Consolidated Communications Holdings, Inc. d/b/a Consolidated Communications of Texas Company

National Labor Relations Board - Board Decisions

Aug 27, 2018

366 NLRB No. 172 (N.L.R.B. 2018)

366 NLRB No. 172
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Consolidated Communications Holdings, Inc. d/b/a
Consolidated Communications of Texas Com-
pany and Communications Workers of America,
AFL–CIO, Local 6218. Cases 16–CA–187792
and 16–CA–192050
August 27, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On September 28, 2017, Administrative Law Judge
Robert A. Ringler issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
the Charging Party filed exceptions containing support-
ing argument, the Respondent filed answering briefs, and
the General Counsel and Charging Party each filed a
reply brief. The Respondent filed cross-exceptions.
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 exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1

1 The General Counsel excepts to the judge’s dismissal of the alle-
gation that the Respondent violated Sec. 8(a)(1) by telling employee
Kim Thompson that she should have known better than to engage in
union business. The General Counsel, however, does not state, either
in his exceptions or supporting brief, the grounds on which he contends
that this purportedly erroneous finding should be overturned. There-
fore, in accordance with Sec. 102.46(a)(1)(i)(D) and (ii) of the Board’s
Rules and Regulations, we shall disregard this exception. See Holsum
de Puerto Rico, Inc., 344 NLRB 694 fn. 1 (2005), enfd. 456 F.3d 265
(1st Cir. 2006).
The Charging Party excepts to the judge’s dismissal of the allegation
that the Respondent unlawfully created an impression of surveillance in
violation of Sec. 8(a)(1) by telling Thompson that her conduct had been
reported, on the grounds that the Respondent’s statement suggested that
it learned of employees’ protected activities through secretive means.
We disagree. In determining whether an employer’s statement created
an unlawful impression of surveillance, the test is an objective one
based on “whether the employees would reasonably assume from the
statement that their union activities had been placed under surveil-
lance.” Bridgestone Firestone South Carolina, 350 NLRB 526, 527
(2007), quoting Flexsteel Industries, 311 NLRB 257, 257 (1993). The
gravamen of such violation is that employees are led to believe that the
employer has placed union activities under its watch. Id. Here, the
union activity at issue occurred in plain sight of supervisors and fellow
employees, and the Respondent merely communicated that the open
demonstration had been reported. In these circumstances, the Re-
spondent’s statement could not be reasonably interpreted to mean that it
was secretly or coercively monitoring protected activities. We affirm
the dismissal on this basis.
and conclusions only to the extent consistent with this
Decision and Order.2
The General Counsel alleged that the Respondent vio-
lated Section 8(a)(3) and (1) by issuing written discipline
to employee Kim Thompson for her role in organizing
and participating in a brief stand-and-stretch demonstra-
tion in her workplace. The judge dismissed the allega-
tion, finding that the demonstration constituted an unpro-
tected work stoppage. For the reasons set forth below,
we reverse.
Facts
The Respondent provides broadband data and video
services to residential and commercial customers. It has
a longstanding collective-bargaining relationship with
the Charging Party Union (Union), which represents a
unit of employees including customer service representa-
tives working at the Respondent’s facility in Conroe,
Texas. The Respondent and the Union were parties to a
collective-bargaining agreement with an effective term of
October 16, 2013, to October 16, 2016. By mid-October
2016,3 the Union’s bargaining committee had communi-
cated to the unit members that successor contract negoti-
ations were proving to be difficult.
At the Respondent’s Conroe office, customer service
representatives work in cubicles seated in front of com-
puters and respond to customer phone calls wearing
headsets. Their duties include selling and upgrading
services, answering questions, and taking payments over
the phone. The representatives are generally seated to
enable access to their keyboards, but they are able to
stand and walk a short distance without disconnecting
from their headsets. Discriminatee Kim Thompson spent
the bulk of her time entering data and occasionally an-
swering phone calls; other customer service representa-
tives spent most of the day on the phone. During the
workday, it was commonplace for customer service rep-
resentatives to stand up at their work stations to stretch if
they wished. Standing and stretching was not against the
Respondent’s rules, and the Respondent had never rep-
rimanded or taken action against employees for doing
so.4
On October 13, with the expiration of the collective-
bargaining agreement nearing, Union President Darrell
Novark solicited Thompson, who served as an area rep-
resentative for the Union, to ask her coworkers to stand
up and stretch in unison at 2 p.m. to show support for the

