American Armored Car, LTD

National Labor Relations Board - Board Decisions

Jul 11, 2003

339 N.L.R.B. 600 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600
American Armored Car, LTD. and United Federation
of Security Officers, Inc. Cases 2–CA–33316, 2–
CA–33359, and 2–CA–33376
July 11, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On December 31, 2001, Administrative Law Judge
Margaret M. Kern issued the attached decision. The Re-
spondent filed exceptions and the General Counsel filed
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
only to the extent consistent with this Decision and Or-
der.3
The Discharges of Leonard Miles and John Verderber
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging employees
Leonard Miles and John Verderber because of their un-
ion activities. We affirm the judge’s finding that the
General Counsel met his burden under Wright Line4 to
prove that the employees’ union activities were a moti-
vating factor in the Respondent’s decision to discharge
them. However, we find, as explained below, that the
Respondent proved it would have discharged the two

showing delivery to the bank).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
2 We affirm the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) of the Act by discharging employee Fernando Miranda.
Chairman Battista does not reach the issue of whether the Respondent
gave Miranda permission to be absent on September 26, 2000. Chair-
man Battista finds that, assuming the Respondent did not give Miranda
permission to be absent, the Respondent’s discharge of Miranda consti-
tuted disparate treatment relative to the discipline imposed on other
employees for comparable misconduct.
3 We adopt the judge’s recommended Order as modified and set
forth in full below. We modify the notice in accordance with Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001).
4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
employees even if they had not engaged in union activi-
ties. Accordingly, we reverse the judge’s unlawful dis-
charge finding with regard to these two employees.
A. The Facts
The Respondent operates an armored car service.
Miles and Verderber were guard-drivers. They were
both involved in the Union’s organizing campaign during
September and October 2000.5 They were discharged in
October for refusing to take a polygraph test. Approxi-
mately 2 weeks after their discharge, the Board con-
ducted an election among the Respondent’s employees,
on November 2.
The chain of events that culminated in the discharges
began in mid-July when one of the Respondent’s cus-
tomers—a restaurant—notified the Respondent that the
Respondent had picked up a bag containing over $25,000
in cash from the customer on June 26 for delivery to the
customer’s bank and that the money had not been depos-
ited at the bank.
Respondent’s director of security, James Carson, con-
ducted an investigation of the customer’s claim, which
disclosed the following. On June 26, the Respondent’s
employees picked up the bag from the customer and
delivered it to the Respondent’s JFK airport facility.
Later that evening, other Respondent employees
transferred the bag to the Respondent’s Elmsford facility.
On the morning of June 27, Miles (acting on behalf of his
three-man armored truck crew) signed for several
property items including the $25,000 bag which Miles’
truck was scheduled to deliver to the customer’s bank
that day. Miles’ truck (manned by Miles, Verderber,
and guard-driver Mark Garafolo) drove its route on June
27, and Miles cleared “pay-in” procedures at the
Elmsford facility vault that evening (indicating that
Miles—again acting on behalf of his three-man truck
crew—either turned in the bag or turned in a signed
receipt
After notification by the customer of the missing
money, Carson searched the Elmsford facility vault. He
did not find the bag but did find the receipt that had ac-
companied it. The receipt had a preprinted line for signa-
ture by the receiving institution—in this case, the bank;
but there was no signature on the line. Also, the yellow
copy of the three-ply receipt—which copy is to be given
to the receiving institution—was still attached to the re-
ceipt. The lack of a receiving institution signature and
the presence of the yellow copy indicated that the bag
had not been delivered to the bank.
The Respondent makes many deliveries to banks and,
occasionally, a bag intended for one bank is left at a dif-
5 All dates are in 2000, unless otherwise specified.
339 NLRB No. 81
AMERICAN ARMORED CAR, LTD. 601
ferent bank by mistake. In such cases, the bank that mis-
takenly received the bag would eventually realize the
mistake and notify the Respondent. Carson initially as-
sumed that this was the case with the missing $25,000
bag. During the next 2 months, Carson repeatedly tele-
phoned banks that might have mistakenly received the
bag, asking if they had found the missing bag. None did.
In October, with the $25,000 still missing, Carson dis-
cussed the matter with Anthony Palmiotto, the Respon-
dent’s insurance broker who specialized in the armored
car industry. Palmiotto encouraged Carson to pursue the
investigation and, particularly, to establish that the Re-
spondent’s employees were not criminally responsible
for the bag’s disappearance. A common practice in the
armored car industry when property is missing is to
polygraph employees who had access to the missing
property. Carson decided to polygraph the Respondent’s
employees regarding the missing bag.
Carson telephoned Ed Torian, an experienced private
investigator and polygraph examiner who had adminis-
tered prehire and investigatory polygraphs for the Re-
spondent for several years. Torian suggested to Carson
that the Respondent polygraph the employees who
worked on the truck on June 27 and in the vault later the
same evening. Carson identified the six employees
(Miles, Verderber, Garafolo, and three vault employees)
who fit Torian’s criteria, and decided to polygraph them.
On October 16, Carson called Verderber at home and
directed him to come to the Elmsford facility to take the
polygraph test. Verderber initially agreed, but said he
did not want to drive to the facility that evening. He
asked to take the polygraph several days later. Carson
agreed to Verderber’s request.
On October 17, Carson spoke to Miles at the Elmsford
facility. Carson told Miles that Miles had to take a poly-
graph regarding the missing bag. Miles refused to take
the polygraph. Carson then discharged Miles.6
On October 18, Verderber telephoned Carson. Verder-
ber told Carson that he had decided to not take the poly-
graph. Carson then discharged Verderber.7
Carson ordered Garafolo and the three vault employees
to take the polygraph. They each took the polygraph and
continued to be employed by the Respondent.

6 Miles asked Carson if he could have an attorney present during the
polygraph. Carson initially refused the request. Carson advised poly-
grapher Torian of Miles’ request and Torian approved it. Carson then
told Miles that Miles could have an attorney present. Miles still refused
to take the polygraph.
7 The parties stipulated that the Respondent discharged Verderber on
October 19; however, Carson and Verderber testified that the discharge
occurred on October 18.
B. Discussion
1. The Respondent met its burden under Wright Line
On these facts, we find that the Respondent established
that it would have discharged Miles and Verderber for
refusing to take the polygraph, even had they not been
involved in union activities.
The Respondent was attempting to determine respon-
sibility for the loss of a bag containing $25,000 in cash.
The Respondent’s use of polygraphs to investigate the
loss followed the standard industry practice in such situa-
tions.
The Respondent’s identification of Miles and Verder-
ber (among others) for polygraphing was reasonable.
Miles had signed for the missing $25,000 bag, and his
signature was the last affirmative act attesting to posses-
sion of it. Further, Miles and Verderber worked on the
truck that transported the missing bag immediately after
Miles signed for it.
The Respondent’s decision to discharge Miles and
Verderber when they refused to take the polygraph was
likewise reasonable. The Respondent was investigating
the loss of $25,000. Miles and Verderber had access to
the missing money. Miles and Verderber refused the
Respondent’s request to take a polygraph. Neither Miles
nor Verderber gave the Respondent a reason for their
refusal. Furthermore, there is no evidence that other Re-
spondent employees had previously refused the Respon-
dent’s request to take a polygraph or that the Respondent
had imposed lesser discipline for such refusal.
2. The judge’s decision
The judge, in concluding that the discharges were
unlawful, found that the Respondent’s “investigation into
the alleged loss [of the $25,000 bag] was a barely-
concealed scheme by Carson to justify his unlawful ter-
minations of Miles and Verderber” and that the “Re-
spondent’s demand that Miles and Verderber submit to
polygraph examination was not the result of any legiti-
mate investigation, . . . but was motivated solely by their
activities in support of the Union.” The judge identified
several concerns underlying this decision.
First, the judge expressed doubt that the $25,000 was
ever missing. Second, the judge expressed doubt that
Miles’ truck crew took possession of the bag the morning
of June 27. Third, the judge found that Miles and his
truck crew should have been “cleared of any suspicion”
when Carson, in July, viewed a videotape of Miles’ pay-
in procedure at the vault the evening of June 27 and ob-
served nothing suspicious on it. Fourth, the judge found
that the Respondent did not adequately explain its delay
from mid-July (when the customer reported the missing
bag) until mid-October in requesting the polygraphs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602
Fifth, the judge found that there were other employees
who might have had access to the missing bag and that
the Respondent should have polygraphed them in addi-
tion to the crew on Miles’ truck and the three vault em-
ployees on duty the evening of June 27. Sixth, the judge
found that the Respondent violated the Federal polygraph
statute8 by failing to provide the employees with certain
written notices that the judge concluded were required by
the statute. 9
We find that the evidence does not support the judge’s
ultimate conclusion or her underlying concerns.
a. The judge’s ultimate conclusion
The judge concluded, in effect, that the Respondent
fabricated an elaborate plot—involving a customer’s
false report to the Respondent regarding a missing
$25,000 bag, the Respondent’s false report to an insur-
ance broker regarding the missing $25,000, the Respon-
dent’s false report to a private investigator regarding the
missing $25,000, and the unnecessary polygraphing of
four employees regarding the missing $25,000—in the
hope that two union supporters (Miles and Verderber)
would refuse to take a polygraph thereby providing the
Respondent with an opportunity to discharge them.
However, the evidence does not support the judge’s sup-
position.
First, the customer (whose $25,000 bag was lost) was a
well-known restaurant. That customer, in a letter written
on its letterhead, demanded that the Respondent reim-
burse it for the $25,000. That letter was introduced into
evidence. The General Counsel failed to introduce any
evidence—such as the testimony of a representative of
the restaurant—that this letter was fabricated or that the
restaurant had anything other than an arms’-length busi-
ness relationship with the Respondent. Nor do we find
any support for the judge’s apparent speculation that the
restaurant might have falsely reported the loss of $25,000
in order to assist the Respondent in a scheme to dis-
charge two union supporters for refusing to take a poly-
graph.

