Indiana Bell Telephone Company, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 17, 2019

25-CA-218494 (N.L.R.B. Sep. 17, 2019)

JD–71–19
Indianapolis, Indiana
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INDIANA BELL TELEPHONE COMPANY, INC.,
and Case 25-CA-218494
COMMUNICATION WORKERS OF AMERICA, LOCAL 4900
Patricia McGruder, Esq., for the General Counsel
Michael Pedhirney, Esq. (Littler Mendelson, PC), San Francisco, CA,
and John Phelan, Esq. (AT&T), Chicago, IL, for the Respondent
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Indianapolis,
Indiana on July 9 and August 6, 2019. Pursuant to charges brought by the Communications
Workers of America, Local 4900 (the Union), the complaint alleges that the Indiana Bell
Telephone Company, Inc. (the Company or Respondent) violated Section 8(a)(1) of the National
Labor Relations Act (the Act)1 in April 20182 by instructing employees to remove union buttons
or face discipline for insubordination. The Company denies the allegations and alleges that its
conduct merely enforced a personal appearance policy and dress code in effect at the time of the
incident that the Union clearly and previously waived its right to bargain over.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, provides telecommunications services at several facilities in
the State of Indiana, including Indianapolis, where it annually derives gross revenue in excess of
$100,000. It also purchased and received at its Indiana facilities goods valued in excess of
$50,000 from outside of Indiana. The Company 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.

1 29 U.S.C. §§ 158(a)(1).
2 All dates are in 2018 unless otherwise indicated.
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II. ALLEGED UNFAIR LABOR PRACTICES
A. The Collective-Bargaining History
5
AT&T Teleholdings, Inc. (AT&T) does business in the Midwest United States as AT&T
Midwest through the following five subsidiaries: The Company, the Illinois Bell Telephone
Company, the Ohio Bell Company, Wisconsin Bell, Inc., and the Michigan Bell Telephone
Company. The Communications Workers of America international union (CWA), through its
District 4, represents and is responsible for contract negotiations covering roughly 8,000 AT&T 10
Midwest employees and local districts, including the Union.
The CWA/AT&T Midwest bargaining relationship spans over 50 years. The relationship
has been embodied in successive collective-bargaining agreements recognizing the Union as the
exclusive collective bargaining agent for the Company’s customer service specialists (core15
technicians), construction & engineering technicians, marketing support specialists, technical
associates, dispatchers, maintenance administrators and premises technicians.
The Company and the Union previously negotiated two collective bargaining agreements,
each lasting approximately three years. The first agreement was effective April 8, 2012 through 20
April 11, 2015 (the 2012 CBA). The agreement at issue in this case was effective April 12, 2015
through April 14, 2018 (the CBA).3 It is undisputed that the CBA remained in effect on April
16, the date of the incident at issue.
B. The Company’s Appearance Standards and Dress Code25
The Company’s premises technicians install high speed internet services, DirecTV, and U-
verse products. They report to garages, where they are inspected by supervisors, and then dispatched
into the field. They are covered by the Company’s Premises Technician Guidelines, dated
January 22, 2009, January 26, 2010 and February 7, 2011,4 as well as its June 2013 U-Verse 30
Field Operations Technicians Guidelines.5 All of those guidelines, collectively referred to as the
pre-2016 guidelines, included, in pertinent part, the following introductory explanation:
They do not provide an all encompassing list of rules, but rather a set of guidelines to
help complete daily assignments while meeting customer service requirements and 35
service objectives. These are not intended to change, alter or supersede existing
contractual provisions, OSHA requirements, safety requirements, Company policy,
Company Code of Business Conduct or public laws.
These guidelines should be uniformly and fairly applied, taking into account surrounding40
circumstances. Subsequent to the implementation of these guidelines, it will be the
supervisors responsibility to review them annually with each employee and with any
new employee that is added to the workforce. These guidelines will be updated and

3 GC Exh. 2.
4 R. Exh. 4(b)-(c).
5 R. Exh. 2.
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revised as required.
