Windstream Corp.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352 NLRB No. 9 44 Windstream Corporation and International Brother- hood of Electrical Workers, AFL–CIO, CLC on behalf of its affiliated Local Unions 463, 1189, 1507, 1929, 2089, and 2374. Case 6–CA–35290 February 7, 2008 DECISION AND ORDER BY MEMBERS LIEBMAN AND SCHAUMBER On April 9, 2007, Administrative Law Judge Michael A. Marcionese issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions and to adopt the recommended Order2 as modified below.3 1 We agree with the judge that the allegation that the Respondent unilaterally implemented a “zero tolerance” ethics policy in violation of Sec. 8(a)(5) is not appropriate for deferral pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971), and its progeny. In declining to defer under Collyer, we rely in particular on Arvinmeritor, Inc., 340 NLRB 1035 fn. 1 (2003), where the Board quoted from American Commercial Lines, 291 NLRB 1066, 1069 (1988), which held, in pertinent part: [W]hen, as here, an allegation for which deferral is sought is inextri- cably related to other complaint allegations that are either inappropri- ate for deferral or for which deferral is not sought, a party’s request for deferral must be denied. We find that the unilateral implementation allegation that the Respon- dent seeks to defer is inextricably related to the direct dealing allegation covering the same subject matter. The Respondent did not request that the direct dealing allegation be deferred. Accordingly, we conclude that deferral of one aspect of the parties’ dispute to the grievance-arbitration machinery would, under these circumstances, be inappropriate. Member Schaumber adheres to his position that the Board should apply a “contract coverage” test rather than the “clear and unmistakable waiver” standard. See California Offset Printers, 349 NLRB 732, 737 (2007) (Member Schaumber, dissenting). However, none of the parties have urged the Board to apply that test here and no Board majority currently exists to adopt the contract coverage standard in any event. Accordingly, Member Schaumber joins in adopting the judge’s finding that the Respondent violated Sec. 8(a)(5) by unilaterally implementing its “zero tolerance policy.” 2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Members Liebman and Schaumber constitute a quorum of the three- member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 3 Insofar as unit employees may have been terminated as a result of the unlawfully adopted zero tolerance policy, the Respondent is enti- tled, during the compliance stage, to demonstrate that it nevertheless would have discharged the employees under its preexisting ethics pol- icy, thereby avoiding any backpay and reinstatement obligation. See ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Wind- stream Corporation, Meadville, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). “(b) In the event any unit employee has been termi- nated as a result of the unilaterally adopted zero tolerance policy, and that employee would not have been termi- nated under the preexisting lawful policy, take the fol- lowing actions: offer the employee full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights or privileges previously en- joyed; make him whole for any loss of earnings and other benefits suffered as a result of his discharge; and remove from its files any reference to the unlawful discharge and notify the affected employee in writing that this has been done and that the discharge will not be used against him in any way.” 2. Substitute the attached notice for that of the admin- istrative law judge. 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 vio- lated 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. Great Western Produce, Inc., 299 NLRB 1004, 1006 (1990). We have modified the judge’s proposed Order and proposed notice accordingly. Member Schaumber notes that the judge’s recommended Order in- cludes a provision requiring the Respondent to post the notice to em- ployees on its intranet “with a link sent by electronic mail to [unit] employees.” In his view, such a remedy may be appropriate where it is shown, through evidence adduced at the hearing, that the respondent regularly communicates its employment policies to employees through electronic mail. While it is not clear that this issue was fully litigated at the hearing, the judge appears to have found that it was, and the Re- spondent has not excepted to that finding. WINDSTREAM CORP. 45 WE WILL NOT unilaterally make changes to your wages, hours, and terms and conditions of employment without notifying your bargaining representative in advance and affording your local union an opportunity to bargain re- garding such changes. 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 zero tolerance policy for viola- tions of the “working with integrity” guidelines, that was announced in July 2006, for employees in the bargaining units represented by Local Unions 463, 1189, 1507, 1929, 2089, and 2374 of the International Brotherhood of Electrical Workers, AFL–CIO, CLC. WE WILL offer any employee in the above units who was terminated pursuant to the unilaterally implemented zero tolerance policy, and who would not have been ter- minated under the preexisting policy, reinstatement to his prior position without loss of seniority or any other rights or privileges previously enjoyed, and WE WILL, make him whole for any loss of earnings and other benefits suffered as a result of the termination, and WE WILL, remove from our files any reference to such termination and notify the employee in writing that this has been done and that the termination will not be used against him in any way. WE WILL notify your Local Union before making any changes to your wages, hours, and terms and conditions of employment and, upon request, bargain with the Local Union before implementing any changes. WINDSTREAM CORPORATION Barton Meyers, Esq., for the General Counsel. William C. Moul, Esq., for the Respondent. Jonathan D. Newman, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in Pittsburgh, Pennsylvania, on February 1, 2007. International Brotherhood of Electrical Workers, AFL– CIO, CLC (the Union), on behalf of its affiliated Local Unions 463,1 1189, 1507, 1929, 2089, and 2374, filed the charge on August 21, 2006,2 and amended it on August 25 and January 8, 2007. Based on this charge, an amended complaint issued on January 9, 2007, alleging that Windstream Corporation, the Respondent, violated Section 8(a)(1) and (5) of the Act by uni- laterally announcing, on July 26, the implementation of a new “zero tolerance policy” regarding all issues of integrity and ethics. This conduct is also alleged as direct dealing in viola- tion of Section 8(a)(1) and (5) of the Act. 1 The original caption in this case identified this party as Local 453. I have corrected the caption to reflect the correct Local Union number as evidenced by the collective-bargaining agreement in evidence. 