Central Security Services

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 239 (N.L.R.B. 1994)

239
315 NLRB No. 34
CENTRAL SECURITY SERVICES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 adopting the judge’s findings that the Respondent’s discipline
of Brady and Clarke and discharge of Brady violated Sec. 8(a)(1)
of the Act, we find, contrary to the judge, that Wright Line, 251
NLRB 1083 (1980), is applicable. Applying the analysis of that case,
we find that the General Counsel made out a prima facie case and
that the Respondent did not either rebut it or establish the affirma-
tive defense allowable under Wright Line.
Additionally, we adopt the judge’s finding that the Respondent
treated employees Brady and Clarke in a disparate manner when it
disciplined them for circulating, discussing, and soliciting coworkers’
signatures regarding a letter about the employees’ terms and condi-
tions of employment. We also adopt the judge’s finding that the Re-
spondent failed to establish that Brady left his guard post at a time
that he was supposed to have been working in order to solicit em-
ployee Banda to sign the letter. We decline, however, to adopt the
judge’s apparent alternative rationale that even if Brady had left his
post while he was supposed to have been working, discipline of him
for this conduct would have constituted disparate treatment. While
the evidence shows that the Respondent’s employees routinely en-
gaged in solicitation and discussion activities for nonwork purposes
during working hours, it was not shown that they left their assigned
posts at times when they were supposed to have been working in
order to engage in such activities.
2 As part of his remedy, the judge provided that the Respondent
shall ‘‘offer Brady reinstatement to his former or a substantially
equivalent position.’’ We shall modify the judge’s reinstatement lan-
guage to accord with that traditionally used by the Board.
3 The judge’s description of the contract as having a 5-year term
but reserving to the USMS an annual right to cancel is in error.
Central Security Services, Inc. and John E. Brady.
Case 20–CA–22502
September 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On June 24, 1992, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent filed exceptions and a supporting 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.2
We are adopting in large part the decision of the ad-
ministrative law judge. Several modifications are noted
in footnote 1, supra, however, and we set forth at
greater length in section II below our reasons for not
adopting all of his recommendations with respect to
certain of the Respondent’s rules of conduct alleged as
violations of Section 8(a)(1) of the Act. For the rea-
sons stated in section I below, we agree that we have
jurisdiction over the Respondent. In so doing, we reject
the Respondent’s contention that the control exercised
by the United States Marshals Service (USMS) over
the Respondent’s labor relations and the working con-
ditions of the Respondent’s court security officers
(CSOs) is so pervasive that meaningful collective bar-
gaining with a labor organization representing the
CSOs would not be practical and that therefore the
Board’s assertion of jurisdiction is improper under the
test of Res-Care, Inc., 280 NLRB 670 (1986).
I. JURISDICTIONAL ISSUE
A. Pertinent Factual Findings
The Respondent is in the business of providing secu-
rity services. In this case, pursuant to a contract with
the USMS, an agency of the Federal Government, the
Respondent provided security services at Federal court-
houses within the jurisdiction of the United States
Court of Appeals for the Ninth Circuit. The contract
between the USMS and the Respondent stated that the
USMS had responsibility for Federal court security and
needed skilled security officers to provide a ‘‘daily de-
terrent and reactionary force’’ against unauthorized ac-
tivities directed toward court personnel and property.
The USMS contracted with the Respondent to provide
‘‘except as otherwise specified . . . all necessary man-
power, supervision, transportation, and clothing to per-
form court security services for each USMS District
covered by this award.’’
The contract, which began in 1988, was for 1 year
and granted the USMS an option to renew annually for
a total duration of no more than 5 years.3 The contract
required the Respondent to provide not only CSOs but
also an onsite supervisor at each facility. Additionally,
the Respondent was required to have a contract man-
ager available at all times for such purposes as re-
directing CSOs in their duties, removing CSOs from
their posts, and receiving and executing directions
from the USMS. The CSOs were assigned to fixed
posts and roving patrols within court buildings. As
provided by the contract, CSOs received special, lim-
ited deputation through the USMS empowering them
to enforce Federal law on Federal property in perform-
ance of contract duties during normal duty hours.
The contract incorporated CSOs’ wage rates, includ-
ing annual increases, that the Respondent had submit-
ted in the wage compensation plan required as part of
its contract proposal. The Respondent was prohibited
from paying lower wages unless it obtained USMS ap-
proval for reductions in its compensation plan. The Re-
spondent was free to pay wages greater than the rates
specified in the plan. The Respondent, however, would
not be reimbursed by the USMS for amounts over the
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 41 U.S.C. § 351 et seq.
5 The judge found that upon the USMS’s acceptance of the Re-
spondent’s bid, the wage and benefit schedule contained in that bid
became fixed, subject to increase only on DOL adoption of an area
prevailing wage exceeding the Respondent’s wage and benefit sched-
ule. As indicated above, however, the evidence shows that the wage
and benefit schedule set only the Respondent’s reimbursement rate
from the USMS; it did not bar the Respondent from paying its CSOs
a higher rate.
contract rates without prior approval of the USMS.
Nicholas Laporte, the Respondent’s vice president for
administration, testified that the Respondent could in-
crease the CSOs’ hourly wages above the rate the Re-
spondent was reimbursed by the USMS, ‘‘but we don’t
as a rule do that’’ because ‘‘we couldn’t afford it.’’
As the contract was subject to the Service Contract
Act of 1965,4 the wage rates could not be below the
prevailing area wage determined by the Secretary of
Labor. The contract provided, in a section concerning
multiyear and option contracts, that ‘‘[t]he minimum
prevailing wage determination, including fringe bene-
fits . . . current at the beginning of each renewal op-
tion period, shall apply to any renewal of this con-
tract.’’ If the prevailing wage increased to a level
above that set in the contract, the Respondent would
be required to pay no less than the prevailing wage
and would be reimbursed at the prevailing wage rate
by the USMS.
The wage determination also mandated certain mini-
mum fringe benefit levels for health and welfare, vaca-
tions, and number of holidays. However, the Respond-
ent had discretion to pay its CSOs a specified hourly
amount in lieu of health and welfare coverage. Addi-
tionally, the Respondent was not prohibited from ex-
ceeding the minimum benefit levels or from providing
additional types of benefits. According to Laporte, the
Respondent provided its CSOs 3 days of bereavement
leave, which the wage determination did not require.5
When the Respondent began work under its contract
with the USMS, it hired the CSOs who had been em-
ployed by the prior contractor. In filling job openings
that subsequently occurred, the Respondent advertised
the jobs, gathered applications, interviewed applicants,
and had them complete application forms provided by
the USMS. To be hired, applicants had to meet train-
ing, experience, and medical requirements set by the
USMS. The Respondent decided which applicants’
forms to submit to the USMS for background inves-
tigation. The contract provided that a CSO could not
begin work prior to passing the USMS’ preliminary
background investigation. After a further investigation,
the USMS, if not satisfied, could require the CSO’s re-
moval from duty.
On the job, CSOs received work assignments and
directions from lead CSOs employed by the Respond-
ent. As provided by the contract, USMS personnel did
not usually issue directions to a CSO except in an
emergency. Rather, USMS officials communicated
their wishes to the Respondent’s contract manager or
a lead CSO. According to Lead CSO James Perkins,
the Respondent’s lead CSOs decided which CSO to as-
sign to each post and transferred CSOs from one loca-
tion to another without seeking approval of USMS per-
sonnel. The CSOs’ paychecks were issued by the Re-
spondent.
The USMS, however, was involved with the Re-
spondent’s operations under the contract in a number
of respects. Pursuant to the contract, the USMS deter-
mined the location and number of CSO posts, the du-
ties to be performed at each post, the hours of cov-
erage and workshifts, and the length of CSOs’ breaks
and lunch periods. The USMS also required that CSOs
sign in when reporting for duty and sign out at the end
of the work day and determined when overtime would
be worked. The contract also set forth a dress code for
CSOs.
Additionally, the contract contained a ‘‘Removal
from duty/replacement of CSOs’’ clause providing that
the USMS could require the contractor to remove from
the worksite any employee disqualified for suitability
or security reasons or found to be unfit for the per-
formance of security duties. The clause specified 11
types of misconduct or delinquency that could result in
a determination of unfitness, such as neglect of duty,
disorderly conduct, theft, and misuse of weapons.
The contract also contained a ‘‘Standards of Con-
duct’’ clause providing that the contractor was respon-
sible for ‘‘maintaining satisfactory standards of em-
ployee competency, conduct, appearance, and integ-
rity’’ and for taking such disciplinary action as nec-
essary. The clause further provided that the USMS
code of conduct would ‘‘provide the Contractor guid-
ance in developing a standard for employees under this
contract’’ and that the USMS could require the con-
tractor to remove any CSO from CSO duties for dis-
regard of the code of conduct. The USMS code of
conduct was set forth in an attachment to the contract.
Additionally, a contract clause concerning the contract
manager included a requirement that the contract man-
ager enforce CSOs’ adherence to the ‘‘Standards of
Conduct’’ clause.
Laporte testified that the Respondent had terminated
CSOs at the ‘‘implied or express direction’’ of the
USMS and that the Respondent had no private con-
tracts in northern California during 1988 through 1989
(the period during which the events at issue in this
case occurred), although it did have a private contract
in that area in 1991. Deputy United States Marshal
Donald Davey, who was the USMS’ district court se-
curity coordinator in San Francisco, testified that on
two or three occasions the USMS had directed the Re-
spondent to ‘‘let one of the CSOs go.’’
241CENTRAL SECURITY SERVICES
6 The employer in Res-Care had a contract with the U.S. Depart-
ment of Labor (DOL) to operate a residential Job Corps center. The
employer submitted to DOL a detailed proposal, including a list of
job classifications, a labor grade schedule, and a salary schedule set-
ting minimum and maximum wage rates for each labor grade. DOL
also asked the employer to submit its personnel policies, including
fringe benefits. Once the employer’s contract proposal was accepted,
the employer could not change wage ranges or fringe benefits with-
out DOL approval. DOL also retained substantial control over other
aspects of the employer’s personnel policies.
7 The employer in Long Stretch had a contract with a state agency
to operate a juvenile residential facility. The state agency reviewed
the salaries paid by the employer as part of the annual budget proc-
ess and issued general cost guidelines suggesting salary ranges for
each job classification. The state agency’s actual involvement in set-
ting the wages paid by the employer was limited, however, to rare
investigation and discussion of whether the employer was paying
‘‘grossly unfair’’ salaries. The state agency also reviewed the em-
ployer’s benefits but only to insure that certain types of benefits
were provided, without regard to amount.
8 PHP Healthcare Corp., 285 NLRB 182 (1987), cited by the Re-
spondent, is distinguishable in that there, as in Res-Care, the govern-
mental entity directly controlled the minimum and maximum wages
and step increases of the contractor’s employees.
B. Discussion
As established in National Transportation Service,
240 NLRB 565 (1979), the Board will assert jurisdic-
tion over an employer providing services to a govern-
mental entity that is itself exempt from the Board’s ju-
risdiction unless the employer lacks sufficient control
over the employment conditions of its employees to
enable it to bargain with a labor organization as their
representative. In Res-Care, Inc., above, the Board re-
affirmed and clarified the National Transportation test.
The Board stated that it would ‘‘examine closely not
only the control over essential terms and conditions of
employment retained by the employer, but also the
scope and degree of control exercised by the exempt
entity over the employer’s labor relations.’’ 280 NLRB
at 672. The Board noted a core group of basic bargain-
ing subjects and stated that ‘‘if an employer retains
control over decisions affecting those subjects, mean-
ingful bargaining is possible.’’ Id. at 674.