These expectations are intended to address routine situations that arise on a regular
basis. Every situation must be assessed based on its own merits and supervisors have
the discretion to determine what the appropriate course of action is depending on the5
situation. If you have any questions regarding how to deal with a particular situation,
please consult with your supervisor.
In addition to the Company’s stated goal of maintaining a brand of professionalism
among its employees while interacting with customers in a very competitive environment, the 10
pre-2016 guidelines incorporated a personal appearance and dress code policy. As such, the
Company provides field employees with branded apparel free of charge, including hats that bear
the ATT and Union logos.6 Otherwise, the Company has applied the following conditions with
respect to clothing and appearance at Section 13, which states, in pertinent part:
15
13. PERSONAL APPEARANCE
13.1. The intent of the Branded Apparel Program (BAP) and the requirements of an
employees' personal appearance is to ensure that AT&T employees project and deliver a
professional, business-like image to our customers and community.20
13.2. U-verse BAP is mandatory for all Premises Technicians. No other shirt,
hat or jacket will be worn without management approval. Shirts must be
tucked into the employees pants at all times. Technicians must wear a
belt, threaded through the pant belt loops. Pants must be worn around the25
waist with no undergarments showing.
13.3. The branded apparel may not be altered in any way which includes adding buttons,
pins, stickers, writing etc.
30
Premises technicians were covered under Appendix F to the 2012 CBA and CBA, both of
which incorporated the BAP:7
5.01 Work Apparel
The Company may, at its discretion, implement appearance standards and/or a dress code 35
consistent with State and Federal laws. The Company may change the standards and
code at its discretion.
For employees in Appendix F, participation in the U-verse Branded Apparel Program
(BAP) is mandatory.40

6 GC Exh. 14.
7 Appendix F applies only to premises technicians. Except in special circumstances, the Company
has never applied a mandatory appearance standard or dress code to other technicians. (GC Exh. 3-4.)
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The Company can modify or discontinue this program at its discretion. If the BAP is
discontinued for the employees listed in Appendix F, the Company will give those
employees a minimum notice of thirty (30) days prior to such discontinuance.
The parties bargained over Appendix F in 2012. The Union sought to eliminate the BAP 5
or make the program voluntary for premise technicians as it is for other employee classifications
in the bargaining unit. The Company rejected that proposal.8
Consistent with the Company’s past practice, on April 8, 2016, Stephen Hanson, the
Company’s labor relations director, notified Ron Gay, a District 4 representative, that the 10
Company would be issuing Premises & Wire Technician Guidelines (the 2016 guidelines) to
employees the following week and asked Gay to contact him if he had any questions.9 Gay
acknowledged the email, and said he would review the revision and call him if he had any
questions. Gay did not, however, get back to Hansen with any questions or concerns about the
2016 guidelines. This was also generally consistent with the Union’s past practice.10 The 15
introductory explanation was the same as the previous version but the personal appearance
provision was partially modified and renumbered as Section 14:11
PERSONAL APPEARANCE
20
14.1 The intent of the Branded Apparel Program (BAP) and the requirements of a
technician's personal appearance are to ensure that AT&T technicians project and deliver
a professional, business-like image to our customers and community.
14.2 BAP is mandatory for all SD&A Premises & Wire Technicians on work time. No 25
other shirt, hat, pants/shorts, shorts or jacket will be worn without management approval.
Shirts must be tucked into the technician's pants/shorts at all times. Technicians must
wear a belt, threaded through the pant/short belt loops. Pants/shorts must be worn around
the waist with no undergarments showing.
30
14.3. The branded apparel may not be altered in any way.12
C. The Historical Use of Union Buttons at the Company
In 2012 or earlier, technicians attempting to wear Union apparel over their uniforms were 35
instructed by supervisors to remove the shirts. Technicians did, however, display their support
for the Union by wearing CWA buttons on Company branded shirts and lanyards in the Company’s
Indianapolis and South Bend garages, and on job assignments during collective-bargaining in 2009,

8 R. Exh. 4(a).
9 Hanson’s notification to Gay of the impending guideline revision was consistent with the practice of
his predecessor, William Helwig. It is undisputed that Helwig gave the Union the opportunity to bargain
over the new guidelines, but the Union never requested it. (R. Exh. 4(a) at 988-993, 1004-1011.)