2 All dates are in 2006, unless otherwise noted. On January 17, 2007, the Respondent filed its answer to the amended complaint in which it essentially admitted that it made the announcement alleged to be unlawful and that it did so without providing the Union with advance notice and an oppor- tunity to bargain. Respondent denied that it dealt directly with its employees and further denied that its announcement of a zero tolerance policy violated the Act asserting, inter alia, that the alleged change was not substantial enough to warrant bar- gaining, that the Union had waived any right it had to bargain over the subject by contract and practice, that none of the Local Unions had requested bargaining about the subject, and that the complaint should be deferred to the parties’ contractual griev- ance and arbitration procedures. The Respondent also asserted that the Charging Party did not have standing to file the charge on behalf of the Local Unions with whom the Respondent had a contractual relationship. On the entire record,3 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Respondent, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation headquartered in Little Rock, Arkansas, is engaged in the business of providing voice, data and video telephonic communication services. It provides such services through wholly-owned subsidiaries, including Wind- stream Kentucky, Inc., Windstream New York, Inc., Western Reserve Telephone Company, Windstream Western Reserve, Inc., and Windstream Pennsylvania, Inc., with facilities in vari- ous states, including Pennsylvania. The Respondent and its subsidiaries annually purchase and receive, at their respective facilities, goods valued in excess of $50,000 directly from points outside their respective home states. The Respondent admits and I find that it, and each of its subsidiaries involved in this proceeding, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Re- spondent further admits that the Union and its affiliated Local Unions are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Evidence The Respondent was created on July 17, 2006, when Alltel Corporation spun off its wireline operations in order to focus on its wireless business.4 The Respondent and its subsidiaries retained all of the Alltel employees who previously worked in the wireline business, recognized the various unions that had represented these employees for many years, and adopted the existing collective-bargaining agreements. This case involves 3 After the close of the hearing, and before filing briefs, the General Counsel filed a motion to consolidate a newly-issued complaint in another case involving the same parties with this case. By Order dated March 14, 2007, I denied the motion. 4 The new entity also included wireline employees previously em- ployed by Valor Corporation, another telecommunications company which Alltel had acquired. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 46 six bargaining units that are represented by six locals of the IBEW. The 363 employees in these units constitute a fraction of the 8000 employees that the Respondent employs nation- wide.5 The bargaining units involved in this case are: The Kentucky Unit All tellers, cable splicers, customer service technicians, facility persons, line workers, business system technicians I, equipment installer/repairmen, network technicians, ser- vice activation technician II, service activation technician I, customer engineer data application, employed by Wind- stream Kentucky West, Inc. at its Kentucky facility, ex- cluding guards, professional employees and supervisors as defined in the Act and all other employees. This unit had been represented by Local 463 and rec- ognized by Kentucky Alltel, Inc. since August, 2002 when Alltel acquired Verizon’s Kentucky operations. The col- lective bargaining agreement in effect when the Respon- dent began operations was effective through March 13, 2007. The New York Unit All employees of the Fulton District, Jamestown Dis- trict, Regional Office District and State Office District of Windstream New York, Inc., excluding all engineers, pro- fessional employees, managerial employees, confidential employees, guards and supervisors as defined in the Act. This unit had been represented by Locals 1189 and 2374 and recognized by Alltel New York, Inc. for many years. The collective bargaining agreement in effect when the Respondent began operations was set to expire on Oc- tober 31. While this case was pending, the parties reached agreement on a new collective bargaining agreement.6 The Ohio Unit All employees in the Northern Service Area of Wind- stream Western Reserve, Inc., excluding all traffic de- partment employees, professional employees, managerial employees, confidential employees, engineers and guards, and supervisors as defined in the Act. This unit had been represented by Local 1507 and rec- ognized by the Western Reserve Telephone Company, a subsidiary of Alltel, for many years. The collective bar- gaining agreement in effect when the Respondent began operations is effective through May 15, 2007. The Western Reserve Central District Unit All employees of Western Reserve Telephone Com- pany (Central District) except confidential employees, pro- fessional employees, managerial employees, engineers, guards and supervisors as defined in the Act. This unit had been represented by Local 1507 and rec- ognized by Alltel’s Western Reserve subsidiary for a 5 A much larger group of employees, approximately 1600, are repre- sented by the Communications Workers of America (CWA). 