Windstream Corporation

National Labor Relations Board - Administrative Judge Opinions

Aug 9, 2007

06-CA-035483 (N.L.R.B. Aug. 9, 2007)

JD–51—07
Meadville, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WINDSTREAM CORPORATION
And Case 6-CA-35483
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO, CLC
ON BEHALF OF ITS AFFILIATED LOCAL
UNIONS 463, 1189, 1507, 1929, 2089 AND 2374
Barton Meyers, Esq.,
Of Pittsburgh, Pennsylvania
For the General Counsel
Jonathan D. Newman, Esq.,
Of Washington, D. C.
For the Charging Party Union
William C. Moul, Esq.,
Of Columbus, Ohio
For the Respondent Employer
DECISION
Statement of the Case
WALLACE H. NATIONS, Administrative Law Judge. This case was tried in Pittsburgh,
Pennsylvania on June 5, 2007. The charge was filed by the International Brotherhood of
Electrical Workers AFL-CIO, CLC on behalf of its Affiliated Local Unions 463, 1189, 1507, 1929,
2089 and 2374 (hereinafter Union) on February 1, 20071 and the complaint was issued March 6,
2007. The Complaint alleges that Windstream Corporation (hereinafter Respondent or
Windstream) engaged in conduct in violation of Section 8(a)(1) of the National Labor Relations
Act (hereinafter the Act). The Respondent filed a timely Answer to the Complaint wherein it
admits, inter alia, the jurisdictional allegations of the Act. The Answer in addition to denying
many of the Complaint allegations raises a number of affirmative defenses. It alleges that the
Complaint was improperly issued, contrary to Section 10(b) of the Act, because it relates solely
to conduct occurring more than six months prior to the filing of the charge. It alleges that the
Complaint issued prematurely, with total disregard for the provisions of Section 10068 of the
Board’s Case Handling Manual, as well as other routine procedures followed by the Board, thus
reflecting that its issuance was an abuse of discretion. It also alleges that Board policy requires
deferral of this dispute to the grievance and arbitration machinery of the separate collective
bargaining agreements between Respondent’s subsidiaries and the respective Local Unions
referenced in paragraph 7 of the Complaint; that issuance of the Complaint is inconsistent with

1 All dates are 2007 unless otherwise indicated.
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said policy; that no reason for deviating from said policy exists; and, that issuance of the
Complaint was, therefore, an abuse of discretion.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Charging Party and Respondent, I
make the following
Findings of Fact
I. Jurisdiction
The Respondent, a Delaware corporation, with its headquarters in Little Rock, Arkansas
and an office and place of business, inter alia, in Meadville, Pennsylvania has been engaged in
the business of providing voice, data, and video telephonic communication services. During the
twelve month period ending January 31, 2007, Respondent, in conducting is business, derived
gross revenues in excess of $100,000 and purchased and received at it Pennsylvania facilities
goods valued in excess directly from points outside of the Commonwealth of Pennsylvania. The
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Complaint Allegations
About July 17, 2006, Respondent was created in a spin-off of the landline telephonic
business of Alltel Corporation and its affiliates, (hereinafter Alltel) and since then has continued
to operate the landline business of Alltel in basically unchanged form and has employed, as a
majority of its employees, individuals who were previously employed by Alltel. Since the spin-off
of the landline business of Alltel, Respondent has recognized as the exclusive collective
bargaining representative of units of its employees, IBEW Local Union 463. located in Lebanon,
Kentucky, IBEW Local Union 1189 located in Fulton, New York, IBEW Local Union 1507 located
in Hudson, Ohio, IBEW Local Union 1929 located in Clarksville, Pennsylvania, IBEW Local
Union 2089 located in Meadville, Pennsylvania, and IBEW Local Union 2374 located in
Jamestown, New York.