10 Helwig’s undisputed prior testimony established a past practice that CWA representatives routinely
expressed to him that it was not willing to bargain over any policy that involved discipline, because they
believed such bargaining could hurt them in the grievance process. (R. Exh. 4(a) at 993-994.)
11 GC Exh. 6; R. Exh. 2.
12 In contrast to the previous guidelines, reference to buttons, pins, stickers and writing was deleted.
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2012 and 2015. Prior to April 2018, the Company did not enforce the pre-2016 guidelines or 2016
guidelines to ban union buttons, much less discipline any employee for violating those rules.13 In
2012 and 2015, the Union distributed small red buttons that said, “CWA.”14 In 2018, the Union
distributed two types of red buttons; the first button was the size of the bottom of soda can and said,
“Fighting Today, Focused on the Future” and it was attached to a lanyard. The second was a quarter-5
sized button that said, “We Demand Good Jobs.”15
D. The Company Threatens Disciplinary Action if Employees Wear Union Buttons
In conjunction with collective-bargaining in March 2018, technicians displayed their 10
support for the Union at several Indianapolis garages. Danny Collum, the Union’s area
representative, coordinated the effort through informational picketing and the distribution of
CWA buttons, which technicians wore on their branded Company shirts or attached to lanyards.
In its opening salvo, the Company’s labor relations arm responded by instructing15
supervisors to enforce the 2016 guidelines.16 On March 15, Larry Robbins, a core technician
serving as the Union’s vice president, was informed that premises technicians were told that they
could not wear CWA buttons offsite. Robbins called Bickel and inquired about the incident.
Bickel confirmed the policy prohibiting the wearing of buttons on Company shirts. Robbins then
emailed Grace Biehl, a labor relations manager, who confirmed the policy on the basis that the 20
buttons constituted an alteration.17 Notwithstanding the Company’s position regarding union
buttons, the technicians continued to wear them without incident for about one month.18
On April 16, at the Hanna Avenue garage in Indianapolis, Joseph St. Clair, the manager
of network services, noticed a premises technician surnamed Terry leaving the facility wearing a25
CWA button on his Company shirt. St. Clair ordered Terry to remove the button. Terry ignored
him and St. Clair repeated the directive. Terry refused. St. Clair replied that Terry’s continued
refusal to remove the button constituted insubordination and subjected him to discipline,
including termination. Terry removed the button and informed Collum of the incident.19
30
After speaking with Terry, Collum immediately went to the Hanna Avenue garage. He
spoke to St. Clair, who confirmed that employees were prohibited from wearing the CWA
buttons and faced discipline if they did. Collum protested that the buttons merely displayed

13 Angela Bickel, the Company’s area manager, observed the rule being enforced “in 2012 or earlier”
when “technicians would attempt to wear a t-shirt over their uniforms” but did not mention buttons. (Tr.
102-105.) Core technician Preston Dorfmeyer distributed union buttons to premises technicians in 2009
and saw them wear the buttons in the garages and as they left to work sites, all in the presence of
managers (Tr. 122-124.) Union officials Timothy Strong and Danny Collum credibly testified that
technicians also wore union buttons in garages and while leaving for service calls in 2012 and 2015
without any restraint by Company supervisors. (Tr. 30-37, 40-42, 55-56, 67-68, 117, 124.)
14 GC Exh. 11-12.
15 GC Exh. 13(a)-(b), 15.
16 This finding is based on Collum’s credible and undisputed testimony that St. Clair subsequently
attributed the enforcement action to a directive from the Company’s bargaining team. (Tr. 67.)