Finding that the exempt governmental entity retained
control over the primary elements of wages and bene-
fits as well as other aspects of the employer’s person-
nel policies, the Board in Res-Care declined to assert
jurisdiction.6 In a companion case, Long Stretch Youth
Home, 280 NLRB 678 (1986), the Board distinguished
Res-Care and asserted jurisdiction based on that em-
ployer’s retention of sufficient control over the essen-
tial terms and conditions of employment.7
Subsequently, in Community Transit Services, 290
NLRB 1167 (1988), the Board clarified that Res-Care
did not ‘‘stand for the proposition that the employer
must retain control over each of the economic aspects
of its labor relations if meaningful bargaining is to be
possible.’’ Id. at 1170 fn. 5. The Board indicated in
Community Transit, however, that control over solely
noneconomic terms would not be sufficient.
It is well established that ‘‘[a]n employer seeking to
avoid the Board’s exercise of jurisdiction carries the
burden of showing that it is not free to set the wages,
fringe benefits, and other terms and conditions of em-
ployment for its employees.’’ R. W. Harmon & Sons,
297 NLRB 562, 563 (1990), citing Firefighters, 292
NLRB 1025, 1026 (1989). We find that the Respond-
ent has failed to satisfy this burden.
We find that the Respondent is largely free to set
the wages and benefits of its CSOs. In formulating its
contract proposal, the Respondent chose the wage rates
that were incorporated in the contract. Once adopted,
these wage rates became a minimum but did not pro-
hibit the Respondent from compensating its CSOs at
higher rates. That the Respondent ‘‘as a rule’’ did not
increase wage rates above the reimbursement rate pro-
vided in its contract with the USMS does not establish
that the Respondent was prohibited from doing so but
only that it preferred not to do so. Thus, unlike in Res-
Care, no maximum limits were imposed on wages the
Respondent could pay.8 Similarly, the Respondent’s
contract required a certain minimum level of benefits,
but the Respondent was not prohibited from exceeding
that level. Even with regard to the mandated health
and welfare benefits, the Respondent had the option of
providing either the benefits themselves or a cash
equivalent.
Additionally, the Respondent’s contract with the
USMS was subject to the Service Contract Act of
1965. In several prior cases, the Board has found that
the Service Contract Act does not bar meaningful bar-
gaining but, rather, accommodates it. As the Board ex-
plained in Dynaelectron Corp., 286 NLRB 302 (1987),
the Service Contract Act provides for substitution of
collectively bargained wages and benefits for the pre-
vailing compensation rates set forth in wage deter-
minations. See Koba Associates, 289 NLRB 390, 393
(1988); Old Dominion Security, 289 NLRB 81 (1988);
see also FKW, Inc., 308 NLRB 598 (1992). Thus, ‘‘if
during the term of the contract, the [Respondent] were
to enter into a collective bargaining agreement . . . the
collectively bargained rates would become the new
wage determination at the next renewal period.’’ Koba
Associates, supra at 394 (fn. omitted). As noted above,
the Respondent’s contract with the USMS provided for
annual renewal periods, with the wage determination
current at the beginning of each period to apply to the
renewal.
There is an exception to the Service Contract Act’s
requirement that collectively bargained wage rates and
benefits be incorporated in the wage determination.
The DOL will not adopt such rates if they are not the
result of arm’s-length negotiations or if the Secretary
of Labor finds, after a hearing, that the wages and ben-
efits clearly are ‘‘substantially at variance’’ with those
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The court of appeals in Hicks v. NLRB (Ebon Research Systems),
880 F.2d 1396, 1399 (D.C. Cir. 1989), rejected the Union’s conten-
tion there that the Service Contract Act would automatically incor-
porate into an existing contract any wage increases derived from col-
lective bargaining. We need not pass on that proposition here. Re-
gardless of whether the Service Contract Act requires incorporation
of subsequently negotiated wage increases into an existing contract,
that Act clearly provides for incorporation of such increases into
subsequent contracts. Thus, under the Respondent’s contract, such
increases could be included in future 1-year contract renewals, which
would occur within a fairly short period of time. In any event, the
court’s concern that adopting into government contracts the wage
terms of subsequently negotiated collective-bargaining agreements
would provide a means ‘‘to milk the government without limit’’ at
no cost to the contractor is addressed by the above-noted exception
to the Service Contract Act providing that the DOL will not incor-
porate wage rates substantially at variance with those prevailing in
the area or not the product of arm’s-length negotiations. See
Dynaelectron Corp., 286 NLRB at 304.
10 Thus, Southwest Ambulance of California, 295 NLRB 125
(1989), cited by the Respondent, is inapposite. In that case, the
Board found that the contractor had little or no flexibility regarding
personnel costs and that the governmental entity had rejected the
contractor’s proposed wage increase for its current contract. The
Board distinguished Old Dominion Security, 289 NLRB 81 (1988),
where, as here, there was no evidence that the exempt entity would
have disallowed expenditures for higher wages and fringe benefits
arrived at through collective bargaining.
11 The Respondent’s reliance on Thums Long Beach Co., 295
NLRB 101 (1989), is misplaced. There the Board declined to assert
jurisdiction over a contractor that could not engage in meaningful
collective bargaining because the governmental entity had the ‘‘final
say’’ over the wages and benefits of the contractor’s employees and
retained control of the very matter over which the contractor was al-
leged to have unlawfully refused to bargain, the subcontracting of
work. In the present case, however, we have found that the Respond-
ent is largely free to set the wages and benefits of its CSOs and
there is no refusal-to-bargain allegation because the employees are
unrepresented.
prevailing in the area. See Dynaelectron Corp., supra
at 304. The Board has found that Congress considered
such circumstances to be unusual. It has noted, how-
ever, that even if a government contractor were forced
to absorb collectively bargained wage increases, this
situation would be no different from that facing any
private company working on a fixed-price contract at
the time a new collective-bargaining agreement is ne-
gotiated and that, in any event, the contractor could
bargain for language in the collective-bargaining agree-
ment protecting it if the rates were not incorporated in
a revised wage determination.9 Id. at 305. Moreover,
in the present case, there is no evidence that collec-
tively bargained wage and benefit increases would not
have been incorporated in the wage determinations
here. See Old Dominion Security, supra at 82.10
The Respondent also has failed to show that it did
not retain control over many of its CSOs’ non-
economic terms and conditions of employment. Thus,
the Respondent solicited, screened, and interviewed job
applicants and decided which applications to forward
to the USMS for security checks. The Respondent had
supervisors present at facilities where its CSOs were
stationed, and the Respondent’s supervisors, rather
than USMS personnel, normally directed and super-
vised CSO activities. Under the contract, the Respond-
ent was responsible for maintaining standards of em-
ployee competency, conduct, appearance, and integrity
and taking disciplinary action to enforce these stand-
ards. While the USMS could disapprove the hiring of
an applicant as a CSO and could order the Respondent
to remove a CSO, this did not preclude the Respond-
ent’s retaining that individual in another capacity, such
as to perform guard service for another client. More-
over, the Board has found a governmental entity’s pos-
session of authority to request a contractor to dismiss
an employee did not preclude the Board’s assertion of
jurisdiction over the contractor. See FKW, Inc., 308
NLRB 598 (1992); Old Dominion Security, 289 NLRB
at 83; Dynaelectron Corp., 286 NLRB at 305. The Re-
spondent’s argument that the USMS’s control over
matters such as employment qualifications, dress
codes, security clearances, work shifts, and CSOs’ du-
ties precludes the Respondent from engaging in mean-
ingful collective bargaining is unpersuasive. In Old
Dominion Security, the Board found similar restrictions
to be operational controls necessary to ‘‘ensure con-
tract compliance and maintenance of security measures
at a secure facility,’’ 289 NLRB at 83, and not to ne-
gate the employer’s ability to engage in meaningful
collective bargaining.11
We also find without merit the Respondent’s argu-
ments that the Board should not assert jurisdiction over
the Respondent because the USMS and the Respondent
are joint employers and because of the essential Fed-
eral role performed by the CSOs. As the Respondent
acknowledges, it is well established that, in determin-
ing whether to refrain from asserting jurisdiction over
a government contractor, the Board does not look to
whether there is a joint employer relationship between
the employer and the governmental entity. Res-Care,
280 NLRB at 673 fns. 12 & 14. Similarly, the Board
long ago rejected the approach of refraining from as-
serting jurisdiction based on whether the employer’s
operations were intimately related to a governmental
function. See National Transportation Service, 240
NLRB 565 (1979). Indeed, from the perspective of
whether a governmental function is being performed,
the role performed by the Respondent’s CSOs is indis-
tinguishable from the security services the employer
performed for the U.S. Navy in Old Dominion Secu-
rity, above, a case in which the Board asserted juris-
diction over the employer. And, more generally, the
Board has repeatedly asserted jurisdiction over em-
ployers providing security services for the Federal
Government. See Champlain Security Services, 243
NLRB 755 (1979); Atlas Guard Service, 237 NLRB
1067 (1978); Federal Services, 115 NLRB 1729
243CENTRAL SECURITY SERVICES
12 Indeed, we note that the Board has asserted jurisdiction over the
Respondent in two prior cases concerning its operations under con-
tracts with the USMS similar to that in the present case. See Central
Security Systems, 21–RC–18978 (June 11, 1992) (unpublished order
denying request for review of Regional Director’s Decision and Di-
rection of Election); Central Security Systems, Case 1–RC–19384
(1990) (same). Although the case captions indicate a slightly dif-
ferent name for the employer in those cases, it is clear from the
record that the Respondent is the same entity as that employer.
Member Browning agrees that the Respondent has not met its bur-
den of proving that it is not subject to the Board’s jurisdiction under
the test set forth in Res-Care, Inc., supra, 280 NLRB 670. In doing
so, however, Member Browning does not pass on the continuing va-
lidity of the Res-Care test.
13 The Respondent excepts to the judge’s finding the Respondent’s
rules 8, 23, and 29 ‘‘void and unenforceable.’’ As indicated above,
we are dismissing the complaint allegation regarding rule 23. With
respect to rules 8 and 29, we note that while the judge used the
‘‘void and unenforceable’’ phraseology in his analysis, he did not do
so in his conclusions of law, remedy, recommended Order, or notice
to employees. Rather, his recommended Order requires the Respond-
ent to cease and desist from maintaining and enforcing rules which
interfere with, restrain, or coerce employees in the exercise of their
Section 7 right to engage in concerted activities for mutual aid or
protection. Accordingly, the judge’s decision does not order the
voiding of these rules in their entirety. We find this remedy appro-
priate in the circumstances of this case. 14 The judge’s conclusions of law are modified accordingly.
(1956); see also U.S. Corrections Corp., 304 NLRB
934, 937 at fn. 32 and accompanying text (1991).
Based on the foregoing, we find that the Respondent
has failed to prove that it did not retain sufficient con-
trol over its CSOs’ wages, benefits, and other terms
and conditions of employment to engage in meaningful
collective bargaining. Accordingly, we will assert juris-
diction over the Respondent.12
II. LAWFULNESS OF PARTICULAR RULES IN THE
RESPONDENT’S CODE OF CONDUCT
In his decision, the judge found, inter alia, that rules
8, 23, and 29 of the Respondent’s code of conduct vio-
lated Section 8(a)(1) of the Act. We agree that rules
8 and 29 are violative, but we reverse as to rule 23.13
Rule 23 required the Respondent’s CSOs to:
Not make statement(s) about fellow employees or
officials with knowledge of the falseness of the
statement or with ruthless disregard of the truth
which would be a defamatory falsehood made
with malice.
The judge did not find rule 23 to have played any part
in the Respondent’s discipline of CSOs Brady and
Clarke or its discharge of Brady, all of which the
judge found unlawful. Rather, he found the Respond-
ent’s maintenance of rule 23 to be unlawful per se.