2 We have amended the judge’s conclusions of law and modified his
recommended Order consistent with our findings herein.
3 All dates herein are to 2016 unless otherwise noted.
4 Every witness at the hearing, including supervisor Diona Kelley,
testified that employees are allowed to stand and stretch if they want,
and the employees testified they did so on a regular basis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Union’s bargaining position. Thompson proceeded dur-
ing nonworking time to ask several coworkers to partici-
pate in such a demonstration.
At 2 p.m. that day, Thompson and about five cowork-
ers stood up at their cubicles and stretched. All contin-
ued to wear their headsets. Thompson stood for about 1
to 2 minutes. The record indicates that customer service
representative Kristi Lindsey stood for about 30 to 45
seconds, before sitting down when a new call entered her
queue. While standing, Thompson and Lindsey took
photographs of the demonstration using their cellphones.
The judge found that, during the demonstration, none of
the participants said anything, passed anything out, or
left their workstations. The record indicates that, during
the protest, one of the customer service representatives
contacted Supervisor Diona Kelley and told her that em-
ployees had been asked, by Thompson, to stand in soli-
darity with the Union and that individuals were taking
pictures. Kelley stepped out of her office and asked an-
other employee if Thompson had asked employees to
stand; the employee replied that she was asked by
Thompson and had stood.
Kelley relayed this information to her supervisor, Di-
rector of Customer Care Kari Juni, and asked Juni to
confirm that Thompson “is not supposed to discuss, meet
or talk about the union unless she is requested to be in a
disciplinary agent meeting.” Juni replied affirmatively
and told Kelley that they “need to address Kim [Thomp-
son] immediately because she shouldn’t be conducting
union business on company time except for grievance.
She needs to stop anything like this now and in the fu-
ture.”
A few minutes after 2:30 p.m., Kelley called Thomp-
son into her office and said that it had been brought to
her attention by two sources that Thompson asked em-
ployees to stand in solidarity with the Union. Kelley told
Thompson that her behavior was against the rules and
that Thompson should not have done it and should have
known better.
On October 18, the Respondent issued Thompson a
written warning stating: “On 10/13/16 at 2:00 pm, Kim
[Thompson] conducted union business on company time
and requested agents to stand for a photo to demonstrate
union solidarity. As an area rep for the union, Kim is
aware that this action is against company and union poli-
cies.” No other employees were disciplined for standing.
At the hearing in this case, Juni testified that the discipli-
nary warning was necessary because Thompson inter-
rupted work and violated the no strike/no slowdown pro-
vision of the collective-bargaining agreement.5
The Judge’s Decision
The judge found that the Respondent’s disciplinary ac-
tion against Thompson was lawful primarily because
Thompson’s participation in the demonstration violated
the service interruption clause of the parties’ collective-
bargaining agreement and was unprotected under the
Act. Specifically, the judge found that Thompson was
not performing work functions during the demonstration
and that it was highly likely that the other participants
were not doing so either. Accordingly, the judge con-
cluded that the discipline administered to Thompson did
not violate the Act.
Analysis
The central issue in this case is whether Thompson’s
involvement in the demonstration was statutorily protect-
ed. Contrary to the judge, we find that it was. Section 7
of the Act expressly protects the right to “assist labor
organizations .. . and to engage in other concerted activi-
ties for the purpose of collective bargaining,” 29 U.S.C.
§157, and “it is surely beyond dispute that employees’
manifestations of support for their union’s bargaining
proposals and of opposition to their employer’s bargain-
ing positions or tactics generally fall within that protec-
tion.”6 Here, Thompson and her coworkers engaged in
the demonstration, timed to coincide with the start of that
day’s bargaining session, as a show of solidarity with the
Union during its contract negotiations with the Respond-
ent. Accordingly, Thompson’s organization of and par-
ticipation in the demonstration constituted protected con-
certed activity.
The Respondent argues that, in accordance with the
judge’s finding, Thompson’s demonstration was an un-
protected work slowdown. We disagree. Although the
Board has declined to extend statutory protection to em-
ployees who collectively attempt to exert economic pres-
sure on their employer by work slowdowns or by refus-
ing to perform tasks,7 Thompson did not refuse to per-
form duties or reduce the rate of work, nor did the
demonstration have a disruptive effect. Instead, Thomp-

5 The parties’ collective-bargaining agreement provided that: “Dur-
ing the term of this agreement, the parties mutually agree that they will
not disrupt the work contemplated by this agreement by strike, . . . slow
down, sick out or lock out.”
6 Durham Transportation, Inc., 317 NLRB 785, 785–786 (1995).
See also Midstate Telephone Corp., 262 NLRB 1291, 1291–1292
(1982), enf. denied in part on other grounds 706 F.2d 401 (2d Cir.
1983).
7 See, e.g., Davis Electrical Constructors, Inc., 216 NLRB 102
(1975); General Electric Co., 155 NLRB 208 (1965); Elk Lumber Co.,
91 NLRB 333 (1950).
CONSOLIDATED COMMUNICATIONS HOLDINGS. INC. D/B/A CONSOLIDATED COMMUNICATIONS OF TEXAS CO. 3
son and those who joined her stood up and stretched qui-
etly and briefly, as they were allowed to do, and contin-
ued working at a normal pace.8 Indeed, the record indi-
cates that at least one employee who participated in the
standing demonstration sat down immediately when she
received a new call.
The activity of Thompson and her coworkers is in
stark contrast to the circumstances present in cases where
the Board has found that a slowdown occurred. The
judge and our dissenting colleague rely primarily on
DaimlerChrysler Corp., 344 NLRB 1324 (2005), for the
proposition that the demonstration here constituted an
unprotected slowdown. In that case, however, a union
steward directed coworkers to take steps to undermine
the employer’s carpool program and “back track” so that
they would not save time; the steward expressly encour-
aged these measures in order to pressure the employer to
change its carpool program. The Board found that the
steward’s efforts would “confound the [r]espondent’s
efforts to provide pool cars . . . and would result in lost
work time;” the Board also emphasized that the steward
sought “to frustrate and interfere with the [r]espondent’s
operations in order to modify the current contract or to
obtain leverage in some future negotiation.” Id. at 1325.9
Here, Thompson simply asked coworkers to do what
they were otherwise permitted to do—stand up and
stretch—as a symbolic show of solidarity. Her brief
demonstration did not interfere with operations or result
in lost work time, nor was it intended to exert economic
pressure on the Respondent.10
It is telling that although the Respondent belatedly as-
serted at the hearing and on exceptions that the demon-
stration constituted an unprotected slowdown, the Re-
spondent’s disciplinary notice to Thompson cited, as her