17 GC Exh. 10.
18 This finding is based on Robbins’ credible and unrefuted testimony (Tr. 50-51.)
19 St. Clair’s credible testimony indicates that Terry was wearing a button, not a lanyard. (Tr. 86-87.)
JD–71–19
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support for the bargaining team. Collum also called Bickel, who confirmed the policy on the
ground that the buttons could be construed negatively by the public. Collum’s last appeal was to
Biehl, who reiterated the Company’s position that the buttons violated the 2016 guidelines
because they constituted an alteration to the Company’s branded apparel. During the subsequent
grievance meeting, St. Claire informed Collum that the Company’s enforcement of the 5
guidelines with respect to the CWA buttons was at the instruction of the Company’s bargaining
team. St. Claire proceeded to deny the grievance on the ground that the buttons could be
construed negatively by customers. Collum disagreed.20
Company discipline is set forth in its guide for corrective action by supervisors and 10
managers, which states in pertinent part:
It is intended that the guidelines be used by management as a tool to ensure consistent
treatment of employees who exhibit behaviors considered unacceptable. When referring
to management or managers, these guidelines refer to the first level of supervision 15
responsible for managing the employee reporting to them, for example, the Field
Managers who supervise technicians or the Center Managers who supervisor clerical
employees. Management should apply these guidelines fairly and evenly, taking into
account surrounding circumstances. Evaluation of trends, past history and mitigating
circumstances should serve to guide management in making “firm but fair" decisions.20
LEGAL ANALYSIS
I. THE 2016 PERSONAL APPEARANCE AND DRESS CODE GUIDELINES
25
The complaint alleges that the Company violated Section 8(a)(1) of the Act by
maintaining the 2016 guidelines and threatening employees with discipline if they violated them.
Specifically, the General Counsel alleges that: (1) premises technicians engaged in protected
activity when they wore CWA buttons during contract negotiations to show solidarity for the
bargaining team; (2) the Company failed to enforce guidelines prohibiting the use of buttons or 30
otherwise prove the existence of special circumstances justifying its interference with such activity;
and (3) neither the CBA nor the 2016 guidelines support a waiver argument.
The Company contends that: (1) its guidelines do not restrict all forms of union insignia
and, in fact, it provides technicians with Company hats that bear the CWA logo at no cost; (2)35
any restrictions on protected conducted is outweighed by the legitimate business purpose of
promoting a brand of professionalism to customers and projecting a positive public image of the
Company; (3) the Union consistently waived any objection to maintenance of the guidelines; and
(4) the Company has consistently enforced the pre-2016 guidelines and the 2016 guidelines.
40
Employees have “a protected Section 7 right to make public their concerns about their
employment relation, including a right to wear union insignia at work.” Republic Aviation Corp.
v. NLRB, 324 U.S. 793, 801–803 (1945). This “right of self-organization,” however, must be
balanced against “the equally undisputed right of employers to maintain discipline in their

20 Collum’s credible version of these conversations was not disputed. (Tr. 61-67, 86-88.)
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7
establishments.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998). The Board recently
reiterated this balancing test in The Boeing Co., 365 NLRB No. 154, slip op. at 14 (2017):
In cases in which one or more facially neutral policies, rules, or handbook provisions are
at issue that, when reasonably interpreted, would potentially interfere with Section 7 5
rights, the Board will evaluate two things: (i) the nature and extent of the potential impact
on [rights under the Act], and (ii) legitimate justifications associated with the
requirement(s). Again, we emphasize that the Board will conduct this evaluation,
consistent with the Board’s “duty to strike the proper balance between . . . asserted
business justifications and the invasion of employee rights in light of the Act and its 10
policy. (emphasis in original)
It is axiomatic that “a rule that curtails employees’ Section 7 right to wear union insignia
in the workplace must be narrowly tailored to the special circumstances justifying maintenance
of the rule, and the employer bears the burden of proving such special circumstances.” Boch 15
Honda, 362 NLRB No. 83, slip op. at 2 (2015), enfd. 826 F.3d 558 (1st Cir. 2016); see also W
San Diego, 348 NLRB 372, 373–374 (2006) (special circumstances that justified employer’s ban
on buttons worn in public areas did not justify a ban on buttons worn in nonpublic areas).