The cases on which the judge relied in finding the rule
violative establish that ‘‘within the area of concerted
activities, false and inaccurate employee statements are
protected so long as they are not malicious,’’ Wabeek
Country Club, 301 NLRB 694, 699 (1991), quoting
American Cast Iron Pipe Co., 234 NLRB 1126, 1131
(1978), and that, therefore, work rules prohibiting
merely false statements violate Section 8(a)(1). It is
also well established, however, that ‘‘false statements
that are knowingly false and therefore malicious are
unprotected.’’ Radisson Muehlebach Hotel, 273 NLRB
1464 (1985).
The Respondent’s rule 23 did not prohibit state-
ments that were merely false. Rather, the prohibition of
that rule was much narrower. It prohibited only those
statements made ‘‘with knowledge of the falseness of
the statement or with ruthless disregard of the truth
which would be a defamatory falsehood made with
malice.’’ Because such statements are not protected,
see Radisson Muehlebach Hotel, above, we dismiss the
allegation that rule 23 violated Section 8(a)(1) of the
Act.14
The judge found that the Respondent’s rule 29 vio-
lated Section 8(a)(1). Rule 29 provided that ‘‘[o]nce on
duty, the carrying and reading of any type of literature
is strictly forbidden.’’ We adopt the judge’s finding,
but only on the basis that the rule was overbroad in
that it reasonably could be understood to mean that
CSOs were prohibited from carrying or reading lit-
erature concerning union or other protected concerted
activity from the time that they came on duty or began
their shift, including during breaks or meal periods. Cf.
Norris/O’Bannon, 307 NLRB 1236, 1245 (1992) (am-
biguity in work rule resolved against promulgator of
rule); Southeastern Brush Co., 306 NLRB 884 fn. 1
(1992) (rule overbroad as ‘‘company time’’ could rea-
sonably be construed as encompassing both working
and nonworking time).
We find unpersuasive the Respondent’s contention
that its rules cannot be found to violate the Act be-
cause the Respondent was required to adopt the
USMS’ code of conduct, of which two of the rules at
issue are a part. (The Respondent’s rule 29 is not con-
tained in the USMS’ code of conduct.) The Respond-
ent fails to cite any statute mandating that it adopt the
USMS’ code of conduct. Rather, the Respondent’s as-
serted obligation to adopt the USMS’ code of conduct
is based solely on its contract with the USMS into
which the Respondent entered voluntarily.
As noted above, the Respondent’s contract with the
USMS required the Respondent to maintain ‘‘standards
of employee competency, conduct, appearance, and in-
tegrity’’ and stated that the USMS code of conduct,
contained in an attachment to the contract, would
‘‘provide the Contractor guidance in developing a
standard for employees.’’ (Emphasis added.) This pro-
vision did not require that the Respondent adopt the
USMS’s code of conduct but only that the USMS code
of conduct would give the Respondent ‘‘guidance’’ in
developing employee standards. While the contract
also reserved to the USMS the right to require the Re-
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The Respondent required its CSOs to acknowledge in writing
that they had received the Respondent’s code of conduct for CSOs
and that any violation of the code of conduct rules could result in
reprimand, suspension, or ‘‘loss of pay on termination.’’ However,
the record does not support the judge’s statement that ‘‘[u]nder
terms of the contract, USMS required each CSO to acknowledge and
agree to comply with a code of conduct issued by USMS.’’
spondent to remove any CSO for disregard of the code
of conduct, this provision did not require the Respond-
ent itself to adopt the USMS’s code of conduct.
Additionally, the Respondent notes that the USMS
code of conduct contained the following introductory
statement:
The integrity of the Marshals Service is dependent
upon the conduct of its individual employees. A
minimum Code of Conduct is set forth below to
provide guidance in achieving a greater individual
standard.
It is clear from its context and language that this state-
ment was addressed to Marshals Service employees.
Thus, its reference to a ‘‘minimum’’ code of conduct
did not constitute a requirement that the Respondent
adopt at a minimum the USMS’ code of conduct.
Rather, it was an exhortation to Marshals Service em-
ployees to achieve even a ‘‘greater individual stand-
ard’’ than the ‘‘minimum’’ code of conduct set forth
therein.
In sum, while the contract required the Respondent
to maintain standards of employee conduct and re-
quired that the USMS code of conduct serve as guid-
ance to the Respondent, it did not require the Respond-
ent simply to adopt the USMS code of conduct, which
is what the Respondent largely did. Indeed, there is no
indication that the Respondent made any effort to tai-
lor its code of conduct rules so as to take cognizance
of its employees’ Section 7 rights.15
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cen-
tral Security Services, Inc., San Francisco, California,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer John E. Brady immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed. In addition, notify the United
States Marshals Service in the manner set forth in the
remedy section of the judge’s decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate you concerning the iden-
tity of other employees engaged in concerted activities
for employees’ mutual aid or protection or the extent
of other employees’ engagement in those activities.
WE WILL NOT tell you that you cannot engage in
concerted activities for employees’ mutual aid and pro-
tection or that an employee has been discharged for
engaging in those activities.
WE WILL NOT maintain and enforce rules which
interfere with, restrain, or coerce you in the exercise
of your right under the Act to engage in concerted ac-
tivities for employees’ mutual aid or protection.
WE WILL NOT disparately enforce rules against you
for engaging in concerted activities for employees’
mutual aid or protection.
WE WILL NOT warn, place on probation, suspend,
discharge, or otherwise discipline you for engaging in
concerted activities for employees’ mutual aid or pro-
tection.
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 offer John E. Brady immediate and full re-
instatement 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 privi-
leges previously enjoyed, WE WILL notify the United
States Marshals Service that we erroneously advised
them that John E. Brady abandoned his duty post to
solicit an employee’s signature on a letter, and WE
WILL request the United States Marshals Service ap-
prove John E. Brady’s reinstatement and redeputiza-
tion.
WE WILL make John E. Brady whole for any loss
of earnings and other benefits resulting from the dis-
crimination we practiced against him for engaging in
245CENTRAL SECURITY SERVICES
1 Read 1989 after further date references omitting the year.
2 While every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying, and my evaluation of the reliability of
their testimony; therefore any testimony in the record which is in-
consistent with my findings is hereby discredited.
3 Associated Charter Bus Co., 261 NLRB 448 (1982); Res-Care,
Inc., 280 NLRB 670 (1986); PHP Health Care Corp., 280 NLRB
182 (1987); Southwest Ambulance of California, 295 NLRB 125
(1989); Thum’s Long Beach Co., 295 NLRB 101 (1989); Career
Systems Development Corp., 301 NLRB 436 (1991).
4 Long-Stretch Youth Home,, 280 NLRB 678 (1986); ARA Serv-
ices, 283 NLRB 602 (1987); Dynalectron Corp., 286 NLRB 302
(1987); Old Dominion Security, 289 NLRB 81 (1988); Career Sys-
tems Development Corp., 301 NLRB 434 (1991); U.S. Corrects
Corp., 304 NLRB 934 (1991); Hicks v. NLRB, 964 F.2d 11 (D.C.
Cir. 1992), affg. sub nom. Ebon Research Systems, 302 NLRB 762
(1991), and 290 NLRB 751 (1988).
5 Thum’s Long Beach Co., id.
concerted activities for employees’ mutual aid or pro-
tection, less any net interim earnings, plus interest.
WE WILL remove from our records any record of the
discipline we levied against John E. Brady and Edward
Clarke for engaging in concerted activities for employ-
ees’ mutual aid or protection and advise Brady and
Clarke in writing that this has been done and that their
engagement in those activities shall have no effect on
their employment.
CENTRAL SECURITY SERVICES, INC.
Jonathan J. Seagle, for the General Counsel.
Roger Jeanson, Esq. (Berman, Berkley & Lasky), of San
Francisco, California, for Central Security.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On Au-
gust 15, 16, and 19, 1991, I conducted a hearing at San Fran-
cisco, California, to try issues raised by a complaint issued
on April 3, 1989, based on a charge filed by John E. Brady,
an individual, on February 17, 1989, and amended on March
31, 1989.1
The complaint alleged Central Security Services, Inc. (Re-
spondent) at pertinent times was an employer engaged in a
business affecting interstate commerce as defined in Section
2 of the National Labor Relations Act (the Act) and commit-
ted various violations of Section 8(a)(1) of the Act.
The Respondent in its answer to the complaint contended
the National Labor Relations Board (the Board) should re-
frain from exercising its jurisdiction in this case on the
ground it and its affected employees were engaged in render-
ing security services to an entity exempted from the coverage
of the Act (United States Marshals Service—USMS here-
after) which exercised pervasive control over the core em-
ployment conditions of those employees.
The Respondent in its answer also denied committing any
violation of the Act.
The issues created are: (1) whether the Board should re-
frain from exercising its jurisdiction in this case and (2) if
not, whether the Respondent committed the alleged acts,
thereby violating the Act. The General Counsel and the Re-
spondent appeared by counsel and were afforded full oppor-
tunity to adduce evidence, examine and cross-examine wit-
nesses, argue, and file briefs. Both counsel filed briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs and research, I enter the
following
FINDINGS OF FACT2
I. JURISDICTIONAL ISSUE
At all pertinent times the Respondent, a New York cor-
poration headquartered in New York, has been engaged in
the business of providing security services for profit. Its
major business has been providing those services, by con-
tracts with USMS, at Federal district and appellate court-
houses within the jurisdiction of the First, Second, Third,
Ninth, Eleventh, and District of Columbia Circuit Courts of
Appeal.
In 1988 the Respondent supplanted Wackenhut Corpora-
tion as the supplier of those services within the jurisdiction
of the Court of Appeals for the Ninth Circuit, which encom-
passes courthouses in northern California housing United
States district courts and the Ninth Circuit Court of Appeals
in San Francisco, Oakland, Santa Rosa, and San Jose, Cali-
fornia.
It is undisputed the Respondent satisfies the normal stand-
ard for the exercise of the Board’s jurisdiction under Section
2 of the Act, for at all pertinent times the Respondent was
a private, for-profit corporation which received in excess of
$50,000 annually for the services it provided to an entity en-
gaged in interstate commerce—USMS.
The Board has refrained from exercising its jurisdiction
over such private, for-profit employers when the control ex-
ercised by the entity exempt from the Act’s coverage over
the core employment conditions of those employer’s employ-
ees was of such a degree, a labor organization representing
those workers could not bargain meaningfully with those em-
ployers over those conditions,3 and has exercised its jurisdic-
tion over such employers when the employers had discretion
over those core employment conditions.4
All but two of the cases just cited involved representation;
i.e., a private, for-profit employer’s objection to proceeding
to an election based on a union petition for certification as
the exclusive collective-bargaining representative of the em-
ployees of that employer, on the ground an entity exempt
from coverage under the Act exerted such control over its
employees’ core employment conditions the employer could
not engage in meaningful bargaining with respect thereto.
In one exception,5 the Board refrained from exercising its
jurisdiction in a case involving an alleged unfair labor prac-
tice complaint alleging the private, for-profit employer vio-
lated Section 8(a)(5) of the Act by failing to bargain with the
union representing a subcontractor’s employees over the ef-
fect on the subcontractor’s employees of its cancellation of
the subcontracting. The Board refrained from exercising its
jurisdiction on the ground the exempt entity (the city of Long
Beach, California) controlled what subcontractors the em-
ployer could engage. In the other, the Board exercised juris-
diction over a case alleging the private for-profit employer
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Hicks v. NLRB, supra.
7 Central Security Systems, Case 1–CA–28380 (1991).
8 The Respondent, as was customary, avoided time delays and re-
cruitment costs by simply retaining all the CSOs employed by its
predecessor.
9 Such deputization was necessary for the performance of CSO du-
ties, i.e., carrying weapons, effecting arrests, etc.
10 The contract contemplated a 5-year term. USMS, however, re-
served the unilateral right to cancel the contract at each anniversary
date during the term of the contract.