8 The judge stated that Counsel for the General Counsel “conceded
in her brief that some services were, in fact, withheld during the
demonstration.” This mischaracterizes the General Counsel’s argu-
ment. The General Counsel pointed out that employees occasionally
stretched at work, and that the Respondent was well aware of and ac-
cepted this practice. Therefore, those who did so on October 13 were
not deliberately withholding their labor in a manner that supports find-
ing a slowdown occurred.
9 Although Member Pearce expresses no view whether Daim-
lerChrysler was correctly decided, he agrees that it is distinguishable.
10 The Respondent cites several other cases involving work slow-
downs which it argues support finding that Thompson instigated and
participated in a slowdown. The cases cited, however, reflect factual
scenarios varying significantly from that here – namely, the employees
in those cases actually withheld their labor in deliberate contravention
of established work policies. See Russell Packing Co., 133 NLRB 194
(1961) (finding slowdown where two employees abandoned their work
station); Potter Electrical Engineering & Construction Co., Inc., 181
NLRB 743 (1970) (finding slowdown where employees did not report
to work); Arizona Public Service Co., 292 NLRB 1311 (1989) (same).
only offense, conducting union business during work
time.11 Indeed, even at the time of the protest and during
its immediate aftermath—when any potential effect on
the Respondent’s operation would have been most
acute—the Respondent did not regard Thompson’s
demonstration as a work slowdown. For all of these rea-
sons, we find on the facts here that (1) Thompson’s
demonstration did not constitute a prohibited slowdown
under the parties’ collective-bargaining agreement; and
(2) Thompson’s demonstration did not constitute an un-
protected slowdown under Board law.
Our dissenting colleague asserts that Thompson’s
demonstration “interfere[d] with operations and re-
sult[ed] in lost work time.” In doing so, however, he has
not cited—and the Respondent has not adduced—any
specific evidence that the demonstration actually resulted
in any loss of productivity or work time. Nor does he
cite any evidence that the demonstration was even in-
tended to put any economic pressure on the Respondent.
Our dissenting colleague also fails to acknowledge that
the Respondent permitted, and even encouraged, em-
ployees to take brief stand-and-stretch breaks during the
day. Even assuming that the employees involved in the
demonstration stopped working completely for 1-2
minutes—which is not established by the evidence—
such a brief break would have been well within the scope
of what had been previously condoned by the Respond-
ent. Contrary to our dissenting colleague, we are not
purporting to assess whether the employees’ conduct was
a “de minimis” work stoppage; we find that the Re-
spondent has failed to establish that any slowdown or
concerted interruption of operations actually occurred at
all.
Having concluded that Thompson’s involvement in the
October 13 demonstration constituted protected concert-
ed activity, and that the demonstration was not an unpro-
tected slowdown,12 we find that the Respondent’s disci-

11 Indeed, the testimony from Director of Customer Care Kari Juni,
cited by our dissenting colleague, that Thompson was disciplined pri-
marily because the demonstration “disrupted [the Respondent’s] ability
to serve [its] customers” was adduced at the hearing and was not con-
sistent with the contemporaneous notice that the Respondent issued at
the time of Thompson’s discipline.
12 The Respondent argues that, pursuant to the Board’s decision in
Randell Warehouse of Arizona, Inc., 347 NLRB 591 (2006), Thompson
improperly photographed employees engaging in protected activity.
We find no merit in this contention. The issue in Randell Warehouse
was whether a union’s unexplained photographing of employees’ pro-
tected activities constituted objectionable campaigning conduct. Even
assuming arguendo that Randell Warehouse has application in this
unfair labor practice case, there is no basis to find that employees here,
who were expressly informed of the purpose of the standing demonstra-
tion and voluntarily participated, experienced any interference with
their Sec. 7 rights through Thompson’s limited use of photography.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
plinary action against Thompson for participating in the
demonstration violated Section 8(a)(3) and (1). See, e.g.,
CGLM, Inc., 350 NLRB 974, 974 fn. 2 (2007), enfd. 280
Fed. Appx. 366 (5th Cir. 2008); Mac Smith Garment Co.,
Inc., 107 NLRB 84 (1953), enfd. 219 F.2d 469 (5th Cir.
1955).13
Amended Conclusions of Law
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by issuing employee Kim Thompson a discipli-
nary warning because of her activities in support of the
Union.
4. The above violation is an unfair labor practice that
affects commerce within the meaning of Section 2(6) and
(7) of the Act.
Remedy
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to take cer-
tain affirmative action designed to effectuate the policies
of the Act. Specifically, having found that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by disci-
plining employee Kim Thompson because of her activi-
ties in support of the Union, we shall order the Respond-
ent to cease and desist from engaging in such conduct.
We shall also order the Respondent to remove from its
files any reference to the unlawful discipline taken
against Thompson and notify her in writing that it has
done so and that this discipline will not be used against
her in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Consolidated Communications Holdings,
Inc. d/b/a Consolidated Communications of Texas Com-
pany, Conroe, Texas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from