The Complaint alleges that on or about July 28, 2006, and thereafter, Respondent, in its
“Working with Integrity” guidelines posted on Respondent’s intranet, announced and
implemented and has since maintained a policy which prohibits all of Respondent’s employees
from disclosing their compensation, benefits, personnel records or information to any other
party. The Complaint further alleges that by this conduct, Respondent has engaged in conduct
in violation Section 8(a)(1) of the Act.
In its Answer, the Respondent denies that its policy is unlawful and in addition, raises the
following affirmative defenses:
1. The conduct complained of is time barred under Section 10(b) of the Act, occurring
more than six months prior to the filing of the charge.
2. That the Complaint was issued prematurely with disregard for the provisions of
Section 10068 of the Board’s Case Handling Manual and was thus an abuse of
discretion.
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3. That the issues raised in the Complaint should have been deferred to the contractual
grievance and arbitration provisions of each Local Union under the Board’s policy as
set forth in Collyer Insulated Wire, 192 NLRB 837 (1971).
4. Whether the International Union has standing, as an agent of the Local Unions, to file
the unfair labor practice charge on behalf of its Local Unions in this matter.
5. That by its March 2007 amendment to the policy, the Respondent has made the
matter moot.
B. The Facts Related to the Complaint Allegations
Martha Pultar is employed by the Union as its Director of Telecommunications. She
oversees the provision of Union services to approximately 70,000 members in the
telecommunication industry. The six involved Local Unions serviced by the IBEW International
Union represent some 300 Windstream employees. These employees had previously been
Alltel employees. By letters dated on or about June 30 2006, Windstream notified the affected
IBEW Local Unions that it would be responsible for operating the wire line telephone operations
of Alltel and on July 17, 2006, would adopt the existing collective bargaining agreements
between the Local Unions and Alltel. Alltel is the primary shareholder of Windstream.
Following the spin-off, on July 25, 2006, Windstream’s then COO Keith Paglusch sent an
e-mail to all of Windstream’s employees informing them of a new “integrity” policy for the
company. They were invited to go to a website which had detailed “Working with Integrity”
guidelines. This e-mail was not sent to the Union per se, but was received by Local Union
officers as employees of Windstream. If an employee went to the website, he or she would find
a twenty two page document setting out the company’s ethics guidelines. Included among them
was a section entitled “Customer and Employee Privacy.” Inter alia, this section, which applies
to all employees including those represented by a union and those not so represented, included
a paragraph dealing with employee compensation, benefits, and personal records, which reads:
“Employee compensation, benefits, and personnel records and information are
confidential. Only employees who need to know such information in the course of employment
should access such employee information. You should not disclose this information to any other
Windstream employee unless that employee has a need to know such information in the course
of employment. Except as required to comply with law, you should never disclose this
information to any party other than the employee or individual whose access has been
authorized by the employee.”
This paragraph was followed by some questions and answers that read:
Q. One of my coworkers pulled up the call records of his old girlfriend. He shared
that information with others. Is this acceptable?
A. No. Customer information, including billing information and call detail records, is
confidential and should never be accessed or used for anything other than
business reasons.
Q. A Customer’s spouse has requested account information. The account does not
list the spouse as having authorized access. Should I give out the information?
A. No. You should never disclose customer information to any third party unless
the customer has authorized such party’s access or as required to comply with law.
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On or about September 21, 2006, Windstream’s then COO Jeff Garner sent out an e-
mail to employees announcing an on line “Working with Integrity” training course and directing
employees to take the course.
Windstream’s predecessor, Alltel, had a virtually identical policy in place beginning in
March 2006. Like Windstream, Alltel had notified employees of the policy by e-mail and
provided a link to a website where the policy was published. Though the Windstream policy
exists only on the Company’s intranet, Alltel’s identical policy was printed in hard copy form at
some point. There was no evidence of how the hard copy was distributed, if at all. Each of the
collective bargaining agreements between Windstream and the involved Local Unions has a
grievance and arbitration provision. Each of the contracts are between a Windstream subsidiary
and the involved Local Unions.