11 The benefit schedule included a paid vacation benefit based
upon years of service. The Respondent interpreted the requirement
as limited to years in its service; USMS disagreed and insisted the
Respondent grant paid vacations based on each CSO’s previous serv-
ice for all contractors to whom USMS awarded contracts for the
Northern California courts. The Respondent accepted the USMS in-
terpretation, though USMS refused to reimburse the Respondent for
the additional and unanticipated additional cost to the Respondent
(which based its bid on its interpretation of the benefit provision).
The contract provision relied upon by USMS stated the Respondent
would not be reimbursed for labor costs exceeding those set forth
in the wage and benefits schedule.
violated Section 8(a)(1) and (3) by discharging an employee
for engaging in union activities and interfering in employee
engagement in union activities.6
In an apparent application of the latter cases in a case in-
volving this employer,7 while the General Counsel refused to
issue a complaint based on portions of a charge alleging
Central Security violated Section 8(a)(5) and (1) of the Act
by changing the hours of employment of security personnel
performing services under a Central Security-USMS contract,
on the ground USMS had and exercised the power to require
the change—the General Counsel reserved ruling on whether
to issue a complaint on the balance of the charge, alleging
violations of other sections of the Act.
In this case, the complaint alleged the Respondent violated
Section 8(a)(1) of the Act by: (1) giving the impression it
was surveilling concerted employee activity protected by the
Act; (2) telling employees they could not engage in con-
certed activities protected by the Act; (3) interrogating em-
ployees concerning concerted activities protected by the Act;
(4) telling employees an employee had been terminated for
engaging in concerted activities protected by the Act; (5)
maintaining and enforcing an unlawful no-solicitation, no-
distribution rule; (6) suspending and discharging an em-
ployee for engaging in concerted activity protected by the
Act; and (7) disciplining another employee for engaging in
concerted activity protected by the Act.
Under the contract between the Respondent and USMS
governing the services provided by the Respondent at the
northern California courthouses, USMS determined:
1. The number and location of the posts to be manned by
the court security officers (CSOs) employed by the Respond-
ent.
2. The duties performed by the CSOs.
3. The CSOs’ duty hours and break times.
4. The number of CSOs the Respondent employed to
render the services required.
5. The CSOs satisfaction the following requirements:
(a) Graduation from a certified federal, state, county or
local law enforcement training program, Military Police
training program or the equivalent.
(b) Completion of 3 years of employment as a certified
law enforcement officer.
(c) Satisfaction of specified physical standards, including
height and weight requirements.
(d) Demonstrates proficiency in weapons handling.
(e) Compliance with a specified dress code and specified
personal grooming standards.
(f) Passing of a background security check.8
USMS also exercised sole and unilateral authority to grant,
deny or rescind deputization of the CSOs as Deputy United
States Marshals (and the issuance, refusal of issuance, and
required return of badges or other forms of credentials estab-
lishing such status).9
Under terms of the contract, USMS required each CSO to
acknowledge and agree to comply with a code of conduct
issued by USMS and empowered its agents, and reserved,
unilateral and final power to direct the termination of any
CSO on the basis of a unilateral determination by USMS the
CSO engaged in misconduct, nonperformance, or failure to
comply with its rules and regulations.
With respect to wages and benefits, USMS required the
Respondent to submit a wage and benefit schedule for the 5-
year contract term10 and, upon USMS’ acceptance of the Re-
spondent’s bid, that wage and benefit schedule became fixed,
subject to increase only upon United States Department of
Labor (DOL) publication of an area prevailing wage and
benefit schedule exceeding the contract wage and benefit
schedule,11 and then only upon USMS approval of the
change necessitated by the DOL determination.
Under the contract, the Respondent was responsible for the
recruitment, screening, and hire of its prospective hires for
work in the northern California courthouses, subject to a se-
curity check and approval by USMS, but avoided the time
and expense associated with that procedure by simply hiring,
with USMS’ approval, the employees of its predecessor.
The Respondent was also responsible under the contract
for ‘‘maintaining satisfactory standards of employee com-
petency, conduct, appearance and integrity and . . . respon-
sible for taking such disciplinary action with respect to his
employees as may be necessary.’’
In this case USMS revoked Brady’s deputization as a
United States Marshal, required his surrender of his creden-
tials, and advised that the Respondent Brady ‘‘had to go’’ on
the basis of information provided by the Respondent and the
Respondent alone engaged in the alleged unlawful acts of
surveillance, interrogation, utterances of coercive statements,
and impositions of discipline (including suspension, dis-
charge, and reduction to probationary status) set forth as un-
fair labor practices in the complaint, as well as the enforce-
ment of rules allegedly violative of the Act.
Were this a case in which a union was seeking, through
a Board-conducted election, certification as the exclusive col-
lective-bargaining representative of the Respondent’s north-
ern California employees—or a bargaining order based on an
alleged violation of Section 8(a)(5) of the Act—Board re-
fusal to exercise its discretionary jurisdictional powers in this
case might be warranted.
This case, however, involves the alleged violation by the
Respondent of Section 8(a)(1) of the Act by interference
with, restraint and coercion of its employees, including dis-
cipline and discharge, for engaging in concerted activities
protected under Section 7 of the Act and the promulgation
247CENTRAL SECURITY SERVICES
12 The complaint alleged, the answer admitted, and I find at all
pertinent times Villella and Perkins were supervisors and agents of
the Respondent acting on its behalf within the meaning of Sec. 2
of the Act. It was undisputed the lead CSOs exercised supervision
and direction of the work of the CSOs at their respective locations
and I therefore find and conclude the lead CSOs at all pertinent
times also were supervisors and agents of the Respondent acting on
its behalf within the meaning of Sec. 2 of the Act.
13 Clarke testified all such discussions occurred while he and those
with whom he discussed the draft were off duty. His testimony is
undisputed and is credited.
and enforcement of rules inhibiting their exercise of their
Section 7 rights.
There are no reported cases where the Board has refrained
from exercising its jurisdiction to determine the merits of a
complaint alleging such unfair labor practices on the ground
an entity exempt from Act coverage, acting on the basis of
information supplied by the employer accused of committing
the unfair labor practices in question, played a role in the
commission of those alleged unfair labor practices, nor
would it be reasonable to so refrain here, enabling the Re-
spondent to escape liability for its acts.
I therefore find and conclude at all pertinent times the Re-
spondent was an employer engaged in commerce in a busi-
ness affecting commerce within the meaning of Section 2 of
the Act (based upon jurisdictional facts recited heretofore)
and further find and conclude this is a case in which the
Board should exercise its plenary jurisdiction to determine
whether the Respondent committed the unfair labor practices
alleged in the complaint, and, if so, determine the appropriate
remedy therefor.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues raised by the complaint and the Respondent’s
answer thereto are whether the Respondent violated Section
8(a)(1) of the Act by.
1. Giving employees the impression it was surveilling their
engagement in concerted activities protected by the Act.
2. Interrogating employees concerning such engagement.
3. Telling employees they could not engage in such activi-
ties.
4. Telling employees an employee had been terminated for
engaging in such activities.
5. Maintaining and enforcing unlawful no-solicitation, no-
distribution rules.
6. Issuing a disciplinary warning to an employee and plac-
ing him on probationary status for engaging in concerted ac-
tivities protected by the Act.
7. Suspending and discharging an employee for engaging
in such activities.
B. Facts
As noted above, in 1988, the Respondent succeeded
Wackenhut Corporation as the provider of CSO services to
USMS in buildings housing Federal courtrooms in northern
California and hired the Wackenhut employees previously
performing those services to provide those services. James
Perkins was retained by the Respondent as its site supervisor
in overall charge of its northern California operations and li-
aison with the United States Marshal in overall charge of se-
curity at the northern California Federal courtrooms and
courthouses. As required by the USMS-Respondent contract,
the Respondent also designated a ‘‘lead CSO’’ as the imme-
diate supervisor of the CSOs employed by the Respondent at
each of the northern California courthouses. Perkins’ imme-
diate supervisor, headquartered in southern California and in
overall charge of all the Respondent’s operations within the
Ninth Circuit, was Fred Villella.12 John Brady and Edward
Clarke were two of the CSOs formerly employed by
Wackenhut who were employed by the Respondent when it
succeeded Wackenhut on the USMS contract covering the
northern California courthouses.
In 1988 both Brady and Clarke were employed at the Fed-
eral building housing the United States District Court in San
Francisco and were close friends. Perkins maintained his of-
fice in the same building.
In 1988 Perkins transferred Brady to the building housing
the Ninth Circuit Court in San Francisco after Brady wrote
a letter to the Respondent’s vice president complaining about
Perkins’ reversal of an agreement by the lead CSO to an ex-
change between Brady and another CSO of their posts for an
hour in the afternoon, Perkins’ refusal to grant him a re-
quested transfer to fill a post and placing a CSO junior to
him in the requested post, whether there was a grievance
procedure and whether the Respondent had a policy regard-
ing the application of seniority to requests for transfers. Nei-
ther the vice president to whom he addressed the letter nor
any other management representative ever responded to
Brady’s letter.
Though the USMS-Respondent contract was effective in
June 1988, by January 1989, the CSOs employed by the Re-
spondent were still unaware of many terms of their present
and future employment, and began questioning their imme-
diate supervisors for that information, without success.
After discussions among a number of the CSOs concern-
ing their dissatisfaction over their inability to secure the de-
sired information, in late January 1989 Brady drafted a letter
based on those discussions, setting forth the information the
CSOs wanted, made copies of the draft, circulated copies to
CSOs at the northern California courthouses (including the
lead CSOs) for discussion and suggestion, and discussed
what the final version of the letter should be with CSOs and
lead CSOs at the various courthouses, including Clarke.
Clarke was an early supporter of the idea of appealing to
the Respondent’s president for the desired information and
supported its preparation and sending, in discussions with
other CSOs at his station.13
The draft read as follows:
Mr. Nicholas F. Pastoressa
President
Central Security Systems, Inc.
Staten Island, N.Y. 10306
Mr. Pastoressa:
This letter is being sent to you as a last resort. Sev-
eral members of the court security unit have made nu-
merous attempts using the chain of command to get an-
swers to the following questions with no results. The
questions we would appreciate you answering are as
follows:
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Clarke’s testimony to the foregoing was uncontradicted and is
credited.
15 The United States Marshall in charge of security for the north-
ern California Federal courts, Glen Robinson, and the Deputy United
States Marshall designated as the contract liaison officer between the
Respondent and USMS with respect to the northern California court-
houses, Donald Davey, were also housed in the building.
1. How many vacation days are we entitled to? Are
they prorated?
2. If so are they beginning with what contract? The
first one or the current one.
3. How many sick days are we entitled to? Are they
pro-rated?
4. Do we have Personal days? If so how many? Are
they prorated?
5. Are we permitted to accrue our vacation and sick
days?
6. Are we entitled to re-imbursement for shoes?
sweaters that we purchase?
We are interested in learning of the health and bene-
fit plan the company offers. Please advise us of the
grievance policy of CSSI, a letter was mailed to Mr.
Paul Haughom Vice-President requesting information
on the matter on August 20, 1988, however, Mr.
Haughom has not acknowledged the letter as of this
date.
We will appreciate, whenever a change in the
amount of money is made on our paychecks, whether
greater or less, an explanation accompanying the check
by way of an Inter-office memo. It has become ex-
tremely difficult at times for us to know exactly what
we are getting and what we are supposed to get.
I do not know if you are aware of it or not but some
of the personnel do not have a complete uniform.
Some of the CSOs have brought some of these ques-
tions to the attention of Mr. Fred Villella, California
contract manager, it appears the questions have been
heard with deaf ears or ignored. Requests for personnel
to meet with Mr. Villella to discuss these questions
when he is in San Francisco also have not been hon-
ored.