13 In addition to finding that Thompson was unlawfully disciplined
for participating in protected activity, Member Pearce would also find
her discipline unlawful under the Wright Line framework used by the
judge. 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). Thus, alt-
hough Member Pearce agrees with the judge that the General Counsel
met his initial burden under Wright Line, he would further find, contra-
ry to the judge, that the Respondent failed to demonstrate that Thomp-
son would have received the same discipline absent her protected activ-
ity.
(a) Disciplining employees because they engage in
protected concerted activities.
(b) 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.
Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline
issued to Kim Thompson, and within 3 days thereafter,
notify her in writing that this has been done and that the
discipline will not be used against her in any way.
(b) Within 14 days after service by the Region, post at
its Conroe, Texas facility copies of the attached notice
marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, 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,
notices shall be distributed electronically, 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. Rea-
sonable 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 the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since October 18, 2016.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 16 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. August 27, 2018
______________________________________
Mark Gaston Pearce, Member

14 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.”
CONSOLIDATED COMMUNICATIONS HOLDINGS. INC. D/B/A CONSOLIDATED COMMUNICATIONS OF TEXAS CO. 5
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER EMANUEL, dissenting in part.
Contrary to my colleagues, I agree with the judge’s
conclusion that the Respondent acted lawfully in issuing
a verbal warning (documented in written form) to cus-
tomer service representative Kim Thompson after she
engaged in conduct that amounted to a work slowdown.
Under the Board’s decision in DaimlerChrysler Corp.,
344 NLRB 1324 (2005), employees who engage in
slowdowns or encourage other employees to do so are
not protected, and discipline for such activity does not
violate the Act. Here, the only issue is whether there was
a slowdown, and the judge correctly found that there
was. Accordingly, I would dismiss the allegation that the
Respondent’s issuance of discipline violated Section
8(a)(1).1
On October 13, 2016, Thompson, a union steward for
Communications Workers of America (the Union), asked
about 25 of the 30 or so customer service representatives
at the Respondent’s Conroe, Texas facility to engage in a
demonstration in their workplace. Employees were
asked to stand and stretch at their workstations at 2:00
that afternoon to show their support for the Union’s
stance in the Union’s ongoing contract negotiations with
the Respondent. Although Thompson testified that she
did not speak to any of the other employees about the
planned action during her own work time, she acknowl-
edged that most of her coworkers were supposed to be
working when she spoke to them.2
Most of the customer service representatives perform
their jobs by responding to customers’ telephone calls
regarding accounts, billing, etc. and looking up accounts
and orders on their computers. They wear cordless or
corded headphones to take calls. Thompson’s job is
somewhat different from that of the other customer ser-
vice representatives: although she has a headset and
sometimes uses the telephone for work, Thompson
spends most of her working time updating the databases

1 I join my colleagues in dismissing the allegations that the Re-
spondent violated Sec. 8(a)(1) by telling Thompson that she should
have known better than to engage in the conduct for which it disci-
plined her and by creating an impression of surveillance of employees’
open activity.
2 My colleagues, who state that “Thompson proceeded during non-
working time to ask several coworkers to participate” in the demonstra-
tion, fail to acknowledge Thompson’s testimony that most of those
coworkers were on working time when she asked them to participate,
even if Thompson herself was not.
for telephone directories, proofreading the directory, and
recording caller-ID complaints. Thus, her work involves
less time talking on the telephone and much more time
spent typing.
Thompson and the other customer service representa-
tives generally must be seated to work, according to the
consistent testimony of employees Kristi Lindsey and
Mary Schnee, Customer Service Supervisor Diona Kel-
ley (Thompson’s direct supervisor), and Director of Cus-
tomer Care Kari Juni (Thompson’s second-level supervi-
sor). That is, even if the customer service representa-
tives’ headsets would allow them to remain on a tele-
phone call while standing or walking a short distance to
their printers, the employees cannot comfortably reach
their keyboards to type accurately or read their computer
screens while standing. Further, because of the low cu-
bicle walls, telephone calls while an employee is stand-
ing are noisy and disruptive to their coworkers. And
Thompson, the only employee disciplined, performed
data-entry work that required constant access to her key-
board for accurate typing, work that she could clearly not
perform while standing.3 Kelley expressly testified that
an employee in Thompson’s role would not have been
able to perform work while standing, a fact that, as
Thompson’s direct supervisor, she would be well situated
to know.
At the designated time, while the employees should
have been working, Thompson and about 5 other cus-
tomer service representatives simultaneously stood up at
their workstations for about 1–2 minutes. Thompson
took 9 photographs of the employees participating in the
demonstration, and Lindsey took at least one photograph.
During the stand-up demonstration, Thompson and the
other participants stopped working. Thompson testified
inconsistently on this point, initially claiming that she
was working during a portion of the demonstration, but
then admitting on cross-examination that she was not
performing any work for the Respondent for the duration
of the demonstration. She also admitted, with no incon-
sistency or dispute, that, while holding her camera and
taking photos, she was not working and did not have her
hands on her keyboard. Clearly, the demonstration dis-
rupted productivity. The judge, therefore, properly found
that the demonstration constituted a slowdown, because
the evidence showed that: (1) Thompson, by her own
admission, was not performing any work function during
the demonstration; (2) Thompson and Lindsey were
clearly unable to work while taking photographs; and (3)