8 The Employee Polygraph Protection Act, 29 U.S.C. § 2001, et seq.
(1988).
9 The judge found that the Respondent violated the statute by failing
to give the employees (1) a written statement regarding the incident
being investigated; (2) a written statement telling the employees that
they had had access to the missing property; (3) a written statement
regarding the Respondent’s reasons for believing they might be in-
volved in the disappearance of the property; (4) a written notice regard-
ing the scheduled date, time, and location of the polygraph; (5) a writ-
ten notice regarding their right to consult with counsel before the poly-
graph; (6) a written notice regarding how the test would be conducted;
and (7) a written notice regarding their opportunity to review the test
questions.
Next, we note that the Respondent’s actions in report-
ing the missing $25,000 to the insurance broker and to
the private investigator involved at least some commer-
cial risk to the Respondent. As the broker testified, even
if the Respondent did not file a claim for the missing
$25,000, the broker routinely passed reports of such inci-
dents on to the insurance companies. The insurance
companies, in turn, sometimes raise an armored car
firm’s insurance rates substantially or cancel the insur-
ance entirely based on such reported losses. Similarly,
there was at least a possibility that the broker or the in-
vestigator would spread news of the missing $25,000 to
other persons, including the Respondent’s customers or
competitors, thereby damaging the Respondent’s reputa-
tion in the armored car industry.
Nor is there evidence that the Respondent had any rea-
son to anticipate that the union supporters would refuse
to take a polygraph. To the contrary, the evidence estab-
lishes that the Respondent routinely used polygraphs
during investigations and there is no evidence that any
employee had previously refused to take a polygraph.
In short, we find it extremely unlikely that the Re-
spondent would have exposed itself to significant com-
mercial risks by: enlisting an established customer to
falsely report the loss of $25,000, reporting that loss to
the Respondent’s insurance adjuster, and seeking the
advice of a private investigator, all on the chance that
two union supporters would refuse to take a polygraph
regarding the $25,000.
In these circumstances, we reject the judge’s ultimate
conclusion—that the Respondent fabricated or seized
upon the lost $25,000 bag as part of a scheme to dis-
charge two union supporters for refusing a polygraph.
We find instead, that the Respondent acted in good faith
in requesting that the employees take the polygraph and
acted lawfully in discharging the employees when they
refused to do so. See Houston Coca Cola Bottling Co.,
256 NLRB 520, 527 (1981) (no inference of antiunion
motive for employer’s request that employees take poly-
graph where employer “could not have known which
employees would refuse to take . . . the polygraph”).
b. The judge’s underlying concerns
We have likewise considered each of the judge’s un-
derlying concerns. We find that several are unsupported
by the evidence. We further find that the concerns—
considered individually or cumulatively—do not support
the conclusion that the Respondent fabricated the inves-
tigation or the polygraph requests in order to discharge
the two union supporters.
AMERICAN ARMORED CAR, LTD. 603
(1) Whether there was a missing $25,000 bag
The judge doubted that the $25,000 was ever missing.
The judge based her doubt on the facts that the Respon-
dent did not introduce into evidence its canceled check
reimbursing the customer for the missing $25,000, that
the Respondent did not file an insurance claim for the
$25,000, and that the Respondent did not introduce into
evidence all of its computerized records regarding the
movement of the missing bag.
However, with regard to the basic question of whether
the $25,000 was ever missing, Miles corroborated Car-
son’s testimony that Carson asked Miles about the miss-
ing $25,000 in July. Miles and Verderber did not be-
come involved in union activities until sometime after
July. This fact—that Carson asked Miles about the miss-
ing $25,000 several weeks before Miles and Verderber
became involved in union activities—is strong evidence
that there was a missing $25,000.
Furthermore, as noted above, the record also contains a
letter from the customer to the Respondent on the cus-
tomer’s letterhead demanding reimbursement for the
$25,000. Moreover, Carson testified that the Respondent
reimbursed the customer for the $25,000 and respondent
official, Charles Strebeck, corroborated Carson’s testi-
mony, testifying that the Respondent sent the customer a
check for the missing $25,000 on November 29. And,
the General Counsel introduced no evidence—such as
the testimony of an official of the customer—that the
Respondent did not in fact pay the customer the $25,000.
With regard to the issue of the canceled check, the
General Counsel did not subpoena the canceled check or
otherwise put the Respondent on notice that it was ques-
tioning whether the Respondent had actually paid the
customer the $25,000. Accordingly, we attach little
weight to the fact that the Respondent did not introduce
the canceled check into evidence.
With regard to the issue of the Respondent’s failure to
file an insurance claim for the $25,000, the record pro-
vides a rational explanation. The Respondent’s insur-
ance broker testified that filing a claim might have
caused the Respondent’s insurance premiums to increase
substantially, and that insurance companies sometimes
canceled the insurance of armored car firms because of
such losses. The broker similarly testified that if one
insurance company cancels a firm’s insurance, it was
likely that other companies would refuse to insure the
firm. Under State regulations, an armored car firm could
not do business if it did not have insurance. Further-
more, although Carson readily admitted during his testi-
mony that the Respondent did not file an insurance claim
regarding the $25,000 loss, the General Counsel did not
ask Carson why the Respondent did not file a claim.
With regard to the issue of the Respondent’s
computerized records regarding the missing bag, it is
unclear what additional records existed. The parties
introduced Miles’ computer-generated payout sheet,
route sheet, and pay-in sheet for June 27. Although
witnesses for both the Respondent and the General
Counsel testified at length regarding these sheets as well
as the Respondent’s property-tracking procedures
generally, the General Counsel did not subpoena or
otherwise demand that the Respondent produce any
t

addi ional records.
(2) Whether Miles’ truck crew took possession
of the bag
The judge expressed doubt that Miles’ truck crew took
possession of the bag on the morning of June 27. How-
ever, Miles admitted that the usual procedure during
morning payout was for the vault clerk to call out each
bag number, for the driver to circle that bag number on
the payout sheet as the number was called out, and for
the driver to then watch the clerk as the clerk placed the
bag on a small wagon that the driver used to move the
bags from the vault to the armored truck. Miles’ payout
sheet for the morning of June 27 was introduced into
evidence. The sheet lists the number of the missing bag,
the number is circled, and Miles’ signature is on the
sheet. Miles testified that he signed the sheet.
The judge noted that although the missing bag was
listed on Miles’ payout sheet, the bag was not listed on
Miles’ route sheet—a separate document showing the
stops that Miles was scheduled to make and the items
Miles was scheduled to deliver at each stop. The judge
further noted that, on occasion, after the clerk called out
a bag number and the driver circled the number on the
payout sheet, the clerk inadvertently failed to put the bag
in the wagon and the driver failed to notice the clerk’s
error.10
However, the critical issue here is not whether Miles
and Verderber were guilty of stealing the missing bag.
Rather, the critical issue here is whether the evidence so
clearly exonerated Miles and Verderber from any respon-
sibility for the missing bag as to render the Respondent’s
polygraph request irrational or suspicious. Given that the
bag was missing and that Miles signed for the bag, these
additional facts noted by the judge fall far short of clearly
exonerating the employees.
10 The judge also noted that the vault clerk did not sign Miles’ pay-
out sheet and asserts that this violated the Respondent’s standard pro-
cedures. However, the evidence shows that it was common practice for
the vault clerk to not sign a driver’s payout sheet.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
(3) The videotape of Miles’ pay-in procedures
Carson admitted that he reviewed a security videotape
showing Miles’ pay-in procedures the evening of June 27
and that he found nothing suspicious on the videotape.
This fact, however, did not exonerate Miles or his truck
crew. Although the videotape showed Miles turning in
property bags and receipts to the vault clerk during the
pay-in procedures, the camera was too far away to show
which bags or receipts were turned in. Thus, it was not
possible to ascertain from watching the videotape
whether the missing $25,000 bag was one of the bags
Miles turned in to the clerk on June 27. As noted above,
the issue here is whether the Respondent acted reasona-
bly in requiring Miles and Verderber to take the poly-
graph, not whether Miles and Verderber stole the missing
$25,000. The June 27 pay-in videotape could not con-
clusively exonerate them and it is therefore largely ir-
relevant to the issues before us.11
(4) The Respondent’s delay in requesting the polygraphs
The customer notified the Respondent regarding the
missing bag in mid-July. The Respondent requested that
the six employees take the polygraphs in mid-October,
about 2 weeks before the November 2 Board election. In
rejecting the Respondent’s explanation for the polygraph
requests, the judge noted this delay and the timing of the
polygraph requests relative to the election. However, we
find that the evidence supports the Respondent’s expla-
nation for the delay and the timing of the polygraph re-
quests.
With regard to the delay, the insurance broker corrobo-
rated Carson’s testimony that it was common in the ar-
mored car industry for a property bag to be missing for
several weeks and to then turn up. The broker further
testified that the delay from mid-July to early October
was “not that unusual.” We also note Carson’s uncon-
tradicted testimony that, over a 1- to 2-month period, he
repeatedly telephoned the banks where the Respondent
made deliveries to ask if they had located the missing
bag.12 We also note Carson’s uncontradicted testimony