The undersigned members of the Court Security Unit
of San Francisco, Oakland & the San Jose area will be
grateful for your expeditious reply to this letter.
Copies of the letter are to be mailed to the following
people:
Honorable Alfred T. Goodwin
Chief Judge, U.S. Court of Appeals
Honorable William A. Ingram
Chief Judge Federal Court
450 Golden Gate Avenue
San Francisco, CA
Honorable Stanley Wiegel
Senior Judge
Federal Court
450 Golden Gate Avenue
San Francisco, CA
Glen Robinson
United States Marshall
Federal Bldg.
450 Golden Gate Ave.
San Francisco, CA
The attached ‘‘ROUGH DRAFT,’’ is for your pe-
rusal. If you have any thoughts that you would like to
have mentioned please write them and attach them to
this letter for inclusion in the final letter.
It has been suggested that the letter be signed in the
following manner. Each person will print (legibly)
his/her name then sign above it. The site worked at,
will then be affixed by the signee.
EXAMPLES:
[Signature]John A. Doe
JOHN A. DOE
U.S. Court of Appeals
San Francisco, CA
[Signature] Mary Anderson
MARY ANDERSON
Federal Building
San Jose, CA
[Signature] Tom Horne
TOM HORNE
Federal Bldg.
Oakland, CA
[Signature] Ed Brown
ED BROWN
Federal Bldg.
San Francisco, CA
[Resp. Exh. 10]
The lead CSO at the San Jose courthouse informed Perkins
that Brady had prepared and was circulating and discussing
the draft among the CSOs and furnished Perkins a copy of
the draft.
Perkins contacted Clarke, told Clarke he knew about the
letter draft, identified Brady as its author, and asked if he
was its coauthor. Clarke denied he was its coauthor. Perkins
labelled Brady a ‘‘shit-disturber’’ and stated he had to trans-
fer Brady once previously for ‘‘stirring up the troops.’’
Clarke asked Perkins to secure the information requested in
the draft. Perkins replied he worked for the company, not for
the CSOs, he wasn’t going to ask for the requested informa-
tion, but he thought the Respondent was going to supply
some information.14
Perkins supplied the copy of the draft he had received to
Chief Deputy United States Marshall Richard Bippus, whose
office was also in the Federal building housing the United
States District Court in San Francisco.15
Bippus summoned Clarke to his office and told Clarke the
letter could ‘‘cause problems’’ if it was sent to the judges
listed as potential recipients of the letter and Davey, in a let-
ter dated January 31 addressed to Villella, stated:
This office is concerned that direct personal contact
with officers of the courts, for whose security this of-
fice and your employees are responsible, may be at-
tempted in a manner inconsistent with the procedures
normally utilized for such personnel matters. This office
would view any such personal contact as outside the
recognized chain-of-command for Court Security Offi-
249CENTRAL SECURITY SERVICES
16 Brady’s testimony to this effect was uncontradicted and is cred-
ited.
cers, and demonstrating questionable standards of con-
duct.
Please look into this matter, and either disabuse this
office of the notion that such unprofessional contact is
being undertaken by an employee of Central Security
Systems, Inc., or identify the person or persons that au-
thored the unsigned note and/or letter.
Villella responded by issuing a February 1 rule or direc-
tive addressed to CSOs employed by the Respondent
throughout the buildings housing Federal courts within the
jurisdiction of the Ninth Circuit Court ordering all CSOs em-
ployed by the Respondent at those courthouses to process
any ‘‘[r]equests for information, assistance or lodging com-
plaints . . . through the Lead CSOs’’; ‘‘the Lead CSOs will
refer CSO initiated communications directly to the Contract
Manager, Supervisor or Marshall representative, as appro-
priate’’; and ‘‘if this channel is not satisfactory to individ-
uals, communications may be addressed in writing through
the Lead CSO to the following: Fred J. Villella, area Con-
tract Manager, Central Security Systems, Inc., 531 Encinitas
Blvd., Encinitas, CA 92024.’’; ‘‘CSOS ARE REMINDED THAT,
AS EMPLOYEES OF CENTRAL SECURITY SYSTEMS, THEY MUST
COMPLY . . . AND CONFORM WITH THE PROVISIONS PRE-
SCRIBED FOR SUCH COMMUNICATIONS THROUGH THE CSSI
CHANNELS. COMPLAINTS OR REQUESTS . . . RELATED TO CSO
PERFORMANCE AND CONDITIONS UNDER THIS CONTRACT ARE
TO BE CONDUCTED THROUGH THE CHANNELS DESCRIBED
ABOVE.’’
After participating in discussions of the views and sugges-
tions of various CSOs concerning the draft and Clarke’s re-
port Bippus thought it would be inadvisable to send copies
of the letter to the judges, over the weekend of February 4-
5, Brady prepared a revised, final version of the letter, elimi-
nating the proposed sending of the letter to the judges and
making other changes in line with the views and suggestions
he had received.
Brady dated the final version of the letter February 15, in
order to provide time within which to secure signatures
thereto of the CSOs who were interested in securing the re-
quested information and in the hope the Respondent might
furnish the requested information prior to that date (in view
of Perkins’ comment to Clarke in late January that he
thought the Respondent was going to supply some informa-
tion), in which case it would be unnecessary to send the let-
ter.
Brady began contacting CSOs (including lead CSOs) at
the northern California courthouses on Monday, February 6,
to solicit the lead CSOs and CSOs stationed at the various
courthouses to read and sign the letter. He signed the letter,
secured the signatures of three other CSOs stationed at the
courthouse where he was assigned, and secured the signature
of CSO David Banda on February 7 at the Federal building
housing the district court in San Francisco. He visited the
building housing the Federal bankruptcy court in Oakland
prior to shift starting time on February 9, but was unsuccess-
ful in securing any signatures thereto when the lead CSO
there (Leonard Bullock) declined his invitation to read and
sign the letter (in the presence of two CSOs), stating Perkins
had received the information the CSOs were seeking, with
Brady replying in that case there was no need to send the
letter and departing.16
Brady brought the letter to Clarke; Clarke signed it, gave
it to another CSO for his reading and signing if he desired,
and he signed it as well. The final letter, then, by February
9 had seven CSO signatures thereon. The letter read as fol-
lows:
February 15, 1989
Mr. Nicholas F. Pastoressa
President
Central Security Systems, Inc.
84 New Dorp Plaza
Staten Island, N.Y. 10306
Mr. Pastoressa:
This letter is being sent to you as a last resort. Sev-
eral of the members of the court security unit have
made numerous attempts using the chain of command
to get answers to the following questions with no re-
sults. The questions we would appreciate you answering
are as follows:
1. How many vacation days a year are we entitled
to? Are they pro-rated?
2. How many sick days are we entitled to? Are they
pro-rated?
3. Do we have personal days? Are they pro-rated?
4. Are we permitted to accrue our vacation, sick days
and personal days?
5. Are we entitled to re-inbursement for shoes and
sweaters that we purchase as part of our uniform re-
quirements?
6. Will we receive an increase in our hourly wage
at the end of the contractual year, if so how much?
We are interested in learning of the health and bene-
fit plan the company is offering.
Please advise us of the grievance policy of CSSI, a
letter was mailed to Paul Haughom Vice-President re-
questing information on the matter August 20, 1988
however, Mr. Haughom has not acknowledge the letter
as of this date.
We will appreciate, whenever a change in the
amount of money is made on our paychecks, whether
greater or less, an explanation accompany the check by
way of an inter-office memo explaining the adjustment.
At times it is difficult to determine what we are getting
and what we are supposed to have.
I do not know if you are aware of it or not but some
personnel do not have complete uniforms.
Some of the CSO’s have brought a few of these
questions to the attention of Mr. Fred Villella, Califor-
nia Contract Manager, requesting for personnel to meet
with Mr. Villella to discuss these matters when he is
in San Francisco have not been honored.
It does not seem unreasonable to request a copy of
benefits we are entitled to under the existing contract.
We will appreciate a timely response to our inquires.
Please note to whom we are sending copies of this
letter.
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Perkins interpreted the comment as a request for Brady’s re-
moval.
Glen Robinson
United States Marshal
Northern District of California
Mr. Fred Villella
California Contract Manager
Deputy Jim Davey
Liaison Office U.S.M.S.
Mr. Jim Perkins
Supervisor
Court Security Unit
Mr. Jim Hicks
Supervisor
U.S. Court of Appeals
In closing we ask that all information we are entitled
to along with benefits for the part time personnel be
sent to us in the same manner that the Code of Conduct
was.
Personnel requesting this information have affixed
their signatures below and on the attached sheet.
[G.C. Exh. 4]
Neither Perkins nor the USMS officials were aware of the
changes in the final letter from the draft, including the elimi-
nation of the proposal to send copies of the letter to the
judges.
While Brady and Clarke were circulating, discussing, and
soliciting CSO signatures to the final letter, Perkins was
summoned by Robinson and Bippus and asked what he was
doing about complying with Davey’s request either for assur-
ance the CSOs were not preparing to send copies of their let-
ter to the judges or identification of the author or authors of
the letter. Perkins replied he hadn’t done anything yet.
On February 9, Bullock reported to Perkins that Brady had
been at the Oakland courthouse that morning, soliciting sig-
natures to the letter. Perkins also received reports from other
lead CSOs and CSOs to the same effect. He relayed that in-
formation to Marshals Robinson and Bippus; they stated they
would like to see Brady ‘‘go away,’’17 Perkins consulted
with Villella, related his information concerning the activities
of Brady and Clarke vis-a-vis the letters (he still suspected
Clarke was a coauthor as well as a circulator of the letters)
and his interpretation of the Marshals’ views. The two de-
cided to suspend Brady while Perkins developed evidence
concerning the activities of Brady and Clarke and Villella
traveled to San Francisco for determination of what final ac-
tion to take against the two.
Perkins went to Brady’s duty station prior to Brady’s Feb-
ruary 9 shift starting time (9:30 a.m.), stopped Brady from
going to work and sought Brady’s admission he had cir-
culated a petition among the CSOs. Brady denied he was cir-
culating any petition. Perkins stated then Clarke must be
lying to him, Brady then admitted he had been circulating a
letter among the CSOs addressed to the Respondent’s presi-
dent. Perkins told Brady he could not do that and was sus-
pended, pending Villella’s arrival in San Francisco.
Perkins returned to the building housing his and the mar-
shals’ offices, reported to the latter Brady was the author and
circulator of the letter and had been suspended pending fur-
ther review and Villella’s arrival; the marshals repeated their
earlier view they would like to see Brady ‘‘go away.’’
Perkins began interrogating lead CSOs and CSOs who pre-
viously supplied him with reports concerning the activities of
Brady vis-a-vis the preparation, circulation, discussion, and
solicitation of signatures to the letters. He secured a written
statement from the Oakland lead CSO (Bullock) on February
13, in which Bullock confirmed his February 9 oral report
Brady came to the Oakland courthouse at about 8:35 a.m.
(prior to starting time) and, in the presence of two CSOs,
asked him to read and sign the letter; that he refused; and
that neither of the other CSOs present read or signed the let-
ter after hearing his refusal. Bullock gave no further details
in his statement and was not called to testify. Perkins secured
a second written statement from CSO David Banda on Feb-
ruary 15, in which Banda confirmed an earlier oral report
Brady contacted him in the basement of the building housing
the San Francisco District Court at about 12:30 p.m. on Feb-
ruary 7, asked him to read and sign the final letter, and that
he complied with Brady’s request. Banda testified, corrobo-
rating his written statement.
Perkins testified, but did not relate what other lead CSOs
told him in the course of his interrogations. The Respondent
did not produce any statements taken from those
interviewees.
