(in)Excusable Neglect

Way back in November, AT&T’s attorneys from a “union-avoidance” firm called Littler stayed up nights, worked weekends and abandoned their family obligations right before Thanksgiving to head into work. Something bad had happened: They had missed a filing deadline to respond to the NLRB attorney, who had recently quoted the Administrative Law Judge Decision (ALJD) called a bunch of AT&T bosses incompetent, “befogged,” and basically just plain shady. Littler needed to beg the NLRB to ignore the missed deadline and add its response to the record.

The ALJ Found Credibility Issues With Managers That AT&T Does Not Challenge

The record is replete with the misrepresentations and prevarications of Respondents’ two main witnesses – Area Manager Ted Brash and Director of Network Services George Mrla – Respondents’ key decision makers regarding critical issues in this case [ALJD at 5-8, 37-38, 40].

– Answering Brief to Exceptions, Counsel for the General Counsel
Management try-outs

When I train stewards, I try to make the point that “There are no criminal geniuses.” This is no more true than the ALJ’s findings about a corrupt Asset Protection investigation; so corrupt even HR, Labor and Legal couldn’t support a termination. And, a rookie supervisor who had never disciplined anyone in his short tenure, or even conducted an investigatory interview (by his admission), until he volunteered to become my supervisor. A supervisor whom I once witnessed answer to “Notso,” an apparent crew nickname.

Judge Sandron cited the following:
• Brash’s handling of the GPS investigation reflected a desire to find cause to
discipline Hooker rather than have impartial fact-finding;
• Brash’s failure to furnish Investigator Vilk a document from the GPS contractor that might have lent credence to Hooker’s version of the problems that he had with his GPS;
• Brash’s use of the GPS investigation as a means of having Supervisor Osterberg spend a good part of a day observing Hooker to find fault with his conduct wholly unrelated to the GPS matter;
• [Asset Protection] Investigator Vilk – who thoroughly documented her investigation of Hooker’s non-reporting GPS – inability to explain her failure to include her conversation with Caresian Campbell, who offered evidence that might have supported Hooker’s version of his problems with the GPS; and
• Supervisor Sharp’s failure to take into account Caresian Campbell’s statement on September 22 that Hooker’s mistake in diagnosing a problem on September 20 was an easy one for a tech to make [ALJD at 40].

– Answering Brief to Exceptions, Counsel for the General Counsel

Now, those true words will stand without answer. This is because, as every union steward knows, blowing a time-frame has consequences: This week the NLRB has refused to consider AT&T’s desperate attempt to rehabilitate the credibility of its managers and would not accept their late filing.

The reasons given by [AT&T] for the late filing do not rise to the level of excusable neglect.

-Board Decision January 2019 (PDF)

Unbelievably, AT&T continues to spend gobs of shareholder dollars just to keep one rascally steward off the payroll, at least for a little while longer. But, the good guys got the last word in this round and my case is now in Washington, D.C. for review by the Board. If they uphold the ALJ’s Decision there, AT&T will be ordered (again) to return me to work, with backpay. If it goes the other way; or, AT&T challenges my reinstatement, it’s off the US Sixth Circuit Court of Appeals.


Steward Notes

Here are the full documents referenced above regarding credibility discussion of all who testified in this case:

RESPONDENT’S REPLY BRIEF IN SUPPORT OF EXCEPTIONS TO THE DECISION OF THE ADMINISTRATIVE LAW JUDGE
(Sadly, failure to timely file means no one reads it)

Things reps should be thinking about:

  • When AT&T managers are literally adjudged to not be credible in their sworn testimony, what are the ramifications of this?
    • Area managers and directors are very likely to be giving sworn testimony throughout their careers, especially arbitration proceedings that impact enforcement of the collective bargaining agreement, like employee terminations. Yet, a manager who is called out for questionable testimony under oath in a federal courtroom may be likely to assume that lying to a “mere” arbitrator is no big deal (though that is also sworn testimony). How should this information be used by Local unions to ensure fair contract enforcement, especially ensuring that discipline is in accordance with just cause? Should this be challenged directly to Labor Relations?
    • Making untruthful statements about AT&T matters is a violation of AT&T’s Code of Business Conduct. Unions are allowed to compare management discipline with craft discipline, when the violations are similar and the policy that was violated covers both management and craft. In other words, failure to discipline managers under the Code of Business Conduct can be a mitigating factor in grievances when craft are disciplined under the Code. This information is requestable for grievances.
    • Recent NLRB rule changes mean that the NLRB may now be quicker to charge local unions with failures of DFR (Duty of Fair Representation). In other words, a local union may now be charged by a disgruntled member for “not fighting hard enough” if his grievance is lost, no matter how hard the fight. Does this mean that a manager’s issues with credibility should be placed in the record of all grievances of which he/she is a party? Can a local be held accountable for DFR issues for not investigating/challenging management credibility? (Certainly RFI (Requests for Information) should be in-depth and thorough!)
    • Similarly, in this case an Asset Protection Investigator is singled out by the ALJ for some pretty egregious investigative lapses. Should her, for lack of a better word, shortcomings be placed in the grievance record whenever she is involved in an AP investigation that impacts your members? Probably; DFR may require this now. The power of an Asset Protection Investigation cannot be overstated in arbitration cases; challenging an AP investigation with federal rulings of credibility issues might be the equal of that power.
    • Calling a boss a liar is protected activity (for union reps); should a boss’ credibility be investigated as part of the grievance? You probably know my answer.

The benefits of getting management on the stand cannot be overstated! For starters, the “good” managers, who work in good faith with the local union, rarely end up on the stand. Hell, even in the all-too-seldom instance where a manager tells the truth, much valuable information can still be gleaned from sworn AT&T testimony that can be used to help our members. This includes OSHA/MIOSHA proceedings, NLRB trials, public testimony before legislative committees; all can be useful in fulfilling the union’s mandate – remove the boot of management from the neck of the worker.

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