The Board has found special circumstances justifying the ban of union insignia and 20
apparel when their display may “jeopardize employee safety, damage machinery or products,
exacerbate employee dissension, or unreasonably interfere with a public image that the employer
has established, as part of its business plan, through appearance rules for its employees.” Bell-
Atlantic-Pennsylvania, 339 NLRB 1084, 1086 (2003), enfd. Communications Workers of
America, Local 13000 v. NLRB, 99 Fed. Appx. 233 (D.C. Cir. 2004) (employees lawfully 25
prohibited from wearing union tee shirts depicting them as road kill and driven over by trucks
with employer’s name); Komatsu America Corp., 342 NLRB 649, 650 (2004) (permitting
foreign Japanese-owned company to ban “inflammatory and offensive” union tee shirts
comparing company’s outsourcing plans with the Japanese attack on Pearl Harbor); Evergreen
Nursing Home and Rehabilitation Center, Inc., 198 NLRB 775, fn. 1, 778-779 (1975) (nursing 30
home’s ban on buttons deemed lawful since employees were in intimate contact with elderly ill
patients, many of whom are “confused and disoriented and their reactions to outside stimuli are
unpredictable and could cause severe agitation, upsetting [employer’s] operations and control”).
Here, the 2016 guidelines do not explicitly restrict activity protected by Section 7 of the 35
Act, nor is there evidence that they were adopted in response to protected activity. The
Company insists that it has maintained rules for the past nine years banning buttons based on the
stated purposes of promoting a brand of professionalism in its premises technicians and a
positive public image of the Company. During the same period of time, however, the Company
has also issued these employee hats branded with the ATT and CWA logos. It is undisputed that 40
the 2016 guidelines, as applied on April 16, constitute work rules that restrict the exercise of
Section 7 rights by precluding unit employees from wearing buttons with the CWA logo.
There is no showing that the Company would be adversely impacted by employees
wearing union buttons. See Bell-Atlantic-Pennsylvania, 339 NLRB 1084, 1086 (2003) (for 45
employee’s message to lose the protection of the Act, employer must establish that the material
was obscene or derogatory and improperly cites or causes disruption or results in an adverse
JD–71–19
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impact on production). Even if the ban were limited to customer engagement, those
circumstances alone do not constitute a special circumstance justifying the banning of union
insignia. Meijer, Inc., 318 NLRB 50, 50 (1995) enfd. 130 F. 3d 1209 (6th Cir. 1997) (no special
circumstances exist where employees wear “Union Yes” pins in customer-facing roles in spite of
work rule permitting only approved pins to be worn).5
In Long Beach Memorial Medical Center, 366 NLRB No. 66 slip op. at 2 (2018), enfd.
774 Fed. Appx. 1. (D.C. Cir. 2019), the Board recently evaluated a similar rule requiring that
“only [employer-] approved pins, badges, and professional certifications may be worn.” The
employer sought to justify the rule as “a standardized, easily-identifiable, customized, consistent 10
and professional look in accordance with its business strategy of providing quality patient care.”
The Board rejected the employer’s justification that the rule was necessary to create a “unique
experience distinct from its competitors.” Id. at 3. See also Casino Pauma, 362 NLRB No. 52
(2015) (handbook rule stating that employees may not wear “any badges, emblems, buttons or
pins on their uniforms” other than their identification badge is presumptively unlawful, and its 15
enforcement violated Section 8(a)(1) of the Act).
The notion that the display of a CWA button appended to the Company’s uniform
unreasonably interferes with its public image or business plan, when it already provides
employees with a hat that bears the CWA and Company logos, is specious. Accordingly, the 20
Company’s maintenance of the 2016 guidelines, which contained an overly broad prohibition of
the display of union insignia in the workplace, violated Section 8(a)(1) of the Act.