The Respondent produced Brady’s February 7 work sched-
ule, calling for a lunchbreak between 1 and 2 p.m. and also
produced Brady’s work record on February 7 showing he
worked his scheduled 7-1/2 hours that day. The Respondent
contended this evidence established Brady was AWOL (ab-
sent without leave) from his duty post; i.e., abandoned his
duty post during scheduled working hours.
Brady corroborated Bullock’s statement and Banda’s state-
ment and testimony, with one exception. He testified he so-
licited Banda’s reading and signing of the letter during his
lunchbreak, commenting it only took 5 minutes to travel be-
tween his and Banda’s post. He also testified from time to
time his lead CSO, James Hicks, permitted the CSOs under
his supervision to vary from their schedules, covering their
posts during such authorized departures from their schedule
(by authorizing exchanges between CSOs, etc.). Brady’s
work schedule for his February 7 shift, initialed by Brady
and signed by Hicks, shows Brady worked his full 7-1/2-
hour shift that day, and Hicks was not called to testify,
which supports my finding and conclusion the Brady-Banda
encounter occurred either during Brady’s scheduled lunch
hour or during a Brady departure therefrom authorized by
Hicks. I therefore find and conclude the Respondent failed
to establish Brady was AWOL during the Brady-Banda en-
counter.
Even if I were to find and conclude to the contrary, undis-
puted testimony established the lead CSOs and the CSOs
during working hours regularly and frequently discussed non-
work topics; lead CSOs and CSOs circulated and dis-
cussed greeting cards, etc. and solicited signatures thereto;
and lead CSOs solicited CSOs to attend various functions; all
without censure, contrary instruction, or discipline, warrant-
ing my further finding and conclusion that prohibition or dis-
cipline for circulation, discussion, and solicitation of signa-
tures to the letters here concerned constituted disparate treat-
ment of employees engaged in those activities from the treat-
251CENTRAL SECURITY SERVICES
18 Sec. C-8 of the USMS-Respondent contract provides:
8.1. The contracting officer or his representative may request
the contractor to immediately remove any employee(s) from the
worksite(s) should it be determined that individuals are being as-
signed to duty who have been disqualified for either suitability
or security reasons, or who are found to be unfit for the per-
Continued
ment of employees engaged in the similar conduct just de-
scribed.
Perkins supplied the Bullock and Banda statements to
Marshals Robinson, Bippus, and Davey on securing the latter
statement (on February 15). The marshals reiterated the view
Brady ‘‘had to go.’’
On February 17, Villella and Perkins summoned Brady to
a meeting. Perkins asked Brady if he knew why he was
there. Brady replied all he knew was that he had been sus-
pended. Perkins stated Brady had circulated a petition during
working hours, he could not do that, and that he was dis-
charged for doing so. Brady responded he would see them
in court and departed.
Clarke was summoned to meet with Villella and Perkins
following the Brady discharge. Clarke was handed a written,
disciplinary warning for circulating the letters and requested
to sign the warning notice, which he did. The notice read as
follows:
February 13, 1989
TO: CSO Edward R. Clarke
U.S. Courthouse, San Francisco, CA
FROM:SCSO James Perkins
San Francisco, CA
RE: Continued Employment
This memo, containing your signed acknowledge-
ment, is a confirmation of a meeting we had this date
concerning your continued employment as a Court Se-
curity Officer with Central Security.
You have been told that your retention is conditional,
and you have been placed on probationary status for a
period of at least three (3) months.
Among the areas of concern that were discussed
today, and you have agreed to correct are:
* You will obey all rules, regulations and lawful
instructions of the contract employer (Central Security),
U.S. Marshal’s Service and Court Security Supervisory
personnel.
* Observe and abide by the ‘‘chain of command’’
rule,recognizing the need to first contact and commu-
nicate with the on-side [sic] Court Security Supervisor
for advice, instructions, clarification on policy,
shift/assignment changes, grievances or any other work
related problems before proceeding up or down the
chain of command.
* I understand that failure to correct and/or adhere
to the foregoing will be considered insubordination and
may effect my continued employment with Central Se-
curity.
/s/ Edward R. Clarke
cc: Central Security file
[GC Exh. 5]
During the meeting it was made clear to Clarke his cir-
culation of the letters prompted his discipline and Brady’s
drafting and circulating the letters was the cause of his dis-
charge, with Villella commenting Brady previously wrote a
letter to the Respondent’s vice president, had again caused
trouble with his current letter circulation, such action violated
the rules, Brady wasn’t the kind of employee the Respondent
wanted, and Brady had been discharged for preparing and
circulating the current letter(s).
Pursuant to the USMS-Respondent contract, the Respond-
ent promulgated and maintained a Code of Conduct contain-
ing, inter alia, the following rules:
Each Court Security Officer (CSO) of the contractor
must manifest the following behavior conduct. The
CSO must:
. . . .
8. Not engage in any discussion concerning Depart-
ment of Justice or United States Marshals Service
(USMS) internal matter, policies, grievances or person-
alities and financial, personnel or family members with
jury members, prisoners, witnesses, protectees, family
members, the public or any known associate of the
above.
. . . .
23. Not make statement(s) about fellow employees or
officials with knowledge of the falseness of the state-
ment or with ruthless disregard of the truth which
would be a defamatory falsehood made with malice.
24. Report serious violations of prescribed rules and
regulations. Report violations of statute law to appro-
priate management officials.
. . . .
29. Once on duty, the carrying and reading of any
type of literature is strictly forbidden.
30. Neglect of duty, including sleeping while on
duty, unreasonable delays or failure to carry out as-
signed tasks, conducting personal affairs during official
time and refusing to render assistance or cooperate in
upholding the integrity of the security program at the
work sites.
Any violation of the above rules and regulations
could result in a formal reprimand, suspension from
duty and loss of pay or termination.
The day he was discharged, Brady filed the charge which
led to this proceeding. Sometime following its receipt of a
copy of the charge, the Respondent requested USMS’ reac-
tion to Brady’s reinstatement.
On July 3, Marshall Robinson addressed a written reply to
the Respondent’s request containing, inter alia, the following
statement:
Be advised this office will not approve Mr. Brady for
any employment in the United States Marshals Service,
nor will it accept him as a contract employee as a Court
Security Officer in this district. His special deputization
was removed following his termination by Central Se-
curity Systems, Inc., and is in accordance with the con-
tract provision ‘‘. . . conducting personal affairs during
official time . . .’’ as cited in subparagraph 8.1.2 of
Section C-8 ‘‘removal from duty/replacement of
CSO’S.’’18
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formance of security duties during their tour(s) of duty. The
Contractor must comply with these requests. For clarification, a
determination of unfitness may be made from, but not limited
to, incidents involving the most immediately identifiable types
of misconduct or delinquency as set forth below: . . .
8.1.2 Neglect of duty, including sleeping while on duty, unrea-
sonable delays or failure to carry out assigned tasks, conducting
personal affairs during official time, and refusing to render as-
sistance or cooperate in upholding the integrity of the security
program at the work sites.
19 Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); NLRB v. City Dis-
posal Systems, 465 U.S. 822, 831 (1984); Sierra Publishing Co. v.
NLRB, 889 F.2d 210 (9th Cir. 1989); NLRB v. Henry Colder Co.,
907 (7th Cir. 1990); NLRB v. Oakes Machine Corp., 897 F.2d 84
(2d Cir. 1990); Meyers Industries, 281 NLRB 1882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987); Diagnostic
Center Hospital Corp., 228 NLRB 1215 (1977); Independent Sta-
tions Co., 284 NLRB 394 (1987); TLT-Babcock, 293 NLRB 163,
167 (1989); Chinatown Planning Council, 290 NLRB 1091 (1988);
Korea News, 297 NLRB 537 (1990); Aspen, 298 NLRB 401 (1990);
Wabeek Country Club, 301 NLRB 694 (1991).
20 Page Avjet, 278 NLRB 444 (1986); Times Wire & Cable, 280
NLRB 19 (1986); Checker, Inc., 247 NLRB 85 (1980).
21 Hoytuck Corp., 285 NLRB 904 (1987); American Poly-Therm
Co., 298 NLRB 1057 (1990); Garrison Valley Center, 246 NLRB
701 (1979); A & R Transport v. NLRB, 601 F.2d 311 (7th Cir.
1979); EDM of Texas, 245 NLRB 934 (1979); Robert Bosch Corp.,
256 NLRB 1036 (1981).
The Respondent has not offered to reinstate Brady to his
former or a substantially equivalent position since his dis-
charge at any of the northern California courthouses nor of-
fered him employment at any other facility where it provides
security services.
Neither the original nor the final letter drafted by Brady,
circulated among the CSOs by Brady and Clarke and dis-
cussed by Brady and Clarke with other CSOs were ever sent
to the judges or to any other persons.
Marshal Davey testified USMS considered Brady’s draft
and circulation of the proposal that copies of the original let-
ter be sent to the judges violated rule 8 and section 8.1 and
2 of the USMS-Respondent contract, irrespective of the fact
the proposal was abandoned and no letter was ever sent to
the judges, stating the drafting and circulation of the proposal
among the CSOs violated the rule and warranted Brady’s dis-
charge (and, presumably, Clarke’s discipline).
C. Analysis and Conclusions
1. Preliminary
All the Respondent actions alleged to constitute unfair
labor practices in the complaint recite the complained of ac-
tions interfered with, restrained, or coerced employees in the
exercise of their right under Section 7 of the Act to engage
in concerted activity for their mutual aid or protection.
The initial question for determination, then, is whether
CSO preparation, circulation, and discussion of the letter
draft and CSO preparation, circulation, and solicitation of
signatures to the final letter constituted such activity.
I find and conclude that it was; i.e., I find and conclude
by Brady’s preparation of a draft letter to the Respondent’s
president requesting information he and other CSOs desired
concerning their rates of pay, wages, hours, and working
conditions during the term of the Respondent-USMS
contract— after their efforts to obtain that information from
their immediate superiors were unsuccessful—his and
Clarke’s circulation of the draft among CSOs for review and
suggestions, his and Clarke’s discussion with CSOs of the
draft and revisions or additions thereto, his preparation of the
final letter containing revisions, changes, and additions de-
rived from CSO discussion of the draft, his and Clarke’s cir-
culation of the final letter among CSOs and requests or so-
licitations other CSOs read the final letter and sign it, both
Brady and Clarke were engaged in concerted activities for
the mutual aid or protection of the CSOs employed by the
Respondent in northern California within the meaning and
application of Section 7 of the Act.19
2. The alleged late January violations (Perkins)
The complaint alleged and the Respondent denied in about
the last week of January the Respondent violated Section
8(a)(1) of the Act when Perkins gave employees the impres-
sion the Respondent was surveilling the protected concerted
activities of employees by telling employees he knew of their
composing a letter to management concerning their terms
and conditions of employment and by telling employees they
could not engage in protected concerted activities.
These allegations are based on Perkins’ statements to
Clarke on January 31, in which he told Clarke he knew
about Brady’s preparation and distribution of the letter draft,
knew its contents, asked Clarke if he was its coauthor and
identified Brady as a ‘‘shit disturber,’’ ‘‘stirring up the
troops’’ by his preparation, circulation, and discussion of the
letter with other CSOs.
While I find and conclude Perkins’ announcement he knew
the contents of the draft letter and that Brady had prepared
and was circulating it does not support the conclusion Per-
kins thereby gave Clarke the impression the Respondent was
surveilling CSO involvement in the preparation of the letter
draft,20 and the record fails to establish in the course of the
conversation Perkins told Clarke he could not engage in its
preparation, circulation, or discussion, Perkins’ interrogation
of Clarke concerning his suspected role in preparing the draft
and characterization of Brady as an undesirable employee by
virtue of his role in preparing, circulating, and discussing the
draft violated Section 8(a)(1) of the Act, which prohibits em-
ployers from interfering with, restraining, or coercing em-
ployees in the exercise of their right to engage in concerted
activities for their mutual aid or protection, including Brady’s
right to prepare, circulate, and discuss the draft letter.21
I therefore find and conclude by Perkins’ questioning of
Clarke regarding authorship of the draft and his derogatory
remarks to Clarke over Brady’s role in its preparation, cir-
culation, and discussion, the Respondent violated Section
8(a)(1) of the Act.