Katherine Warn is the Director of Labor Relations for Windstream and had been
employed by Alltel and its predecessor since 1974 in one form or another of the Human
Resource function. Alltel was formed in 1983 with the merger of Alltel Telephone Company of
Little Rock, Arkansas and Midcontinent Company of Hudson, Ohio. Windstream provides wire
line telephone service, broadband and digital television service. Windstream was created when
Alltel merged with Valor Telecommunications and spun off the wire line business to Windstream
on July 17, 2006. All former employees engaged in this business became employees of
Windstream and that corporation adopted all existing collective bargaining agreement affecting
these employees.
In response to the filing of the instant Complaint, Windstream modified the alleged
unlawful part of its “Integrity” policy to now read:
“Employee compensation, benefits, and personnel records and information are
confidential. Only employees who need to know such information in the course of employment
should access such employee information through Company records. Therefore, if you are one
with access to such information as a part of your responsibilities with the Company, you should
not disclose this information to any other Windstream employee unless that employee has a
need to know such information in the course of employment. Except as required to comply with
law, you should never disclose this information to any party other than the employee or an
individual whose access has been authorized by the employee. This does not prohibit you from
disclosing or discussing personal, confidential information with others, so long as you did not
come into possession of such information through access which you have as part of your formal
Company duties.”
This revision was made in March 2007, to the “Integrity” policy set out on the intranet,
but notice of the change was not sent to employees by e-mail as was the notice of the policy’s
initial posting. None of the Company’s unions were notified of the change.2 The “Working with
Integrity” policy was initially put in place by Alltel and subsequently by Windstream to comply
with certain laws such as Sarbanes Oxley and HIPPA.
Warn testified that Windstream is in a very competitive industry and, inter alia, competes
for competent employees. For this reason, among others, it does not communicate its employee
compensation package to the public or its competition. According to Warn, the “Integrity” policy
was not fashioned in any respect in response to union organizing or other union activity. There
has been no enforcement of the allegedly unlawful provision of the “Integrity” policy. She further

2 Ms. Pultar was notified of the change in an attempt to settle this matter.
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testified that the provision in question is targeted exclusively to the 75 or 80 Company Human
Resource, IT, and Labor Relations employees who have access to Company personnel
information. This is about 1 percent of the Company’s total workforce. Other than this 1 percent
of employees, no employees have been informed that they could not share wage and benefit
information with other employees. She is aware that employees do share such information
based on calls from employees. Warn also testified that her view of what employees are
affected by the language in question had not been disseminated to all employees.
General Counsel agreed with Respondent’s Counsel that the decision to issue a
Complaint in this matter was made prior to receipt of Respondent position statement with regard
to the case. The Complaint itself was issued just after receipt by the Region of that position
statement.
C. Discussion and Conclusions
1. The Affirmative Defenses
Before discussing the merits of the Complaint allegations respecting the lawfulness of
the rule in question, I will address the affirmative defenses. First, with regard to the Section
10(b) defense, I note that the “mere maintenance” of an unlawful rule is sufficient to violate the
Act. An unlawful rule which prohibits employees from exercising their Section 7 rights violates
the Act even if there is no evidence that the rule has been enforced. Guardsmark LLC, 344
NLRB No. 97 (2005); citing Lafayette Park Hotel, supra at 825, which states, “mere
maintenance of a rule likely to chill Section 7 activity, whether explicitly or through reasonable
interpretation, can amount to an unfair labor practice, even absent evidence of enforcement.”
See also, Franklin Iron & Metal Corp., 315 NLRB 819, 820 (1994).
Since the mere maintenance of an unlawful rule violates the Act, even if the rule has not
been enforced, Section 10(b) does not bar a charge alleging that the maintenance of such a rule
is unlawful even should the rule have been originally promulgated outside the Section 10(b)
period. See Eagle-Picher Industries, Inc., 331 NLRB 169, 174 (2000), “maintenance during the
Section 10 (b) period of a rule that transgresses employee rights is itself a violation of Section
8(a)(1).” See also, Control Services, 305 NLRB 435, 442 (1991). Accordingly, the Respondent’s
affirmative defense in this regard is without merit.