6 The Respondent proffered evidence of certain correspondence be- tween the parties which occurred in the context of these negotiations. I shall address that evidence later in this decision. number of years. The collective bargaining agreement in effect when the Respondent began operations is effective through May 15, 2007. The Waynesburg Unit All employees of Windstream Pennsylvania, Inc. in its Waynesburg, Pennsylvania service area, excluding engi- neers, confidential employees, guards, and professional employees and supervisors as defined in the Act. This unit had been represented by Local 1929 and rec- ognized by Alltel Pennsylvania, Inc. for a number of years. The collective bargaining agreement in effect when the Respondent began operations is effective through No- vember 18, 2008. The Meadville Unit All employees employed by Windstream Pennsyl- vania, Inc. in the Meadville, Pennsylvania service area, excluding all confidential employees, professional em- ployees, engineers, guards and supervisors as defined in the Act. This unit had been represented by Local 2089 and rec- ognized by Alltel Pennsylvania, Inc. for a number of years. The collective bargaining agreement in effect when the Respondent began operations is effective through June 18, 2007. On July 26, shortly after the Respondent began operations, it distributed to all its employees, including those in the above- bargaining units, Windstream’s working with integrity guide- lines. The distribution was done electronically via an e-mail from the Respondent’s chief operating officer, Keith Paglusch. Employees could access the guidelines by a link in the e-mail. With the exception of the introductory letter from Jeffrey R. Gardner, Respondent’s president and chief executive officer, the guidelines were identical to a document that Alltel had dis- tributed to employees in March, before the spin-off was com- plete. The guidelines were also the latest iteration in a series of documents publishing the employer’s code of conduct going back at least to 1978. There is no dispute that all of these pro- nouncements, whether issued by Alltel or one of its predecessor companies, were conveyed to union and nonunion employees alike without any advance notification to the various Unions representing the unionized employees.7 The series of rules or codes of conduct in evidence address a number of topics relating to ethical work practices. The most recent versions, distributed by Alltel in March and by the Re- spondent in July, contain the same language regarding the con- sequences of a violation of these guidelines: 7 The Respondent offered evidence that Alltel followed the same ap- proach when it distributed workplace violence and workplace harass- ment policies to employees in 2000 and 2003, respectively. Although Alltel did not provide the local unions with advance notice and an opportunity to bargain before implementing these policies, neither policy contained “zero tolerance” language similar to that at issue here. On the contrary, these policies, similar to Alltel’s ethics and integrity policies, advised employees they would be subject to discipline “up to and including termination” if they engaged in violence or harassment. WINDSTREAM CORP. 47 Compliance with applicable laws and these guidelines will be strictly enforced. If you fail to comply with them, you will be subject to corrective action, up to and including termination of employment [emphasis added]. The General Counsel and the Charging Party do not take issue with the Respondent’s distribution of the guidelines them- selves. Rather, the crux of this case turns on statements made by Paglusch in his e-mail transmitting the guidelines to the employees, and in Gardner’s introduction to the guidelines.8 Paglusch, in his e-mail, emphasized the importance of ethics and integrity to the Respondent’s corporate culture. His e-mail contained the following statements to illustrate the new com- pany’s approach to this subject: . . . [W]e will hold each other accountable for a zero tolerance policy regarding lying, cheating and stealing. Implementation of this policy makes it very clear regarding the integrity that we will exhibit as a new company . . . . A few examples of violations of the zero tolerance policy are: • Falsification of company records, in- cluding time and expense reporting. • The use of company property outside of normal business practice. • Not being truthful in communications within the company, or with outside contacts such as suppliers and cus- tomers. • Any inappropriate use of company funds or cash receipts. While this is a short list for this category, a more com- prehensive description of violations will be provided in the Working with Integrity on-line course that will be avail- able in September. . . . Windstream has a need for creative, talented and dedi- cated team members. However, a zero tolerance policy on ethics means that if individuals are found to be in viola- tion, their employment will be terminated, regardless of previous years of service or past performance. There is no dispute that none of the previous or existing Alltel guidelines or rules of conduct contained such “zero tolerance” language. As referenced in Paglusch’s e-mail, a training course was in- stituted about September 21. The on-line training program involved, inter alia, employees reading the guidelines on-line and affirming their “commitment to the standards described in the Working with Integrity program” and their understanding 8 The General Counsel contends that Gardner’s letter was included with the version of the guidelines distributed in July. The Respondent, in amending its answer at the hearing, asserts that the Gardner letter was distributed on September 21, when the Respondent initiated an electronic training program for its employees on the guidelines. Nei- ther party was able to establish through testimony or documents the precise date the letter was communicated to employees. Since it is the General Counsel’s burden to prove all allegations of the complaint and no evidence was offered to establish the earlier date, I shall assume for purposes of deciding this case that the Gardner letter was not distrib- uted until September 21. that “a violation could be the basis for disciplinary action, in- cluding, if appropriate, termination of employment.” When an employee clicked the “YES” button, he would be recorded in company records as successfully completing the training. A record of employees who clicked the “No” button in response was also recorded and maintained in their personnel folder. If an employee did not click either button, his name would appear on a report of employees who had not completed training that would be sent to managers for further action, i.e., reminding the employee of the need to complete the training. There is no dispute that this is the same training program and procedures that Alltel had used when it distributed the March version of the integrity guidelines. Alltel had been utilizing this approach to train employees and