3 Nor did Thompson’s role, unlike that of the other customer service
representatives, involve waiting for a call to enter her queue, and no
party suggests that she had no work awaiting her attention during the
demonstration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
it was highly likely that the other 4 employees who par-
ticipated did not engage in any work during the demon-
stration.4
In DaimlerChrysler Corp., the Board explained that
“[i]t is well-settled that employees who engage in delib-
erate ‘slowdowns’ of work or encourage others to do so
are engaged in activities not protected by the Act, and
their discipline for such activity does not violate the
Act.”5 DaimlerChrysler, 344 NLRB at 1325 (citing Da-
vis Electric Contractors, Inc., 216 NLRB 102 (1975);
New Fairview Hall Convalescent Home, 206 NLRB 688
(1973); General Electric Co., 155 NLRB 208, 220-221
(1965); and Elk Lumber Co., 91 NLRB 333, 337, 338
(1950)). See also NLRB v. Blades Mfg. Corp., 344 F.2d
998, 1004, 1005 (8th Cir. 1969) (“deliberate ‘slow-
downs’ and ‘walkouts’ by the employees to exert pres-
sure on the employer to accept the union’s bargaining
demands were unprotected concerted activities, and the
employer was free to discharge the participating employ-
ees for their unlawful disloyal tactics”). Thompson not
only engaged in the slowdown but also encouraged oth-
ers to do so, thus engaging in both types of activities de-
scribed in DaimlerChrysler as not protected by the Act.
In DaimlerChrysler, union steward Keith Valentin sent
messages to the employees in his bargaining unit sug-
gesting that employees demonstrate their dissatisfaction
with their employer’s negotiating stances by engaging in
tactics that (although they may have seemed legitimate
on the surface) would necessarily result in lost work
time. The Board found that “Valentin’s messages were
an attempt to frustrate and interfere with the
[r]espondent’s operations in order to modify the current
contract or to obtain leverage in some future negotia-
tion.” Id. at 1325. Similarly, in this case, the October 13
demonstration was a deliberate effort, by means of con-
duct that disrupted operations, to gain leverage in con-

4 Lindsey received a new call in her queue during the demonstra-
tion, and she sat down to respond to the call even though she had her
headset on while standing. She testified that she sat down because she
needed to be seated in order to access her computer to work. The other
customer service representatives participating in the demonstration
would similarly have been unable to access their computers to work
while standing.
5 Because the slowdown was unprotected under Board law, the law-
fulness of Thompson’s warning does not turn on the collective-
bargaining agreement’s “Service Interruption” provision. The judge
therefore erred in stating, in footnote 13 of his decision, that the slow-
down would have been protected, and Thompson would not have been
subject to discipline, if the slowdown had occurred after the collective-
bargaining agreement expired 3 days later. Under Board law, the em-
ployees could have engaged in a strike after the agreement expired, but
still could not have engaged in a slowdown. Nonetheless, the judge’s
misstatement does not affect the validity of his conclusions that the
October 13 demonstration was a slowdown and that it was unprotected.
tract negotiations and force the Respondent to change its
bargaining position. Director of Customer Care Juni
testified that the effect on operations was her primary
reason for deciding that Thompson should be disciplined
for the demonstration: “Because the action that was tak-
en disrupted our workflow, and it disrupted our ability to
serve our customers.”6 The seemingly innocuous nature
of the conduct should not blind the Board to its foreseea-
ble effect on the Respondent’s ability to serve its cus-
tomers. My colleagues argue that DaimlerChrysler is
distinguishable, but, to support that conclusion, they in-
correctly claim that the demonstration here did not inter-
fere with operations or result in lost work time. As de-
tailed above, the demonstration did interfere with opera-
tions and result in lost work time.7 Contrary to my col-
leagues, I therefore conclude that the demonstration con-
stituted a work slowdown that was unprotected under
Board law.8
In short, the Respondent issued a minor disciplinary
action to an employee who both participated in and en-
couraged others to participate in conduct that disrupted
the facility’s workflow and constituted an unprotected
slowdown. Yet, my colleagues would find that, by doing
so, the Respondent violated the Act. I respectfully disa-
gree.
Dated, Washington, D.C. August 27, 2018
______________________________________
William J. Emanuel, Member
NATIONAL LABOR RELATIONS BOARD

