The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 23, 2018 Decided June 19, 2018
No. 17-1158
CELLCO PARTNERSHIP, D/B/A VERIZON WIRELESS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
COMMUNICATIONS WORKERS OF AMERICA,
INTERVENOR
Consolidated with 17-1165
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Arthur G. Telegen argued the cause for petitioner. With
him on the briefs were Robert A. Fisher and N. Skelly Harper.
Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. On the brief were
Peter B. Robb, General Counsel, Linda Dreeben, Deputy
Associate General Counsel, Usha Dheenan, Supervisory
Attorney, and Jared D. Cantor, Attorney.
2
Before: GARLAND, Chief Judge, PILLARD, Circuit Judge,
and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: It is rare that we reject
a Labor Board finding based simply on a lack of substantial
evidence. This is such a case. Here the Board accepted an
ALJ’s finding that Petitioner Verizon’s discharge of an
employee for lying during an investigation was a pretext to rid
the company of a prominent union supporter. We conclude that
there is insufficient probative evidence to support the finding.
We also reject the ALJ and Board’s alternative finding that even
if she did lie, it was within the context of an inquiry into
protected activity, and therefore immune.
I.
Bianca Cunningham was a long-time employee of Verizon
who was active in a successful union campaign for the
Communication Workers of America at six Verizon Wireless
stores in Brooklyn. She worked at the Bensonhurst store, and
served on the union’s bargaining committee. Victory Eshareturi,
on the other hand, worked at the Bay Ridge store under
supervisor Graves. On the day in question, May 21, 2015,
Eshareturi and Graves had a falling out, leading a fearful
Eshareturi to seek advice from Cunningham during her lunch
break. (Cunningham had previously advised Eshareturi.) She
first called Cunningham, then texted her asking whether she
should ask District Manager Broomes, Graves’ supervisor, for
permission to leave. Cunningham agreed, but said, “I’m
speaking to HR right now so that will speed it up.” Eshareturi
called Broomes, who diverted the conversation into whether
3
Eshareturi would prefer working in a different store. She ended
the call by saying she had “to clock back in to work.”
Meanwhile, Cunningham texted, “Don’t worry about Ryan
[Broomes].” But Eshareturi responded that Broomes had not
given her permission to leave. Cunningham replied, “You can
leave, just make sure you e-mail me.” Eshareturi then clocked
out without permission from anyone in management.
Graves then alerted Broomes that Eshareturi had left
without informing anyone else. Broomes tried to reach
Eshareturi, leaving a voicemail directing her to call him back,
but she didn’t – although she did text Cunningham about
Broomes’ call and sent Cunningham an e-mail account of the
day’s events. Finally, the next evening, May 22, Eshareturi
answered another Broomes call, explaining that the situation
with Graves had made her uncomfortable and that Cunningham
had told her that HR had given her permission to leave.
Broomes was surprised, but Eshareturi reiterated her
understanding.
That day, Verizon’s Director of Labor Relations Ulrich and
O’Neil, the union’s representative, discussed the matter. O’Neil
was told that Eshareturi would be placed on paid leave until the
issue could be resolved. Verizon started an investigation to
determine why Eshareturi had left work without authorization
and what should be done about it. The parties agree that such an
investigation is normal.
On May 27, Eshareturi told Verizon Human Resources
employees that Cunningham said it was okay for her to leave
work. While Eshareturi did not know from whom Cunningham
had gotten that permission, she recalled that Cunningham “said
she was going to reach out to people to get advice on whether I
could go or not,” and that Cunningham had mentioned HR.
Eshareturi also said numerous times that she had texted with
4
Cunningham that day, but that she couldn’t remember if the two
had talked over the phone.
Verizon then sought to verify this account with
Cunningham. Cunningham, however, said that they had only
spoken by phone and had not exchanged any substantive text
messages. Further, she flatly denied telling Eshareturi she could
leave work:
Verizon: Did you ever tell her . . . to go home?
Cunningham: No.
Verizon: Or that somebody else told you to tell her to go
home?
Cunningham: No.
...
Verizon: To our understanding . . . from the conversation
that was told to Ryan [Broomes], he mentioned that he was told
from Victory [Eshareturi] that you said that you got approval
from HR, so I was just wondering did you know where that
would come from?