electronically record their response to the request for affirmation since at least 2003. The letter from CEO Gardner, which appeared as the first page of the guidelines no later than September 21, when the training program started, reiterates Paglusch’s strict approach to ethical violations. In the second paragraph of his letter, Gard- ner tells the employees: It is important that Windstream employees act with the high- est ethics and have integrity in all we do. For that reason, we will hold each other accountable for a zero tolerance policy regarding unethical behavior. Implementation of this policy makes it very clear regarding the integrity that we will exhibit as a new company. Windstream maintains a compliance pro- gram that outlines ethical guidelines for employees and mem- bers of the board of directors. This Working with Integrity brochure provides an overview of those guidelines. As previously noted, the Respondent admitted in its answer that it distributed Paglusch’s e-mail and Gardner’s letter to employ- ees in the units involved in this proceeding without providing their respective local unions with advance notice or an opportu- nity to bargain over the “zero tolerance policy” announced in those communications. Since the Respondent began operations and distributed the guidelines to employees, there have been few instances of dis- cipline for violations of these rules. Records subpoenaed by the General Counsel and the Charging Party show only two in- stances of discipline involving unit employees. Neither em- ployee was terminated. Records showing discipline imposed by the Respondent’s predecessor Alltel for alleged ethics viola- tions show that a range of discipline was employed based upon the circumstances, the employee’s records and input from the employee’s bargaining representative. This evidence does not suggest that Alltel ever followed a “zero tolerance policy” with respect to such violations. Katherine Warn, the Respondent’s director of labor relations who held the same position with Alltel for about 6 years before the Respondent was spun off from that company, testified that the Respondent did not provide advance notice to the local unions involved in this case because the issuance of the guide- lines was not intended to change the relationship between the Respondent and the unit employees in terms of discipline. Specifically, Warn testified that the “just cause” provisions in its collective-bargaining agreements with the unions would apply to any discipline that issued under the ethics and integrity DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48 rules. Warn also testified that the Respondent believed that most of its collective-bargaining agreements gave the Respon- dent the right to make and amend rules and that the unions had the right to challenge individual application of the rules through the grievance procedure. In support of Warn’s testimony, the Respondent proffered a letter that Warn wrote to the presidents of Locals 1189 and 2374, which represented the New York bargaining unit, while the parties were in negotiations for a new collective-bargaining agreement. The General Counsel and the Charging Party ob- jected to the admission of this letter as a statement made in the course of settlement under Rule 408 of the Federal Rules of Evidence. I conditionally received the letter, allowing the par- ties to argue the matter in their briefs, and have now re- considered my ruling. The letter, dated October 30, begins by referring to the instant charge and the General Counsel’s deci- sion to issue complaint in this matter. Warn then states that the purpose of her letter is “to advise you of the Company’s posi- tion, and the reasons for the Company’s concerns.” She then sets out the Respondent’s position on the unfair labor practice charge and “explains” how Paglusch’s e-mail did not change employees’ terms and conditions. Attached to the letter is a copy of a settlement proposal the Respondent had received from the General Counsel. Warn testified that she presented this letter to the Local presidents and a staff representative from the IBEW, John Amodeo, who was assisting the Locals in ne- gotiations, after a negotiation session. According to Warn, when she asked Amodeo if he and the local unions would meet with her to discuss the letter, Amodeo said they weren’t inter- ested in bargaining over this subject at the bargaining table. On cross-examination, she acknowledged that Amodeo explained that the local unions did not want to bargain about the subject at that time because they believed it would not be appropriate to do so since the charge had been filed at the International level. According to Warn, Amodeo also cited the stage of bargaining, i.e., close to agreement on the contract, as another factor in not wanting to bring this matter to the local negotiations. Having reconsidered the matter, I now agree with the Gen- eral Counsel and the Charging Party that Warn’s letter and her conversation with Amodeo was a statement made in the context of settlement discussions which is being proffered by the Re- spondent to prove the invalidity of the complaint’s allegations. Warn’s reference in the letter to the Region’s decision to issue complaint and her attachment of the Region’s proposed settle- ment agreement make this abundantly clear. The statements made by Warn in her letter were also self-serving, post-hoc justifications for the Respondent’s actions that were the subject of the complaint. Any offer to “bargain” in Warn’s letter and any “refusal” by the Unions to whom it was addressed is thus inadmissible to disprove a violation of the Act. See Contee Sand & Gravel Co., 274 NLRB 574 fn. 1 (1985). The Respondent, in support of its waiver defense, cites lan- guage from each of the collective-bargaining agreements that purportedly gives the Respondent the right to unilaterally make and amend rules of conduct. The language relied upon appears primarily in the management rights, just cause and the griev- ance/arbitration clauses. The management rights clauses cited are worded generally and, with one exception, do not specifi- cally refer to the right to make and amend rules. Only the man- agement rights clause in the collective-bargaining agreement covering the Western Reserve Central District unit explicitly includes the right “to establish reasonable rules and regulations (subject to the Union’s right to grieve the reasonableness of such rules and regulations).” The management rights clause in this contract, as well as those in the