6 Although the majority argues that Juni’s rationale was not con-
sistent with the notice issued to Thompson at the time of her warning,
the judge clearly credited Juni’s testimony in finding that Thompson
instigated an unprotected slowdown that “formed a reasonable discipli-
nary basis.” No party has excepted to the judge’s credibility determina-
tions.
7 The majority claims that the Respondent has not provided, and that
I have not cited, any evidence that the demonstration interfered with
work. But Thompson’s own testimony, detailed above, establishes that
she and other employees stopped working in order to engage in the
demonstration. .
8 That the demonstration and interruption of work lasted no more
than 2 minutes is irrelevant to the question of whether it constituted a
slowdown. As the judge explained, Sec. 501(2) expansively defines a
strike or work stoppage as including “any concerted slowdown or other
concerted interruption of operations by employees.” The Board has
never recognized a de minimis exception to the rule.
CONSOLIDATED COMMUNICATIONS HOLDINGS. INC. D/B/A CONSOLIDATED COMMUNICATIONS OF TEXAS CO. 7
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discipline you because you engaged in
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
cipline of Kim Thompson, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done
and that the discipline will not be used against her in any
way.
CONSOLIDATED COMMUNICATIONS HOLDINGS,
INC. D/B/A CONSOLIDATED COMMUNICATIONS
OF TEXAS CO.
The Board’s decision can be found at
www.nlrb.gov/case/16-CA-187792 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Laurie M. Duggan, Esq., for the General Counsel.
Matthew Holder, Esq. (David Van Os & Associates, P.C.), for
the Charging Party.
David Lonergan and Amber M. Rogers, Esqs. (Hunton & Wil-
liams, LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case
was heard in Houston, Texas, on August 7, 2017. The com-
plaint alleged that Consolidated Communications Holdings,
Inc. (Consolidated or the Respondent) violated §8(a)(1) and (3)
of the National Labor Relations Act (the Act). On the entire
record, including my observation of the witnesses’ demeanors,
and after considering the parties’ posthearing briefs, I make the
following
FINDINGS OF FACT1
I. JURISDICTION
At all material times, Consolidated, a corporation with an of-
fice and place of business in Conroe, Texas (the Conroe office),
has provided telecommunication services. Annually, it derives
gross revenues in excess of $100,000, and provides services
worth more than $5000 directly outside of Texas. It, thus, ad-
mits, and I find, that it is an employer engaged in commerce,
within the meaning of §2(2), (6), and (7) of the Act. It also
admits, and I find, that the Communication Workers of Ameri-
ca, AFL–CIO, Local 6218 (the Union) is a labor organization,
within the meaning of §2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Consolidated provides internet, phone, television, and securi-
ty products to residential and commercial customers. This
litigation involves its Conroe office, and concerns: Kim
Thompson, a customer service representative (CSR)2 and union
official;3 Diona Kelley, her first-line supervisor; and Kari Juni,
her second-line supervisor. The pertinent facts are mainly un-
disputed.
B. Collective-Bargaining Unit
The parties have a longstanding collective-bargaining rela-
tionship. The Union is the exclusive collective-bargaining
representative of a unit of CSRs, technicians, installers, and line
workers employed at the Conroe facility (the unit).4 (Jt. Exh. 1
at Art. 2, Exhs. A–C.) Respondent’s recognition of the Union
has been embodied in successive contracts, the most recent of
which ran from October 16, 2013, to October 16, 2016 (the
2013–2016 CBA).5 (Id.)

1 Unless otherwise stated, factual findings arise from joint exhibits,
stipulations and undisputed evidence.
2 CSRs work in partitioned-cubicles on computer stations. They
speak to customers via telephone headsets.
3 Thompson presents grievances and represents workers at discipli-
nary meetings.
4 There are approximately 50 employees in the unit.
5 All dates herein are in 2016, unless otherwise stated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
C. Negotiations for a Successor Contract
This litigation involves the parties’ efforts to negotiate a suc-
cessor contract to the 2013–16 CBA (the successor CBA).
Bargaining for the successor CBA proved difficult, and did not
conclude until May 2017.
D. October 13—Union Demonstration and Dispute
Given that successor CBA negotiations were protracted and
the 2013–2016 CBA was set to expire on October 16, Union
president Darrell Novark solicited Thompson to ask CSRs to
stand and stretch for a short duration during the workday on
October 13, in order to demonstrate the unit’s support for the
Union’s bargaining stance. Thompson, accordingly, solicited
25 unit CSRs to participate in the demonstration.
At about 2 p.m. on October 13, Thompson and roughly 5
CSRs arose and stretched during working hours for about a
minute to show solidarity. Thompson related that she was
mostly able to continue working during the demonstration,
although she conceded that she paused while photographing the
demonstration.6 Neither Thompson nor the other CSRs said
anything, passed anything out, or left their workstations during
the demonstration. Thompson, who indicated that employees
can arrive late without issue and use restrooms at any time,
averred that the demonstration had only a minor effect on
productivity.
Kristi Lindsey, another CSR, testified that she stood during
the demonstration. She said that she took photos, and was not
disciplined.7
Kelley indicated that certain CSRs advised her about
Thompson’s actions. She stated that she reported the situation
to Juni, who instructed her to meet with Thompson.
E. October 13 Meeting and October 18 Warning
On October 13 at 2:15 p.m., Thompson met with Kelley. She
recalled this exchange:
She said that … two sources [told her about] … this picture
taking and … standing up for solidarity for CWA, and that it
was inappropriate,… against [the] rules, … [and] I knew bet-
ter …. I said, "who told on me[?]," because if two other
sources had told on me, she didn't see me …. [S]he said that
that was … confidential … but the behavior was inappropriate
and I should know better.
I said, "well, is that it[?]," and she said, "yeah, that's it unless
you have anything to say," and I didn't, so I went back to my
desk.
(Tr. 40); see also (GC Exh. 3). Kelley generally corroborated
Thompson’s account.8
On October 18, Thompson received a verbal warning. (Jt.
Exh. 2.) Juni stated that a verbal warning was warranted be-
cause she interrupted work and violated the 2013–2016 CBA’s

