United States Court of Appeals, District of Columbia Circuit
April 23, 2018
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
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.
SILBERMAN, SENIOR CIRCUIT JUDGE.
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.
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.
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
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.
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.
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?
Verizon: Or that somebody else told you to tell her
to go home?
. . .
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 ...