contracts covering the other unit in Ohio and the New York unit, specifically provide that the Respondent’s exercise of its rights is subject to the right of an employee to file a grievance under the contract.9 Four of the collective-bargaining agreements, i.e., all except those covering the two Ohio units, also contain the following language in the management-rights clause: Nothing contained in this Agreement shall be deemed to limit the Company in any way in the exercise of the regular and generally recognized customary functions and responsibilities of management. Moreover, such functions of management as may be included herein shall not be deemed to exclude other functions of management not specifically included herein. Other contract provisions cited by the Respondent generally require employees to work efficiently and to obey company rules. A clause in the collective-bargaining agreement covering the Kentucky unit specifically provides that the Union will “cooperate with the Company in replacing any employee cov- ered by this Agreement found guilty of not performing his or her duties in a reasonably efficient manner, or who consistently acts in an objectionable manner to his fellow employees, cus- tomers of the Company or the Company.” The grievance and arbitration provisions cited generally provide that all discipline issued by the Respondent is subject to grievance and arbitration with just cause the standard for review of such discipline. The Respondent also cites provisions in the collective- bargaining agreements that specifically require the Respondent to provide the respective local union with advance notice before implementing certain changes, such as those affecting medical benefits, pensions, and subcontracting. None of the collective- bargaining agreements contains a similar provision requiring advance notice before making or changing rules regarding em- ployee conduct. The parties also offered evidence that, on two occasions, both in early 2002, two local unions objected to discipline im- posed on employees which was based, in part, on Alltel’s ethics and integrity guidelines. Grievances filed by Local Union 2374 in Jamestown, New York, and Local Union 2089 in Meadville, Pennsylvania, challenging discipline issued for motor vehicle accidents, objected to the employer’s reference to the ethics policy on the basis that it had not been negotiated with the Un- ion. B. Analysis 1. Procedural issues The Respondent has raised several procedural defenses which must be addressed before turning to the merits. Respon- 9 The New York unit contract also makes the Respondent’s exercise of its management rights “subject . . . to the provisions of the Agree- ment.” WINDSTREAM CORP. 49 dent first challenges the Board’s jurisdiction to resolve this dispute on the basis that the IBEW lacked standing to file the instant charge. Respondent relies upon the fact that the Interna- tional Union is not a party to any of the six collective- bargaining agreements involved here, nor is it the certified or recognized bargaining agent of any of the units in question. The Respondent also cites provisions in the International Un- ion’s constitution and bylaws that appear to limit the right of the local unions to act as agents of the International and vice versa.10 Respondent’s defense must be rejected. The Board and the courts have historically recognized, consistent with congressional intent, that “anyone for any reason may file charges with the Board.” Operating Engineers Local 39 (Kai- ser Foundation), 268 NLRB 115, 116 (1983). See also Postal Service, 309 NLRB 309 (1992); Bagley Products, 208 NLRB 20, 21 (1973); Section 102.9 of the NLRB’s Rules and Regula- tions. As the Supreme Court said, many years ago: The charge is not proof. It merely sets in motion the machin- ery of an inquiry. When a Board complaint issues, the ques- tion is only the truth of its accusations. The charge does not even serve the purpose of a pleading. Dubious character, evil or unlawful motive, or bad faith of the informer cannot de- prive the Board of its jurisdiction to conduct the inquiry. NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17–18 (1943). The Respondent next raises the defense of improper joinder of charges and parties. The Respondent argues that it has been unduly prejudiced by the General Counsel’s decision to allege in a single proceeding unfair labor practices involving six sepa- rate bargaining units, each represented by a different local of the Union with its own collective-bargaining agreement and separate bargaining history with the Respondent’s predecessor. I must reject this defense as well. Section 3(d) of the Act gives the General Counsel exclusive and final authority over issuance and prosecution of unfair labor practice complaints, independ- ent of Board review and supervision. Beverly California Corp. III, 326 NLRB 232, 236–237 (1998). The General Counsel is accorded wide latitude in the exercise of this prosecutorial dis- cretion, including choosing whether to consolidate cases, sub- ject to review only for an abuse of discretion. Service Employ- ees Local 87 (Cresleigh Management), 324 NLRB 774 (1997). Here, the General Counsel’s decision to prosecute the alleged unfair labor practice which affected six separate bargaining units in a single proceeding can hardly be called an abuse of discretion. Although each unit may have had its own contract and bargaining history, the alleged unilateral change and direct dealing affected all equally. It was not necessary to hold sepa- rate proceedings to litigate any issues as to whether a particular contract or past practice waived a particular local union’s bar- gaining rights. Accordingly, I find that the Respondent was not unduly prejudiced by the General Counsel’s exercise of its prosecutorial discretion in this case. 10 Respondent acknowledges that the International Union has histori- cally assisted the local unions in contract negotiations with Alltel and has continued to perform this role since the Respondent recognized the local unions in July 2006. The Respondent also raised, as an affirmative defense, that the case should be deferred to the parties’ contractual grievance and arbitration provisions under the Board’s Collyer11 deferral policy. Counsel for the General Counsel opposed deferral on the basis that the alleged unilateral change and direct dealing occurred on a corporatewide basis and that deferring to six different contractual grievance procedures could lead to incon- sistent results. The General Counsel also argues that in three of the collective-bargaining agreements, the arbitrator’s decision is final and binding only as to questions of fact, not as to ques- tions of law.12 It is also not clear that an arbitrator would be able to address the direct dealing allegation. Based on the ar- guments of the General Counsel, I shall decline to defer this case pursuant to Collyer. 