Cunningham: That was probably a misunderstanding.
...
Verizon: Ok, so never at one time during that conversation
did you mention that she should go home or?
Cunningham: She asked me my personal opinion . . . . That
was my personal opinion, that wasn’t like a direction. I was just
saying definitely if I felt threatened or unsafe in my
environment, I would go home.
Verizon: But your direction was to reach out to Ryan?
Cunningham: Correct.
This interview troubled Verizon officials, as it directly
contradicted Eshareturi’s account of the events that day. Five
days after this first interview, they called Eshareturi back and
questioned her at length about her story. Verizon repeatedly
5
asked Eshareturi to voluntarily share the text messages, which
were on her personal phone, in order to validate her story.
Eshareturi declined. However, when Cunningham was
interviewed after Eshareturi, she again denied that any
substantive conversation had occurred over text, stating that “[i]t
wasn’t conversations, it was quick stuff like – I’ll call you back
or give me a few minutes.” Cunningham also declined to share
the text messages with Verizon.
Verizon believed Cunningham. During the ten days after
this second interview, the company came to the conclusion that
Eshareturi had been dishonest during the investigation about
whether she had received permission to leave and the nature of
her communications. Since she had been clearly reminded at the
outset of each interview of the provision in its Code of Conduct
requiring honesty during investigations, Verizon decided, in
mid-June, to terminate Eshareturi. The company waited until
the next bargaining session, in July, to inform the union of this
decision, so that it could complete an unrelated investigation and
deal with both matters in a single meeting. And then, to comply
with an agreement that Verizon had reached with the union
establishing a protocol for all potential terminations (a process
they called an “Alan Ritchey” meeting), the two parties arranged
to meet two weeks later, on August 6.
Through her union involvement, Cunningham found out
that Eshareturi was facing termination for dishonesty about their
interaction. She then decided to reveal the text messages to the
company at the Alan Ritchey meeting, and did so after Verizon
stated that it would be firing Eshareturi for her dishonesty.
When they saw the messages, the Verizon employees were taken
aback. Ulrich, for example, testified that the revelation took him
completely by surprise:
6
I was shocked. It had been several weeks that we had
seen one story from Victory [Eshareturi] and a story
from Bianca [Cunningham] and I had credited the story
that Bianca was telling. In fact, the company credited
that story and it wasn’t until this conversation and this
sharing of the text messages that that story had
changed. And I had no anticipation that there would be
text messages shared, that the perception that the
company held going into that bargaining session would
change in such a way.
After seeing the texts, it became clear that the primary
aspects of Eshareturi’s account that had caused concern for
Verizon – the statements that Cunningham had mentioned HR,
that she had given Eshareturi permission to leave, and that the
exchange had taken place via text message – were all true.
Further, they contradicted Cunningham’s previously believed
account. And Cunningham had not only received the same Code
of Conduct integrity reminders at the beginning of her
interviews that Eshareturi had received, but also had jeopardized
Eshareturi’s employment. Verizon thus turned its inquiry
toward Cunningham’s truthfulness.
Over the next two and a half weeks, Verizon conducted
several interviews with Cunningham and Eshareturi, along with
its own internal deliberations, in an attempt to understand why
Cunningham had not provided an accurate account. In a
meeting on August 11, Cunningham asserted again that most of
the substantive interaction with Eshareturi had occurred over the
phone – but she refused to provide phone records to back up this
assertion.1 Ultimately, Verizon Human Resources decided on
1
Though only one call lasting two minutes had occurred between
the two employees before all of the texting, Verizon did not yet have
proof of this fact.
7
August 23 that Cunningham had violated the Code of Conduct
because she “lied multiple times” during the interviews leading
to Eshareturi’s Alan Ritchey meeting and “made a knowingly
false statement” during the August 11 interview. Broomes,
working with Human Resources, recommended that
Cunningham be terminated for this Code of Conduct violation,
and his immediate superior, director of retail sales Wendy
Taccetta, testified that this termination was approved “[f]or
lying during the investigation.” Cunningham was informed the
next day – eighteen calendar days after she had revealed the text
messages that narrowly averted Eshareturi’s firing – and was
subsequently terminated following a procedural Alan Ritchey
meeting. Eshareturi, on the other hand, received a Final Written
Warning from Broomes admonishing her for “leaving in the
middle of your shift without permission or notification to
management (including failing to call me back before leaving
your shift)” and for “subsequently ignoring my multiple calls on
5/21 and ignoring my request to call me back.”