11 The judge implicitly criticized Carson for allowing the June 27
pay-in videotape to be erased after Carson viewed the videotape. How-
ever, as Carson reasonably explained, the videotape showed nothing
unusual and therefore there was no reason for Carson to deviate from
the Respondent’s usual procedure of re-recording over the videotape
every 31 days.
12 The judge noted Carson’s testimony that he kept detailed records
of the phone calls he made to the banks trying to locate the missing
bag. The judge also noted that the Respondent did not introduce these
records into evidence and drew an adverse inference from the Respon-
dent’s failure to do so. We disagree. At the hearing, the General
Counsel did not fairly put the Respondent on notice that he was chal-
lenging Carson’s testimony regarding his phone calls to the banks. For
example, the General Counsel did not ask for specifics regarding the
that Miles was an excellent employee whose paperwork
was “impeccable” and that this was a reason Carson be-
lieved the missing bag would eventually be found,
thereby further explaining Carson’s delay in initiating a
more formal investigation.
With regard to the timing of the polygraph requests,
we note that Carson telephoned the insurance broker in
early October to discuss the missing bag, that the broker
strongly encouraged Carson—verbally and by letter—to
take further steps to insure that the Respondent’s em-
ployees were not criminally responsible for the disap-
pearance of the missing bag, and that Carson immedi-
ately thereafter initiated the polygraph requests.
(5) The Respondent’s failure to polygraph
additional employees
The judge noted that the Respondent identified six
employees for polygraphing. Miles and Verderber were
among these six. The judge noted that additional em-
ployees—particularly employees who transported the
bag on June 26 and vault employees who handled the bag
the morning of June 27—had access to the missing bag.
The judge suggested that the Respondent’s failure to
polygraph these additional employees undermined its
explanation for requesting Miles and Verderber to take
the polygraph. We disagree.
The June 27 payout sheet shows the number of the
missing bag, the circle Miles drew around the missing
bag number, and Miles’ admitted signature attesting to
receipt of the missing bag. This is strong evidence that
the vault clerk gave the missing bag to Miles during pay-
out on the morning of June 27. In these circumstances,
the Respondent acted rationally in not polygraphing em-
ployees who had access to the bag before Miles signed
for it and, instead, in requesting tests of the six employ-
ees who had access to the bag after Miles signed for it—
that is, Miles’ truck crew and the three employees who
worked in the vault the evening of June 27. Accordingly,
we draw no adverse inference from the Respondent’s
failure to polygraph employees who had access to the
bag before Miles signed for it on June 27.
(6) The Federal polygraph statute
The judge found that the Respondent failed to comply
with several written notice requirements of the Federal
polygraph statute, which failure is a basis for rejecting
the Respondent’s explanation for the polygraph requests.
Whether the Respondent violated the Federal polygraph
statute is not a question before us, and we do not decide
it. The Respondent’s asserted failure to give the written

banks called or the persons with whom he spoke. Nor did the General
Counsel subpoena the records or otherwise ask the Respondent to pro-
duce them.
AMERICAN ARMORED CAR, LTD. 605
notices required by the Federal statute has no bearing on
the Respondent’s explanation for the polygraph requests.
The likelihood that the Respondent’s reason for request-
ing the polygraphs was the missing $25,000 (rather than
the employees’ union activities) is the same whether the
Respondent gave the written notices required by the Fed-
eral statute or failed to provide that notice. We accord-
ingly reject the judge’s apparent conclusion that the Re-
spondent’s arguable failure to comply with the Federal
polygraph statute somehow discredits its explanation for
the polygraph requests.13
In sum, based on all of the foregoing, we find that the
Respondent has rebutted the General Counsel’s prima
facie case by establishing that it would have discharged
employees Miles and Verderber regardless of their union
activities. Accordingly, we dismiss the 8(a)(3) and (1)
complaint allegations as to these employees.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Fernando Miranda.
4. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not violated the Act in any
other manner encompassed by the complaint.
THE REMEDY
Having found that the Respondent engaged in an un-
fair labor practice as described above, we shall order the
Respondent to cease and desist and to take certain
affirmative action necessary to effectuate the policies of
the Act.
The Respondent, having discriminatorily discharged
Fernando Miranda, must offer him reinstatement and
make him whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from the date of his
discharge to the date of a proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).

13 The General Counsel did not allege, the evidence does not show,
and the judge did not find that the employees’ refusal to take the poly-
graph was in any way attributable to the Respondent’s arguable viola-
tions of the Federal polygraph statute. Accordingly, this is not a case
where the employer is alleged to have violated the Act by discharging
an employee for a concerted assertion of employee rights under some
other State or Federal law. See, for example, G.V.R., Inc., 201 NLRB
147 (1973).
ORDER
The National Labor Relations Board orders that the
Respondent, American Armored Car, Ltd., Elmsford,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they support or engage in activities
on behalf of the United Federation of Security Officers,
Inc., or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to
Fernando Miranda full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Fernando Miranda whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him in the manner set forth in the
remedy section of this Decision.
(c) Within 14 days from the date of this Order, remove
from the files of Fernando Miranda any reference to his
unlawful discharge and, within 3 days thereafter, notify
him in writing that this has been done and that his dis-
charge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Elmsford, New York facility and at its JFK facility in
Queens, New York, copies of the attached notice marked
“Appendix.”14 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
14 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facili-
ties involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September
27, 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 any 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.

WE WILL NOT discharge or otherwise discriminate
against you because you support or engage in activities
on behalf of the United Federation of Security Officers,
Inc., or any other labor organization.
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, within 14 days from the date of the Board’s
Order, offer to Fernando Miranda 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.
WE WILL make Fernando Miranda whole for any loss
of earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Fernando Miranda, and WE WILL, within
3 days thereafter, notify him in writing that this has been
done and that his discharge will not be used against him
in any way.

AMERICAN ARMORED CAR, LTD.

Jaime Rucker, Esq., for the General Counsel.
James J. Cusack, Esq. and James W. Cusack, Esq., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in New York, New York, on May 22, 23,
and 24, 2001. The complaint, which issued on January 31,
2001, and which was amended on March 7, 2001, was based
upon unfair labor practice charges filed on October 2, 18, and
25, 2000, by the United Federation of Security Officers, Inc.
(the Union) against American Armored Car, Ltd. (Respon-
dent).1 It is alleged that on September 27 and October 17 and
19, Respondent terminated Fernando Miranda, Leonard Miles,
and John Verderber, respectively, because of their support for
and activities on behalf of the Union in violation of Section
8(a)(1) and (3) of the Act. For all of the reasons set forth, I find
Respondent violated the Act as alleged.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent denies the labor organization status of the Un-
ion. Ralph Purdy, president of the Union, testified the Union
admits security and armored car guards to membership, and
does not admit to membership employees other than guards.
The Union exists for the purpose, in whole or in part, of dealing
with employers concerning wages, benefits, and other terms
and conditions of employment. I find, based upon this credible
testimony, the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the business of providing armored
car and truck transportation of valuables, including currency,
jewelry, and securities in the New York area. Respondent main-
tains a facility in Elmsford and one at Kennedy Airport (JFK).
The Elmsford facility, which is the facility involved in this
case, consists of two floors. On the first floor is a garage, which
houses Respondent’s vehicles. From within the garage there is
access to the main employee area, a room that is approximately
20 by 12 feet. At one end of the room is a counter with four