With regard to the standing of the International Union to file the charge in this case on
behalf of its affected Local Unions, Section 102.9 of the Board’s Rules and Regulations and
Statements of Procedure states the following:
“Who may file . . . a charge that any person has engaged in and/or is engaging in any
unfair labor practice affecting commerce may be made by any person . . .”
Section 102.10 Where to file
“A charge alleging that an unfair labor practice has occurred or is occurring in two or
more Regions may be filed with the Regional Director for any such Region.”
Moreover, the Supreme Court rejected this procedural argument concerning standing as
early as NLRB v. Indiana and Michigan Electric Company, 318 U.S. 9, 17-18 (1943), and the
Board has since adopted this ruling in Bagley Products, Inc., 208 NLRB 20 at 21 (1973), and
has also affirmed that any person can file a ULP charge. See Utility Workers Union of America,
et. al. (Ohio Power Company et. al.), 203 NLRB 230 (1973).
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With regard to the argument that this case should be deferred, this case should not be
deferred because the conduct that is alleged to violate Section 8(a)(1) of the Act applies to all of
Respondent’s employees, both non-union and union-represented alike. The unrepresented
employees, of course, have no access to and are not covered by any of the contractual
grievance/arbitration procedures established in the collective-bargaining agreements of the
various Local Unions and, accordingly, the charge cannot be deferred. See Heck’s Inc., 293
NLRB 1111, 1116 (1989). Moreover, this matter involves a single corporate-wide action by the
Employer affecting multi-state jobsites where even its Union-represented employees are
covered by six different collective-bargaining agreements with differing terms. Thus, even if
deferral were otherwise appropriate, the possibility of 6 different arbitrators using 6 different
contracts and coming up with a single consistent result is highly unlikely. Further, two of the
contracts (Local 1189/2374 and Local 1929) restrict an arbitrator to deciding “questions of fact”
not “conclusions of law” as would be needed to decide this case. I believe deferral would be
totally inappropriate in this case.
With respect to Respondent’s procedural argument that the Complaint issued
prematurely, I find that it is without merit. The Respondents position in this matter was known to
the Region prior to issuance of the Complaint and did not and should not have changed the
decision to issue it. For the reasons set forth below, the Complaint has merit and there was no
showing that Respondent was in any way prejudiced by the Region’s handling of this matter.
2. Does Respondent’s Rule Violate Section 8(a)(1) of the Act?
The Board has consistently held that an employer rule which regards employee
compensation and benefit information as confidential and prohibits employees from discussing
such information with one another violates Section 8(a)(1) of the Act. See Double Eagle Hotel &
Casino, 341 NLRB 112, 115 (2004) (quoting Lafayette Park Hotel, 326 NLRB 824, 825 (1998);
Radisson Plaza Minneapolis, 307 NLRB 94 (1992). In examining whether a particular rule so
violates Section 8(a)(1), the Board’s analysis requires that the rule be such that “Employees
would reasonably construe the language to prohibit Section 7 activity.” Cintas Corporation, 344
NLRB No. 118 sl. Opinion p. 1, (2003). Here, the language of Respondent’s rule clearly meets
this test, in that employees could certainly “reasonably construe” the language to prohibit the
protected Section 7 activity of discussing wages and benefits with one another. According to the
testimony, the rule is aimed at Respondent’s employees who have access to personnel
information in the course of their employment. The problem is that it does not make that point
clear.