On August 12, the day after Cunningham’s interview, she
texted to Graves, “Hi, Graves, its Bianca – these people are on
a witch hunt.” He responded, “I’m sure they are – they
definitely have a hit list and will use anyone who’s down for it.”
On August 25, the Union filed a charge with the Board, and
the General Counsel issued a complaint. Significant evidentiary
disputes occurred during the hearing. Ultimately, the ALJ held
that Verizon had violated Section 8(a)(3) of the Act in firing
Cunningham. The Board affirmed the ALJ, though it disclaimed
8
reliance on several of his findings in a footnote.2 This petition
followed.
II.
Petitioner’s challenge to the ALJ’s opinion, as adopted by
the Board, focuses on its claim that the opinion’s finding that
Cunningham’s discharge was motivated by anti-union animus
was not supported by substantial evidence. To be sure,
Petitioner alternatively argues following the Wright Line3
structure that, even if the General Counsel had produced
evidence that it had acted with a discriminatory motive, it could
prevail anyway because it has shown that it would have fired
Cunningham in any event. But it is unnecessary for us to
consider the alternative argument because we conclude that
there is simply a lack of substantial evidence that the discharge
was motivated by anti-union animus.
2
The evidentiary disputes centered on two exhibits, GC-33 and
GC-49, which Verizon asserts were protected by attorney-client
privilege but were inadvertently produced during discovery. GC-33
is a draft of the administrative form that was ultimately used to
terminate Cunningham. GC-49 is a chain of emails between Ulrich
and Verizon’s lawyers, in which the latter provide legal advice about
the termination process. The ALJ admitted these to the record and
relied upon them in his analysis, and Verizon hotly challenged that
decision before us. The ALJ noted that his conclusion would obtain
even without GC-49, and the Board chose not to rely on this contested
evidence. The Board also disclaimed reliance on one piece of
evidence – a handbook that was found in a separate case to contain
unrelated violations – that the ALJ used to justify a finding of animus
in the first step of its Wright Line analysis.
3
Wright Line, 251 NLRB 1083 (1980) established a two-step
framework that is by now familiar to us. See, e.g., Ozburn-Hessey
Logistics, LLC v. NLRB, 833 F.3d 210, 218 (D.C. Cir. 2016).
9
The ALJ relied on several pieces of evidence to support a
finding of animus, only three of which were relied upon by the
Board.4 First, he cited the month-long series of texts between
Graves and Cunningham – particularly Graves’ mention that
Cunningham was on a “hit list.” This reference to a figurative
“hit list” is not probative of anti-union animus, however, as
Graves expressly testified that the list “wasn’t union or non-
union.” The ALJ failed to identify any record evidence – and
we are not aware of any – that rebuts this significant caveat.5 In
any event, we have held that a stray comment by a junior
supervisor who plays no part in a decision to discharge an
employee, without more, is of little significance in measuring
evidence of anti-union animus.6 MECO Corp. v. NLRB, 986
F.2d 1434, 1437 (D.C. Cir. 1993). It is undisputed that Graves
was not involved in any way in the decision to discharge
Cunningham.
4
The Board accepted the ALJ's recommended finding without
passing on the question whether the two exhibits that Petitioner
claimed were covered by attorney-client privilege were properly
introduced. (More about that later.)
5
Indeed, when asked to support the only assertion within the text
conversations that did refer to the union – that Verizon management
packed Cunningham's store with outspoken union supporters –
Graves explained that his only source for that view was “Mark,” a
union shop steward. This sort of hearsay from a union official cannot
be the basis for an animus finding.
6
Of course, if Graves had testified, based on his insight as a
manager, that Verizon had actually maintained a hit list of union
supporters (whether literal or figurative), that would be another matter.