1 All dates are in 2000 unless otherwise indicated.
AMERICAN ARMORED CAR, LTD. 607
windows. Behind the counter is the vault, the money processing
room, the coin room, and the cash room. Respondent’s
administrative offices are located on the second floor. The vault
is in operation almost continually, from about 6 to 3 a.m.
Respondent employs approximately 60 guards, couriers, and
drivers at the facility. These employees have access to the ga-
rage and to the main employee area. Respondent also employs
vault clerks and vault managers.
Video surveillance cameras are mounted outside the building
at every entrance to the facility, inside the garage, inside the
main employee area and throughout the vault area. Monitors
located within the facility allow for simultaneous viewing from
all camera angles. There is also a taping system and tapes are
routinely maintained for 30 days.
James Carson is Respondent’s director of security and an
admitted supervisor and agent. Pete Lysohir was the dispatcher
at the Elmsford facility at the time of the events of this case. He
was responsible for setting up truck routes, assigning drivers,
and making sure pickups and deliveries were made. He also
handled all employee requests for time off. William Castro is
the a.m. vault manager and Hector Benitez is the p.m. vault
manager. Both have the authority to dispatch crews to addi-
tional pickups and deliveries. Benitez also has the authority to
call employees in to work. In a pretrial affidavit Benitez stated:
“I am the ranking member of management responsible for the
operation of the vault and the procedures there in [sic] during
the evening hours when the truck crews check in there [sic]
cargo. As a member of management I request to be represented
by an attorney for the company during any interview by the
NLRB.”
In early October, Mark Casellas was promoted from a driver
position to a route supervisor. After his promotion, Casellas
continued to drive a regular route and, according to Verderber,
there was no change in his duties.
B. Respondent’s Request for Leave Procedures
Lysohir was the person to whom employees submitted leave
requests. He testified he made the decision to grant or deny
leave requests based upon business need, defined as the number
of employees needed to perform work on any given day. It is
Respondent’s general practice to dispatch three-person crews
on each vehicle although, on many occasions, Respondent re-
lies on two-person crews. Respondent never dispatches a vehi-
cle with only one employee. According to Lysohir, an em-
ployee requesting time off had to submit a written form, and
employees never made an oral request for leave without follow-
ing up with a written request.
Miranda testified that in the course of his employment, from
July 1998 up until the time of his discharge on September 27,
2000, he submitted approximately 20 leave requests to Lysohir,
all of which were granted. Miranda usually spoke to Lysohir
directly, either face-to-face or via two-way radio. If Miranda
knew ahead of time that he needed time off, he submitted a
written request form to the vault clerk with instructions to give
it to Lysohir.
Miles testified that in the course of his employment, from
July 1998 up until the time of his discharge on October 17, he
submitted approximately 10 leave requests to Lysohir, all of
which were granted. On some occasions he spoke with Lysohir
via two-way radio, and on other occasions, he submitted the
written form.
Verderber testified that in the course of his employment,
from January 10 up until the time of his discharge on October
18,2 he submitted three leave requests, all of which were ap-
proved by Lysohir.
Mei testified that in the course of his employment, from July
1998 up until the time of the hearing, he submitted between
four and seven leave requests to Lysohir, all of which were
approved. If the request was made on short notice, he spoke
with Lysohir either face-to-face or via the two-way radio. If the
request was made well in advance of the requested time off, he
submitted the written form.
C. Respondent’s Payout and Pay-in Procedures
Respondent has two tracking systems for property in its pos-
session. The first system is based on paper receipts. Valuables
and currency are placed in numbered bags and every bag is
accompanied by a three-ply receipt, which is either rubber-
banded to the bag or slipped into a plastic pocket attached to
the bag. When a bag is picked up from a customer, the cus-
tomer fills out the top portion of the three-ply receipt and enters
the bag number and the value of the property. The courier en-
ters the time he arrived, the time he departed, the route number,
the date, and his signature. The courier gives the pink copy of
the receipt to the customer and leaves the customer’s premises
with the bag and with the white and yellow copies of the re-
ceipt. If the bag is delivered either to another customer, or to a
bank for deposit, the courier enters the date, time, and route
number and the receiver of the property signs the receipt. The
courier leaves the yellow copy of the receipt with the receiver
of the property and retains the white copy. At the end of his
shift, the courier turns the white copy over to the vault clerk. If
the bag is not delivered to another customer or to a bank, it is
returned to the vault clerk at the end of the shift with the yellow
and white copies of the receipt. A white receipt, signed by a
receiver of property, is called a “dead” receipt or “dead” work.
A yellow and white receipt, attached to a property bag, is called
a “live” receipt or “live” work.
The second system for tracking property in Respondent’s
possession is a computerized database. Every evening, two
sheets are generated from this database. The first is a payout
sheet which contains a listing of customers to whom property is
to be delivered, those customers’ addresses, the value of the
property to be delivered to each customer and the seal number
of each property bag. The second is a route sheet that lists all
customers to be visited by a truck crew, including pickups and
deliveries, and the order in which those stops are to be made.
These sheets are used by the vault clerks each morning to sort
the property bags given to each truck crew. One member of
each crew receives both sheets and stands at the counter win-
dow while the vault clerk calls out the customer name, the
value of the property in each bag, and the seal number of each
bag. The courier marks off the corresponding entries on the

