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. VictoryEshareturi,

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. Ultimately, Verizon Human Resources decided on 1

Though only one call lasting two minutes had occurred between

1

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. This petition 2

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 Line

3

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.

The evidentiary disputes centered on two exhibits, GC-33 and 2

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. 

Wright Line, 251 NLRB 1083 (1980) established a two-step 3

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. First, he cited the month-long series of texts between

4

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 nonunion.” The ALJ failed to identify any record evidence – and

we are not aware of any – that rebuts this significant caveat. In

5

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. MECO Corp. v. NLRB, 986 6

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.

The Board accepted the ALJ's recommended finding without 4

passing on the question whether the two exhibits that Petitioner

claimed were covered by attorney-client privilege were properly

introduced. (More about that later.)

Indeed, when asked to support the only assertion within the text 5

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. 

Of course, if Graves had testified, based on his insight as a

6

manager, that Verizon had actually maintained a hit list of union

supporters(whether literal orfigurative), 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 delaywas 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,

The ALJ also pointed for support to evidence – in another case 7

– 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 companybelieved 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

The ALJ dismissed that counterfactual hypothesis as 8

“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.

* * *

Chairman Miscimarra openly stated that his decision not to 9

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 one – ability 10

to institute a policy like Petitioner’s. If an employee were

suspected of misbehavior and was questioned, he or she could

respond, “Ispoke 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 nodistribution 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

Concerted activity, of course, can occur even outside the 10

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 inquirywith 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.