II. THE UNION’S ALLEGED WAIVER OF ITS RIGHT
TO BARGAIN OVER THE 2016 GUIDELINES2125
The Company also alleges that the Union clearly and unmistakably waived its right to
bargain over premises technicians’ rights to wear union insignia over their branded apparel. It
bases that defense on two grounds: (1) the Company’s contractual right to implement appearance
standards "at its discretion;" and (2) the Union's failure to request bargaining over the premises 30
technicians guidelines in 2009, 2010, 2011, 2013, and 2016. The General Counsel disagrees for
three reasons: (1) if there was a clear waiver in the past, it expired when the contract expired; (2)
the Company replaced the old rule with one that was even broader (prohibiting any alterations to
branded apparel) and made no mention of buttons; and (3) the parties never discussed the 2016
guidelines after the Company informed the Union that they would be implemented. 35
It is well established that a union may waive a statutory right where its waiver is "clear
and unmistakable." Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); Provena St.
Joseph Medical Center, 350 NLRB 808 (2007).22 Waiver can occur by "express provision in a

21 The Company’s reliance on Wisconsin Bell, JD-67-16, as controlling law is baseless. That
proceeding involved similar issues between affiliates of the parties. As explained at the hearing, however,
that decision lacks any precedential weight since no exceptions were filed. See generally Operating
Engineers Local 39 (Mark Hopkins Intercontinental Hotel), 357 NLRB 1683 fn. 1 (2011); and Trump
Marina Associates LLC, 354 NLRB 1027 fn. 2 (2009), reaffd. 355 NLRB 585 (2010), enfd. 435 Fed.
Appx. 1 (D.C. Cir. 2011).
22 The Board recently replaced the “clear and unmistakable waiver standard” with the narrower
“contract coverage standard” in MV Transportation, Inc., 368 NLRB No. 66, slip op. at 1-2 (2019). That
JD–71–19
9
collective-bargaining agreement, by the conduct of the parties (including past practices,
bargaining history, and action or inaction), or by a combination of the two." Northwest Airport
Inn, 350 NLRB 690, 693 (2013), citing American Diamond Tool, 306 NLRB 570 (1992).
In instances “where an employer gives a union advance notice of its intention to change a 5
term or condition of employment, the union must make a reasonably timely demand for
bargaining over the matter to avoid a finding of waiver or acquiescence." Reynolds Metal Co.,
310 NLRB 995, 1000 (1993). For example, in WPIX, Inc., 299 NLRB 525 (1990), the employer
planned to change the reimbursement rate it paid employees for mileage. The employer did not
notify the union of the change, but the union learned of it in an interoffice memorandum 10
obtained by a union representative. The Board held that the union waived its right to bargain
over the change because it had actual notice of the change a week prior to its implementation but
did not request bargaining. Id. at 525-526. See also Ohio Edison Co., 362 NLRB 777, 788-89
(2015) (employer announced its intention to change the policy three months before
implementation, told the union if it had any questions to contact the employer, and reminded the 15
union of the upcoming change twice before implementation).
In addition to an express contractual waiver, the Board will also find that a union can
waive its right to bargain over a subject based on its conduct. However, an employer must first
provide the union with a timely and meaningful opportunity to bargain. Taft Coal Sales & 20
Associates, Inc., 360 NLRB 96, 100 (2014), enfd. 586 Fed. Appx. 525 (11th Cir. 2014) (the
unlikelihood of any meaningful bargaining was a fait accompli where the employer refused to
give notice of impending layoffs to the union until after advising the affected workers). A timely
notice is one which is given far enough in advance to allow a reasonable opportunity to bargain.
If the employer merely informs the union of the upcoming changes with no real intent to bargain, 25
or it gives a union untimely notice, the employer has not met the Board's standard. Id.
The Company did not indicate openness to bargain but was receptive to “any questions”
the Union might have. See U.S. Lingerie Corporation, 170 NLRB 750 (1968) (sufficient notice
and opportunity to bargain existed even where employer did not directly provide notice and offer 30
to negotiate, but the union found out about the policy change by other means). For its part, the
Union representative confirmed receipt via email, and indicated he would review the policy and
“call with any questions.” The Union did not, however, seek to bargaining over the 2016
guidelines or discuss them until the April 2018 incident. Historically, the Union purposefully
avoided bargaining over the guidelines in order to preserve its position at the grievance stage.35
It is clear that the Union waived any objection to the Company’s maintenance of the pre-
2016 guidelines, all of which specifically prohibited the wearing of buttons on Company apparel.
