fleeting
`use of profanity in soliciting two of his fellow employ-
`ees. Because I disagree with that finding, I would con-
`clude, contrary to my colleagues, that the Respondent
`violated Section 8(a)(3) by issuing those written warn-
`ings, as well.1
`I also write to discuss my somewhat
`broader view of the issues at stake concerning the oral
`warning, which bears on the disputed allegations.
`
`
`11 If this Order is enforced by a judgment of a United States court of
`appeals, the words in the notice reading “Mailed by Order of the Na-
`tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
`ment of the United States Court of Appeals Enforcing an Order of the
`National Labor Relations Board.”
`1 In further disagreement with my colleagues, I would adopt the
`judge’s finding that the Respondent unlawfully prohibited employees
`from discussing their terms and conditions of employment. In my
`view, that finding is not cumulative of the Respondent’s unlawful pro-
`hibition on employees discussing discipline they had received. In all
`other respects, I agree with the majority’s findings and conclusions.
`
`I. BACKGROUND
`In early 2003,2 the Communications Workers of Amer-
`ica, AFL–CIO (the Union) began a campaign to organize
`the customer service representatives at the Respondent’s
`Orangeburg facility. Employee Greg Neubauer was
`among a handful of customer service representatives who
`took an active role in supporting the Union’s cause.
`Neubauer regularly wore a union T-shirt to work and
`distributed dozens of union authorization cards to his
`fellow employees; his comments about the Union’s or-
`ganizing campaign were quoted in a New York Times
`article about tensions between the Respondent and the
`Union; he appeared with two other employees in a pro-
`motional video for the Union, which was filmed behind
`the Orangeburg facility; and, at a staff meeting in Au-
`gust, he openly questioned managers about the benefits
`that unionized workers received as compared to nonun-
`ionized workers.
`At about the time of that staff meeting, employee
`Danaya Hilton complained to the Respondent that
`Neubauer was continually interrupting her work to ask
`her to sign a union authorization card. As a result of
`Hilton’s complaint, Associate Director of Customer Ser-
`vice Loraine Smith met with Neubauer on August 28. At
`that meeting, Smith told Neubauer that Hilton had com-
`plained about his “harassing” her to sign a union authori-
`zation card. Smith orally warned Neubauer that he
`should “not go onto the floor and talk to any of the co-
`workers or the managers or even talk about non related
`work issues, including the Union, on the floor,” that he
`could not talk about the Union on his breaktime, and that
`“if [he] did speak to somebody on the floor that [he]
`could be terminated; disciplined also.”3
`In early October, two other employees told the Re-
`spondent that Neubauer had been approaching them at
`work to solicit their support for the Union. Employee
`Myra Rivas complained that Neubauer frequently visited
`her desk to urge her to sign a union authorization card
`and that, on one such visit, Neubauer referred to Rivas’s
`supervisor as a “bitch.” Soon afterwards, employee Kim
`Rivieccio told managers that Neubauer came to her desk
`and presented her with an e-mail he had drafted about the
`Union, telling her to “show this to your fucking supervi-
`sors.”
`Rivieccio testified that when Neubauer made this
`comment to her, she loudly told him to leave her alone.
`She then went to her supervisor, Bridget Armstrong, to
`explain why she had been so loud, recounting to Arm-
`
`
`2 All dates hereafter are in 2003, unless otherwise specified.
`3 As indicated, Smith’s statements prohibiting discussion of the Un-
`ion in any work area and on breaktime violated Sec. 8(a)(1).
`
`

`

`VERIZON WIRELESS
`
`645
`
`strong what Neubauer had said and showing Armstrong
`the e-mail that Neubauer had handed to her. Rivieccio
`testified that she went to Armstrong with this information
`in order to “cover” herself rather than to complain about
`Neubauer. When Armstrong and Director of Customer
`Service Carolyn Collins later invited Rivieccio to discuss
`the incident further, Rivieccio explained to them that
`Neubauer had not bothered her and that she was not mak-
`ing a complaint about him. There is no evidence that
`Neubauer was threatening in his interaction with Riviec-
`cio. Nor is there any evidence that Neubauer lingered at
`Rivieccio’s desk once she asked him to leave her alone.