6 She contrarily stated during cross-examination that she was not
working during the demonstration. (Tr. 47.)
7 There was no evidence that Consolidated knew about her actions
prior to the hearing.
8 She made a minor clarification; she said that the “two sources” on-
ly told her that Thompson had solicited them.
no strike/no slowdown provision. She denied that Union ani-
mus played any role in the discipline. Thompson acknowl-
edged that, as a Union official, she maintained a generally cor-
dial relationship with Consolidated. (Tr. 50.)
F. Relevant Provisions of the 2013–2016 CBA9
Art. 5, Service Interruption of the 2013–2016 CBA provided
that, ”[d]uring the term of this agreement, the parties mutually
agree that they will not disrupt … work … by strike, walkout,
…, slow down, sick out or lockout.” (Jt. Exh. 1.) Consolidated
avers that Thompson violated the above-described provision. It
is undisputed that the demonstration occurred before the 2013–
2016 CBA expired.
III. ANALYSIS
A. 8(a)(3) Allegation10
Thompson’s warning was valid. In assessing whether a per-
sonnel action violates §8(a)(3), the Board applies a mixed mo-
tive analysis. Wright Line, 251 NLRB 1083 (1980), enfd. on
other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). Under Wright Line, the
General Counsel (the GC) must first demonstrate, by a prepon-
derance of the evidence, that a worker’s protected conduct was
a motivating factor in the adverse action. He satisfies this ini-
tial burden by showing: (1) the individual’s protected activity;
(2) employer knowledge of such activity; and (3) animus. The
Board has held that animus can be inferred from, inter alia,
suspicious timing, false reasons given in defense of the contest-
ed action, inadequate investigation, departures from past prac-
tices, past tolerance of the behavior at issue
and disparate treatment. Medic One, Inc., 331 NLRB 464, 475
(2000). If the GC meets his initial burden, the burden shifts to
the employer to prove that it would have taken the adverse
action, even absent the protected activity. Mesker Door, 357
NLRB 591, 592 (2011). The employer cannot meet its burden,
however, merely by showing that it had a legitimate reason for
its action; rather, it must show that it would have taken the
same action in the absence of the protected conduct. Bruce
Packing Co., 357 NLRB 1084, 1086–1087 (2011). If the em-
ployer’s proffered reasons are pretextual (i.e., either false or not
actually relied on), it fails to show that it would have taken the
same action regardless of the protected conduct. Metropolitan
Transportation Services, 351 NLRB 657, 659 (2007).
1. Prima facie case
The GC presented a prima facie case. Thompson engaged in
Union activity by presenting grievances. Consolidated knew of
her activities. Animus for the purpose of the prima facie case
can be inferred from the fact that, although 6 workers partici-
pated in the slowdown, only Thompson, a Union official, was
disciplined. Medic One, Inc., supra (inference of animus from
disparate treatment).