Ciba-Geigy Pharmaceutical Division, 264 NLRB 1013, 1017 (1982) (once union receives notice
of an employer' s intent to change a condition of employment, it must “promptly request that the 40
employer bargain over the matter”). The Company’s notice of implementation of the 2016
guidelines – one week – was relatively short, but the Board has accepted less time as sufficient
for a union to request bargaining. Hartmann Luggage Company, 173 NLRB 1254, 1255-56

decision, however, specifically limited application of the new standard to “pending unilateral-change
cases where the determination of whether the employer violated Section 8(a)(5) turns on whether
contractual language granted the employer the right to make the change in dispute.”
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(1968) (a four and one-half day notice of impending layoffs was “adequate to alert and afford the
Union an opportunity to protest…”); see also Holiday Inn Central, 181 NLRB 997 (1970) (less
than four days’ notice was sufficient). Since the notification of the impending change was
sufficient, the only remaining issue is whether the CBA language, including the 2016 guidelines
and/or the parties’ conduct clearly and unmistakably waived any objection by the Union to a ban 5
on wearing buttons at any time since April 8, 2016.
Nether the language of the 2016 guidelines nor the parties conduct since April 2016
support a waiver of premises technicians’ rights to wear union buttons. In Mastro Plastics Corp.
v. NLRB, 350 U.S. 270, 281 (1956), the court found that provisions alleged to waive employees’ 10
rights are appropriately read “in context and in the light of the law under which the contract was
made.” In this case, the language of Appendix F, Section 5.01 of the CBA, which incorporates
the 2016 guidelines, enables the Company to implement a dress code “consistent with State and
Federal Laws.” In contrast to earlier written versions of the policy, however, the 2016 guidelines
omitted specific reference to union insignia. Moreover, the provision states that the Company 15
will comply with federal law, which includes the Section 7 right to wear union insignia.
III. THE COMPANY’S ENFORCEMENT OF THE RULE
The General Counsel contends that, even if the Union waived its right to bargain over the20
2016 guidelines, the evidence established that they were arbitrarily enforced at the Hanna
Avenue garage on April 16 in order to restrict Section 7 activity – that is, ban employees from
attaching CWA buttons to their Company shirts during bargaining. Similar buttons had been
worn by premises technicians over the previous nine years during similar activities and, in
contrast to tee shirts, supervisors never ordered them to remove the buttons. On April 16, 25
however, the Company’s labor relations department encroached upon its operations by directing
supervisors to do so just as the Union began mobilizing members for contract negotiations.
Where there is consistent failure in the enforcement of a dress code, its enforcement in
response to protected or union activity is a violation of the Act. See Meijer, 318 NRLB at 50 30
(employer with a pattern of permissiveness toward non-union buttons discriminatorily applied
the rule). See also Pacific Bell Telephone Co., 362 NLRB 885, 888 (2015) (rejecting employer’s
prohibition of union insignia citing, among other things, a “history of lax enforcement” allowing
premises technicians to wear a variety of nonbranded apparel in violation of the dress code). The
Board does, however, require more than a few lapses of enforcement to establish a pattern of 35
failure to implement a rule. Cf. The Hertz Corporation., 305 NLRB 487, 487-488 (1991)
(rejecting a disparate enforcement allegation where a few incidents of non-enforcement were
cited against a record of ongoing, concrete steps to enforce the dress code); Burger King Corp. v.
NLRB, 725 F.2d 1053 (6th Cir. 1984) (declining to enforce Board order on the grounds that a
consistently applied no-button rule did not encroach on Section 7 rights); United Parcel Service 40
v. NLRB, 41 F.3d 1068 (6th Cir. 1994) (declining to enforce a Board order on the ground that a
dress code barring any changes applied consistently did not infringe on Section 7 rights).
