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Cellco Partnership v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

June 19, 2018

Cellco Partnership, d/b/a Verizon Wireless, Petitioner
v.
National Labor Relations Board, Respondent Communications Workers of America, Intervenor

          Argued April 23, 2018

          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.

          Before: Garland, Chief Judge, Pillard, Circuit Judge, and Silberman, Senior Circuit Judge.

          OPINION

          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 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 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 ...

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