`Based on the reports from Rivas and Rivieccio, Smith
`again called Neubauer to her office for a meeting in early
`October. Smith testified that, at this meeting, she ex-
`plained to Neubauer “that we now have three different,
`separate employees that are complaining . . . regarding
`some of the same issues: that [you are] harassing [them],
`that [you are] continually talking to them at their desk
`about the union, that [you are] continually trying to get
`them to sign up for the union and that they’ve asked
`[you] to stop and [you] ha[ve] not stopped. And it’s the
`same complaint. . . . [N]ow we have, you know, a big
`issue.” (Emphasis added.) There is no evidence that,
`during
`this meeting, Smith specifically addressed
`Neubauer’s use of profanity on the work floor. Smith
`concluded the meeting by telling Neubauer that he would
`be informed shortly as to what steps would be taken in
`response to his conduct, and she told him that, in the
`meantime, he “shouldn’t go on the floor to speak to any-
`body about it, employees or managers, because if [he
`did] there could be additional discipline or even termi-
`nat[ion].”4
`The Respondent issued a written warning to Neubauer
`on October 8. The warning stated, in relevant part:
`On August 28 you were verbally warned for soliciting
`employees during work time after concerns about vio-
`lations of our policy were brought to my attention by
`co-workers. At that time, we reviewed our No-
`solicitation Policy and my expectations about general
`behavior in the workplace. On October 1, I received a
`second complaint from another co-worker about further
`violations on your part, including both engaging in so-
`licitation during working time and making inappropri-
`ate and insubordinate remarks about your former su-
`pervisor (referring to her as “that bitch”). Additionally
`a second employee came forward on October 2 to share
`that you had used offensive language again. As a result
`of these repeated violations of the solicitation and dis-
`
`
`4 As stated above, this statement prohibiting Neubauer from discuss-
`ing his discipline violated Sec. 8(a)(1).
`
`tribution policy and of other requirements of the Code
`of Conduct, you are being placed on a Written Warn-
`ing.
`The warning also recited the Respondent’s written no-
`solicitation rule and the portions of its code of business con-
`duct prohibiting “threatening, insubordinate, violent or ob-
`scene behavior” by an employee.
`Over 5 months later, after the Union filed a charge al-
`leging that the Respondent had unlawfully disciplined
`Neubauer, the Respondent revised its October 8 written
`warning to delete all references to Neubauer’s solicita-
`tion activities. The revised warning, issued by Smith on
`March 25, 2004, stated:
`On October 1, I received a complaint from a co-worker
`about your making inappropriate and insubordinate re-
`marks about your former supervisor (referring to her as
`“that bitch”). Additionally a second employee came
`forward on October 2 to share that you had used offen-
`sive language again, in regard to an email of yours that
`you told her to show to her “fucking supervisor
`friends.” As a result of these repeated violations of the
`Code of Conduct, you are being placed on a Written
`Warning.
`The revised warning did not set forth the Respondent’s no-
`solicitation rule, instead reciting only the portion of Re-
`spondent’s code of business conduct allegedly implicated by
`Neubauer’s use of profanity in his interactions with Rivas
`and Rivieccio.
`
`II. DISCUSSION
`The judge found that all three of the Respondent’s
`warnings to Neubauer—the August 28 oral warning, the
`October 8 written warning, and the March 25, 2004 re-
`vised written warning—violated Section 8(a)(3). The
`Respondent excepts, arguing that the warnings were a
`lawful response to Neubauer’s “harassment” of other
`employees at work. Like my colleagues, I find no merit
`in this argument as it relates to the August 28 oral warn-
`ing. Contrary to my colleagues, however, I would also
`find that the tw