2 Although the complaint alleges Verderber was terminated on Octo-
ber 19, Verderber testified he was terminated on October 18.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
payout sheet, and places his signature at the bottom. The vault
clerk then drops the property bag into a basket at his feet, inside
the vault. When the procedure is completed, the vault clerk
wheels the basket through a door underneath the counter win-
dow and the courier takes possession of the basket with the
bags.
Miles and Verderber testified the couriers do not recheck the
seal numbers on the bags after the basket is wheeled out to
them. Nor do they necessarily cross check the customers listed
on the payout sheet with the customers listed on the route sheet,
and errors in the payout procedure sometimes occur. Verderber
testified sometimes a bag listed on the payout sheet for one
truck crew may in fact have gone out with a different truck
crew. It also occurs that a courier will sign for a bag during the
payout procedure even though the bag is not yet physically
located within the Elmsford facility. A transfer truck brings the
bag later in the day and it is redistributed to waiting crews. One
week before Verderber’s termination, he went through the pay-
out procedure with vault clerk Kenny Rubero. As Verderber
was loading his truck, Rubero came out to him and handed him
a property bag. Verderber asked if he had signed for the bag,
and when Rubero said yes, Verderber asked how it was that the
bag didn’t make it into the basket. Rubero’s response was that
he must have been distracted.
At the end of the shift, the courier returns all property bags,
with their accompanying receipts, to the vault clerk. The vault
clerk takes physical possession of each bag, one by one, and
either scans the receipt into the computer or manually enters the
number of the receipt into the computer. The courier also re-
turns the white copies or “dead” receipts, and the vault clerk
again either scans the receipt into the computer or manually
enters the information. There is a space for the vault clerk’s
initials next to every item on the route sheet. If an item is not
returned, the computer flags the item, and the vault clerk must
call security. If all items are accounted for, the vault clerk
clears the crew. Only when the vault clerk is satisfied that there
has been a complete accounting does he allow the crew to
leave.
D. The Organizing Effort
From May to August, Miranda spoke to employees about the
Union on a daily basis. These conversations took place in the
employee parking lot, located about a half-block from the facil-
ity, and at One Chase Manhattan Plaza in Manhattan where
employees from both the Elmsford and JFK facilities congre-
gate each day after making pickups and deliveries. On or about
September 1, Purdy gave Miranda authorization cards and
Miranda began distributing the cards on September 6. He dis-
tributed cards at One Chase Manhattan Plaza and in the em-
ployee parking lot after work. Together with Miles, he distrib-
uted approximately 40 cards, all of which were signed.
Beginning in mid-August, Verderber began soliciting em-
ployee signatures on authorization cards. He did this in the
main employee area in the mornings when employees were
waiting for their work assignments. He also did this in the ga-
rage area, at One Chase Manhattan Plaza, in an area across the
street from the Elmsford facility and in the employee parking
lot. He printed flyers on his home computer and, in the 3 weeks
prior to the November 2 election, distributed them to employ-
ees. He placed flyers on the counter, in the employee bathroom
and on the soda machine in the main employee area.
Beginning in early September, Miles began speaking with
employees and distributing authorization cards in the main
employee area, in the employee parking lot, in front of the
Elmsford facility and at One Chase Manhattan Plaza. Miles
distributed between 40 and 50 cards. Beginning in the second
week of September, and continuing on a daily basis up until the
time of his discharge, Miles distributed union literature in the
garage, in the main employee area and at One Chase Manhattan
Plaza.
On September 22, the Union filed a petition in Case 2–RC–
22286. Daisy Cabrera, secretary to the assistant Regional
Director for Region 2, testified that same day she mailed by
certified mail, no receipt requested, a copy of the petition with
related documents to Respondent. The documents were
addressed to Dominic Colasuonno, Respondent’s president.
Also on that same day, shortly after 4 p.m., Cabrera called
Respondent’s office at the number listed on the petition and
asked the person who answered the phone for the Company’s
fax number. Starting at 4:22 p.m., Cabrera faxed a copy of the
petition and related documents to the fax number given to her
over the phone. The transmission was completed at 4:34 p.m. It
is not disputed that the fax was sent to Respondent’s adminis-
trative offices and to the correct fax number. Carson testified,
however, that the hours of operation of the administrative of-
fices are 8 a.m. to 4 p.m. and that to his knowledge, no one in
Respondent’s offices saw the petition on September 22.
Verderber testified that on one occasion he overheard Domi-
nic Colasuonno, Respondent’s president, talking to employees
inside the vault area. He heard Colasuonno say that he wasn’t
worried about the Union because it would never come into his
company. Verderber could not recall the date Colasuonno made
this statement.
The election was conducted on November 2. Verderber testi-
fied that 2 to 3 weeks prior to the election, Colasuonno au-
thored a letter that was distributed with employees’ paychecks.
The letter, which was not introduced in evidence, stated that
employees’ ability to support their families might be in jeop-
ardy if the Union came in and that the Union could not give
employees anything that Colasuonno did not agree to. At about
the same time this letter was circulated, Mark Casellas and
another route supervisor by the name of Bert, told Verderber
there had been a meeting at which “a list of employees’ names
was out, and they were just basically going down the list, see-
ing who they thought was for the Union and who they thought
was against it.” On another occasion, Bert told Verderber to
think about the way he wanted to vote because if the Union
came in hours would be cut. Neither Casellas nor Bert testified.
E. The Discharge of Miranda
1. Miranda’s version
On Thursday, September 21, Miranda went to see his doctor
and was told he had a cyst that would most likely require im-
mediate surgery. While Miranda was still in the office, the doc-
tor scheduled an appointment for Miranda to see a surgeon the
following Tuesday, September 26, and he also tentatively
AMERICAN ARMORED CAR, LTD. 609
scheduled the surgery for September 29. When Miranda re-
turned to work on September 22, Miranda submitted a written
request to be off on September 26.
Early on the morning of Monday, September 25, Miranda
tried to reach Lysohir on the two-way radio to speak to him
about his leave request for the next day, but was unsuccessful
in contacting him. Sometime between 8 and 9 a.m. that same
morning, a vault clerk contacted Miranda and told him there
was an envelope waiting for him. Miranda could not recall
which vault clerk gave him this message. While still on his
route, at around 4 p.m., Miranda reached Lysohir by radio and
told him the reason he needed the next day off. Miranda also
told him that depending on what the surgeon said, he would
probably need September 29 off as well. According to Miranda,
Lysohir told him it was not a problem and that he could take
September 26 off. Lysohir did not testify about this conversa-
tion with Miranda.
Miranda returned to the Elmsford facility at the end of his
shift at around 8:30 p.m. He retrieved the envelope that was
waiting for him, and inside the envelope was a copy of his writ-
ten leave request. The request was marked “denied” and signed
by Lysohir. According to Miranda, this was the first time any
leave request he had ever submitted had been denied. When
Miranda inquired of the vault clerk, he was told that the enve-
lope had been there since about 8 a.m. Miranda asked if either
Lysohir or Carson were in and he was told they had both left
for the day. Miranda testified that since he had spoken with
Lysohir at 4 p.m., 7 or 8 hours after the envelope had been left
with the vault clerk, he assumed that Lysohir’s oral approval
superseded the written denial.
On September 26, Miranda went to see the surgeon and did
not report for work. According to Miranda, he called Lysohir
later in the day to find out what time he was scheduled to work
on September 27. Lysohir gave him the time to report the next
day, but also told him that Carson wanted to speak with him.
Lysohir testified he reviewed Miranda’s leave request on
Monday, September 25 and marked the slip denied. He did not
speak to anyone before he denied the request. Lysohir further
testified when he arrived at work on Tuesday, September 26,
Carson told him that Miranda was a no-show, no-call and asked
why Miranda was not at work. Lysohir told him he didn’t
know, Miranda had not provided him with a reason. Carson
denied having this conversation with Lysohir.
Miranda testified that on the morning of Wednesday, Sep-
tember 27, Carson called him at his home and asked him why
he had been a no-show, no-call the day before. Miranda ex-
plained that Lysohir had approved his request for the day off.
Carson told him he was fired and hung up. Several minutes
later, Carson called back and asked Miranda to explain to him
in detail what had happened. Miranda again explained that
Lysohir had approved the day off. Carson became loud and said
guys like Miranda thought they could run the company and take
days off whenever they wanted, but that Miranda was not al-
lowed to do whatever he wanted. Carson said he was the boss
and he ran the Company. He told Miranda to bring in his identi-
fication and uniform and to pick up his last check.
On Thursday, September 28, Miranda saw Benitez on the
Grand Concourse in the Bronx. According to Miranda, Benitez
told him he had overheard Carson speaking with Miranda on
the phone the day before. After Carson hung up the phone, he
said, in Benitez’ presence, that he had just finished killing the
head and now he would kill the body, he had one more to go.
Benitez, who was still employed by Respondent at the time of
the hearing, denied making this statement to Miranda. Carson
also denied ever making such a statement.
Miles testified to a similar statement made to him by
Benitez. According to Miles, one evening when Benitez was
checking him in at the end of his shift, Benitez told him he had
witnessed Carson on the phone with Miranda. When Carson
hung up, he said, “good, that’s one Union organizer down, now
we have to get Miles.” Benitez did not testify regarding this
conversation with Miles, and Carson denied making the state-
ment.
2. Carson’s version
According to Carson, on Monday, September 25, Lysohir
told him that Miranda had requested September 26 off and that
he was going to deny the request because of low manpower.
Carson told Lysohir to tell Miranda over the two-way radio that
his request was denied, and also to put the denial in writing.
On direct examination, Carson testified that he reviewed
Miranda’s personnel file prior to making the decision to termi-
nate him. On cross-examination, Carson became confused on
this point, testifying to the following sequence of events which
he recalled occurred on September 26:

A. I came into work approximately, I’d say 7:30.
Q. Did you speak to anyone about Miranda that morn-
ing before you spoke to Miranda?
A. Yes. I don’t remember who, it was somebody in the
vault, and I just—I was in the vault and I waited to see Mr.
Miranda came in . . . I was just questioning if Miranda
came in here, and he didn’t come in yet.
Q. Did you speak to people before you called
Miranda?
A. No.
Q. So, you did not ask Lysohir why Miranda was ab-
sent?
A. Lysohir was not there.3
Q. Did you go upstairs then right after that?
A. No.
Q. When did you call Miranda?
A. Approximately, probably about 8:30 in the morn-
ing.
Q. Between the time you came into work at 7:30 and
the time you called Miranda, did you go upstairs?
A. No, I didn’t.
Q. You testified that you reviewed Miranda’s person-
nel file prior to calling Miranda, right?
A. No, I didn’t.
Q. You did not testify that you reviewed Miranda’s file
prior to deciding to terminate him?
A. No, I—yes, you are right, that is correct. Prior to
calling him, yes I did.

3 Both Lysohir and Carson testified that at the time of these events,
Lysohir did not report for work each day until 10 a.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
Q. And where are the personnel files?
A. Right in my office.
Q. Where is your office?
A. One flight above the vault.
Q. That is upstairs, correct?
A. That is correct.

Carson testified he called Miranda at 8:30 a.m. and asked
him why he had not shown up for work. Miranda responded by
asking the question, “[W]hy doesn’t this place have personal
days?” Carson told Miranda that was not the answer he was
looking for at which point Miranda cursed at him and hung up.
In a memorandum prepared by Carson at 9:30 a.m. on the
morning of September 26, he wrote, “I instructed Mr. Miranda
to return his uniform and ID on 9/28/00 and on that day he will
receive his paycheck.” Carson made no reference in that memo-
randum of having reviewed Miranda’s personnel file prior to
making the determination to terminate him. Carson denied hav-
ing any knowledge of the fact that a petition had been filed
when he made the decision to terminate Miranda.
Carson testified he was unaware of the medical reasons un-
derlying Miranda’s request for the day off and that Miranda
never mentioned these reasons during the September 26 phone
conversation. Benitez, on the other hand, testified that Carson
told him that Miranda had taken 2 days off, not 1 day, and that
Miranda had claimed he was ill.
Respondent’s standard operating procedures manual pro-
vides that if an employee is ill, he must call dispatch at least
one hour prior to his start time. He must also call by 4 p.m. that
same day to inform dispatch of his intentions for the following
day.
3. Previous misconduct by Miranda
Miranda had three written warnings in his personnel file. On
October 29, 1998, he and two other crew members were given a
written warning for leaving a bulkhead door unsecured. On
December 15, 1998, he was suspended for 5 days for leaving a
truck unattended, and on June 8, 1999, he was given a written
warning for failing to report to work or to call in.
4. Other employee misconduct
The General Counsel introduced 94 incident reports involv-
ing 35 employees. Four incidents of insubordination are docu-
mented. In July 1998, Donell Holman failed to attend a manda-
tory employee meeting after having received three notices ad-
vising him that he must attend and was given a 2-day suspen-
sion. In June 1999, Mauricio Vilches was terminated for having
reported for weekend work only 50 percent of the time over a
2-month period. In February 2001, Larry Cohen refused to
follow instructions and no disciplinary action was taken other
than a writeup. In April 2001, Jeffrey King refused to follow
instructions and Benitez recommended that he receive a 1-day
suspension. Of the 94 incident reports, this was the only one
signed by Benitez.
There were numerous instances of employees failing to re-
port to work and failing to call.
Prior to September 26, two employees (Polk and Connelly)
were terminated in May for being no call/no show in 3 consecu-
tive weeks. Two employees (Guzetta and Baron) received no
discipline other than being written up. Another employee
(Tucker) was sent home after the second time he was a no
call/no show. After September 26, five employees (Bovan,
Duncan, Dunston, Monegro, and Noble) were no call/no show
(one of them for 2 consecutive days) and no disciplinary action
was taken other than a writeup. Two employees (Perez and
Lane) were suspended for one day. In 1998, Henry Tucker had
two no shows/no calls, three latenesses, two unauthorized ab-
sences and a positive drug test. He was suspended after the
drug test.
Of the 14 incident reports prepared by Lysohir, 10 were for
latenesses, 1 for a no call/no show, 1 for an unauthorized sick
day and 1 for an improper safety procedure. In none of these
reports did Lysohir recommend disciplinary action be taken.
F. The Discharges of Miles and Verderber
1. The missing property bag
On June 26, a courier named Bradshaw picked up bag
#G006353, containing over $25,000, from Lundy’s Restaurant.
At the end of his shift, Bradshaw turned the bag over to vault
personnel at the JFK facility. Robert Peterson, a vault clerk,
received the bag and gave it to a shuttle truck operator who
transferred it to the Elmsford facility. Carson testified he did
not know the names of the transporting employees and that
there are no records documenting the transfer of the bag be-
tween the two facilities. He did acknowledge that the transfer
might be reflected in the Company’s computerized database.
On the morning of June 27, Miles signed for bag #G006353.
The bag was listed on Miles’ payout sheet and was to be depos-
ited at Chase Bank at 55 Water Street in Manhattan. The bag
was not, however, listed on Miles’ route sheet. Miles could not
recall the vault clerk who checked him out that morning, and
the space for the vault clerk’s signature on the payout sheet was
left blank.4 Miles worked that day with two other crew mem-
bers, Verderber and Garafolo. At the end of the shift, Miles
went through the pay-in procedures without incident and the
crew was cleared to leave by the vault clerk.
Carson testified that in mid-July, he was contacted by a rep-
resentative of Lundy’s who advised him that the $25,000 was
never deposited at Chase Bank. Together with Castro, Carson
went to the vault area and conducted a search which Carson
described as follows:

On going through all the work, it took almost an hour, 45
minutes to an hour, we found the receipt somewhere mixed in
with the paperwork on the side—it wasn’t in that box. Paper-
work was everywhere, and I just happened to see the receipt,
and I showed it to Mr. Castro, and I showed it to him and that
it was the original receipt with the yellow attached to it, the
yellow ply attached to it, and it didn’t have a signature on the
bottom. . . . And all the paperwork was on me and Mr. Castro
going through it. I happened to find the receipt on the side, I
don’t know if it was in the box or not, but I happened to see it

4 Respondent’s standard operating procedures manual provides that
the vault clerk is supposed to sign the payout sheet. Castro testified the
failure of the vault clerk to sign the payout sheet is an irregularity.
AMERICAN ARMORED CAR, LTD. 611
there. It wasn’t stapled to nothing. Usually everything is sta-
pled.

Carson reviewed the surveillance videotape for June 27. He
observed the payout process at the beginning of the shift and
saw Miles sign the payout sheet and hand it to the clerk. He
also reviewed the pay-in procedures at the end of the shift. He
observed Miles and Verderber put 10 to 11 bags on the counter,
saw Miles hand the dead receipts to the vault clerk, and saw the
vault clerk check the bags in. He also saw the vault clerk give
Miles, Verderber, and Garafolo clearance to punch out and
leave. Carson did not observe anything out of the ordinary in
either the payout or pay-in procedures that day and he did not
preserve the videotape.
Carson testified he called every bank that every truck crew
went to on June 27. He called each bank two or three times
over a period of 3 months and documented the times and dates
of every call and the name of the person to whom he spoke. He
further testified that Miles was an excellent employee whose
paperwork was impeccable, and he thought that eventually the
bag would show up.
In October, Carson contacted Antonio Palmiotto, an insur-
ance broker and informed him of the loss. Palmiotto testified
they spoke only briefly and Respondent never submitted a
claim for the loss.5 Palmiotto further testified that in these cir-
cumstances a claim would normally have been filed and he
could not explain Respondent’s failure to do so. He did testify
that it is not unusual for there to be a delay in reporting a loss
and for a parcel to be missing for a week or two or even longer
and then show up somewhere.
2. The request for polygraph examinations
In October, Carson contacted a polygrapher, Ed Torian.
Torian told him that whoever had access to the missing bag
should be polygraphed. Carson identified six persons who had
such access: the three employees on the truck, Miles, Garafolo,
and Verderber, and the three employees who worked in the
vault on the evening of June 27, Benitez, Cortes, and Castro.
He did not include the two vault clerks who worked on the
morning of June 27, Ernest Muscarella and Kenny Rubero. Nor
did he include Bradshaw’s crew, the shuttle truck crew, or any
of the employees, supervisors, and managers who had access to
the vault in the period between June 27 and mid-July when
Lundy’s reported the missing deposit. Benitez, Castro, Cortes,
and Garafolo agreed to take the test and were released from
suspicion.
On the evening of October 16, Carson and Verderber spoke
twice by telephone. Carson asked Verderber to come to the
Elmsford facility and submit to a polygraph examination.
Verderber stated he had been drinking a little and did not want
to drive.

5 Respondent’s employees are not bonded. Therefore, the only reim-
bursement mechanism for a loss is Respondent’s insurance policy with
Palmiotto. As of the time of the hearing, Respondent had not filed an
insurance claim for the lost money, even though Carson and Charles
Strebeck testified that Lundy’s was reimbursed the $25,000. Nor had
Respondent filed a police report or commenced civil proceedings
against anyone for the loss.
On October 17, Miles returned to the Elmsford facility
around 8 p.m. Miles testified that Carson called to him from the
vault area and said he wanted Miles and Garafolo to take a
polygraph. Miles asked what for and Carson said that a bag was
missing off of Miles’ truck. Miles asked when the bag was first
missing because he had not heard anything about it, and Carson
said the bag had been missing since June. Miles said he was not
going to take a polygraph and Carson told him to step inside the
coin room. Both men entered the coin room where they contin-
ued to argue. Miles asked to be shown the videotape for the day
in question and Carson refused. Miles said he would not take a
polygraph examination without first speaking with his attorney.
Carson told him he was terminated, to turn in his ID and uni-
forms and to go home. According to Carson, after Miles re-
fused to take a polygraph in the absence of his attorney, Carson
told Miles he could have an attorney present, but Miles still
refused. Carson testified he suspended Miles for refusing to
take the polygraph exam but did not terminate him.
On October 18, Verderber returned to the Elmsford facility
around 8 p.m. and was told Carson had already left. Verderber
spoke to Carson by phone and told him he was not going to
submit to a polygraph. According to Verderber, Carson stated,
“[I]f you don’t take the test, I can’t let you put food on the table
anymore. I’m going to have to take your ID back.” According
to Carson, he told Verderber that he was suspended for failing
to cooperate with the investigation.
IV. ANALYSIS
A. Supervisory Issues
Respondent denies that Lysohir, Castro, Benitez, and Casel-
las are supervisors within the meaning of the Act. Section 2(11)
of the Act defines “supervisor” as:

any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with
the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.