2. Alleged unilateral change The complaint alleges that the reference to a “zero tolerance policy” for violations of the Respondent’s working with integ- rity guidelines, found in CEO Gardner’s introduction to the guidelines and in COO Paglusch’s July 26 e-mail, amounted to a unilateral change in unit employees’ terms and conditions of employment. The Respondent contends that these statements did not materially and substantially change the Respondent’s ethics and integrity program, which it had adopted from its predecessor Alltel. The Respondent argues further that, assum- ing there was a material and substantial change, the Respondent had no obligation to notify and bargain with the Local Unions in advance because each union had waived its right to bargain over the subject by contract and practice.13 It is well established that an employer violates Section 8(a)(5) and (1) of the Act if it makes material or substantial changes in employees’ wages, hours, or other terms and condi- tions of employment unilaterally during the term of a collec- tive-bargaining agreement. NLRB v. Katz, 369 NLRB 736 (1962). Accord: United Cerebral Palsy of New York City, 347 NLRB 603 (2006). The Board has specifically found that changes in an employer’s work rules and disciplinary policies that alter the scope of the discipline and the method for deter- mining the level of discipline are material and substantial enough to require bargaining, absent waiver. Toledo Blade Co., 343 NLRB 385 (2004); Bath Iron Works Corp., 302 NLRB 898, 902–903 (1991). Cf. Berkshire Nursing Home, LLC, 345 NLRB 220 (2005); LaMousse, Inc., 259 NLRB 37, 49–50 (1981). Here, the Respondent argues that the “zero tolerance policy” announced by Paglusch and Gardner did not materially or substantially change the ethics and integrity guidelines that had existed for many years under Alltel. The Respondent points to the fact that the section in the guidelines addressing discipline was identical to language in the Alltel policy. The Respondent also relies on the fact that, even after announcing a “zero tolerance policy,” the Respondent has not terminated 11 Collyer Insulated Wire, 192 NLRB 837 (1971). 12 This language appears in the collective-bargaining agreements covering the two Pennsylvania units and the New York unit. 13 Respondent admitted in its answer that the subject of a zero toler- ance policy was a mandatory subject of bargaining within the meaning of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50 employees for violations of the policy when they have oc- curred. I find, in agreement with the General Counsel, that the an- nouncement of a “zero tolerance policy,” meaning that an em- ployee found to have violated one of the Respondent’s ethics and integrity rules would be automatically terminated without regard to his work record or the particular circumstances, repre- sented a “material, substantial and significant” change in em- ployees’ terms and conditions of employment. United Cerebral Palsy of New York City, supra at 607; Toledo Blade Co., supra at 388.14 This language necessarily alters the “just cause” pro- vision in the Respondent’s collective-bargaining agreements with the six local unions here because it removes from consid- eration by an arbitrator factors such as an employee’s prior work record or the circumstances of the alleged violation. Al- though the Respondent argued at the hearing and in its brief that the collective-bargaining agreement would govern any discipline imposed under the guidelines, there is nothing in Paglusch’s or Gardner’s letters to employees to suggest that would be the case. On the contrary, the tone of their communi- cations with employees is absolute. Warn’s testimony at the hearing that the Respondent did not intend to change the contractual just cause provision, or its existing disciplinary procedures is nothing more than a post hoc rationalization of the Respondent’s unilateral action. Until such time as the Respondent explicitly disavows the “zero tolerance policy” announcement in a communication to employees, it remains in force and available to the Respondent in the applica- tion of discipline to unit employees. Similarly, although the Respondent did not in fact utilize the “zero tolerance policy” when it had the opportunity to do so, this is not proof that a change did not occur. I note that the two instances where em- ployees were alleged to have violated the ethics and integrity rules occurred after the Union had filed the instant charge. The Respondent may well have chosen not to apply its “zero toler- ance policy” in these cases in order to avoid liability for a vio- lation of the Act. Accordingly, I find that, absent waiver, the Respondent would have a duty under the Act to provide the Local Unions here with advance notice and an opportunity to bargain before the announcement of a “zero tolerance policy” for violations of its ethics and integrity rules. With respect to waiver, the Board and the courts have long held that waivers of statutory rights are not to be lightly in- ferred, but instead must be “clear and unmistakable.” Metro- politan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); C & P Telephone Co. v. NLRB, 687 F.2d 633, 636 (2d Cir. 1982); Georgia Power Co., 325 NLRB 420 (1998). To establish a waiver by contract, the language must be specific and related to the particular subject or it must be shown that the issue was fully discussed and that the union consciously yielded its inter- est in the matter. Georgia Power Co., supra. See also Allison Corp., 330 NLRB 1363, 1365 (2000). The Board has held that 14 The cases relied on by the Respondent are distinguishable. In those cases, the administrative law judge found that minor changes in existing disciplinary procedures were not material and substantial be- cause they did not alter the just cause provision of a collective- bargaining agreement. See, e.g., LaMousse, Inc., supra. generally worded management rights clauses or zipper clauses will not be construed as waivers of statutory bargaining rights. Hi-Tech Cable Corp., 309 NLRB 3, 4 (1992); Johnson- Bateman Co., 295 NLRB 180, 184–188 (1989). Finally, with respect