Employees wore buttons frequently throughout bargaining sessions in 2009, 2012, and
2015, within sight of supervisors and without restraint. On April 16, however, a Company 45
supervisor enforced the 2016 guidelines at the direction of the Company’s labor relations team.
That backdrop clearly entwined the action with the collective-bargaining process. As the Board
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reiterated in Boeing, supra at 17, an otherwise lawful work rule can still be rendered unlawful if
applied to employees who engage in protected conduct under the Act:
For example, if the Board finds that an employer lawfully maintained a “courtesy and
respect” rule, but the employer invokes the rule when imposing discipline on employees 5
who engage in a work related dispute that is protected by Section 7 of the Act, we may
find that the discipline constituted unlawful interference with the exercise of protected
rights in violation of Section 8(a)(1).
Id. (citing Aroostook County Regional Ophthalmology Center v. NLRB, 81 F.3d 209, 213 (D.C. 10
Cir. 1996); Adtranz ABB Daimler-Benz Transportation, N.A. v. NLRB, 253 F.3d 19, 28 (D.C.
Cir. 2001).
Under the circumstances, the Company discriminatorily enforced the 2016 guidelines to
restrain unit employees’ Section 7 rights in violation of Section 8(1) of the Act.15
CONCLUSIONS OF LAW
1. The Respondent, Indiana Bell Telephone Company, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.20
2. The Communications Workers of America, Local 4900 is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by maintaining a rule since April 8, 25
2016 banning premises technicians from wearing a union button stating “CWA” and
discriminatorily enforcing that ban on April 16, 2018.
4. The above unfair labor practice affects commerce within the meaning of Section 2(2),
(6), and (7) of the Act.30
5. The Respondent has not violated the Act in any of the other manners alleged in the
Complaint.
REMEDY35
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. In particular, I shall order the Respondent, at all of its facilities, to cease
and desist from maintaining a rule prohibiting premises technicians from wearing the CWA 40
button. The Respondent is also ordered to rescind the rule prohibiting premises technicians from
wearing the CWA button and, after the rescission, to advise premises technicians in writing that
this unlawful rule is no longer being maintained.
On these findings of fact and conclusions of law and on the entire record, I issue the 45
following recommended23

23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
JD–71–19
12
ORDER
The Respondent, Indiana Bell Telephone Company, Inc., Indianapolis, Indiana, its
officers, agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Maintaining and enforcing a rule prohibiting premises technicians from wearing the
CWA button.
10
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
15
(a) Rescind the rule prohibiting premises technicians from wearing the CWA button, and
advise employees in writing that this unlawful rule is no longer being maintained.
(b) Within 14 days after service by the Region, post at all of its facilities in the State of
Indiana, copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms20
provided by the Regional Director for Region 25, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent and maintained for 60 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 internet site, and/or other electronic means, if the Respondent 25
customarily communicates with its employees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facilities involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and30
former employees employed by the Respondent at any time since April 8, 2016.
(c) Within 21 days after service by the Region, file with the Regional Director for
Region 25 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps the Respondent has taken to comply.35
IT IS FURTHER ORDERED that the Complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
40

findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
24 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–71–19
13
Dated, Washington, D.C. September 17, 2019
5

Michael A. Rosas
Administrative Law Judge
d.,,,•zIr'4,2. .,_,,
JD–71–19
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain and enforce a rule prohibiting premises technicians from wearing the
union button stating: “CWA.”
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the rule prohibiting premises technicians from wearing the “CWA” button
and after the rescission WE WILL advise you in writing that this unlawful rule is no longer being
maintained.
INDIANA BELL TELEPHONE COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov
Minton-Capehart Federal Building, 575 N. Pennsylvania Avenue,
Room 238, Indianapolis, IN 46204-1577
(317) 226-7381, Hours: 8:30 a.m. to 5 p.m.
JD–71–19
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-218494 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (317) 991-7644.