The rule in question begins by flatly stating that “employee compensation, benefits,
personnel records and information are confidential.” Thus, without qualification or ambiguity
employees are put on notice that all such information is regarded as “confidential by the
Employer.” Moreover the paragraph in question then goes on to state that only employees who
“need to know” such information “in the course of employment” should even access it and that
employees “should not disclose this information in the course of employment to any other
Windstream employee unless that employee has a need to know such information in the course
of employment. This makes it clear that any other disclosure of compensation and benefit
information other than to those who have a need to know related to the course of their
employment, i.e. to their job duties, is prohibited. Clearly this language is so broadly stated that
employees could and will construe them to prohibit discussions of wages and working
conditions with others. See University Medical Center, 335 NLRB 1318 (2001), and Flamingo
Hilton-Laughlin, 330 NLRB 287 (2000). Moreover, it should be noted that the cover letter from
COO Paglusch accompanying issuance of the Windstream “Working with Integrity” guidelines
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included an admonition that a “zero tolerance” disciplinary policy would be applied to any
violation of the policies, thus, imposing an even greater chill on employees’ exercise of the
Section 7 communication rights in this regard.
Though Respondent argues to the contrary, just reading the original rule and then the
rule as modified in March 2007, make it clear that an ambiguity does exist. I find that the original
rule does violate Section 8(a)(1) of the Act.
Having made this finding, I note that the purpose of Respondent’s rule as articulated at
the hearing is reasonable, lawful, and certainly was not intended to coerce, restrain or interfere
with rights guaranteed by Section 7 of the Act. See Lafayette Park Hotel, supra; International
Business Machines Corp. 265 NLRB 638 (1982). I believe that the rule, as modified in March
2007, does not violate Section 8(a)(1) of the Act. The modification clears up the ambiguity of the
original rule and clearly identifies the target audience of the rule and makes it clear as well that
employees can discuss among themselves personnel information so long as that information did
not come into their possession through access to Company records in the course of their job
duties. Had the Respondent communicated the modification to its employees in the same
manner as it did the original rule, I would have recommended dismissal of this Complaint.
However, as it did not, the chilling effect of the original rule has not been cured. Thus, I will
recommend that as a remedy, Respondent be ordered to disseminate to employees the
modified rule in an e-mail to them by the current Chief Operating Officer of the Company. This
e-mail should note the changes made to Section 10 of the “Working with Integrity” guidelines. I
do not believe any other action is necessary to effectuate the policies of the Act.
Conclusions of Law
1. Respondent, Windstream Corporation, is an employer within the meaning of Section 2
(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent’s promulgation and maintenance of the portion of its “Working with
Integrity” guidelines which prohibits all of Respondent’s employees from disclosing their
compensation, benefits, personnel records or information or discussing them with any other
party violates Section 8(a)(1) of the Act.
4. The unfair labor practice committed by Respondent affects commerce within the
meaning of Section 2(6) and (7) of the Act.
5. Respondent’s rule referenced above, as modified in March 2007, does not violate the
Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent has already rescinded the rule found to have been in violation of the Act
and has modified the rule to read in a manner that I find to be lawful. However, it did not give
employees notice of the modification in the same manner that it did the original, unlawful rule.
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Respondent should be ordered to give notice of the modified rule to employees in an e-mail
from the Chief Operating Officer of the Company as it did with the original rule. This e-mail
should note the changes made to Section 10 of the “Working with Integrity” guidelines. I do not
deem it necessary to take any further affirmative action.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The Respondent, Windstream Corporation, Little Rock, Arkansas, its officers, agents,
successors, and assigns, shall
Cease and desist from:
a. Promulgating and maintaining the portion of its “Working with Integrity”
guidelines which prohibits all of Respondent’s employees from disclosing
their compensation, benefits, personnel records or information or
discussing them with any other party.
b. In any like or related manner, interfering with, restraining or coercing
employees in the exercise of rights guaranteed by Section 7 of the Act.
Take the following affirmative action:
a. Within 14 days of the Board’s Order, have the Company’s Chief Operating
Officer e-mail all of the Company’s employees notice of the March 2007
modification of the portion of the “Working with Integrity” guidelines set
forth as Section 10 Customer and Employee Privacy in the guidelines and
relating to the employees the changes made from the original Section 10.
b. Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. August 9, 2007
____________________
Wallace H. Nations
Administrative Law Judge

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the 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.
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