9 Thompson’s actions occurred on October 13 (i.e., just days before
the 2013–2016 CBA expired on October 16).
10 This allegation is listed under complaint pars. 10 and 14.
CONSOLIDATED COMMUNICATIONS HOLDINGS. INC. D/B/A CONSOLIDATED COMMUNICATIONS OF TEXAS CO. 9
2. Employer’s reply
Consolidated persuasively demonstrated that Thompson
would have received a verbal warning absent her protected
activity. First, although she undisputedly engaged in protected
activity as a Union representative handling grievances, her
instigation of a slowdown, while the 2013–2016 CBA’s strike
and slow down prohibition was effective, was unprotected and
formed a reasonable disciplinary basis.11 See, e.g., Daimler
Chrysler Corp., 344 NLRB 1324, 1325 (2005)(“employees
who engage in deliberate ‘slowdowns’ of work or encourage
others to do so are engaged in activities not protected by the
Act, and their discipline for such activity does not violate the
Act.”); Davis Electric Contractors, Inc., 216 NLRB 102
(1975); Elk Lumber Co., 91 NLRB 333, 337, 338 (1950); Gen-
eral Electric Co., 155 NLRB 208, 220-221 (1965); New Fair-
view Hall Convalescent Home, 206 NLRB 688 (1973). Moreo-
ver, Thompson’s warning solely focused upon her unprotected
slowdown instigation, and bore no connection to her protected
grievance-handling activities. Second, although Consolidated
disciplined Thompson more severely than the roughly 5 other
rank-and-file CSRs, who also participated in the slowdown
(i.e., only Thompson received discipline), the Board has held
that an employer can lawfully discipline a Union official such
as Thompson, who instigates a work stoppage, more severely
than non-instigator employee participants.12 See, e.g., Midwest
Precision Castings Co., 244 NLRB 597, 599 (1979)(an em-
ployer faced with an unprotected strike in the face of a no-strike
clause need not discharge or otherwise discipline all employees
who participate); California Cotton Cooperative Association,
Ltd., 110 NLRB 1494 (1954); McLean Trucking Company, 175
NLRB 440, 450–451 (1969); Chrysler Corp., Dodge Truck
Plant, 232 NLRB 466 (1977). Third, there is no evidence that
Consolidated has a poor relationship with the Union. On the
contrary, Thompson conceded that she enjoyed a generally
cordial relationship. Finally, Thompson’s punishment (i.e., a
de minimis verbal warning) hardly exceeded the bounds of
reasonableness. Or put another way, Consolidated did not seize
upon Thompson’s unprotected actions as a venue to devastate a
Union advocate during hard bargaining. It, instead, meted out

11 Although the GC contends that the demonstration was neither a
slowdown nor a strike, this argument is invalid for several reasons.
First, Thompson conceded that she was not performing any work func-
tion during the demonstration. (Tr. 47.) Second, she and Lindsey were
clearly unable to work, while taking photos. Third, it is highly likely
that the other 4 employee-participants did not engage in any work dur-
ing the stand and stretch demonstration. The GC failed to have them
testify, and establish otherwise. Lastly, the GC conceded in her brief
that some services were, in fact, withheld during the demonstration.
GC Br. at 10 (“[e]mployees either continued working or immediately
returned to working after stretching.” (Emphasis added.)). I find, as a
result, that the demonstration was at least a slowdown covered by the
2013–2016 CBA’s Service Interruption clause (i.e., it was minimally a
concerted delay and interruption of the CSRs’ work duties). See
§501(2) of the Act (expansively defining a “strike” or work stoppage as
“any strike or other concerted stoppage of work by employees … and
any concerted slowdown or other concerted interruption of operations
by employees.” (Emphasis added)).
12 Thompson organized the slowdown, solicited 25 CSRs to partici-
pate, and took connected photos for the Union.
the industrial equivalent of a slap on the wrist that primarily
educated a workplace leader about a misunderstood rule. I
find, as a result, that the verbal warning was lawful, and that
Consolidated abundantly demonstrated that it took a very minor
disciplinary action against Thompson on the basis of her unpro-
tected instigation of a slowdown that violated the 2013–16
CBA.13
B. 8(a)(1) Allegations14
1. Impression of surveillance allegation
Kelley lawfully told Thompson that “2 sources” reported the
slowdown. An employer creates an unlawful impression
of surveillance when reasonable employees would assume that
their protected activities are being watched. Stevens Creek
Chrysler, 353 NLRB 1294, 1295–1296 (2009). As a result,
when an employer tells employees that it is aware of their pro-
tected activities, but, fails to identify their source, an unlawful
impression of surveillance is created because employees could
reasonably surmise that employer monitoring has occurred.
Conley Trucking, 349 NLRB 308, 315 (2007). In the instant
case, however, Kelley only cited Thompson’s unprotected ac-
tivities, and there was no basis for Thompson to assume that her
protected activities were under surveillance. These comments
were, therefore, valid.
2. Alleged threat
Kelley lawfully told Thompson that she should have “known
better.” Given that the underlying verbal warning itself was
valid, Kelley’s connected statement that Thompson, a Union
leader, who enforces the contract, should understand the basis
for her valid discipline and how to apply the Service Interrup-
tion clause going forward was fair and rational.
CONCLUSIONS OF LAW
1. Consolidated is an employer engaged in commerce within
the meaning of §2(2), (6), and (7) of the Act.
2. Consolidated did not violate the Act in the manner al-
leged in the complaint.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended15
ORDER
The complaint is dismissed in its entirety.
Dated Washington, D.C. September 28, 2017

13 It’s noteworthy, and mildly disappointing, that the Union could
have easily waited a mere 3 days (i.e., when the 2013–2016 CBA ex-
pired on October 16) for the slowdown to become protected. Had it
done so, the Service Interruption clause would have expired, and
Thompson would not have been subject to disciplinary jeopardy at her
employer’s discretion. See, e.g., Lincoln Lutheran of Racine, 362
NLRB No. 188, slip op. at 4 (2015).
14 These allegations are listed under complaint pars. 11 through 13.
15 If no exceptions are filed as provided by §102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in §102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.