3. The alleged February 7 violations (Perkins)
The complaint alleged and the Respondent denied on
about February 7 the Respondent violated Section 8(a)(1) of
the Act by Perkins’ interrogation of employees concerning
the identity of the author of the draft and the extent of his
activities with respect to its circulation and discussion.
This allegation is based on Perkins’ admitted interrogation
of CSOs who previously reported Brady’s circulation and
discussion of the draft letter to him, in order to secure firm
253CENTRAL SECURITY SERVICES
22 Perkins and USMS unawareness of the contents of the final let-
ter was undisputed.
23 Behring International v. NLRB, 675 F.2d 83 (3d Cir. 1982); Bill
Johnson’s Restaurants v. NLRB, 660 F.2d 1335, 1337 (9th Cir.
1985); NLRB v. Pizza Crust Co., 862 F.2d 49 (3d Cir. 1988); Faulk-
ner Hospital, 259 NLRB 364 (1984); Union Carbide Corp., 259
NLRB 974 (1982); CNA Financial Corp., 264 NLRB 619 (1982);
Glenoaks Convalescent Hospital, 273 NLRB 488 (1984); Garrison
Valley Center, 277 NLRB 1422 (1985); United Merchants, 284
NLRB 135 (1987); Sorenson Lighted Controls, 286 NLRB 969
(1987); Brookshire Grocery Co., 294 NLRB 462 (1989); Rikal West,
266 NLRB 551 (1983); Club Monte Carlo, 280 NLRB 257 (1986).
24 Hoytuck Corp., supra; American Poly-Therm Co., supra; Faulk-
ner Hospital, supra; Brookshire Grocery Co., supra; Rikal West,
supra.
25 NLRB v. S. E. Nichols, Inc., 862 F.2d 952 (2d Cir. 1988); NLRB
v. Wells Dairy, 865 F.2d 175 (8th Cir. 1989); Overnite Transpor-
tation Co., 254 NLRB 132 (1981); Bohemia, Inc., 266 NLRB 761
(1983); N & T Associates, 273 NLRB 270 (1984); Murd Industries,
287 NLRB 864 (1987); Robert Bosch Corp., supra.
26 Kinder-Care Learning Centers, 299 NLRB 1171 (1990); Cin-
cinnati Suburban Press, 289 NLRB 966 (1988); Sierra Publishing
Co. v. NLRB, 889 F.2d 210 (9th Cir. 1989); NLRB v. Oakes Machine
Corp., 897 F.2d 84 (2d Cir. 1990); NLRB v. Auto Workers Local
980, 819 F.2d 1134 (3d Cir. 1987); Dougherty Lumber Co., 299
NLRB 295 (1990).
identification of Brady as the initiator and circulator of the
draft.22
The Board and reviewing courts consistently have held
employer interrogation of employees to identify other em-
ployees who have engaged in concerted activities protected
by the Act and to learn the extent and nature of those activi-
ties is violative of the Act.23
I therefore find and conclude Perkins’ February interroga-
tion of CSOs for the purposes just expressed violated Section
8(a)(1) of the Act, since those interrogations were designed
to identify Brady as the author and circulator of the draft and
to develop information concerning Brady’s engagement in
concerted activities protected by the Act.
4. The alleged February 9 violations (Perkins)
The complaint alleged and the Respondent denied on
about February 9 that the Respondent violated Section
8(a)(1) of the Act by Perkins’ exchanges with Brady prior
to suspending him.
On February 9, Perkins sought and secured from Brady an
admission he circulated the letter among the the CSOs, fol-
lowed by a statement Brady could not do that and that he
was suspended for doing so.
Perkins’ elicitation from Brady of an admission he cir-
culated the letters, followed by Perkins’ statement he could
not do that, certainly interfered with, restrained, and coerced
Brady in his exercise of his Section 7 right under to engage
in such circulation; I therefore find and conclude by those
actions the Respondent violated Section 8(a)(1) of the Act.24
5. The alleged February 17 violations (Villella)
The complaint alleged and the Respondent denied on
about February 17 the Respondent violated the Act when
Villella told Clarke that Brady was discharged for authoring
and distributing the letters and called Brady a troublemaker
for authoring that and a previous letter sent to the Respond-
ent’s headquarters.
Findings have been entered that Brady was engaged in
protected, concerted activities when he authored, circulated,
and discussed the letters, and solicited signatures thereto. The
Board has held an employer’s telling an employee another
employee was discharged for engaged in such activity is co-
ercive, violates Section 8(a)(1) of the Act, and an employer’s
identification of an employee who engages in such activity
as a troublemaker is also a violation.25
I therefore find and conclude by Villella’s identifying
Brady to Clarke as a troublemaker who had been discharged
for engaging in concerted activities protected by the Act, the
Respondent violated Section 8(a)(1) of the Act.
6. The alleged rule violations
a. Rule 8 and the February 1 rule
The complaint alleged and the Respondent denied the Re-
spondent violated Section 8(a)(1) of the Act by maintaining
and enforcing code of conduct rule 8 and by promulgating,
maintaining, and enforcing the February 1 Villella rule.
Rule 8 prohibits each CSO from engaging in any ‘‘discus-
sion’’ of ‘‘Department of Justice or USMS . . . personnel
. . . matters’’ with ‘‘protectees’’ and the February 1 rule
promulgated and maintained by the Respondent required that
‘‘[c]omplaints or requests . . . related to CSO . . . condi-
tions . . . are to be conducted through the channels de-
scribed above’’ and defined those channels as the Respond-
ent’s managerial personnel.
In a strained interpretation of rule 8, Marshal Davey iden-
tified the judges served by the CSOs as protectees within the
meaning of the rule and the proposed sending of copies of
the original letter draft requesting the Respondent furnish in-
formation concerning the CSOs’ wages and benefits to such
protectees as a ‘‘discussion’’ of ‘‘USMS personnel matters’’
and thus barred by the rule.
Since the letter was never sent to the judges, Brady never
engaged in a ‘‘discussion’’ with the judges, presuming send-
ing of a copy of the letter to the judges would constitute a
‘‘discussion.’’
I therefore find and conclude neither Brady nor Clarke
violated rule 8 by the drafting and circulation among the
CSOs of the original letter draft.
Were I to accept Davey’s interpretation of the rule, the
rule itself is contrary to Federal public policy embodied in
Section 7 of the Act and therefore void and unenforceable,
since the proposed sending of copies of the letter to the
judges obviously was a hopeful attempt to cause the Re-
spondent to supply the information concerning wages, etc.,
requested in the letter, Brady’s 1988 letter never was an-
swered, and the Board and reviewing courts consistently
have held employees have a right under Section 7 of the Act
to address appeals to third persons in an effort to secure a
satisfactory response from their employers to their com-
plaints, requests, etc., concerning their wages, hours, or
working conditions and therefore any employer prohibition
or restraint on the exercise of that right through a rule, order,
threat, or direction violates Section 8(a)(1) of the Act.26
Referring to an employer requirement its employees re-
frain from contacting parents and discussing with those par-
ents their dissatisfaction over their wages, etc., in the hope
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Kinder-Care Learning Centers, supra at 1172.
28 Kinder-Care Learning Centers, Also see Safeway Stores, 266
NLRB 1124 (1983).
29 Wabeek Country Club, 301 NLRB 694, 699 (1991); also see St.
Joseph Hospital Corp., 260 NLRB 691 fn. 2 (1982); American Cast
Iron Pipe Co., 234 NLRB 1126 (1978); Independent Stations, 284
NLRB 394, 396 (1987); Standard Motor Products, 265 NLRB 482
(1982); Spartan Plastics, 269 NLRB 546 (1984).
the parents might help resolve their complaints, the Board
stated:
[T]his requirement . . . has no basis in either the lan-
guage or the policy of the Act—reasonably tends to in-
hibit employees from bringing work-related complaints
to, and seeking redress from, entities other than the Re-
spondent, and restrains the employees’ Section 7 rights
to engage in concerted activities for . . . mutual aid or
protection.27
On the basis of the foregoing, I find and conclude the Re-
spondent’s maintenance and enforcement of rule 8 violates
and violated Section 8(a)(1) of the Act and is therefore void
and unenforceable.
The same reasoning applies to the Respondent’s February
1 rule, which required and requires the CSOs to channel their
requests for information or complaints concerning their
wages, etc., through the Respondent’s managerial chain of
command. Speaking to this issue, the Board stated:
The Respondent’s rule that employees must first take
any work-related complaint to the Respondent tends to
inhibit employees from banding together by requiring
that, in every such case, an employee must approach
the Respondent . . . even before discussing the issue
with other employees. Faced with such a requirement,
some employees may never invoke the right to act in
concert with other employees . . . because they are un-
willing first to run the risk of confronting the employer
on an individual basis (noting, in a footnote, an individ-
ual employee who complains to his employer without
first involving other employees may be found not to
have engaged in concerted activity, and thus lose the
protection of the Act).
Accordingly, we conclude that this portion of the Re-
spondent’s . . . rule violated Section 8(a)(1).28
On the basis of the foregoing, I find and conclude the Re-
spondent’s promulgation, maintenance, and enforcement of
its February 1 rule violates and violated Section 8(a)(1) of
the Act and is therefore void and unenforceable.
b. Rule 23
The complaint alleged and the Respondent denied the Re-
spondent violated Section 8(a)(1) of the Act by maintaining
and enforcing code of conduct rule 23.
Rule 23 bars each CSO from making statements about fel-
low employees or officials with knowledge of the falseness
of the statement or with ruthless disregard of the truth which
would be a defamatory falsehood made with malice.
The Board has consistently held such rules unlawful per
se ‘‘because they were overly broad, forbidding utterances
made in the course of protected, concerted activity off work-
ing time and off the employer’s property and second, be-
cause they punished the merely false, as opposed to the mali-
cious and vicious.’’29
On the basis of the foregoing, I find and conclude the
maintenance and any enforcement of rule 23 violates and has
violated Section 8(a)(1) of the Act and is therefore void and
unenforceable.
c. Rule 24
The complaint alleged and the Respondent denied the Re-
spondent violated Section 8(a)(1) of the Act by maintaining
and enforcing code of conduct rule 24.
Rule 24 requires that each CSO report serious violations
of prescribed rules and regulations and to report violations of
statute law to appropriate management officials.
Counsel for the General Counsel appears to have aban-
doned the allegation this rule violated the Act, for he neither
adduced any evidence nor advanced any argument with re-
spect to complaint allegation.
I therefore recommend dismissal of those portions of the
complaint alleging by its maintenance and enforcement of
rule 24, the Respondent violated the Act.
d. Rule 29
The complaint alleged and the Respondent denied the Re-
spondent violated Section 8(a)(1) of the Act by maintaining
and enforcing code of conduct rule 29.
Rule 29 ‘‘strictly prohibits’’ any CSO from ‘‘carrying’’
and ‘‘reading’’ ‘‘any type of literature’’ ‘‘once on duty.’’
The rule is patently too broad; while the Respondent may
justifiably bar each CSO from reading newspapers, novels,
articles, etc., while ‘‘on duty,’’ on its face each CSO would
be barred from reading work-related material and each CSO
would be barred from carrying on his person material such
as copies of the letters here concerned, for discussion during
his breaks, before and after his work shift.
I therefore find and conclude by its maintenance and any
enforcement of rule 29 except as applied to reading non-
work-related material violates and has violated Section
8(a)(1) of the Act and is void and unenforceable.
e. Rule 30
The complaint alleged and the Respondent denied the Re-
spondent violated Section 8(a)(1) of the Act by maintaining
and enforcing code of conduct rule 30.