to bargaining history, the Board has held that a union’s past acquiescence in unilateral changes does not operate as a waiver of its right to bargain over such changes in the future. Bath Iron Works, supra at 900–901, and cases cited therein. See also Exxon Research & Engineering Co., 317 NLRB 675 (1995). None of the collective-bargaining agreements in the instant case contain specific language authorizing the Respondent to adopt a zero tolerance policy for discipline. On the contrary, all of the collective-bargaining agreements contain “just cause” language, which is antithetical to a “zero tolerance” approach to discipline. As previously noted, only one contract includes the right “to establish reasonable rules and regulations” within the management rights clause. However, that particular manage- ment right is subject to the particular local union’s right to chal- lenge the reasonableness of any rule through the grievance procedure. This hardly amounts to a waiver of the right to bar- gain over a significant change in the level of discipline the Re- spondent can impose for violation of its rules. Other language in the collective-bargaining agreements requiring employees to abide by the Respondent’s rules of conduct is also not specific enough to clearly and unmistakably waive the union’s right to bargain over the manner and means or the degree of discipline to be imposed for an employee’s failure to obey the rules. The Union’s agreement to a grievance and arbitration procedure and to “just cause” language in these contracts does not show a waiver with respect to the subject at issue. If anything, such language shows the unions interest in the fairness of the Re- spondent’s application of discipline. As previously noted, a “zero tolerance policy” for discipline would be devoid of fair- ness. Accordingly, I find that the Respondent has not demon- strated that any of the local unions here have “clearly and un- mistakably” waived by contract any bargaining rights with respect to the zero tolerance policy announced in July 2006. In order to establish a waiver by practice, or bargaining his- tory, the Respondent relies essentially on the history of rela- tions between the local unions and Alltel, which is not the em- ployer in this case. There is very little bargaining history be- tween the Respondent and these Local Unions on which to base a finding of waiver. Moreover, both Paglusch and Gardner were hired specifically to lead the Respondent and had no prior history of dealing with the unions at Alltel. Their desire to establish a new corporate culture is evident from the communi- cations at issue here. Thus, whatever might be said of the un- ions’ acquiescence in Alltel’s previous distributions of its ethics and integrity policies can hardly be construed as a waiver of the right to bargain over such a change in the corporate approach to discipline as that announced by this new employer. Accord- ingly, I find that the Respondent has not demonstrated that any of the Local Unions here have waived their bargaining rights by practice or bargaining history.15 15 I also note that it is undisputed that Alltel had never adopted a “zero tolerance policy” for discipline in its dealings with unit employ- WINDSTREAM CORP. 51 The Respondent also raised, as an affirmative defense, that none of the local unions ever requested bargaining over the “zero tolerance policy” announced by Paglusch and Gardner. I reject this defense because the Board has consistently held that a union is not required to request bargaining when a change in employees’ terms and conditions of employment is presented as a fait accompli, or where it would be futile to do so. See Ciba- Geigy Pharmaceuticals Div., 264 NLRB 1013, 1017–1018 (1982), and cases cited therein. The evidence here clearly es- tablishes that the Respondent’s announcement of its “zero tol- erance policy” was a fait accompli. The local unions received notice of the new policy at the same time as the unit employees. Nothing in the announcement indicated that it would not be immediately effective. A request to bargain after the policy had already been announced and implemented would be futile.16 Accordingly, I reject this affirmative defense and find, as al- leged in the complaint, that the Respondent violated Section 8(a)(5) and (1) in July 2006, when it unilaterally announced a “zero tolerance” disciplinary policy. 3. Alleged direct dealing The complaint alleges that the Respondent’s unilateral an- nouncement of its zero tolerance policy also constituted direct dealing in violation of Section 8(a)(5) and (1) of the Act. The General Counsel and the Charging Party rely on the fact that the Respondent communicated the new policy directly to the employees, before notifying their respective bargaining repre- sentatives of this significant change in their terms and condi- tions of employment. The Charging Party, in its brief, also cites the evidence that, as part of the Respondent’s on-line training program, employees were required to affirm their agreement with the policy. The Respondent argues that the mere communication to employees of a change, even if made unilaterally, does not amount to direct dealing. The Board has long held that the obligation to bargain col- lectively requires “recognition that the statutory representative is the one with whom [the employer] must deal in conducting bargaining negotiations, and that it can no longer bargain di- rectly with the employees.” General Electric Co., 150 NLRB 192, 194 (1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970). See also Medo Photo Supply Co. v. NLRB, 321 U.S. 678 (1944). In Georgia Power Co., 342 NLRB 192 (2004), the Board found that the employer bypassed the union and dealt directly with its employees by communicat- ing directly to the unit employees regarding the formation of its workplace ethics program. In that case, however, the employer solicited its unit employees to participate in the formation of work teams and processed employee concerns through the eth- ics program. Here, the Respondent’s announcement of the zero ees. The new policy represented such a dramatic change in the em- ployer’s approach to discipline that the unions’ past practice with All- tel, even if relevant, would not show a waiver. 