The statutory indicia are listed in the disjunctive; the possession
of any one of them is sufficient to establish an individual as a
supervisor. The exercise of any such authority, however, must
involve the use of independent judgement. The burden of prov-
ing supervisory status is on the party alleging that such status
exists. Webco Industries, 334 NLRB 608, 609 (2001).
Lysohir testified that he set up truck routes, assigned drivers
and couriers to those routes, made sure pickups and deliveries
were made, and approved requests for time off. There is no
evidence from which to conclude whether or not Lysohir exer-
cised independent judgment in performing these tasks. Nor is
there sufficient evidence to determine what, if any, disciplinary
authority Lysohir possessed or exercised. In the 14 incident
reports prepared by Lysohir, he did not recommend disciplinary
action in any of them, and there is no evidence that disciplinary
action was taken as a result of Lysohir’s reports. With respect
to employee requests for time off, the sole criteria Lysohir used
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
was manpower needs. Lysohir’s job was to make sure there
were at least two, and preferably three employees, on each
truck. It does not require independent judgment to perform such
a simple calculation. I find the General Counsel, who has the
burden of proof, has failed to adduce sufficient evidence to
establish Lysohir was a supervisor within the meaning of Sec-
tion 2(11).
With respect to Castro and Benitez, the evidence of their su-
pervisory status is equally sparse. Both had the authority to
direct truck crews to additional pickups and deliveries. It is not
clear, however, if they exercised independent judgment in mak-
ing these assignments or if it was a routine exercise, i.e., direct-
ing the crew nearest to the location to make the pickup or de-
livery. It is also not clear if Castro and Benitez made these as-
signments independently or if they were conveying directions
given by a higher management authority. Benitez prepared only
one of the 94 incident reports introduced in evidence, and in
that report he recommended the employee receive a 1-day sus-
pension. Castro completed 11 incident reports and in only one
report did he recommend that an employee be suspended. There
is no evidence that either recommendation was followed. The
fact that Benitez characterized himself as the highest ranking
member of management in the evening hours does not, without
more, confer supervisory status. Training School at Vineland,
332 NLRB 1412 (2000). I find the General Counsel has failed
to adduce sufficient evidence to conclude that either Castro or
Benitez is a supervisor within the meaning of Section 2(11).
With respect to Casellas, there is no evidence that as a route
supervisor he possessed any of the statutory indicia of supervi-
sory status. That he attended a meeting at which “they,” pre-
sumably members of management, discussed employee interest
in the Union does not attest to his supervisory status. Moreover,
Verderber testified that after Casella’s promotion, Casellas
continued to drive a truck and Verderber did not observe any
change in his duties. I find the evidence fails to establish that
Casellas is a supervisor within the meaning of Section 2(11).
B. Agency Issues
With respect to Lysohir, Castro, and Benitez, Respondent
admits they were agents of Respondent at all times material to
this case. The issue is whether Benitez was an agent of Re-
spondent for the purpose of communicating to employees Car-
son’s statement that he had fired one union supporter and had
one more to go.
The Board applies common law principles of agency when it
examines whether an employee is an agent of an employer
while making a particular statement or taking a particular ac-
tion. Under these common law principles, the Board may find
agency based on either actual or apparent authority to act for
the employer. As to the latter, apparent authority results from a
manifestation by the principal to a third party that creates a
reasonable basis for the latter to believe that the principal has
authorized the alleged agent to perform the acts in question.
The test is whether, under all of the circumstances, employees
would reasonably believe that the employee in question was
reflecting company policy and speaking and acting for man-
agement. The Board considers the position and duties of the
employee in addition to the context in which the behavior oc-
curred. Thus, it is well settled that an employer may have an
employee’s statement attributed to it if the employee is held out
as a conduit for transmitting information from management to
other employees. Cooper Hand Tools, 328 NLRB 145 (1999).
In applying these principles here, I find the General Counsel,
who bears the burden of proof, has failed to establish that
Benitez was an agent of Respondent for the purpose of advising
Miles and Miranda of the reason for their terminations. Benitez
was not involved in hiring or firing decisions and his involve-
ment in employee discipline was an isolated event. Benitez did
convey messages from Lysohir regarding employee requests for
time off, but there is no evidence that he was charged with
communicating with employees about any other type of em-
ployment decision. I am aware of the uncontradicted testimony
that Benitez was the highest ranking member of management
working in the vault in the evenings, but I do not think that this
fact, without more, establishes Benitez as an agent of Respon-
dent for the specific purpose of communicating to employees
the reason for their discharge.
For the same reasons, I find that there is no evidence to sup-
port a finding of agency with respect to Casellas when he ad-
vised Verderber that he had attended a meeting at which mem-
bers of management had been discussing employee support for
the Union. Casellas possessed neither actual nor apparent au-
thority to make that statement on Respondent’s behalf.
In view of these findings, I do not rely on the statements
made by Benitez or by Casellas in resolving the issue of
whether the discharges of Miles, Miranda, and Verderber were
unlawful.
C. Credibility
I found the testimony of Carson untrustworthy and unreli-
able. With respect to the discharge of Miranda, his testimony
conflicted in several material ways with the testimony of Lyso-
hir, Respondent’s admitted agent, and with Benitez, Respon-
dent’s witness. First, Lysohir testified that he did not speak to
anyone on September 25 prior to making the determination to
deny Miranda’s request for the next day off. Carson, on the
other hand, testified that Lysohir did talk to him on September
25 about Miranda’s request for the next day off and that Carson
instructed Lysohir to tell Miranda that his request was denied.
Second, Lysohir testified that when he arrived at work on Sep-
tember 26 at 10 a.m., Carson asked Lysohir why Miranda was a
no show, no call, and Lysohir said he did not know. Carson, on
the other hand, denied ever having had this conversation with
Lysohir and testified that he had already terminated Miranda by
8:30 a.m., before Lysohir came into work. Third, Carson testi-
fied that during his phone conversation with Miranda, Miranda
had not offered a medical excuse. Benitez, on the other hand,
testified that Carson told him Miranda had said he was ill.
Carson’s testimony was also self-contradictory. On direct
examination, Carson testified that he had reviewed Miranda’s
personnel file prior to making the determination to terminate
him. On cross-examination, however, Carson testified that he
came into work on September 26 at 7:30 a.m., and that between
7:30 and 8:30 a.m. when he spoke to Miranda on the phone, he
did not go into his office where Miranda’s personnel file was
located.
AMERICAN ARMORED CAR, LTD. 613
I found Carson’s testimony regarding the discharges of Miles
and Verderber similarly untruthful. Carson testified to a meticu-
lous dual system of record keeping in Respondent’s vaults. One
would expect no less from an armored car company charged
with the safekeeping of large sums of money and valuables. Yet
when it was allegedly reported to Carson that a bag containing
over $25,000 was missing, Carson testified that he entered the
vault and saw paperwork everywhere, and the receipt in ques-
tion strewn to one side. Carson did not reprimand Castro, the
vault manger on duty, or anyone else for the state of disarray
that, if true, would have constituted a serious lapse in security.
Carson testified he called every bank his employees had con-
tact with and that he kept a record of every call. No such docu-
ment was introduced. Carson viewed the video surveillance
tape for June 27, and fully aware that the tape was a key piece
of evidence in the alleged loss, allowed the tape to be erased.
Carson testified that Lundy’s was reimbursed for the missing
$25,000 deposit, but no canceled check was introduced and no
insurance claim was ever filed.
I found Miranda, Miles, and Verderber to be far more credi-
ble witnesses. Miranda was not always articulate and acknowl-
edged having a limited formal education. He appeared to me to
be incapable of manipulating the facts to his advantage.
Verderber testified in a straightforward manner and was equally
responsive on direct and cross-examination. Miles was the most
articulate and perceptive of the three, and it was readily appar-
ent why Respondent considered him to be a outstanding em-
ployee. He had an excellent recall of events and his testimony
was consistent with the balance of the credible evidence. In
short, I found all three witnesses to be more believable than
Carson.
Lysohir was still employed by Respondent at the time of the
hearing and he was overly cautious during his testimony. He
appeared to be calibrating his responses, attempting to be truth-
ful while at the same time trying not to give testimony damag-
ing to his employer. I credit Lysohir only to the extent indi-
cated.
D. Respondent’s Knowledge of Union Activities
A prerequisite to establishing that Miranda, Miles, and
Verderber were wrongfully discharged is finding that Respon-
dent knew of their union activities. Knowledge need not be
established directly, but may rest on circumstantial evidence
from which a reasonable inference of knowledge may be
drawn. The Board has inferred knowledge based on such cir-
cumstantial evidence as the timing of the allegedly discrimina-
tory action, an employer’s general knowledge of union activi-
ties, animus, and disparate treatment. The Board additionally
has relied on factors including the delay between the conduct
cited by the Respondent as the basis for the discipline and the
actual discharge, and, in the case of multiple discriminatees,
that the discriminatees were simultaneously discharged. Mont-
gomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. 97
F.3d 1448 (4th Cir. 1996), and cases cited.
Respondent’s general knowledge of its employees’ union ac-
tivities is established as of the morning of September 25. The
petition was filed in the regional office on September 22 and
faxed to Respondent’s offices at around 4:30 p.m. that same
day. Carson’s testimony that the office was closed at 4:30 p.m.
is highly suspect, given the fact that only minutes before,
someone answered the phone and responded to the Board’s
representative request for a fax number. Nevertheless, accept-
ing Respondent’s position that the office was closed at the time
of the fax transmission on September 22, it is clear that the
office reopened on September 25 at 8 a.m. Respondent does not
dispute that it maintains its fax machine as a regular means of
communication, and that the petition was faxed to the correct
number. The evidence therefore establishes that the petition
was received in Respondent’s office on the morning of Sep-
tember 25. The demonstrated receipt of the faxed petition by
Respondent’s machine creates the presumption that Carson was
aware of the petition that same day, and I discredit Carson’s
vague testimony that he was unaware of the petition until some
later unspecified time. I find Carson’s knowledge of the peti-
tion is established as of the morning of September 25. B&C
Contracting Co., 334 NLRB 218, 219–220 (2001).
Further evidence of Respondent’s general knowledge of its
employees’ union activities is found in the credible and unre-
butted testimony of Verderber. Verderber testified he overheard
Colasuonno telling employees that he wasn’t worried about the
Union because it would never come into his Company. Al-
though Verderber did not recall the date this statement was
made, it clearly was made prior to Verderber’s discharge on
October 18. Verderber further testified, without contradiction,
that Colasuonno wrote a letter to employees in mid-October
stating that employees’ ability to support their families might
be in jeopardy of the Union came in. Not only does this memo
evidence Respondent’s knowledge of employees’ union activi-
ties, it also demonstrates Respondent’s animus toward those
activities.6
Respondent had specific knowledge of the union activities of
Miles and Verderber. The evidence shows that in August and
September, Miles and Verderber distributed authorization cards
and union literature in the main employee area and in the ga-
rage, both areas of the facility which were monitored by Re-
spondent’s security cameras. Carson testified that the video
system allowed for both real time viewing and taped viewing. It
is reasonable to infer that Respondent used the surveillance
cameras for their designed purpose, i.e., to monitor the activi-
ties of its employees for security purposes. In doing so, I find
Respondent acquired the knowledge of Miles and Verderber’s
union activities in August and September. Montgomery Ward &
Co., supra at 1254.
There is evidence that Respondent also had specific knowl-
edge of Miranda’s union activities. In the course of his phone
conversation with Miranda on September 27, Carson made the
statement that guys like Miranda thought they could run the
company and take days off whenever they wanted. Carson said
he was the boss and he ran the Company. The General Counsel
argues that this statement shows knowledge of Miranda’s union
activities and I agree. Miranda had only one previous incident
of taking an unauthorized day off, and that occurred in June