But that would go well beyond the type of isolated remarks we see
here or in other precedents. See MECO, 986 F.2d at 1435, 1437;
Hudson, Inc., 275 NLRB 874, 874-75, 878 (1985).
10
The next piece of evidence on which the ALJ relied is quite
puzzling. He ascribed a bad motive to the company because of
the “length and breadth of the investigation into the events of
May 21.” It is true that the company proceeded carefully. After
all, it knew that Cunningham was active in the union, so her
discharge would be controversial. But the first delay was for the
Alan Ritchey meeting in accordance with the company’s
agreement with the union to discuss potential discipline – and at
that point, it was Eshareturi, not Cunningham, who was the
subject. It was not until Cunningham revealed the texts at the
August 6 meeting that the company’s focus turned to her
truthfulness during the investigation. In short, it was
Cunningham herself who was responsible for the extensive
delay.7
There remains only the ALJ’s evaluation of the company’s
treatment of other employees in similar situations. The ALJ
determined that Verizon’s treatment of Cunningham was out of
line with its treatment of other employees the General Counsel
asserted were dishonest in circumstances materially equivalent
to Cunningham’s but were not fired, suggesting that
Cunningham was a special target. Under the Wright Line
framework, that sort of evidence can discharge the General
Counsel’s burden of showing anti-union animus. See Fort
Dearborn Co. v. NLRB, 827 F.3d 1067, 1075 (D.C. Cir. 2016).
The company, for its part, produced evidence that eight
employees had been fired for dishonesty during investigations,
7
The ALJ also pointed for support to evidence – in another case
– involving the company’s Code of Conduct. See Cellco Partnership
d/b/a Verizon Wireless, 365 NLRB No. 38 (2017). The Board,
realizing that was unrelated, excised that finding.
11
along with unrebutted testimony that they would not have been
discharged if they had not lied.8
Here, however, the General Counsel’s evidence is woefully
inadequate. In one case, the ALJ concluded that a manager who
was disciplined had lied during an investigation notwithstanding
the company’s conclusion – at the time – that she
misremembered rather than lied. But the issue is not how the
ALJ would have evaluated an individual’s truthfulness in a case
he didn’t hear. The only question is whether the company
excused someone it reasonably believed was lying.
Similarly, the ALJ determined that an employee who had
claimed to lose company property had actually lied. But the
record reveals that the company believed him when he explained
he had inadvertently left it in a traded-in car; the employee was
cited only for his misuse of company property, not for
dishonesty. And finally, the ALJ pointed to evidence that a
group of employees who engaged in misconduct and lied during
a subsequent investigation were not fired, but the investigation
revealed they were directed to engage in the misconduct by
managers – and the managers were fired.
The ALJ did not find that Petitioner inconsistently treated
instances of employee dishonesty during investigations. He
simply put himself in the hypothetical position of management
to determine whether he thought he would have concluded
differently about whether the underlying dishonesty existed. To
be sure, if in the prior cases the company was obviously calling
a spade an ax to avoid applying a uniform policy, that would be
one thing. But we do not see anything like that; the only
8
The ALJ dismissed that counterfactual hypothesis as
“speculative” and “self-serving.”
12
legitimate question for the ALJ was whether the company
applied the policy reasonably consistently.
To make matters even worse, the ALJ examined other
disciplinary cases – not involving dishonesty during an
investigation – and opined the targets should have been
discharged because the employees’ conduct was (in his view)
even worse than lying during an investigation. Here the ALJ is
unabashedly taking on the company’s business judgment chair
– and that has been repeatedly held to be improper. See MECO
Corp., 986 F.2d at 1438; Sutter East Bay Hospitals v. NLRB,
687 F.3d 424, 435-36 (D.C. Cir. 2016).
It is clear that Verizon has made a legitimate business
judgment – a not unusual one – that an employee lying during
an investigation is a serious threat to management of the
enterprise. The Board has no warrant to challenge that decision.
Indeed, another example of the company’s policy can be found
in the facts of this very case. After all, Petitioner had
determined to discharge Eshareturi, an employee with no known
particular union sympathies, before Cunningham revealed the
evidence that vindicated Eshareturi and turned the investigation
toward herself.