Rule 30 prohibits each CSO from conducting personal af-
fairs during official time.
‘‘Official time’’ is not defined in the rule or any accom-
panying material, but a reasonable interpretation is the hours
each CSO has an assigned duty post and duties. The Re-
spondent has a legitimate business interest in maintaining
and enforcing a rule barring its employees from conducting
personal affairs during those hours and I therefore so find
and conclude.
I therefore further find and conclude the Respondent did
not violate Section 8(a)(1) of the Act by maintaining and en-
forcing rule 30.
255CENTRAL SECURITY SERVICES
30 National Licorice Co. v. NLRB, 309 U.S. 350, 365 (1940); Ma-
chinists Local 35 v. NLRB, 311 U.S. 72, 81 (1940).
31 See the cases cited under 1 and 6 above.
32 NLRB v. S. E. Nichols, Inc., supra; Polynesian Hospitality
Tours, 297 NLRB 228 (1989).
33 See the cases cited in 1 and 6 above.
34 251 NLRB 1083 (1980), affd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
f. The alleged nonapplicability of the Act to the rules
The Respondent contends it cannot be held to have vio-
lated the aforementioned code of conduct rules because
USMS promulgated, and required the Respondent to maintain
and enforce its ‘‘code of conduct.’’
Section 7 of the Act is the public policy of the United
States. Since at least 1940, the Board has been empowered
to invalidate those portions of a private contract which inter-
fere with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act,30
I therefore reject the Respondents contention and find void
and unenforceable those portions of the USMS-Respondent
contract mandating the maintenance and enforcement of code
of conduct rules 8, 23, and 29.
7. The Clarke discipline
The complaint alleged and the Respondent denied the Re-
spondent violated Section 8(a)(1) of the Act on February 17
by issuing and requiring Clarke to acknowledge, sign, and
agree to comply with the terms of a written, disciplinary
warning notice.
The notice informed Clarke he was being placed on proba-
tionary status for 3 months, with his continued employment
contingent upon his: (1) obeying all rules, regulations, and
instructions of the Respondent, the USMS and court security
supervisory personnel; (2) observance and abiding by the Re-
spondent’s February 1 chain-of-command rule, i.e., ‘‘the
need to first contact and communicate with the on-side [sic]
Court Security Supervisor for advice, instructions, clarifica-
tions on policy, shift/assignment changes, grievances or any
other work related problems before proceeding up or down
the chain of command.’’
It is clear this discipline was levied upon Clarke for his
circulation and discussion of the letters among and with the
CSOs (including his solicitation of CSOs to read and sign the
final letter, if so inclined). It is further established Clarke and
the CSOs among whom he circulated and discussed the let-
ters were off duty at the time of the circulations, discussions,
and solicitations.
The Respondent did not advance any basis for Clarke’s
discipline other than his role in the circulation, discussion,
and solicitation of the letters, relying on the contention that
activity, even if concerted, was unprotected because it vio-
lated the Respondent’s February 1 chain-of-command rule
and code of conduct rules.
I have concluded the February 1 rule interferes with em-
ployee exercise of a Section 7 right to engage in the activi-
ties in question and is therefore void and of no force and ef-
fect; I have reached a similar conclusion with respect to any
of the code of conduct rules which would inhibit Clarke’s
engagement in the activities I have outlined above. I have
also concluded Clarke’s activities—circulating the letters
among CSOs, discussing the letters with CSOs, and soliciting
CSOs to read and sign the final letter, if so inclined—are
concerted and protected activities within the meaning of Sec-
tion 7 of the Act.
I therefore find and conclude by disciplining Clarke for
engaging in those activities, the Respondent violated Section
8(a)(1) of the Act.31
8. The Brady discipline
The complaint alleged and the Respondent denied the Re-
spondent violated Section 8(a)(1) of the Act by suspending
and discharging Brady.
There is no question the Respondent suspended Brady on
February 9 and discharged him on February 17 for drafting,
circulating among other CSOs, discussing with other CSOs,
and soliciting other CSOs to read and sign the letters.
Again, as in Clarke’s case, the Respondent contends those
activities were neither concerted nor protected within the
meaning of the Act and, presuming they were concerted,
were nevertheless unprotected because they violated its Feb-
ruary 1 rule and the code of conduct.
I have entered findings and conclusions above Brady’s ac-
tivities were both concerted and protected. I have also en-
tered findings and conclusions the Respondent failed to es-
tablish Brady violated code of conduct rules 8, 23, 24, or 30
and that, in any event, code of conduct rules 8, 23, 29, and
the Respondent’s February 1 rule are void and unenforceable.
As to code of conduct rule 29, I would further note the
rule is unenforceable in any event under the circumstances
of this case—the disciplining of Brady and Clarke for activi-
ties condoned and participated in by their immediate superi-
ors, i.e., the circulation, discussion, and solicitation of signa-
tures to nonwork-related material which did not involve CSO
concerns over their wages, hours, and working conditions.32
I therefore find and conclude by suspending Brady on Feb-
ruary 9 and discharging him on February 17 for engaging in
concerted activities within the meaning of the Act, the Re-
spondent violated Section 8(a)(1) of the Act.33
I further find and conclude Wright Line,34 is inapplicable,
inasmuch as the Respondent did not advance any reason or
reasons for the Brady (and Clarke) disciplines other than
their roles in the circulation, discussion and solicitation of
signatures to the letters.
CONCLUSIONS OF LAW
1. Because at all pertinent times the Respondent was an
employer engaged in commerce in a business affecting com-
merce within the meaning of Section 2 of the Act, this case
warrants the Board’s exercise of its plenary jurisdiction to
determine whether the Respondent committed the unfair
labor practices alleged in the complaint and, if so, the appro-
priate remedy therefor.
2. At all pertinent times Villella and Perkins were super-
visors and agents of the Respondent acting on its behalf
within the meaning of Section 2 of the Act.
3. In drafting, circulating among other employees, discuss-
ing with other employees, and soliciting other employees to
read and sign letters containing requests for information con-
cerning the employees’ wages, hours, and working condi-
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
tions, Brady and Clarke were engaged in activities for the
employees’ mutual aid or protection and therefore were exer-
cising rights under Section 7 of the Act.
4. By Perkins’ January interrogation of Clarke concerning
his suspected role in the preparation of the original letter
draft and characterizing Brady as an undesirable employee
for preparing, circulating, and discussing the letter draft with
other employees, the Respondent violated Section 8(a)(1) of
the Act.
5. By Perkins’ February interrogations of employees to
identify the preparer(s) of the letter draft and the extent of
their circulation and discussion of it with other employees,
the Respondent violated Section 8(a)(1) of the Act.
6. By Perkins’ February 9 elicitation from Brady an ad-
mission he circulated the letter draft among other employees
and stating Brady could not engage in that activity, the Re-
spondent violated Section 8(a)(1) of the Act.
7. By Villella’s February 17 identification of Brady to
Clarke as a troublemaker discharged for preparing and dis-
tributing the letter draft among other employees, the Re-
spondent violated Section 8(a)(1) of the Act.
8. By maintaining and enforcing its February 1 chain-of-
command rule and rules 8, 23, and 29 of the code of con-
duct, the Respondent violated Section 8(a)(1) of the Act.
9. By its disparate enforcement of code of conduct rule 29
vis-a-vis Brady and Clarke, the Respondent violated Section
8(a)(1) of the Act.
10. By its February 17 issuance and enforcement of dis-
cipline against Clarke for circulating, discussing, and solicit-
ing the reading and signing of the letters, the Respondent
violated Section 8(a)(1) of the Act.
11. By its February 9 suspension and February 17 dis-
charge of Brady for preparing, circulating, discussing, and
soliciting signatures to the letters, the Respondent violated
Section 8(a)(1) of the Act.
12. The Respondent did not otherwise violate the Act.
13. The aforesaid unfair labor practices affected and affect
commerce as defined in the Act.
THE REMEDY
Having found the Respondent engaged in unfair labor
practices, I recommend the Respondent be directed to cease
and desist therefrom and to take affirmative action designed
to effectuate the purposes of the Act.
Having found the Respondent disciplined Clarke and
Brady for engaging in concerted activities protected under
the Act, I recommend the Respondent be directed to remove
from its records any records reflecting such discipline, advise
Clarke and Brady in writing this has been accomplished, and
their engagement in the concerted activities herein above de-
scribed shall not affect their employment. Having found the
Respondent suspended Brady on February 9 and discharged
him on February 17 for engaging in concerted activities pro-
tected under the Act, I recommend the Respondent be di-
rected to offer Brady reinstatement to his former or a sub-
stantially equivalent position and make him whole for any
wage and benefit losses he may have suffered by virtue of
the discrimination against him, less any interim earnings,
with the amount due and interest thereon computed in ac-
cordance with the formulae of New Horizons for the Re-
tarded, 293 NLRB 1173 (1987); Florida Steel Corp., 231
NLRB 651 (1977); and Isis Plumbing Co., 138 NLRB 716
(1962). In view of the fact USMS’s July 13 refusal to ap-
prove Brady’s reinstatement and redeputization was based on
the Respondent’s erroneous report Brady abandoned his duty
post and violated code of conduct rule 30, thereby warranting
USMS’ actions in reliance of that report under section C-8,
subsection 8.1. and2 of the USMS-Respondent contract, I
recommend the Respondent be directed to advise USMS it
erroneously advised USMS that Brady abandoned his duty
post to solicit Banda’s signature to the final letter and request
USMS retract its July 13 letter and approve Brady’s rein-
statement and redeputization. I further recommend, in the
event USMS refuses that request, the Respondent be directed
to offer Brady employment equivalent to that last held by
him with the Respondent and continue to make him whole
until such time as he has been reemployed.
On the basis of the foregoing findings of fact conclusions
of law and the entire record, I recommend issue the follow-
ing35
ORDER
The Respondent, Central Security Services, Inc., New
York, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees concerning the identity of
other employees engaged in concerted activities for employ-
ees’ mutual aid or protection or the extent of such engage-
ment.
(b) Telling employees other employees engaged in con-
certed activities for employees’ mutual aid or protection are
troublemakers and undesirable employees.
(c) Telling employees they could not engage in concerted
activities for employees’ mutual aid or protection.
(d) Telling employees an employee had been discharged
for engaging in concerted activities for employees’ mutual
aid or protection.
(e) Maintaining and enforcing rules which interfere with,
restrain, or coerce employees in the exercise of their right
under Section 7 of the National Labor Relations Act to en-
gage in concerted activities for employees’ mutual aid or
protection.
(f) Disparately enforcing rules against employees engaged
in concerted activity for mutual aid or protection.
(g) Disciplining employees for engaging in concerted ac-
tivities for employees’ mutual aid or protection.
(h) Suspending and discharging employees for engaging in
concerted activities for employees’ mutual aid or protection.
(i) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer reinstatement or reemployment to John E. Brady
in the manner set forth in the remedy section of this deci-
sion.
257CENTRAL SECURITY SERVICES
36 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Make John E. Brady whole for wage and benefit losses
he may have suffered by virtue of the discrimination prac-
ticed against him in the manner prescribed in the remedy
section of this decision;
(c) Remove from its records any record of discipline
against John E. Brady and Edward Clarke and advise Brady
and Clarke in writing this has been accomplished and their
engagement in concerted activities herein described shall
have no affect on their employment.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security records, timecards, personnel records and re-
ports, and all other records necessary to analyze and deter-
mine the amount or amounts of money due under the terms
of this Order.
(e) Post at its facilities copies of the attached notice
marked ‘‘Appendix.’’36 Copies of the notice, on forms pro-
vided by the Regional Director for Region 20, 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 in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director within 20 days from the
date of this Order what steps the Respondent has taken to
comply.