6 Neither of these statements by Respondent’s president is alleged as
violating Sec. 8(a)(1) and I make no such finding. I do, however, rely
on these statements as evidence of knowledge and animus.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
1999, more than a year prior to this conversation. The only
association Miranda had with other employees at the time of his
discharge was his participation in union activities with Miles
and Verderber. Carson’s statement evidences his awareness of
that association.
The timing of the three discharges, all occurring between the
filing of the petition and the election, is further evidence of
Respondent’s knowledge of Miranda, Miles and Verderber’s
union activities. Miranda was terminated on September 27, 2
days after Respondent’s receipt of the petition. Miles and
Verderber were terminated 3 weeks later for refusing to coop-
erate in the investigation of a loss that had allegedly occurred
four months before.
E. Wright Line Analysis
In all cases alleging a violation of Section 8(a)(3) or viola-
tions of 8(a)(1) turning on employer motivation, the General
Counsel is required, in the first instance, to make a prima facie
showing sufficient to support the inference that protected con-
duct was a motivating factor in the employer’s decision. Once
this is established, the employer has the burden to demonstrate
that the same action would have taken place even in the ab-
sence of the protected conduct. Wright Line, 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). The General Counsel has
made out a prima facie case.
It is Respondent’s position that Miranda was terminated for
insubordination arising out of his failure to report to work on
September 26. It is true that Miranda was given a copy of his
written request marked denied. It is also true, based on the
credible testimony of Miranda, that Lysohir told him, in a radio
communication, that he could have the day off. Four employees
testified that in the course of their employment, they had sub-
mitted 37 requests for leave, some oral, some written, and all
granted by Lysohir. Given this circumstance, it was entirely
reasonable for Miranda to assume that Lysohir’s oral approval,
given at 4 p.m., superseded his written denial that had been
delivered to the vault clerk hours before. I credit Miranda’s
testimony that he called in to work on the afternoon of Septem-
ber 26, as required by Respondent’s standard operating proce-
dures manual, and was told by Lysohir to report for work the
next day. I further credit his testimony that Carson called him
on the morning of September 27, not September 26 as testified
to by Carson, and told him he was terminated.
Assuming Miranda had been given unequivocal notice that
his request for the day off was denied, which assumption is not
warranted by the credible evidence, I would nevertheless con-
clude that Miranda was treated disparately from other employ-
ees. The only other employee previously terminated for insub-
ordination was Mauricio Vilches who failed to report to work
four weekends in a 2-month period. Two employees were ter-
minated for no shows, no calls, but only after they had each
done so in 3 consecutive weeks. As previously noted,
Miranda’s prior single incident of no show, no call occurred
more than a year before his termination.
Carson’s attention to Miranda’s attendance is clear evidence
of disparate treatment. Prior to September 25, Carson had never
involved himself in requests for time off. Lysohir made those
determinations and it was a routine exercise. Carson’s admitted
involvement in the decision whether to grant Miranda’s request
and his waiting in the vault area on the morning of September
26 to see if Miranda came in, suggest that Carson had orches-
trated events for the purpose of putting Miranda in a situation
where it could later be argued that he was insubordinate.
For these reasons, I find Respondent has failed to demon-
strate that it would have discharged Miranda in the absence of
his union activities. I further find his discharge violated Section
8(a)(1) and (3) of the Act.
It is Respondent’s position that Miles and Verderber were
suspended for refusing to cooperate in the investigation into the
disappearance of bag #G006353. Contrary to this position, I
find the investigation into the alleged loss was a barely-
concealed scheme by Carson to justify his unlawful termina-
tions of Miles and Verderber. In the first instance, it is not at all
clear that the money did, in fact, disappear. There is no can-
celed check proving Respondent reimbursed Lundy’s for the
loss and Respondent never filed an insurance claim, a fact
which Respondent’s own insurance agent found odd. Even
more significant, Respondent has in its possession computer-
ized records which would show every movement of bag
#G006353 and when it was last accounted for. Respondent
chose not to introduce that evidence.
Nor is it clear that Miles and his crew ever took possession
of the bag on the morning of June 27. There was a discrepancy
in Respondent’s computer generated reports. The bag was listed
on Miles’ payout sheet, but was not listed on his route sheet. It
is entirely possible that the bag number was called out by the
vault clerk, that Miles circled the bag number on his payout
sheet, but that Miles never, in fact, received the bag. Because
the bag was not listed on his route sheet, he would not have
noticed the bag was missing as he proceeded on his route. The
vault clerk did not sign the payout sheet, in violation of Re-
spondent’s standard operating procedures, and Respondent did
not identify, nor call as a witness, the vault clerk on duty that
morning. It is ironic that just 1 week prior to June 27, Verder-
ber had experienced a similar situation. Vault clerk Kenny Ru-
bero had called out a bag number and Verderber had checked
off the number on his payout sheet. Rubero did not, however,
put the bag in Verderber’s basket, claiming he had become
distracted.
Assuming Miles and his crew did take possession of the bag
on the morning of June 27, they accounted for the bag when
they cleared their route that evening. Carson’s review of the
videotape confirmed that Miles and his crew were cleared by
the vault clerk, and a crew cannot be cleared until every item of
property is accounted for. Assuming there ever was a time
when the Lundy’s bag was missing, Miles and Verderber were
cleared of any suspicion when Carson reviewed the videotape
in July. They remained free of suspicion until Carson resur-
rected the issue in the weeks before the election. Respondent
contends that it took Carson 3 months, from mid-July to mid-
October, to complete his phone survey of all the banks that
might have had possession of the bag. Not only do I discredit
Carson’s testimony on this point, the investigatory log which
Carson allegedly maintained was not introduced. I draw an
AMERICAN ARMORED CAR, LTD. 615
adverse inference from Respondent’s failure to introduce that
evidence. Zapex Corp., 235 NLRB 1237, 1239 (1978), enfd.
621 F.2d 328 (9th Cir. 1980).
Carson testified the standard used for determining who
should be polygraphed in a loss situation is anyone who had
access to the bag. Yet Carson excluded from the list of names
given to Torian any number of employees who had access to
bag # G006353 between June 27 and mid-July, most notable
among them Muscarella and Rubero, the two vault clerks who
worked on the morning of June 27.
Contrary to Respondent’s argument at the hearing and in its
brief, it did not comply with the requirements of the Employee
Polygraph Protection Act (EPPA), 29 U.S.C. § 2001, et seq.
(1988), when it insisted Miles and Verderber submit to poly-
graph examination. Respondent failed to provide Miles or
Verderber with a written statement setting forth with particular-
ity the incident being investigated, failed to give them a state-
ment indicating that they had access to the property, and failed
to give them a statement describing the basis of Respondent’s
reasonable suspicion that they were involved in the incident. 29
U.S.C. § 2006(d). Nor were they provided with written notice
of the date, time, and location of the test, written notice of their
right to obtain and consult with counsel before each phase of
the test, written notice containing specifics of how the testing
would be conducted, or an opportunity to review all questions
to be asked during the test. 29 U.S.C. § 2007(b)(2)(A) through
(E).
Respondent’s right to lawfully conduct polygraph examina-
tions within the prescriptions of the EPPA is not challenged.
Respondent’s demand that Miles and Verderber submit to
polygraph examination was not the result of any legitimate
investigation, however, but was motivated solely by their ac-
tivities in support of the Union. As such, their terminations for
refusing to submit to the exam violated Section 8(a)(1) and (3)
of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act on
September 27, 2000, by discharging Fernando Miranda.
4. Respondent violated Section 8(a)(3) and (1) of the Act on
October 17, 2000, by discharging Leonard Miles.
5. Respondent violated Section 8(a)(3) and (1) of the Act on
October 18, 2000, by discharging John Verderber.
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.
Respondent, having discriminatorily discharged Fernando
Miranda, Leonard Miles, and John Verderber, must offer to
them reinstatement and make them whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from the
date of their respective discharges to the date of a proper offer
of reinstatement to each of them, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]