The Board’s brief argues that its reading of the ALJ’s
opinion suggests that he didn’t believe Cunningham actually
lied, but only “misremembered.” Examining the relevant
dialogue, we think that conclusion is farfetched. But in any
event, the relevant question again is not the validity of the ALJ’s
business judgment but only whether the company’s judgment
was reasonably consistent. Here, however, just as in Sutter East
Bay, “[r]ather than applying the Wright Line test by examining
[Verizon]'s reasonable beliefs and how those beliefs might have
13
informed [its] disciplinary decisions, the ALJ simply reached
factual conclusions about what happened.” 687 F.3d at 436.9
Although the Board did not rely at all on the ALJ’s reading
of company documents that were inadvertently turned over and
which the Petitioner claimed were covered by attorney-client
privilege, if we thought they constituted “smoking guns,” we
might be inclined to remand for the Board to resolve the thorny
question whether the company waived the privilege by turning
them over to the General Counsel. But we don’t regard those
documents of significance. The ALJ, drawing upon them, made
much of the timing of the announced decision and who in
management was or was not involved. But to us that simply
reflects the care and deliberateness that would normally
accompany a controversial decision. It is really not relevant to
the core issue. The ALJ also focused on the advice given by one
lawyer that the company should be aware that even after
discharge, Cunningham could remain on the bargaining
committee as evidence of anti-union animus. But we think that
is unwarranted. After all, it is undisputed that the company
knew Cunningham was active in the union. It is not unlawful
for Verizon to consider the collateral consequences of its
personnel decisions, and there is no evidence in this exchange
that Cunningham’s union activity played a role in her
termination. It therefore does not, by itself, reflect animus
against Cunningham.
* * *
9
Chairman Miscimarra openly stated that his decision not to
reach the ALJ's argument in the alternative (which we address below)
rested on his own assessment that Cunningham had not lied. This
repeats the same error.
14
The ALJ alternatively concluded that even if Cunningham
lied during the investigation, her discharge violated 8(a)(3)
because the company’s questions were probing into Section 7
protected activity – her discussions with Eshareturi. Therefore,
notwithstanding the company’s policy, she had no obligation to
be honest. The implication of that proposition would undermine
any company’s – not necessarily only a unionized one10 – ability
to institute a policy like Petitioner’s. If an employee were
suspected of misbehavior and was questioned, he or she could
respond, “I spoke to another employee, perhaps a union official,
and therefore I have no obligation to answer any questions.”
Of course, employees are not obliged to answer truthfully
if an employer is really seeking to probe into protected actions
as, for instance, in our recent case, United Services Automobile
Ass’n v. NLRB, 387 F.3d 908 (D.C. Cir. 2004). In that case, an
employee distributed literature criticizing the company during
non-working time – an activity protected under Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945). The company
questioned the employee as to who was distributing the
literature and under what circumstances. She resisted
answering truthfully and was subsequently fired. There, the
employer’s questioning was intended to enforce an illegal no-
distribution policy. Here, by contrast, it cannot be thought that
the company was illegally concerned as to why an employee left
work without authority.
The key, then, is the employer’s motive. See United
Services, 387 F.3d at 917. Here there can be no question that the
company was entitled to inquire into the reason an employee
walked off the job without management permission and
10
Concerted activity, of course, can occur even outside the
context of a unionized business. See, e.g., Inova Health System v.
NLRB, 795 F.3d 68, 74 (D.C. Cir. 2015).
15
disobeyed instructions to contact her manager. There is no
indication here that Petitioner was doing any more than
conducting a valid inquiry with no motive to pry into or interfere
with protected activities. To the contrary, Eshareturi was
relying on her conversation with Cunningham as a defense,
rather than trying to protect it from disclosure to management.
Indeed, if Cunningham had admitted that she told Eshareturi to
leave, there is no indication that Cunningham would have been
punished, let alone discharged.
We therefore reject the ALJ’s alternative holding that
Verizon’s questions unlawfully pried into protected activity.
Because, again, we do not find evidence to support a finding of
anti-union animus, we grant Verizon’s Petition for Review and
deny enforcement of the Board’s order.
So ordered.