16 I previously rejected the Respondent’s proffer of evidence pur- portedly showing that Local Unions 1189 and 2374 refused to bargain when offered the opportunity to do so during contract negotiations in October. This offer was made in the context of settlement negotiations and cannot be relied upon to show a disinterest by the Unions in bar- gaining over the subject. tolerance policy did not invite any feedback from employees, nor solicit them to negotiate with the Respondent over the pol- icy. In Sonic Automotive, 343 NLRB 1058 (2004), the Board adopted the judge’s finding that merely informing employees of a predetermined course of action does not amount to direct dealing. See also Huttig Sash & Door, 154 NLRB 811, 817 (1965). The Charging Party cites United Cerebral Palsy of New York City, supra, in which the Board found direct dealing where the employer distributed a new handbook, which unilaterally changed employees’ terms and conditions of employment, and required the employees to sign a receipt acknowledging they had received the handbook and agreed to comply with it. Al- though there are some similarities to the Respondent’s conduct here, the key difference is that the acknowledgement in United Cerebral Palsy also required the employees to agree that the employer could unilaterally change terms and conditions of employment in the future. See also Heck’s, Inc., 293 NLRB 1111, 1120 (1989). The affirmation utilized by the Respondent as part of its on-line training program is different. It does not require unit employees to agree that the Respondent may make future changes in their terms and conditions of employment without prior notice. I find that the Respondent’s communication of its new zero tolerance policy directly to unit employees did not amount to direct dealing in violation of the Act because it did not invite the employees to bypass their representative and negotiate with the Respondent over any term or condition of employment nor did it undermine the Unions’ role as the employees’ exclusive bargaining representative by requiring the employees to agree, in advance, to future unilateral changes. Accordingly, I shall recommend dismissal of this allegation of the complaint. CONCLUSIONS OF LAW 1. By unilaterally implementing a zero tolerance disciplinary policy for violations of its ethics and integrity rules, the Re- spondent has failed and refused to bargain collectively with the local unions representing its employees and has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. By announcing the zero tolerance policy directly to unit employees without soliciting or inviting the employees to nego- tiate with it, the Respondent did not engage in direct dealing and did not violate Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. In order to remedy the unlawful unilateral change found here, I shall recommend that the Re- spondent rescind the zero tolerance policy announced on July 26, 2006, via e-mail from COO Paglusch and reaffirmed by letter from CEO Gardner and restore the status quo ante. The Respondent shall further be ordered to communicate the rescis- sion to all employees in the bargaining units involved in this proceeding via electronic mail, which is the Respondent’s pre- ferred and customary method of communicating with employ- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52 ees. See National Grid USA Service Co., 348 NLRB 348 fn. 2 (2006).17 No unit employees had been terminated under this policy as of the date of the hearing. However, should it be determined at the compliance phase of this proceeding that the Respondent has in fact terminated any unit employees pursuant to the unilaterally adopted policy, I shall recommend that it be ordered to offer reinstatement to said employee and expunge from the employee’s record any reference to the termination. I shall also recommend that the Respondent provide advance notice and an opportunity to bargain to the respective local unions before making any future changes to unit employees’ wages, hours, and terms and conditions of employment. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended18 ORDER The Respondent, Windstream Corporation, Little Rock, Ar- kansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Making changes to the wages, hours, and terms and con- ditions of employment of employees in the bargaining units represented by IBEW Locals 463, 1189, 1507, 1929, 2089, and 2374 without first providing those unions with notice and an opportunity to bargain. (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 effec- tuate the policies of the Act. (a) Rescind the zero tolerance policy for violations of the “working with integrity” guidelines, that was announced in July 2006, and notify employees in the units represented by the local unions identified above that this has been done. Such notifica- tion to be by electronic mail and any other manner in which the Respondent customarily communicates such policies to its em- ployees. (b) In the event any unit employee has been terminated as a result of the unilaterally adopted zero tolerance policy, rescind the termination and offer the employee reinstatement to his prior position, without loss of seniority or other benefits, make 17 For the same reason, I shall also recommend that the Respondent post the attached notice to employees electronically. 18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended 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. him whole for any wages and benefits lost as a result of the termination and expunge from its files any reference to the termination. (c) Notify the local unions identified above and, on request, bargain with them as the exclusive collective-bargaining repre- sentative of their respective units, before making any changes to unit employees’ wages, hours, and terms and conditions of employment. (d) Within 14 days after service by the Region, post at its fa- cilities covered by its collective-bargaining agreements with Locals 463, 1189, 1507, 1929, 2089, and 2374, copies of the attached notice marked “Appendix.”19 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. 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 Re- spondent has gone out of business or closed any of 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 and former employees employed by the Respondent at that facility at any time since July 26, 2006. (e) Within 14 days after service by the Region, post the at- tached notice marked “Appendix” electronically on the Re- spondent’s intranet with a link sent by electronic mail to em- ployees in the units represented by the above local unions. (f) 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. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. 19 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.”